Land board adopts new water lease approach

Companies that for years, and in some cases decades, have been allowed to bypass stringent environmental requirements for using public water will be required to conduct environmental reviews and consult with Native Hawaiians to see whether the use disrupts taro farming or other customary practices if they want to continue using the water.

The Board of Land and Natural Resources has been renewing temporary water permits for 10 companies year after year, but state officials now say that under Hawaii law the temporary permits were not supposed to extend beyond a year.

Under new guidance adopted by the Land Board last month, the companies will be required to apply for long-term leases, which could require them to conduct extensive environmental impact statements, consult with the Department of Hawaiian Home Lands about whether its beneficiaries might need the water and, in some cases, seek a conservation district use permit.

Under Hawaii law, long-term water leases are subject to the competitive bid process.

The policy change was spurred by a January court ruling in which a Circuit Court judge ruled that Alexander &Baldwin should not have been allowed to divert East Maui stream water for more than a decade under four short-term water permits. The ruling invalidated the permits.

A&B, which is in the midst of closing down its sugar cane plantation, subsequently appealed to the Legislature to amend Hawaii’s law to allow the company to maintain its rights to the water while a contested case involving its long-term lease application is resolved.

A&B has been seeking a long-term lease for more than a decade, but the company’s application has been bogged down in administrative and legal challenges brought by taro farmers and environmentalists.

Last month Gov. David Ige signed into law House Bill 2501, which allows A&B and any other month-to-month water permit holder who is required to seek a long-term lease to maintain their access to the water until a decision is made on their lease application. However, the reprieve only lasts three years.

Ige said that the measure would give the state and permit holders time to come into compliance with state law.

BLNR Chairwoman Suzanne Case said Wednesday, after a legislative briefing on the department’s task force to review permitting policies, that indeed the other water permit holders would also have to seek long-term leases and would have three years to complete the process.

In contrast, the task force concluded that under Hawaii law some 340 other short-term land permits could be renewed annually. The permits are governed by a separate statute.

Both Case and Scott Glenn, director of the Office of Environmental Control, who also sat on the task force, said that Hawaii law is clear that short-term water permits are only supposed to last a year.

“That is the statute — it says it plain as day,” said Glenn.

In addition to A&B, nine other companies have been tapping public water using temporary water permits.

On Kauai the permit holders are the Kauai Island Utility Cooperative, Jeffrey Lindner and the East Kauai Water Users’ Cooperative, according to information from the Department of Land and Natural Resources.

On Hawaii island, Kapua Orchard Estates, the Edmund Olson Trust, Wood Valley Water and Farm Cooperative, Hawaii Electric Light Co., Kuahiwi Contractors and Kapapala Ranch have permits.

Some of the permits appear to be for minor uses of water, while others involve more extensive diversions.

For instance, Hawaii Electric Light Co. has been allowed to operate two hydroelectric plants on the Wailuku River since 2010 under a temporary water permit. The electric utility pays the state $19,692 annually.

Darren Pai, spokesman for the utility, said that HELCO had already informed DLNR last month that it would be seeking a long-term lease for the water.

“Hawaii island has a diverse portfolio of renewable resources and hydro power is an important part of the mix,” Pai said by email. “We will comply with Chapter 343 (Hawaii’s environmental review law) and all other requirements.”