Editorial

Return the Water to Waiahole

When Amfac announced three years ago that it would be closing down its last sugar plantation on O`ahu, it set the stage for what has to be one of the greatest battles over water fought in the history of the Hawaiian islands.

That case, not yet concluded, has leeward landowners and their powerful allies — including no less than two state departments and the City and County of Honolulu — lined up against a cohort of taro farmers, citizen activists, groups representing Native Hawaiian interests, and environmentalists.

At issue is whether any or all of the 25 million gallons a day of water that the Waiahole ditch conveys to the leeward side of the island from windward valleys will be allowed to return permanently to windward streams.

The Commission on Water Resource Management, which is hearing the case, is supposed to judge the case on the basis of the law and the merits of the arguments mounted by either side. Yet, given the political nature of the commission — with two of its four voting members in this case being members of the governor’s cabinet — it is almost too much to hope that the outcome will be based strictly on the legal issues.

If it were, however, that outcome would surely be in favor of full restoration of the ditch flows to the windward streams. Here’s why:

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The Public Trust

In his opening statement to the Water Commission, Alan Oshima, attorney for the Waiahole Irrigation Company, told the commissioners that the burden of proof for stream restoration lay squarely on the windward parties. It was they, he contended, who would have to provide “clear and convincing evidence that a specific amount of water is required in specific areas of the streams now, or [that] specific beneficial instream uses will not be adequately protected.”

Oshima has it completely backwards. The burden for diminishing public trust resources — the fish in the streams and the bay and the broader ecosystems in which they are nourished — must be borne by those who propose and profit from the diminishment. It matters not whether the ditch has been in existence for eighty years or eighty months.

When the ditch was constructed by Waiahole Irrigation Company’s predecessor, Waiahole Water Co., Ltd., back in the years 1912 to 1916, no one required any proof of the “specific amount” of water needed by the sugar plantation that was using the water for irrigating its central O`ahu fields. It was simply allowed to take as much water as it could, without any showing of need.

(In fact, Waiahole Irrigation Company today continues to take as much as it has been allotted on an interim basis, even though that amount exceeds by several millions of gallons each day the actual amount of water used.)

With each gallon of water diverted from the windward watersheds, the public is further aggrieved by the loss of its trust resources. Testimony in the case clearly demonstrated the scope of loss resulting from eight decades of diversion. Just as clearly, testimony indicated much of that loss could be recovered — and, in fact, in the few months since Waiahole Stream has received flows from the ditch approaching the volumes found in it before construction of the ditch, populations of many native fish have increased dramatically, while populations of undesirable introduced species have declined.

What’s Good for GM…

Waiahole Water Company then, and Waiahole Irrigation Company now, appear to regard the waters collected in Waiahole ditch as a private resource, for all intents and purposes. To the limited extent that the leeward attorneys give a nod to the public’s interest in that water, it is only to argue that the public is best served when private interests exploit public resources. As in the old adage about what’s good for General Motors being good for the country, the attorneys for WIC and the other leeward parties would have the Water Commission believe that on their clients’ profits rides the welfare of the state.

Whether the Water Commission buys into this, it is clear that the state administration has swallowed it hook, line, and sinker. Nowhere was this more evident than in the remarks of Greg Pai, former director of the former Office of State Planning.

Pai, it should be noted, was originally opposed to the state involving itself as a leeward partisan in the Waiahole fray. Cast as an apologist for the position taken by his boss, the governor, Pai put the best face he could on the state’s abandonment of its public trust responsibilities. In effect, he told the Water Commission that protecting the public resources was a luxury the state could ill afford in times of economic hardship.

“I think it would be irrelevant to have a beautiful environment if you have a society that didn’t exist simply because they all died for lack of sustenance,” Pai testified. In these few words, Pai has reduced public trust resources to the level of an ephemeral aesthetic pleasure, while the ditch becomes the very lifeblood of society.

It is a view that is utterly, devastatingly wrong.

A Public Right

First, the public trust resources are not frivolous ones. They are those that are at the heart of a functioning democratic society. One could argue, in fact, that it is precisely in hard economic times that the public trust resources must be most vigilantly guarded. For example, if unemployment rates are high or wages are low, more people will turn to the streams and ocean for their protein — but if the estuaries and streams are depopulated as a result of stream diversions, they will have nothing.

In times of hardship, more people in rural areas may be expected to avail themselves of their appurtenant or riparian water rights by using streams to irrigate kitchen gardens. If there is no water in those streams, those rights are meaningless.

Second, there was no persuasive evidence presented by the leeward parties that their use of Waiahole water would be vital to the state, in the manner anticipated by Greg Pai’s comment. Short of wartime conditions, it is unlikely that the produce grown in the central plain will be a matter of life or death for the state’s population as a whole, or even for an individual member.

Perhaps Pai meant to say only that the economic growth brought on by the development of diversified ag in leeward O`ahu would be the rising tide that lifts all boats. Still, that argument, advanced by some, fails in key respects. Expert economists who testified for the leeward parties acknowledged that they had, in their testimony, overstated the potential for growth in diversified agriculture. Moreover, the economic argument applies just as well to the windward side, where restored stream flows would allow expanded production of wetland taro, a commodity that, given the renaissance in Hawaiian culture, is in short supply statewide.

Nor is it at all clear that the profits made by the leeward parties will be plowed back into the state economy. In many cases, profits are taken out of state — to Chicago (Amfac), Florida (Del Monte), Japan (Nihonkai), or California (Dole/Castle & Cooke).

In the case of two Waiahole water users — the Royal O`ahu and Pu`u Makakilo golf courses — there are no profits whatsoever. The former is in receivership; the course is complete, but it is not open to play — despite using up to 1.3 million gallons of Waiahole water per day. (The Water Commission has allowed it to use no more than 4,800 gpd.) The latter was sold at a court-ordered foreclosure auction to its chief creditor, Grace Pacific; it is not even complete, yet it has been taking up to 140,000 gallons of water daily from Waiahole ditch, claiming there is no other water source available. (The Water Commission denied Pu`u Makakilo’s application for an existing use permit for Waiahole water. To date, it still has no authority to take water from the Waiahole system.)

The economic advantage to the state in having diversified agricultural pursuits on the leeward plain thus boils down to two arguments: that diversified agriculture will provide jobs, and that it will reduce the market price of produce.

Both are problematic.

Expert testimony suggested that while new jobs may be created on O`ahu, they may come at the expense of jobs on neighbor islands. And by the end of the contested case hearing, no one was arguing with any conviction that consumers would pay any less for tomatoes, say, grown in central O`ahu than they pay for tomatoes grown in Mexico.

Pai was correct on one point, although he said it in a memo to the governor rather than in testimony to the Water Commission: “The state’s applications unduly favor large private leeward users” and could result in “unfairly benefiting leeward as opposed to windward applicants, as virtually all of the private sector applications are on the leeward side.”

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Hypocritical Arguments

Several arguments made by the leeward parties call into question their good sense as well as their good judgment. One such example may be found in the argument by Bishop Estate’s expert witness, Peter Garrod, that the state could not stand any more acreage in wetland taro production. That Bishop Estate, which paints itself as the protector of all things Hawaiian, should be arguing against expanded taro production, in the face of a statewide poi shortage, is, well, revealing.

An even more absurd argument was made by many of the leeward parties who decried the restored flow into Waiahole Stream as being “unnatural,” since, for the first several hundred feet past the ditch, the flow is far more fierce than it would be under natural conditions. Such torrential flows, they noted, made it unlikely that a species of damselfly would find this reach of the stream an attractive home.

This new sensitivity to environmental impacts is welcome, although belated. Putting such concerns to rest, however, was Adam Asquith, an entomologist with the Fish and Wildlife Service. Asquith told the Water Commission that even though a given reach of stream may be undesirable habitat, if the water is there, the animals will probably find suitable habitat farther downstream.

In any event, it is worth noting that that it was none other than the lead leeward party, Waiahole Irrigation Company, that has prevented forever the restoration of anything approaching a “natural” flow in the windward streams. The internal dikes of the Ko`olau mountains that made up the underground plumbing of the windward side were blasted to kingdom come 80 years ago. Now the heirs of those who dynamited and drilled through the natural reservoirs of the mountain argue that since what was destroyed cannot be rebuilt “naturally,” they should be able to keep reaping the benefits of that destruction. This is outrageous.

Repairing the internal hemorrhaging of the mountain is not feasible, although the state has tried, through construction of dikes in the back of Kahana Valley, to restore in a limited way some semblance of the natural system. Of course, in such an altered system, nothing can be “natural” anymore. But putting the water back into the stream channels is the first step toward recreation of a state that, while not pristine, is still more like that which existed before the ditch.

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The Unexamined Alternative

Bill Devick, acting administrator of the state Division of Aquatic Resources, best expressed the constraints under which the Water Commission must make its decision: “There are limits to everything — there are limits to growth, there are limits to population — and in establishing limits there have to be some things which are absolutes.”

There are certainly limits to the state’s streams, and the windward streams, for the last 80 years, have been pressed hard against them. What has brought this about is the reluctance on the part of the state and its leeward allies to acknowledge limits to cheap Waiahole water. Of course it should be highly desired by the leeward interests. Fed by gravity, there are no pumping costs. Emerging from high in the Ko`olau mountains, there are no pollutants to filter out before the water can be applied to fields.

Were Waiahole water to be valued higher, the search for alternative water sources for leeward fields might be more diligent. As it is, one after another leeward witness paid lip service to the notion of reusing cleaned-up effluent from sewage treatment plants for irrigation, yet politely demurred when it came to agreeing in principle to pursue use of it.

Simply put, there is no water shortage on O`ahu, so long as tens of millions of gallons of treated wastewater are dumped each day into the sea — wasting dollars as well as a precious natural resource. The Water Commission could do much to foster recovery of this loss by giving the leeward farmers and other users of Waiahole water an incentive to use reclaimed wastewater. So long as cheap, clean Waiahole water is available to them, wastewater reclamation on any meaningful scale will remain a remote possibility.

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In Gratitude

Environment Hawai`i thanks the Lila Wallace-Reader’s Digest Fund for its support of our coverage of the Waiahole contested case hearing.
We also extend our sincerest gratitude to the following for their recent contributions:

`Alia Point `Awa Nursery; Sara Collins; G.A.G. Charitable Corp.; Karen Reppun Foster;

Gary Hickling; Steve and Carol Holmes; Virginia Isbell; Stephen Miller and Mabel Trafford; David and Kaohu Monfort; and Lou Rose.

Volume 7, Number 3 September 1996