Waiahole ruling
carries wide
implications

A UH gathering gauges the
landmark decision
on Windward water

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By Diana Leone
dleone@starbulletin.com

The Hawaii Supreme Court ruling that required returning a significant portion of Waiahole Ditch water to Windward Oahu streams is a landmark case for Hawaii that could have more wide-ranging effects, experts agreed recently.

"It's the most important decision on Hawaii's water trust ... the first one to bring it under one central beam," said Gilbert Coloma-Agaran, chairman of the Department of Land & Natural Resources and the Water Commission.

The case is still in process, waiting for the state Water Commission to decide how to resolve certain elements of it. But already more water is flowing in Waiahole, Waikane and Kahana streams than during the years Oahu Sugar Co. took the water to Leeward cane fields.

And the state Supreme Court is clear about recognizing water as a "public trust" asset.

In its August 2000 ruling, the court wrote that "the public trust (is) the right of the people to have the waters protected for their use."

That protection includes "comprehensive resource planning" and "provision for traditional and customary Hawaiian rights, wildlife, maintenance of ecological balance and scenic beauty."

Which means that Windward streams are as important as the interests of Leeward farmers who want to use diverted water for crops, said Joseph L. Sax, a public trust law expert at the Boalt Hall Law School in Berkeley, Calif.

Sax and Coloma-Agaran were among those who addressed a packed auditorium of state officials, attorneys, environmentalists and concerned residents on the University of Hawaii campus last week.

Sax said the Waiahole case follows in the footsteps of other key water rights cases on the mainland.

Before the early 1980s, laws tended to allow diversion of natural streams without a thought for the effects on the ecosystem, wildlife or indigenous peoples. The key considerations were promoting settlement and economic development for frontiersmen, he noted.

"The rules governing the use of water have always been in an evolving relationship with the values of the community," Sax said.

Recent cases have called on "public trust doctrine" to restore at least a semblance of the ecological balance before people came on the scene, said Jan Stevens, a retired California assistant attorney general who specialized in water law.

Coloma-Agaran said the Waiahole decision "makes more sense out of past (water rights) decisions" and "made it clear that the public trust doctrine is alive and well in Hawaii."