Opponents and supporters of House Bill 1326 continued to debate whether Upcountry’s water supply will be affected a day after lawmakers shelved the bill, which would have allowed revocable water permits to be renewed while holders sought long-term leases. 

Supporters of the measure, like Maui County and Alexander & Baldwin, said Upcountry’s supply was in peril with the bill effectively dead.  But opponents were confident the county’s supply would continue to be protected regardless of permit status. 

“Their water use was protected irrespective of this bill’s passage,” said Summer Sylva, an attorney with Native Hawaiian Legal Corp., who has represented East Maui residents in the battle over stream restoration. “ Back in 2016, a court order affirmatively assured the county that its water deliveries would not be interrupted as a result of that ruling (invalidating A&B’s permits).  So it has had all of the water and all of the assurance it needs from a court of law since 2016, and that doesn’t change.” 

Mahi Pono, which owns 41,000 acres of former sugar cane land and has said it needs the bill to ensure water for its farm plans, did not respond to questions on Friday.  But A&B, its joint owner in East Maui Irrigation, which maintains the ditch system that delivers water to Upcountry, said that “the situation is serious.” 

“We will be working with Mahi Pono to explore what options are available to continue to deliver water to meet Mahi Pono’s and the county’s needs, as best as possible, until a long-term lease with the state can be obtained, which is our goal,” A&B spokesman Darren Pai said Friday. 

On Thursday, Sen. Donovan Dela Cruz, chairman of the powerful Ways and Means Committee, deferred the bill after it passed through the Water and Land Committee by a 3-2 vote.  Water and Land Chairman Kai Kahele had tried to float a version that would protect small ranchers and farmers and utilities but would prevent holdover permits for uses that have been invalidated by a court of law.  Essentially, that meant A&B.

For 13 years, the state Department of Land and Natural Resources had been extending revocable water permits that allowed A&B to divert water from East Maui.  In January 2016, 1st Circuit Judge Rhonda Nishimura invalidated the permits, which were meant to be temporary.  That same year, the state Legislature passed a measure — Act 126 — allowing holdover permits to continue for three years until the DLNR could create a process for long-term water leases.  Act 126 ends this year. 

“Hundreds of farmers and ranchers on Maui, Kauai and the Big Island, along with some 30,000 Upcountry Maui residents, will be negatively impacted because there is now no legal mechanism to renew essential state water permits beyond the end of this year,” Pai said. 

But even with the act about to sunset, Sylva didn’t believe that Upcountry users and small farmers and ranchers were in jeopardy. 

“Even if they did nothing come the end of the year, the DLNR could exercise its discretion and renew their revocable permits for next year without the cover of a bill,” Sylva said. 

That’s essentially what the DLNR did before the lawsuit and the judge’s ruling, and it could apply to those whose water uses are minimal and haven’t changed, Sylva said. 

Sylva pointed out that when the judge invalidated A&B’s permits, she “expressly carved out the Maui County water delivery” to ensure Upcountry residents would still be covered. 

“Domestic water use is a protected purpose,” Sylva said. “ It’s disingenuous for the Maui mayor to be suggesting otherwise.  Because no court of law in this state would shut off water to residents who need it for daily survival and activity.” 

Sylva said that the county has its own water delivery agreement with East Maui Irrigation, and EMI “would be in breach of that contract if it stops its deliveries, and there is no court ruling that prevents EMI from continuing that delivery.” 

Marti Townsend, director of the Sierra Club of Hawaii, said that the act that expires this year “will only affect A&B because they’re the only entity that a court has ordered to cease using revocable permits for the long-term.”  Others can continue to apply for revocable permits while they seek out their long-term leases, including Mahi Pono. 

“As (their farm plan) becomes more firm, they can use that as a basis for asking the DLNR for a revocable permit, and then the revocable permit can be used for their immediate water needs as they implement their farm plan,” Townsend said. “ Then they can be, at the same time, completing the process for a long-term lease.” 

Like Sylva, she also believed Upcountry users were covered because of the 2016 court ruling.  She added that “maybe it’s time for Maui County to upgrade its water plan to figure out how to deliver water to its users.” 

“We don’t need to be relying on a middleman company to be providing essential services to residents,” Townsend said. “ The fact that we’re having this issue demonstrates the need to do bigger and broader planning processes.” 

Concern for Upcountry

But among some on the county side, there still was concern for Upcountry. 

“We were really disappointed that the bill didn’t pass,” said Council Member Alice Lee, who chairs the Water and Infrastructure Committee. “ It will have serious impact on Upcountry water.” 

She said that the water supplied to Upcountry that comes from state-leased lands “will not be available” and can’t just be replaced. 

“Upcountry will be put in peril,” Lee said. 

Maui County Mayor Michael Victorino said that the county’s agreement with EMI “depends on it having ongoing legal access to water.” 

“Whether the county can depend on EMI to deliver water depends on two factors: EMI deciding to continue to maintain and operate its Upcountry ditch system, especially the Wailoa Ditch; and on the outcome of a pending Intermediate Court of Appeals case,” Victorino said. 

Pai also said that EMI’s agreement with the county “is conditioned on EMI’s continued receipt of permits or a lease from the state to collect surface waters that feed the ditch systems.”  And, Pai said, those permits expire at the end of this year. 

He also made it clear that A&B would not have to pay Mahi Pono a rebate of $31 million or $62 million if the bill fails to pass as some have suggested, pointing to the sales agreement with Mahi Pono.  Pai called the issue a “red herring,” and the company said in statements earlier this week that “the intent of the rebate in our contract with Mahi Pono was to acknowledge the diminished value of the Central Maui agricultural lands if surface water resources were no longer available for irrigation.” 

“The rebate does not hinge solely on this legislation, and the failure to pass this bill will not cost A&B $31 million or $62 million as inferred by many,” the company said. 

Meanwhile, the official who could potentially settle the debate about the fate of Upcountry’s water has expressed both confidence and concern. 

At a meeting with the county Board of Water Supply last month, Water Supply Director Jeff Pearson was confident that Upcountry would have enough water even if HB 1326 did not pass. 

“We’re sitting in a place where it’s a public trust purpose, it’s a domestic use, and there is water flowing in the ditch, so therefore I am quite confident we are going to still have water available,” he said. 

Close to 18 percent of the Upcountry water supply, or 1.23 million gallons per day, comes from groundwater sources.  The other nearly 82 percent comes from three main sources — Piiholo, which provides 2.863 mgd, or 41.7 percent; Kamole at 1.847 mgd, or 26.9 percent; and Olinda at 0.922 mgd, or 13.4 percent.  Kamole, into which the Wailoa Ditch feeds, is the only source that comes from state-leased lands. 

Pearson told the board that while East Maui Irrigation manages the ditches that feed raw water to Olinda and Piiholo, “those are not on state lands, so those are not affected by (HB) 1326 or revocable permits.” 

However, the director later wrote a column in The Maui News saying that EMI needed the holdover permits to capture water in its Wailoa Ditch, which supplies the Kamole Water Treatment Facility.  If EMI could not access and deliver East Maui stream water to Mahi Pono’s crops, “it would be difficult for EMI to operate the ditch system solely for the county’s needs,” Pearson wrote. 

He told the state Legislature in written testimony Monday that the loss of the Kamole supply “would be devastating for Upcountry water users.” 

“Groundwater sources to supplement potable needs, and alternate sources to substitute nonpotable agricultural needs, are feasible but will take time and will be much more costly than surface sources fed by gravity,” he said. 

Pearson declined further comment Friday, deferring to Victorino. 

Water ‘to be shared’

In East Maui, farmers and cultural practitioners have been watching the drama over HB 1326 unfold over the past few months.  Mahealani Wendt, who lives in Wailuanui with her husband, Ed, a kalo farmer, said that she opposed the original bill but supported Kahele’s version. 

“It’s always been our community’s position that we definitely support ranching, we support farming,” Wendt said. “ Our kupuna actually instigated our water case so that A&B would leave some for us, because they were taking everything. . . .  We need water back in our streams because it’s a community of taro farmers.  That is the motivation.  It isn’t to take water away from anybody.” 

Wendt didn’t want to see Upcountry users go without water and also believed they were protected because of the judge’s ruling.  Wendt also was tired of the constant battles over water. 

“My hope is that we can come together as a community and stop this contentious relationship,” she said. “ There are precious resources that belong to all of us.  And my hope is ultimately there will be fair disposition for everyone who relies upon and needs the resource. 

“It’s not just for us; it’s for everybody to be shared.” 

* Colleen Uechi can be reached at cuechi@mauinews.com.  Lee Imada contributed to this story.