The Hawaii Supreme Court on Wednesday vacated a state Commission on Water Resource Management ruling in a dispute over the mauka diversions of surface waters of the so-called Na Wai Eha, or four great waters of Maui.
Currently, water is diverted from the Waihee, Waiehu, Iao and Waikapu streams for Central Maui sugar cultivation. Native Hawaiian and environmental groups want more water returned to streams to revive the natural habitat and to allow for taro cultivation.
The state Supreme Court justices ruled that members of the commission erred in their June 2010 ruling on the waters of Waihee River and Waiehu, Iao and Waikapu streams.
The commission had amended instream flow standards for two of the four streams, and substantially retained the existing standards for the other two streams as measured above mauka diversions.
Hui O Na Wai Eha, Maui Tomorrow Foundation and the state Office of Hawaiian Affairs appealed, arguing that the commission erred in balancing instream and non-instream uses and the instream flow standards did not properly protect traditional and customary Native Hawaiian rights, appurtenant water rights and the public trust. The appellants also contest the commission's treatment of water diversions.
The high court concluded that the water commission erred because:
* The panel didn't properly consider the affect of its decision on customary Native Hawaiian practices in Na Wai Eha and the feasibility of protecting the affected practices.
* The commission's analysis of instream uses was incomplete because it focused on fish species that migrate from streams to the ocean during their life cycle and "did not fully consider other instream uses."
* The panel failed to adequately consider alternative water sources and erred in its calculation of diverting parties' acreage and reasonable system losses.
The justices remanded the case back to the water commission "for further proceedings consistent with this opinion."
Isaac Moriwake, an Earthjustice attorney representing Hui o Na Wai Eha and Maui Tomorrow, said the ruling was a "historic and tremendous victory."
He said his clients feel vindicated after years of frustration.
"Some of them couldn't even talk because they were choked up. These were tears of joy, but also tears of relief, in a sense," he said.
Moriwake said the commission had failed in its duty to protect water resources for future generations and not only for present economic gain.
Maui Tomorrow Executive Director Irene Bowie said the appellants were pleased with the ruling and with the court's decision to send the case back to the water commission for a "more balanced ruling."
In its 2010 decision, the water commission returned no plantation-diverted water to the Iao and Waikapu streams, she said, and only some water to the Waiehu and Waihee streams.
"Today's decision is a historic victory in upholding Hawaii's public trust doctrine, and we stand in solidarity with all who have worked so hard, throughout Hawaii, to make this happen," she said.
Rick Volner, general manager of Hawaiian Commercial & Sugar Co., said the Na Wai Eha case is critical for the future of the plantation, which relies on surface water to irrigate Central Maui sugar cane fields.
"The court decision is very lengthy and complex, in an already very lengthy and complex regulatory proceeding," Volner said. "The commission's prior decision returned substantial water to the streams, but it gave HC&S a fighting chance for survival, and to continue to make its critical contributions to Maui's economy and jobs, and keeping Central Maui green, both visually and through the generation of renewable energy."
Volner said that based on HC&S' preliminary review of the ruling, "we are optimistic that while the Supreme Court has required further review by the water commission, the commission will have more than adequate basis for its original conclusions, and will continue to strike an appropriate balance between the needs of HC&S, the community and instream uses."
HC&S uses diverted Central Maui stream water to irrigate about 5,300 of its 35,000 acres of sugar cane fields. The company irrigates the rest of its fields with water diverted from East Maui streams.
Wailuku Water Co. also diverts water from Central Maui streams for sale and use by housing subdivisions, Maui County, cattle ranchers, golf courses, HC&S and others.
In 2010, the commission ruled that HC&S and Wailuku Water must restore 12.5 million gallons per day to the Waihee, North Waiehu and South Waiehu streams in Central Maui.
The amount of water was about a third of the 34.5 million gallons the commission's hearings officer recommended for restoration to the streams.
* Brian Perry can be reached at firstname.lastname@example.org. The Associated Press contributed to this report.