Parting the Waters
Farmers and Politicians Make A Case for the Waiahole Ditch
If a tree falls in the forest, and no one hears it, does it make a sound? And if a stream flows through a valley and into the sea, and no one uses it, is it wasted water?
The Hawaii Supreme Court hasn’t actually heard arguments on the first case. But on Aug. 22, 2000, it handed down a landmark decision on the latter case, an appeal of the Commission on Water Resource Management’s 1997 decision to reallocate the water collected by the Waiahole Ditch. For nearly 80 years, the Waiahole Ditch irrigation system had transported water from the Windward to the Leeward side of Oahu. In the 1997 decision, approximately 10 million gallons of water per day (mgd) were reallocated to Windward streams. It was the most comprehensive assessment of water law and the first time in state history that diverted water was returned to streams.
The court’s judgment answered both questions along with a myriad other issues that have been in dispute for decades. In the decision, the court reaffirmed the public trust doctrine and the State Constitution saying that the “duty to protect public water resources is a categorical imperative and precondition to all subsequent considerations, for without such underlying protection the natural environment could, at some point, be irrevocably harmed.”
“Realistically, if we hadn’t been here, the water would have never been returned,” says Paul Reppun, a Windward farmer and longtime community activist. “But the Supreme Court’s decision said that even if farmers hadn’t been here in Waiahole with a need for water, there still would be a public interest in maintaining free-flowing streams and near shore waters.”
The Waiahole Ditch irrigation system, constructed from 1913 to 1916, had transported almost 30 mgd of fresh water from rainy Windward Oahu, through the Koolau Mountain Range, to the parched Leeward side of the island and its thirsty sugar cane fields. The diversion of the water fueled the Islands’ economy and shaped Oahu’s development for nearly 80 years.
For more than 30 years, Windward farmers and community representatives petitioned for a return of water to their streams, but it wasn’t until 1993 when the Oahu Sugar Co. announced that it would stop growing sugar cane that the fight for water got serious. The resulting litigation involved many of the largest landowners in the state and nearly every major law firm in Honolulu.
In 1995, attorneys for the various parties involved, hammered out an interim agreement while the Water Commission decided on the final allocation. At that time, more than 10 mgd was put back in the Windward streams, the first time the waters flowed so swiftly in nearly a century.
According to taro farmer and avid fisherman Danny Bishop, the health of Waiahole Stream has improved dramatically since the flow was increased on an interim basis in 1995. Exotic freshwater species of fish were immediately flushed out, clearing the way for native fish and snails. In addition, the area’s near shore ecosystem was partially restored, a prime breeding ground for marine life.
“We knew things would improve, but we didn’t expect them to improve this much, this fast,” Bishop says. “Ask any longtime fisherman around, and he’ll tell you about the improvements. I’ve never pulled up so many hee (octopus) before. We still have a lot of problems in Kaneohe Bay, but the return of the water isn’t one of them any more.”
In December 1997, the Water Commission issued a 250-plus page ruling, increasing the amount of water distributed to Leeward parties by 3.8 mgd. In January 1998, the decision was appealed to the Supreme Court, and more than two years later, the court issued its historic ruling.
“For a long time, there was a perception that water flowing into the ocean was wasted water. The scientists didn’t think that was the case and neither did the people who fished the waters of Kaneohe Bay, and now the Supreme Court sees the value of free-flowing streams,” says D. Kapua Sproat, attorney for Earthjustice, which represented a coalition of community groups and filed the appeal to the Supreme Court.
In December 2001, the Water Commission issued another decision regarding Waiahole water. Shortly thereafter, Sproat filed another appeal to the Supreme Court. While every decision is crucial to the parties involved, Sproat believes that the long battle for Waiahole water may be near an end. “I fully expect that after the next decision, there will be more issues that will be remanded back to the Water Commission,” Sproat says. “But the initial decision covered so much ground, I think many of the issues have been settled.”