Elmer Cravalho, former mayor of Maui whose administration was often beset by controversy, is the new chairman of the Maui Board of Water Supply. And if the first meeting of his tenure in that office is any indication, controversy may well be a constant companion now of the Board of Water Supply.
The first item on that first agenda was signing of a memorandum of understanding relating to water issues between the Board of Water Supply and Alexander & Baldwin, Inc. At the board’s March 23 meeting, members were presented with a four-page memorandum from then-BWS chair Robert Takitani containing terms of the agreement, which had been developed by designated board members (including Takitani, Cravalho, and member Howard Nakamura) working with A&B, whose vast network of irrigation ditches in East Maui provides an important source of water for Maui County’s municipal water systems.
At that meeting, the board voted on a motion to “accept” the agreement, but to “defer a vote on it until the next meeting.” Cravalho attempted to change the motion so that the only action the board would take at the next meeting would be the signing of the agreement, but, as the BWS transcript shows, chair Takitani clearly affirmed the intent of the motion not just to have a signing ceremony, but also to ratify the agreement:
TAKITANI: Moved by Mr. Nobriga and seconded by Mr. [Peter] Rice that we accept the Memorandum of Understanding and defer a vote on it until the next meeting.
CRAVALHO: The signing of it.
TAKITANI: The signing of it. No, it wasn’t the signing, it was a confirmation ratification.
Board member Jonathan Starr indicated his support of the agreement, but then added: “I do think we should go overboard to be more than procedurally correct and perhaps we should wait until the next meeting to actually ratify and sign it. And that way, we’re following more than the letter and even more than the spirit of the regulation.”
When it came time for a vote on the matter, Cravalho again attempted to spin the motion in such a fashion that the only action item for the next meeting with respect to the MOU would be the signing. Again, to quote from the transcript:
TAKITANI: It’s been moved by Mr. Nobriga and seconded by Mr. Rice that the Memorandum of Understanding be accepted and placed for review and placed on the next agenda.
CRAVALHO: For signing.
TAKITANI: For signing. For approval and signing. All those in favor –
CRAVALHO: For signing.
TAKITANI: — signify by saying aye. Opposed, nay. The ayes have it.
At the board’s April 13 meeting – Cravalho’s first in the position of chair – he made a sort of inaugural speech describing himself as “a stickler for following the rules and regs.” He then proceeded to “depart from the regular agenda and proceed to the signing of our agreement É which the board was made aware of at the last meeting with the signing set for today. I would like to have this appear as the first order of business.”
One of those who had come to testify on the subject was Mark Sheehan. After Cravalho’s announcement that the board would proceed immediately to the signing of the agreement, Sheehan asked if it would be possible “for the public to have some input on this subject prior to your signing of the agreement.”
Cravalho asked Sheehan, “You wish to express thoughts on the agreement?”
Sheehan explained that that was the reason he was attending the meeting.
“The chair will have to deny your request,” Cravalho answered. “The reason for that is it that it is taken out of order. Your opportunity to express yourself will be given immediately after the signing of the agreement.”
Attorney Isaac Hall, representing the Coalition to Protect the East Maui Water Resources, also asked for an opportunity to testify on the agreement. Again, Cravalho said Hall could speak after the signing. “The chair recognizes your request and the chair will allow you to have a right to speak subsequent to the signing,” Cravalho told Hall. “It’s not being denied, it’s just postponed.”
Board member Starr voiced his concern over Cravalho’s silencing of the public, saying “it would not be harmful in any way to allow the public to give their comments on this one item before we sign it, since the public only received and had the ability to see this subsequent to our last meeting.”
Cravalho was firm: “The chair appreciates the thoughts expressed by Board member Starr. The chair reiterates its position. We shall proceed to the signing; opportunities to be heard thereafter. This is the ruling of the chair.”
A Kodak Moment
When Sheehan finally was allowed to testify, he asked Cravalho where he should sit. Cravalho answered, “Anywhere you wish to. If you wish to be out of the room, the chair would be happy.”
Sheehan thanked Cravalho “for the opportunity to be here for this Kodak moment. It is a little anticlimactic to be lecturing on navigation after the Titanic has hit the iceberg.”
He then went on to testify against the MOU, which he described as vague and as potentially depleting limited groundwater resources. “We see that A&B is in transition from being a plantation to a land developer,” he said. “And it looks like this memorandum of understanding will provide for – for the needs of the Board of Water Supply in some areas, but also provide for A&B to meet their water requirements in the long term. Meanwhile, other developers and other people who have been waiting for many years I don’t think are provided for in this document.”
When Hall was finally given the floor, he, too, challenged Cravalho’s refusal to allow testimony in advance of board action – on the ground that it was in violation of the state open meetings law, Chapter 92 of Hawai`i Revised Statutes. “Chapter 92 requires that the public be allowed to speak on any agenda item before action is taken on that agenda item,” he reminded Cravalho.
Cravalho disagreed, using the formal, third-person language that he seems to believe is appropriate to his exalted post: “The chair wishes to point out to you, with great respect for you, that the representation made with respect to Chapter 92 is not particularly accurate É in the sense that Chapter 92 does not indicate prior to or subsequent to” agency action.
Hall noted – correctly – that indeed, the law does state clearly that testimony is to be allowed before agency action on any item appearing on an agency’s agenda. Yet when Hall pointed this out, Cravalho cut him off.
This time, Cravalho was so provoked he reverted to first-person singular language. “Mr. Hall,” he noted, “I am slightly different than other people.”
Free Cleaning
On the subject of the MOU, Hall was just as critical. “What you’ve said,” Hall testified, “is if they [A&B] help you at all in implementing this MOU, that they are entitled to an appropriate amount of water. And not only that, you’ve obliged yourself to clean that water for them. It’s county expense. They’re going to give you water that’s not clean and the board is going to have to clean it under this agreement.”
Picking up on a point Sheehan raised, Hall noted that the Board of Water Supply was entering into a 25-year agreement with A&B, even though “A&B does not have 25 years of rights in water from [East Maui]. It has a month-to-month revocable permit [from the state] that gets switched every year – one year it’s A&B, the next year it’s EMI [an A&B subsidiary], but there is no established right to that water and that water is subject to a contested case proceeding that was started 19 years ago to make sure that the water rights of the people living below those streams were taken care of.”
After Hall completed his testimony, Cravalho responded with another short speech. “You have to understand completely the very great significance of this agreement with all of its protective devices contained therein for the public’s involvement and participation,” he said. And despite having shut out public testimony, Cravalho went on to assure Hall that the public would be protected “as long as I’m around. And the public will be involved and you in particular and people you represent will be also heard.”
The third member of the public who testified after-the-fact was Elaine Wender, longtime resident of East Maui. Not only did she object to testifying after the fact, she also expressed her desire that the matter should be heard in Ke`anae, where the people whose rights are being affected live. “We’re talking about the largest water diversion in the state, a unique situation where we have over a hundred streams and close to 400 diversions of water É which yield 60 billions gallons of water a year that are taken out of our area. Ninety-five percent of this goes to cane,” Wender stated.
Wender also objected to the county’s commitment to work with A&B in A&B’s efforts to obtain water permits. This provision precluded the county from taking a position “on behalf of East Maui downstream users. What about the rest of us?”
The real solution to Maui’s water problems, Wender said, “is to do serious water conservation and serious water storage. I don’t understand why on an island where much of it is natural desert, people are allowed to irrigate to create rainforests. I don’t understand why, when we use so much water flushing toilets, there is not serious discussion about requiring composting toilets. I don’t understand why the ditch doesn’t get lined so we don’t have such a huge loss of water through an unlined ditch.”
“What you’re doing in this agreement with all of its giveaways to A&B ensures that there is never going to be any water left to restore the streams,” Wender concluded.
Lucienne de Naie, representing the Sierra Club, Maui Group, was the last member of the public to testify. Like previous speakers, she urged the Board of Water Supply to restore streams, conserve water, and protect aquifers from overdevelopment.
A Dissenting View
Board of Water Supply member Jonathan Starr spoke in favor of the memorandum of understanding. The “groundbreaking” document does not put A&B in a favorable position with respect to future water allotments, he said. “I really have to show some appreciation to A&B who have given up – they are giving up real waterÉ There is no place in this agreement where it says that they have a position ahead of any other person when it comes to gaining the water back.”
“The public has gained a lot, the environment has gained a lot, and I think overall this is a good thing,” Starr said.
— Patricia Tummons
Volume 11 Number 1 July 2000
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