On June 25, attorney Harley Broyles of Earthjustice<\/em> also informed CWRM that the failure \u201cto disclose select applicants and conducting their interviews in executive session violates \u2026 [the Sunshine Law]. The commission and this nominating committee must conduct the nomination process in a manner that complies with the Sunshine Law. Particularly, given prior problems with the nomination process, utmost attention and commitment should be given to complying with the law and avoiding any questions that may taint and undermine the nominating committee\u2019s efforts.\u201d<\/p>\n\n\n\n (The reference to prior problems almost certainly refers to the selection of Hinano Rodrigues to fill a CWRM vacancy last year, a selection that generated widespread criticism and led to his resignation just a few weeks after his appointment.)<\/p>\n\n\n\n By law, the committee interviews candidates for positions on the commission. Two slots on the agency are now open, with two-term commissioner Paul Meyer having termed out and one-term commissioner Aurora Kagawa-Viviani not being reappointed. <\/p>\n\n\n\n Committee members \u2014 two appointed by the governor, one by the House speaker, one by the Senate president \u2014 are Ulalia Woodside Lee, of The Nature Conservancy of Hawai\u02bbi, Ka\u02bbeo Duarte, of Kamehameha Schools, Denise Antolini, activist and retired professor at the University of Hawai\u02bbi Richardson School of Law, and Tim Johns, an attorney and insurance executive whose past experience includes stints as head of the Board of Land and Natural Resources and also deputy director for CWRM. Kahahane, head of CWRM, is also an attorney. Colin Lau is the deputy attorney general who gave the commission the spurious advice sanctioning the closed interview process.<\/p>\n\n\n\n The first meeting of the committee was held on June 9, despite no public notice having been distributed to members of the public who had requested to be on the commission\u2019s mailing list. At that time, the committee interviewed six candidates, just three of whom were identified by name on the agenda. The agenda for the June 27 meeting, to be continued on June 30, was similarly coy about the candidates, with names disclosed of just three of nine candidates.<\/p>\n\n\n\n In addition to Kagawa-Viviani, candidates whose names were made public on the June 9 agenda are Dana Okano and Kawika Tengan. Those named on the June 27-30 agenda are Juanita Colon, Makahiapo Cashman, and Mehanaokal\u0101 Hind. At the June 9 meeting, candidates Maile Lu\u02bbuwai and Moses Haia were also interviewed in public, though not named on the agenda.<\/p>\n\n\n\n The communications office of the Department of Land and Natural Resources, to which CWRM is administratively attached, was asked when the Nominating Committee would reconvene and if the interviews conducted in secret on June 9 would be re-done in public.<\/p>\n\n\n\n CWRM staff responded, \u201cWe are currently consulting with our legal counsel to determine the appropriate next steps, including the matter of the interviews that were conducted in executive session on June 9. Once that process is complete, we will schedule the nominating committee meetings accordingly.\u201d<\/p>\n\n\n\n Holding the interviews out of view of the public seems to be a recent practice. In the recording of the June 9 meeting, after it had interviewed the first candidate, Johns, the chairman, can be heard telling Woodside that when he was named to the Nominating Committee last year, \u201cI had a hard time with this, because I don\u2019t remember allowing people to do it in private.\u201d He went on to say that he had \u201cpushed back on the AG \u2013\u201d when the voice of deputy AG Lau, monitoring the meeting remotely, is heard, advising Johns that the mic was still live.<\/p>\n\n\n\n \u201cYeah, thanks,\u201d Johns said.<\/p>\n\n\n\n The cancellation of the Nominating Committee meeting is not the first time in recent months that the Water Commission has been questioned about its fidelity to state law.<\/p>\n\n\n\n On its agenda for April 28, the commission had scheduled discussion of a staff proposal, submitted with the blessing of Kahahane, to regard the Kahana well, a new well developed by the Maui County Department of Water Supply, as an existing use, even though the well was not yet completed. Consideration of the well as an existing use would allow the well to be pumped without DWS having to apply for a new water use permit. Given the designation of the Lahaina aquifer sector as a ground- and surface-water management area in 2022, proposed new uses have to await decisions on existing permit applications. <\/p>\n\n\n\n But the staff analysis had serious problems, as was pointed out by attorneys with Earthjustice.<\/p>\n\n\n\n Within days of the submittal being made public on or about April 21, they notified Kahahane that grave legal problems existed in the analysis. Specifically, the submittal included language purporting to quote parts of the state Water Code, Chapter 174C of Hawai\u02bbi Revised Statutes. But the language in the submittal did not track that of the statute. Instead, it contained phrases not found in the law and omitted passages that are.<\/p>\n\n\n\n Earthjustice provided Kahahane with a side-by-side comparison of language from the submittal, red-lined to show where changes had been inserted or language omitted, with the actual statutory language of HRS \u00a7174C-48(a) and (b).<\/p>\n\n\n\n On April 25, Kahahane issued a notice that that agenda item was being withdrawn.<\/p>\n\n\n\n Earthjustice submitted formal testimony on April 27, a day ahead of the meeting. The request of the Maui DWS and the staff recommendations \u201cwere legally flawed and invalid,\u201d they wrote. The commission has the power to issue declaratory rulings \u201con the applicability of any statutory provision of the state water code. The commission is not however, empowered to rewrite the code by declaratory fiat, as DWS had requested. \u2026<\/p>\n\n\n\n \u201cWith no statutory basis, a declaration exempting DWS from permitting would go far outside the \u2018boundaries of the commission\u2019s discretion\u2019 to issue declaratory rulings. Thus, should the applicability of the code\u2019s permitting requirements again be called into question with respect to the Kahana well there is no question that the use of Kahana well would constitute a new \u2018withdrawal\u2019 of water, for which DWS must first obtain a water use permit,\u201d they continued.<\/p>\n\n\n\n Elena Bryant of Earthjustice testified at the April 28 meeting. She thanked Kahahane for withdrawing the submittal from consideration, then went on to add: \u201cWhile we appreciate the apology and corrections made on the record, there\u2019s been no explanation of how this serious and blatant misstatement of law got into the submittal in the first place. We have grave concerns not only about how this misstatement of law found its way into the staff submittal, but also how it serves as the basis for staff recommendation on the county\u2019s request. \u2026<\/p>\n\n\n\n \u201cWe cannot recall a time in this commission\u2019s history when such a serious oversight of law has been made a part of staff recommendation. We urge each commissioner to take a careful and independent eye in reviewing these recommendations, especially where it\u2019s your decision, commissioners, which will have profound and generational impacts to our public trust resources.\u201d<\/p>\n\n\n\n Bryant concluded by outlining legal means by which the commission and Department of Water Supply could resolve the problem without rewriting the Water Code, including through the declaration of a water shortage emergency.<\/p>\n\n\n\n Since the commission designated West Maui as a water management area in 2022, it still has not moved forward with approvals of any applications for existing water use permits, much less new permits.<\/p>\n\n\n\n In a Land Use Commission meeting held on June 4 to discuss long-stalled plans for a subdivision in the area above Kapalua, Maui, Kahahane explained the process the commission staff was undertaking to review permit applications.<\/p>\n\n\n\n \u201cWe expect to clarify a framework for processing and triage of water use applications this year. And that will be accepted or approved by the commission itself, which we expect to give some measure of greater certainty on the path forward. The timing for processing of these water use permits depends on the framework that we ultimately decide on and the way that we prioritize hydrologic units. <\/p>\n\n\n\n \u201cWe will receive applications, review them, and address any mistakes that need to be corrected for all applications that we receive,\u201d Kahahane said, \u201cbut we cannot approve new water use permits until all of the existing use permits that they might conflict with have been acted upon. That is required of us again under the Water Code.<\/p>\n\n\n\n \u201cSo while we will look at new use applications, we will process them up until the point where action is required. The commission is unable to make a final decision on new uses until we figure out how much water we\u2019re going to allocate to the existing uses. \u2026<\/p>\n\n\n\n \u201cWe have more than 100 applications pending \u2026 and that represents thousands of individual parcels,\u201d she said.<\/p>\n\n\n\n In other words, the earliest that any water use permits may be expected to win commission approval is sometime in 2026. Approvals of new use permits will occur even later.<\/p>\n\n\n\n \u2014 Patricia Tummons<\/strong><\/p>\n\n\n\n For more on the Water Commission Nominating Committee\u2019s practices, see \u201cThe Fraught Process of Selecting the Loea,\u201d in the December 2024 edition of Environment Hawai\u02bbi. <\/em><\/p>\n\n\n\n <\/p>\n","protected":false},"excerpt":{"rendered":" Hours before the scheduled second meeting of the Nominating Committee of the Commission on Water Resource Management, Ciara Kahahane, deputy director for CWRM, cancelled it, as well as the third scheduled meeting. No reason was provided for the cancellation. However, … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16271,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[539],"tags":[7],"class_list":["post-16592","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-july-2025","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16592","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16592"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16592\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16271"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16592"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16592"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16592"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\n\n\n\nA Withdrawn Submittal<\/strong><\/h2>\n\n\n\n
![\"\"](\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2025\/07\/Image-6-28-25-at-12.40\u202fPM.jpeg\")
<\/a>
\n\n\n\n