For weeks now, people have been questioning the Governor’s
appointment process and, in particular, whether Yamamura meets the
Water Code’s requirement of “substantial experience in the area of
water resource management.”  For background on this ongoing
controversy, see this article at:
http://www.civilbeat.com/articles/2012/02/22/14970-abercrombies-latest-water-commission-nominees-dont-quiet-uproar/

In the face of this controversy, the WLH Committee has taken the
unusual step of scheduling an informational briefing by Water
Commission Deputy Director Bill Tam and the Nominating Committee
responsible for the short list of candidates to explain how these
picks were made.  The briefing is scheduled for 1:15 pm, ten minutes
before the hearing on Yamamura’s confirmation (briefing notice here:
http://www.capitol.hawaii.gov/session2012/hearingnotices/HEARING_WLH_04-05-12_INFO_.HTM).

Please come to both hearings and send in testimony opposing Yamamura’s
confirmation.

Why does this matter and what’s wrong with the process?
The Water Code and Commission were established after the 1978
Constitutional Convention to manage water as a public trust for
present and future generations and move beyond the plantation-era
politics of a handful of interests monopolizing water for private
profit.  As the Code mandates, the Commission is supposed to be a
panel of experts with a requirement of “substantial experience in the
area of water resource management.”  HRS § 174C-7(b).  Further,
because the Commission has been consistently dominated by “Big Ag”
water diverters, the Code was amended in 2003 to reserve a seat for
someone with “substantial experience or expertise in traditional
Hawaiian water resource management techniques and in traditional
Hawaiian riparian usage such as those preserved by section 174C-101.”
HRS § 174C-7(b).

What should you do?
Despite these clear requirements, Yamamura does not meet the
qualifications.  He is a land appraiser from Maui, lacking
“substantial experience in the area of water resource management.” Any
commercial valuation of water that may occur in land appraising has
nothing to do with managing water resources as a public trust.  See,
e.g., In re Waiahole Ditch Combined Contested Case Hr’g, 94 Haw. 97,
180 n.96 (2000) (explaining that any financial value of water for
eminent domain purposes “is inapposite to any analysis under either
the police power or the public trust”).

In addition, there are significant questions about the integrity of
this process.  Clearly qualified applicants were passed over for
Yamamura.  Also, Yamamura is from the Nā Wai ʻEhā area of Maui, where
Maoli and local groups have been struggling to restore stream flows
diverted by plantation ditches.  At minimum, this raises improper
appearances of attempting to influence this and other Maui cases.  In
fact, including the pending nominees, four of the five appointed
Commissioners would be from the single island of Maui.  In short,
politics continues to improperly subvert the law and expertise in the
management of our most precious resource.

Despite these and other concerns, the informational briefing is
scheduled only ten minutes before the confirmation hearing, giving
concerned community members no time get more information before taking
a position and submitting testimony on the issue.

Please send in testimony today:  (1) opposing Yamamura’s confirmation
and (2) asking the Committee to reschedule the confirmation hearing
until after the public has adequate opportunity to review and respond
to the informational briefing.  Mahalo piha!

More information on GM 755 is available here:
http://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=GM&billnumber=755

YOUR TESTIMONY HEADER SHOULD BE:

HOUSE COMMITTEE ON WATER, LAND, AND HOUSING
ATTN:  CHAIR DONOVAN DELA CRUZ

Testimony Opposing GM 755:  Yamamura’s Nomination to the Water Commission

April 5, 2012, 1:25 p.m.
Conference Room 225

WHERE TO SEND TESTIMONY:

Testimony should be submitted via the legislature’s webpage at:
http://www.capitol.hawaii.gov/submittestimony.aspx,
emailed to WLHtestimony@capitol.hawaii.gov
or faxed to 586-6091 (or 1-800-586-6659 from neighbor islands).

SAMPLE TESTIMONY:

Aloha Chair Dela Cruz and Members of the Committee:

My name is __ and I am testifying in strong opposition to GM 755,
nominating Ted Yamamura to the State Water Commission.

Hawaiʻi’s Water Code mandates that any Commissioner have “substantial
experience in the area of water resource management.”  HRS §
174C-7(b).  This requirement is vital to ensure that the trustees of
one of Hawaiʻi’s most precious resources are qualified to serve in
this expert, objective, and fiduciary role.  Mr. Yamamura fails to
meet this basic prerequisite.

The management of water resources goes far beyond the valuation of
land or even water connected with land.  As the Hawaiʻi Supreme Court
explained, the duty of a trustee over water resources is much more
than the role of a “business manager,” or a mere “umpire calling balls
and strikes.”  This trustee role is too important to be handed to
political appointees lacking the necessary expertise.

Moreover, many actually qualified applicants were passed over, raising
serious questions about the integrity of this process.  That also
casts doubt on whether the Water Code’s qualifications were given
sufficient consideration.

In addition, more representation is needed from other islands.
Including the pending nominees, four of the five appointed Water
Commissioners will be from the single island of Maui.  The Water
Commission’s public trust obligations extend throughout the state, and
other islands require representation as well.

Please vote to deny Mr. Yamamura’s nomination.  Mahalo for the
opportunity to testify on this important issue.

Art kindly donated by Solomon Enos, Hawaiian Artist/Farmer.
Support Native Art! www.HawaiianArtPlaza.com

A big MAHALO! is due to the hundreds of people who responded to the call from taro farmers! They submitted testimony in droves and packed the room at the Water Commission hearing last Wednesday in Haiku–to demand that East Maui Irrigation Company (EMI) stop diverting every last drop of water from the streams of East Maui.

The Commission took two days’ worth of public testimony and ultimately agreed with the taro farmers, scientists, and general public that EMI is diverting too much water from at least 8 of the 27 streams at issue.  The Water Commission ruled that EMI must return at least 12 million gallons of water a day to those 8 streams in order for the native stream life to survive.

This is a historic decision was made possible only by the consistent and growing public pressure to uphold the constitutional rights of taro farmers and the legal obligations of the state to protect native ecosystems against the profit-seeking interests of corporations.  Mahalo piha to everyone who took the time to participate.  This decision will serve as a model for water restoration efforts throughout the islands.

Here is the mahalo we got from the attorney for the taro farmers in East Maui, Alan Murakami with the Native Hawaiian Legal Corporation:

Mahalo nui loa for all the help…  I think it really helped get the word out and I was impressed by the hundreds that responded to our call for help.

There is still much to do during the so-called “Adaptive Management System” being overlaid on this decision.  It simply means that the staff will use the next year to do what it was supposed to do before the decision on appurtenant rights…

In short, I think the community pressure put on the company and the commission worked wonders.  You should congratulate yourself for the supportive work you did.  Now the implementation… more work to do and I hope I can count on all of you to post the updated information as it becomes available – both good and bad.  I certainly think the news of the almost miraculous restoration of conditions at the muliwai is one of the headline things to report.

The fight continues today with a contested case hearing in Haiku to invalidate the leases improperly issued to EMI and its parent corporation, Alexander & Baldwin, for use of the land where the diversions are located.  Whatever the outcome of this contested case, history has already been made in East Maui and nothing can stop the people-powered momentum towards restoring all the streams that have been improperly and immorally diverted from their nature course for far too long by multi-national industrial agriculture corporations. Stay tuned for updates on this string of historic decisions.

Mahalo nui loa to the people of East Maui for continuing this historic fight, and their legal team at the Native Hawaiian Legal Corporation.

Life is where the water is.
As the Hawaiian kupuna and natural resource experts had foretold- just one month after restoring stream flow to Waikane stream, in Wailuanui East Maui, native marine life has already re-inhabited the stream, estuary (muliwai) and bay. The local community can finally return to their traditional practices such as farming, fishing, and enjoying the cool water recreationally. It had been 30 years since the Waikane native ecosystem existed in its natural healthy state. It is hoped that coming generations will not have to experience the environmental devastation that the community has suffered without water.

From Marti:
Big Mahalos to the people of Molokai for making the journey to Honolulu to raise awareness about Molokai Ranch’s new ploy to exploit cash for water.  I was shocked to hear that Gov. Lingle allowed Molokai Ranch to raise residents’ water rates 178% or risk losing all water services.  HEWA!  Access to clean water is a basic human right.  Molokai Ranch took on the responsibility of providing water to people (for a profit) all these years and now that profits are down they just want to close up shop.  That’s just wrong.

Rep. Carroll (D-Molokai) said it herself, “Molokai Ranch should not simply walk away from legal and moral obligations” to provide water service to the residents of Molokai.

There is word for what Molokai Ranch is doing, it’s called: extortion.  Good for Molokaiians for sticking up for themselves.  If this ridiculous rate increase is allowed to stand, then it sets a bad precedent for all of us in Hawaii who pay to have water pumped into our homes. Someday soon they are going to come knocking on all of our doors threatening to cut off our water if we don’t pay them a hundred times more.

A statement from the residents of Molokai:

In May, Molokai Ranch, citing financial impossibility but providing no financial evidence, suddenly announced the company would terminate its water and sewage utility services at the end of August. In July, The Department Of Health said: “The lack of a sustained and reliable source of safe drinking water in West Molokai will create a substantial danger…an imminent peril to the public health and safety.” By threatening to cut off an essential lifeline to the Molokai community, Molokai Ranch created a manmade and calculated crisis in order to avoid financial responsibility.

Without conducting a physical or financial audit of the utilities, the PUC bought into the Ranch’s threats, sided against the ratepayer, and claimed it “had no choice” but to raise the rates of Waiola O Molokai, Inc water utility by an unprecedented 178%.  The people of Molokai cannot afford to pay such exorbitant rate increases, and should not be forced to subsidize mismanaged utilities.

Not only was the rate increase unprecedented and unjustified, but the rate review and approval process was fundamentally flawed.  The PUC, which should be acting as a regulatory agency for the utilities, assumed an unprecedented role and filed for the rate increase on behalf of the utilities, as the Ranch claimed poverty (while still refusing to disclose financial records) and refused to file its own proceedings for a rate increase.  The PUC also disallowed Molokai ratepayers to intervene as a formal party to the proceedings.

Compounding the PUC’s procedural errors, the DCCA then failed to advocate on behalf of the affected ratepayers.  A 25% increase is normally the cap for a rate increase; instead of upholding this policy on behalf of the local consumer, the government agencies appeased the demands of a foreign-owned business and arbitrarily approved a 178% increase knowing that Molokai ratepayers cannot afford to pay such an egregious rate increase.

The Molokai community has filed a formal complaint with the Office of the Ombudsman to investigate the PUC for breaching a duty to ensure that all rates, fares, and charges are “just and reasonable” and to investigate the DCCA for breaching a duty to “represent, protect, and advance the interests of all consumers, including small businesses, of utility services”. The Molokai community asks that the August 14, 2008 rate increase approval be considered null and void.

The Molokai community asks that Governor Lingle, who oversees both the PUC and the DCCA, overturn the PUC’s rate approval and demand a fair and just rate review process. Molokai Ranch should be asking for a rate increase instead of the PUC, and the people of Molokai should be granted legal standing as a participant in the rate review process.

(photo by Trevor Atkins)