Water Commission Updates: Deputy Appointed, but is This Progress, or Subterfuge?
by Wayne Tanaka, Chapter Director | Reading time: 7.5 minutes
Photo: Earthjustice
This month saw the long-awaited appointment of a permanent water deputy (pending approval by the Water Commission), coupled with a curve-ball decision by Governor Green that may delay the nomination of a commissioner versed in traditional Hawaiian water management for several months or longer.
First, the more hopeful news: Ciara Kahahane, deputy attorney general in the complex litigation division of the Attorney General’s office, was appointed by Governor Green to serve as the next permanent deputy director of the Commission on Water Resource Management. This position has been held by an interim deputy for nearly nine months, after the resignation of former deputy Kaleo Manuel.
Kahahane certainly has large shoes to fill. Her predecessor, former deputy Manuel, has been consistently regarded as the most effective deputy the Commission has ever had. Under his tenure, the Commission had began updating long-neglected instream flow standards under its own initiative for the first time in its history, and had resolved longstanding conflicts that ultimately restored flow to streams across the islands; such progress will benefit our ecosystem health, agricultural production, cultural practices, and other public interests for generations into the future.
His staff had also successfully designated Maui Komohana as a ground and surface water management area, which would have helped to address the hoarding and waste of water by “gentlemen farms” and other successors to the plantation industry, and prioritize public interests in water use from watershed protection, to affordable housing, to wildfire prevention. Notably, just months after this designation took place, wildfires ravaged Lahaina, due in part to invasive weeds that had proliferated after land dispossession and generations of corporate water hoarding dried out the former “Venice of the Pacific.”
This latter tragedy led to Manuel’s initial “reassignment” and later resignation after the former deputy was falsely accused by a gentlemen farm developer of preventing water from being used to fight the 2023 wildfires. In addition to supporting this “reassignment,” Governor Green would also temporarily roll back hard-fought water management protections for Maui Komohana, baselessly claiming that “People have been fighting against the release of water to fight fires.” (This would not be the only governmental attempt to exploit the Maui tragedy, to roll back water protections for the benefit of corporate interests - as reflected in a blistering Hawaiʻi Supreme Court opinion in April).
For her part, Kahahane does seem to show promise. Her education and background demonstrates an understanding of important cultural and contextual foundations that are essential to the proper administration of the public trust in water. This includes a high school diploma from Kamehameha Schools Maui, a bachelor’s degree in Hawaiian Studies from the University of Hawaiʻi, and a juris doctorate from the William S. Richardson School of Law - an institution established to ensure local attorneys understand our unique culture and values. She is also a former resident of Maui Komohana, where plantation diversions and continued water hoarding by developers and resorts have compromised the environmental, cultural, agricultural, and affordable housing interests of the region’s communities for generations. As a deputy attorney general, she has also worked on climate, land use, and Department of Hawaiian Home Lands issues, all also relevant to the administration of our public trust and state water code.
Whether Green’s pick of Kahahane reflects a true change of heart, and a new understanding of the importance of careful water management to the environmental, cultural, climate, and affordable housing issues the Governor claims are his priorities, will rest on a few other critical and long-needed actions from this administration.
Most pressing is the need to address the continued absence of a Native Hawaiian cultural expert on the Water Commission. Importantly, our public trust doctrine, water code, and ever-increasing need for sustainable and self-sufficient food and water systems all require the Commission to understand the unique water rights, and time-tested water management and agricultural practices, of Kānaka ʻŌiwi. Fortunately, the water code reserves one seat on the Commission to be held by a commissioner with “substantial experience or expertise in Native Hawaiian water resource management techniques and in traditional Hawaiian riparian usage.” Unfortunately, however, this seat has been empty since July, after the departure of celebrated commissioner Neil Hannahs.
Despite having been given a list of at least three extremely well-qualified nominees to replace Hannahs in February, Governor Green still has not selected his appointee - and it appears that his administration may now be trying to re-start the nomination process. This move, which would require a new nominating committee, a new round of applications by prospective nominees, and a new round of nominee application reviews and interviews, could add additional months before the Commission’s cultural expert seat is filled. In the meantime, the Commission will continue to render decisions without the benefit of a legally mandated cultural expert.
More information in the form of an educational film, as well as a call to action can be found at hawaiiwatercodefilm.com - please review and share!
Beyond the filling of the cultural expert seat, it also remains to be seen if the administration will properly support and prioritize critical water commission measures next legislative session. With the upcoming rebuilding of Lahaina and unprecedented levels of development planned for nearly every island, ensuring that the Commission has the capacity and political insulation to adequately manage our limited water resources is absolutely critical to the future of Hawai‘i nei.
Accordingly, a transformational allocation of additional resources for Water Commission staffing, studies, and operational expenses in the Governor’s executive budget is needed now more than ever before.
Moreover, measures to free the Commission and its staff from political interference, as reflected in the “Free the Water Commission” bill that died at the end of the last legislation, will also be critical to end the decades-long manipulation of the Water Commission’s work by some of the most powerful - and water hungry - corporations in our islands.
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In summary, while the latest appointment of a permanent deputy is cause for some optimism, whether and how our government will make the critically needed investments in water management by the Water Commission remains to be seen. Of course, with so many deep-pocket and politically powerful entities benefiting from the status quo of water hoarding and Commission inaction, citizen participation and engagement with leaders and policymakers - including yours - may be the only way to truly protect our precious wai, and by extension, the future of our islands.
Background: The Public Trust in Wai, the Water Code, and the Water Commission
Aquifers, streams, springs - all have been, and will continue to be, vitally important to life as we know it on our islands. The protection and rightful sharing of these precious public trust resources after generations of corporate monopolization and military contamination is therefore one of the greatest challenges we have to ensure a hopeful, resilient, and just future for ourselves, our keiki, and future generations.
The Commission on Water Resources Management is the primary agency tasked with upholding the public trust in water and the implementation of the water code. Under the code, the Commission is specifically tasked with developing and leading updates to the state Water Resource Protection Plan including estimated “sustainable yields” for water use; overseeing well installation and stream diversion applications; setting minimum flow standards for streams; and ensuring that all uses in designated water management areas are consistent with the public trust, and appropriately balance the public’s varied interests in water; among other responsibilities.
These responsibilities, however, have not been consistently or proactively fulfilled, with decades of inaction and political interference or neglect defining the Commission’s reputation for much of its existence.
For example, until former Deputy Kaleo Manuel’s tenure, instream flow standards - i.e. the minimum stream flows necessary to protect public trust purposes and reasonable beneficial instream uses of water - had never been meaningfully implemented without a community-initiated petition, and only after years or decades of costly litigation. In addition, the only water management areas that had been designated prior to Maui Komohana (also occurring under Deputy Manuel’s tenure) was for O‘ahu (excluding Wai‘anae), Moloka‘i, and Central Maui. Even today, the Commission continues to struggle with the administration and enforcement of its permits and orders, and hard-working staff are stretched thin with the stream and groundwater monitoring and research needed to update stream flow standards and sustainable yield estimates.
Clearly, more staff and significantly increased resources, committed and politically insulated leadership, educated and experienced commissioners with relevant knowledge - including and particularly with respect to time-tested and sustainable traditional Hawaiian water management practices - and support from other agencies and the community will be critical to the Commission’s fulfillment of its essential role in stewarding our precious wai, and by extension, the future of our islands.