Yesterday, the Hawai’i Supreme Court issued its decision in the second appeal of the Waiahole Ditch case, in which it again vacated the decision of the Commission on Water Resources Management (“Commission”) and sent the case back to the Commission for further proceedings. The Court, in its landmark August 2000 Waiahole opinion, had directed the Commission to consider more fully the public interest in protecting and restoring Windward stream systems. The Commission had issued its most recent decision in December 2001. The Court still found most of the Commission’s decision inadequate, however, and directed the Commission to evaluate various issues in further detail, including the flows allocated to Windward streams.

“The Hawai’i Supreme Court’s decision is a huge victory for our streams, the communities that rely on them, and the public at large. The Court has sent a strong message to the Water Commission that there will be no give-away of our public trust resources. Our streams will get the protection that the law requires, no matter how many times the Court has to order the Commission to do its job,” said Kala Hoe, a member of Hakipu`u `Ohana, one of the original Windward Parties to petition for stream restoration.

After reviewing the Commission’s 2001 order, the Court said that much of it failed to comply with the State Water Code and public trust principles, and the Commission had failed to make sufficient findings, based on evidence in the record, to support its various rulings. It ordered the Commission to reconsider the amount of water the Windward streams need to support native stream life and community uses, vacated permits the Commission had issued to Leeward interests, and ordered the Commission to make a new decision on the permits that followed from the evidence.

Highlights from the decision include:

• The Court rejected as “erroneous” the Commission’s claim that Hawaiian custom justified reducing a stream to half of its original base flow, and that that amount was sufficient to protect instream uses, such as maintaining stream life and estuary productivity.

• The Court ruled that permit applicants such as Campbell Estate and Pu`u Makakilo golf course must better demonstrate that they lack practicable alternative water sources before receiving permits for Windward stream water. The Court observed, “The Water Commission . . . is duty-bound to place the burden on the applicant to justify the proposed water use in light of the trust purposes and ‘weigh competing public and private water uses on a case by case basis,’ requiring a higher level of scrutiny for private commercial water usage.”

• The Court vacated a permit issued to Leeward farmer Larry Jefts on the grounds that Jefts had failed to demonstrate, and the Commission had neglected to make sufficient findings supporting, Jefts’ actual water needs, including the total acreage in cultivation.

• The Court also vacated a permit issued to Garst Seeds because the Commission failed to clearly show Garst’s actual water needs.

• The Court vacated a permit issued to the Agribusiness Development Corporation (“ADC”), which operates the Ditch system, for “system losses” – that is, wasted water leaking from the system – because the Commission failed to establish that ADC had met its burden of proving that it had minimized such waste.

In its opinion, the Court acknowledged, “the considerable time and attention devoted to this case by the Water Commission and the parties involved. We must stress, however, the importance of reasonably clear findings and conclusions so that this court can engage in informed review. Without such, this court has no choice but to vacate and remand issues for further proceedings.” The Court’s decision was unanimous as to the result.

For years now, small family farmers and Native Hawaiians, through Hakipu`u `Ohana, Ka Lahui Hawai’i, and a coalition of supporters (collectively the “Windward Parties”), have been working to restore streams originally diverted by Central O`ahu sugar plantations. O`ahu Sugar’s 1993 announcement of its closure sparked the greatest struggle over water in recent history. The Windward Parties sought to return diverted flows to the streams to restore native stream life, such as `o`opu and hïhïwai; protect traditional and customary Native Hawaiian practices; support the productivity of the Kane`ohe Bay estuary; and preserve traditional small family farming, including taro farming. But large scale agricultural and development interests – including Campbell Estate, Robinson Estate, Kamehameha Schools, Dole/Castle & Cooke, and others, joined by the State – pressed to continue the flow of Windward water to their lands to subsidize golf course irrigation, short-term corporate agriculture, and housing development.

After seven months of administrative hearings, the Water Commission’s 1997 decision was appealed to the Hawai’i Supreme Court. In August 2000, the Hawai’i Supreme Court issued a landmark decision in that first appeal. The Windward Parties argued that not enough water had been restored to the streams, while Leeward interests complained that too much water had been returned. Although the Court acknowledged the Commission’s efforts at stream restoration, it vacated the Commission’s 1997 decision and sent seven issues back to the Commission.

After holding more hearings, the Commission issued a second decision in December 2001. The decision again divided the water between the Windward streams and Leeward users. Out of an annual average flow in the ditch system of 27 million gallons per day (mgd), 9.9 mgd was split between 3 different streams: Waiahole, Waianu, and Waikane. About 13.3 mgd was permitted for immediate offstream use in Leeward O`ahu, with the rest of the water (less than 4 mgd) temporarily restored to the streams, but available for future agricultural or other uses. In 2002, the Windward Parties appealed to the Hawai’i Supreme Court again, seeking more protection for the stream systems and the natural and human communities that depend on them.

“We’re pleased that the Supreme Court is consistent in its message that our water resources may not be handed over to private interests without rigorous oversight and attention to the law. We’re hopeful that the Commission will do its job this time around.” Earthjustice attorney Paul Achitoff commented.