[MauiTime first broke the story of the sale of Alexander & Baldwin’s old sugarcane lands in November 2018. Our ongoing Changing Maui: Mahi Pono series investigates the new owners of these massive land holdings and the changes they will bring to Maui. It is part of Changing Maui, a larger series on the changes facing Maui County. Click here to view our coverage.]

Despite vigorous opposition by public interest groups, HB1326 – the bill they’ve nicknamed the “Corporate Water Theft Bill” – effortlessly passed another interim vote at the State Legislature last week, with only four “no” votes. Does this sound familiar? It should.

Back in 2016, opponents fought the passage of the very similar HB2501 – pretty much written and produced by Alexander & Baldwin, which for years had been diverting water from East Maui watershed for its sugarcane fields. In the process, streams were emptied, and the ecosystem ruined. HB2501 would have given A&B a hall pass, allowing the company to hold endless temporary “revocable” permits so it could continue to divert millions of gallons of water each day from the suffering East Maui streams. Permanent water leases would be considered when A&B submitted an environmental impact study. Although opposition groups couldn’t kill HB2501, their amendment efforts limited the temporary permit extension to only three years, setting a 2019 termination date.

From 2016 to 2018, A&B splashed around, un-diverted a few of the streams, and dithered on its environmental impact study of the East Maui irrigation situation. A&B further infuriated East Maui residents and other water conservationists when it stopped sugarcane production altogether, but still wanted water for “future diversified agriculture use.” Then, last December, A&B simply walked away from its water rights obligations when it sold 41,000 acres of cropland and 15,000 acres of watershed containing the East Maui Irrigation (EMI) system to newcomer Mahi Pono for $262 million.

Mahi Pono, which means “to grow or cultivate properly” apparently wasn’t thinking much about that carefully-crafted name when it came to getting East Maui water. Senior Vice President of Operations Shan Tsutsui went to work on day one of the legislature to ensure that this relatively un-pono status quo on temporary water permits continued. So even though MP hasn’t announced any kind of crop plans or water needs, it still wants every drop of water formerly guzzled by A&B, despite the continuing negative impact on East Maui watershed.

Out of those lobbying efforts HB1326 was born, supported by Upcountry Rep. Kyle Yamashita (the companion Senate bill was introduced by Central Maui’s Gil Keith-Agaran). The new bill, much like the original version of HB2501, offers temporary water permits with no time limits or other restrictions until a new lease agreement is reached. How unpopular is this bill among progressives? Even Mahi Pono’s newly-appointed Community Relations Director Tiare Lawrence acknowledged, “I don’t support the language in this bill as written,” when asked during a recent MauiTime interview.

In response, Rep. Lynn DeCoite, in support of her frustrated East Maui constituents, introduced HB1573, which would ban any commercial water diversions. It existed for about a minute before dying. In the middle was HB848, introduced by South Maui Rep. Tina Wildberger, which actually established some conditions for future water diversion and was generally considered to be a solid compromise bill. It, too, was snuffed in committee.

That left HB1326, which had its first hearing on February 8 before the House Committee on Water, Land, and Hawaiian Affairs. More than 600 people and groups submitted testimony (243 pages in all), much of it urging lawmakers to kill the bill. Opponents included the Sierra Club, the Environmental Caucus of the Democratic Party, the Office of Hawaiian Affairs, Earthjustice, the Native Hawaiian Legal Corporation, Hawai‘i Alliance for Progressive Action and many other individuals. Their argument was simple: No more corporate water concessions.

Sierra Club of Hawai‘i Director Marti Townsend said the bill “favors wealthy corporations… by taking more than their fair share of water with no oversight and no accountability.” Yet, those favoring HB1326, notably the Department of Land and Natural Resources and the state Department of Agriculture, testified that more time was needed to complete long-term water leases (the bill affects water leases on other islands as well). Mahi Pono also submitted a supporting statement. “All of Mahi Pono’s farm plans are contingent on… the ability to use waters in East Maui as the source of needed irrigation water for our planned crops,” it stated, adding, “We are stewards of the land and water and take that responsibility very seriously… With the water, we will use only what we need.”

At committee member Wildberger’s request, Shan Tsutsui appeared at the hearing, where she asked him about her compromise bill, HB848. “I asked if he would be amenable to a modicum of stream restoration,” Wildberger told me last week. “I asked him directly twice and he evaded the question and kept saying that he hadn’t looked at the bill.” [Really? The bill is about five double-spaced paragraphs long and has been sitting on the legislature’s website since January 24.]

I wrote to Tsutsui, who has liberally shared his email address during meetings and promised to answer any questions. I asked if he had now read HB848 and whether he might support adding some language from that bill to HB1326. He did not respond.

The bill was passed by the House committee (Wildberger was the only “no” vote) with an amendment. Instead of unlimited time to continue the revocable permits, there is now a new deadline of seven years. That version passed a second reading on the House floor on Friday. Among the four “no” votes: Wildberger and West Maui Rep. Angus McKelvey. Rep. DeCoite would have voted against HB1326 as well, but was ill and at home, a staffer said.

I spoke to Wildberger hours before the vote, where she planned to speak on the floor, asking her colleagues “not to abdicate their kuleana to represent all interests.” Said Wildberger, “There’s no reason why a modicum of stream restoration could not have occurred. Over the last two years, they’ve had holdover permits because they were mandated by court proceedings. But it’s an awful lot of water they’re dumping and diverting. It’s unconscionable. I’m not saying that Mahi Pono shouldn’t have water. They need water. We want them to do diversified ag and keep these important lands in agriculture. But it sure seems like somewhere in the middle there’s some room for some stream restoration for East Maui kalo farmers and residents who have stream beds on their properties.”

The bill’s next stop is the powerful Finance Committee (Wildberger and Yamashita are both members) where opponents plan further testimony. Still, HB1326’s passage seems almost assured. As one legislative insider put it, “Leadership supports this bill.”

Why such support? The answer rests more with A&B and its needs, than any political pull exerted by Mahi Pono.

That’s due to a little paragraph in the hefty Mahi Pono-A&B purchase agreement relating to EMI, which accounts for just $5,442.333.47 of the $262-million sale.

Mahi Pono is making the EMI payments to A&B in two installments. The first $2,721,166.74 was paid on February 1. The balance goes to A&B after “certain events” occur in the future. One of those “certain events” is that EMI receives “long-term” state water leases. If that doesn’t happen, then A&B must rebate up to $62 million of the purchase price to Mahi Pono. That explains the push to make sure that EMI has water leases – even temporary ones – immediately.

With that potential windfall, why wouldn’t Mahi Pono just sit on the sidelines, silently root for HB1326 to fail, collect its rebate and then lobby for a new deal? Well, there’s more fine print. This time, the legalese boils down to this: If Mahi Pono doesn’t help to get those state leases (in this case, via HB1326), it won’t be entitled to any rebate at all. That’s probably why Tsutsui has been a constant presence at the legislature as the bill moves forward.

These sales agreement conditions may also explain why many opposition group members told me that, even if this unpalatable version of HB1326 passes, they are hopeful that with A&B finally out of the picture, Mahi Pono will ultimately work with the community to craft a new water arrangement that is more favorable to all.

Given the importance of water to Maui’s future, it would be nice if there were something more tangible to rely upon than just hope.

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Image courtesy flickr-wscullin

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