Water Commission Has Lost Its Way
What’s it going to take to get the Commission on Water Resource Management to protect the state’s water?
Change the law? Not really. The state Water Code, adopted in 1987 to fulfill a promise made in the state Constitution, contains abundant provisions for protecting the state’s streams and aquifers (although with respect to sustainable yield, it may need to be tweaked, as William Meyer suggests in this issue).
Sue the commission? There’s a thought. The landmark Supreme Court decision on Waiahole Ditch has forced the commission to take note of its legal mandate to protect streams and the aquatic life supported by them. Still, litigation is costly and time-consuming, and its outcome is uncertain.
Attend its meetings? This might be an option, if the commission started to engage the public in dialogue about how to fulfill its duties. Instead, most commission agendas deal with applications for administrative permits. On the odd occasion when substantive issues are taken up, members of the public usually leave disgusted by the commission’s cavalier disregard of testimony or angered by its failure to enforce its own regulations — or both.
The Good Old Days
Under the commission’s first independent director, Rae Loui, the Water Commission seemed on a promising course. The commission set up a stream protection task force, which held statewide meetings. Windward O`ahu and Moloka`i were designated water management areas. Staff seemed serious about designating instream flow standards. Loui met frequently with members of groups interested in water issues.
Somewhere along the way – perhaps with the prolonged contested case hearing over the Waiahole Ditch and the firing by Attorney General Marjorie Bronster of Bill Tam, the commission’s deputy attorney general – the commission lost any momentum it may have had to carry out its mandates. Now, under a director who would appear to lack even the minimal qualifications that the Water Code sets out for the post (“experience in the area of water resources”), the commission seems mired in developing plans for developing plans and devising arcane flow charts with endless loops to serve as guides for the processes to be used in developing the plans.
In the meantime, it ignores for years the citizen-initiated petitions and complaints intended to protect streams, restore illegal diversions, and end water waste. It turns its back on science-based reports that estimates of sustainable yield across the state may be unduly optimistic. What’s more, the commission has failed to develop permanent instream flow standards for any of its streams. While the commission may have some discretion as to when it will set instream standards, the Supreme Court’s Waiahole ruling held that such discretion does not exist for streams where there is a conflict or potential conflict involved, such as the four major streams that feed the Waiahole Ditch.
The commission often claims it has inadequate staff and resources to meet its legal mandates. That may be, but it’s no excuse for holding up planning statewide, nor for embarking on a methodical effort to gage streams, develop stream flow standards, and address disputes. Even if everything cannot be done at once, there is no excuse for doing nothing forever. Maui, at least, is in crisis: aquifer levels are dropping while promises for more development than the system can handle have already been made. Aquifers elsewhere may be equally troubled, but without the scrutiny that should accompany revisions to the Hawai`i Water Plan, such problems may not be discovered until opportunities to minimize their impact have been substantially reduced.
What Is To Be Done?
In the mid-1990s, the Water Commission Review Committee heard arguments from powerful political interests that the commission should be dismantled. Its duties were too broad, they held, and the state could ill-afford the prospect of streams being protected right and left, of old diversions being dismantled, of vast development schemes being scaled back as a result of water being reserved for Native Hawaiian uses.
The Legislature did not, in the end, dismantle the commission. It did not need to. The commission has authored its own undoing. Instead of a watchdog aggressively protecting the public resource with which it has been entrusted, it has become a complacent lapdog, agreeably rubberstamping the requests of developers for more wells, more diversions, and more alterations of natural streambeds.
How can the commission be brought back on course? A review by state auditor Marion Higa might be a start. Failing that, groups that have long-pending cases before the commission should try to force some movement on them. Last but by no means least, the Water Code, Chapter 174C of Hawai`i Revised Statutes, provides abundant opportunity for citizen involvement in the process of water resource protection. Get a copy and take it to heart.
The Water Code is available on the internet at: [url=http://www.state.hi.us/dlnr/cwrm/watrcode.htm]http://www.state.hi.us/dlnr/cwrm/watrcode.htm[/url]
Volume 11, Number 11 May 2001
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