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Waiahole water
might be reallocated

The Hawaii Supreme Court
rules that Leeward Oahu
interests may have been
unfairly favored

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By Pat Omandam
Star-Bulletin

Protection of Hawaii's natural resources gained some strong legal footing after the Hawaii Supreme Court told the state Commission on Water Resource Management to reassess its December 1997 decision that allocated water from the hotly contested Waiahole Ditch.

The high court's opinion yesterday resulted from an appeal by advocates for Windward Oahu farmers and others who questioned the distribution of the water that originates from Waiahole-Waikane Valley.

The justices, in a 166-page opinion, told the commission to review its findings and to strongly consider the preservation and protection of natural resources as called for under the public trust doctrine, said attorney James Paul, who represents Hawaii's Thousand Friends in the appeal.

"This decision, I think, will be described as one of the most significant decisions in this country regarding public trust doctrine," Paul said. "It is an eloquent embrace, I think, of that doctrine."

Paul said the opinion tells the commission, in some respects, that it inadequately protected Windward streams and must go back and address issues raised by the justices. The ruling gives the commission strong guidelines that suggest more water needs to be added to the streams, he said.

Aulani Wilhelm, spokeswoman for the state Department of Land and Natural Resources, said commission deputy director Linnel T. Nishioka was reviewing the court opinion last night while she traveled to the Big Island.

The commission has a regularly scheduled meeting at 9 a.m. today in Honokaa, she said.

The 85-year-old ditch was built in Waiahole Valley by Oahu Sugar Co. and was used to irrigate Central Oahu cane fields until the company shut down in 1995. Several parties then clamored for use of the 27 million gallons of water per day that flow through the ditch, prompting the commission, which regulates water resources based on the state water code, to hold a lengthy, contested case hearing on the distribution of the flow.

The commission rendered its final water allocation in December 1997, giving Leeward agriculture and other interests access to 15.61 million gallons per day, while 11.39 million was to stay on the Windward side.

Windward interests appealed the decision to the Hawaii Supreme Court, which heard arguments in December 1999.

In the high court's opinion, justices expressed "serious misgivings" in the contested case process that "strongly suggest that improper considerations tipped the scales (in favor of the Leeward parties) in this difficult and hotly disputed case."

As a result, the justices sent the decision back to the commission, asking it reassess seven issues raised and do what it needs to make them consistent with the court opinion.

Issues under question include: setting an interim stream flow for Windward streams based on the best information available; the merits of a petition to change the stream flow for Waikane Stream; the actual need for 2,500 gallons per acre per day over all acres of diversified agriculture in Central Oahu; the practical use of ground water for some users of ditch water; and the merits of requiring a permit for "ditch water losses."

Attorney Paul Achitoff of EarthJustice Legal Defense Fund, who represents the Windward parties, said the court opinion is a win for the Windward parties and is in the best public interest.

"It's a win for the public interest against the private interest that want water from streams for their own private profits," Achitoff said.