Today Governor Ige issued a statement urging lawmakers to pass HB 1326 HD2, a bill that would extend the holdover of temporary water permits for another 7 years. Of particular concern, the HD2 version of the bill, which the Governor advocates for in his memo, would allow A&B to continue to operate under revocable permits that have already been invalidated by a Circuit Court ruling.
In response, HAPA’s Executive Director, Anne Frederick has issued the following statement:
It is highly unusual and concerning that the Governor is interfering in legislation before it reaches his desk. We are particularly concerned that Governor Ige’s attempt to influence legislation would help A&B to once again circumvent an unfavorable court decision.
Of the hundreds of pieces of testimony in opposition to HB 1326, not one has raised concerns about small water users renewing their water permits, and no one is contesting their use. What HAPA and many others are concerned about is legislation enabling large-scale diverters who abuse temporary permits to be able to continually evade environmental review and circumvent the law.
On Kauaʻi, where HAPA is headquartered, KIUC has operated the two uppermost diversions in the Wailua watershed, largely dewatering Waiʻaleʻale and Waikoko Streams for approximately 1% of the islands energy since 2001. KIUC has dragged their heels for 17 years in the preparation of their long-term lease application, so why would the legislature or Governor Ige propose to give them an additional 7 years? HELCO applied for a long-term lease for its hydroelectric power needs in 2016, has completed its environmental studies and long term lease requirements and received a finding of no significant impact (FONSI) in 2018. If HELCO was able to complete the requirements for a long-term lease in two years, why is it taking KIUC over 17 years?
The dewatering of streams for less than 1% of Kauaʻi’s power doesn’t pencil out. However, the ongoing holdover of revocable permits enables this kind of abuse by allowing large-scale diverters to avoid the closer scrutiny required for a long-term lease.
In 2016 a circuit court ruled that the A&B’s attempts to renew one-year state "holdover” revocable permits for over 13-years in a row, with no environmental review was illegal under current laws and should not be continued. However, A&B went straight to the legislature, and used its influence to change the law.
In 2016, the legislature passed Act 126, providing the State and A&B three years to complete environmental reviews and make the transition to leases, with full environmental review. Those three years have passed, and neither A&B nor KIUC have issued their draft environmental review. Now A&B and supporters are urging legislators to pass HD 1326 for seven more years.
Passing HB1326 HD2 would once again allow A&B to circumvent the court ruling and retain $62 million from the sale of their central Maui sugar plantation to Mahi Pono.
The Senate Water and Land Committee clearly understood that A&B had no right to promise 30MGD in water from state diversions to Mahi Pono. The committee, under the leadership of Senator Kahele advanced a draft (SD1) that would address the perceived threat the to the small farmers and ranchers while holding A&B accountable to its court ruling. However, the Senate Ways and Means Chair rejected that draft, deferring the bill indefinitely.
If Act 126 sunsets there should be no reason why revocable permit holders cannot re-apply for their permits. The administration has all the legal authority it needs to continue to issue revocable permits to water users. Circuit court decisions simply resolve disputes between parties and do not set legal precedent.
This kind of special interest legislation undermines the public’s faith in our elected officials and builds cynicism around the legislative process. We urge Governor Ige to stop interfering, to uphold his public trust obligations, and allow Act 126 to sunset.