Without a Sustainable Ag Plan, Sugar Company Must Leave Water in the Streams

Written by Summer Kupau-Odo, Earthjustice Associate Attorney, Kapua Sproat, Earthjustice Counsel, and Isaac Moriwake, Earthjustice Staff Attorney.

Hawaiʻi’s last plantation is closing, but plantation politics still rules Hawaiʻi’s water resources. That may be the legacy of this legislative session, where our elected officials have worked against public opposition to pass a bill benefitting one company: Alexander & Baldwin. The bill would rewrite the law to prolong A&B’s ability to drain dozens of East Maui streams even after it closes its HC&S plantation.

This controversy hit its latest peak last week, when A&B and legislators organized a press conference to announce that A&B would be returning flows to seven East Maui streams. The legislators then promptly moved A&B’s bill toward a final vote.

This flow restoration could be a first step in rectifying a century of deprivation of the environment and local and Hawaiian communities. But this potential positive was overshadowed by the spectacle of A&B taking credit for something it’s already required to do, and exercising prerogatives it never had.

The bottom line is that the water isn’t A&B’s in the first place. Under Hawaiʻi law, water is a public trust for the people, including generations yet unborn. No one can own water, and no one can waste it. So as A&B winds down its plantation, it’s already legally required to leave the water in the streams. Not in a year or three years. Now.

The ongoing push to pass A&B’s bill, therefore, adds another insult to injuries suffered for too long. During the plantation era, companies like A&B treated water as their property. As they diverted water for profit, they destroyed indigenous ecosystems and lifeways dependent on flowing streams for survival.

The tide of history shifted with landmark Hawaiʻi Supreme Court decisions beginning in the 1970s, amendments to the Constitution in 1978, and the establishment of the Water Code and Commission in 1987—all reaffirming the public trust in water. The plantations, however, have resisted this progress.

In East Maui, A&B has been evading the law for decades. Over twelve years ago, a court ordered A&B to conduct an environmental review for its diversions. A&B did not comply, but continued business as usual under a made-up “holdover” permit. When another court declared this endless limbo unlawful this January, A&B still refused to comply. Instead it ran straight to the legislature to rewrite the law. 

The way that A&B has pushed through its bill is particularly distasteful. It instigated a false panic that people across the state would be cut off from water, even though the court order applies only to A&B, and the bill helps only A&B and its special “holdover” scheme. It threatened that its Maui lands would become a dustbowl, even though it still lacks concrete plans for agriculture. Then came the latest show of “restoring” water that isn’t supposed to be taken anyway.

The legislature has better things to do, and A&B has a better, more pono (the Hawaiian word for "righteous") way forward. First, as plantation water uses end, immediately return the streamflows with full transparency. Second, abandon the bill and the unlawful “holdover” permit, and work with the court and parties on a path and timetable toward legal compliance. Third, once A&B has a plan for sustainable agriculture, submit an application for the necessary water. In short, turn over a new page, return all unused water, and ask before using this time around.

Indeed, DLNR recently took a first step in ordering A&B to begin the EIS process. If A&B and the legislature can’t do the pono thing, then hopefully the administration can show leadership by vetoing A&B’s bill, rising above plantation politics, and opening a new path toward justice and reconciliation.

This blog was first published by the Honolulu Star Advertiser on April 28, 2016.