July 2006 #3. Hawaii's Ditch Systems: Water Allocation After the Sugar Cane.

Authorby Christine Daleiden

Hawaii Bar Journal

2006.

July 2006 #3.

Hawaii's Ditch Systems: Water Allocation After the Sugar Cane

Hawaii State Bar JournalJuly 2006Hawaii's Ditch Systems: Water Allocation After the Sugar Caneby Christine DaleidenFirst you enter a tunnel of stone, with rock and dirt beneath your feet. The sunlight behind you allows you to see the carved-out path ahead of you. As you walk away from the sunlight, you can feel that you are descending into the tunnel and your feet start to get wet. Within yards, you are waist-deep in strikingly cold water. It is time to turn the flashlight on as the sunlight fades. The ground beneath you is suddenly muddy and the walls around you are chiseled stone. You realize that you are only in the chamber leading to the tunnel as you reach a "T" intersection. You turn the corner in the waist-high water and the light behind you disappears completely. The water is running strongly enough to take you off your feet if you are not careful.

Around you flows the water that will nurse the agricultural lands that still remain on Oahu. The water flows through these underground ditch systems, which were first built in the late 1800s by sugar companies in an effort to feed water to sugar crops.1 The sugar companies took advantage of the geologic structure of Hawaii's mountains, which act as natural reservoirs for rainwater that seeps underground.2 The walls of these natural reservoirs are dense underground volcanic formations called dikes. The ditch systems are constructed by drilling tunnels into the mountains, strategically located to penetrate the dikes and access the fresh groundwater. Surface rainwater also enters the ditch systems and on Oahu, the Waiahole ditch system was used to re-route the plentiful rainfall on the windward side of the island to the arid leeward side, where the sugar was grown.

In the 1990s, however, nearly all the sugar companies in Hawaii ceased producing sugar. As sugar crops required a tremendous amount of water,3 when the sugar cane production ceased, large amounts of water became available for other uses. The battle for the water became contentious, especially on Oahu. The fight on Oahu over the water from the Waiahole ditch system led to a prolonged contested case hearing before the Hawaii State Commission on Water Resource Management ("Commission"), several appeals, and a final decision by the Hawaii Supreme Court that required the Water Commission to rehear several of the original issues. The high court examined, among other things, traditional and customary uses, the public trust doctrine, and environmental concerns. The issues have still not all been decided, and it is clear that the allocation of water in Hawaii is a controversial and complex matter.

Private Rights to Public Water

As water was in an earlier era critical to Hawaiians in growing taro, their principal crop, the way water is presently allocated takes traditional uses and customs into consideration. For Hawaiians, water was one of their most precious resources, as water gave life to taro.4 Water was a resource common to the community, to be shared by all. Those who needed water had the right to use the water, as long as they contributed to building and maintaining the irrigation system.5 Great care was also taken not to waste water. In irrigating taro, flowing water was required and the unused water either returned to its source or flowed to lower neighboring taro patches.6 After taking the amount of water needed, the inlet irrigating that taro patch was closed, allowing for the next taro farmer to get his share. 7

The cooperative use of water changed after 1848 with the Great Mahele. In that year, King Kamehameha III proclaimed this historic event, which changed the traditional system of land ownership from communal to private.8 Prior to the Mahele, land in Hawaii was not privately owned, but like water, Hawaiians had communal rights to use the land. Land was shared and was available to everyone.9 After the Mahele, however, foreigners were permitted to purchase land and by 1893, a large portion of the state was sold to foreigners.10 This changed the way land was used.

The Mahele privatized land, but also effectively privatized water use. Water began to be considered a private resource, as Hawaii became less of a subsistence economy and more of a trade-based economy. The way water was used changed. As urban development grew, water was transferred to the towns and cities that emerged.

The monarchy continued to support the new "progressive" society created after the Mahele. When sugar was introduced as a feasible trade commodity, King Kalakaua offered his support.11 In 1876, an act was passed making it "Advisable that the Government should Aid in...

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