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Lawmakers, community await fate of water bill

Senate could pull measure to the floor ‘any time’ before end of legislative session

Keith-Agaran

Central Maui Sen. Gil Keith-Agaran, the vice-chairman of both the Water and Land and Ways and Means committees, said Monday he doesn’t plan to resurrect House Bill 1326 by a procedural deadline today and doesn’t think there’s any “appetite” in the Senate to do so.

“We’ve got a lot of bills on third reading” today, Keith-Agaran said. “I’m not sure there’s any appetite among the members to take it up. That’s probably one reason why it didn’t pass out of the joint committee last week.”

But with a month left to go at the state Legislature, lawmakers know anything could happen.

“We are all waiting with bated breath to see what the Senate does tomorrow,” South Maui Rep. Tina Wildberger said Monday. “With a smaller body they have more wrangling to do, and so it will be interesting to see what happens. I personally support them killing the bill.”

House Bill 1326, one of the most controversial measures this session, would allow revocable water permits to be renewed while holders seek long-term leases. On Thursday, Senate Ways and Means Chairman Donovan Dela Cruz deferred the bill during a joint meeting with the Water and Land Committee. The decision effectively killed the measure, but opponents were cautious in their celebrations, knowing lawmakers could still resurrect it.

TINA WILDBERGER – Supports bill’s demise

After the committee decision, Honolulu Civil Beat reported sources saying that leadership in the House of Representatives was pressuring the Senate to force a floor vote on the bill today.

House Speaker Scott Saiki released a statement Monday denying the claims.

“The report that the House leadership is pressuring the Senate to advance HB 1326 during its floor session is not true,” Saiki said. “At this point, it is entirely up to the Senate leadership to determine how it wants to proceed. Whatever the leadership decides, it is important that the Legislature be civil and reasoned, rather than divisive.”

According to the state Constitution and Senate rules, legislators can pull a bill out of committee 20 days after it’s been referred to that committee. One-third of the Senate, or nine of the 25 members, would have to vote to do so.

Keith-Agaran said that he wasn’t planning to propose pulling the bill out of committee, but that the Constitution “doesn’t limit when it could happen.”

“It can always be pulled to the floor any time from now until the end of session,” he explained.

When asked if he would support the move if another senator proposed it, Keith-Agaran said that if “people did show that there’s a need for it, I likely would support it. But at this point, I think the Senate’s pretty well divided on whether or not this is something that’s needed.”

Sen. J. Kalani English, also a member of the Ways and Means Committee, was not present at the joint meeting Thursday and did not respond to requests for comment Monday.

Natalia Hussey-Burdick, Wildberger’s office manager, pointed out that because the Senate Water and Land Committee passed a different version of the bill (SD1) than the one Ways and Means deferred (HD2), it’s also unclear which one would be put to a vote. And, lawmakers also could propose changes to whichever version made it to the floor.

The continuing debate has been over the impacts to Upcountry’s water supply should House Bill 1326 fail to pass. Supporters of the bill have said Upcountry would be seriously impacted if East Maui Irrigation could not secure a lease allowing them to deliver water for the county. Opponents have said that Upcountry’s domestic water use would be protected under the law regardless of what happens.

“Sure, according to the court, Maui County should be able to get water, but if operationally EMI has no right to divert, is there going to be any water that allows them to fulfill the obligation to the county?” Keith-Agaran asked.

The county Department of Water Supply has said that Kamole Water Treatment Facility, which supplies 26.9 percent of Upcountry’s water and is fed by the Wailoa Ditch on state-leased lands, would be in jeopardy if the bill didn’t pass. During droughts, water is pumped from Kamole to the Piiholo and Olinda water treatment plants.

But Wildberger was skeptical after Water Supply Director Jeff Pearson had originally expressed confidence that Upcountry’s supply would be safe, “and then only had to turn around and repeat what the mayor said, after perhaps the mayor wasn’t too pleased with being contradicted.”

“It seems murky to me,” Wildberger said. “I’m skeptical of intentions and motivations, to be honest. I’ve been burnt by A&B and the state departments that do their bidding from Day 1.”

The South Maui representative said she thought the county’s arguments that Upcountry’s water access would be threatened were just “a talking point,” especially given that the Piiholo and Olinda plants, which together make up 55.1 percent of Upcountry’s supply, are not on state-leased lands embroiled in permit disputes.

Some also have suggested that even if the bill doesn’t pass, the state Board of Land and Natural Resources could use its discretion to continue renewing certain revocable water permits. But Dan Dennison, spokesman for the Department of Land and Natural Resources, said Monday that the board couldn’t do that.

“Upcountry Maui users will be affected because whether domestic water is a protected use is not the issue,” Dennison said. “Rather, the issue is whether current diversions of water allowed by various permit-holders can continue. There is an order from a state court judge indicating that these water diversions cannot continue because they are inconsistent with legislative intent.

“While the state has appealed what it believes to be an erroneous state court decision, DLNR cannot exercise its discretion in a way that is not uniform and likely inconsistent with the law.”

When asked what steps the county would take if the bill didn’t pass, county spokesman Brian Perry said Monday that, “I’m not able to speculate on what would happen or how frequently because there are many variables, especially the weather.

“As far as other options, the county would need to weigh and evaluate them to make the best decisions for Maui County and its water-consuming customers,” Perry said. “Also, Mayor Victorino has been consistent in advocating for a reliable source of surface water for Upcountry residents and farmers. The most reliable source is the Wailoa Ditch, which is managed by EMI and collects water from state lands.

“EMI needs state permits to have legal access to that water.”

* Colleen Uechi can be reached at cuechi@mauinews.com.

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