Temporary permits for stream use last years

A January court ruling invalidating Alexander & Baldwin’s permits to tap millions of gallons of water a day from Maui streams could also affect other companies, farmers and developers that are allowed to use public water without conducting environmental assessments or consulting with Native Hawaiians on whether the use affects taro farming and other customary practices.

In January, Maui Circuit Judge Rhonda Nishimura declared four permits held by A&B on Maui invalid. The month-to-month revocable permits are not supposed to exceed a year, but since 2001 the state Board of Land and Natural Resources had been renewing the permits or maintaining them on a “holdover basis” while it resolved legal challenges.

Nishimura said the permits are intended to be “temporary” and that allowing A&B uninterrupted use of the land for more than a dozen years defied the meaning of the word.

The Maui court ruling was a major setback for A&B, which for more than a decade has been entangled in a contentious legal battle with taro farmers and environmentalists over the diversion of millions of gallons of water a day from dozens of East Maui streams flowing through state lands. A&B has backed two bills in the Legislature this year that would allow it to hold on to its water rights.

The court ruling focused only on A&B, but local attorneys say it has implications for other companies, including the local electrical utilities, farmers and developers who also hold revocable permits that give them access to water on state lands. Some of the permits date from the mid-1990s.

The month-to-month permits have allowed the companies to circumvent stringent requirements for obtaining long-term leases, including completing an environmental impact statement; consulting with the Department of Hawaiian Home Lands to see whether beneficiaries need the water for customary practices; and in some cases obtaining a conservation district use permit. Long-term leases also have to be competitively bid.

Department of Land and Natural Resources spokeswoman Deborah Ward declined to answer questions about what impact the January court ruling could have on the other permit holders and whether they would need to apply for long-term leases, citing pending litigation. Maui County is appealing the decision, with the support of A&B and the Board of Land and Natural Resources.

Ward also declined to answer questions about why the Land Board has allowed the companies to operate for years under the monthly revocable permits.

But Land Board member Ulalia Woodside said that BLNR has asked staff to review the revocable permits in light of the court ruling. She said that each permit could have unique circumstances that the board will need to take into account in making decisions on how to proceed.

On Kauai the permit holders include the Kauai Island Utility Cooperative, Jeffrey Lindner and the East Kauai Water Users’ Cooperative, according to information from DLNR. 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 permit holders told the Honolulu Star-Advertiser that they have unsuccessfully sought long-term leases from BLNR.

Lindner has had a month-to-month revocable permit dating to 1996. He leases 125 acres and pays the state $2,414 in annual rent. He says the permit allows him to tap well water and sell it to farmers.

“I’ve tried to get a long-term permit, and they won’t let me,” he said. “They don’t want to give me one.”

Lindner said that he supports the January court ruling and hopes that it will allow him to secure a long-term lease. Under his current permit the state can revoke it at any time.

KIUC has also sought long-term leases from the state for two hydroelectric plants that supply electricity to Kauai residents. The utility diverts water from the Wailua River and Waikoko Stream for the plants.

BLNR approved a revocable permit for KIUC in 2002 while it was processing its long-term lease application, according to the utility. But 14 years later KIUC is still operating under a revocable permit.

KIUC said that it applied for a second long-term lease in 2004, but the Office of Hawaiian Affairs contested the permit before BLNR. KIUC and OHA subsequently came to an agreement that the utility would conduct biological and cultural studies on the water diversions.

The studies were expanded over the years, and KIUC is still working on a more extensive cultural impact study, according to Jim Kelly, a spokesman for the utility.

KIUC pays the state $37,320 a year for the revocable permit.

HELCO’s permit is also for the operation of two hydroelectric plants, which are situated on the Wailuku River, according to Darren Pai, a spokesman for the utility.

The permits became the subject of contentious debate before the Legislature this week as lawmakers debated Senate Bill 3001 and House Bill 2501, which would allow BLNR to issue permits on a holdover basis while applicants seek long-term leases.

The measures are backed by A&B, and lawmakers this week said they were caught off guard to find out that there were other companies and individuals operating under the revocable permits for years.

Yvonne Izu, an attorney and former deputy director for water for DLNR, said that the bills are important to ensure that the permit holders can hold on to their water rights while BLNR sorts out the lease situation. Izu has served as counsel for some of the permit holders, including A&B.

“There is a good possibility that BLNR would say that according to the judge’s ruling, we the BLNR cannot have revocable permits that last for over a year,” said Izu. “So all of you need to apply for a long-term permit.”

Critics of the bills, however, say there need to be protections built into the process so that companies cannot continue to hold on to water rights for years while litigation or contested cases in front of BLNR are ongoing.

“I would like to think that if someone applies for a permit that a year is a long enough time, even if there is a contested case,” said David Henkin, an attorney with Earthjustice.

Henkin said that Hawaii’s current process for issuing long-term leases is a good one but that BLNR needs to follow it.

“The goal should be to get back into the good-public-policy box,” he said.

Month-to-month permits

Year after year, Hawaii’s Board of Land and Natural Resources has continued monthly permits for 11 companies and individuals — including Alexander & Baldwin and its subsidiary East Maui Irrigation Co. — allowing the permit holders to bypass competitive bidding, environmental assessments and a review of Native Hawaiian water needs for growing taro and other cultural practices.