Court Rebuffs Waiahole Water Challenges

An appeals panel accepts state rulings that divide water between Windward and Central Oahu

By Ken Kobayashi

POSTED: 01:30 a.m. HST, Oct 15, 2010

The state appeals court has rejected two of three challenges by Windward farmers and environmentalists who want a state commission to direct more water to flow from the Waiahole Ditch to Windward streams.

In an unanimous decision, the Intermediate Court of Appeals upheld most of the 2006 decision by the Commission on Water Resource Management, which divided the ditch system's 27 millions of gallons of water a day in roughly equal amounts to Central Oahu and the Windward watershed.

The court rejected challenges by Hakipuu Ohana, Ka Lahui Hawaii and Hawaii's Thousand Friends, which wanted the court to overturn the commission's allotment of 4 million gallons a day to Campbell Estate and to increase the water flow to Windward streams and stream-side taro farms.

The court agreed with the challengers on one point in ordering the commission to reconsider granting 750,000 gallons a day to Puu Makakilo Inc. for a golf course.

Lawyers for the three groups could not be reached for comment yesterday. They have the option of seeking an appeal to the Hawaii Supreme Court.

The appeals court decision is the latest development in the more than 15-year-old dispute pitting Central Oahu developers and agricultural interests against the Windward farmers and preservationists.

The Waiahole Ditch System and its 2.7-mile tunnel through the Koolaus were built about 95 years ago. It delivered fresh surface and ground water to Central Oahu sugar cane fields until Oahu Sugar Co. ceased operations in the mid-1990s.

Windward taro farmers and others began pushing for the water to be returned to the Waiahole, Waianu, Waikane and Kahana streams. The water commission began hearings in 1995 and, in two rulings in 1997 and 2001, allocated some of the water back to the Windward side.

The Hawaii Supreme Court overturned parts of those decisions both times, paving the way for the third decision by the commission in 2006.

The commission ruled that 12.57 million gallons a day would to go to Central Oahu users, including Campbell and Puu Makakilo. It also ruled 12 million gallons would be restored to the Windward streams.

The remainder, 2.43 million gallons, would be returned to the streams until a need for the water arises in Central Oahu.

The appeals court said the commission's decision to grant Campbell its allotment was "consistent with the analytical framework" of the earlier Supreme Court rulings.

The challengers argued that water from the Waipahu-Waiawa Aquifer was available to Campbell, which is now the James Campbell Co., but the court upheld the commission's ruling that it was better to use the nondrinkable Waiahole water for Campbell's irrigation and conserve the drinkable Waipahu-Waiawa water.

In rejecting the challengers' contention that more water should be left for the Windward watershed, the appeals court upheld the commission's findings that the flow of water through the Windward streams is more than the flow in the 1960s. The appeals court said the findings comply with the Supreme Court's mandate.

The court agreed with the challengers that the commission should have considered what they said was evidence that Puu Makakilo no longer needs the water because its plan to operate a golf course had been indefinitely delayed or abandoned.

The 35-page opinion was issued on Wednesday by Chief Appeals Judge Craig Nakamura and substitute appeals Judges Sabrina McKenna and Derrick Chan.