Gov. Ige looks to revive water bill

In letter, lawmakers are asked to reconsider bill

Gov. David Ige called for lawmakers to reconsider a contentious water bill that’s been shelved for now but still could be called to the floor of the Senate for a vote.

In a letter to Senate and House leadership on Thursday, Ige detailed the potential consequences to permit holders if the bill — which would allow revocable one-year water permits to be extended while applicants seek long-term leases — doesn’t pass.

“Both the Department of Land and Natural Resources and the Department of the Attorney General will have the difficult task of navigating a path forward in a challenging legal framework with limited solutions that work for those relying on water distribution,” Ige said.

Ige included a memo from Administrative Director Ford Fuchigami, who looked into the effects of HB 1326. In 2016, lawmakers passed Act 126 to allow holdover water permits to continue for three years while DLNR created a process for long-term leases for water that flows through state land. The act sunsets this year, and if it has no replacement, the ability of the Board of Land and Natural Resources to extend such permits “will be in question,” Fuchigami said.

“There does not appear to be any provision that would allow for either the continued issuance of water disposition permits or for new permits to be issued to a prior permit holder,” he said.

Fuchigami explained that state law allows the board to continue revocable land permits “on a month-to-month basis for additional one-year periods,” but that it does not allow the same provision for water.

“So current users are likely precluded from applying for new water permits because they already have been issued a permit for the same water use,” he said.

In order to get a water rights lease to take water from state land, applicants have to go through the following steps:

• Comply with state rules for environmental impact statements.

• Work with the state Department of Hawaiian Home Lands to develop a water rights reservation sufficient to support current and future homestead needs.

• Work with the state Department of Land and Natural Resources’ Division of Forestry and Wildlife to develop and implement a watershed management plan.

• Consult with the Office of Conservation and Coastal Lands on whether a conservation district use application is required for the water lease.

• Set upset rental prices through appraisal of fair market value.

• Disposition of water leases by public auction, including extensive public notice and bidder qualification requirements.

Fuchigami said that “although DLNR has made progress in helping the water lease applicants to complete the required steps, the permittees likely will not be able to complete the water lease process by the end of the year when the current revocable permits expire.

“The current estimate is that it will take no fewer than three years but more likely will take five years to complete the process, even for the small water users,” he added.

And while some smaller users may not have to do an EIS, “all water users still must go through the application process. The law cannot be specially enforced against some but not others.”

HD2, the version the governor is supporting, proposed up to 10 consecutive one-year holdovers. SD1 also proposed up to 10 consecutive one-year holdovers, except for uses that have been invalidated by a court of law. Essentially, that meant Alexander & Baldwin, whose permits were invalidated by a judge in January 2016.

However, the judge pointed out that the permits were meant to be temporary, and Fuchigami said the ruling likely applies to all pending lease applicants.

Some have suggested that DLNR could use its discretion to approve holdover permits for smaller users.

“However, it is clear that the law cannot be applied in a discriminatory fashion, that all water permittees and applicants must comply with the law and that the law cannot be specially enforced against some permittees and applicants but not others,” Ige said.

Marti Townsend, director of the Sierra Club of Hawaii, was critical of Ige in a statement on Thursday. Townsend said the club went to the governor’s office on Wednesday “in good faith” to discuss options for small water users.

“The governor betrayed that good faith with a statement that attempts to influence lawmakers to change a decision that has already been made, attempts to justify sidestepping a court ruling, and specifically names the opponents of the bill that he met with but not the supporters,” Townsend said.

Meanwhile, House Speaker Scott Saiki said that the governor’s statement “clarifies some of the practical and legal questions” surrounding the bill.

“Going forward, we know that the Department of Land and Natural Resources and attorney general must improve the permit application process,” Saiki said. “At this point, it is up to the Senate to determine whether to act upon HB 1326.”

Senate President Ronald Kouchi said Thursday that “we will continue communicating and working with the governor and the administration on addressing this issue.”

* Colleen Uechi can be reached at cuechi@maui