If public meeting laws were applied to the scientific investigations of a board trying make a determination on public policy, they would create “unworkable and absurd conditions.”
So argues the state Commission on Water Resource Management in its response to an allegation it violated the Sunshine Law during site visits to West Hawaii this fall. The commission is poised to determine whether to pursue a state water management area designation for the Keauhou aquifer. It faces a challenge from the Hawaii Leeward Planning Conference alleging it violated Sunshine laws during non-public visits to county well sites and Kalaoko-Honokohau National Historic Park in September and October.
But the commission argued the state Water Code calls for an investigative process that is exempt from open meeting laws.
“HLPC seeks to convert every step into an occasion for public testimony,” CWRM wrote in a Nov. 10 response acquired by West Hawaii Today in a public records request. “That is not the process the Legislature created in the Water Code. It is unworkable.”
Given the backlog, it may be more than a year before the state Office of Information Practices renders an opinion on the complaint, said Jennifer Brooks, a staff attorney with OIP. However, in cases of high public interest, the OIP director has the power to advance a complaint more quickly, Brooks said.
“I would say there is a high public interest in this case and it maybe bumped forward for that reason,” she said.
Brooks said she could not comment on the merits of the complaint until an opinion has been rendered.
On Sept. 17 and Oct. 9, the commission visited county wells, anchialine ponds and traditional sites, and listened to scheduled presentations from both sides of the issue. In its response to the allegation that these meetings should have been public, CWRM stressed that public testimony will be taken at the Dec. 10 meeting in Kailua-Kona when the commission will decide whether to pursue the designation process. After the December meeting, the commission is required to make a final decision within 90 days.
If the board moves ahead with the designation process, an additional public hearing will be held in Keauhou sometime in early 2015. There will be yet another opportunity for testimony when the commission makes its final decision.
CWRM argued that the process provides ample opportunity for all sides to be heard.
“The HLPC would usurp the process by changing the investigation into a battleground of public testimony before the preliminary staff work is done,” the commission wrote in its response. “The Water Code created its own long, complex and special process that provides for extensive public testimony — but not at this early stage.”
The National Park Service petitioned last fall to put the aquifer under control of the state Water Commission, saying the oversight is needed to safeguard water so it doesn’t drop to levels that could harm the park’s ecosystems. Park officials say they are mandated to be proactive but do not claim that damages are happening yet.
With current pumping at about 40 percent of sustained yield, opponents of the designation say the proposal is unneeded bureaucracy.
If the aquifer does become a state water management area, all existing users except individual households will have to obtain a permit from the commission to continue their water use. All future applications for pumping will also have to be reviewed by the commission and will be subject to a public process where the national park and anyone else may weigh in on the application.
Developers, county officials and other interests worry the process of obtaining water permits in the future could be swamped with expensive contested cases as dueling consultants make cases for and against something that is going to be very difficult to define: whether additional pumping will damage ecosystems and fragile species that rely on the water within the park.
Park consultants, meanwhile, call this viewpoint alarmist, saying Maui County was actually able to increase the number of permits it issued by enacting voluntary water conservation measures after the Iao aquifer was placed under state management.
Opponents of the designation meanwhile have pressed for another public meeting in Kona, saying the National Park Service was allotted much more time to make its case than were critics of the proposal. A recent Hawaii County Department of Water Supply letter to CWRM said the county didn’t have enough time at previous meetings to present all of its technical and scientific information.
CWRM has agreed to provide more time for testimony at its Nov. 19 meeting on Oahu, and has requested more information from the county, but that additional time on another island has left some opponents unsatisified.