Another bad stream bill victory to the books—water license bills are dead!
/HB1015 was heard on Tuesday, March 2 in the House Finance Committee and ultimately deferred, so the bill is dead this session.
Over 150 individuals and organizations testified in opposition with just one agency, DLNR, in support. Your advocacy made a big impact, mahalo nui!
SB1169 was never heard in its next committee so upon First Decking on Friday, March 5, this bill is also dead for this session.
This victory is bittersweet because there are some good things about the bills. We recognize that there are some situations where direct negotiations make sense for small water users like the ranchers in Kaʻu who use a very small amount of water held inside natural dikes in the mountains to water their herds, and have no impact on stream ecosystems. In addition, the House version exempted traditional taro farmers from this statute altogether on the recognition that sustainable, non-consumptive uses like this practiced by Native Hawaiians since time immemorial need not be subject to the same strenuous review as consumptive, commercial diversions.
But still get chance!
The Waiʻoli Taro Hui, the famous, centuries-old taro farming community that suffered tremendous losses due to the massive floods on Kauaʻi in 2018, are pursuing an alternative route to direct negotiation already in the statute. They need this to rebuild their traditional ʻauwai. This approach requires approval of the Legislature, and the Governor, as well as several substantive assessments before they are allowed to negotiate. It’s a big deal.
You can support the Waiʻoli Taro Hui as they bounce back better from the floods by telling your senator and representative that you support SR 11 and SCR 22. Stay tuned, we will let you know about the next opportunity to support these measures.
It is possible, but maybe not likely, that a gut and replace could happen that would bring any or all aspects of HB1015/SB1169 back to the table. We are watching related bills closely for any funny business. If it were to happen, we’d let you know ASAP.
HB1015/SB1169 were not as bad as similar bills we’ve seen in the past, we (BLNR, diverters, water protectors) have been looking at addressing the water license issue for years now. This same issue will be back next year and it is possible that the next bill will be more protective of our stream systems and incorporate the amendments that we’ve been pushing for. All is not lost and there is a glimmer of hope that progress will be made moving forward!
What these bill do
HB1015 and its companion SB1169 change the way the Board of Land and Natural Resources gives out licenses to divert water from streams on public lands. As it is right now, the Board of Land and Natural Resources undergoes a public auction process that has not been entirely successful in issuing licenses or protecting our streams, which has led to a) making the licensing process too difficult for small farmers and b) to the exploitation of our streams through the Board’s entrenched practice of issuing temporary permits, year after year to large water diverters like A&B… and now Mahi Pono and KIUC (the electric company on Kauaʻi).
HB1015/SB1169 would allow the Land Board to negotiate directly with diverters for water leases instead of going through a public auction. However, as these bills are written right now, they help the wrong people. Therefore, we currently oppose these two bills.
For far too long, the Board of Land and Natural Resources has basically handed out access to public water to large corporations for pennies and allowed them to drain many streams dry—to the detriment of the native ecosystem and communities that rely on them. These bills could enable this exploitation further, potentially leading to secret backroom deals for large, wealthy diverters to get away with unjust licenses that lack public transparency and have little protections for the streams they are diverting.
There is an opportunity here to make things right and limit direct negotiations to small users (like traditional kalo farmers in Wai‘oli Valley on Kaua‘i and ranchers in Ka‘u) but keep large-scale diverters in public auction. This allows small users with a commitment to the ʻāina but limited resources to skip the public auction process and directly negotiate for their licenses.
What we want to see in these bills
Direct negotiations should be allowed for, and only for, small users and users practicing traditional and customary rights. The public auction process should remain in place for large diverters. For both direct negotiations and public auction, we must ensure transparency and an opportunity for public engagement in the decision-making process.
No leases should last more than 10 years, especially given the uncertainty of climate change. Currently the water lease statute does not provide any time limit on water leases. The current bills propose water leases for 30 years but we’d like to see that cut to 10. A 65-year lease, which is what KIUC is proposing in their testimony, is an absolute no-go for us.
The addition of common sense solutions to better monitor and protect streams. Changing the process for leases provides the perfect opportunity to address historical harms and ongoing concerns of diverting our public trust resources. This means the bill should require:
No licenses should allow streams to be run dry. Licenses should include protections so that no more than half of a stream’s flow can be diverted. This is the minimum amount of water that native species need to grow and reproduce.
The Board to implement monitoring protocols to know exactly how much water flows in the stream on a daily basis before being diverted.
The diverters specify exactly how much water they plan to divert so the appraisal process of the negotiations can evaluate whether or not this amount is damaging to the native stream ecosystem.
The diverter to measure how much water it is taking each day.
The Board to study the impacts of the proposed diversions to ensure they do not undermine the ecological, cultural, recreational, and aesthetic values of the stream or the downstream users.
A fair price for the use of the public’s water. BLNR has long abused “fair market value” to give away rich public trust resources to big corporations for pennies on the gallon, while the permit-holders make amazing profits from that water.
An exemption for traditional and customary practices, especially taro farmers. Small water diverters who put water back into streams do not have the same negative impact as larger water diverters, so it makes sense to exempt these uses and focus the government’s attention on the large diverters causing the greatest harm.
Who’s been in the room
Obviously, the Department of Land and Natural Resources is the main agency driver behind this bill as it impacts their duties and processes.
The not-so-secret-elephant in the room? Kauaʻi Island Utility Cooperative (KIUC). KIUC is currently working to develop a huge new hydropower plant in West Kauaʻi while also trying to obtain a lease to divert water for its antiquated Waiahi hydro plant in East Kauaʻi. They are adamantly opposed to this bill because they are bulldozing their way through to see 65-year leases (not 10, not even 30 years) to the streams they want to divert.
The missing giant? Alexander & Baldwin/Mahi Pono. A&B/Mahi Pono are currently working with the Department of Land and Natural Resources to secure a lease to divert East Maui streams for their Central Maui lands. They haven’t publicly been around on these bills so far this year but have been extremely involved in the past. Remember that promise to deliver 30 MGD for 8 years that is $62 million dollars? That is still on the table. Hard to believe they don’t care enough about the new processes to be around… right?
The Hawaiʻi Farm Bureau has also been present, as direct negotiations can help their small ranchers and farmers obtain leases to the water they need.
Standing up for the streams and traditional and customary practices, we see the Office of Hawaiian Affairs, Earthjustice, Native Hawaiian Legal Corps, and Waiʻoli Valley Taro Hui.