The tug of war over water on O`ahu continues.
The transfer last November of an `Ewa water well permit from Campbell Estate to the Board of Water Supply (BWS) has raised arguments by windward farmers and activists that the estate is trying to “have its cake and eat it at the expense of windward streams and the public interest,” says Earthjustice Legal Defense Fund, counsel for the windward parties in the Waiahole Ditch contested case.
In last August’s Hawai`i Supreme Court decision on Waiahole, the court found that the state Commission on Water Resource Management issued permits for ditch water to Campbell Estate without sufficient justification. The commission failed to consider the available alternative water sources, such as groundwater from the `Ewa Shaft or recycled water. During contested case hearings held in 1995 and 1996, the `Ewa Shaft was identified as a water source capable of serving, at a reasonable cost, a good number of fields then being irrigated with Waiahole Ditch water.
Last August, the court effectively nullified permits the commission granted to Campbell Estate. It then ordered the commission to examine whether Campbell Estate should use water from already permitted wells before it draws water from the Waiahole Ditch.
Weeks after the Supreme Court issued its decision, Campbell Estate proposed unloading its permit to use the `Ewa Shaft well onto the BWS.
Although Campbell Estate was giving up its `Ewa shaft, BWS records show that the estate would still receive about 12 million gallons a day (mgd) of the well’s total capacity of 21.312 mgd for urban development projects.
“Campbell will doubtless argue É that the `Ewa Shaft is no longer an option and therefore the commission should allow Campbell to supply Windward stream water to its agricultural tenants,” wrote Earthjustice attorney Paul Achitoff in an October 23 letter to then Department of Land and Natural Resources Director Tim Johns and Water Commission Deputy Director Linnel Nishioka.
“Although the commission has been aware of this proposed transfer and its implications for at least 10 weeks,” Achitoff wrote, “it has not to my knowledge notified the parties to the contested case nor allowed the parties or the public to comment on an action that is designed to, or in any event, change the complexion of the case and limit the commission’s options on remand. This is highly inappropriate. It is also questionable whether such a transfer would be proper under any circumstances, since it will amount to the creation of a water reservation for BWS without going through rulemaking procedures.”
In November, Nishioka, signing for Johns, approved the permit transfer for the `Ewa Shaft. The BWS then changed the permit’s classification from agricultural to municipal, allowing the BWS to dedicate the well to the needs of the `Ewa Development Plan, which seeks to turn central O`ahu into the island’s second city.
The Board of Water Supply has indicated it is eager to acquire the well. In a September 15 letter to the commission, BWS chief engineer Clifford Jamile wrote, “by the 2020 planning horizon, `Ewa will experience tremendous growth, providing a Secondary Urban Center for O`ahu. Population will have grown from 43,000 people in 1990 to almost 125,000. Nearly 28,000 new housing units will be built in a series of master planned communities.” To fuel this growth, Jamile continued, the `Ewa Shaft will be the primary source of potable water for the area.
In December, windward parties, including the Waiahole-Waikane Community Association, Hakipu`u Ohana and Ka Lahui Hawai`i, represented by Earthjustice, petitioned the Hawai`i Supreme Court to order the Water Commission to void the permit transfer.
In announcing the petition, Earthjustice called the commission’s action “part of a scheme to skirt the State Water Code and the Supreme Court’s recent decision in the Waiahole Ditch case, and facilitate Campbell’s development plans at the expense of windward streams.”
“Campbell’s `Ewa Shaft permit allows the right to withdraw, for agricultural use, over 12 million gallons per day from beneath Campbell’s lands,” Earthjustice said. “Since Campbell would prefer to use windward stream water for irrigation on its Central O`ahu lands and reserve the `Ewa Shaft for future urban development, Campbell arranged with the Board of Water Supply to give the `Ewa Shaft permit to BWS, which would then give the water back to Campbell to facilitate development.”
Earthjustice argued that the State Water Code “prohibits the transfer of a water use permit where the use of the water is changed (such as from agricultural use to municipal).” The Water Code states, that permits may be transferred if the conditions – including place, quantity, and purpose – remain the same. A change in use, it states, it “invalid and constitutes a ground for revocation.”
Achitoff told Johns and Nishioka in an October 24 letter that the Board of Water Supply had no use for an agricultural permit and did not intend to use the water “in the place or in the quantity or for the use provided in the permit. The place, quantity, and purpose will be – must be – changed for the transfer to have any point.”
In correspondence between Nishioka and Jamile, Nishioka says that state law exempts county agencies from these requirements so long as permit modifications don’t alter the quantity of water to be used or adversely affect the water quality or the quantity of another permittee.
Achitoff, however, maintains that the county’s use of water will involve precisely such changes and so, consequently, the law’s exemption invoked by Nishioka does not apply.
In their petition to the Hawai`i Supreme Court, the windward parties objected to the Commission’s failure to notify the public and parties to the Waiahole Ditch case of the transfer. In early January, the Supreme Court ordered a briefing from the Water Commission on its position within 30 days.
— Teresa Dawson
Volume 11, Number 8 February 2001