Island Watch

Water Commission’s Performance Is Faulted by State Auditor

The state auditor, Marion Higa, reports that her office found “serious problems” in the efforts of the Water Commission to carry out the requirements of the state Water Code, Chapter 174C of Hawai`i Revised Statutes.

Three major problem areas were identified in the summary of findings contained in the auditor’s report, released in January:

“1. The commission on Water Resource Management is making some progress, but must still address some serious problems before an effective water resource protection program can be implemented. We found that the commission has not issued certificates of water use in a timely manner and has not developed an adequate Hawai`i Water Plan. The commission must also establish a comprehensive instream use protection program.

“2. The water management designation process creates some management problems. The designation process itself is lengthy. Furthermore, in the past, subsequent issuance of water use permits was slow and poorly managed. We also found that the permitting process is delayed due to additional or unclear procedures.

“3. The commission has failed to develop adequate administrative rules to manage its operations. The commission’s administrative rules are unclear, incomplete, or outdated. Some of the administrative rules may not be in compliance with Chapters 91 and 92, HRS.”

In elaborating on the problems in the first area, the auditor’s report focuses first on defects in the Hawai`i Water Plan. The auditor found the existing plan “does not comply with certain sections of the law, and is inadequate to guide staff in protecting water resources.” The county components of the plan, consisting of a water use and development plan from each of the four counties, were further criticized for their “lack of accurate hydrological data, especially data on the sustainable yield of aquifers.”

Also, the Water Quality Plan — another component of the overall Water Plan — was faulted. It is not so much a plan, the auditor states, as it is “a description of all the laws that affect water quality.”

Stream protection measures have been lagging, the auditor found, citing a whole host of problems in this area, including failure to develop an overall program for surface water management and failure to establish permanent instream flow standards.

The auditor also took critical note of the commission’s “reactive management style:” “The commission tends to react to crisis rather than work to prevent problems, which makes it difficult to stick to its established priorities. The division reallocates staff resources in order to meet the crisis, leaving previously established priorities on the ‘back burner.’… The reactive management and limited staff resources lead to a neglect of statutory requirements which have long-term strategic implications and require longer staff commissions.” However, the Moloka`i Working Group and the task forces established by the commission to look into Hawaiian rights and stream protection issues were applauded as a means of allowing the commission and its staff “to receive input from various interested parties and experts with little cost or use of staff.”

The second major field of problems identified by the auditor concerns the water management designation process. Designation can take more than three years, while “the entire process of establishing administrative control can take up to six years.” The process is a substantial drain on staff, the auditor says, and, since “existing users can continue to use water, and even increase use” during the process, “the commission may not be able to adequately protect the threatened water resource — the process is so lengthy and no regulation or control exists during the interim.”

Finally, in the third problem area, the auditor faults the commission’s administrative rules. Most rules, the report states, “simply repeat the language of the code without providing further guidance;” the rules “are not current,” with staff having adopted informal guidelines and procedures that are not codified in the rules; and the rules still lack a section on Native Hawaiian water rights, as required by statute.

In responding to the auditor’s report, Commission Chairman Mike Wilson defended the commission’s actions, noting the same staffing and funding shortages cited by the auditor. In addition, Wilson states: “The audit report fails to realize that, at its core, the field of water resources is highly empirical in nature and cannot be reduced to simple formulas either physically or administratively.”

A lawsuit by a title insurance company against Nansay Hawai`i, Inc., brings into sharp focus some interesting consequences of the Hawai`i Supreme Court’s decision in Public Access Shoreline Hawai`i and Angel Pilago v. Hawai`i County Planning Commission and Nansay Hawai`i, Inc. (PASH/Pilago).

In the PASH/Pilago decision, issued August 31, 1995, the Supreme Court determined that the traditional and customary gathering rights of Native Hawaiians extended to Nansay’s 470 acres of undeveloped coastal land at Kohanaiki, North Kona, where Nansay had planned an extensive resort development.

According to the federal lawsuit, filed by the Chicago Title Insurance Company, one week after the Supreme Court decision, Nansay claimed that the title company “has a duty to defend Nansay in the PASH litigation and to indemnify Nansay in respect to any adverse results of such litigation.”

The federal court complaint cites the PASH/Pilago decision liberally in making its case against Nansay’s claims. Among other things, the Chicago Title complaint notes, PASH/Pilago means that “the ‘bundle of rights’ purchased by Nansay, when it acquired title to the insured lands, does not include the right to exclude the exercise of customary or traditional native rights. Recognition of customary and traditional native rights inhere in the title to the land itself and are not part of the restriction of exclusivity which is inherently part of land ownership.” In other words, the complaint alleges, “Nansay purchased all that it was capable of purchasing under Hawai`i law and plaintiff [that is, the title company] cannot be said to have insured more than Nansay was capable of purchasing.”

The Honolulu attorney for Chicago Title is William H. Dodd, of Chun, Kerr, Dodd, Beaman & Wong.

The Military Toxics Project has included Makua Valley and Waikane Valley, both on O`ahu, on a list of sites across the country where the health and welfare of indigenous people and poor people have been placed at risk by military activities.
The MTP is a nationwide coalition of organizations that monitors the effects of military actions and policy on the environment. It has offices in Maine and San Francisco.

Mention of the Hawai`i sites was made in testimony submitted last December by the MTP to the National Environmental Justice Advisory Committee, established by the Environmental Protection Agency’s Office of Environmental Justice.

“Our preliminary review of problems associated with military munitions facilities, particularly impact ranges and burning acres, suggest that military munitions activities heavily impact many communities of color, other poor rural communities, and particularly the lands of native Americans, native Alaskans, and native Hawaiians,” the testimony states.

Makua Valley, in leeward O`ahu, continues to be used as a live-fire range, which includes an open-burn, open-detonation facility for destruction of explosives. Waikane Valley, on O`ahu’s Windward side, was used as a range until the 1960s. Following its return to a family of native Hawaiians, the site proved to be so contaminated with unexploded ordnance that the Department of Defense condemned the land. There are no pending plans to clean up the site.

Among other sites mentioned in the MTP’s testimony are a 2,500-acre area of land “taken from the Oglala Sioux during World War II, at great hardship to the residents.” This “remains in Air Force hands because the Air Force will not or cannot remove unexploded munitions. The military also appears unwilling to investigate and remove munitions contamination on the other 300,000 acres already returned to the Sioux nation.”

Two sites in California were called out: Fort Ord, where residents of the nearby, largely African-American community of Seaside are exposed “to explosive and other environmental hazards,” and the Sierra Army Depot, in northern California, where “the Army’s open burning and open detonation of munitions waste and waste munitions creates environmental and public health hazards on Pyramid Lake Paiute land.” The MTP notes that “a large share of that activity was moved” to the Paiute land “after residents of the San Jose area forced the severe restriction of similar activities there.”

(For more on the military’s use of Makua Valley, readers may wish to consult the November 1992 edition of Environment Hawai`i, containing articles:

[url=/members_archives/archives_more.php?id=1130_0_32_0_C]Endangered Snails of Makua Valley Are Placed at Risk by Army Fires[/url]
[url=/members_archives/archives_more.php?id=1131_0_32_0_C]Editorial: Army Lays Waste Riches of Makua Valley[/url]
[url=/members_archives/archives_more.php?id=1132_0_32_0_C]First the Cattle, Then the Bombs, Oust Hawaiians From Makua Valley[/url]
[url=/members_archives/archives_more.php?id=1133_0_32_0_C]Army’s Application For EPA Permit Is Long, But Not Informative[/url]
[url=/members_archives/archives_more.php?id=1134_0_32_0_C]Army Tenure at Makua Valley Solidified after Statehood[/url]

The history of Waikane Valley is provided in the [url=/members_archives/archives_more.php?id=871_0_32_0_C]August 1992[/url] edition.)

Volume 6, Number 9 March 1996