The battle over water rights on Maui has ebbed and flowed like the famed rivulets of that Valley Isle.
The latest chapter in the decades-long saga is being written. At issue is what allowance can be made for Maui’s dominant land power, Alexander &Baldwin Inc., as it transitions away from the sugar industry.
A&B leads a group of farming interests seeking relief from the state Legislature following a ruling by state Circuit Court Judge Rhonda Nishimura. In January, Nishimura invalidated A&B’s four revocable permits, which were supposed to be temporary arrangements but were on “holdover” status during years of quasi-judicial and courtroom challenges.
Nishimura is, without a doubt, correct in her action. The bottom line here is that the state needs to end its reliance on short-term renewable but revocable permits and institute a regular order, a rational process of long-term leases.
This would help provide surety to the permittee and would more fairly capture the revenue the state should claim for its precious water resource.
The state Board of Land and Natural Resources had been continuing permits on that holdover basis because A&B has been embroiled in a 15-year fight with some Maui farmers and environmentalists opposed to a long-term water lease. They argued that the stream diversion by A&B threatened the health of key streams and the sustainability on farms depending on that irrigation source. These foes became party to a protracted contested-case hearing, as well as the revocable-permits court action.
Complicating all of this was the need to develop standards for the minimum stream-flow that should remain untouched: Above that level, water could be diverted to a permitted user.
The lack of these standards, as well as staff shortages to fulfill leasing needs such as property assessments, helped to prolong a leasing process that ought to be made more regular. These are state land-use shortcomings that must be corrected to arrive at a final solution.
Meanwhile, at the state Legislature on Friday, House Bill 2501 was being hammered into final form by members of a conference committee. The bill sought a workaround to Nishimura’s court order, one that would enable A&B’s and other similar permits to continue for a period.
HB 2501 has morphed into various forms over the past weeks. One recent version had effectively excluded A&B from the proposed relief for holders of temporary water permits.
Then last week the company announced with great fanfare that it would restore water to seven streams that formerly was diverted for use in its sugar operations — operations that will be shuttered entirely by the end of 2016. Company officials cited the shutdown as the reason A&B decided to restore the water it no longer needed. But just after that announcement, HB 2501 changed again, once more offering relief to the company.
In essence, the legislation seeks to add an allowance in cases “where an application has been made for a lease under this section to continue a previously authorized disposition of water rights.” In those cases, according to one version of the bill, “a holdover may be authorized annually,” but allows a maximum of three years for the lease agreement to be struck.
Whatever version advances for final vote, this kind of time limit is crucial. There needs to be a driver to get applicants to nail down exactly what they need and to justify a longer-term leasing arrangement.
A&B executives said last week they are committed to continuing other forms of agriculture on the 36,000 acres of land once devoted to sugar. That is an encouraging pledge: Christopher Benjamin, the company’s president and chief executive officer, said 27,000 of those acres are classified under state law as “important agricultural lands.”
“We’re not asking to keep our current amount of water,” Benjamin said in an interview with the Honolulu Star-Advertiser editorial board on Thursday.
“We’re already putting water back in the streams — not just the (seven) streams we announced currently, but other streams that we’re temporarily restoring until such time as we need the water again.”
Benjamin said field research has narrowed the search to candidate crops such as sorghum. The final plan will likely combine the components such as food and energy crops, he said, as well as an anerobic digester operation to convert dairy-farm waste to gas and then biofuels.
That may hold future promise, but as applicants today for the use of the public water supply, A&B must move their plans from rough sketches to a final blueprint — and then seek the water it requires.
As for the state, its history of undisciplined resource management has persisted for too long. Applicants for water use must hew to reasonable time limits — but first the state will have to set them.