{"id":1074,"date":"2014-09-09T17:53:17","date_gmt":"2014-09-09T17:53:17","guid":{"rendered":"http:\/\/localhost:8888\/EH\/?p=1074"},"modified":"2015-01-29T19:44:29","modified_gmt":"2015-01-29T19:44:29","slug":"water-commission-denies-hearing-on-flow-decisions-for-east-maui","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=1074","title":{"rendered":"Water Commission Denies Hearing on Flow Decisions for East Maui"},"content":{"rendered":"
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Camille Kalama, an attorney with the Native Hawaiian Legal Corporation (NHLC), didn\u2019t say much after the state Commission on Water Resource Management voted unanimously and without discussion to deny her clients\u2019 request for a contested case hearing. She toldEnvironment Hawai`i<\/i>\u00a0only that they are considering their options.<\/p>\n

Fellow NHLC attorney Alan Murakami, who couldn\u2019t attend the October 18 meeting, didn\u2019t have much to say either.<\/p>\n<\/div>\n

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\u201cWhat do you do with an agency that doesn\u2019t follow the law? … We honestly didn\u2019t think they would do that,\u201d he said.<\/p>\n

Their clients — a group of native Hawaiians, East Maui residents, and farmers known as Na Moku `Aupuni O Ko`olau Hui — had requested a contested case hearing on the commission\u2019s May 25 decisions regarding their 2001 petitions to amend the interim instream flow standards (IIFS) of several East Maui streams. The majority of the commission had voted to restore water year-round to only two of the streams, implement seasonal restoration to four, and not return any water to the remaining 13.<\/p>\n

In June, NHLC, on behalf of Na Moku, filed a petition to address the commission\u2019s decisions on 19 streams, noting that the IIFS \u201cfail to restore sufficient water to the subject streams to adequately protect and promote instream public trust uses of the streams, including Native Hawaiian traditional and customary practices.\u201d<\/p>\n

The county of Maui\u2019s Department of Water Supply, which supplies diverted stream water from East Maui to Upcountry, also applied to be a party in the contested case hearing, should one be granted.<\/p>\n

When the commission met in October to decide whether to grant a hearing, its staff recommended denial. According to a report by acting deputy administrator Lenore Ohye, because a contested case is not required by law in this instance, the hearing sought by Na Moku is not required.<\/p>\n

\u201cNeither the statutes nor the rules require the Commission to hold a hearing prior to deciding on whether to amend an interim IFS. … Due process considerations also do not require a hearing prior to decision making by the Commission as the determination made by the Commission is what is the public interest in stream flows. There was no individualized findings with respect to specific parties that was required to be made as part of the Commission\u2019s decisions,\u201d she wrote.<\/p>\n

Kalama, the lone testifier on the item, pointed out that the Hawai`i Supreme Court addressed this very issue in its first decision in the Waiahole Ditch case that clarified many of the commission\u2019s duties with regard to stream protection and instream vs. offstream uses. While statues don\u2019t require a hearing, Kalama said, constitutional due process does, since the issue of how much water is in the streams affects the rights, duties and privileges of the petitioners.<\/p>\n

Footnote 15 of the Hawai`i Supreme Court\u2019s Waiahole I decision notes that the petitioners in that case appealed the commission’s decision regarding permit applications for existing and new uses, as well as petitions to amend interim instream flow standards.<\/p>\n

The court noted that statues and rules require a contested case hearing on existing use applications when \u201cthe quantity of water applied for exceeds 25,000 gallons per month and an objection to the application is filed by a person having standing to object.\u201d<\/p>\n

With regard to petitions to amend IIFS, the court wrote, \u201c[W]hile the statutes and rules do not require a hearing with respect to petitions to amend interim instream flow standards … or \u2018new\u2019 use applications … constitutional due process mandates a hearing in both instances because of the individual instream and offstream \u2018rights, duties, and privileges\u2019 at stake.\u201d<\/p>\n

Ohye\u2019s report to the commission did not mention the Supreme Court\u2019s Waiahole decision. Without responding to Kalama\u2019s argument, the commission approved its staff\u2019s recommendation.<\/p>\n

Commissioner Lawrence Miike, who had opposed most of the commission\u2019s IIFS decisions in May, as well as the commission\u2019s decision on IIFS in West Maui, has not attended the last few commission meetings, including last month\u2019s.<\/p>\n

Petitioners Honored<\/i><\/b><\/i><\/p>\n

Last month, at the 9th Annual Native Hawaiian Convention, the Council on Native Hawaiian Advancement gave Community Advocate of the Year awards to cousins Beatrice Kekahuna and Marjorie Wallett, two of the original petitioners for stream restoration in East Maui.<\/p>\n

Nearly a decade ago, Kekahuna, and Wallett, as well as Elizabeth Lapenia and Na Moku `Aupuni O Ko`olau Hui, initiated a contested case hearing with the state Board of Land and Natural Resources against a long-term water lease to Alexander & Baldwin\/East Maui Irrigation Co. to allow the continued diversion of East Maui streams. At about the same time, they filed petitions with the Water Commission to amend the interim instream flow standards of 27 East Maui streams.<\/p>\n

The two women were both Honopou taro farmers and in their early 70s when they filed the petitions, which they hoped would result in more water to grow taro on their properties.<\/p>\n

Wallett, a former communications specialist with the Navy, died on April 3 after a short illness, a little over a year after the Water Commission voted to restore water to eight of the streams and one month before the commission took action on the remaining 19.<\/p>\n

\u201cWhile she lived to see the [Water Commission] take action to partially restore Honopou [stream], today, her work to implement that decision — to give it meaning — continues through her daughter Lyn Scott,\u201d according to a speech Murakami gave at the convention.<\/p>\n

In an interview with\u00a0Environment Hawai`i,<\/i>\u00a0Murakami praised Wallett\u2019s and Kekahuna\u2019s consistency and perseverance \u201cagainst some pretty tall odds\u201d — including A&B, one of the largest landowners and employers in the state — all while maintaining a generous aloha spirit.<\/p>\n

***
\nCommission Cites Bad Timing in Rejecting Proposed Director<\/b><\/div>\n

Water Commission chair and state Department of Land and Natural Resources director Laura Thielen didn\u2019t want to lose momentum with so much at stake on Maui. In the midst of her staff trying to implement new stream flow standards for East and West Maui, while processing more than 100 applications from would-be users of the commission\u2019s first-ever surface water management area, Thielen lost her water deputy, Ken Kawahara. Kawahara, who had shepherded through some of the most important (and controversial) decisions the commission had made in years, moved to the private sector in June, leaving yet another gaping hole in an agency that has suffered severe personnel losses in recent years.<\/p>\n

Former staff veteran Lenore Ohye stepped in as acting deputy, while Thielen made a call to Jonathan Likeke Scheuer, a former policy advocate for the Office of Hawaiian Affairs who was intimately familiar with the seminal Waiahole water case and was a key player early on in the Na Wai `Eha contested case over stream water diversions in West Maui.<\/p>\n

Thielen asked Scheuer, now a private consultant, if he would consider becoming the commission\u2019s new executive director\/DLNR water deputy.<\/p>\n

While Scheuer\u2019s expertise in Hawai`i water issues made him an attractive candidate, stances he had taken while with OHA (i.e., pushing for stream restoration over certain offstream uses) made some members of the public, and perhaps some commissioners, hesitate. The timing of his appointment also seemed to be a major concern. With a new administration coming in within a few months, would Scheuer mesh well with the commission chair and DLNR director to be appointed by the new governor? some wondered.<\/p>\n

On September 25, when the commission met to consider Scheuer as its executive director, he explained that while he was with OHA, it was his job to be an advocate, and he assured the commission that should he become its director, he would make decisions as an impartial administrator.<\/p>\n

He was backed by a slew of former co-workers and associates, including OHA CEO Clyde Namu`o and trustee Collette Machado, Trust for Public Lands Hawai`i director Lea Hong (who testified as an individual and who had worked with him on OHA\u2019s acquisition of Wao Kele O Puna), a former co-worker from Kamehameha Schools, and Howard Killian from the Army Corps of Engineers (also testifying on his own behalf) who worked with him on OHA\u2019s acquisition of O`ahu\u2019s Waimea Valley.<\/p>\n

\u201cYou will not ever be disappointed by his work … You are making a remarkably brilliant choice,\u201d Namu`o told the commission.<\/p>\n

Killian offered his highest endorsement, calling Scheuer \u201clevel-headed, clear-thinking, and intellectually honest.\u201d<\/p>\n

Representatives from the Hawai`i Farm Bureau Federation and the Land Use Research Foundation, however, unsure about Scheuer\u2019s positions on the use of water for agriculture and biofuels, recommended that the commission leave the selection of a new Water Commission chair and water deputy to the incoming administration.<\/p>\n

In response to the questions raised about the timing of hiring a new executive director, Thielen noted the enormous tasks the staff is dealing with.<\/p>\n

\u201cWe have a number of things going on now. We have 125 Na Wai `Eha [surface water use] permits waiting. This is not going to be simple for our staff to handle,\u201d she said, adding that many of those permits involve appurtenant rights claims, which the commission has no rules to address.<\/p>\n

\u201cWe need someone who knows the law … who can guide our staff through this first-time process,\u201d she said. \u201cI was very sad to see Ken go. Strong leadership in a water deputy is crucial\u2026. We\u2019ve done a lot and I don\u2019t want to see that fall apart.\u201d<\/p>\n

Commissioner Neal Fujiwara shared the same concerns as LURF and said that while he thought Scheuer fit the job, he\u2019d like to see what the new administration comes up with.<\/p>\n

To this, Thielen pointed out that she inherited Kawahara from her predecessor. \u201cThat didn\u2019t mean I didn\u2019t have a good working relationship with him,\u201d she said, adding that Scheuer \u201chas more credentials than every prior [water] deputy.\u201d<\/p>\n

Commissioner and state Department of Health director Chiyome Fukino added, \u201cThere is so much work that needs to be done [at the Water Commission] that I don\u2019t support a deferral. … We need to use every day. I personally feel a sense of urgency.\u201d<\/p>\n

In the end, while stating how impressed they were with Scheuer and that they believed he was highly qualified for the job, most of the commissioners were determined to wait until the next administration came in to hire a new director. Although Thielen pointed out that a deferral could mean that the commission would be without an executive director for six to nine months, Kiyosaki said she was comfortable with Ohye as acting director, knew the rest of the staff was competent.<\/p>\n

When it came time to vote, commissioners Fujiwara, Donna Kiyosaki and William Balfour all voiced their preference for a deferral — without prejudice — until the next administration is in place. Commissioner Sumner Erdman also wanted to defer, but only for a few days to confer with his attorney on certain legal issues. The only two members supporting Scheuer\u2019s immediate appointment were chair Laura Thielen and Department of Health director Chiyome Fukino. Commissioner Lawrence Miike did not attend.<\/p>\n

New Commissioner Needed<\/b><\/i><\/p>\n

In addition to seeking a new executive director, the Water Commission needs a new at-large member to fill in when commissioner Donna Kiyosaki\u2019s term expires next June. Last month, the commission began soliciting nominations. A nominating committee will narrow candidates down to at least three. The governor will pick one, whom the state Senate must then confirm.<\/p>\n

According to a state press release, commissioners must have \u201csubstantial experience in the area of water resource management,\u201d and nominations, resumes and applications should be sent by November 22, 2010 to the Nominating Committee.<\/p>\n

Because Kiyosaki has only held one term as a commissioner, she is eligible to reapply for the seat.<\/p>\n

For Further Reading<\/b><\/div>\n

Environment Hawai`i<\/i>\u00a0has given extensive coverage to East Maui water issues over the years. For more background, see the following, all of which are available on our website:<\/p>\n