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As opponents of House Bill 1326 were making a lot of noise in the Capitol Rotunda on Tuesday and chanting things like, “The people have spoken, the public trust is broken,” the state Senate was behind closed doors in its chamber-level quarters trying to save legislation extending the right of Alexander & Baldwin and others to divert water from East Maui streams.
In the end, the 24 Democrats were not sure if there were nine votes to pull HB 1326 out of the joint committee where it died April 4, or 13 votes to pass it and send it up to the governor’s office this week.
Some senators were pushing a version of the bill known as Senate Draft 1. That version took A&B, one of Hawaii’s oldest and most powerful companies, out of the equation but allowed several utility companies, farmers and ranchers to access state water (the public trust referenced above) for three more years.
Others preferred the House Draft 2 that extended the right of A&B and all the companies with revocable permits to divert stream water from East Maui for another seven years.
In addition to A&B, which holds four revocable permits along with East Maui Irrigation Co., the other companies seeking lease extensions are Hawaii Electric Light Co., Kauai Island Utility Cooperative, Kapalala Ranch, Kuahiwi Ranch, Wood Valley Water and Farm Cooperative, Edmund Olsen Trustee and East Kauai Water Cooperative.
Because of a deadline Thursday to advance bills, Tuesday may have been the best chance to revive HB 1326. Some say the bill is now officially dead.
But others say the Senate may try yet again during one of the 12 floor sessions remaining before adjournment May 2.
What happened in caucus comes from more than a half-dozen people closely following HB 1326, including several lawmakers.
They were granted anonymity so that they could speak freely about sensitive discussions in the Senate caucus held before Tuesday’s floor session began at 10 a.m. and a second caucus called by President Ron Kouchi just after 11 a.m.
I happened to be in the Senate gallery when all this went down, although I didn’t fully understand what was happening until later. But I did get a tip that something was about to happen.
On the Senate floor papers were delivered to the clerk and then to the member’s desk — a floor amendment for HB 1326. I looked up to see employees of the Senate Sergeant-at-Arms whispering quickly to one another. I also saw that several sheriffs from the Department of Public Safety were on hand.
It turned out to be a false alarm. But it could happen again.
The fight over HB 1326 in the Senate comes with several related developments.
On Monday, KITV’s Brenton Awa reported that Gov. David Ige met with the attorney general and members of the state Department of Land and Natural Resources “to find out what comes next” after the bill died last week.
Awa said that Ige’s administrative director told him that the state “will not renew any revocable water permits for small farmers and ranchers” when they expire this year.
“Ford Fuchigami tells us something has to happen by the end of this legislative session to fix the issue,” Awa reported. “The governor is expected to talk with both the House and Senate next.”
Fuchigami’s public pronouncement came as a surprise to some senators who felt that it was unprecedented for the executive branch to insert itself into the legislative process to issue an ultimatum. Others said it was in fact very appropriate for the governor, the AG and the DLNR to be involved in crafting a solution.
There is the possibility that Ige could issue an emergency proclamation to resolve the legislative impasse, but that seems a big stretch. The water rights bill hardly rises to the calamity of a natural disaster, although it is certainly a political crisis.
And it is important.
A widely shared goal in the islands is to move Hawaii toward a self-sustaining state so that it one day will not have to import nearly all of its food and energy.
That must be done in accordance with core constitutional provisions and statutes that guide the use of public resources.
A&B wants to continue diverting water to Central Maui, where it recently sold former sugar cane lands for $262 million to a company called Mahi Pono. The plan is to cultivate diversified food and energy crops.
Ige could also call the Legislature into special session after the current session ends. That, too, seems unlikely.
The most likely option is for the Senate to salvage some sort of compromise. But many are worried about the precedent of employing rarely used procedures such as pulling a bill to the floor. What if that happens to other bills that die in committee, such as Senate Bill 686 calling for the legalization of marijuana?
If senators also choose to pull a bill, the so-called “nuclear option” could lead to a “nuclear war,” as I heard it described, in which there is a shakeup in leadership.
Compromise legislation could potentially come with the help of the House. But some representatives are angry that the Senate botched the deal while some senators are angry that they are the ones having to do all the heavy lifting as the House stays largely out of the spotlight.
And, there are plenty of senators who just want the whole thing to go away because it has become too toxic.
Meanwhile, senators are receiving emails this week from individuals urging them to reconsider. They read in part:
We respectfully and urgently request that you please pass a measure this session so farmers and ranchers don’t lose their access to the water they need to produce the food and agriculture we want in Hawaii …
This is not about A&B, this is about the future viability of agriculture in our state. Without an extension of temporary water permits, farmers and ranchers on revocable permits will not have legal access to water at the end of this year …
And, according to the Maui County Department of Water Supply, more than 80 percent of Upcountry Maui water comes from streams in the East Maui watershed and without the EMI permit to access and deliver that water for use by Mahi Pono’s diversified agriculture in Central Maui, water may not be diverted to the county water treatment facility and then on to Upcountry residents and farmers.
It’s not clear where all the emails are coming from. One of the senders of emails I was able to obtain is identified as Steven Horio of Kukui Sausage. Another is identified as Sylvia Smith.
What is clear is that someone wants a water bill to pass ASAP.
There is one other possible outcome: For the Legislature to do nothing at all with the water rights issue.
It’s not clear whether that might result in lawsuits when Act 126 — the 2016 legislation that extended the water rights use for three years — expires June 30. A&B is already the subject of a court case on appeal, something that resulted in adopting Act 126 to help the company out.
It’s not clear whether the water would just stop flowing come Dec. 31, when the permits expire, though some senators have said they find that unlikely.
But this is the first year of the Legislature’s biennial session, meaning any bill that didn’t make it can be picked up again starting in January.
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