Editorial: Get tougher on water lease bill

April 9, 2019  | Updated April 8, 2019 6:34pm

There’s buzz at the state Capitol that a contentious public water rights bill, which appeared to be dead for this legislative session, could be resurrected today in the Senate for a floor vote.

If that unusual parliamentary maneuver plays out, senators should reject House Bill 1326, House Draft 2, as it would prolong for up to seven years delayed compliance with requirements pertaining to distribution and protection of the state’s water resources.

Further, if there’s political will to amend the measure on the floor, lawmakers should support something akin to the elegant draft passed by Sen. Kai Kahele’s Water and Land Committee, but which was quickly shelved by the Ways and Means Committee. That version would have allowed a group of utilities, landowners, ranchers and farmers — but not court-restricted Alexander &Baldwin Inc. — to continue drawing public water under short-term “revocable” permits while working to satisfy stringent state requirements for obtaining long-term leases.

As it now stands, HB 1326, HD 2 appears to protect A&B’s water-related business; Kahele’s version would not — much to the delight of some Native Hawaiian and environmental groups intent on seeing Hawaii shake off vestiges of plantation-era water use practices.

A&B has a long history of siphoning from more than 100 streams and tributaries on public watershed lands in East Maui. Water diversion there and elsewhere has resulted in dried-out stretches of watershed. Among the consequences: reduced aquifer replenishment, less taro farming and fishing opportunity, and a growing presence of invasive species.

In January 2016, the Circuit Court ruled that the state does not have authority to issue water-collection permits with a term exceeding one year. The ruling focused on A&B permits but had legal implications for others — leaving roughly a dozen holders of revocable permits, which had allowed collection for longer than one year, in limbo. By way of Act 126 (2016), the Legislature allotted three years to correct the problem.

With that deadline now closing in, most of those revocable permit holders have yet to secure long-term leases. Various state agencies maintain that the delay is due, in part, to hydrology-based complexities tied to compliance, and the phasing out of long-standing allocation practices.

Another strong possibility in the mix: simple, old-fashioned foot-dragging. HB 1326, HD 2 seeks another seven years, which would stretch compliance with modern water-use law into a decade. Unacceptable.

Some opposing further delay suspect that any extension is a financial bailout for A&B. It’s on the hook for paying out as much as $62 million to the farming venture that bought A&B’s Maui sugar land holdings if it can’t deliver on 30 million gallons of water a day for more than a year at any time over the next seven years.

A&B has said the rebate is not related to HB 1326. Curiously, though, Sen. Donovan Dela Cruz, Ways and Means chairman, seems to think that the seven-year timeline matters. When Kahele had proposed a shorter compliance deadline of three years, Dela Cruz gutted a Department of Land and Natural Resources funding bill, House Bill 1171, and replaced its contents with language similar to HB 1326, with the 2026 expiration date, which is supported by A&B.

The gut-and-replace tactic is rightly frowned on by good government groups, as it blocks the public from taking part in a transparent legislative process.

Dela Cruz’s HB 1171 draft stalled early last week. Then on Thursday, immediately after Kahele’s attempted version of HB 1326 passed, which included a three-year extension minus A&B, Dela Cruz deferred his own committee’s action, essentially shelving the bill for the moment.

Dela Cruz should explain himself. And if HB 1326 HD2 is resurrected to hit the Senate floor today, lawmakers should nix it, in favor of a no-nonsense, swift path toward enforcing updated and pono water-use leases.