Water is aprecious resource said to be held in the “public trust.” The Hawaii Constitution provides that “theState has an obligation to protect, control and regulate the use of Hawaii’swater resources for the benefit of its people.” To this end, the State evaluates andregulates the use of these resources through its Commission of Water ResourceManagement. Often landowners and usershave competing needs to the same water source, particularly when the lands arebeing used for agriculture. The Commissionmust balance these needs with those of the environment and ecosystem and, attimes, with the needs of those entitled to traditional and customary practicesinvolving or using the water resource.
The HawaiiSupreme Court recently took issue with a decision by the Commission on how tomarshal certain water resources, in that case a system of streams. The case illustrates the difficulties indevising plans to account for these competing interests and what must be consideredin making that plan. It also shows thelong and often arduous process the landowners may need to use to try to gainadditional water rights.
On August 15, the Hawaii SupremeCourt ruled on In re `Iao Ground WaterManagement Area, No. SCAP-30603, reviewing the decision of the Commissionamending the Interim Instream Flow Standard (the quantity or flow of waterrequired in the stream system) for certain streams in West Maui.
The Courtremanded the action back to the Commission, finding the Commission had:
(1) Failed to adequately address theeffect of the amended IIFS on all native Hawaiian practices in the watershedarea and the feasibility of protecting such practices as to all kuleana owners;
(2) Failed to consider all instream usesfor which testimony was offered; and
(3) Erred in its analysis of howdiverted water was being used (including availability of alternative watersources and the reasonableness of water lost in the diversion).
So whatshould a land owner under an IIFS take away from this decision? A few points:
The Court makes clear that it’s the Commission’s duty to ensure the IIFS protectsthe public trust and instream values to the extent practicable. However, in reality, it’s those using the streamswho must ensure the Commission fulfills this duty (i.e., gets all information it needs and issues all findings andconclusions showing that the Commission fully considered all uses). Otherwise,they will end up like the parties in this action, who after twelve years nowessentially have to start over again. This case shows the significant work, evidence, and time required tocomplete water use analysis.
Also, inevaluating the “importance” of present and potential uses, theCommission may look at loss of diverted water (like through evaporation orleaky irrigation) and availability of alternative sources, such as privatewells. The Commissionalso should have considered the viability of ordering the diverters to userecycled wastewater (even when no public infrastructure exists). Potentially,when an IIFS is amended, diverters could be required to improve the efficiencyof their water usage and/or fully exploit alternative water sources.