Waiahole Ditch Controversy
Price of Paradise · Hawaii Public Radio · aired 1995-07-09
Guests: Alan Murakami (attorney); Douglas MacDougal (attorney); Fred Trotter (chairman, State Water Code Review Commission) (role stated by host); Rae Loui (role not stated in transcript)
Duration: 01:05:07

[00:00:05] Randall Roth: Good morning. This is the Price of Paradise radio show. My name is Randy Roth, and we're broadcast live on KHPR 88.1 FM and KKUA 90.7 FM. This evening, you can hear a replay of the show at 8 o'clock on KIFO 1380 AM. Our topic this morning is water, and with me in the studio to talk about it are two attorneys. The first, Doug McDougall, is a partner in a Honolulu law firm called Ashford and Wriston. He has for many years represented clients on all sides of real property and water matters.

[00:00:43] Randall Roth: In 1992, he was appointed by the state legislature to the Review Commission on the State Water Code. He chaired the legal issues subcommittee and worked for two years with other members of that commission to present a draft a draft revised State Water Code to the legislature for its consideration. Doug has written and lectured extensively on the subject of water and is an adjunct professor of law at the William S. Richardson School of Law. Also in the studio is Alan Murakami. Alan is the litigation director of the Native Hawaiian Legal Corporation, a non-profit law firm established to provide legal assistance to Hawaiians on issues of major concern to Hawaiians.

[00:01:23] Randall Roth: He has worked on numerous land and water issues of concern to Hawaiians, attempting to exercise their legal rights in accordance with Hawaiian tradition and custom. Alan has represented Hawaiians seeking to enforce their rights to water on Hawaiian homelands and Kuliana. As a member of the Review Commission on the State Water Code, he worked for two years to produce recommendations for the legislature to improve the administration of the code. He has assisted in the editing and writing of the Native Hawaiian Rights Handbook and testified extensively before governmental bodies on water, land, and public trust issues involving Hawaiians.

[00:02:01] Randall Roth: Well, as I said, our topic this morning is water and eventually, we're going to be talking about an issue that's been written up in the newspapers a lot over the last couple of weeks. It's the Wiahole Ditch controversy. But first, I thought what we would do is talk a little bit about uh the big picture. Uh I for one get confused. There's something called the Water Commission, and then there's this Review Commission on State Water Code that both Alan and Doug are a part of. And there's the Water Code itself. Uh Doug, why don't you start by telling us a little bit about what, let's start with the Water Code. What is that?

[00:02:39] Douglas MacDougal: Okay, the Water Code was enacted by the Hawaii legislature in 1987 to manage Hawaii's water resources. And in that code, a commission was established to oversee this this management of water resources. And uh that commission is called the Water Commission.

[00:03:05] Randall Roth: And they're the ones that actually make the decisions on who gets to use the water and how much they can use and what they can use it for?

[00:03:11] Douglas MacDougal: That's right.

[00:03:12] Randall Roth: Okay. What about this this Review Commission on State Water Code?

[00:03:18] Douglas MacDougal: In that original Water Code, in the in the enabling legislation, um the legislature said we want to take a look at this five years down the road. And so it provided that five years after 1987, 1992, a review commission would be established to to see if it's working. Is the water code working? Is the Water Commission working? And to pro present its uh report to the legislature.

[00:03:45] Randall Roth: So the Water Commission, those are the folks who are actually making decisions with respect to water use. The commission that the two of you are on, the Review Commission, you're the experts, you're evaluating where the whether the law itself seems to be working and whether the the Water Commission seems to be doing a good job.

[00:04:01] Douglas MacDougal: That's right.

[00:04:02] Randall Roth: Okay. Alan, did we leave anything out on that basic explanation?

[00:04:06] Alan Murakami: No, that really I think that was a pretty good description.

[00:04:08] Randall Roth: Well, Alan, what do you think? Is the water code working?

[00:04:11] Alan Murakami: Um, I think for several reasons that are more detailed in our report to the legislature this past year, uh we believe that there are some key areas in which the water code needs to be improved. Uh which was left probably unaddressed by the 1987 legislature or manipulated and put into a form that didn't quite work in reality because of the the multitude of interests that were lobbying around the water code at the time that over time has proven to be inefficient or ineffective for the kind of mandate that the Constitution provides that there be for the management of this important resource.

[00:04:49] Randall Roth: Now, are are these uh unanimously held if if all did all of the people on the commission have these these same concerns? Or does it vary, because I know that there's there's quite a bit of diversity on this review commission. You for example are on the side of uh the folks who want the ditch water uh returned to the windward side and and uh Doug's firm at least is representing Campbell State, which is fighting for water for the leeward side. So you two have quite a bit of differences between you. Um these recommendations, did the whole commission pretty much buy into them, or was it a majority vote type thing?

[00:05:27] Alan Murakami: Well, everybody signed the report. So at the very end, the common result was bought into by all members of the commission. It is true. We've had um very heated discussions and but they've all been at a level in which we agreed to disagree when we needed to.

[00:05:42] Alan Murakami: But the final product, I think pretty much reflects a consensus document and that's what the most remarkable thing about this uh commission's work product is that it is despite all the rancor that's evident in a lot of water discussions and that was reflected in part in our discussions, we were able to come up with major principles, major areas of common ground where we agreed and we said, "Look, this is where the code needs to be improved."

[00:06:09] Alan Murakami: There are even members on this commission that uh dated back to two prior commissions that were appointed by the legislature and the governor to review uh water administration in in the state. And and they were lending their immense uh historical background on on on this whole process of developing a code to this product as well. And and they also agreed. So, we we came up with a pretty good consensus document, I think that that all of us did feel comfortable signing on to.

[00:06:37] Randall Roth: Okay, Doug, what what comes to your mind first in terms of of what this Review Commission had to say? What what needs to be changed?

[00:06:47] Douglas MacDougal: Well, it's it's a it it was such a broad approach and when we went to all the outer islands and had many, many hearings, several common themes emerged. Uh one of them was the representation of the Water Commission. At the time they were all uh all Oahu members. There was no outer island representation at all and we heard a lot about that. So our recommendation is to have one member from every county be on the commission.

[00:07:23] Randall Roth: Let decisions be made by a statewide group as opposed to letting the counties make uh these decisions?

[00:07:29] Douglas MacDougal: Well, we heard a lot of this so-called home rule issue, which is that counties ought to make their own own judgments about water. Why should somebody who's digging a well and and on the Big Island have to go all the way to Honolulu and and ask if it's okay? And I have a lot of sympathy with that, frankly, and I was probably one of the people on the commission who felt most strongly that allocation decisions should be on the county level and not at the state level.

[00:08:02] Randall Roth: But the Commission suggested a statewide process?

[00:08:05] Douglas MacDougal: Statewide process, but we did put in in the proposal that the State Water Commission could delegate to counties the right to allocate water if in the Water Commission's judgment, the counties were had the staffing and the financial resources and so forth to do it.

[00:08:28] Randall Roth: Okay. So that potential is there. Alan, what what do you what comes to your mind in terms of the various criticisms, the suggestions for change, uh what do you think is the most important suggestion that's been made?

[00:08:39] Alan Murakami: Well, I think one of the primary areas that we uh addressed was this notion of designation. Right now we have a system where parts, most of the state geographically, is not really under the commission's so-called water management regulation regulatory power. Um the code currently provides for process for the commission to first take the initial step of saying we're going to designate this areas when the conditions are ripe for uh managing a system of water use permits for this area.

[00:09:11] Alan Murakami: And this again is a result of the compromise reached in 1987 when the counties um they they objected to the initial thought of or and recommendation of prior commissions to impose a statewide system of regulation of water use, and pulled back short of that and said, "Okay, we're going to have we're going to have a preliminary step. We're going to say first let's find out whether or not this area should be regulated because of of the diminishing water supplies." Then we'll set up a system if we agree to that of issuing water use permits for all the the major uses of water in that particular area.

[00:09:43] Alan Murakami: We have recommended because of the problems we've seen with the designation process, which has consumed a lot of the commission's time in the past and still does, to get by that, let's just regulate the entire state and make this option available to the county if they can prove that they have the resources to step into the shoes of the regulator Okay, when when that when those conditions are appropriate.

[00:10:04] Randall Roth: And I guess what we're talking about is regulation, and in a question that I think some people have is why would there be so much regulation? In other words, if if somebody owns some water and if they want to use it, let them use it. And if they want to sell it to somebody else who's who's got a a more valuable use, let them do that. Um I assume that that your commission's recommendation didn't suggest that we regulate less and let the market control. Is my assumption correct, Doug?

[00:10:34] Douglas MacDougal: I think it's partly correct. It's correct in that anybody who looks at it is probably going to say there's certainly not less regulation here. On the other hand, there are structures in place that in my view, and my hope, ultimately could lead to less regulation. I'll give you an example. I see that basically the mission of the the Water Code in the management of water resources ought to be threefold. One is to protect the resource. That's water conservation. Rights management, and the third would be to allow beneficial uses of water beyond that.

[00:11:13] Douglas MacDougal: I see the state's primary role, its primary function as protecting the resource. I don't necessarily see that the state needs to get into the business of allocating water. My hope is that down the road, allocation can be something that is pushed off onto the counties.

[00:11:32] Randall Roth: Okay. Well, Alan, we're we're just about ready to invite people to call in with their questions and their comments and and I know we're going to be talking about Wiahole Ditch in particular, but one last kind of overview matter that I need to know more about, and that is how does the Native Hawaiian aspect of this, um somehow influence the way the water code is written or the way it's administered by the commission?

[00:11:54] Alan Murakami: Well, what I think a lot of people fail to appreciate is that uh the water rights that Hawaiians have are are very important and in fact, assume primacy in the hierarchy of uses that should be uh allowed for the various modern day uses that are currently exist.

[00:12:09] Randall Roth: And and why is that? Where does that come from? Is that from the constitution or a law that the legislature made or from tradition? Just where does that uh highness in the in the prioritization come from?

[00:12:22] Alan Murakami: Well, it comes from a variety of sources. Um and they're and I could probably list them as being the constitutional provisions that are in effect. Uh there are um common law authorities that are in effect, their decisions that reach back into the into the mid 1800s that established this principle for a variety of kinds of Hawaiian water uses. And there are federal laws in place. Um the Hawaiian Homes Commission Act, for example, was enacted by Congress in 1920, and it does provide for some primacy in the water use primarily particularly on state lands. And these are very important areas since we have a lot of state land in this state.

[00:12:58] Randall Roth: So, so for example, when Doug was talking about uh maybe the trend is towards less regulation and people being able to more freely transfer water, uh you would say, not to the extent that it's going to reduce the uh Native Hawaiian rights that the that are currently being enjoyed.

[00:13:17] Alan Murakami: The the the urging of the free markets to take control of water rights is really both a misnomer and a misunderstanding. We never have free markets. And that's been the problem with a lot of our areas, taxation for example. Yeah. Um and so in order to compensate for the lack of a free market, really we have to have some regulatory protections, particularly when important rights like water rights are involved.

[00:13:40] Alan Murakami: And Hawaiians, frankly, have have lost their water rights in a lot of instances because they have been ignored. And they've been ignored because Hawaiians in the past have failed to be able to get access to courts and the and the money and resources to enforce those rights even though they exist today.

[00:13:57] Randall Roth: I want to remind listeners that this is the Price of Paradise radio show. My name is Randy Roth, and I have two lawyers in the studio with me. Both of them are members of the Review Commission on State Water Code, and um each is on the opposite side with respect to the Wiahole Ditch matter that we're going to be talking about in just a bit.

[00:14:16] Randall Roth: Douglas McDougall is an attorney with the law firm of Ashford and Wriston. They represent the Campbell Estate, which is on the, I'll call it the leeward side of uh of the ditch issue. He's an adjunct professor at the University of Hawaii, and he's written and lectured extensively on the subject of water. Alan Murakami is the litigation director of the Native Hawaiian Legal Corporation. That's a non-profit law firm that's been established to lend legal assistance to Hawaiians, and he too has done a lot of speaking and a lot of writing on the topic of water.

[00:14:59] Randall Roth: If you'd like to ask them a question or if you'd like to make a brief comment, all you have to do is call us at 955-8821 and neighbor islanders are always invited to call us collect. The number again is 955-8821. Well, we have a caller from Kailua. Liz, good morning, Liz.

[00:15:21] Liz: How are you doing, Liz? I'm fine.

[00:15:24] Randall Roth: Okay. Do you do you want to people know who you are?

[00:15:27] Liz: Uh yeah. I don't know, doesn't matter. I think the question is most important. And I wanted to know if they could address the recommendation made by their chairman of the Water Code Review Commission in the newspaper this morning about the Department of Ag and the Agribusiness Development Authority uh taking over water responsibilities especially with respect to irrigation uh systems in Hawaii.

[00:15:48] Randall Roth: Okay. Okay. Normally we only have a a first name for people calling. I happen to know that that Liz is is Liz Martin, who's the um uh executive director of the Native Hawaiian Advisory Council and uh an expert herself on water issues, very much interested in all of this. And the article that she's referring to, if anyone hasn't seen it yet, it's on page B3 of the Advertiser. The uh headline is "Wiahole: Tough decisions ahead". It's by Fred Trotter, who is the chairman of this Review Commission that uh Alan and and Doug are members of. Alan uh how would you answer Liz's question?

[00:16:22] Alan Murakami: Well, I think uh Fred first of all wrote that as an individual. Um on the other hand, I am aware that Fred has been very interested, and I think he is a strong advocate for Hawaiian water rights and he's said so on many on many occasions in our discussions. But I think maybe where the article may have failed to uh maybe highlight this particular interest that he has is in uh failing to recognize that in one of our recommendations that has been well, actually, primarily authored by by Doug himself uh the on the hierarchy of uses that we were recommending be um encoded in the new water code.

[00:16:56] Alan Murakami: We have recommended that a a hierarchy of uses be set up to be to be respected by the commission in all of its decisions. So there isn't this hierarchy now, or you're talking about a changed hierarchy? No, I we're talking about a reflection of existing law that uh we're going to codify. It's something that already exists.

[00:17:15] Randall Roth: It's floating around out there and you just want to make it real clear so people know exactly what that hierarchy is.

[00:17:20] Alan Murakami: That's right. And um what the article I think doesn't quite recognize uh or doesn't highlight really is that the hierarchy would respect as the number one and number two priorities the in-stream uses and the Hawaiian water rights that are very important in our system of of water law.

[00:17:39] Randall Roth: Okay. And both of those I assume would tend to support the windward side argument on the ditch issue.

[00:17:46] Alan Murakami: Well, yes, in general, and I think with respect to a general regulatory scheme, it would it would be consistent with the idea of putting those rights and those uses that the law recognizes already as being primary up ahead of everything else. And then make start making rational, coherent decisions on reasonable, beneficial use for everything else.

[00:18:04] Randall Roth: Okay. Doug, do you have anything to add to Alan's answer to uh Liz's question?

[00:18:09] Douglas MacDougal: Well, I think the specific question regarding the uh Department of Ag and the Agribusiness Development Corporation, I think it should be I think your listeners should know that under the water code, the Water Commission has the authority to give bulk allocations to the board of water supply or other county purveyors. Um I think what Fred is referring to here is the commission's ability. It it what they're saying is they ought to be able to give a bulk allocation to the Department of Agriculture or some other entity that could then take that bulk amount of water and distribute it to farmers.

[00:18:51] Randall Roth: And and I I think right now we're really talking about uh the leeward side. In other words, if the Department of Agriculture, for example, took the Department of Agriculture Transcribe this audio file completely and accurately. Identify distinct speakers and label them (Speaker 1, Speaker 2, etc.). If you can identify speakers by name from context, use their names. Include timestamps for each segment in MM:SS format. The primary language is en. If other languages are detected, note them. Identify the primary emotion of each speaker segment. Provide a brief summary of the entire audio at the beginning.

[00:19:00] Douglas MacDougal: we're given a large quantity of of water to distribute. The impression I have is that most if not all of that would go to support the new diversified agricultural efforts on the leeward side that are more or less replacing sugar cultivation. Is that accurate or or not, Doug?

[00:19:17] Alan Murakami: Well, it depends. we're starting to get into an area of complexity here because I think what Fred was talking about is the excess over the existing use. excess over the amount that may already be going to Leeward, and that uh a a further bulk allocation could probably be used to supplement Leeward and Windward. I think that's what he's saying here.

[00:19:43] Douglas MacDougal: Okay. Liz, does that answer your question?

[00:19:46] Liz: Well, not only did he want um existing uses to be taken care of that, he wanted new uses too. Right? So he was he wants all the uses um to be considered right now, then taken into consideration those other um rights that we think have primacy.

[00:20:01] Douglas MacDougal: So so you're concerned that what's reflected in in Fred Trotter's article is different than the proposed hierarchy that puts uh uh instream use and native Hawaiian rights uh at the top of the list.

[00:20:14] Liz: Well, I just think he could explain it in a way that's more accurate than that maybe maybe his way would work if they would take that into consideration.

[00:20:22] Douglas MacDougal: Okay.

[00:20:23] Liz: And the question is whether the Department of Ag is the right person to do it or whether somehow Hawaiian decision-making authority should run through in some of these decisions that are going on.

[00:20:33] Douglas MacDougal: Okay. Well, that's a a really good point and and in a bit, I want to come back to um the role of of the state government in this process because they're actually one of the contestants, as I understand it, in this controversy, and yet uh very much at the center of of making the decision. Um Alan, has something to say on that and then we're going to move to another caller. Thank you Liz. I really I appreciate your calling in. Alan?

[00:31:23] Alan Murakami: when I mentioned the hierarchy uh when I mentioned the hierarchy [unintelligible — audio glitch],

[00:34:28] Liz: and the most beneficial use is protecting uh the resource. And since streams and the groundwater are connected, since it's all one water. So to divide it up into way holy ditch and against water, it's really gone down to the point where it's jobs, farmers, and uh Windward Leeward side against the resource.

[00:34:58] Douglas MacDougal: let me ask

[00:34:58] Liz: and what we've got to do is get back to the basic resource which the constitution requires the the commission to do, not just manage but to conserve and protect the resource.

[00:35:01] Douglas MacDougal: Martha, let me ask Alan whether whether he agrees that the resource is kind of getting lost in the shuffle. That you've got uh folks like the Native Hawaiian Legal Corporation fighting to get the water to the windward side because they're individuals over there who want to use it for tarot farming or what have you. And you've got uh law firms like Doug's that are fighting to have the water uh over on the leeward side to, at least in the short run, support diversified agriculture, perhaps in the long run to support further development. Are the two sides doing battle so much over where the water is going to go that nobody's paying proper attention to the resource itself, as Martha put it?

[00:35:41] Alan Murakami: Well, I I would tend to disagree with the statement that uh the arguments being forwarded for the traditional Hawaiian uses and uh the protection of the stream is not being is not consistent with protecting the resource. That's exactly what I didn't see the whole notion of protecting resources is about. We're talking about But you think the resource is being watched out for in this process?

[00:36:07] Alan Murakami: Let me say that I think that the arguments being forwarded by the the people on the windward side are totally consistent with protection of the resource, at least much more so than trying to transport it for whatever other political economic reasons they be maybe for getting the water over to the Windward to the Leeward side.

[00:36:25] Douglas MacDougal: So you'd say economics is on the side of the the leeward folks and things like what Martha is is suggesting that is concern for the resource itself, support the windward side, your side.

[00:36:37] Alan Murakami: Not exactly. I I'm I'm also saying that economics support the windward side too, after all, water can be used in the windward side for economic purposes. The the whole debate here is whether you're going to allocate that water more for the leeward side's economic use than for the windward side's economic use. But the windward people are also saying, 'Hey, wait a minute, this water naturally belongs here, it is part of our economic cycle as well as our ecological cycle.' And it should be something that should be respected to the greatest extent possible.

[00:37:06] Douglas MacDougal: A good lawyer making as many arguments as possible, right? Doug, once you comment on that, then we'll go back to Martha for one last comment.

[00:37:13] Douglas MacDougal: Well, I think that uh, I mean, when I look at this issue, I remember a trip I took into upper Kunia and I could see just this vast expanse of deep rich soil with fields of tomatoes and watermelons and bell peppers. And and I've also been on the windward side. I've watched the the rushing roar of Waholy stream. I mean, it's there are obviously compelling moral reasons on both sides, but I think you have to realize that an economy has been established on the leeward side, a very vital economy for Oahu. And if, I mean, the the the vegetable

[00:38:00] Speaker 1: that could be produced, that people on Oahu want, could be produced in abundance. It's one of the, probably along with Central Maui, it's one of the choicest agricultural regions in the state. And to have the water cut off and have that dry up, I think would be absolutely wrong. Okay.

[00:38:22] Speaker 2: Alan. One point on that. Um, I think this the kind of statements that have just been made kind of drives the debate in, in, perhaps unnecessarily in the wrong direction. Um, nobody disagrees that people who are farming are important parts of the economy. I think even the windward farmers feel themselves in some kinship and brotherhood with the farmers on the leeward side. And they don't, they hate to see see this thing turn the media to be a fight against windward versus leeward farmer. Um, and I think there's room in there for discussion, compromise and some allocation of resources between them, between the two sides.

[00:39:00] Speaker 2: But there're important issues here that are, are being cast aside on the and and not being considered when you talk about this, this this fight. And I've raised them before. If you're talking about wa water either being on the windward side or leeward side, what, what about the water that's already on the leeward side? And there are two major sources. One is affluent reuse that the affluent that is being dumped into the ocean.

[00:39:21] Speaker 1: The treated sewage you think could be used, um, instead of the Waihole Ditch water. That's a major issue that is yet to be fully addressed, that could serve as a major source of water for Leeward Farmers, and there's over 100 million gallons there, much more than that's needed in on the on the, uh, Leeward side. If only a fraction of that was set aside, everybody would be happy. Now, there may be some delivery problems and that kind of thing. But we need to examine them, but we we need to talk about that.

[00:39:49] Speaker 1: Can that be investigated fully in time for the making of this decision, because the decision itself is going to be made by the end of the year? That's right. Will they have that information? Well, that's one of the positions that, uh, our clients have taken, that this needs this important decision needs to be addressed.

[00:40:06] Speaker 2: And if it's not, it cannot be physically addressed or practically addressed within the next couple of months, then there should be some structured way of addressing that so that in the long term, that source is, in fact, utilized and made and become a beneficial source of water for the leeward farmers. In addition, 70 million gallons of water that is under water use permit to the Wahiawa Sugar Company, which is now out of existence, is is out there floating around as a lapse, is this water not going to be used at all by the the leeward side? Um, those are the kinds of questions that need to be addressed before we start talking about farmer versus farmer.

[00:40:44] Speaker 1: Okay. Martha, one last comment.

[00:40:46] Martha: Okay. Professor Sachs, who was the Dean of, um, uh, early environmental and continuing property rights related to ecology and and water resources, says that when water is taken out of a watershed, you are depriving the that watershed of its economic, social, and cultural, uh, property.

[00:41:08] Martha: And as such, you are removing an an economic value from that, uh, that, uh, area. And so it should be considered the economic, cultural, and uh, uh, social value of um, aesthetic value, recreational value of the water, as well as um, uh, transferring it out. And the one point that's been made is, and it keeps coming out. It's always the farming of windward of, um, uh, leeward farming, etc., where it's everything of one one side and basic consideration of the water and the hydrologic cycle and, uh, the natural situation as it is and should be. Okay. And then go into all of these other things.

[00:41:58] Speaker 1: All right. Thank you, Martha. We really appreciate your your contribution. Um, this is the Price of Paradise radio show. I'm Randy Roth, and my guests in the studio are Douglas McDougall. He's an attorney with the law firm of Ashford and Riston. They represent the Campbell Estate in the uh, Waihole Ditch matter. He's also an adjunct professor at the University of Hawaii Law School. Also, I have Alan Murakami, who's the litigation director for the Native Hawaiian Legal Corporation. They're very much involved in the Waihole Ditch matter and they're on the windward side representing a number of community organizations there.

[00:42:35] Speaker 1: If you'd like to ask them a question or make a brief comment, just call us at 955-8821. And if you uh, called in or if you tuned in late, you can hear a replay of the entire show this evening at 8 o'clock on KIFO, that's 1380 AM. Our number again if you'd like to call us is 955-8821. Well, we have on line four, Rick from Waihole, and it says in parentheses, a farmer. Rick, are you there? Yeah, hi. What do you have to say? Um, I think it's very important that um, it is true that there are other waters available. And there's a there's a real important point that the farmers in the leeward side are only getting short-term leases.

[00:43:26] Rick: And in the long run, is that really in the interests of the people? Because short-term leases um, the farmers

[00:43:36] Speaker 1: In short term, you're talking about 10 years?

[00:43:39] Rick: Uh, 10 years. Okay. So, they're going to glut the market, okay? And then you're going to have all these little farmers in Waianae and all over the islands, in Maui and outer islands. They might get run out of business by these big agribusiness guys. And then the agribusiness guys are going to be out in 10 years.

[00:43:58] Speaker 1: Okay. Well, let's let's get some reactions to that. Doug? Sure. Um, I think uh, the typical lease as I recall is 15 years, which is fairly standard for ag leases. I know I just saw in the paper about a week ago that the state was auctioning leases and they were all 15 years as well. Um,

[00:44:21] Douglas MacDougal: I guess the problem I have is, and those may be very valid concerns, I don't know, I don't know enough about agricultural economics, but it does raise a larger question is should the water commission be getting into those issues? Should these unelected people who are appointed primarily for their expertise in in water management and dispute resolution, be making economic and social decisions that essentially, I think, are properly made by elected officials preferably at the county level?

[00:44:59] Speaker 1: That strikes me as an awfully good question because in the long run, I suppose we're talking about whether there will be development as opposed to farming out there. And if there's water, there may be development. If there isn't, there won't be, and yet here we have the water commission making this decision that one would think would would normally be made by a different group.

[00:45:21] Douglas MacDougal: Yeah, and two points there. Uh, one is I don't necessarily see that development is the key here because I mean, I see, and I don't know this, but I could anticipate an accelerated development of Central Oahu if the ditch waters were to go away. So, uh, but the the question is, is the resource in trouble? Is the water resource in trouble? If it is, then the water commission ought to be concerned and ought to be acting.

[00:45:50] Douglas MacDougal: Beyond that, we're talking about issues of social desirability, and I don't think that's the role of the water commission. Okay. Um, Rick, you can just ask a question or make a brief comment because I've got a bunch of folks waiting. Okay. Um, there's there's another important point. What if nobody was living in Waihole Valley? The resource still has to be protected, even if there's nobody living here.

[00:46:15] Speaker 1: Well, and and both guests are are nodding uh I think that they agree with that statement.

[00:46:20] Douglas MacDougal: Water resource protection is really independent of of use. I I don't mean that literally because obviously one dramatically affects the other. But even if you had an aquifer and a low uh very slightly populated area or a stream in an unpopulated area, uh the water commission's duties are still the same. Okay. Alan Murakami? One quick comment about Doug's uh observation about an unelected water commission making this decision. The state constitution says the state has an obligation to protect, control and regulate the use of water, Hawaii's water resources for the benefit of its people. And it mandates further on that the water resources agency be created to do this.

[00:47:02] Alan Murakami: Now, uh there may be some outward attraction to the notion that an elected body should make these decisions. Um, I would contest that because the idea behind this constitution constitutional provision is to put some primacy and some rational and coherent thinking into the management of water. A very complex area. That that is, and that's why it should be relegated to a a specialized agency for the legislature, for the councils of the county to make these decisions in all instances, I think would put us right back in the whole we found ourselves in when we developed this particular constitutional amendment and I don't think that all such decisions on water, major decisions on water should be should be put in the hands of elected officials. Okay. Doug? Well, I don't disagree at all about delegating the legislature's delegating to an agency like the Water Commission these issues. The question is how far should it go. I think, uh, Ray Louis' article is And that's in this morning's Advertiser. This morning's paper is a good illustration of the tension. The the caption says, Water Commission will decide what's best for all.

[00:48:09] Speaker 1: Well, whoever wrote that headline uh caught on quickly. Right. And you'll notice in the first part of the her article, she says the the authority is uh to protect and manage water. That's like in paragraph three. And at the end, she sees the uh the Waihole Ditch issue as an allocation issue. Those are two different things. Mhm. Once you protect the resource, that's one thing. That's their primary mission. How it's going to be allocated is a totally separate issue. Mhm. and not that tied together. Okay. Well, we need to move on. Thank you, Rick. We appreciate your call. Uh Duke from Waikiki has been waiting patiently. Good morning, Duke. Good morning, Randy. And the guest. I have a question. Down here in Waikiki, some of us are studying the carrying capacity of Waikiki for tourism.

[00:48:57] Duke: But the the primacy here of the water supply is just one aspect of carrying capacity. If we took the entire water supply for the island of Oahu, as a glass of water, and and not worry really about the allocation right now. Those are separate issues. How much uh use right now are we taking out of this glass of water and how much surplus do we have left to allocate? Okay. Um, Alan or Doug, either one of you, it's kind of a technical question.

[00:49:29] Speaker 1: How much water is left? Um, that technical question, I wish Kazuhisa Hayashi was here before us as he has been in our view commission proceedings, but I remember one part Doug, and maybe you can correct me, where the I think the statement was made before us that the uh on Oahu at least, that there was 10 years left of natural water left. Yeah, I've also heard the statement that the island is overzoned.

[00:50:06] Douglas MacDougal: Namely, if every uh, use were to be maximized, uh, there wouldn't be enough. So there is a a need to conserve cut back. And so we are worried down here in Waikiki on the carrying capacity. I mean, you can have just so many tourists on the beach, and then you're going to have to roll the hot dogs, you know, like their hot dogs on the beach, everybody turns in unison. You can only have so much traffic down here. And this is very important. Uh we may want to expand in different areas, but if we are limited by the carrying capacity of the water to be dispersed, then we've got to know those figures, too, because that has to apply, uh, figure into our planning, uh statewide. Okay. Alan Murakami? Yes, I think that's a very good, uh, observation to make. The current water code is based on the premise that water follows land use. Therefore, whatever land use plans are being made, water should fall to accommodate that.

[00:50:46] Alan Murakami: There are certain members on the commission, like me, who who challenge this notion, and wonder whether we can afford to continue on that track of thinking. Because I don't think that we can forever and indefinitely think about water simply following land use, and always accommodating land use. And that we need to get to the point where the commission can say, wait a minute, water should first be determined to be of a certain supply, and beyond which we're going to have all these problems, whether it's delivery, whether it's um developing, whether it's transmission, and it should be able to translate that concern into its water management and regulatory functions. Well one one final point on that. Duke, you're going to have to make it real quickly. We are using up this water supply for just even drinking. Are we getting near the the capacity that this island has for people coming in here, moving in here to live? Are we are we getting to that point yet? Uh, let me make a uh a a comment. Uh we had a an engineer, a water engineer on the show a year or so ago, and his comment was that we have an unlimited amount of water. All we're talking about here is cost, because for example, we can take the salt out of the Pacific Ocean and that's water available to us. But cost is the limiting factor as opposed to water. Uh Alan Murakami. My point exactly to Duke that, yes, the answer has always been, well, we can we can always desalinate as the Israelis and and the Saudis do.

[00:52:12] Alan Murakami: I wonder, however, whether we are ready to assume that cost, because that cost will be spread amongst all of us. We will be asked to to spend huge amounts of money on desalination and all of us will pay if we go we go through that step. Okay. Duke, we appreciate your call. We want to remind listeners that this is the Price of Paradise radio show. My name is Randy Roth. Our guests in the studio are two attorneys. They're on opposite sides of the Waihole Ditch controversy. We have Doug McDougall, who's an attorney with Ashford and Riston, which represents the Campbell Estate and Doug is an adjunct professor at the University of Hawaii School of Law. Alan Murakami is the litigation director for the Native Hawaiian Legal Corporation. It's a non-profit law firm that provides legal assistance to Hawaiians, and it's co-counsel for a number of community organizations on the windward side in the Waihole Ditch controversy. If you'd like to ask a question or make a very brief comment because we're running out of time, the number is 955-8821.

[00:55:40] Speaker 1: I've got a a a variety of issues that have to be brought up, but we've got somebody who's been waiting uh Our guest two people have been waiting. Let's try and get to these calls quickly and then I'll raise my last several topics. Carol from Honolulu, good morning. Good morning, um Randy. Uh this is Carol Wilcox and I have a question about the actual amount of water that is being used and is being allocated in the interim um before final decisions are made.

[00:56:07] Carol: Um, as I understand the decision, 9.5 million gallons a day are going to be allowed to go through from the North portal. But under the mountain between the north and the south portal, another 4.5 million gallons accrue into the tunnel and into the ditch. So what comes out from the um So what the leeward side gets is more than what initially meets the eye? That's right. So it it it appears to be about 14 MGD. Now, at the hearings that were held, the two days of hearings, the people who were actually using the water right now could uh said they really needed all total, if you added that up, less than 8 MGD.

[00:56:51] Carol: So we have a pretty big disparity here. And so the question is, that other 7 MGD, where is it going? Is it going

[00:57:00] Speaker 1: to waste? Is it going to leakage? Um

[00:57:03] Speaker 2: Okay. Well, what are the rationals here? And and um

[00:57:08] Speaker 1: If that much is going to waste, then really, we have a problem with with not conserving.

[00:57:12] Speaker 2: Let's ask the question in a way that's been written in the newspaper, uh, do we have water that's that's simply being diverted uh you know, into uh the ocean that that's being wasted?

[00:57:26] Speaker 1: Well, I don't wait, wait, wait, wait, I don't think water going into the ocean is wasted. I say well my question is is what's really needed.

[00:57:32] Speaker 2: Carol just a second. In terms of the leeward side uh there is been written in the newspaper some concern that some of that water is simply, and I'll just use the word dump, that it's being wasted as opposed to actually being used. Um, Doug McDougall, is there anything to that?

[00:57:49] Douglas MacDougal: Yeah, I I just want to say a couple of things without getting too much into the nitty gritty. I know. This This gets com complicated uh quickly. But I would say that the leeward folks have always taken the position that if there's any water they're not using, then it shouldn't come over. I mean, there's nobody that's advocating waste. Okay? And I think the difference in the equation comes from the fact that as soon as you leave uh state land, it, as you go actually into the tunnel, you'll see a little sign. It says state of Hawaii this way, Bishop Estate that way.

[00:58:25] Douglas MacDougal: And the ditch actually picks up about four million more gallons as you go leeward and it's all on Bishop Estate land and up in Waiava.

[00:58:35] Speaker 2: So one can argue that shouldn't be considered part of the allocation on the Y Highway. What the commission was trying to establish is simply the existing uses of uh what you would call the ditch. Okay, well we have to to move on. Carol, thank you for your call. Um, Bill from Palolo has been waiting patiently. Bill, we need a question or a real brief comment.

[00:58:57] Bill: Uh, a brief comment, uh, I'm never, it never ceases to amaze me that uh, every time that water is talked about, uh, our Department of Health uh testifies against these truth and drinking water bill. They're responsible for the water quality. It's really water pollution. Why aren't we focusing on the pesticides that the Department of Health is not reporting to us and that the board of water supply is not reporting to us.

[00:59:26] Speaker 2: Let Let me rephrase the question. Um, the Review Commission on the state water code, did you address the fact that currently, the quality of water is determined, or is reviewed or is under the jurisdiction of the Health Department, whereas all of these other things that we've been talking about is the Department of Land and and Natural Resources, Doug McDougall?

[00:59:50] Douglas MacDougal: Uh, yeah, we did, and it's one of the the naughtiest problems because and for the water code from the beginning has makes it very clear that water quality issues are delegated to the Department of Health. The DOH is underfunded, understaffed, and has a hard time with enforcement. Correction. Bill, let me finish.

[01:00:17] Douglas MacDougal: Uh the issue of integrating, especially accountability for that. How can, you know, the constitution says the, uh, water commission should be the agency, or or there should be a single agency. And yet, the law itself allocates to DOH, quality issues and the water commission all other issues. So, how can that be integrated? It is a very naughty problem. And I think if one day there is a, uh, Department of the Environment, and I know there's been bills introduced now and then, that would probably be the place where quality and and resource protection issues merge.

[01:00:59] Speaker 2: But for right now you see keeping it separate because they're they're very different functions.

[01:01:05] Douglas MacDougal: Well, they're they're not really. I mean water quality issues are very much integrated into the overall water resource equation, but in terms of government structures, the the DOH is a different agency than the Water Commission.

[01:01:20] Speaker 2: Department of Health. Right. Alan, any any thoughts on the quality of our water or the fact that that's now under the jurisdiction of the Department of Health as opposed to Department of Land and Natural Resources, which is uh what we've been focusing on all morning?

[01:01:35] Alan Murakami: Well, I personally felt during the commission's work that there needed to be more attention given to the water quality issues that uh the the the commission necessarily was delegating to the Department of Health. The underfunding of that agency and the the lack of attention to that important uh issue uh was of some great concern to me, but we frankly did not have the resources or time to really uh determine how that could be integrated with water allocation and water management issues. And I think our recommendation is pretty much to leave the status quo as is.

[01:02:10] Speaker 2: Thank you. Bill, Bill, we have to we have to move on. Thank you. Thank you for your call. We have to move on. We're down to the last minute or two. I've got some issues that I'd like to raise that haven't been raised, but I want to first ask my guests in the studio. Doug, is there something that hasn't been raised that needs to be mentioned before we end our our conversation?

[01:02:31] Douglas MacDougal: Well, if we had another hour, I'd love to talk about this what I would call the process. How are these decisions, particularly the ditch decision being made? I think Fred's article points out, and that's the article in this morning's advertiser. Correct. It it points out really the enormous sprawling nature of this contested case with probably two dozen parties and more attorneys and and and against that the rather sparse standards in the law for making decisions.

[01:03:05] Speaker 2: Well, in in fact as I understand it, the controversy that's going on right now, while lots of lawyers are going to be involved, there really isn't uh a way that the public can testify, can be involved in the process.

[01:03:16] Douglas MacDougal: It it is a contested case, which is like a trial. Like a trial. Just like you wouldn't have the public testify in a trial. That's the You can't go say what you want to say about OJ in his trial. That's right. Okay. Uh Alan Murakami, anything that needs to be said?

[01:03:31] Alan Murakami: Um, three things and I'll say them real briefly. Ground and surface water distinctions are arbitrary and are in in part interfering with some of the decision making that the commission has to go through right now, and they should more logically be treated as a whole as a whole. Um, water planning, a key ingredient to the whole structure of water management in the state has been sorely lacking, and integrating that with land use has been sorely lacking, and that needs to be discussed as well is because that's leading to some of the problems we're seeing with Waihole now and on other islands with other issues. And finally, I wanted to make a plug for some hearings that are going to go on. We've held, what, Doug? You've got 10 seconds. 17 hearings on our work. More hearings are coming up through Dwight Takamine's Committee in review of our recommendations to the legislature next year that will be coming before the legislature for um amendments to the code.

[01:04:31] Speaker 2: Okay. Well, I want to thank my guests in the studio, Doug McDougall, a lawyer with Ashford and Wriston, and Alan Murakami, the litigation director for the National or the the Native Hawaiian Legal Corporation. There you go. Um, we're down to just 15 seconds. I'll very quickly say that Susie Roth is our producer, Jeff Alardi is our technical director, our assistant producers are Susie, or Cassie Roth and Aliyah Yap, Walter Roth, you've been listening to the Price of Paradise Radio Show. I'm Randy Roth, Aloha.