END CORPORATE WATER THEFT
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!
Be sure to take a moment to thank the legislators for not passing the bill and standing up for the people of Hawaiʻi. You can email all 76 legislators with one click below.
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 firstname.lastname@example.org 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
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!
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.
The bill now heads to the House Finance Committee, chaired by Reps Sylvia Luke and Ty Cullen.
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.
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.
REVOCABLE PERMITS: Permanently Temporary
Water diverters—like Alexander & Baldwin (and now Mahi Pono) and Kauaʻi Island Utilities Cooperative—are required by law to obtain a permit or lease to access the public lands on which the public water is diverted. Long term lease applications require in depth review processes, like the completion of an Environmental Impact Statement and watershed management plans. Because of their historic influence on Hawaiʻi’s economy, corporations like A&B have received a lot of special treatment over the years, like access to public water for their own profit. For years, the Board of Land and Natural Resources issued short term, “holdover” revocable permits for water diversions, allowing diverters to avoid the rigorous review needed for a long term lease.
In 2016, the First Circuit Court ruled that BLNR’s use of revocable permits violates state law and all existing permits invalidated. Soon thereafter, the legislature amended the law to legalize the hold over of revocable permits for three more years in order to provide water diverters time to prepare their long term lease applications. This law allowed for the continued theft of millions of gallons of public water every day for private profit and rewarding diverters for manipulating the permitting system for years.
Since the passage of HB 2501 (now Act 126), BLNR has approved the renewal of revocable permits every single year—with little accountability to the diverters to follow up on permit conditions from previous years or to seriously navigate the process for a long term lease. A&B and KIUC both applied for long term leases in 2001 but either has yet to complete an Environmental Impact Statement.
The three year mark created by Act 126 ends in June 2019 meaning that revocable permits are no longer to be issued in a “holdover” fashion. In response, a handful of bills to extend the use of revocable permits has been introduced by diversion interests at the legislature this year. There are also, however, bills to ensure that the law is upheld and water theft stops now. Water diverters, like A&B and KIUC, have a long history of leaving communities with empty promises and not fulfilling on their commitments. It is clear—and just—that they should not receive anymore water until these commitments are followed through.
HOW DID WE GET HERE: From Sugar to Development
Commercial sugar cultivation in Hawaiʻi began in the 1800s, with the first successful sugar mill in Kōloa, Kauaʻi. The Great Mahele in 1848, displaced Native Hawaiian people from their land and allowed the sale of land, paving the way for massive sugar plantations. Traditional agriculture and gathering practices rapidly declined as lands were seized and the Native Hawaiian population was decimated.
With the “ideal” climate in Hawaiʻi and a year round growing season, sugar cultivation quickly grew, primarily for export. The sugar industry was tightly controlled by “The Big Five”—Castle & Cooke, Alexander & Baldwin, C. Brewer & Co., H. Hackfield & Co., and Theo H. Davies & Co. These corporations quickly gained control over Hawaiʻi’s economy and these missionary descendents and their families played a central role in the illegal overthrow of the Kingdom of Hawaiʻi in 1893.
Sugarcane is a water intensive crop. In the early 20th century, it took one ton of water to produce a single pound of refined sugar. Plantation owners sought out massive amounts of freshwater, building diversions in streams, irrigation channels, and tunnels to direct millions of gallons of water a day from flourishing streams to their plantations—to the detriment of native stream ecosystems and residents downstream. Sugar was king. “The Big Five” made extreme profits and their corporations grew as ecosystems were stripped of its resources and numerous native traditions and species were lost. At its prime, there were 47 sugar mills in Hawaiʻi. But nothing lasts forever in a capitalist society, as labor costs and international competition increased, one by one, sugar mills began to close—with the last closing on Maui in 2016.
With the fall of sugar, it seemed as though it may be possible for water to be returned back to the streams. In 1972, the Hawaiʻi Supreme Court that Hawaiʻi’s waters were a public trust resource and that the courts during the reign of the plantations falsified the original water laws. From this decision stems the public trust doctrine and Hawaiʻi’s water code. But to no surprise, the large landowners had other plans. Many of “The Big Five” shifted from agriculture to investment, primarily in real estate investment and land management. They either developed their land, sold it off to be developed or kept it as fallow agriculture lands. And the water went with it, to feed the developments or to be banked or dumped, because they knew the power that water held.
For decades after the fall of sugar, waters continued to be diverted regardless of land use and with no environmental or need-based assessment. But communities fought back. Starting in 1988 in Waiāhole, Oʻahu, communities throughout the islands have come together—and won—to correct unjust, century old water theft and fight for the return of water to their streams.
WATER CASES: Streams of hope
In the early 1900s, the Waiāhole Ditch was built to divert water from streams on the windward side to irrigate sugar fields in central Oʻahu. More than a decade after the last sugar mill closed on Oʻahu, water was still being diverted from windward streams for private business interests. Taro farmers and windward residents petitioned for the return of the diverted water to Waiāhole Stream, requesting that the State Commission on Water Resource Management set instream flow standards for the stream to include the diverted waters in the ditch system. The Water Commission went on to permit the private interests to continue to divert water and failed to return enough water to maintain Waiāhole stream’s ecosystems.
The farmers and community groups appealed and the case went to the Hawaiʻi Supreme Court in 2000. In a groundbreaking decision, the court ruled that the Water Commission vacate the permits issued, reevaluate the instream flow standards, and make a decision based on newer evidence. After a 15 year fight, waters were returned to Waiāhole Stream. This historic ruling set the precedent for many water fights to come by upholding that the public trust doctrine require private interest requests to use public resources for private gain be closely scrutinized to ensure that the public interest in the resource is fully protected, and that alternative water sources be considered. Read more about this historic fight here.
Building on the foundation set by the Waiāhole case, Hui o Nā Wai ʻEhā and Maui Tomorrow set out to return streamflow to the “Four Great Waters” of Maui. They fought diversions built by Alexander & Baldwin (A&B) at the start of the plantation era that diverted water their Central Maui lands. After hosting years of hearings, the State Commission on Water Resource Management failed to return sufficient waters to Nā Wai ʻEhā and the community appealed. In a landmark decision in 2012, the Hawaiʻi Supreme Court ruled that the commission must revisit their decision and uphold the public trust doctrine. Two years later, millions of gallons of water was returned to ‘Īao and Waikapū streams and for the first time in over a century, all four streams flowed. Still yet, parts of ʻĪao and Waikapū streams remained dry so there was not mauka to makai flow. With the close of the last HC&S sugar mill on Maui in 2016, Nā Wai ʻEhā petitioned the water commission to increase the amount of water returned to the streams. Read more about Nā Wai ʻEhā here.
Alexander & Baldwin also constructed a large system of diversions and grates to redirect stream water from East Maui through pipes to Central Maui for use in sugarcane agriculture. This diversion system is maintained by East Maui Irrigation (EMI), a subsidiary of A&B. A&B requires a permit or lease to access the land on which they divert their water. In 2001, A&B applied for a long-term lease to access the land which also included the annual renewal of short-term revocable permits while the lease application was being considered. The state can legally issue revocable permits but the law does not allow for the issuance of “holdover” revocable permits like those issued to A&B. The Department of Land and Natural Resources invented this concept for the benefit of A&B and its subsidiaries.
Na Moku Aupuni O Ko‘olau Hui, Maui Tomorrow, and East Maui residents challenged A&B’s lease application and began an almost 20 year legal battle. Year after year, the BLNR renewed A&B’s (illegal) holdover permits, continually allowing them to divert 160 million of gallons of water each day with no studies on the impact on the environment or surrounding communities. In 2016 the legislature passed a law, legalizing the practice of holdover permits. However, little by little water was returned to East Maui streams—notably in 2016, BLNR capped the amount allowed to be diverted at 80 million gallons, the removal of structures impacting the health of the native stream species, and enforced the full restoration of eight East Maui streams. A groundbreaking vote by the Commission on Water and Resource Management in 2018 fully restored 10 East Maui streams and required the return of more water in several others. This historic water case changed the landscape of water rights in Hawaiʻi. But the fight is not over—while many streams of East Maui have been restored, there are streams that continue to run dry. Several have yet to have their voice heard while others remain dry because of empty promises made A&B.
Mount Waiʻaleʻale is one of the wettest places on Earth and a prominent sacred mountain in Hawaiian culture. There are several streams that flow directly from Mt. Waiʻaleʻale, two of which—Waiʻaleʻale and Waikoko Streams—have been diverted for over 100 years. The diversions were originally constructed for the Līhuʻe Plantation Company for sugar and are now operated by Kauaʻi Island Electric Utility Cooperative (KIUC). KIUC currently diverts 30 million gallons of water a day, through revocable permits issued by the Board of Land and Natural Resources, to power two small hydropower plants that contribute only 1.5% of the overall power KIUC produces. After the water is diverted, it flows downstream onto private lands owned by Grove Farms. BLNR most recently renewed KIUC’s permit to divert water in December 2018.
The State Commission on Water Resource Management is concurrently in the process of setting instream flow standards for Waiʻaleʻale and Waikoko streams. In August 2018, the commission heard over eight hours of public testimony, the majority in favor of returning more than 30% of the streams’ base flow. During deliberations, KIUC requested a contested case, halting decision making. Kauaʻi community group Hui Hoʻopulapula Nā Wai o Puna and the Department of Hawaiian Homelands also requested contested cases. Learn more here.
For over 100 years, waters were diverted from Waimea River for sugar cultivation causing parts of the river bed to be bone dry. Even after the last sugar mill on Kauaʻi ended its production in 2010, waters were still diverted with little justification or use. But in a huge victory, waters now flow mauka to makai through Waimea Canyon, returning waters to be used for traditional agriculture and Hawaiian homesteads. This historic deal was able to be struck through mediation and voluntary agreement—a path paved by previous water case litigation like Waiāhole and Na Wai Ehā. In 2017, the State Commission on Water Resource Management voted for the immediate return of waters to Waimea River, follow-up for the return of more water, and the modification of diversions to allow for the return of native stream species. Also remarkable about this decision is the potential for a modern hydro power plant, that does not require the diversion of water but rather keeps the water in the river, to replace an inefficient 100-year old hydropower plant. Read more here.