The Waiahole contested case hearing is in the hands of the members of the state Commission on Water Resource Management. The last testimony has been received. Attorneys for the 23 parties are preparing their final arguments and briefs. It is possible that a decision may be issued before the end of the year.
In arriving at the decision, the commissioners are to be guided by the preponderance of evidence presented. That is, they are not to follow their hearts, nor are they to grasp at any straws thrown their way by parties hard-pressed to make their case otherwise. The commission’s charge is to look at the reasonableness of the claims made and the strength of the arguments presented, and then, in light of the commission’s statutory and constitutional mandate, to decide how the waters are to be divided — or even if they are to be divided.
The issues are complex, ranging from economic to environmental to social. While it is not possible to address them all with anything approaching the full ventilation they received in the course of the contested case hearing, Environment Hawai`i will publish, in this issue and our next, what we regard as some of the more critical aspects of the dispute that emerged during the long process.
Part I: The Dispute
The Waiahole Ditch is a catch-all term used to describe a catch-all system of water collection. For the last 80 years, water from the wet, windward side of O`ahu, in an area stretching from Kahana to Waiahole, has been conveyed by means of tunnels, ditches, and siphons to the arid plains of central O`ahu. From the first water-collecting tunnel on the windward side to the last reservoir in the `Ewa area of O`ahu, the Waiahole Ditch runs about 27 miles and, on an average day, delivers about 25 million gallons to the leeward side.
The system was completed in 1916, a project of Waiahole Water Company, owned entirely by O`ahu Sugar Company, which was itself a division of H. Hackfield & Co., later taken over by American Factors, or Amfac. In the intervening years, the corporate names have changed, but the fundamental relationship remains intact. Waiahole Water Company is now known as Waiahole Irrigation Company. O`ahu Sugar has gone out of business, but its lands, as well as WIC, are owned by Amfac. Amfac, meanwhile, has itself been taken over by a Chicago-based real-estate investment partnership and is now known as Amfac/JMB-Hawai`i, Inc.
The irrigation of sugar fields was the sole purpose of the ditch at the time it was built. Over the next eight decades, however, WIC added other leeward users to the system. These users included a cemetery, golf courses, pineapple fields, small ranches, and a handful of small truck farmers.
Changing Times
In July 1992, the Water Commission declared windward O`ahu to be a water management area, which meant that within a year of the determination, users of windward O`ahu groundwater (including WIC) had to apply to the Water Commission if they desired to continue existing uses.
O`ahu Sugar filed five applications in June of 1993, seeking continued use of water from four development tunnels and the main trans-Ko`olau transmission tunnel. Primary use of the water was stated to be for “sugarcane cultivation on approximately 4,076 acres” of O`ahu Sugar plantation.
However, two months later, O`ahu Sugar announced it would be closing down, with its last harvest scheduled for 1995. In December 1993, three windward organizations — the Kahalu`u Neighborhood Board No. 29, the Waiahole-Waikane Community Association, and the Hakipu`u Ohana — petitioned the Water Commission, seeking restoration of stream flows in the area from Kualoa to He`eia. The windward parties desired the increased flows to support expanded wetland taro planting and traditional aquaculture enterprises, and to enhance Kane`ohe Bay’s value as an estuary and fish nursery. Their petition was in direct conflict with the Amfac applications, since the water sought for stream flow restoration was the same that had been diverted into the Waiahole ditch since 1916.
Moreover, in May 1994, the windward parties formally complained to the Water Commission that WIC, which still continued to carry all the Waiahole water to the leeward side, was deliberately dumping into leeward gulches Waiahole water that was not being used. The Water Commission staff investigated and determined that leaks, seepage, and evaporation accounted for about 2.25 mgd, and deliberate dumping amounted to at least twice that amount.
In June 1994, a year after making its original applications for continued use of windward O`ahu water, Amfac, together with the state of Hawai`i as co-applicant, submitted revised applications, identifying the intended use as diversified agriculture and irrigation for planned and existing urban development in central and leeward O`ahu. Signing on behalf of the state Department of Land and Natural Resources as co-applicant was John P. Keppeler II, who at the time was a deputy director of the DLNR.
In addition to the state DLNR, the state Department of Agriculture had entered the fray. In November 1993, it had filed a request with the Water Commission to reserve all of the water in the Waiahole Ditch, plus an additional quantity from unidentified sources, for agricultural purposes.
The revised applications of Amfac and the state DLNR were determined to be incomplete by the Water Commission. The amount of water sought did not agree with the amount of water required by the identified uses, there was inadequate documentation of the identified uses, and the owners of land where uses were intended had not all signed.
Changing Minds
After two public hearings on the combined requests, Amfac appeared as though it was ready to walk away from the whole business. In a statement dated August 25, 1994, and distributed by the public relations firm of Hill & Knowlton Hawai`i, Inc., Amfac announced that Amfac “will cease to pursue its June 14, 1994, water use application.” The statement went on to quote Chris Kanazawa, president of Amfac/JMB Hawai`i’s real estate division, as saying that, “considering the myriad complex social and policy issues, and the competing demands for Waiahole water, it has become clear to us that the potential future users of Waiahole water, not Amfac, must take the lead on this.”
The next day, then-Governor John Waihe`e issued a press release, vowing that Waiahole water “will continue to flow” to the leeward side, despite Amfac’s decision. “We plan to reach an agreement with those who have applied to have the Waiahole water diverted back into the windward O`ahu streams,” Waihee said. “We believe we can find a way to satisfy the legitimate claims of users on both sides of the Ko`olaus.”
By early September, Amfac appeared to be back-pedaling. In a letter to the editor published on September 4 in the Honolulu Advertiser, Kanazawa said Amfac had decided merely to “suspend processing” of the permit application, rather than withdraw it. “Amfac has never waivered [sic] from its position that a reliable, competitively priced source of nonpotable water is needed in Central and Leeward O`ahu,” Kanazawa wrote. But, he added, “because of the complex social and policy issues involved … we believe that potential future users of Waiahole water, not Amfac, must now take the lead on the issue.”
Over the next month and a half, the DLNR managed to get Amfac to hop back into the driver’s seat. In a letter dated October 14, 1994, and sent to Keith Ahue, then chairman of the Board of Land and Natural Resources, WIC Vice President Bert L. Hatton announced that “the permit for Waiahole water is still being actively pursued.”
As of mid-October 1994, then, the Water Commission was up against an approaching statutory deadline for deciding on the windward petition for instream flow restoration, plus a decision on the water wasting charge. The leeward parties, including the state DLNR and DOA, had requested contested-case hearings on these issues, while the windward parties, in turn, had requested a contested case be granted them on the leeward parties’ applications for Waiahole water.
Part II: A Temporary Peace
That same month, October 1994, the Water Commission approved a plan calling for all parties involved to begin a process of mediation, putting on hold all requests for contested case hearings. In response to a request to Amfac to halt the dumping of excess ditch water into leeward gulches, Hatton had refused, despite a requirement in the state’s lease with the Waiahole Irrigation Company that all excess water be released on the windward side.
In November, the Water Commission limited the scope of issues to be addressed by mediation to “short-term” disputes, such as the wasting of water. Commission staff was then instructed to move forward with the preparations needed for a combined contested case hearing to address the longer-term matter of allocations. A deadline of December 15 was set for a mediated resolution of the dumping issue.
An Early Christmas
The deadline was met — barely. On December 16, 1994, the appointed mediator, Peter S. Adler, sent his report to Keith Ahue, who was then chairman of the Water Commission in addition to serving as head of the BLNR. Of the 17 parties who participated in the mediation process, Adler said, 15 agreed to restricting the flow of water in the Waiahole Ditch to 8 million million gallons a day (plus water collected in the trans-Ko`olau transmission tunnel, estimated to be about 4 million gallons a day). The term of the agreement, to begin December 19, was six months — the length of time that would be required, Water Commission staff believed at the time, for the commissioners to make a final determination on the allocation of water. Refusing to sign the agreement were the Department of Land and Natural Resources and Kamehameha Schools/Bishop Estate.
By the end of 1994, Waiahole Stream’s daily flow was increased by 14 million gallons a day.
Crisis
The six months expired on June 19, 1995. Far from the Waiahole contested case hearing having been settled by that time, it had not yet begun — nor would it for another six months. In May, the Water Commission deferred a vote on extending the agreement, thus precipitating a crisis in mid-June.
On the day the mediated agreement expired, Hatton, the vice president of WIC, announced his company was considering adding 2 million to 4 million gallons a day to the leeward flow in the ditch. His comments prompted about 100 Waiahole farmers and their supporters to gather on the access road leading to the back of Waiahole Valley and to the gates controlling flows in the ditch.
While the Water Commission had done little to open itself to the charge of acting with undue haste, not so with the Attorney General’s office. The day after the Waiahole occupation began, Attorney General Margery Bronster joined forces with WIC in state court, where she asked for a restraining order allowing removal of the protesters. Circuit Judge Daniel Heely issued the order on June 21.
The Waiahole protesters had begun gearing up for the imminent arrival of police when they received the news that WIC had decided against forcing the issue. At a news conference on June 23, Hatton announced that the company had decided to allow the status quo to continue for another week, at which time the Water Commission was expected once more to take up the matter of an interim allocation of Waiahole water.
On June 30, the commission formally extended the interim allocations, specifying that 9.4 million gallons a day, measured on the north, or windward, side of the trans-Ko`olau tunnel, would be directed to the leeward side, with the remainder to run into windward streams (primarily Waiahole). Besides the 9.4 mgd, the leeward side would receive about 4 mgd of water collected in the bore of the tunnel on the `Ewa side of the crest of the Ko`olau mountain range, through land owned by Bishop Estate.
Part III: Elusive ‘Existing’ Use
To exist: in its infinitive form, the verb hardly seems problematic. But as a participial adjective modifying the term “use,” its meaning is anything but straightforward.
Thus did the Water Commission learn in a hearing that began in June 1995 to determine which of the leeward parties had an “existing use” of Waiahole water in July 1992, the cutoff date established when the commission declared windward O`ahu a water management area. According to the state Water Code (Chapter 174C of Hawai`i Revised Statutes), “an existing use in newly designated [water management] areas may be continued until such time as the commission has acted upon the application,” which has to have been filed within a year of the date the water management area was designated. All other parties are forbidden by law from taking water from a management area until they obtain a permit from the commission.
What this meant, in practical terms, was that only those parties who could demonstrate to the commission’s satisfaction that they used Waiahole water in July 1992 would be allowed to come under the WIC/DLNR umbrella “existing use” permit application and thus could legally make use of the water in the ditch on an interim basis.
After hearing four days of argument on “existing uses” and after receiving literally thousands of pages of briefs and memos on the subject, the Water Commission finally rendered its decision on August 15, 1995. In Order No. 8 of the combined contested-case hearing, the commission decided that Robinson Estate, the Estate of James Campbell, Dole/Castle & Cooke, Waiawa prison, Mililani Memorial Park (a cemetery), Mililani Golf Course, and Royal O`ahu Resort (a golf course) qualified as existing uses. The total volume of existing uses came to 9.37 mgd, almost precisely the amount of windward water allowed to be sent to the leeward side under the interim order.
The commission specifically rejected requests to be counted as “existing” users by Nihonkai (a landowner whose application was deemed untimely); the Navy (not a user of Waiahole water at all); Pu`u Makakilo (a golf course whose application was untimely); Halekua Development Corporation (whose application was, in any case, withdrawn); a state agricultural park proposed for about 150 acres in Kunia (untimely application); and West Beach Estates (whose application, the commission decided, was for a new water use).
Not included in the commission’s allocation was any allowance for use of the 4 million gallons a day of water that empties into the ditch on the `Ewa side of the tunnel. For accounting purposes, that water is a part of the Pearl Harbor groundwater management area and not the windward management area. Should any new use be sought for that water, permission of the commission would need to be obtained, since the Pearl Harbor aquifer was long ago designated a water management area.
Change of Use
In a statement with far-reaching implications, the commission announced in Order No. 8 that while a change in crop type (e.g., from sugar to bok choy) does not constitute a “change in use” of water (which would be subject to commission approval), “a change from agriculture to golf course would be a change in use. Golf enterprises” — contrary to the arguments of the state Department of Agriculture — “are not another form of farming,” the commission found.
The commission expanded on this point: “While a different crop is merely a different kind of ‘agriculture,’ not all uses authorized within the Agricultural District involve the cultivation of crops… A new golf course on land previously in agriculture is not a continuation of an agricultural use. Accordingly, the [Water] Code’s categories are not necessarily read as equivalent to a particular state Land Use Commission land district or a specific county zoning classification.”
Part IV: At Last, a Start
On November 9, 1995, the most intense phase of the combined contested case hearing began. Twenty-five parties had been admitted to the proceedings. They fell into the following groups:
Leeward Landowners and Users: Amfac/Waiahole Irrigation Co.; Campbell Estate; Robinson Estate; Dole/Castle & Cooke; Kamehameha Schools/Bishop Estate; Nihonkai; Pu`u Makakilo, Inc.; West Beach Estates; Koei Hawai`i, Inc.; Royal O`ahu Resort, Inc.; Del Monte; and the U.S. Navy.
Advocacy Groups: Hawai`i Farm Bureau and the Land Use Research Foundation (on behalf of the leeward parties); Hawai`i’s Thousand Friends (on behalf of the windward parties).
Hawaiian Rights Advocates: Office of Hawaiian Affairs; Ka Lahui Hawai`i (both favoring restoration of windward streams).
State, County Departments: Department of Land and Natural Resources; Department of Agriculture; City and County of Honolulu Planning Department; Honolulu Board of Water Supply (favoring leeward parties); Department of Hawaiian Home Lands (seeking a reservation of water for 82 acres of homestead land at Waiahole).
Windward Parties: Waiahole-Waikane Community Association; Hakipu`u Ohana; and Kahalu`u Neighborhood Board No. 28 (these were treated as one group during the contested-case hearing).
On the eve of the opening session, Stryker Weiner Associates, a public relations firm, distributed “testimony highlights” of the opening statements of the leeward parties’ attorneys and expert witnesses. The Sierra Club Legal Defense Fund, representing the windward parties and Ka Lahui Hawai`i, also issued a press release on behalf of its clients, describing the allocation of Waiahole water as “the most important issue that has come before the Water Commission so far.”
At the time the hearing began, the Water Commission was hopeful that it would last a mere four months. A total of 18 meetings had been scheduled (all but two lasting from 9 a.m. until 4 p.m.) for November and December. Soon it was clear that four months would not be nearly enough. Not until April 1996 did the last scheduled day of testimony arrive. And even that wasn’t the end of things: testimony continued to be taken by the commission as late as July.
The range of issues addressed during this evidentiary portion of the hearing was vast. The relative economic, environmental, social, and cultural advantages and disadvantages of windward versus leeward use of the Waiahole water were debated at length by people who were among the most knowledgeable in their respective fields.
Leeward parties vigorously prosecuted their case; windward parties were no less vigorous. For each expert witness one side produced, the other found a rebuttal witness. Summarizing the arguments and weaving them into a legal case for or against delivery of windward water to the leeward plain is the task that attorneys now face.
According to Ed Sakoda, a staffer with the Water Commission, a decision in the case may come before the end of the year.
Believe it when you see it.
Volume 7, Number 2 August 1996