The Hawai`i state Commission on Water Resource Management issued a split decision in the latest development in the landmark water rights litigation over the stream flows diverted by the Waiahole Ditch System on O`ahu. Four members of the Commission, led by Commissioner Lawrence Miike, voted to largely maintain the allocations the Commission approved in its original 1997 decision, including extensive diversions for Leeward uses, such as corporate agriculture and golf courses. However, two Commissioners -- Peter Young, Commission Chair and Director of the state Department of Land and Natural Resources, and Chiyome Fukino, state Department of Health Director -- issued a forceful dissent criticizing the majority for failing to give more protection to Windward stream resources and uses.
Specifically, the dissent challenged the majority's refusal to include almost 2.5 million gallons a day ("mgd") of unallocated water in the instream flow standard, which is the minimum flow necessary to support instream uses such as ecological protection, Hawaiian practices, recreation, and scenic values. The dissent criticized the majority for treating this water "as some commodity awaiting future permitting to some offstream use." Quoting the Hawai`i Supreme Court's decisions from earlier phases of this case, the dissent urged that this "unpermitted" water be included in the instream flow standard to provide "margins of safety under our public trust duties and the precautionary principle."
Young and Fukino also objected to the issuance of a water use permit to the now-defunct golf course Pu`u Makakilo Inc. ("PMI"), which has not used any water from the Waiahole Ditch in nearly two years. The dissent criticized the majority for ignoring "changed circumstances," including "PMI's razing of the golf clubhouse, PMI's public statement that the property is unsuitable for use as a golf course, and the contrast between usage under PMI's interim permit and its apparent need."
This decision is the Commission's third attempt to resolve this case after twice being reversed by the Hawai`i Supreme Court for not adequately protecting Windward streams. The case is now in its 13th year, but has developed an additional subplot of the Commission defending its original 1997 allocation in the face of the Court's repeated reversals. The author of the majority decision, Commissioner Miike, participated in the original Commission hearings, then served as the Hearing Officer in the second and third round of hearings. He also drafted the Commission's second decision in 2001, after which he published a book on Hawai`i water law defending the decision, which was on appeal at that time.
The dissent marks the first time that the Commission has split over any decision in this case. Such controversy has rarely, if ever, occurred on the Commission, which over the years has drawn fire from public trust advocates as well as the Hawai`i Supreme Court for its lack of initiative and vision. Now, two Commissioners have joined the chorus of criticism.
"We're disappointed that after 13 years and two appeals to the Hawai`i Supreme Court, a majority of the Water Commission still refuses to give our streams the protection that the law requires," said Waiahole taro farmer Charlie Reppun. "Regrettably, the problem appears to be less about the needs of streams and rural communities and more about the Commission justifying itself against the Court. We're grateful that Chair Young and Commissioner Fukino embrace their public trust duties and the Court's exhortations and seek to fulfill both the letter and spirit of our laws," explained Reppun.
"Our state Water Code mandates that this Commission restore streams where practicable, not treat our public trust resources as convenient reservoirs for speculators who are banking their land for future development," pointed out Earthjustice attorney Kapua Sproat. "This is about far more than the streams and communities affected by the Waiahole Ditch. This is a quality of life issue that will shape Hawai`i's future. Will we have streams and other public trust resources for local people to enjoy? Or will the beauty of our islands and quality of life be lost forever?"
BRIEF OVERVIEW OF THE WAIAHOLE LITIGATION
The Waiahole case arose from the efforts of small family farmers and Native Hawaiians, led by citizen groups Hakipu`u `Ohana, Ka Lahui Hawai`i, Kahalu`u Neighborhood Board, Makawai Stream Restoration Alliance and a coalition of supporters (collectively the "Windward Parties"), to restore streams originally diverted by Central O`ahu sugar plantations. O`ahu Sugar's 1993 announcement of its closure in 1995 sparked a monumental legal battle over the diverted water -- in the words of the Hawai`i Supreme Court, a case of "unprecedented size, duration, and complexity." The Windward Parties sought to return diverted flows to the streams to restore native stream life, such as `o`opu, `öpae and hïhïwai; protect traditional and customary Native Hawaiian practices; support the productivity of the Kane`ohe Bay estuary; and preserve traditional small family farming, including taro cultivation. But large scale agricultural and development interests, including Campbell Estate, Robinson Estate, Kamehameha Schools, Dole/Castle & Cooke, and others, joined by the State, pushed to continue the flow of Windward water to leeward lands to subsidize golf course irrigation, short-term corporate agriculture, and housing development.
After seven months of administrative hearings, the Water Commission issued its first decision in 1997, which both the Windward and Leeward parties appealed to the Hawai`i Supreme Court. The Windward Parties argued that not enough water had been restored to the streams, while Leeward interests complained that too much water had been returned. In August 2000, the Hawai`i Supreme Court issued a landmark decision in the first appeal. Although the Court acknowledged the Commission's efforts at stream restoration, it vacated the Commission's decision and sent the case back to the Commission.
After holding more hearings, the Commission issued a second decision in December 2001, which the Windward Parties again appealed. The Court ruled that much of the decision failed to comply with the State Water Code and public trust principles, and the Commission had failed to make sufficient findings, based on evidence in the record, to support its various rulings. It ordered the Commission to reconsider the amount of water the Windward streams need to support native stream life and community uses, vacated permits the Commission had issued to Leeward interests, and ordered the Commission to make a new decision on the permits that followed from the evidence.
Yesterday's decision again divided the water between Windward streams and Leeward users. Out of an annual average flow in the ditch system of 27 mgd, 12 mgd was split between 4 different Windward streams: Waiahole, Waianu, Waikane and Kahana. 12.57 mgd was permitted for immediate offstream use in Leeward O`ahu. The remaining flow (2.43 mgd) was temporarily restored to the streams, but is available for future agricultural or other off-stream uses.
This decision is notable not just because the Commission again gave more water to Leeward users than it restored to Windward streams, but also because it essentially rehashed the Commission's 2001 decision. The majority granted a water use permit to every applicant that sought one, including over 2 mgd to the operator of the Waiahole Ditch (Agribusiness Development Corporation) for waste that leaks out of the system, and almost 1 mgd to PMI, a defunct golf course whose club house was torn down, whose own executive conceded that "[t]he area isn't suitable for a golf course" and who hasn't used water from the Waiahole ditch for nearly two years.
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