On Friday, April 17, Laura Thielen’s Senate Committee on Water and Land (WTL) reconvened its hearing to consider the controversial gubernatorial nomination of Bill Balfour, a former sugar plantation manager, to return to a seat on the crucial Commission on Water Resource Management. After asking the nominee—on Wednesday, April 15—to return with a solid understanding of the state water code and its hierarchies of use (which Balfour failed to demonstrate on the first day), the committee voted to advise the full senate to consent to the governor’s nomination.
Senators Russell Ruderman and Gil Riviere were not convinced by Balfour’s responses on Friday however, and voted against the recommendation of chair Thielen to advise and consent. Senator Maile Shimabukuro voted aye with reservations, while Senators Les Ihara, Brickwood Galuteria and Sam Slom voted with the chair.
“The obvious difference between Mr. Balfour’s prior nomination to the commission and this nomination is the Supreme Court decisions that reversed our own commission decisions,” commented Sen Thielen. “We need to see that the nominee has learned from that experience.”
Much like the governor’s nomination of developer-lobbyist Carleton Ching to head the Department of Land and Natural Resources (DLNR) in March, Governor David Ige’s nomination of former plantation manager Bill Balfour to sit on the commission that overseas and protects Hawaii’s water resources has been met with opposition from environmentalists and Native Hawaiians alike, and for many of the same reasons.
Like Ching, Balfour has a long history of supporting corporate interests above those of Native Hawaiians and other stakeholders to Hawaii’s precious watersheds, interests that are outlined in a public trust doctrine that governs hierarchies of water use. In fact, Balfour’s record is arguably worse, given that he sat on the Commission on Water Resource Management before and voted against interests outlined by this public trust doctrine, which are constitutionally guaranteed and written into the state’s Water Code. In fact, two major decisions by the water commission between 2010–14, while Balfour was serving on the commission, had to be reversed by the Hawaii Supreme Court because they were so blatantly wrong.
Throughout the hearing, Balfour demonstrated that, in the year since he left the commission, he has done little to rectify his own lack of understanding when it comes to public trust doctrine and the Water Code. This lack of understanding was the primary reason for the WTL to defer decision making until after a second hearing scheduled for Friday, April 17.
“A lot of people talked about the various competing uses for the streams, but that was actually one of the reasons that the court overturned the decision and said that there are various hierarchies of uses for the streams that have to be honored,” said Sen. Thielen. “There’s a concern that, if you’re not familiar with that [hierarchy] yourself, decisions you would make, or recommendations that you would make during deliberations of the water commission, may end up resulting in the case going back to court again. So one of the things that committee would like you to come back to talk with us on Friday with is a solid understanding of that hierarchy of water uses. What is going to be guiding you in your decision making if you’re confirmed?”
Balfour did not have a clear answer for this question during Wednesday’s proceedings. He and his supporters spoke of balanced interests and his skill as a plantation manager.
“I was a hard man to please,” recalled Balfour about his days as a luna for the Oahu Sugar Company. “I did not tolerate wasted water, because I know how precious a resource it is. That fresh water lens we have under our islands is the most valuable thing in all Hawaii. We can’t borrow water from another State. That lens is all we have.”
“Times have changed,” Marti Townsend, executive director of the Outdoor Circle. “Water is an essential resource and it has been historically mismanaged by its trustees. It’s time to adopt a more sustainable model for the management of water. Mr. Balfour represents the old ways. We’ve seen, through these Supreme Court decisions, that nominating someone who truly understands the commission’s role is essential.”
“Waiahole stream has dropped from 33 million gallons a day to three,” said John Reppun, executive director at Kualoa-Heeia Ecumenical Youth Project. “[Mr. Balfour’s supporters] talk about balance—here’s the balance: balance the last 100 years of divergence, where there were no EIS, there was no consultation with communities. The balance needs to be made back to what we once knew.”
“There is widespread concern on Kauai about the unfettered use of waters, island wide, by private and corporate interests,” said Phoebe Liu-Eng, a resident of Kauai who flew to Oahu to testify on Wednesday. “These interests are a great threat to the public’s water rights. Right now, we need champions of the public trust doctrine to sit on the water commission; people who will defend public access to waters. Mr. Balfour’s record on the commission shows a history of supporting corporate interests. This is an issue of great public concern, and yet we heard only a week ago of Mr. Balfour’s nomination. This is not an issue that of compromise and balance. This is an issue of protecting the public’s right to an invaluable resource: water.”
Twenty organizations came out in support of Balfour’s nomination, including the DLNR and the State Department of Agriculture. Also included in the list of supporting organizations: the Hawaii Crop Improvement Association, the Hawaii Farm Bureau, the Building Industry Association of Hawaii, Hawaii’s Agricultural Partnerships, Cyanotech Corporation, the International Longshore and Warehouse Union Local 142, the Hawaii Operating Engineers Industry Stabilization Fund, Larry Jefts Farms, Rosehill & Associates, the Hunt Development Group, the Hawaii Forest Industry Association, the Hawaii Hunting Association, the Maui County Farm Bureau, the Chamber of Commerce of Hawaii, and the Land Use Research Foundation.
Seventeen organizations came out in opposition, including GMO Free Maui, Hoomana Pono LLC, Na Moku O Puni O Koolau Hui, Hawaii’s Thousand Friends, the University of Hawaii Biology Alumni Association, the Haiku Aina Permaculture Initiative, Roth Ecological Design International, the Conservation Council of Hawaii, the Sierra Club and Surfrider Foundation’s Hawaii chapters, the Outdoor Circle and the Native Hawaiian Legal Corporation (NHLC).
“Our opposition to Mr. Balfour’s nomination is based not on speculation, but from direct experience,” said Camille Kalama, a staff attorney for NHLC. “We have been present at the water commission’s public hearings since 2009 and his votes, as we’ve now found, were not just votes that our clients and our organization disagreed with, but were votes that the appellant courts also determined were not in compliance with the law and did not uphold the constitutional rights of our clients. That’s an important fact, not just for our clients, but for the state as a whole. The delay and the time it took to correct those decisions has now cost everyone a great deal of resources.
“Every member of the commission must have substantial experience in water resource management,” she continued. “While he has substantial experience as a commercial water user, that is different from understanding the legal burdens and duties of the commission in managing water as a whole in the best interest of the public trust. We do not believe, based on our past experience, that Mr. Balfour has demonstrated that he can consider his interests working with sugar plantations over the years, and also understand those legal burdens and apply them properly.”
“As a matter of conscience we have to raise this issue because the commission in the past had members who appear to have experience in water use, but it’s often times lost on the Senate when scrutinizing the qualifications that the statute requires, which is ‘substantial water management experience.’ As Camille had said, that entails a whole range of issues and principles other than commercial use,” said Alan Murakami, the director of community engagement for NHLC. “The key one is the public trust doctrine that governs water use and that holds an executive loyalty to the public’s rights as protected by the constitution.”
According to Murakami, when the East Maui streams came before the water commission in 2010, scientists and DLNR staff members from the Division of Aquatic Resources counseled against establishing a seasonal inflow standard for the stream—which means letting all the water from the stream be diverted during the hot months of the year. This seasonal diversion severely impacts the life-cycles of stream fauna that depend on a consistent flow of water to reproduce successfully.
Despite those undisputed scientific facts, Balfour made the motion to establish a seasonal flow, essentially at the request of Alexander & Baldwin and its subsidiary East Maui Irrigation Company, directly opposed to public interests. Additionally, and contrary to the constitutional guarantees, additional options for the companies’ interests were not explored, at the expense of the people who depend on the stream to live.
“What we saw in this case was an unspecified accommodation for private water use with no delineation of the rational for why that should be exempt from the explicit public trust duty to protect stream resources, in part for the benefit of clients like ours, who are trying to continue Hawaiian traditions and customs through things like taro growing and through stream gathering,” continued Murakami. “Many of our clients are not rich; they depend on these resources every day. These are the people who are generally not heard in these hall, and they’re the ones who are most affected by these decisions. We’re here to give voice to that concern.”
At least five major water commission decisions in the past 15 years that have been reversed by the Hawaii Supreme Court, costing the state potentially millions of dollars.
“These are really weighty and sometimes technical matters, but they’re very important and they have to be clearly understood and diligently applied by our public trustees,” said Murakami. “So when cases are overturned by the Supreme Court, that clearly is not happening. There’s no accountability for the consequences to this state. I think the public should demand accountability for these kinds of decisions. So I urge the senate to scrutinize this appointment. We believe it calls into question your central role, which is to only confirm nominees that meet the statutory qualifications.”
Balfour explained the Supreme Court-overturned commission decisions by discussing the process the commission went through to reach the decision, including consultations with the commission’s staff, who are charged with investigating the issues the commission faces and advising its members, with the attorney general and with stakeholders. “That’s basically how we reached our decisions but, obviously, if the Supreme Court says it’s not a good enough decision, the it’s incumbent on us to make sure we get it right the second time,” said Balfour.
“Where did we screw up on East Maui case?” asked Sen. Thielen, who also sat on the water commission during the case, and admitted she voted the same way Balfour did. “With the benefit of hindsight, where, in your mind, did we go wrong?”
“I wasn’t on the commission when the Supreme Court returned its decision to overturn ours, so I’m not sure where exactly it was that we screwed up, according to the court,” was Balfour’s only response on Wednesday. “I would rely on the attorney general to fill me in on that.”
“I think we would all rely on the advise of the attorney general but, as you know, we did rely on the attorney general in those cases that were overturned, and he was wrong in at least some of those last five overturned decisions,” Thielen responded. “So I think we really need some independent thinking to go on at the commission level.”
Another concern voiced during the hearing is Balfour’s apparent reluctance to admit that climate change is being caused by human habits, and that a major climate related disaster will occur if those habits aren’t changed.
“During the selection committee process for this nomination, apparently Mr. Balfour indicated that he was not sure that climate change was actually happening or that it was being caused by human activity; that it was God’s will,” said Marjorie Ziegler of Conservation Council of Hawaii. “People are entitled to their opinions, but the water commission has a significant role to play in how we are going to mitigate climate change with regard to water resources. We’re already seeing its effects with the droughts we’ve been having, and to appoint a climate change denier to the commission is not a good idea.”
Balfour was questioned directly about this issue by Senator Les Ihara. Balfour’s response was that he agrees that climate change is happening, sort of: “It’s happening all the time,” said Balfour. “The climate changes all the time. Man is certainly involved and we definitely need to cut down on fossil fuels. But I think the jury is still out on how bad it is.”
But, despite these concerns, Sen. Thielen said she believed Balfour had learned his lesson with regard to public trust doctrine. With a promise from Balfour that he would do better at protecting public water interests and upholding the water code’s hierarchy in his second term, Sen. Thielen said she was satisfied that Balfour is qualified for the position. The nomination will go before the full senate for a vote next week.