The water rights measure, House Bill 1326, is dead for 2019, but the problem it was partially designed to solve remains. Two utility companies and a half-dozen landowners, small farmers and ranchers could see their state permits to divert public water expire by the end of this year.
Asked about what could now be done, instead of waiting until the 2020 session of the Hawaii Legislature to revive HB 1326, Gov. David Ige said last week that his administration — and in particular the state Department of Land and Natural Resources — is committed to resolving the water issue once and for all.
“We’ll make sure that DLNR has the resources it needs to work through the process,” he told reporters at a press conference after session ended May 2. “But I think people are forgetting that we are trying to issue long-term leases for water that has never, ever been done in the state of Hawaii … It has to be done right.”
We welcome the governor taking on a highly divisive and complex issue whose origins date to the 19th century, and we agree it has to be done right.
Rather than kick the proverbial can down the road, as HB 1326 called for — it would have extended water permits for another seven years, just as Act 126 in 2016 extended them until this year — the DLNR must expedite its work on water permittees and their applications for water leases.
Hawaii Department of Land and Natural Resources Director Suzanne Case and Gov. David Ige at the Hawaii Climate Conference at the East-West Center in January. The issue of water permits is now in their hands.
Nathan Eagle/Civil Beat
However, that work should not apply to land company Alexander & Baldwin, which holds four permits from the DLNR. A Circuit Court judge in January 2016 said that the state Board of Land and Natural Resources should not have allowed A&B to keep diverting water.
The revocable permits were subsequently invalidated and the case is on appeal to the state’s Intermediate Court of Appeals and could very well end up before the Hawaii Supreme Court. That could take years.
It’s not right that the other holders of temporary water permits — 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 — must stay in quasi-limbo and fear for their livelihood. They are not defendants in the so-called Carmichael case that targets DLNR and A&B.
Each entity has different circumstances and resources, too, and so the application process does not apply uniformly to each. The process requires developing plans, consulting with government agencies, complying with environmental reviews, implementing watershed plans and appraising the value of the water and its diversion.
The Ige administration believes it will ultimately prevail in Carmichael. We’ll see. That’s now the kuleana of his new attorney general, Clare Connors.
But it is the DLNR, whose director Suzanne Case was just confirmed for a second four-year term, that administers water permits.
The agency has already written to the small farmers involved in the matter to confirm the amounts and use of water, and to lay out the lease process. DLNR staff have also reviewed a proposed approach to address required watershed management plans.
On the surface, water applications can appear complicated. Other agencies involved are the Department of Hawaiian Home Lands, the Office of Conservation and Coastal Lands and the Commission on Water Resource Management.
But that’s what the law requires, and that is what these agencies do. It’s not as if this involves bureaucrats who are strangers to one another. The OCCL and CWRM, for example, are part of DLNR.
While it is improbable that the water will stop flowing come Jan. 1, as some fear, there is an urgency to bring this crisis to a satisfying conclusion. The inability of the Legislature to resolve it was embarrassing and ugly, and the judicial process drags on.
The executive branch must rightly take the lead. Fortunately, the governor has already shown leadership on the water rights issue. Last month, after the bill appeared dead, Ige urged lawmakers to reconsider based on his analysis of the issue.
While we disagree that A&B should be part of the solution — let the courts handle that — like the governor, we support a sustainable Hawaii that grows most of its own food rather than importing nearly all of it from abroad.
We also hope that Ige and the DLNR will include legislators in the process. State Sen. Kai Kahele, who authored a version of HB 1326 that kept A&B out of the bill, has reached out to DLNR, and the agency has said it is open to consultation.
“Ola i ka wai — water is life,” opponents of HB 1326 cried.
But also true is Article XI, Section 7 of our state constitution: “The State has an obligation to protect, control and regulate the use of Hawaii’s water resources for the benefit of its people.”
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The members of Civil Beat’s editorial board are Pierre Omidyar, Patti Epler, Jim Simon, Richard Wiens, Chad Blair and Jessica Terrell. Opinions expressed by the editorial board reflect the group’s consensus view. Chad Blair, the Politics and Opinion Editor, can be reached at firstname.lastname@example.org.