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In a significant development, Hawaii’s governor has directly intervened in the legislative debate over a water rights bill.
On Thursday, Gov. David Ige sent a letter to leaders of the state Senate and House regarding House Bill 1326, which would extend water diversion rights for land company Alexander & Baldwin, other landowners, utility companies, small farmers and ranchers.
The bill is currently halted for this session, but Ige indicated that he wants lawmakers to take another look at it. He argues that House Draft 2 of the bill, which allows stream diversion for another seven years, is “fair and comprehensive.”
“Water is a critically important issue, and for this reason, there is a lot of emotion tied to decisions about water use,” Ige wrote. “However, it is clear that the law cannot be applied in a discriminatory fashion, that all water permittees and applicants must comply with the law and that the law cannot be specially enforced against some permittees and applicants but not others.”
The governor continued:
Given the timing and circumstances, H.B. No. 1326 addresses these issues for all impacted users in a fair and comprehensive manner. For this reason, I encourage us to continue the conversation and to discuss facts and how we can all move forward to ensure that our State is able to provide the resources needed to support farming, ranching, clean energy production and access to water for drinking and other important public uses.
Cindy McMillan, the governor’s communications director, confirmed the letter was sent but said “the administration has no further comment at this time.”
House Speaker Scott Saiki said in a statement, “The Governor’s statement clarifies some of the practical and legal questions that have been raised surrounding revocable water permits and H.B. 1326 … At this point, it is up to the Senate to determine whether to act upon H.B. 1326.”
Senate President Ron Kouchi later issued his own brief statement, saying, “We will continue communicating and working with the governor and the administration on addressing this issue.”
A spokesperson for A&B declined comment.
But Marti Townsend, director of the Sierra Club of Hawaii, said via email, “I take this as a serious betrayal of our trust. This is like throwing gasoline on the dumpster fire that A&B started and the Farm Bureau was fanning in order to create public panic — all for A&B’s $62 million.”
Townsend, who met with the governor Wednesday to explain the Sierra Club’s position, was referring in part to a rebate that is part of A&B’s sale of land in Central Maui to Mahi Pono, which plans diversified agricultural development. A&B has disputed the Sierra Club’s characterization of the sale.
Townsend argued that Ige has overstepped his authority.
“This is an abuse of the governor’s position,” she said. “He is trying to influence legislation to circumvent the courts. Honestly, his administration has had three years to fix this problem and did next to nothing. And now they are calling this an emergency? It’s a manufactured crisis all to serve A&B’s interest.”
The Senate has until April 30 to pull HB 1326 to the floor from the two committees where it died two weeks ago. The 2019 session concludes May 2.
Ige’s letter states that recent hearings on HB 1326 “generated significant activity from the media, special interest groups and others. In this process, misinformation found its way into the public conversation and antagonism among lawmakers grew to the point that this important legislative measure was tabled.”
In response, the governor said, he asked his administration to analyze the implications of not enacting the bill.
(The entire letter is reproduced at the end of this article.)
The administration concluded that the impact of the proposed legislation “is widespread.”
“The law must promote fair water distribution throughout the State of Hawaii,” Ige’s letter says. “To this end, the proposed legislation sought to ensure that the law applied consistently to all those who have permits to divert water for farming, ranching, drinking, clean energy production and other important uses.”
Ford Fuchigami, Ige’s administrative director, conducted the analysis, which is seven pages in length and includes appendices. It includes a summary of the 2015 court case (currently on appeal) that led to the Legislature in 2016 extending water use by A&B and the other companies for three more years.
Fuchigami said that 2016’s Act 126 “is not a fix to help only A&B.” Rather, he calls it “necessary legislation to address the uncertainty that the law and statutory process … creates for all water permit holders.”
Fuchigami concluded: “I believe that the absence of a statutory amendment to Act 126 (Session Laws of Hawaii 2016) will have adverse effects upon existing permit holders for the disposition of water rights.”
Read Ige’s letter below:
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