Farmers and ranchers in the Ka‘u District concerned about statewide impacts of a recent court decision regarding East Maui water rights are hoping a piece of legislation can serve as a temporary solution.
Farmers and ranchers in the Ka‘u District concerned about statewide impacts of a recent court decision regarding East Maui water rights are hoping a piece of legislation can serve as a temporary solution.
House Bill 2501 amends a section of Hawaii Revised Statues to allow revocable water use permits to be extended for a holdover period if the user in question is in the process of applying for a long-term lease.
Revocable permits for land and water use are issued on a month-to-month basis by the state Board of Land and Natural Resources.
There are nine such water permits in the state, said Randy Cabral, board president of the Hawaii Farm Bureau and a Ka‘u farmer. Five of those permits are in Ka‘u.
There also are revocable permits held by Alexander &Baldwin Inc. for land on Maui used by sugar subsidiary Hawaiian Commercial &Sugar Co. Those permits, and BLNR’s continued issuance of them, were challenged in court last year by the Native Hawaiian Legal Corp. on behalf of a group of Maui taro farmers, fishermen and cultural practitioners seeking access to the stream system that feeds the 36,000 acres owned by HC&S.
Legal challenges to the water diversions used by HC&S began in mid-1980s, according to The Maui News.
In January, 1st Circuit Court Judge Rhonda Nishimura granted the plaintiffs’ motion for partial summary judgment in the case, writing that although Hawaii Revised Statutes authorized temporary occupation of public lands, “… continuous uninterrupted use of these public lands on a holdover basis … is not the ‘temporary’ use that HRS Chapter 171 envisions. … Such a prospect is inconsistent with the public interest and legislative interest.”
The decision has since been appealed.
Many Ka‘u farmers, who have been in the process of converting their revocable permits to a long-term lease issued through the state Department of Agriculture’s Agribusiness Development Corporation for about a decade, viewed the ruling with concern because the language could be interpreted to mean all revocable permits, not just those held by A&B.
“Without that water, should the BLNR say, ‘No, the permits are no longer valid, you can no longer take water,’ it would be devastating,” Cabral said. “Everybody seems to think it only affects (A&B).”
“If the state doesn’t support these revocable permits, then I have no more water,” said Lani Petrie, owner of Kapapala Ranch, estimating she had between four and six months’ water supply in reservoirs but no sources beyond that.
Petrie and Michelle Galimba, owner of Kuahiwi Ranch, traveled to Oahu to testify during committee hearings for HB 2501.
“Michelle and I went specifically because if those revocable permits are shut off, our livestock will start dying,” Petrie said.
John Cross, land manager for the Edmund C. Olson Trust, which licenses acreage to Ka‘u coffee farmers, said the instability of revocable permits had long been a concern for the district. It’s what prompted the creation of the Ka‘u Agricultural Water Cooperative District, the organization working to secure a long-term lease through the DOA.
Until that happens, members of the group continue to rely on the revocable permits. HB 2501 “gives us time,” Cabral said. The current iteration of the bill states it will be repealed after five years.
HB 2501 is “an interim solution,” said state Rep. Clift Tsuji, D-Hilo, who chairs the House Committee on Agriculture. “There’s been a number of uncertainties created by Judge Nishimura’s decision.”
“Satisfying the requirements of an application for a (long-term) water lease could take several years,” DLNR First Deputy Director Kekoa Kaluhiwa wrote in testimony presented during HB 2501’s hearings. “Accordingly, it is understandable that an applicant for a water lease would want to continue water use under a revocable permit in the interim.”
Several groups, including the Office of Hawaiian Affairs, the Conservation Council of Hawaii and the Sierra Club of Hawaii, testified in opposition of the bill, citing the impact to East Maui taro farmers who would have to continue waiting for stream access. OHA requested the bill be held.
“The subject is complicated, it’s nerve-wracking, but it needs discussion among the community,” Tsuji said. “I think we can reach a common ground.”
HB 2501 was recommended for passage Friday following its third reading by the Committee on Finance. It is expected to cross over to the state Senate this week.
Email Ivy Ashe at iashe@hawaiitribune-herald.com.