State high court
asked to return
Waiahole water
to streams

Thousand Friends seeks an
injunction against the
water commission

By Pat Omandam
Star-Bulletin

The dispute over Waiahole Ditch water resurfaced today before the Hawaii Supreme Court, where attorneys from both sides of the controversial water use issue are asking the justices to review a decision made nearly two years ago by the state Commission on Water Resource Management.

On Dec. 24, 1997, the commission issued its final allocation of the 27 million gallons of water per day that flow through the 83-year-old ditch. The decision gave Leeward agriculture and other interests direct access to 15.61 million gallons per day, while 11.39 million gallons went to the Windward side.

During oral arguments today, attorneys were expected to argue various aspects of the commission's decision, including how it applies to public trust doctrine and the state water code.

This morning, attorney James Paul, representing Hawaii's Thousand Friends, argued the commission ignored scientific testimony that any reduction in the flows of Waiahole and Waikane Streams -- the natural outlet for the ditch water -- would destroy native populations of fish in Kaneohe Bay.

He said the commission, in its decision, shifted the burden of proof needed to receive ditch water from the commission to the applicants, making it harder for Windward residents to prove the water is needed.

Paul added 53 million gallons per day is currently available from the Pearl Harbor aquifer but applicants haven't used it because it is more expensive that ditch water.

Hawaii's Thousand Friends seeks an injunction against the commission's decision and the return of all water to Windward streams until all permit applicants can show the diversion will not harm Oahu's natural resources.

But attorney Gino Gabrio, representing the Land Use Research Foundation, told justices the foundation's quarrel is not with the commission's decision but with the "extremist views" of Windward folks who want the ditch water returned.

Gabrio said Windward proponents are over-emphasizing how much water is needed to preserve these streams, and that the state water code strikes a balance for conservation and agriculture. He said the public trust doctrine -- which requires responsible resource management for future generations -- ensures all of the interests of the people of Hawaii are considered.

Attorney Benjamin Kudo representing Kamehameha Schools/Bishop Estate argued the public trust doctrine does not apply to ground water, such as the ditch water, because part of that water flows through private lands and therefore is a private resource.

The justices are expected to issue a decision on the appeal at a later date.