HC Representative to the East Maui Community Water Authority Board

BENEFICIARY CONSULTATION MEETING REGARDING THE HHC REPRESENTATIVE TO THE EAST MAUI COMMUNITY WATER AUTHORITY BOARD

 

            DHHL will invite all Maui beneficiaries (lessees and applicants who reside on Maui) to attend a virtual Beneficiary Consultation meeting to discuss issues related to selecting the HHC representative to serve on the East Maui Community Water Board Authority.  When invitation postcards are sent to Maui beneficiaries, the virtual Beneficiary Consultation meeting information will also be posted here.

 

PURPOSE OF BENEFICIARY CONSULTATION MEETING:

DHHL will consult beneficiaries on the qualifications, reporting requirements, and selection process for the HHC representative that would serve on the East Maui Community Water Board Authority. 

At its June 2023 meeting, the Hawaiian Homes Commission approved Dr. Jonathan Scheuer, DHHL’s Water Policy Consultant, to serve as the HHC representative on the East Maui Community Water Authority Board.  The terms for the initial members of the Authority are two-years, three years, four years and five years.  We do not know the term that would be assigned to Dr. Scheuer’s appointment, but we need to make sure that when there is a vacancy, DHHL, the HHC, and Maui beneficiaries know how nominees would be solicited, the process of selection, and how beneficiaries would like to be involved in the process.

            Specifically, beneficiaries will be asked for their input on:

  1. What are minimum qualifications and experience that a nominee should possess?
  2. What are ideal qualifications and experience that a nominee should possess?
  3. How and how often (when) should the HHC representative inform the HHC members and DHHL beneficiaries of pending actions before the East Maui Community Water Authority? Ideally, if pending actions are communicated to the HHC prior to decision-making, staff and the HHC could provide guidance on the issue that will be voted on and  how the representative should vote.  If this is not possible, what kind of communication should be required between the HHC representative and the HHC and Maui beneficiaries?
  4. Comments on the selection process, including:
    1. How should DHHL solicit potential nominees when a seat is vacant?
    2. When should DHHL consult with beneficiaries and for what purpose(s)? Would DHHL conduct a BC meeting to gather beneficiary input on each nominee?
    3. How should nominees be presented to the HHC? Should all nominees be presented with a listing of comments raised by beneficiaries, or should one recommended nominee be presented with comments on why that nominee was recommended?

BENEFICIARY CONSULTATION REPORT AND RECOMMENDATIONS

After the Beneficiary Consultation meeting, the Planning Office would prepare and submit a Beneficiary Consultation Report to the HHC at its September 2023 meeting.  The Report would identify the input received at the meeting regarding minimum and ideal qualifications and experience that a nominee should possess.  It would recommend how and when the HHC representative should inform the HHC members and DHHL beneficiaries of pending actions before the Authority, and it would recommend how nominees should be presented to the HHC.  Report recommendations would be submitted to the HHC for approval.

 

IMPLEMENTATION OF RECOMMENDATIONS

The recommendations approved by the HHC would be implemented in advance of Dr. Scheuer’s term expiring, to ensure continued DHHL representation at all East Maui Community Water Authority Board meetings.

BACKGROUND INFORMATION ON THE EMI SYSTEM AND MAUI’S CHARTER AMENDMENT THAT ESTABLISHED THE EAST MAUI COMMUNITY WATER AUTHORITY BOARD

The East Maui Irrigation System (EMI) diverted an average of 165 million gallons a day (mgd), and up to 450 mgd, into a 75-mile long network that spans across East, Upcountry, and Central Maui. Historically, this system was owned by Alexander & Baldwin (A&B). In late 2018, A&B sold 41,000 acres of land to Mahi Pono, a farming venture between Pomona Farming and Canada’s Public Sector Pension Investment Board. Mahi Pono then announced plans for the creation of a joint venture to privately own and manage the EMI System.  They would seek approval of a water license from the State Board of Land and Natural Resources (BLNR) to utilize water from the EMI System for their agricultural enterprises planned for the 41,000 acres.  

In early 2022, the Maui County Council approved a County Charter amendment for consideration in the 2022 General Election related to EMI ownership and operation. The charter amendment would create a new County board, the East Maui Community Water Authority, to seek to own and operate the EMI System rather than have the system be privately owned and operated by Mahi Pono. DHHL was requested to and provided presentations and information on the interests of the HHC, DHHL and beneficiaries in EMI related matters.  

On November 9, 2022, Maui County residents ratified the charter amendment to establish the creation of the East Maui Community Water Authority. The authority will be led by an 11-member board. The charter amendment also included language to set-aside one seat on the board for a representative of the Hawaiian Homes Commission to better ensure that DHHL water needs are considered by this body. Section 8-19.2(1) of the Maui County Charter describes the qualifications for the seat representing the Hawaiian Homes Commission: 

“The three remaining members must be appointed by the counsel based on the following requirements…one member who is a representative of the Hawaiian Homes Commission, and is recommended by the Department of Hawaiian Home Lands. If the Department of Hawaiian Home Lands fails to recommend a member within thirty days after receiving notice of a vacancy, the council will appoint a Hawaiian Home Lands representative as member.”

The East Maui Community Water Authority would seek water licenses and other dispositions from BLNR separate from  Mahi Pono.  

The addition of an HHC and / or beneficiary representative to the water commission and county water boards has been a repeated request of beneficiaries and the HHC over many years, and has been the subject of numerous legislative proposals at the State and County levels. This action is the first action taken by a county to incorporate HHC representation in such an entity. 

 

DHHL’s Interests in the EMI System

Non-Potable Water for Pūlehunui and Kēōkea-Waiohuli

On May 30, 2019, the Hawaiian Homes Commission unanimously voted to authorize the Chairman to formally request a water reservation from the Commission on Water Resource Management (CWRM) for the utilization of Hawaiian Home Lands in Kēōkea, Waiohuli, and Pūlehunui from the EMI system (Exhibit A). DHHL has been seeking CWRM approval of a water reservation request from the EMI system in the total amount of 11.455 million gallons per day (MGD) of non-potable water (1.3275 MGD for DHHL Pūlehunui’s lands and 9.85 MGD for DHHL Kēōkea-Waiohuli’s lands).

On November 15, 2022, CWRM deferred the reservation request to a later date.  CWRM approval of the DHHL water reservation amount is still pending and is anticipated to be further considered by CWRM in the next several months.

Adequate Streamflow for Traditional and Customary Practices

DHHL beneficiaries also depend upon water from the streams that are diverted to the EMI System for traditional and customary practices. DHHL has an interest in ensuring that there is sufficient water in those streams to allow its beneficiaries to continue their traditional and customary practices.

Revenue from Water Leases and Licenses

Provisions in the Hawaiian Homes Commission Act (HHCA) and the Hawaiʻi State Constitution provide for revenue related to water leases and licenses. A portion of Article XII, Section 1 of the Hawaiʻi State Constitution states that: “Thirty percent of the state receipts derived from the leasing of cultivated sugarcane lands under any provision of law or from water licenses shall be transferred to the native Hawaiian rehabilitation fund, section 213 of the Hawaiian Homes Commission Act, 1920, for the purposes enumerated in that section.”

 

GOVERNMENT AGENCY AUTHORITIES AND JURISDICTION OVER THE EMI SYSTEM:

There are three government bodies with significant impact and responsibility over water related to the East Maui Irrigation system:

 

  1. CWRM has final jurisdiction over water allocation and is responsible for protecting instream flow standards in east Maui. CWRM decides how much water can be diverted from the streams. Their decision is required by law to first provide for the public trust uses of water, prior to allowing water to be used off stream for nonpublic trust purposes. 
  2. BLNR has the power to issue a long-term lease to any waters CWRM has authorized to be diverted. If they choose to lease water, they have certain conditions that must be met, including working with DHHL to ensure adequate reservations of water for homesteading purposes are made. HRS Chapter 171-58 (g) protects DHHL’s water needs. BLNR also has the power to not lease the water and instead, work with the Governor’s Office to create an executive order to set aside land to another government entity.
  3. The new East Maui Community Water Authority Board was created to take control over all portions of the EMI System by setting up a County entity to manage and operate the system. Whoever manages and operates the EMI System does not have the power to change the allocations that CWRM has made. However, they will have significant power and influence over how water that is available for diversion is distributed, which system improvements and efficiencies to invest in, and which areas to extend water service to.

 

It is significant that the HHC participate in the East Maui Community Water Authority by putting forth a representative that will thoroughly understand and assert the Department’s interests in water from the EMI system and the long-term health of the streams that provide water into the system.

 

COMMUNICATION AND STATUS REGARDING THE HHC REPRESENTATIVE ON THE EAST MAUI COMMUNITY WATER AUTHORITY BOARD

 

DHHL received a letter dated January 9, 2023 from the Maui County Council requesting DHHL’s recommendation for the HHC representative on the East Maui Community Water Authority Board. Staff consulted with the Acting Chairman and submitted Dr. Jonathan Scheuer, DHHL’s Water Policy Consultant, to serve as the HHC representative on the East Maui Community Water Authority Board. Subsequently, on June 12, 2023, DHHL rescinded that recommendation and instead submitted Dwight Burns, Maui Island Representative for the Operating Engineers Hawaii Stabilization Fund, to serve as the HHC representative on the East Maui Community Water Authority Board. In both recommendations, DHHL erred by not seeking HHC approval on either nominee. In recognition of this error, DHHL withdrew the last nominee from consideration on June 18, 2023.

At recent Maui County Council Committee meetings regarding the appointment of members to the East Maui Water Authority Board held on June 13 and June 19, there were several DHHL beneficiaries that testified on the appointment of the Hawaiian Homes Commission representative to the East Maui Board. Their testimonies expressed strong sentiment that (1) the HHC should give final approval to its representative on the East Maui Board and (2) beneficiaries would like to be consulted prior to the HHC’s final approval of its representative.

Based on DHHL beneficiary testimony submitted to the Maui County Council Committee on this matter, DHHL agrees that there is a need to establish a transparent and inclusive process and procedure to identify and select a HHC representative on the East Maui Water Authority Board.

Staff recommended that a beneficiary consultation meeting be conducted to provide beneficiary feedback and input into the HHC representative selection process and procedure. Beneficiaries would be consulted on the following:

  1. Identification of criteria that establish minimum and ideal qualifications and experience that a nominee should possess;
  2. Kuleana of the HHC representative to inform the HHC members and DHHL beneficiaries of pending actions before the East Maui Community Water Authority;
  3. An overall selection process and procedure that will broadly include:
    1. A process in which DHHL solicits interest from potential nominees when the seat for the HHC representative will become vacant;
    2. When beneficiary consultation should be held in the selection process and the type of input DHHL should seek during those consultations;
    3. When recommendation of a nominee should be brought to the HHC for approval.

 

One-time Exception to Appoint a Nominee Prior to Development of Nominee Selection Process and Procedure

Section 8-19.2 of the Maui County Charter states that should DHHL not forward the HHC representative recommendation to the Council within 30-days, then the Maui County Council can make the selection of the HHC representative. The initial written notice from the County Council to DHHL requesting a recommendation for a HHC representative to serve on the board was received in January 2023. DHHL also withdrew its most recent nominee for reasons explained above. Despite this sequence of events, at the June 19, 2023 Maui County Council Committee meeting, several Councilmembers stated that they would respect the HHC process to approve its representative to the East Maui Community Water Authority.

There may be  an additional complication from a separate charter amendment, which was also approved by the voters in November 2022. Now incorporated as Appendix IV of the Charter, an “Independent Nomination Board” has been established which is responsible to “recruit, evaluate, and nominate individuals to serve on boards and commissions established by this charter and by ordinance, and such other offices as shall be specified in this charter.” It becomes effective as of July 1, 2023. After July 1, the new board will have to be seated, and would then have to consider if it would submit any names to the Council for the HHC representative position.   

As stated earlier, this is the first instance in which a County has specified a seat on a water-related board to specifically represent the interests of the HHC, and there are no established procedures within the DHHL to address this. In addition, the relationship between the County Council and the Independent Nomination Board as it applies to this particular seat is unclear, as is the speed in which either party may take action on an HHC nominee. An optimistic timeline to conduct beneficiary consultation on the new process, to have the new process  approved by the commission, and then to apply that new process in order to  recommend a nominee, is 4 to 6 months.

To seek to avoid the risk of a prolonged period without HHC representation, staff recommended that the HHC approve either Dr. Jonathan Scheuer or Mr. Dwight Burns as its initial representative. A decision at the June 2023 HHC meeting ensured that the HHC would have a representative on the East Maui Community Water Authority Board as it begins its work. It was noted that  while beneficiaries would be able to testify on this matter at the June HHC meeting, the decision on the initial representative would be made without going through the formal beneficiary consultation process.

 

Hawaiian Homes Commission Action at its June 26, 2023 Meeting

The Hawaiian Homes Commission decided to submit Dr. Scheuer as the initial HHC representative on the East Maui Community Authority Board.  The Commission also directed the Planning Office to commence beneficiary consultation with Maui beneficiaries to determine the criteria, kuleana, and process to select a HHC representative when Dr. Scheuer’s term expires.