In Re Water Use Permit Applications
9 P.3d 409, 94 Haw. 97 (2000)
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Rule of Law:
The public trust doctrine, as established in the Hawai'i Constitution, applies to all water resources of the state and imposes on the state a fiduciary duty to protect public trust uses. Any balancing between public and private water uses must begin with a presumption in favor of public use, access, and enjoyment, and proposed offstream diversions are subject to a heightened level of scrutiny, requiring the applicant to demonstrate the absence of practicable alternatives.
Facts:
- The Waiāhole Ditch System was constructed between 1913 and 1916 to divert fresh surface water and ground water from the windward side of O'ahu to irrigate a sugar plantation on the island's leeward side.
- The diversion of water by the ditch system substantially reduced the flows in several windward streams, including Waiāhole, Waianu, and Waikāne streams.
- This reduction in stream flow negatively impacted the natural environment, native stream life, and the greater Kāne'ohe Bay ecosystem.
- In 1993, the Oahu Sugar Company (OSCo) announced it would cease its operations, making the significant amount of water previously used for sugar cultivation available for reallocation.
- After OSCo's closure, an interim agreement led to the release of surplus ditch water back into the windward streams.
- This interim restoration of stream flows produced an immediate positive effect on the stream ecology, allowing for the repopulation of native species.
- Various leeward parties, including Campbell Estate and Pu‘u Makakilo, Inc. (PMI), sought to use the available ditch water for diversified agriculture and golf course irrigation.
- Community groups, such as the Waiāhole-Waikāne Community Association (WWCA), sought the permanent restoration of the water to the windward streams to protect environmental, cultural, and traditional uses.
Procedural Posture:
- On July 15, 1992, the Commission on Water Resource Management (CWRM) designated the aquifer systems of Windward O'ahu as ground water management areas, requiring existing users of Waiāhole Ditch water to apply for water use permits.
- Following OSCo's 1993 announcement that it would close its plantation, various leeward parties filed applications with the CWRM for permits to use the ditch water for offstream agricultural and commercial purposes.
- At the same time, windward community groups (WWCA) and the Office of Hawaiian Affairs (OHA) filed petitions with the CWRM to amend upward the interim instream flow standards (IIFS) for the streams affected by the ditch.
- The CWRM ordered a combined contested case hearing to address the competing water use permit applications and petitions to amend the IIFS.
- On July 15, 1997, after lengthy hearings, the CWRM issued a proposed decision.
- After receiving exceptions and public comment, the CWRM issued its final Findings of Fact, Conclusions of Law, and Decision and Order on December 24, 1997, which allocated water between leeward offstream uses and windward instream restoration.
- Multiple parties, including WWCA, Kamehameha Schools Bernice Pauahi Bishop Estate (KSBE), and Campbell Estate, appealed the CWRM's final decision directly to the Supreme Court of Hawai'i.
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Issue:
Does the public trust doctrine, as incorporated into the Hawai'i Constitution and the State Water Code, require the Commission on Water Resource Management to prioritize the protection of public instream water uses and values when balancing them against competing private offstream uses?
Opinions:
Majority - Nakayama, J.
Yes, the public trust doctrine establishes a presumption in favor of public instream uses and requires that any balancing between public and private water uses be subject to a heightened level of scrutiny. The doctrine is a fundamental principle of Hawai'i constitutional law (Article XI, §§ 1 and 7) and applies to all water resources, both surface and ground. The State, as trustee, has a dual mandate to 1) protect water resources and 2) promote their maximum reasonable and beneficial use. Core trust purposes include resource protection, domestic water use, and the exercise of Native Hawaiian traditional and customary rights; private commercial use is not a protected trust purpose. Therefore, those seeking to divert water bear the burden of justifying their proposed uses, which includes demonstrating actual need and the absence of practicable alternative sources. The Commission on Water Resource Management erred by creating a 'buffer' of water available for future offstream use, as this reverses the public trust presumption. The Commission also failed to adequately justify its water duty calculations for agriculture and did not properly assess the availability of alternative groundwater sources for several permit applicants.
Dissenting - Ramil, J.
No, the public trust doctrine does not mandate a preference for instream uses or Native Hawaiian rights over other beneficial uses. The majority improperly relies on a nebulous common law doctrine to create a hierarchy of water uses not found in the Hawai'i Constitution or the State Water Code. The Constitution and the Code require the Commission to balance all competing public interests—including offstream economic and agricultural uses—without any predetermined priority. The legislature, not the court or an administrative agency, is the proper body to establish water use priorities. By giving superior status to instream uses, the majority rewrites the Code, creates substantial uncertainty, and imposes an impossible burden of proof on offstream users to justify their needs against undefined instream flow requirements.
Analysis:
This landmark decision establishes the public trust doctrine as the central and overarching principle of Hawaiian water law, fundamentally shifting the state's approach to water management. By constitutionalizing the trust and creating a legal presumption in favor of instream uses, the court curtailed the power of historic private water diversions and elevated the importance of environmental protection and Native Hawaiian rights. The ruling mandates a 'precautionary principle,' requiring the Commission to act protectively even with incomplete scientific data, and places a significant burden on any party seeking to divert water for private commercial purposes. This case sets a powerful precedent that will govern all future water allocation disputes in Hawai'i, demanding a more rigorous, protective, and holistic analysis from the state's water management agency.
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