Alexander & Baldwin Will Keep Water Rights After Senate Vote

Honolulu Civil Beat - April 22, 2016

By: Chad Blair

It took several hours Friday afternoon for legislators to agree on a contentious water rights bill, mainly because lawyers needed to look over the language.

But by 5 p.m., state House and Senate committee conferees in House Bill 2501 had reached an agreement that allows the measure to move forward.

The legislation still awaits a full vote in each chamber and, assuming it passes both, Gov. David Ige’s signature.

If all that happens, developer and agricultural business Alexander & Baldwin would be allowed to keep leasing stream water from East Maui to divert to Central Maui, where its soon-to-be-shuttered sugar mill still operates and where A&B says it plans to branch into diversified crops.

An estimated 10 companies, including agricultural, ranching interests and utilities on Maui, Kauai and the Big Island — would be allowed the extension of water permits.

Rep. Ryan Yamane, the author of the bill and its lead conferee for his chamber, told counterpart Sen. Mike Gabbard that the House was “very concerned” about the planned closure of the state’s last sugar mill, which is owned by an A&B subsidiary on Maui.

He told Gabbard that the House appreciated the Senate’s concerns that state waters are part of a public trust doctrine, and that the bill would make that clear. He said the bill would also require that annual reports to the Legislature on the lease permits be made until 2020.

Language paying for two full-time positions with the Department of Land and Natural Resources, which is responsible for the state’s waters, will be removed from HB 2501 and instead be covered in the state budget.

The budget measure, House Bill 1700, would also set aside $1.5 million to study the flow of the streams in question.

“We know this is a very tough and contentious issue,” said Yamane, who said the holdup on the bill’s final draft was over the wording of just two sentences.
“More billable hours for the lawyers,” he joked.
By that time, about 4 p.m., Gabbard said he would not be able to drive home to Kapolei until the evening rush hour had cleared.

When the final vote came — a unanimous one — at shortly after 5 p.m., the House and Senate conferees thanked each other for their work and that of their lawyers.
Gabbard said the bill was not “perfect,” but described it as a “middle ground” solution that strikes a “balance.”

He also said he hoped the DLNR and its Commission on Water Resource Managementnow work on longterm solutions regarding the water permits.
Protests To Continue

HB 2501 was introduced by Yamane and three Maui lawmakers, including House Speaker Joe Souki. It effectively would allow A&B, a powerful player on Maui and in the state, to keep diverting millions of gallons of water from East Maui.

Taro farmers and Native Hawaiian cultural practitioners in the area have sought to halt the diversion. In January, a judge determined that A&B had violated state law by continuing to divert water since 2001. The case is under appeal.

Groups like the Sierra Club of Hawaii and the Native Hawaiian Legal Corporation contend that HB 2501 is special legislation crafted for A&B, which they say is illegally diverting the streams.
The argument gained new urgency when A&B announced Wednesday that it would permanently stop diverting water to as many as eight streams in East Maui. Several lawmakers praised the plan, in particular members of the Maui delegation.

But critics like the Sierra Club and NHLC said the company had an alternative motive: to ensure that A&B would once again be covered under HB 2501. Later that day, Gabbard proposed to Yamane exactly that.

Regardless of the bill’s fate, water rights struggle will continue.

A peaceful “free the streams” rally organized by the Sierra Club will be held at A&B’s shareholder meeting Tuesday at the company’s headquarters in downtown Honolulu.

“For decades, the people of East Maui have pushed for the return of the public’s water, winning legal victories over the years, including a recent court ruling that A&B’s authority to divert water for its sugar operations were invalid, and recent findings by a water commission hearings officer that A&B’s diversions take more water than they need for sugar,” the club stated. “Despite these victories,

A&B has consistently taken more water than it needs, harming the native stream ecosystem and the community that relies on it. But we now have an opportunity to set things right. “