Water Commission Denies Hearing on Flow Decisions for East Maui

posted in: November 2010, Water | 0

Camille Kalama, an attorney with the Native Hawaiian Legal Corporation (NHLC), didn’t say much after the state Commission on Water Resource Management voted unanimously and without discussion to deny her clients’ request for a contested case hearing. She toldEnvironment Hawai`i only that they are considering their options.

Fellow NHLC attorney Alan Murakami, who couldn’t attend the October 18 meeting, didn’t have much to say either.

“What do you do with an agency that doesn’t follow the law? … We honestly didn’t think they would do that,” he said.

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’s 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.

In June, NHLC, on behalf of Na Moku, filed a petition to address the commission’s decisions on 19 streams, noting that the IIFS “fail 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.”

The county of Maui’s 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.

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.

“Neither 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’s decisions,” she wrote.

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’s duties with regard to stream protection and instream vs. offstream uses. While statues don’t 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.

Footnote 15 of the Hawai`i Supreme Court’s 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.

The court noted that statues and rules require a contested case hearing on existing use applications when “the 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.”

With regard to petitions to amend IIFS, the court wrote, “[W]hile the statutes and rules do not require a hearing with respect to petitions to amend interim instream flow standards … or ‘new’ use applications … constitutional due process mandates a hearing in both instances because of the individual instream and offstream ‘rights, duties, and privileges’ at stake.”

Ohye’s report to the commission did not mention the Supreme Court’s Waiahole decision. Without responding to Kalama’s argument, the commission approved its staff’s recommendation.

Commissioner Lawrence Miike, who had opposed most of the commission’s IIFS decisions in May, as well as the commission’s decision on IIFS in West Maui, has not attended the last few commission meetings, including last month’s.

Petitioners Honored

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.

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.

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.

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.

“While 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,” according to a speech Murakami gave at the convention.

In an interview with Environment Hawai`i, Murakami praised Wallett’s and Kekahuna’s consistency and perseverance “against some pretty tall odds” — including A&B, one of the largest landowners and employers in the state — all while maintaining a generous aloha spirit.

Commission Cites Bad Timing in Rejecting Proposed Director

Water Commission chair and state Department of Land and Natural Resources director Laura Thielen didn’t 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’s 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.

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.

Thielen asked Scheuer, now a private consultant, if he would consider becoming the commission’s new executive director/DLNR water deputy.

While Scheuer’s 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.

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.

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’s 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’s acquisition of O`ahu’s Waimea Valley.

“You will not ever be disappointed by his work … You are making a remarkably brilliant choice,” Namu`o told the commission.

Killian offered his highest endorsement, calling Scheuer “level-headed, clear-thinking, and intellectually honest.”

Representatives from the Hawai`i Farm Bureau Federation and the Land Use Research Foundation, however, unsure about Scheuer’s 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.

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.

“We 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,” she said, adding that many of those permits involve appurtenant rights claims, which the commission has no rules to address.

“We need someone who knows the law … who can guide our staff through this first-time process,” she said. “I was very sad to see Ken go. Strong leadership in a water deputy is crucial…. We’ve done a lot and I don’t want to see that fall apart.”

Commissioner Neal Fujiwara shared the same concerns as LURF and said that while he thought Scheuer fit the job, he’d like to see what the new administration comes up with.

To this, Thielen pointed out that she inherited Kawahara from her predecessor. “That didn’t mean I didn’t have a good working relationship with him,” she said, adding that Scheuer “has more credentials than every prior [water] deputy.”

Commissioner and state Department of Health director Chiyome Fukino added, “There is so much work that needs to be done [at the Water Commission] that I don’t support a deferral. … We need to use every day. I personally feel a sense of urgency.”

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.

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’s immediate appointment were chair Laura Thielen and Department of Health director Chiyome Fukino. Commissioner Lawrence Miike did not attend.

New Commissioner Needed

In addition to seeking a new executive director, the Water Commission needs a new at-large member to fill in when commissioner Donna Kiyosaki’s 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.

According to a state press release, commissioners must have “substantial experience in the area of water resource management,” and nominations, resumes and applications should be sent by November 22, 2010 to the Nominating Committee.

Because Kiyosaki has only held one term as a commissioner, she is eligible to reapply for the seat.

For Further Reading

Environment Hawai`i has 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:

    • “Water Commission Amends Flows For Six of 19 East Maui Streams,” July 2010;
    • “Water Commission Amends Standards for Six Diverted East Maui Streams,” and “Land Board Resumes Discussion of Diversion of East Maui Water,” November 2008;
    • ”Land Board Orders EMI to Release Water to Meet Needs of East Maui Taro Farmers,” May 2007;
    • “Commission Gains Funds, New Tools to Pin Down Water Use, Stream Needs,” September 2006;
    • ”Ex-Judge Says East Maui Farmers Don’t Need More Water for Taro,” August 2006;
    • “Water Commission is Urged to Look at Lessons from Mono Lake Dispute,” August 2005;
    • ”Board Talk: Land Board Favors EMI Water Diversion,” March 2003;
    • ”Board Talk: East Maui Water Dispute Heats Up with Hearing Officer’s Recommendation,” January 2003;
    • ”Board Talk: Contested Case on Renewal of EMI Water Permits,” July 2001;
    • ”Battle Looms Over Waters Diverted from East Maui Streams” and “Complex Legal Issues Surround A&B’s Taking of East Maui Water,” August 1997.


Teresa Dawson


Volume 21, Number 5 — November 2010


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