16 parties to object
in Waiahole Ditch case

The session is the last step before
the allocation is finalized

By Pat Omandam
Star-Bulletin

The state Commission on Water Resource Management exceeded its authority in its proposed allocation of water flowing through Waiahole Ditch.

That's the argument some parties in the controversial case were to use today to persuade the commission to change its July 15 decision.

Sixteen parties involved in the Waiahole Ditch contested-case hearing over the past 18 months will take part in daylong oral objections at the East-West Center, the last step before the water commission finalizes the flow of the ditch.

"What we're going to be presenting during our arguments are some explanations why we think the allocation that was made under the proposed decision with respect to Campbell Estate was wrong, and secondly, why we believe that the water commission exceeded its authority in its decision generally," said attorney Mike W. Gibson, who represents the Estate of James Campbell.

Of the 27 million gallons a day that flow through the ditch, the commission proposed sending 10.24 million gallons to Central/Leeward fields while returning 6 million gallons to Windward streams.

The remaining 10.76 million gallons would remain in the stream for future use by either side.

Campbell Estate had requested 12.09 million gallons a day for agricultural use but was granted only 3.65 million.

State Attorney General Margery Bronster, who represents the departments of Agriculture and Land and Natural Resources in the hearing, said in written objections filed this week that the commission can do no more than what is allowed by law.

"The proposed decision reflects an improper application of the public trust doctrine, a failure to properly balance the interests required to be weighed by the state water code, and an overreaching of the commission's authority under the state water code," Bronster said.

Despite years of planning by the state and country, the proposal will leave diversified agriculture on Leeward and Central fields high and dry because of the uncertainty of where the water will come from, she said.

"If that assurance is not forthcoming, it seems that the window of opportunity for the transition from sugar to diversified agriculture on Oahu's best agricultural lands will be lost," Bronster said.

The effect of the commission's proposal has already led Amfac/JMB, owner of the 25-mile ditch, to bow out of continued discussions. Attorney Alan M. Oshima, who represents Amfac in the case, reaffirmed the company's position that it won't take part in further Waiahole hearings because it can't afford to do so.

Amfac announced this week it had terminated its agreement with Leeward farmers because the decision would make continued operation of the turn-of-the-century ditch uneconomical for the company. The company warned its alternatives are to raise water rates or suspend operations.

The company said that a permanent decision will be made once the commission issues its final decision, expected later this year.

Rae M. Loui, the commission's deputy director, was on vacation and could not be reached for comment. Commissioners last month said the proposal was aimed at maximum use of the ditch water while protecting Hawaiian traditional and customary rights as well as Windward fisheries and ecosystems.

Commission Chairman Mike Wilson yesterday declined to comment on the case.

He wondered how Gov. Ben Cayetano's suggestion to buy the ditch would affect allocation of its water, which falls under the commission's jurisdiction.