Hawaii Senate lawmakers grilled William Bafour on Wednesday about water rights and what he’s learned from his decisions that were overturned by the Supreme Court.
The 83-year-old former sugar company executive has been nominated by Gov. David Ige to serve a four-year term on the state Water Commission, which handles disputes over water use. Balfour previously served on the panel from 2009 to 2014.
Balfour’s nomination was one of several considered Wednesday at the Capitol, but it was the most contentious.
Nearly 3,500 people signed a petition opposing Balfour’s nomination. Balfour spent decades working for American Factors (AMFAC), one of the Big Five commercial agriculture companies, and critics say he’s biased in favor of corporate interests.
But only a few of those opponents showed up to testify in person Wednesday, in contrast to the confirmation hearing for Carleton Ching last month, which resulted in the governor withdrawing his nomination to head the Board of Land and Natural Resources.
Sen. Laura Thielen, who leads the Water and Land Committee, disclosed that she served on the Water Commission alongside Balfour for two years and voted in accordance with him on two Maui water cases that were later overturned by the Supreme Court.
The organizations supporting Balfour included the Hawaii Crop Improvement Association, a trade group for local seed companies such as Balfour’s former employer Monsanto; the Building Industry Association, which lobbies in favor of the construction industry; and Land Use Research Foundation, a strong pro-development lobbying group. Supportive testimony largely spoke to Balfour’s character, expertise and dedication to public service.
Several environmental groups opposed Balfour, including the Conservation Council of Hawaii, Outdoor Circle and Sierra Club. Attorneys from the Native Hawaiian Legal Corporation argued that he’s not qualified and noted his 2010 vote to deny them the opportunity to challenge a stream diversion by a sugar company in East Maui — a decision later overturned by the state Supreme Court.
Balfour defended himself during the question-and-answer phase of the hearing, addressing Thielen’s statement that the Water Commission’s last five decisions were all overturned by the Supreme Court.
“We don’t strive to be contrary, we strive to try to make it right,” he said.
He also said he thinks taro farmers should have all the water they want and said he supports providing water to small farmers.
Balfour also said he didn’t know the answers to several questions, including how he voted on an issue related to the Keauhou aquifer that’s expected to reappear before the commission; what the Supreme Court said about a Maui case that was overturned; and what the constitution says about the hierarchy of water rights.
He said he relies on the opinions of the staff and attorney general to understand the law.
“The last five major decisions have been overturned by the Supreme Court,” Thielen responded. “Perhaps some independent thought on this might be helpful.”
Sen. Les Ihara pointed out that much of Balfour’s work with the sugar cane plantations occurred before the water code was written.
“It’s a whole new paradigm,” Ihara said. “It’s a different kind of hat.”
“I’ve been a good steward of water,” Balfour replied. “We’ve got to do better, absolutely, we’ve got to do better.”
While he said he hopes more of the commission decisions are affirmed by the courts in the future, he pointed out that the Supreme Court’s makeup can change too. “It’s not cut and dry,” he said.
The committee decided to postpone a vote on whether to recommend Balfour’s confirmation until Friday at 1:15 p.m. in Room 225, partly to give him time to brush up on the hierarchy of water uses.
The committee recommended University of Hawaii law school dean Denise Antolini be confirmed for a term ending June 30. Antolini is an expert in environmental law who had strong support from environmental groups.