Within the next month or so, Lawrence Miike, Water Commissioner and hearing officer in the Waiahole Ditch contested case, is expected to finalize his recommendations on the handful of issues that the state Supreme Court remanded to the Water Commission in June 2004. At issue is the commission’s allocation of Waiahole Ditch water to various agricultural users and instream flow standards, among other things.
Miike chose to hear oral arguments on only a few of the remanded issues, specifi cally, the practicability of Campbell Estate and Pu‘u Makakilo using alternative ground water sources, and a system losses permit to the state Agribusiness Development Cor poration, which operates the ditch that di verts roughly 23 million gallons of water a day from Kahana, Waikane, Waianu, and Waiahole streams to O‘ahu’s central plain.
Back in December 2001, after a second round of contested case hearings, the Water Commission reset allocations to Campbell Estate (from 5.28 mgd down to 4.74 mgd), Dole/Castle & Cooke (2.22 mgd to 2.13mgd), and established a permit for op erational losses of 2 mgd. An appeal by several parties followed, leading to a third contested case hearing held in April and presided over by Miike, who had been reap pointed to the Water Commission for the specific purpose of adjudicating the case.
In June, attorneys for Waiahole water users, as well as those representing parties seeking the return of water to windward O‘ahu streams, presented their final argu ments. The Campbell Estate and the ADC tried to justify their current levels of diver sion, while attorneys representing Hakipu‘u ‘Ohana (a group of windward taro farmers), Ka Lahui Hawai‘i, Kahalu‘u neighborhood board and the environmental group Hawaii’s Thousand Friends argued that water permits for both Campbell and the ADC should be denied.
In her closing brief, Earthjustice’s Kapua Sproat, representing the Windward parties, argued that the Supreme Court stated that the commission “is not obligated to ensure that any particular user enjoy a subsidy or guaranteed access to less expensive water sources when alternatives are available and public values are at stake.” Campbell Estate had failed to prove that it had no “practicable alternatives” for irrigation water, she argued, noting that ample groundwater in the ‘Ewa/ Kunia area is available and affordable, compared to water rates paid by other farmers throughout the state.
Attorney Lane Ishida, representing Campbell Estate, argued that groundwater is too expensive to be “practicable.” He added that Campbell had hired two engi neers to investigate the possibility of drilling a new well. Based on the quality and salinity of water in the ‘Ewa/Kunia aquifer, Campbell rejected that option, he said.
Ishida also argued that the windward parties were wrongly interpreting the law regarding alternatives. “There’s always another alternative. But is ‘practicable’ also feasible, fair and convenient?” he asked. “Clearly it is not more convenient to spend millions to dig a new well,” he said, adding that continued diversion of Waiahole water can be done in compliance with the interim instream flow standards.
Miike noted that Campbell Estate had a number of alternatives, including blending Waiahole ditch water with well water. “You can’t just tell me one is more expensive than the other,” he said.
With regard to the ADC’s permit for system losses, the Hawai‘i Supreme Court had vacated the allocation because the ADC had failed to prove that losses were reason able. However, the court tasked the com mission with determining whether a permit was even appropriate for system losses. In June, ADC attorney Haunani Burns argued that a permit for system losses was inappro priate because system losses are not a “use.” She added that the ADC has made signifi cant progress in upgrading the ditch to reduce leakage and waste and plans to com plete in 2007 or 2008 construction of a reservoir that will prevent overflow and waste of excess Waiahole water. Feasibility studies and other fixes (i.e. lining the ditch) cannot be done sooner because the ADC lacks the needed funds, she said.
The windward parties countered that a permit is the only way to regulate water use, including system losses. They also criticized the ADC’s justification for not doing more to prevent system losses.
“Here they are giving away the store and claiming they have no money for repairs,” said Sproat, adding that the ADC should end corporate subsidies and charge market rates. At present, Waiahole water costs 40 cents per thousand gallons. Sproat notes in her final brief that Big Island farmers pay the county board of water supply $1.88 per thousand gallons, “more than four times the rate for Windward water delivered by ADC.”
— Teresa Dawson
Volume 16, Number 2 August 2005
Leave a Reply