Posted on: Tuesday, June 22, 2004

Court rules water use plans must be explained

By David Waite
Advertiser Courts Writer

The state Commission on Water Resource Management must do a better job at explaining how it decided to allot water carried by the Waiahole Ditch from Windward O'ahu to water users on the drier leeward side of the island, the Hawai'i Supreme Court ruled yesterday.

The ruling is the latest development in the landmark proceedings dealing with striking a balance between protecting Windward streams and ecosystems and providing water to the growing diversified agriculture industry on the leeward side of the Ko'olau.

In their unanimous ruling, the Supreme Court justices said the commission must substantiate its reasons for water allocations in six different areas.

"We acknowledge the considerable time and attention devoted to this case by the water commission and parties involved," the court said.

"We must stress, however, the importance of reasonably clear findings and conclusions so that this court can engage in informed review. Without such, this court has no choice but to vacate and remand issues for further proceedings," the decision said.

The issues the water commission must reconsider include methods the commission used to determine stream flows in Windward O'ahu; whether it adequately explored other alternatives before giving the irrigation system's owner a permit for the 2.2 million gallons of water lost each day to evaporation and leaks; whether Campbell Estate and a stalled golf course project in leeward O'ahu really have no practical alternatives to using Waiahole Ditch water to irrigate their lands; and on what basis the commission decided to allocate 2,500 gallons of water per day per acre for proposed diversified agriculture crops in leeward Oahu.

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

The ditch was built in 1916 to carry fresh water from Windward streams to what was then vast Leeward cane fields. But as the sugar industry faded, Windward activists and taro farmers fought for the return of the diverted water.

In August 2000, the Hawai'i Supreme Court sent some of the water allocation issues back to the water commission for further consideration. The commission's revised decisions on those remaining issues were appealed, leading to yesterday's Supreme Court decision.

Paul Atchitoff, an attorney with Earthjustice, which represented the Windward O'ahu and Native Hawaiian groups that challenged the revamped water commission conclusions about allocating Waiahole ditch water, said yesterday's ruling does not appear to cut off water from present users.

But it will require the water commission to explain how it arrived at its decisions, and may require a new round of public hearings on the matter, Atchitoff said.

Attorneys representing the water commission could not be reached to comment yesterday.

Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030.