With the legislative session at its midway point it is time for “crossover” when bills that have been heard and passed in one legislative body cross over to go through the same identical process, in the countervailing body.

The Hawaii constitution requires both the House and the Senate to hold hearings on and to ultimately both agree to the same exact terms of a bill, before it can be sent to the governor for approval or veto.

Entering this crossover phase now is HB1326hd2, a controversial measure which allows KIUC/Grove Farm and A&B/Mahi Pono and others to continue diverting and dewatering streams without conducting an environmental impact statement (EIS) or securing the long term lease/permits normally required by law.

In Hawaii, water is a public trust resource. The health of native streams and coastal wildlife, traditional customary practices, and domestic water needs are prioritized over private commercial uses of water. “Holdover” revocable permits are a loophole to get around Hawaii’s  water protections. These month-to-month permits improperly allow corporations to divert streams for years without protecting the ecosystems or downstream users.

HB1326 originated in the House (thus the HB).  The initial version proposed granting these companies the continued ability to divert various streams for an unlimited amount of time, thus avoiding the need to conduct an EIS and other studies required to secure their long term permits.

During its first hearing in the House Water Land committee, Chair Representative Ryan Yamane amended the measure to limit the time period remaining to complete an EIS and other documentation to 7 years thus generating a HB1326hd1.

This measure was then heard in House Finance, Chaired by Representative Sylvia Luke, who further amended and “cleaned up” the bill, thus creating HB1326hd2.

Along this path, with Maui Representative Tina Wildberger first shining the light, the measure has picked up an increasing number of “No” votes during every single subsequent vote.

In addition the Hawaii Sierra Club, the Office of Hawaiian Affairs, HAPA, and numerous other individuals and public interest organizations have loudly and persistently expressed their strong opposition to the measure – making HB1326hd2 a political litmus test of environmental values.

This is now the can of worms crossing over from the House to the Senate, squarely into the lap of State Senator Kai Kahele Chair of the Senate committee on Water and Land.  Senator Kahele by the way is also running for Congress in the second congressional district (the area most directly impacted by HB1326hd2).

The next step in the legislative process involves Senator Kahele scheduling a hearing for the bill in his committee.  There seems to be no doubt that he will ultimately pass the measure out, after making further amendments.

As in most controversial and hot potato issues, the political tendency is to either kill the bill or attempt the wisdom of Solomon and split the baby.  In this case, the large corporate players who are driving the entire effort are too big, and the political repercussions too great- to kill the bill.

Conversely, splitting the baby in half, to possibly 3 years instead of 7, as the committee will no doubt feel inclined to do, is also totally unacceptable to the environmental community.  After all, these same corporate entities have already squandered a prior 3 year extension and have been diverting this stream water for decades now without the proper environmental protections required by our state constitution.

Whatever ultimately passes out of this Senate Committee, and any other it might be referred to in the Senate, is destined to go to “conference”.  The conference committee is made up of the Chairs of both the House and Senate subject matter committees, plus other members of the House and Senate.

In order for any bill to pass out of conference committee and ultimately become law, both Chairs must agree on the same identical language.  If either Chair disagrees, the bill dies. NOTE: WHILE THIS IS PAST PRACTICE THE CONFERENCE RULES WHICH MAY CHANGE SESSION TO SESSION – ALLOW FOR A MAJORITY OF THE CHAIRS TO MAKE A DECISION AND THERE MAY BE 4 CHAIRS ON THE CONFERENCE COMMITTEE, SO THUS ONE CHAIR IS UNABLE TO BLOCK PASSAGE. (this section is CAPS was added and not in the original publication of this piece).

The parameters upon which the two Chairs negotiate are set by the content of the bill that was passed out by each chamber.  Consequently whatever amendments that will ultimately be made in the Senate become “the Senate position”. Generally speaking negotiations must be limited to matters that separate the House/Senate positions, and may not be more or less restrictive than those already established positions.  New material such as new significant conditions not contained in the two bills on the conference table, are normally not entertained.

At the end of conference both Representative Yamane and Senator Kahele must agree, and thus share responsibility for the content and passage of HB1326hd2 – which when amended becomes a “Conference Draft” or CD1.

This of course, is the proverbial “sticky wicket” with legislators caught between the interests of the corporate elite, and those in the broader community who put protection of the environment and the fundamental public trust ahead of those corporate profits.

The large corporate diverters have without question been abusing the system for generations, as these diversions date back to the plantation era.  Their strategy now is to use small farmers and ranchers who also need permits for their water as human political shields, knowing legislators are hard pressed to bring hardships upon the little guys.

However the Senate can choose to protect the small users and or offer them assistance in achieving compliance, while at the same time insisting that the large and most egregious users comply promptly with the law.

Now is when our elected leaders will show their true colors.  There is a reasonable path forward and granting additional years to comply without teeth or strong penalties for non-compliance is unacceptable.

Set strong parameters, perhaps give them 6 more months to comply if you must, but then hold them accountable.

*Note – If you are interested in learning more about the inside workings of the Hawaii State Legislature and how to best impact the law-making process, you might be further interested in reviewing these additional “Lessons from the Ledge”.