In 1996, state auditor Marion Higa found that the administrative rules of the Commission on Water Resource Management “do not address native Hawaiian water rights,” whether they are appurtenant and surface water rights (most wetland taro growers have appurtenant water rights), claims for water reservations by the Department of Hawaiian Home Lands, or “traditional customary rights, such as those linked to gathering rights.”
Two years ago, when Peter Young took office as head of the Department of Land and Natural Resources (and chairman of the Commission on Water Resource Management), he was asked whether he would be moving to adopt rules on native Hawaiian water rights, stream protection, and other undone issues. “Absolutely,” was his reply.
It is now 2005. At the beginning of the third year of the administration of Governor Linda Lingle, the Water Commission has yet to develop and adopt rules that are necessary to give practical effect to the protections the law gives to native Hawaiians and others whose use of water furthers traditional or customary practices.
Efforts to promulgate such rules were un dertaken in the early 1990s. In 1993, the commission set up a task force to hold hear ings and draft administrative rules. The draft rules were submitted to public hearings in 1996. According to a summary of the hearings by the Native Hawaiian Advisory Council, most of the public testimony was harshly critical of the proposed rules. Since the last hearing on August 5, 1996, there has been no evidence that the commission has attempted to revise the draft rules in response to the Hawaiians’ concerns.
Yvonne Izu, executive director of the Water Commission, admitted that the commission had done nothing on this score. “I’m embarrassed to say that that’s one thing still on our to-do list,” she said. The 1996 hearings generated “a lot of negative comments,” she added, “but my under standing is that the negative comments weren’t directed so much to the substance of the draft rules as to the process by which the rules were put together. I don’t know why nothing was done” after the public hearings were completed.
“All I can tell you is that [rules for native Hawaiian rights] is on a long list of things to do. Honestly, we’ve been focusing on other things and haven’t been working on that.”
— Patricia Tummons
Volume 15, Number 8 February 2005
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