IN THE MATTER OF WATER USE PERMIT APPLICATIONS 9 P.3d 409 (2000) CASE BRIEF

IN THE MATTER OF WATER USE PERMIT APPLICATIONS

9 P.3d 409 (2000)

NATURE OF THE CASE: This was an extended dispute over the water distributed by the Waihole Ditch System. The Commission considered petitions to amend the interim instream flow standards for windward streams affected by the ditch, water use permit applications for various leeward offstream purposes, and water reservation petitions for both instream and offstream uses. The Commission issued its final findings of fact, conclusions of law, decision and order on December 24, 1997.

FACTS: Diversions by the ditch system reduced the flows in several windward streams affecting the natural environment and human communities dependent upon them. Diminished flows impaired native stream life and may have contributed to the decline in the greater Kneohe Bay ecosystem, including the offshore fisheries. OSCo announced that it would end its sugar operations, signaling the imminent availability of the ditch water used by OSCo and raising the question of its future allocation. Just about everyone filed for permits to get the water. A mediation agreement provided that Waihole Irrigation Company, (WIC) would continue to supply 8 mgd to the ditch, as measured at the North Portal, and release the surplus into the windward streams. The interim restoration of windward stream flows had an immediate positive effect on the stream ecology. The higher flows flushed out exotic fish species that were harming native species by carrying parasites and disease, competing for food and space, and interfering with spawning rituals. The Commission ordered a combined contested case hearing on the permit applications, reservation petitions, and petitions to amend the WIIFS. The Commission's final decision consisted of 1,109 FOFs, an extensive legal discussion section styled as COLs, and a D & O explaining at length the Commission's disposition. The Commission concluded that: Under the State Constitution and the public trust doctrine, the State's first duty is to protect the fresh water resources (surface and ground) which are part of the public trust res. The Commission identified Windward O`ahu ground water and streams and Kneohe Bay as 'part of the public trust res . . . subject to review under the State's public trust responsibility as expressed in the State Water Code. The present appeal followed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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