Posted on: Monday, July 12, 2004

Effect of water ruling for O'ahu pondered

By David Waite
Advertiser Courts Writer

Farmer Larry Jefts badly needs water from the Waiahole Ditch to irrigate his diversified agricultural operations in central O'ahu.

"Just about everything you see in a supermarket's produce section can be grown here, providing we have the water," said Jefts, who has farmed in Hawai'i for 30 years. His crops are on either side of Kunia Road between Waipahu and Wahiawa.

But Kala Hoe, a member of one of the groups that mounted a court challenge to how the water from Waiahole Ditch was apportioned by the state Commission on Water Resource Management, has other ideas on how it should be used.

Hoe praised the latest in a series of rulings by the Hawai'i Supreme Court over the use of the water, a critical issue that could set the groundwork for development and agriculture on both sides of the Ko'olau mountains for decades.

Hoe called last month's decision "a huge victory for our streams, the communities that rely on them and the public at large."

For the second time, the high court has told the water commission that it has to justify how it arrived at its water-allocation decisions and that it must make Leeward water users justify their need for irrigation water.

The ditch dates from the days when sugar was the king of O'ahu crops. It was built in 1916 to carry fresh water from Windward streams to vast Leeward cane fields. But as the sugar industry faded, Windward activists and taro farmers fought for the return of the diverted water.

In December 1997, the water commission ruled on how the 27 million gallons a day carried through the ditch would be allocated: 14.03 million gallons a day to Leeward O'ahu, 12.97 million gallons for the Windward side.

The 1997 ruling was appealed by Paul Achitoff, an attorney with Earthjustice, on behalf of the Waiahole-Waikane Community Association, Hakipu'u 'Ohana and Ka Lahui Hawai'i.

In a landmark ruling issued in August 2000, the Hawai'i Supreme Court sent some of the allocation issues back to the water commission, instructing it to consider more fully the public interest in protecting and restoring Windward stream systems.

The commission issued its revised order in December 2001, leaving the water allocations essentially the same. Earthjustice again appealed, and the court, in a ruling issued June 21, again faulted the commission.

The court said much of the water commission's 2001 ruling failed to comply with the state water code and public trust principles. It said the commission failed to make sufficient findings, based on evidence in the record, to support its decisions.

The court ordered the commission to reconsider the amount of water that Windward streams need to support native stream life and community uses. And the court ordered the commission to vacate the water-use permits it had issued to Leeward users.

"The court has sent a strong message to the water commission that there will be no giveaway of our public-trust resources," said Hoe, a member of Hakipu'u 'Ohana. "Our streams will get the protection that the law requires."

Sonia Faust, supervising deputy state attorney general for land and transportation issues, said it is not clear whether the water commission will have to "reopen the issue for more hearings or take evidence from what's already been heard.

"It could take several months, depending on a number of variables, before a decision is made on how the commission should proceed," Faust said.

One immediate question is whether the tap that is Waiahole Ditch will be turned off.

"The court ordered that the Leeward permits be vacated, so that could be the case," Faust said.

Jefts said if that were to happen, "hundreds of people would lose their jobs."

He farms on land leased from the Campbell and Robinson estates. Because there are no irrigation wells, he depends on Waiahole Ditch water — and rain.

"We've been fortunate so far because we've just come through an extremely wet year," Jefts said. "But if we had to operate without the ditch water, it just wouldn't work."

Jefts' permit was one of those the Supreme Court vacated on the grounds that Jefts had failed to demonstrate — and the commission neglected to make sufficient findings supporting — Jefts' actual water needs.

Jefts said that uncertainty over water availability has hampered his expansion plans.

"We have not carried the market development as far as we could. To continue building, you have to look at market development in terms of three or four or five years down the road, and you've got to be certain you will have the necessary water," he said.