Water is a precious resource, one that’s owned by the public but that government has struggled to manage correctly.
The battle over House Bill 2501, which concerns the use of water under temporary permits, demonstrates how the state has failed in its management duty.
The measure would allow a “holdover period” that extends short-term water rights while a long-term lease application is pending — however long that takes.
The holdover period would benefit large landowners, with no clear value to the public. The arrangement also hurts farms that depend on adequate stream flow.
The language is generic, but is immediately relevant to Alexander &Baldwin, the landholder winding down its sugar operations on Maui. A&B’s short-term rights were put on a similar “holdover” status because they were the subject of a contested-case proceeding.
A&B has been embroiled in a confrontation for more than a dozen years with environmental groups and East Maui farmers over A&B’s diversions of water that, the farmers say, depleted stream flow and crippled the cultivation of taro and other crops.
Those battles took place before the Board of Land and Natural Resources and then in Circuit Court where, two months ago, Judge Rhonda Nishimura invalidated A&B’s four revocable permits, which the land board had been continuing on a holdover basis every year from 2001 to 2014.
“A&B’s continuously uninterrupted use of these public lands on a holdover basis for the last 13 years is not temporary,” Nishimura said in her ruling.
HB 2501 should be shelved because it perpetuates the overuse of these month-to-month water-use arrangements.
There is a place for revocable permits in resource management, and Nishimura’s ruling doesn’t affect the practice broadly.
But the Department of Land and Natural Resources, the agency in charge of water management, needs to be more selective about the use of revocable permits. Already, following an investigation by the Honolulu Star-Advertiser into the problems with revocable permits, DLNR Director Suzanne Case has formed a task force to overhaul the program.
This should involve increases in staffing to manage a robust leasing program, which, unlike revocable permits, is designed to protect the public interest.
Revocable permits lack the thorough review required for issuance of a long-term lease, which include completion of an environmental impact statement and consulting with the Department of Hawaiian Home Lands over possible conflicts with water reservations for DHHL beneficiaries.
Properly negotiated leases also raise more money for DLNR. Marti Townsend, director of Sierra Club of Hawai‘i, noted in her testimony that A&B pays the state $160,000 annually to use 33,000 acres of public land and tap 164 million gallons daily. By way of context, Townsend said, A&B charges Maui County $2 million annually for 9 million gallons per day for residential-use water from its privately owned supply.
These are important considerations where large-scale water use are concerned, such as in the case of A&B. However, the department — distressingly — is raising no objections to the bill.
“The requirements for obtaining a water lease are much more stringent,” Kekoa Kaluhiwa, first deputy director of DLNR said in prepared testimony. “Satisfying the requirements of an application for a water lease could take several years. Accordingly, it is understandable that an applicant for a water lease would want to continue water use under a revocable permit in the interim.”
But this practice has been allowed to persist for too long in the case of A&B, and the time has come to rein it in, allocating Maui’s water with an eye to preserving the resource.
In other testimony, advocates for the bill asserted that the bill is needed to avoid interrupting service to some 36,000 Maui residents receiving water from the county through an agreement with A&B. In fact, there is no emergency that demands such a mechanism. Nishimura already has put a stay on voiding the permits pending A&B’s appeal of her decision.
The annual revocable permits have been a sweet deal for A&B, and not for the people who own the resource. The balance needs serious correction in the public’s favor, which means HB 2501 should be scrapped.
