On October 19, 1994, the state Commission on Water Resource Management approved a process of mediation intended to resolve the issue of complaints that water from the Waiahole Ditch was being wasted. More than a dozen claimants to the water have agreed to participate in formal mediation.
In the meantime, Waiahole Irrigation Company, which owns the ditch, is continuing to dump millions of gallons of water each day on the leeward side. (For more extensive discussions on the issues surrounding Waiahole Ditch water, scroll down in the [url=/members_archives/archives1994.php]1994 Archive[/url] to the September and October editions of Environment Hawai’i.)
Background
In October, Environment Hawai’i reported that the Water Commission was set to decide September 29 on a staff recommendation concerning the releases of Waiahole water if leeward O’ahu. The term “release” refers to the practice of dumping into gulches water from the ditch that is not used for irrigation or other specified purpose. According to the calculations of Water Commission staff by September 1994, more than 22 million gallons a day on average were being released by Waiahole Irrigation Company, a wholly owned subsidiary of Amfac/JMB Hawai’i, Inc.
The staffs recommendation was that, for the next six months, as O’ahu Sugar (also a subsidiary of Amfac) phased out its operations altogether, all water in the tunnel in excess of 14.7 million gallons a day be released into Waiahole Stream. The water remaining in the ditch would be used for sugar until O’ahu Sugar’s last field was harvested, would be lost to evaporation and leaks in the system (about 3 million gallons a day); and would be used to supply water to leeward farmers able to show that they had been served by the ditch within the last four years.
To recover its cost of operation the staff proposed that Amfac be allowed to recover “actual ‘variable’ costs for operation and maintenance of the ditch and lease rent for ditch water.” Farmers using the water would agree to meter their use and pay a pro-rata share for water deliveries.
Finally, the staff recommended that this water regime last no more than six months. Before the expiration of that term, the Water Commission would revisit the issue and make a longer-term allocation of the Waiahole water.
A Change in Plans
The meeting of September 28, 1994, did not go as the staff had planned. Although Amfac had issued a notice in August announcing that it “will cease to pursue its June 14, 1994 water use application” to continue to use Waiahole Ditch water, Amfac service president Bert Hatton vigorously objected to the staff recommendation including, among other things, the very use of the word “waste” to describe the releases of water from the ditch to leeward gulches. “Waste is not a word that is defined by statute,” Hatton told the commissioners. Because, Hatton claimed, a portion of the released water “is included as part of the sustainable yield calculations for the Pearl Harbor aquifer,… we maintain that the current releases of water are not wasteful.”
Commissioner Robert Nakata questioned Hatton on the recharge matter. “To my knowledge the maximum recharge from irrigation uses is about 40 percent… It’s a very different situation for a stream or a gulch. How do you arrive at the conclusion that there’s recharge into the Pearl Harbor aquifer from these releases into the gulches?”
Hatton acknowledged he didn’t have specific information – but, he added, neither did the commission’s staff have information to disprove his claim. Then he added: “We have done a study, and the nature of it was walking down the gulches, taking a look at the situation as best we can, trying to determine” how much water remained in the gulches as surface flow as opposed to how much seeped into the underground aquifer. “It is a very difficult thing to determine with any exactitude,” he said.
A Taking
Alan Oshima, an attorney for Amfac, told the commission that any order that entailed the use of the Waiahole Ditch without proper compensation would be a taking “accomplished without due process.” Staff recommendations, he said, “would require WIC [Waiahole Irrigation Company] to continue to deliver water to various parties… and to be compensated only by actual variable costs.” WIC’s costs, however, are not limited to variable costs, Oshima said, but include “capital and carrying costs,” he added.
Keith Ahue, chairman of the Water Commission, asked Hatton whether he might be agreeable, in the short term, to releasing the water now dumped on the leeward side into windward streams. Ahue noted that in a letter dated September 15, 1994, Hoyt Zia, who, like Hatton, is a vice president of Waiahole Irrigation Company, had stated that “WIC nonetheless will cooperate with whatever decision is rendered by the commission. In the event the decision is to release waters into windward streams, WIC would do so provided there is express direction by the Commission.”
Hatton distanced himself from Zia’s statement, saying that at that time, WIC did not “read in the possibility of a taking issue.”
Ahue asked Hatton to withdraw his early request for a contested case on the two items on the Commission’s agenda: the matter of Amfac’s waste of water and the matter of the petition of three windward associations to restore Waiahole stream flows. Hatton agreed to withdraw it, provided the request could be reinstated before any decision on either matter was made by the commission.
Shortly thereafter, the commission announced a short recess.
Behind Closed Doors
Instead of taking a recess, the Water Commission in fact conducted an executive session. Staff from the commission were in frequent communication with the Amfac delegation while commission members huddled with their deputy attorney general to discuss ways of satisfying Amfac while trying to address the concerns of its own staff as well as the windward farmers.
The commission reconvened nearly an hour later, by which time it appeared that Hatton and the commissioners had come to a preliminary agreement. The diversified agriculture users on the leeward side would continue to get water from the ditch for another six months and O’ahu Sugar would get water to carry it through to the end of the year. What was left over, after accounting for leakage and evaporation, would be put into Waiahole Stream – an amount that would approach or exceed 12 million gallons a day on most days.
But Hatton suddenly remembered Del Monte. Del Monte had never figured into anyone’s calculations as a user of Waiahole Ditch water. Yet Hatton was now seeking to reserve up to 4 million gallons a day for Del Monte Fresh Produce (Hawai’i), Inc.
Special Favors
Here’s Harton’s testimony: “I believe, if I’m – I don’t – actually, I’m a little uncomfortable because – I don’t – the four million gallons is on lands just mauka of the Waiahole Ditch in the Kunia area, currently used for pineapple, and I have nothing in front of me today to prove it to you, but our understanding is that from time to time pumps have been placed in the ditch, under day-to-day agreements between management of O’ahu Sugar Company and management of Del Monte, and Del Monte has indeed used water on those lands. Although I have nothing to show, to prove on that right now. And I guess the issue is, if it could be used, it’s not a release, it’s not a waste, it’s not a whatever words we are using.”
In addition, Hatton now was asking that the Water Commission waive the requirement that new “interim” users of Waiahole water on leeward O’ahu go through the process of applying for use of the water. “Let’s say, for example, one of the farmers sees the opportunity to take advantage of a particular market, and he could use an extra million [gallons per day], and it isn’t covered by the waters that we’re talking about today,” Hatton said. “There’s a way he could come in to take it, plead his case for the water, and not have a 180-day process.”
The Windward Case
Ron Albu, attorney for the windward petitioners, scolded the commission for the “shuttle diplomacy” that occurred during the first recess. The position he staked out on behalf of his clients was that none of the leeward users had complied with the state Water Code regarding the timely filing of applications for use of the windward water and that, therefore, “all uses at this present time are without right.”
Albu requested a contested case on the dumping allegations – allegations which, by the way, had been made by his clients last May. The commission has “an obligation to stop the dumping,” Albu said. If the commission ordered the dumping to stop, the contested case request would be dropped, with all other matters being referred to mediation.
The terms that had been discussed with Hatton were rejected by Albu – especially insofar as Hatton proposed the waiver of the permit application process for new users. “The problem is we’re using a back-door method,” Albu said. “We’re being told ‘We’ll stop the dumping if we can initiate brand-new uses without permits.’ And, I mean, if everybody did that, then why have a Water Commission? Why have a Water Code?”
Walkout
Albu asked Ahue: “Has anyone even asked if Waiahole Irrigation Company is willing to stop the dumping?” By that time, however, Hatton and Oshima were long gone.
In the end, following another executive session, Ahue summarized the bind that the Commission was in: “I don’t know if Amfac is back, or their representatives, but we’re in a situation right now that we have had a contested case hearing first of all requested from the windward representatives… We also have had a contested case hearing [request] from Amfac… So we feel that if we were to alter the staff recommendation that is before us [as amended by Amfac’s requests], Amfac would reinstitute its request for a contested case hearing, which would mean that we could neither vote on the question of alleged waste or alleged dumping, nor could we vote on the various alternatives… Which essentially means, at least from our standpoint, that we are unable to vote on this issue today.”
Albu noted that Amfac, by its absence before the meeting’s conclusion, had forfeited its right to reinstate its request for a contested case. Ahue was insistent, however, that no decision would be made this day.
The meeting was continued to October 19, with the understanding that all the parties seeking the use of the Waiahole Ditch water be invited to explore the possibility of using mediation as a means of resolving the issues. No decision was made on the matter of Amfac’s waste of millions of gallons of water a day, but Amfac was to be approached by the commission staff to see if it would agree voluntarily to stop the practice.
462 Million Gallons Later…
On October 19, the Water Commission reconvened the continued September 28 meeting. Assuming average flows in the Waiahole Ditch over that time, some 462 million gallons had been dumped in leeward O’ahu gulches in the time elapsed between the two dates. Amfac’s Hatton had been asked by the commission staff on October 10 to stop the leeward releases of water; according to Rae Loui, who heads the staff, “the answer was no.”
A number of other developments had transpired in the intervening time.
– The Water Commission staff sponsored a three-day conference on stream restoration, where dozens of scientists from Hawai’i and elsewhere presented summaries of their work on streams, estuaries, and near shore waters. At the end, all agreed that the perceived drawbacks of restoring natural flows to streams – flooding, sediment loading, reduced salinity of nearshore waters, and a host of other problems – were outweighed by the prospective benefits to aquatic life and coastal management.
– Two meetings had been held concerning mediation, with a deadline of noon October 18 set for all parties to agree to the process. All had done so, with the further agreement reached that the scope of the mediation process would be determined in the mediation itself.
– Ahue wrote Amfac’s Hatton seeking clarification on the status of the permit application Amfac had filed and then, in August, had announced it was “suspending.” “If the applications are active,” Ahue wrote, existing uses “may be continued until such time as a decision is made on the applications.”
Hatton responded on October 14 with one sentence: “Pursuant to your letter to me dated October 6, 1994, please be advised that the permit for Waiahole water is still being actively pursued.”
– Also on October 14, Jack Keppeler, a deputy director of the Department of Land and Natural Resources, forwarded to the Water Commission a “Draft Preliminary Environmental Assessment regarding the release of Waiahole Ditch Water to Windward or Leeward O’ahu.” “I forward it to you with some urgency,” he continued, “as it speaks to the issue of ‘alleged waste’ caused by the current release pattern.” The six-page, 1,200-word “environmental assessment,” prepared by the engineering firm of Mink & Yuen, contains no data, but manages notwithstanding to arrive at no fewer than eleven “conclusions and recommendations,” every one of which speaks in favor of allowing the dumping to continue. In a telephone interview, Keppeler stated that he had asked for the preliminary draft environmental assessment to be prepared at this time since he felt it was especially important to have the issue of aquifer recharge brought into the discussion.
On October 15, taro farmers and others associated with the three windward petitioners for stream flow restoration held a news conference in Waiahole. After conducting a tour to the ditch itself, the farmers began removing the stacked-up planks that keep the water from flowing out of the ditch. For the next several hours, the water cascaded down the falls and into the taro lo’i.
The Conclusion
On October 19, the Water Commission considered the proposal of staff to defer any action on contested case requests, waste of water, or any other matter related to the use of Waiahole Ditch water, while mediation was underway.
Charlie Reppun indicated to the commission, however, that it was his understanding, going into mediation, that “you, as commissioners, have to decide where that water’s going to be while mediation takes place.”
Ahue disagreed. “Our understanding is incorrect as far as the commission is concerned, because we will not be ruling on anything today,” other than whether to approve the mediation process.
Reppun: “So, what you are telling me is you are deciding the water will continue to be released on the leeward side while mediation proceeds?”
Ahue: “Yes.”
In the end, the commission voted to approve the process of mediation, while all requests for contested cases are held “in abeyance.”
Coda
Among other things, the state lease held by Amfac to take water from the back of Waiahole Valley provides that if any water is to be “wasted” – that is, not be needed for agriculture – Amfac is to waste it on the windward side of the Ko’olau range.
At the October 19 meeting, Charlie Reppun asked whether the Water Commission had notified the Board of Land and Natural Resources, which issued the water lease, of Amfac’s failure to comply with the condition of the lease requiring surplus water to be released on the windward side. According to Ahue, who is chairman of the Land Board as well as the Water Commission, no notification had been made.
Volume 5, Number 5 November 1994
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