In The Matter Of Water Use Permit Applications

9 P.3d 409 (2000)

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Nature of the Case

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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 freshwater resources (surface and ground) which are part of the public trust res. The Commission identified Windward O`ahu groundwater 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.