Judge rules for Water Department

LIHUE — Kia‘i Wai O Wai‘ale‘ale is well on its way to losing its lawsuit against the county Department of Water, but a lawyer representing the water-rights organization said the legal battle over a proposed 18-inch water main in the Wailua watershed has broader implications, and believes the case will ultimately be settled in the Hawaii Supreme Court.

Fifth Circuit Judge Kathleen Watanabe ruled in favor of the Water Department Wednesday afternoon on four of the nine counts brought in a civil suit filed last year by Kia‘i Wai O Wai‘ale‘ale, a community-based coalition of water-rights advocates contesting the county’s attempts to lay a water main that would run about 9,000 feet along Ehiku Street and the Kapaia cane haul road.

Water Department officials say the 18-inch water main would improve water flow, add capacity to the Lihue water system and “alleviate the capacity limitation caused by the inadequate segment of water transmission main on Kuhio Highway between Kapaia Bridge and Wilcox Medical Center.”

According to descriptions of the proposed “relief line” attached to the Water Department’s environmental assessment, the proposed “relief line” would improve the capacity to fire hydrants and add redundancy to the Lihue water system, allowing the Water Department “to maintain water service to customers in the event of problems with other transmission mains in the area.”

Kia‘i Wai O Wai‘ale‘ale sued the Water Department over the proposed water main in April 2018, claiming the county was attempting to upgrade its network pipes that divert the flow of water from the Wailua watershed and Lihue basin to meet the increasing demands of urban and commercial development on Kauai’s Eastside without conducting appropriate studies of the project’s impact on the natural flow of water.

Wednesday’s hearing marked the Water Department’s second victory since court proceedings began six months ago, when Watanabe dismissed count four of the lawsuit, in which Kia‘i Wai O Wai‘ale‘ale alleged that the motivation for adding the 18-inch pipe had little to do with improving flow to fire hydrants and “critical customers” like Wilcox Medical Center and Wilcox Elementary School, as Water Department officials have claimed in project proposals.

Instead, Kia‘i Wai O Wai‘ale‘ale’s attorney accused the county and its Water Department of attempting to move forward with the water system upgrade to ensure an adequate water supply for future Grove Farm real estate developments. Watanabe shot down the allegation, ruling, essentially, that evidence presented in support of the claim were not substantive enough to move forward with.

The remaining counts in the lawsuit are concerned primarily with an environmental study completed by the Water Department last year in preparation for the water main project.

In March 2018, the Department of Water submitted its “final environmental assessment and finding of no significant impact” for the Kapaia project to the state Office of Environmental Quality Control. The assessment anticipated having only “temporary and minimal” impacts to air quality, noise and traffic during construction, and concluded that the project “will not result in any increase of the withdrawal of any of the groundwater or surface water sources.”

But Kia‘i Wai O Wai‘ale‘ale’s members and representatives have questioned the legitimacy and findings of the Water Department’s study over concerns about the scope of the environment assessment and the lack of independent oversight involved in its completion and approval.

According to Linda Paul, an Oahu-based attorney representing Kia‘i Wai O Wai‘ale‘ale, oversight and the assurance of a thorough environmental study are really the central issues of the lawsuit. Paul says the Water Department has sidestepped a law that would require it to produce an environmental impact statement, or EIS, a comprehensive document that spells out the potential effects of an action on its natural surroundings.

An EIS, according to Paul, is similar to the environmental assessment, or EA, the Water Department already commissioned, but is distinctly different in that it encompasses the impact a replacement pipe would have on the water infrastructure system as a whole.

“That’s a perfectly fine little EA if there was no water running through those pipes,” she said Wednesday after the court hearing. “They’re ignoring the fact that it’s part of a water system.”

According to Paul, Kia‘i Wai O Wai‘ale‘ale’s questions about the adequacy of the environmental study are compounded by concerns that the Water Department was essentially left to monitor itself with virtually no oversight..

“The EA was prepared by the county and then approved by the county,” she said. “So it’s very convenient.”

The loss at Wednesday’s hearing, Paul said, was a fairly good indicator of how Watanabe will be likely to rule on the remaining four counts in the case. She all but expects to lose the case in Circuit Court, but said that is just the beginning of the battle, which she intends to take to the highest courts in the state.

“We’ll just have to take this case to appeal,” she said.

Bryan Wienand, manager and chief engineer for the Department of Water, declined to comment on the case directly, citing concerns about interfering with an ongoing legal dispute.

“We’re only halfway there,” he said. “It’s a good result so far.”

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Caleb Loehrer, staff writer, can be reached at 245-0441 or cloehrer@thegardenisland.com.