In re ‘iao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications

• Decision Date: 15 August 2012
• Docket Number: No. SCAP–30603.,SCAP–30603.
• Citation: 287 P.3d 129,128 Hawai'i 228
• Parties: In re ‘IAO GROUND WATER MANAGEMENT AREA HIGH–LEVEL SOURCE WATER USE PERMIT APPLICATIONS and Petition to Amend Interim Instream Flow Standards of Waihe‘e River and Waiehu, ‘Iao, and Waikapu Streams Contested Case Hearing.
• Court: Hawaii Supreme Court

128 Hawai'i 228

287 P.3d 129

In re ‘IAO GROUND WATER MANAGEMENT AREA HIGH–LEVEL SOURCE WATER USE PERMIT APPLICATIONS and Petition to Amend Interim Instream Flow Standards of Waihe‘e River and Waiehu, ‘Iao, and Waikapu Streams Contested Case Hearing.

No. SCAP–30603.

Supreme Court of Hawai‘i.

Aug. 15, 2012.

Isaac H. Moriwake and D. Kapua‘ala Sproat of Earthjustice for Appellant Hui O Na Wai ‘Eha and Maui Tomorrow Foundation, Inc.

Anna Elento–Sneed and Pamela W. Bunn of Alston Hunt Floyd & Ing for Appellant Office of Hawaiian Affairs.

Patrick K. Wong, Corporation Counsel and Jane E. Lovell, Deputy Corporation Counsel, County of Maui, and Jon M. Van Dyke, for Appellee/Cross–Appellant County of Maui, Department of Water Supply.

Donna H. Kalama and Julie H. China, Deputy Attorneys General, for Appellee Commission on Water Resource Management.

David Schulmeister and Elijah Yip of Cades Schutte LLP for Appellee Hawaiian Commercial and Sugar Company.

Paul R. Mancini and James W. Geiger of Mancini, Welch & Geiger and

Gilbert S.C. Keith–Agaran for Appellee Wailuku Water Company, LLC.

RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ., and Circuit Judge TRADER, in place of DUFFY, J., recused, with ACOBA, J., concurring separately.

Opinion of the Court by NAKAYAMA, J.

I. INTRODUCTION

Na Wai ‘Eha, or "the four great waters of Maui," is the collective name for the Waihe‘e River and the Waiehu, ‘Iao, and Waikapu Streams. The case before the court began in June 2004 when Petitioners–Appellants/Cross–Appellees Hui¹ O Na Wai ‘Eha and Maui Tomorrow Foundation, Inc. ("Hui/MTF"), through Earthjustice, petitioned Appellee/Cross–Appellee Commission on Water Resource Management ("the Commission") to amend the Interim Instream Flow Standards ("IIFS") for Na Wai ‘Eha, which had been in place since 1988. Around the same time, several parties, including Applicant–Appellee/Cross–Appellant Maui County Department of Water Supply ("MDWS"), and Applicants–Appellees/Cross–Appellees Hawaiian Commercial & Sugar Company ("HC & S") and Wailuku Water Company ("WWC"), filed Water Use Permit Applications ("WUPA") for the same area. The Commission held a combined case hearing to resolve the IIFS and WUPA; in addition to the petitioner and applicants, the Office of Hawaiian Affairs ("OHA") applied to participate in the hearing. The current appeal seeks review of the Commission's resulting Findings of Fact, Conclusions of Law ("FOF/COL"), and Decision and Order ("D & O"), in which the Commission amended the IIFS for two of the four streams, and substantially retained the existing IIFS for the two remaining streams as measured above diversions.² The FOF/COL and D & O also resolved several WUPA; the Commission's resolution of the WUPA is not before the court on appeal.

Hui/MTF and OHA appeal on related grounds. Their primary complaint is that the Commission erred in balancing instream and noninstream uses, and therefore the IIFS do not properly protect traditional and customary native Hawaiian rights, appurtenant water rights, or the public trust. Both parties also contest the Commission's treatment of diversions, including the alternative source Well Number 7 ("Well No. 7"), a water well on HC & S's plantation that could be used to irrigate HC & S's cane fields. The parties contest the Commission's determination that HC & S will not be required to pump Well No. 7 to its full capacity, a decision that resulted in a higher estimated allowable diversion for HC & S, and lower IIFS for the streams.

MDWS's cross-appeal asks the court to clarify the priority of noninstream municipal use in setting the IIFS.

And finally, the Commission, HC & S, and WWC argue that the court does not have jurisdiction to hear Hui/MTF's and OHA's appeals.

As explained below, the court holds that it has jurisdiction in the instant case, and takes this opportunity to expand upon the jurisdictional analysis from In re Water Use Permit Applications "Waiahole I ", 94 Hawai‘i 97, 9 P.3d 409, (2000). In reviewing Hui/MTF's and OHA's points of error, the court concludes that the Commission on Water Resource Management erred in several respects. First, in considering the effect of the IIFS on native Hawaiian practices in Na Wai ‘Eha, the Commission failed to enter findings of fact and conclusions of law regarding the effect of the amended IIFS on traditional and customary native Hawaiian practices in Na Wai ‘Eha, and regarding the feasibility of protecting any affected practices. Second, the Commission's analysis of instream uses was incomplete, as it focused on amphidromous species and did not fully consider other instream uses to which witnesses testified during the hearings. Third, the Commission erred in its consideration of alternative water sources and in its calculation of diverting parties' acreage and reasonable system losses. The court must vacate the Commission's June 10, 2010 Findings of Fact, Conclusions of Law, Decision and Order, and remand the case for further proceedings.

II. BACKGROUND

A. Na Wai ‘Eha Water Systems

1. Surface Water³

Na Wai ‘Eha are the Waihe‘e River and Waiehu, ‘Iao, and Waikapu Streams. The Waihe‘e River is the principal water source in Na Wai ‘Eha; it is about 26,585 feet long, and its watershed covers 4,500 acres. From 1984–2005, United States Geological Survey ("USGS") data shows streamflow upstream of all diversions as follows: the Q50⁴ flow was 34 million gallons per day ("mgd"), the Q70⁵ flow was 29 mgd, the Q90 flow was 24 mgd, and the Q100 flow was 14 mgd. The Waihe‘e River's two main diversions are Waihe‘e Ditch and Spreckels Ditch. See Section II.A.3., infra, for more information about the ditches. The two ditches are capable of diverting all of the dry-weather flow available at the intakes, however, even if all the water is being diverted, streamflow immediately downstream of the intakes may exist because of leakage through or subsurface flow beneath the dams at these sites. The dry-weather flow downstream of the intakes is commonly about 0.1 mgd, but the stream may not have continuous mauka-to-makai surface flow.

The Waiehu Stream is formed by the confluence of North and South Waiehu Streams; it is about 23,700 feet long, and its watershed covers about 6,600 acres. Gaging stations on both branches of the Waiehu Stream were discontinued in 1917, but USGS used historical data and record-extension techniques to estimate flows above all diversions for North Waiehu Stream from 1984–2005 as follows: the Q50 flow was between 3.1 to 3.6 mgd, the Q70 flow was between 2.3 to 2.7 mgd, the Q90 flow was between 1.4 to 2.7 mgd, and the Q100 flow was 1.6 mgd (as measured in March 1915). For South Waiehu Stream, USGS utilized the same record extension techniques, and estimated the 1984–2005 flows as follows: the Q50 flow was between 2.4 to 4.2 mgd, the Q70 flow was between 1.9 to 2.8 mgd, the Q90 flow was between 1.3 to 2.0 mgd, and the Q100 flow was 1.5 mgd (recorded in July 1913). The Waihe‘e and Spreckels Ditches divert water from both North and South Waiehu Streams; in addition, the North Waiehu Ditch diverts from the North Waiehu Stream and the Cerizos Kuleana Ditch diverts from the South Waiehu Stream. There is extensive channel erosion below the Spreckels Ditch on South Waiehu Stream, with a 12–foot drop in the elevation of the stream just below the diversion, and there is a vertical concrete apron located in Waiehu Stream. Most of the water is diverted from North and South Waiehu Streams at the North Waiehu Ditch and Spreckels Ditch, respectively; due to these diversions and leakage, Waiehu Stream does not flow continuously from mauka to makai.

‘Iao Stream is the second-largest stream in Na Wai ‘Eha; it is about 38,000 feet long, and its watershed covers about 14,500 acres. USGS calculated the 1984–2005 flows above all diversions as follows: the Q50 flow was 25 mgd, the Q70 flow was 18 mgd, the Q90 flow was 13 mgd, and the Q100 flow was 7.1 mgd. The two main diversions off the ‘Iao Stream are the ‘Iao–Waikapu/ ‘Iao–Maniania Ditches at an altitude of 780 feet, and the Spreckels Ditch at 260 feet. The United States Army Corps of Engineers channelized significant portions of ‘Iao Stream's lower reaches and hardened the stream bed and banks with concrete for flood control and drainage. About 2.5 miles above the mouth of the Stream, the concrete channel includes a 20–foot vertical drop. USGS estimates that ‘Iao Stream loses 6.3 mgd in reaches downstream of the ‘Iao–Maniania ditch diversion that are not lined with concrete. In absence of ditch return flows or runoff during and following rainfall, ‘Iao Stream is dry and does not flow continuously from mauka to makai.

The Waikapu Stream is the southern-most stream and the longest of the four streams; it is about 63,500 feet in length, with a watershed of about 9,000 acres. USGS, using record extension techniques, estimated the 1984–2005 flows above all diversions as follows: the Q50 flow was between 4.8 to 6.3 mgd, the Q70 flow was between 3.9 to 5.2 mgd, and the Q90 flow was between 3.3 to 4.6 mgd. The lowest recorded flow for Waikapu Stream was 3.3 mgd, in October 1912. There are three diversions off the Waikapu Stream: the South Side Waikapu Ditch (also known as the South Waikapu Ditch) near an altitude of 1,120 feet, the Waihe‘e Ditch, and the Reservoir 6 Ditch. The Waikapu Stream is commonly dry downstream of all diversions, both because of the diversions and because of infiltration losses into the streambed; the Stream does not flow continuously from mauka to makai.

2. Ground Water⁶

There are three types of ground water in Na Wai ‘Eha water systems: dike-impounded, the basal freshwater lens, and perched. Dike-impounded ground waters occur at high elevations; basal freshwater lenses and perched waters occur at lower elevations and closer to the coast.

The dikes at higher elevations are low-permeability, so water builds up behind them. The upper reaches of Na Wai ‘Eha streams intersect the dike-impounded ground water so the...