When attorney Jim Paul announced that he was going to try to explain, in 15 minutes, how court decisions – the Waiahole ditch decisions, in particular – affect water use, the small crowd before him erupted in giggles.
Paul had been assigned the topic by Hawai`i’s Thousand Friends, which sponsored a day-long water issues workshop on September 22 at the Harris Methodist Church in Honolulu.
Everyone in the room – long-time “water junkies”, attorneys, or representatives from state and county agencies – knew how complicated court decisions on water are and how difficult they can be to explain.
That being the case, Paul spent most of his time discussing the results of an anecdotal survey he made of more than 25 people, from the private and public sector, who deal with water issues on a daily basis.
First, he whizzed through some fundamentals: Under Hawai`i constitution, all public natural resources, including water resources, are held in trust for the benefit of the people. The state Water Code, passed in 1987, requires the protection of instream uses by the establishment of flow standards on a stream by stream basis. These standards must describe the flows necessary to protect the public interest in the particular stream, necessary to protect fish, wildlife recreational aesthetic and scenic values and other beneficial uses.
And then there was the Waiahole ditch case, in which Paul represented Hawai`i’s Thousand Friends. The ditch, built in the early 1900s carried about 27 million gallon a day from a handful windward streams to the central O`ahu plain. In 1992, the state Commission on Water Resource Management began a proceeding (which has yet to be concluded) on what to do with the water in Waiahole ditch.
The commission made a decision in 1997, after about 60 days of hearings, held 1995 and 1996, in which more than 20 parties participated. The decision was appealed to the Hawai`i Supreme Court. To date, the court has issued two decisions on the case, and Paul expects there will be a third.
In the first decision, commonly referred to as Waiahole I, the court made what Paul called a “very fundamental” determination. The court wrote: “We are very troubled by the commission’s permissive view towards stream diversions. We have rejected the idea of public streams serving as convenient reservoirs for off-stream private use.”
The case established a state water trust, laid out the states’ responsibilities, set out and discussed planning by state and counties, ordered that the state proceed with utmost haste and purpose, he said.
Before launching into a discussion of how the framework set by the Waiahole case has been implemented, Paul mentioned that the 1954 U.S. Supreme Court case known as Brown vs. Board of Education, which outlawed separate-but-equal segregated schools, was also supposed to have been implemented with “all deliberate speed.” In 1957, the first black high school students were escorted to school in Little Rock, Arkansas. More than a decade later, another student was escorted into the University of Mississippi by National Guard troops
“I think many people would say that it has been decades in the implementation of that decision. I think some would say it hasn’t been completed by today. I just give that as background information so you won’t get too depressed at the pace with which the Waiahole decision has been implemented in the view of some,” he said.
So what happened after the state’s highest court spoke in 2000? Rather than express his own opinions on that, Paul said he chose to do a small anecdotal “not for attribution” survey using what he jokingly called “my own private and ethical polling organization.”
The basic question was: What impact has the Waiahole decision had on your work on a day to day basis, particularly on water use?
Most of the survey participants were state and county employees from various levels, some were lawyers involved in water and law decisions, and some worked for clients in cases that have been in contested cases or before the courts on water use issues.
The obvious impacts have been more water in the Waiahole watershed, a completely lined irrigation ditch, and a system of accountability has been established.
The impact on water issues beyond that, however, is much harder to measure, he said. Many of those surveyed said there has been a paradigm shift in the way that decisions are made, the way government does its business, and the way scientists feel about what’s necessary to implement the decision, he said.
“Most said that actual progress is very slow,” he said. Despite the fact that the court ordered the Water Commission to set new instream flow standards “with utmost haste and purpose,” the nearly 400 perennial streams in the state have only had temporary inflow standards set. The only stream that has a flow set as a result of the court’s mandate is Waiahole, Paul said.
“Many, many people in this room and many, many people that I spoke with found that disappointing,” he said, although most survey participants made a distinction between the water commissioners and the staff of the commission.
“People were much kinder to the staff than to the commissioners,” he said, adding that a handful of people said they thought the Water Commission was the slowest to change as a result of the Waiahole case.
Resistance from water commissioners was cited as one reason why progress has been slow, he said, adding that a number of people reminded him that Governor Lingle wanted to do away with the commission. “The impact that has and those kinds of discussions have is very hard to measure,” he said.
Even so, he noted that the Water Commission is currently working to establish flow standards and is in the process of setting priorities. First, however, the commission needs to determine, and is working toward cataloging, which streams have diversions.
Paul revealed that many government employees surveyed said the Waiahole decision gave them vision and a sense of structure about what their job was and what their goals were. A couple said it gave them “the courage to do the right thing.”
He said that some government people complained that the Waiahole case is cited too often by people who think that it’s a panacea, and that by invoking the case that “something is supposed to happen.”
Despite the fact that many of those surveyed felt the pace at which the Waiahole decision was being implemented was too slow, Paul suggested that there is a danger in moving too quickly.
“You have to bring people along, you have to have them be behind it. [If] you go too fast [you may] get ahead of the bus and loose support for it.… I think probably most said [progress] was slow, it was too slow. But if you’re a realist, you have to expect this especially if you’re trying to build the kind of support consensus and knowledge that’s necessary and let this permeate and really take hold,” he said.
— Teresa Dawson
Volume 18, Number 6 — December 2007