HB 1326: The Water Theft Bill

HB 1326—the Water Theft Bill—in front of the legislature would extend the holdover status of temporary permits (again) that allow corporations to continue to take millions of gallons of water from Hawaiʻi streams with very little oversight. This bill continues the unlawful historic practice of water theft, fails to protect Hawaiʻi’s streams and native species, and favors corporate profit over public needs.


WE DID IT! WE WON! WE KICKED A&B OUT OF THE CAPITOL!

Tuesday, April 30 was the last day that the Senate could move to resurrect HB 1326 HD2 as the bill needed to pass two more readings that must be 48 hours apart. The bill remains dead for 2019! For far too long, corporate interests, especially the Big Five, have gotten their way within the Capitol. Yesterday’s big win marks a new chapter where the public’s interests are finally taking back the building and the support of lawmakers.

In absence of this bill, Alexander & Baldwin will no longer be able to divert water from East Maui under its four invalidated permits, starting December 31, 2019. To continue the diversions, A&B must complete their long-term lease application, which has been in process since 2001 when they first submitted their lease application.

However, with A&B no longer in agriculture and their recent sale of Central Maui lands to Mahi Pono, A&B no longer has a use for East Maui water. The new landowners, Mahi Pono, can rightfully apply for their own long-term lease to divert East Maui water if they can demonstrate their need for the water. Long-term leases require the completion of Environmental Impact Statements and assess the impacts of diversions on downstream users, ultimately providing protections for the environment and ensuring that public trust uses are met first. The 2016 circuit court order that invalidated A&B’s four permits only impacts A&B. The court ruling exclusively carves out Upcountry Maui’s domestic and agricultural uses and does not set a precedent for the other small-scale water diverters.

While this is not the end of this battle, it is a huge step in the right direction. There truly is enough water for all and we have to collectively move forward in a way that ensures water security for generations to come. Ola i ka wai!


GOVERNOR CALLS ON LEGISLATORS TO PASS HB 1326 HD2

First, Governor Ige’s office releases a statement that “something has to happen” on HB 1326 HD2. Then, Governor Ige publicly supports renewing revocable permits for all water diverters. Most recently, Governor Ige issued a letter to all legislators urging them to pass HB 1326 HD2. He cited misinformation and antagonism among legislators. He urged that "the law must promote fair water distribution throughout the State of Hawaiʻi".

This all comes after the Senate moved to indefinitely defer HB 1326 HD2. The Administration is to fault—this is their own manufactured crisis. There is no legal impediment stopping the Department of Land and Natural Resources from issuing revocable permits after Act 126 to everyone except A&B—whose permits were invalidated by the court. The Administration has full regulatory power to create regulations that protect small farmers and ranchers. The Administration already received a 3 year extension to create a sound process to issue long-term leases. The DLNR themselves stated in the December 2018 report to the legislature, that “DLNR does not have any immediate recommendations for further legislative action or funding at this time.”


TODAY WE WON. TOMORROW WE WATCH.

It was rumored around the capitol that HB 1326 may be coming back from the dead. Some senators may be making moves to pull the bill to the floor and force it to a vote in the House Draft 2 version, not the equitable version introduced by Senator Kahele. If that happens, the bill would go straight to the Governor’s desk.

We watched, rallied, and waited during today’s senate floor session but no moves were made. Over 300 people came to bear witness to the Senate making any unjust maneuvers to bring this bill back to life. Inside the building you could hear the people outside chanting, blowing pū, and pounding board to stone. “No water, no kalo”, “The people have spoken, the public trust is broken”, “A&B don’t represent me!” A clear message was sent to the senators today—the people are watch, the people are restless, the people want justice.

It looked like there could be some action—senators were scurrying around, shuffling papers, two recesses were called—but in the end, no senator stood up to take action.

Throughout this session’s water fight there has been some good press revealing some of the corruption and behind-door workings of the legislature. Check out this Star Advertiser article on Senator Dela Cruz and this Civil Beat article on what it takes to bring this bill back to life.


APRIL 4: HB 1326 IS DEAD! 👏🏽👏🏽👏🏽

In joint committee decision making on Thursday in Water and Land and Ways and Means, Committee Chair Donovan Dela Cruz moved to defer HB 1326 indefinitely. This surprising move came after Water and Land Chair Kai Kahele introduced amendments that would cut out A&B from the existing bill, prohibiting them from receiving any more extensions on their revocable permits but protecting small farmers and ranchers.

Please take a moment to thank Senater Kahele for his perseverance in protecting Hawaiʻi’s streams and the lives that depend on them and for standing up against corporate exploitation. From walking East Maui in the pouring rain, to bringing his committee to hear from the impacted community on their own turf, to asking the HARD questions of the squirming representatives of the DLNR and the AG and Alexander & Baldwin in the hearings, he showed that he is committed to getting to the truth.

After weeding through all of the misinformation and fear mongering that small farmers would be harmed if this legislation didn't pass, today he offered an amended version that carved out A&B while offering protection to small farmers. In case you missed it, when faced with having to pass this amended version, Ways and Means Committee Chair Dela Cruz deferred the bill indefinitely, effectively killing the bill.

Please give him a call at 586-6760 or email him at senkkahele@capitol.hawaii.gov and give him a huge mahalo and let him know he did the right thing for Hawaiʻi.

There are literally a thousand people who played a role in stopping the infamous "corporate water theft bill". Heroes in many forms, from impacted residents who have tirelessly kept up the fight, the attorneys who have represented them, the organizers who haven't given up, and the community members who sent in heaps of testimony and called their senators relentlessly.

Additionally, there is a group of brave legislators that deserve individual recognition, including Representatives Wildberger, DeCoite, Eli, Gates, Kitagawa, D. Kobayashi, McKelvey, Perruso, and Thielen, and Senators Riviere, Nishihara, Thielen, Keohokalole and even Senator Dela Cruz (who ultimately killed it).

Knowing how things operate at the Capitol, there is more to come. We don't expect leadership or A&B to take this outcome lightly—so we will stay on our toes and keep our eyes out for other gut and replaces, amendments, shenanigans to come.


APRIL 2: DECISION MAKING ON HB 1326 DEFERRED

MAHALO NUI to everyone that submitted testimony—over 600 testimony in opposition, attended the hearing—for upwards of 6 hours, and shared your voice. Despite having every committee member in the room, the committees decided to postpone decision making until Thursday. Tuesday was a long day but we heard a lot of good testimony and received confirmation that debunks a lot of the misinformation circulating around this bill:

  • Maui County’s Upcountry water supply (of 6 million gallons a day) is not at risk if HB1326 is not passed,

  • DLNR is creating unnecessary fear in small farmers by failing to use their discretion when applying the permitting statute to small farmers and ranchers,

  • For decades, DLNR has done a phenomenally poor job of valuing public trust resources, and as a result does not have funding sufficient to full-time its mission,

  • There are more similarities than differences between the taro farmers and fishers who are asking for streams to be restored, and diversified ag farmers who want to use some stream water. There really is enough water for us all to thrive,

  • The only entity that is really harmed if HB1326 is not passed is A&B because they will be out $62 million, if they are legally prohibited from diverting water.

APRIL 1: HB 1171 pulled from the Senate Ways and Means Committee agenda - no hearing on April 2

MARCH 29: HB 1171 gutted and replaced from a DLNR funding bill for invasive species mitigation and fire prevention to another stream theft bill. HB 1326 and HB 1171 scheduled for simultaneous hearings in WTL/WAM and WAM, respectively.

HB 1326 proposed SD1 - Proposed by Sen. Kahele, this bill grants A&B a three year extension on the use of four "holdover" revocable permits that a court invalidated. Granting this extension allows A&B to hold onto $62 million from the sale of their central Maui lands (they would probably need to come back to the legislature for the additional years later).  

It is true that this bill imposing additional reporting requirements on permits issued to divert more than 2 million gallons of water a day, a requirement to hold a hearing on new rules, and an exemption for loʻi kalo cultivation. 

We appreciate Sen. Kahele's effort to improve the bill, but the protections are still insufficient. There is no need for a loʻi kalo exemption or additional requirements for rulemaking hearings. DLNR already attempts to write down in their staff submittals how the permits to A&B and KIUC do not cause harm, when we know they do. We thank him for standing up for us all this time and asking to him keep going... go all the way for the people of Hawaiʻi and vote against all of these horrible bills. 

HB 1171 - Proposed by Sen. Dela Cruz, this bill grants A&B a seven year extension on the use of their "holdover" revocable permits that were invalidated by the court. This extension would guarantee A&B that $62 million without having to come back to the legislature or do anything else.

This bill has some of the same language as Sen. Kahele's bill, but like we said those additions do not add any actual protections for the streams or taro farming that does not already exist. 

MARCH 5: HB 1326 on House Floor. No votes: Reps. Cynthia Thielen, Kitagawa, Perruso, Eli, Wildberger, Decoite, McKelvey, Gates, Dale Kobayashi.

With reservations: Reps. Ward, Lowen, San Buenaventura, Har, Matsumoto
Recused: Reps. Matayoshi, Nakamura

FEB 27: HB 1326 PASSES OUT OF FINANCE.

No votes: Eli, Gates, Kitagawa, Wildberger
With Reservations: Kobayashi
Recused: Nakamura
Yes votes: Luke, Cullen, Holt, Todd, Hashimoto, Yamashita, Nishimoto, Matayoshi

The bill moves on but we are starting to see an impact of our grassroots work with increasing numbers of votes in opposition/with reservations.

WAI FOR ALL DAY// FEB. 25

Mahalo nui to the water protectors from Kauaʻi, Oʻahu, and Maui that made the trek to the capitol on Feb 25 to stand together for Hawaiʻi’s streams and the people that depend on them. We had a successful day meeting with lawmakers to dispel confusion around HB1326 and discuss water rights issues together.

Mahalo mahalo mahalo.

FEB 20: HB1326 HD2 heard in House Finance Committee. Decision making deferred to a later date not determined.

Mahalo nui to everyone that submitted testimony in opposition, we had almost 200 written testimonies submitted.

FEB 15: HB1326 on House floor. No votes from Reps McKelvey, Eli, Wildberger, and Perruso; Kitagawa with reservations; everyone else YES votes.

Mahalo nui Representative Wildberger for again standing up for Hawaiʻi’s streams and for what is right!

Huge mahalo to Rep. Tina Wildberger of Maui, the only committee member to vote NO on HB 1326.

FEB 8: HB1326 PASSES OUT OF WLH WITH A 5-TO-1 VOTE.

Mahalo nui to EVERYONE who submitted testimony in opposition to this terrible bill. There were over 600 testimonies submitted, most in opposition, with over a dozen verbal testimonies provided at the hearing. The bill was amended from providing diverters the ability to take water for an indefinite about of time to seven years, including authorization to continue diverting while permits are challenged in court.

Voting for the bill were: Committee Chairperson Ryan Yamane from Mililani, Vice Chair Chris Todd, and members Rep. Nicole Lowen, and Rep. David Tarnas, all from the Big Island, and Rep. Sharon Har, representing Kapolei. Rep. Thielen from Kailua/Kaneohe was absent and excused. Rep. Tina Wildberger from Maui was the sole no vote.

You can read more about Friday’s decision here.

The bill now heads to the House Finance Committee, chaired by Reps Sylvia Luke and Ty Cullen.

HB1326 - Hearing FRIDAY, February 8, 8:30am in House Committee on Water, Land, and Hawaiian Affairs

HB1326 gives water diverters—like A&B (now Mahi Pono) and KIUC—an UNLIMITED amount of water, for an INDEFINITE amount of time, for UNKNOWN uses. This bill provides no standards or criteria for ensuring that stream ecosystems are protected from excessive water diversions.

There is enough water for everyone to prosper, it is just a matter of striking the right balance. HB1326 is basically a blank check to Mahi Pono, A&B, KIUC and others to continue the unjust practice of taking unlimited amounts of water from Hawaiʻi’s streams—to the detriment of our native ecosystems and the people that depend on them. 


A&B BAILOUT//

Extending the holdover status of revocable permits through bills like HB1326 provides a $62 million bailout to A&B. In December 2018, Mahi Pono bought 41,000 acres of Central Maui, previously sugarcane, lands from A&B. In its sales agreement with Mahi Pono, LLC, A&B promises to ensure that the Department of Land and Natural Resources provides 30 million gallons of water per day from East Maui to Mahi Pono—or else pay Mahi Pono $62 million.

Clearly, A&B and Mahi Pono are invested in ensuring these bills get passed. But A&B has a long history of empty promises and Mahi Pono has not made a clear case on why it needs to take an unlimited amount of water from East Maui streams. A&B has already received an extension of their holdover status from the 2016 legislature and is nowhere closer to justifying its take of water or applying for a long-term lease.

This is our chance to end the unjust, 15+ year streak of corporate exploitation of Hawaiʻi’s streams. Private interests should no longer be prioritized over public needs. Water diverters, like Mahi Pono, A&B and KIUC, should not have access to any public water until their commitments are followed through and public needs are taken care of first.

LEAKY PLAN FROM MAHI PONO//

Mahi Pono has released a farm plan narrative with several water use scenarios that shares how they plan to use their 41,000 acres. The plans include citrus, mac nuts, coffee, sweet potatoes, tropical fruits and cattle, several of which are water intense crops. The scenarios vary greatly in water use—with and without water leases—but do not mention the millions of gallons of water already available on their recently purchased private land. A more specific farm plan with acreage (but not water use) has also been shared by MauiTimes.

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E ola i ka wai - Water is life