What a difference a decade makes, yes? No, actually. When it comes to the Commission on Water Resource Management, time seems to have stood still in the nine years since state auditor Marion Higa published a scathing report on the agency’s progress toward fulfilling its statutory and constitutional mandates.
In 1995, the Legislature asked Higa to review the accomplishments and circumstances of the Water Commission. Among other questions, Higa was to determine whether the commission:
- Was sufficiently funded to carry out its statutory responsibilities
- Was making “best use of its funding and staffing resources by establishing clear priorities;”
- Was undertaking actions that lay outside its legislative authority;
- Had adopted administrative rules ad equate to carry out Chapter 174C.
Her report, released in January 1996, found that the commission “has not developed an adequate Hawai‘i Water Plan.” (The first plan had been approved in 1990 and was overdue for an overhaul.) “The commission,” Higa continued, “must also establish a com prehensive instream use protection program.” Also, “the commission has failed to develop adequate administrative rules to manage its operation. The commission’s administrative rules are unclear, incomplete, or outdated.”
Today, as reports elsewhere in this publication detail, all the shortcomings Higa identified remain uncorrected. If anything, the gap between the commission’s mandates and its actions has grown into a chasm.
Paralysis
Why has the commission become so mired down that it is all but incapable of timely, meaningful action to protect that most precious of the state’s natural resources – water?
First, there’s the fact that the governor has made no secret of her hostility to the very idea of a statewide body to manage water re sources. Alan Murakami, managing attorney with the Native Hawaiian Legal Corporation and longtime water watcher, says he believes Governor Lingle is engaged “in a deliberate attempt to make the commission less effective than the Legislature intended.”
There’s the problem of turnover. Since January 2003, the commission has had three executive directors – Linnel Nishioka (who now appears regularly before the commission on behalf of private developers); Ernest Lau (former Kaua‘i water director who last year transferred to the Department of Accounting and General Services); and since mid-2004, Yvonne Izu.
The absence of institutional memory may also be a factor. Only one of the present commissioners – Lawrence Miike — has been serving longer than three years, and that only by virtue of his position as state health director. For a board whose mem bers can serve up to eight years, and whose members in the 1990s did serve just such long terms, the lack of depth of the current panel is shocking. Nor is that situation likely to change soon: two of the current members whose first terms are expiring in June may not be reappointed. Lingle has not taken the first step toward forming a nominating committee to recommend candidates for the looming vacancies, and with every day that passes, the likelihood of Senate confirmation of the new commissioners grows dimmer. Of course, that may be the plan: if the Legislature closes shop without confirming new commissioners, Lingle can make interim appointments without regard to whether they are palat able to the state Senate and with little thought or care as to how the commission itself might be affected.
Then there is the issue of leadership, or lack thereof. Chairman Peter Young has had no experience in water resource manage ment. The fact that he reorganized his department to give additional, extra-statutory duties to the Water Commission executive speaks volumes about his respect for the commission and its responsibilities.
Polarization
Longtime water watchers will recall the comity and cordiality that suffused commission meetings in its early years. There was a give-and-take among the commissioners, staff, and interested parties that derived from a common agreement in principle on the vital need to protect Hawai‘i’s fresh water resources. That is now gone.
Instead, commissioners are heavily biased in favor of agricultural uses of water. All but one of the five appointed members have or had careers in plantation-based agriculture. Meredith Ching, whose employer runs one of the largest water diversion operations in the state, has recused herself on several (though not all) Maui matters. Her determination to participate in all decisions except those where her conflict is egregiously obvious calls into question the integrity of the commission as a whole.
The agricultural slant cannot help but put at a disadvantage those who seek to have the commission restore stream flows and protect native Hawaiian rights to use stream water. While Izu has indicated she wants to roll out a plan for setting instream flow standards in the near future, given the current composition of the commission, you’d be foolish to bet a plug nickel on the chance that any meaningful restoration plan will win commission approval.
Renewal
Although the Water Commission is in shambles, that is no argument for dismantling it. Rather, it should be a wake-up call to the Legislature to begin paying more and serious attention to what this executive agency is doing.
First, the Senate should use its considerable powers to withhold confirmation of appointees who do not expand the range of views represented on the commission.
Second, while the Legislature cannot force the governor to fire Peter Young, it can hold him accountable for real progress on such long-stalled issues as stream restoration, native Hawaiian rights, and the update of the Hawai‘i Water Plan.
Third, the Legislature should amend the Water Code to make explicit its intention that the Water Commission’s director have no additional responsibilities. If the Depart ment of Land and Natural Resources needs additional top-level administrators, let it make the case for them honestly.
Inevitably, the commission’s apologists will point to the budgetary restrictions that have been imposed on it and every other DLNR agency. Actually, the Water Commission was left relatively unscarred in the wake of the 2004 Legislature’s pogrom of the DLNR. The commission has a dedicated, hard-working staff that is able and willing to rise to the occasion and can do so within its current budget if given half a chance. All it lacks is leadership.
In 2003, as DLNR administrator Young was taking the helm of the department, Environment Hawai‘i asked him if he would be updating the water plan and adopting rules for Hawaiian water rights and stream protec tion. “Absolutely,” he replied. “We are going to fulfill our obligations and we are going to exceed people’s expectations.”
While expectations may have shrunk considerably over the period of Young’s service, his obligations have only grown. And there is still no sign he is the least bit interested in addressing them. For the sake of the state’s vulnerable water supplies, if for no other reason, it is time for Young to move on.
Budget Games
The state budget is one of the most impor tant bills that the Legislature considers. It is also one of the most poorly understood. Even in the best of circumstances, tracking spending and accounts tries the patience of the most dogged and determined policy wonks.
This year, following the ups and downs of the state budget has become all the more difficult, thanks in no small measure to a decision by Lingle, state budget director Georgina Kawamura, and DLNR administrator Young, among others, to “simplify” things by consolidating accounts that had allowed the public to track allocations and spending of a variety of different programs within the DLNR.
Kawamura assured Environment Hawai‘i that, not to worry, the individual programs that have disappeared off the public’s radar will still be used in the department’s internal accounting. The only conceivable conclusion one can draw from such a statement is that what has occurred is not a condescending “simplification” so much as it is deliberate obfuscation.
Repeatedly, Environment Hawai‘i attempted to obtain information from the DLNR on whose decision it was to consolidate accounts. We received no response by press time. Kawamura’s efforts to describe the decision as part of a statewide simplification program are belied by the facts: of the total of nine “lost” accounts, seven belonged to the DLNR.
Could this have been an effort to make it more difficult for the public to know with precision the budgets of the agencies whose accounts have been consolidated? In the wake of the fall-out from our analysis of the current year’s budget for the DLNR (in the November 2004 edition), and in light of Peter Young’s open hostility to public oversight and transparency in government, we fear the worst.
Volume 15, Number 8 February 2005
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