(March 19, 2014)

THE EVOLVINGNATURE OF HAWAI’IWATER LAW Chronology

1848 Mahele

1867 Peck v. Bailey, 8 Haw. 658

1900 Territory (Organic Act)

1917 Carter v. Territory, 24 Haw. 47 1921 Hawaiian Homes Commission Act (HHCA) § 220 and 221, 42 Stat. 108

1929 City Millv. Honolulu Sewer and Water Commission, 30 Haw. 912 (groundwater)

1930 Territory v. Gay, 31 Haw. 376

1959 Statehood

1961 Groundwater Use Act (Haw. Rev. Stat. chap. 177)

1973 McBryde v. Robinson, 54 Haw. 173, n. 15

1978 Constitutional Amendment (Haw. Const., art. Xl, § 7)

1979 Pearl Harbor groundwater designated, Groundwater Use Act (Haw. Rev. Stat. chap. 177, repealed 1987) (SY: 225 mgd)

Report to Governor by “State Water Commission”

1981 Honolulu and Wailua groundwater designated under Ground Water Use Act (Haw. Rev. Stat. chap. 177 (Repealed 1987)

1982 Hawaii Instream Use Protection Act (Windward Oahu) (Haw. Rev. Stat. chap. 176D (repealed 1987)

Reppun v. Board of Water Supply, 65 Haw. 531

1 Robinson v. Ariyoshi, 65 Haw. 641 (6 certified questions)

1985 Legislature’s Advisory Study Commission Report

1986 State Senate passes water code billfor first time

Water Code Roundtable

1987 Water Code passed, Haw. Rev. Stat. chap. 174C; (Haw. Rev. Stat. Chap. 176, 176D, & 177 repealed)

1988 Administrative Rules adopted (H.A.R. chap 13-167 to 13-171)

Interim Instream Flow Standards adopted — all state (except Windward Oahu)

1989 Robinson v. Ariyoshi, 887 F.2d 815 (gt Cir.) dismissed

Pearl Harbor uses (Oahu Sugar Co. step down in sugar use) and sustainable yield revised: 225 mgd to 195 mgd

1990 County Water Use and Development Plans reviewed

1991 Water Code and HHCA amended: DHHL’sfuture water needs included in plans and permits

1992 Windward Oahu Interim lnstream Flow Standards

Windward Oahu groundwater designated

Molokai groundwater designated

Declarations of Water Use

1994 Waiahole Ditch contested case initiated

Water Code Review Commission: Report to Legislature

Ewa Marina contested case initiated

1995 Waiahole contested case hearings

1996 Koolau Ag v. CWRM, Haw. Sup. Ct. 18675, Nov. 27, 1996) (Windward Oahu groundwater designation upheld)

Waiahole and Laie contested case hearings

2 1997 Ewa groundwater management (May 14, 1997)

1997 Waiahole contested case decision (CWRM)

1998 Hanalei River designated as American Heritage River

1999 Laie (Oahu) contested case decision (CWRM)

Ewa Marina contested case decision (CWRM)

Molokai Ranch contested case decision (CWRM)

2000 Waiahole Ditch Combined Contested Case Hearing - Water Use Permit Applications, Petitions for Interim Instream Flow Standard Amendments, and Petitions for Water Reservations, Appeal from the Commission on Water Resource Management (Case No. CCH-0A95-1), 94 Haw. 97, 9 P.3d 409 (Hawaii Supreme Court, August 22, 2000) (Nakayama, J.) (“ Walahole I”) 2001 Restoration of Hi’ilawe Stream (Hawaii County)

- 03 Repair of Hamakua Ditch (Hawaii County) Designation of lao aquifer (Maui)

2004 In Re Wai’ola 0 Moloka’i, Inc. and Moloka’I Ranch, Contested Case Hearing on Water Use, Well Construction, and Pump Installation Permit Applications (Case No.CCH-M096-1), 103 Haw. 401, 83 P3d 664 (January 29, 2004) (Levinson, J) Appeal from CWRM Contested Case Hearing. (Hawaiian Homes). First Hawaii Supreme Court decision to interpret Hawaiian Homes Commission Act §22lwater rights

Waiahole Ditch Combined Contested Case Hearing - Water Use Permit Applications, Petitions for Interim Instream Flow Standard Amendments, and Petitions for Water Reservations, Appeal from the Commission on Water Resource Management (Case No. CCH-0A95-1), 105 Haw. 1, 93 P.3d 643 (June 21, 2004) (Nakayama, J.) (“Waiahole II”)

2006 Kelly v. 1250 Oceanside Partners, Haw. S. Ct. No. 26813 (July 28, 2006) (DOH and Hawaii County breached public trust responsibilities to protect coastal waters in South Kona, Hawaii)

2007 In Re Kukul, (Molokai), 116 Haw. 481, 174 P.3d 320 (2007), Appeal from CWRM Contested Case Hearing (Hawaiian Homes) Hawaii Supreme Court vacated and remanded Commission on Water Resource Management’s decision involving Hawaiian homeland claims on Molokai.

3 Waihee, Maui (CWRM designates ground water management areas due to rising chlorides.

2010 Waiahole Ditch Combined Contested Case, Water Use Permit Applications, Petitions for Interim Instream Flow Standard Amendments, and Petitions for Water Rese,vations (Case No. CCH-0A95-1) (October 13, 2010) (Memorandum Opinion). Supreme Court reversed and remanded Commission on Water Resource Management’s third decision on Waiahole water case. (“Walahole II!’);

2012 In Re lao [Maui] Ground Water Management Water Use Permit Applications and Petition to Amend Interim Instream Flow Standards (No. CCH-MAO6-01). 128 Haw. 228, 287 P3d 129 (August 15, 2012) (Nakayama, J). Supreme Court reversed and remanded Commission on Water Resource Management decision setting Instream Flow Standards for Na Wai Ehe (Maui) for failure to properly analyze public trust duties and traditional and customary rights.

In Re Petition to Amend Interim Instream Flow Standards for East Maui (No. CAAP-10-0000161) (November 30, 2012) (Memorandum Opinion) Intermediate Court of Appeals reversed and remanded Commission on Water Resource Management decision denying contested case to set instream flow standards in East Maui despite clear constitutional due process rights (pursuant to In Re lao decision).

2013 Po’ai Wai CIa / West Kaua’i Watershed Alliance files Combined Petition to Amend Interim Instream Flow Standards for Waimea (Kauai) River and head waters and tributaries, and Complaint / Dispute Resolution and Declaratory Order Against Waste (July 24, 2013).

Kaloko- Honokohau National Park Service files petition to designate Keauhou Aquifer (North Kona, Hawaii) as ground water management area (September 13, 2013).

2014 Kauai Springs v. Kauai Planning Commission, (SCWC 29440) (February 28, 2014). Supreme Court vacated and remanded Kauai Planning Commission decision for failure to assess alternative water sources and carry out Public Trust duties in approving county zoning permits. The State was not a party in this case, but zoning applications before county agencies may now require great review of water sources.

4 THE EVOLVING NATURE OF HAWAI’I WATER LAW

Conceptual Evolution: The Integrated Nature of Water

1. Failure of the private ownership model. Recognition of shared uses (Riparian doctrine and correlative rights)

Reaffirmation of appurtenant (taro) rights (McBryde)

2. Integration of ground and surface water (Reppun)

3. Public Trust (Haw. Sup. Ct., Robinson’s sixth certified question) Overall supply, demand, and sustain ability: designating water management areas (Haw. Rev. Stat. chap. 174C, Part IV) 4. Stream protection: Interim Instream flow Standards (Haw. Rev. Stat. §174C-71) 1990 Hawaii Stream Assessment (Stream Protection and Management Plan) Instream Flow Standards (Haw. Rev. Stat. §174C-71) Wild and Scenic Rivers

5. Traditional gathering rights (Haw. Rev. Stat. §174C-101(c))

6. Hawaiian Home Lands (Haw. Rev. Stat. §174C-101(a))

7. Planning: Integrating land and water use (Haw. Rev. Stat. §174C-31);

8. Alternative water sources: duty to consider

9. Conservation (Haw. Const., art. XI, §7);

10. Wastewater reuse (Honolulu, Ewa)

11. Bulk-heading tunnels (Kahana, Oahu)

12. Watershed management: Community initiatives and partnerships EPA / DOH (CWA §319 studies)

1 13. GIS mapping

14. Water Quality Plans (Haw. Rev. Stat. §174C-31)

Clean Water Act of 1972 (33 U.S. C. §1251 et seq.) (Storm water runoff) Total Maximum Daily Load (‘TDML”)(CWA §303(d)) Non-Point Source Pollution Program EPA delegation to State (July 2000 plan) Best Management Practices (“BMP”) Ala Wai

15. Integrated Resource Planning (“IRP”) Resource Protection Plan County Water Use and Development Plans Alternative Sources — Duty to consider in regulation and planning Waste water (Consent Decrees) Stormwater Conservation Watershed Management State Projects Plan Agriculture Plans (DOA) Water Quality (DOH)

16. Drought Planning

17. Waste Water Re-Use: Integrated regional planning

18. Stormwater Reclamation (Wheeler)

19. Economic uses of water. Pricing and cost incentives

20. Public Trust analysis (Waiahole, lao, Kauai Springs)

2 IN RE WATER USE PERMIT APPLICATIONS CUe as 94 Hawal’ 97 (2000) 97 9 P.3d 409 statutory permit requirements; (11) regulat In the Matter of the WATER USE ing ditch system as a single integrated unit PERMIT APPLICATIONS, Petitions was not error; (12) requiring permittees to for Interim Instream Flow Standard contribute to impact studies was not illegal Amendments, and Petitions for Water tax; and (13) Commission had authority to Reservations for the Waiahole Ditch establish proposed agricultural reservation. Combined Contested Case Hearing, Affirmed in part, reversed in part, and No, 21309. remanded. Supreme Court of Hawai’i. Ramil, J., filed a dissenting opinion. Aug. 22, 2000. Motions for reconsideration denied. Reconsideration Denied Sept. 17, 2000. 1. Appeal and Error €‘842(9), 1008.1(5) At contested hearing related to diteh Finding of fact or a mixed determination system for collecting fresh surface water and of law and fact is clearly erroneous when: (1) dike-impounded ground water, the Commis the record lacks substantial evidence to sup sion on Water Resource Management consid port the finding or determination, or (2) de ered petitions to amend interim instrean, spite substantial evidence to support the flow standards for windward streams affect finding or determination, theppellate court is ed by ditch, water use permit applications for left with the definite and irm conviction various leeward offstream purposes, and wa that a mistake has been made. ter reservation petitions for both instream 2. Waters and Water Courses c’133 and offstream uses. ‘1he Commission entered Supreme order apportioning water for various agricul Court had jurisdiction in direct appeal tural, leeward offstre.rn, and nonagricultural from combined contested case before the Commission uses, established a non-permitted ground wa on Water Resource Manage ment. HRS ter buffer, and denied various water use per § 91—14(a), 174C-12, 174C—60. mits. Appeals were taken. The Supreme 3. Administrative Court, Nakayama, Law and Procedure J., held that: (1) petition 442 ers were not deprived of due process right to “Contested case” a fair hearing; (2) Commission improperly is an administrative weighed agency hearing that: (1) is required instream and offstream uses; (3) by law and (2) determines the rights, public trust doctrine applied to all water duties, or priv ileges of specific resources, unlimited by any surface-ground parties. I-IRS § 91—1(5). distinction; (4) CommissiOn See publication Words and Phrases was authorized to for amend interim other judicial constructions and def instrearn flow standards; (5) initions. Commission’s decision t add 6.0 million gal- Ions a day (mgd) to interim instream flow 4. Constitutional Law 318(2) standards was not ovr1’ protective; (6) Officers and Public Employees ea’30.1 Commission was not authorized to establish Dual status of chairperson of the Com buffer; (7) Commission failed to provide mini mission on Water Resource Management, mal analysis required to support provision of who was also chairperson of the Department 2,500 gallons per acre per day (gad) for of Land and Natural Resources (DLNR), an every acre of land in diversified agriculture; adverse party to petitioner who sought to (8) CommissIon failed to establish adequate reserve water in ‘ditch system for collecting basis ‘for allocations granted to certain agri fresh surface water and dike-impounded cultural fields; (9) golf-course irrigation did ground water in contested case hearing not qualify as an “agricultural be use;” (10) des fore the Commission, was not incompatible ignation of ground water management area per se, for purposes of petitioner’s due pro subjected both ground and surface water di cess right to a fair tribunal; legislature versions from the designated area to the deemed it appropriate for one person to 98 94 HAWAI’I REPORTh IN RE WATER USE PERMIT APPLICATIONS Cite as 94 HawaIi 97 (2000) 99 Administrative Law and Procedure 15. Waters and serve in both capacities. U.S.C.A. Const. 9. Water Courses €133 Commission’s ability to decide matter compe-. ct’314 Amend. 14; HRS § 174C—7(b). All adjudicative proceedings conducted tently and impartially to such an extent that bias, con Appropriate remedy for any by the Commission on Water Resource Man a violation of petitioner’s due process rights Officers and Public Employees e’3O.1 impropriety 5. flict of interest, or appearance of agement must conform to the same exacting occurred. U.S.C.A. Const.Amend. 14. Common law doctrine of incompatible is the recusal or disqualification of the taint standards of fairness, impartiality, and inde 20. Waters offices prohibits an individual from serving in ed adjudicator. pendence of judgment applicable in any court and Water Courses €‘133 dual capacity if one office is subordinate to of law. Although substantial changes in Com 10. Administrative Law and Procedure other or the functions of the offices are mission on Water Resource Management’s the €a314 16. Constitutional Law 318(2) inherently inconsistent and repugnant to final decision - in contested proceeding on grounds for disqualifica Waters and Water Courses €133 each other. Party asserting petitio1s related to ground water manage timely Attorney tion of a tainted adjudicator must general’s personal participation ment reas, all to petitioner’s detriment, 30.1 before the com in contested hearing 6. Officers and Public Employees present the objection, either before the Commission coincidkd with governor’s public criticism of or as soon as on Water Resource Legislature may override common law mencement of the proceeding Management on petitions Comn4sion’s proposed decision and attor become known. related to ground water management, doctrine of incompatible offices as it deems the disqualifying facts al ney gneral’s summary dismissal of Com though direct, did not amount to the type and missio’s attorney, changes did not appropriate or necessary. ii. Administrative Law and Procedure amount degree of political control that violate parties’ to an appearance of e314 impropriety warranting 7. Constitutional Law 318(2) right to procedural due process. U.S.C.A. revprsal of Commission’s decision. Unjustified failure to properly raise the Const.Asnend. 14. Waters and Water Courses €13S issue of disqualification of a tainted adjudica 21i Officers and Public Employees er110 Dual status of chairperson of Commis agency fore 17. Waters and Water Courses ct133 tor before the administrative Public officials have the prerogative to Water Resource Management, who challenges to the deci Attorney general’s personal represents sion on closes any subsequent advocate according to their views of the also chairperson of Department of Land appeal. tion of Department of Land and Natural was sionmakers’ qualifications on “public interest” and to voice their views on and Natural Resources (DLNR), an adverse Resources (DLNR) and Department of Agri Procedure public policy in public forums; yet public petitioner who sought to reserve 12. Administrative Law and culture (DOA) in contested proceeding before party to officials must also be mindful of the broader ground water management areas in ,aa314 the Commission on Water Resource Manage water in public interest in the fairness and integrity Commission, “Rule of necessity” not only allows, but ment on petitions related of contested case hearing before to ground water the adjudicatory process. violated petitioner’s due process right to a requires a decisionmaker to act in a proceed management areas did not necessarily pre fair tribunal; even though chairperson had no ing, when he or she would otherwise be vent her department from affording indepen 22. Common Law 11 jurisdiction is exclusive and no dent legal personal interest in proceeding, he sat in disqualified, if counsel to other state parties, Legislature may, subject to the constitu for substitution. particularly the judgment of legal claims and factual repre provision exists Commision. tion, modify or abrogate common law rules sentations he had advanced, in violation of See publication Words and Phrases by statute. constructionS and def 18. Waters and Water Courses 133 basic constitutional mandates that a tribunal for other judicial initions. Conflict of interest arising from attorney 23. Statutes be impartial and that justice must satisfy the €‘239 general’s personal representation of Depart appearance of justice. U.S.C.A. Const. 13. ConstitutiOnal Law €s”318(1) Statutes in derogation of the common meat of Land and Natural Resources Amend. 14. administrative agency per law must be strictly construed. Where an (DLNR) and Department of Agriculture judicial function, external political €“318(2) forms its (DOA) in contested proceeding before the 24. Common Law €‘ll 8. Constitutional Law parties’ right to prssure can violate the Commission on Water Resource Waters and Water Courses e133 Mbnage Where it does not appear there was procedural due process, thereby invalidating ment on petitions related to ground water legislative purpose in superseding the com Commissioner’s dual status as chairper th agency’s decision. U.S.C.A. Const. management areas did not deprive pet4tioner mon law, the common law will Resource be followed. son of Commission on Water Man At1iend. 14. of its right to a fair hearing, where aiorney agement and Department of Land and Natu general’s 25. Statutes 235 14 Constitutional Law eS18(2) termination of her represeation ral Resources (DLNR) did not constitute a of the Commission by summarily Statutes establishing Waters and Water Courses 133 dismissing comprehensive reversible due process violation in contested the Commission’s attorney effectivelyured regulatory schemes form an exception criticism of the pro to the proceeding before Commission to apportion Governor’s public the conflict. rule of strict construction. use of ground water management areas; even posed decision of Commission on Water Re 19. Constitutional though party had objected early to commis source Management in contested proceeding Law ‘i318(2) 26. Public Lands 7 sioner’s dual status, at no point during pro on petitions related to ground water manage Waters and WaterCourses e’133 Waters and Water Courses €as5 ment areas was not external political pres Attorney general’s ceedings did it seek his disqualification, and summarily dismissing Provision of state constitution governing commis sure that violated parties’ right to procedural Commission on Water “rule of necessity” demanded that Resource Manage conservation and development of resources due process; governor’s comments arose in ment’s attorney sioner preside over proceeding, as his dis in contested proceeding be and provision governing water resources prevented the Com public forums apart from proceeding befofé fore the Commission qualification would have on Water Resource adopt the public trust doctrine as a funda Const.Amend. the Commission and reached Commission in Management on petitions mission from acting. U.S.C.A. related to ground mental principle of constitutional law. U.S.C.A. ConsLArnend. 14. water management 14; HRS § 174C—7(a). directly. areas did not impair Const. Art. 11, § 1,7. HAWAIi REPORTS 100 94 IN RE WATER USE PERMIT APPLICATIONS Cite as 94 IhwaVI 97 (2000) 101 V €5 36. Waters and Water Courses 5 27. Waters and Water Courses xnoriate offstream diversions inconsistent 50. Waters and embodies a Water Courses 5 not supplant the State water resources trust with the mandate of protection, to the un State Water Code does State may compromise public rights in doctrine. dual mandate of protection and maximum avoidable impairment of public protections of the public trust instream uses the water resources pursuant. only V to a deci reasonable and beneficial use. and values. Conat. Art. II, § 1, 3, 7. HRS § 174C—1 et seq. sion made with a level of openness, diligence, 37. Waters and Water Courses 5 44. and foresight commensurate with 28. Waters and Water Courses 5 Waters and Water Courses 132 the high State has a duty to ensure the continued priority, these rights command under the of state constitution By conditioning use and development on Under provision availability and existence of its water re laws. of tate. and development of resource “conservation,” state constitution governing conservation sources for present and future generations. provision governing water re does not preclude offstream use, but merely 51. Adnnjstratjve Law and resources and Const. Art. 11, §* 1, 7. Procedure sources, the public trust doctrine applies to requires that all uses, offstream or instream, 499, Courses 5 public or private, au water resources without exception or dis 38. Waters and Water promote the best economic Adnilnistrative agency decisions affect and social tinction. Const. Art. 11, § 1, 7. Water resources trust encompasses a interests of the people of State; ing publtc trust resources carry a presump duty to promote the reasonable and benefi the result is a controlled deveJopmet of lion of vlidity. e’132 . Waters and Water Courses cial use of water resources to maximize their resources rather than no development. 52. State’s sovereign reserved water re social and economic benefits to the people of Const. Art. 11, § 1. 4dminjstrative Law and Procedure €‘,749 sources trust encompasses any usage, includ State. Const. Art. 11, § 1, 7. 45. Waters and .Water Courses €“133 • ing the ground water uses proposed by the Presumption of validity afforded admin-’ Waters and Water Courses 132 parties in contested proceeding on petitions 39. Commission on Water Resource Man istratjve agency decision is particularly sig resources trust is not related to ground water management areas. Object of water agement must weigh competing public and nificant where the appellant challenges a but rather the ‘ maximum consumptive use, V private water uses on a case-by-case basis, substantive decision within the agency’s ex Courses €132 and beneficial al 30. Waters and Water most equitable, reasonable, according to any appropriate standards pro pertise as clearly erroneous, arbitrary, capri water resources, with full Public water resources trust, by its very location of state vided by law. cious, or an abuse of discretion. HRS § 91— also con nature, does not remain fixed for afl time, but reéogmtion that resource protection 14(g)(5, 6). 46. Waters and Water to changing needs and circum stitutes “use.” Const. Art. 11, § 1, 7. Courses @l33 must conform 53. Burden ultimately lies with those Constitutional Law @‘67 stances. 40. Waters and Water Courses 132 seek ing or approving commercial uses of water Ultimate authority to interpret and de Continuing authority of the State over 31. Waters and Water Courses 5 resources trust to justify them in light of the fend the public trust rests with the courts. its water resources precludes any grant or Public trust of water resources is a dual purposes protected by the trust. assertion of vested rights to use water to the 54. Statutes €“190 concept of sovereign right and responsibility. detriment of public trust purposes. Const. 47. Waters and Water Courses i33 If the Supreme Court determines, based €‘5 1, 7. on rules of statutory 32. Waters and Water Courses Art. 11, §. As the primary guardian of public rights construction, that the legislature has unambiguously spoken on Maintenance of waters in their natural 41. Waters and Water Courses €133 under the water resources trust, the Com the mission on matter in question, then the inquiry ends. state constitutes a distinct “use” under the Authority of the State over its water Water Resource Management Art. 11, 1, must not relegate Water resources trust. Const. § resoUrces empowers the State to revisit prior itself to the role of a mere 55. Statutes €e219(2, 4) umpire passively calling bails divetsions and allocations, even those made and strikes for When the legislative adversaries intent is less than consideration of their effect on the appearing before it, but inead clear, Waters and Water Courses ®‘132 with due the Supreme Court will observe the 33. 7. must take the initiative in considering, pro public trust. Const. Art. 11, §11, V well established rule of statutory construc Domestic water use is a purpose of the tecting, and advancing public rights inj the 132, 133 tion that, where an administrative agency is state water resources trust. 42. Waters and Water Courses resource at every stage of the• planning and charged with the responsibility of carrying State bears an affirmative duty to take decisionmaking process. Const. Art. 11, 7. 132 § out the mandate of a statute which 34. Waters and Water Courses the public trust into account in the planning contains 48. words of broad and indefinite Exercise of Native Hawaiian and tradi and allocation of water resources, and to Waters and Water Courses l33 meaning, courts accord persuasive weight to adminis tional and customary water rights is a public protect public trust uses whenever feasible. Public trust compels the State duly to trative construction and follow the same, un trust purpose. Const. Art. 12, § 7. Const. Art. 11, § 1, 7. consider the cumulative impact of existing less the construction is palpably erroneous. and proposed diversions on water resource 35. Waters and Water Courses €z132 43. Waters and Water Courses €‘l32 trust purposes and to implement reasonable 56. Administrative Law and Procedure Public has a definite interest in the de While the state water resources trust measures to mitigate this impact, including 751. water resources for acknowledges that private use for economic velopment and use of the use of alternative sources. and Judicial deference to administrative development may produce important public various reasonable and beneficial public agricul agency expertise reflects a sensitivity to the benefits and that such benefits must figure private offstream purposes, including 49. Waters and Water Courses €5 of proper roles of the political and judicial any balancing of competing interests in ture; therefore, apart from the question Water resource trust into requires planning branches, insofar as the resolution of ambi it stops short of embracing private historical practice, reason and necessity dic and decisionmaking water, from a global, long-term guity in a statutory text is often trust purpose. tate that the public trust may have to accom more a commerpial use as a protected perspective. question of policy than law. 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 57. Statutes ‘sa’219(4) 63. Waters and Water Courses €133 CJte as 94 HawaiI 97 (2000) 103 der Administrative Procedures Commission on Water Act; Commis source Management Rule of judicial deference does not apply Resource Man -sion regulations made to designate 5.39 niillion no reference to rule gallons a day when the administrative agency’s reading of agement should have taken the initiative in making. HRS (mgd), which were otherwise § 91-3. available the statute contravenes the legislature’s man planning for the appropriate instream flows for instrearn purposes, as a “non- 70. Waters permitted ifest purpose. before demand for new uses heightened the and Water Courses 133 ground water buffer” that the temptation simply to accept diver Commission could renewed City waived its objections to the decision have used to satisir future 58. Waters and Water Courses 132 of permit applications sions as a foregone conclusion. HRS Commission on Water Resource Manage without amending the in 174C—31(d, j). ment to terim instream flow Water code provision promoting “maxi § extend the statutory deadlines for standards for streams amending affected by ditch mum beneficial use” does not dictate maxi interim instream flow standards system for collecting fresh 64. Waters and Water Courses €‘133 by surfacç mum consumptive use, but instead requires failing to object to extensions. water and dike-impounded ground Commission on Water Resource Man HRS water; jbuffer, maximum beneficial use for the range of §. 174C—50(d), I74C—53(c), 174C—71(2)(E) at best, was superfluous and, agement may reclaim instream values to the at wort, purposes described, with the condition that was a violation of public trust and inevitable displacement of existing offstream 71. Waters and Water Courses an end run adequate provision shall be made for various 133 around Code’s instream use pro uses. HRS § 174C—5(3), 174C—71(1)(E), (4). Ultimate tection protective purposes. HRS § 174C—2(c). burden of justifying interim in- provisions. Const. Art. 11, § 1, 7; stream flow standards does not fall on peti HRS § 174C—1 et seq. 65. Waters and Water Courses 133 tioner 59. Waters and Water Courses 133 seeking adoption of interim staidards. State constitution and Water Code do HRS 76. Waters and Water Courses 133 Under the Water Code, instream flow § 174C—71(2)(C). not differentiate among “protecting,” “en Commission on Water standards serve as the primary mechanism 72. Resource Man hancing,” and “restoring” public instream Waters and Water Courses agement, in providing for the by which the Commission on Water Resource release of the values, or between preventing and undoing Supreme Court would not buffer and proposed agricultural Management is to discharge its duty to pro substititite its reserve into “harm” thereto. Const. Art. 11, §1 1, 7; judgment for that of Commission windward streams, should have tect and promote the entire range of public on Water specified how HRS § 174C—71. Resource Management it would haVe apportioned trust purposes dependent upon instream concerning its ulti these supplemen mate ruling that there was tal flows among the specific flows. HRS § 174C—71. 66. Waters and Water Courses 133 insufficient evi streams. HRS dence to upport a more 174C—71(2)(F). conclusive assess- - Commission on Water. Resource Man ment of 60. Statutes 227 instream flow requirements; such a 77. agument’s duty. to establish proper instream mixed Waters and Water Courses I33 determination of law and fact was In determining whether a statute is flow standards continues notwithstanding ex within Commission on Water the Commission’s designated expertise Resource Man mandatory or directory, the Supreme Court istng diversions. HRS § 174C—71(1)(E), and agenient failed- to provide sound discretion, and the evidence any findings or may determine the intention of the legisla (2)(D). did conclusions to not demonstrate it to be clearly enable meaningful review of ture from a consideration of the entire act, erroneous. its decision 67. Waters and Water Courses E”133 HRS § 1740—31, 1740—71. regarding petition to amend the its nature, its object, and the consequences interim standard for particular Commission on Water Resource Man 73. windward that would result from construing it one way Waters and Water Courses I33 streams. or the other. agement was authorized to amend interim At minimum, the absence of firm scienti instreani flow standards to provide further 78. Administrative Law and fic proof should not tie the Procedure 61. Constitutional Law €48(1) protection where, according to the Commis Commission on E486 Water Resource Management’s sion, the evidence generally demonstrated hands in Administrative Supreme Court must interpret statutes adopting reasonable measures agency must make its the need for increased flows, but nonetheless designed to findings reasonably in accordance with any relevant constitution further the public interest clear; the parties and the fell short of the desired showing for estab in minimum in- court al requirements. stream flows. should not be left to guess, with re. lishing permanent standards. HRS 174C— spect to any § material question of fact, or to 62. Waters and Water Courses €‘133 71(2)A). 74. Waters and any group Water Courses 133 of minor matters that may have Decision cumulative significance, Commission on Water Resource Man 68. Statutes 195 of Commission on Wates Re the precise finding of agement improperly source Management to the agency. weighed instream and W]ere the legislature includes particular add 6.0 million gal- offstream under -, ions a day (mgd) to interim uses Water Code provision language in one section of a statute but omits instream flow 79. Admjnistr standards for Law and Procedure addressing “competing applications” for wa streams affected by ditch €507 it in another section of the same Act, it is tern ter use permits, in concluding that, where for collecting fresh surface water generally presumed that the legislature acts nd Clarity in an- administrative instream flow values could have been protect dike-impounded ground water was not ovrly agency’s de intentionally and purposely in the disparate protective; cision is all the more essential in ed and offstream agricultural uses main rather, decision appeared to pro a case inclusion or exclusion. vide where the agency performs as a tained, both “uses” were accommodated in close to the least amount of instream public trust use ee and is duty bound to demonstrate the manner promoted by provision; petitions 69. Waters and Water Courses €133 protection practicable. under the circum that it stances. has proierly exercised the discretion for interim instream flow standard amend Commission on Water Resource Man HRS § 174C-71(2)(C) vested in it by the constitution and the ments were not among the water use permit agement was not required to establish inter statute. 75. Waters and Water Courses e133 applications “competing” under provision. im instream flow standards of particular 80. Waters and Water Courses rj33 Neither state HRS § 174C—54. streams through rulemaking procedures Un- constitution nor Water Inability Code authorized of Commission on Water Re Commission on Water Re- source Management to designate more defin fl .‘ ‘,:‘‘.. .‘,flSCt’,

IN RE WATER USE PERMIT REPORTS APPLICATIONS 104 94 RAWAI’l CIt as 94 Haw4’t 97 (2000) 105 broader, long-term social and economic per policy considerations itive instream flow standards neither allowed 86. Administrative Law and Procedure spective. than those uses typical ly associated with the prolonged deferral of the question of 753 “agricultural use.” HRS 93. Waters and Water § l74C—2(c). instream use protection nor necessarily pre Reviewing court must judge the propri Courses l33 Neither cluded present and future allocations for offs ety of administrative agency action solely by fact that water permit applicant 98. Waters did not and Water Courses 142 tream purposes; rather, the Commission was the grounds invoked by the agency, and that acquire the property until a foreclo sure sale. after Conclusions of Commission on required to apply methodology that recog basis must be set forth with such clarity as to statutory deadline for qualify Water ing as a Resource Management that water nized the preliminary and incomplete nature be understandable. “existing use” nor admission of permit’ ap operator plicant that operated golf course of existing evidence, and incorporated ele of the ditch system that omission of would be and Procedure applicant subject to special requirements, ments of uncertainty and risk as part of its 87. Administrative Law from joint application was an over including a sight duty tq seek alternative sources analysis, pending more conclusive evidence of 507 compelled Commission on Water Re when they source are re4onably available in the instream flow requirements. Where the’ record demonstrates consid Management to ignore the express near future and that golf course had erable conflict or uncertainty in the evidence, statutory deadline for existing use a duty to use alter permit native sources 81. Waters and Water Courses @“133 an administrative agency must articulate its applications, HRS § l74C—50(c). when they are reasonably available were not analysis with reasonable clarity, giv arbitrary, capricious, or an Under no circumstances, do the constitu factual 94. Waters and abue Water Courses 132 of discretion; imposing exclusive re or Water Code allow the Commission on ing some reasonfor discounting the evidence Water permit applicant’s use was hot an stritions on “nonagricultural use” not shared Water Resource Management to grant water rejected. “existing by use,” as Contemplated by Water other uses, was squarely within the Com permit applications with minimal scrutiny. Code mission’s 88. Waters and Water Courses €‘133 provision which referred to those uses appointed function of weighing and Const. Art. 11, § 1, 7; HRS § 174C—1 et as Commission on. Water Resource Man of the date a particular area was designat negotiating competing interests in regulating seq. as the agement’s year-round allocation of .86 million ed a Water management area; prior owner water resources, HRS § 174C_31(d)(2), of subject property (k—rn). €“133 gallons per day (mgd) for two plots of agri began using ditch water 82. Waters and Water Courses after cultural land, nearly three times its stated statutory deadline for qualifying as an 99. Waters and Water Under the public trust and the Water average demand during its four-month peak “existing use.” HRS § l74C—50(a). Courses €‘133 burden of Code, permit applicants have the season, had no basis in the record and was See publication Words and Phrases Commission on Water Resource Man justifying their proposed uses in light of pro for other judicial constructions and def. agement did not engage in cleai’ly erroneous. initions. illegal rulemaking tected public rights in the resource. Const. in its distinctive treatment of “nonagricultur Art. 11, 1, 7; HRS § 174C—1 et seq. 89. Waters .and Water Courses 5”133 al uses;” § 95. Waters and Water Courses 132 although Commission was reqtthed by Absent basic information on current and Golf-course law to rule on various competing 83. Waters and Water Courses cn133 irrigation did not qualify as permit projected use, Commission on Water Re an applications by way of an adjudicative “agricultural use” under the Water Code pro Permit applicants requesting water di source Management’s allocation of 1.19 mil ceeding, Commission did provision favoring maximum beneficial not propose any verted from streams must duly take into lion gallons per day (mgd) for diversified use general rules automatically for purposes such as irrigation and applicable in all interest in instrearn flows. agriculture on four fields was clearly errone other circumstances, but account the public agricultural uses; although instead devised a princi “agricultural pled ous. uses” could entail solution to a specific dispute based on Waters and Water Courses 132 irrigation, “irrigation” and 84. “agricultural facts applied to rules that had been 90. Wsters and Water Courses 5a133 use” were not synonymous or proniul As a general matter, water use for diver coextensive. gated by the legislature, fIRS § 91—1(4). Ii’i neglecting to address the practicabifi ‘HRS § 174C—2(c), suied agriculture on land zoned for agricul See publication ty of using pumped ground water as an Words and Phrase 100. Waters and Water Courses €133 ture is consistent with the public interest; for other judicial constructions and alternatiye to stream diversion, the Commis de such use fulfills state policies in favor of initjons. Commission on Water Resource Man sion tin Water Resource Management failed agement’s reasonable and beneficial water use, diversi 96. grant of golf course’s requested to establish an adequate basis for the alloca Waters and Water Courses 132 water fied agriculture, conservation of agricultural allocation without any reasoned discus tions granted to certain agricultural fields. Inclusion of a use as golf course sion lands, and increased self-sufficiency of State. in” of the practicability of using ground cultural districts” under a separate water Const. Art. 11, § 1, 3; HRS § 174C—2(c). €“133 land use was void as being at odds with the 91. Waters and Water Courses statute governing open area recreationa fa Commission’s own analysis and decision Commission on Water Resource Man cilities does not con 85. Waters and Water Courses ‘133 establish the use as “agricul cerning nonagricultural uses. agenient is not obliged to ensure that any tural” for water allocation purposes. HRS Although Commission on Water Re subsidy guaran particular user enjoys a or §1 l74C—2(c), 205—2(d). 101. Waters and Water Courses 133 source Management properly accommodated expensive water sources teed access to less Commission on existing agricultural uses while restoring in- 97. Waters and Water Courses Water Resource Man when alternatives are available and public ‘132 agement failed stream Commission failed to provide to fulfill its duty to consider flows, values are at ‘stake. Commission on Water Resource Man the impact of fluctuating diversions on in- minimal analysis required to support provi agement’s excluding golf course irrigation and Water Courses €“133 stream base flows and the practicability sion of 2,500 gallons per acre per day (gad) 92. Waters from the category of “agricultural of use” was adopting specific measures for every acre of land in diversified agricul Stream protection and restoration need not error; Commission to mitigate this apparently decided impact when it ture, given patent incongruities in evidence not be the least expensive alternative for that golf course used the 12—Month Moving irrigation raised different Average (12—MAi/) as to wate requirements. offstream users to be “practicable” from a to measure leeward uses. 94 HAWAJ’I REPORTS IN RE WATER USE PERMIT APPLICATIONS Cft as 94 HawaIi 97 (2000) 107 102. Waters and Water Courses ‘133 107. Waters and WaterCourses ‘244 114. Waters and Water Courses e-ii its property without just compensation by Commission on Water Resource Man Water permit applicant To mitigate the impact of variable offs had no correla denying request to use such water and allo agement’s regulating ditch system as a single tive rights to use water for tream demand on instream base flows, the landscaping pur cating it to other leeward, parties; overruling integrated unit was not error; water delivery poses prior to obtaining the Commission on Water Resource Manage necessary land City Mill Co., Ltd. v. Honolulu Sewer & system drew water from several different use approvals for its ment was required to consider measures proposed development. Water Comm’n, 30 Haw. 912. U.S.C.A.. water management areas, and, notwithstand Const. Art. 1, 7; such as coordination of the times and rates of § HRS § . l740-27(a). Const.Amend, 5. ing alleged independence of the hydrologic offstream uses, construction and use of reser 115. Waters and Water Courses 1O1 . 121.. Eminent voirs, and, use of a shorter time period over units involved, allocations from leeward por Domain €4 tion of ditch system directly and immediately Correlative rights rule grants overlying which to measure average usage; if neces Usufructuary water rights have always affected the windward parties insofar as any landowners a right only to such water as sary, the Commission could designate the been i1cQmplete property rights, so the ex allocation of the leeward supply proportion necessary for reasonable use. interim instream flow standards so as to pectatiins of rightholders to the enjoyment ately reduced the amount of water otherwise accommodate higher offstream demand at 116. Waters and Water Courses €130 of thes rights are generally weaker than the certain times of. the year. HRS § 174C—3. demanded from windward streams. HRS expect*ion of the right to Until overlying landowners develop an exploit the full § 174C—53(b). value o dry land. actual need to use ground water, .nonoverly Waters and Water Courses €‘133 103. Waters and Water Courses e244 ing parties may use any 108. available “surplus.” 122. Appeal and Error €“971(2) Designation of ground water manage Independent designation of water man 117. Waters and Water Courses €13 Court reviews ment area subjected both ground and surface agement areas does not preclude consolidat determinations Lands from which water of xpert qualifications under the water diversions from the designated area to ed regulation where a water delivery system permitees, who abuse of had no existing legal discretion standard. Rules of the statutory permit requirements. HRS draws ..water from several different water correlative use, óught Evid., Rule ground water laid in ground 702. § 174C—44 et seq. management areas. HRS §11740-44, water manage ment areas and, thus, any 174C—45. determination of 123. Courts €26’ 104. Waters and Water Courses 133 their rights had to proceed according to the Abuse of 109. Waters and Water Courses 133 relevant Water Code provisions, rather than discretion occurs when the de Commission on Water Resource Man cisionmaker Fact that charitable trust was founded the common law. HRS §1 174C—49(c), exceeds the bounds of reason or agement had jurisdiction to hear any dispute disregards rules by a Native Hawaiian ali’i did not grant 174C—50(b, h), 1740-63, 1740—101(d). or principles of law or prac regarding water resource protection, water tice to the foundation absolute or undiminished right to substantial detriment of a party. permits, or constitutionally protected water 118. Waters and Water Courses .14O all ‘the water connected with its lands nor interests and to investigate and take appro Under the statutory 124. Waters and Water Courses 133 compel Commission on Water Resource Man permitting process, priate action in response to allegation that common law riparian Commission permit appli and correlative right- on Water Resource Man water due to defi agement’s approval of its water holders ditch system was wasting receive priority (1) to the extent that agement’s declining to qualifr public opinion cation. Const. Art. 11, § 7; Art. 12, § 7; they cient operation and upkeep. HRS § 1740- have established an “existing” use that pollster as an expert in contested proceeding HRS § 1740—7(a). (a) 10, 1740—13. comports with the common law rules and involving allocation of water resources was 110. Waters and Water Courses ‘l01 (b) is reasonable and beneficial, but only (2) an abuse of discretion; pollster had extensive 105. Waters and Water Courses 133 in Rule of correlative rights applies to all relation .to “new” uses. HRS §1 174C— experience in the field of public. opinion poll 49(c), ing, In relying on a lack of evidence concern ground waters of the State; overruling Davis 174C—50(b, h), 174C—63, 174C—1O1(d). spanning 23 years and “over 2000” sur ing present demand for use of stream water v. Afong, 5 Haw. 216, and Wang Leong v. veys for various private and government 119. Eminent Domain 277 or to justify maction m designating watershed Irwi’il, 10 Haw. 265. Const. Art, 1, § 7; ganizations. Rules of Evid., Rule 702. Landowner’s claim that as a surface water management area, the HRS § 1740—27(a). Commission on Water Resource 125. Waters and Water Commission on Water Resource Manage Management effected a un Courses 133 1Waters and Water Courses cIz101 constitutional “taking” by ment ignored its own affirmative duty under 111. denying its )euest Public opinion poll of approximately to use water and allocating 1,600 the public trust and statutory instream use Water permit applicant had no correla it to othe4lee- island adults regarding the direction vard parties was premature, of protection scheme to investigate, consider, tive right to use ground water drawn from its as Commission future growth on island and allocation of properly denied permit and protect the public interest in the flow of windward lands on distant leeward lands. application for water from ditch system was not relevant compliance with the to stream. Const. Art. 1, § 7; HRS § 1740-27(a). statutory conditins. whether proposed water use was consis U.S.C.A. Const.Amend. 5. tent with the public interest; 112. Waters and Water Courses €“101 r public opinion Courses poll taken at random, 106. Waters and Water €133 120. Eminent Domain €“2(1O) without regard to re Correlative rights extend only to uses on spondents’ .background Water Resource Man Even beyond or knowledge con Commission on lands overlying the water source. the State’s police power, cerning relevant the original issues, had no bearing on agement’s requiring permit applicant’s pro limitation of public trust defeated Commission 113. Waters and Water Courses ‘127 on Water Resource Manage posed water uses to conform with zoning claims of absolute entitlement to water as ment’s constitutionally and statutorily classifications, in addition to other, more gen Parties transporting water to distant serted by landowner who further ap alleged that pointed mission of comprehensive eral land use plans and policies, was not lands are deemed mere “appropriators,” sub Commission on Water water re Resource Manage source planning and ordinate in right to overlying landowners. ment effected an management. HRS error. HRS § 1740-49(a). unconstitutional taking of I l740—49(a)(4). 94 HAWAPI REPORTS 108 IN RE WATER USE PERMIT APPLICATIONS Cite as 94 Hawaii 97 109 enough to assure actual use within a reason (2000) 126. Appeal and Error €840(4) Kamehameha Schools Bernice Pauahi Bishop leeJCross—Appellant able time frame. Estate. Dole Food Company, Supreme Court reviews evidentiary nil IncjCastle & Cooke, Inc. ings concerning admissibility based on rele Waters Water Courses ‘s133 David Z. Arakawa, vance under the right/wrong standard. 132. and Corporation Counsel James T. Paul, Pamela W. Bunn and Jessi and Mark K. Morita, Randall ca Trenholme Commission on Water Resource Man K. Ishikawa, of Paul, Johnson, Park & Niles States ‘122 Duane W.H. Pang and Reid M. for Iritervenor/Appellant 127. agement had authority to set aside 1.58 mil Yamashiro, Hawaii’s Thousand Deputies Corporation Counsel, on Friends. Provisions of Water Code mandating per day (mgd) as a proposed the briefs, lion gallons for Appellants City that Commission an Water Resource Man earmarking and County of Honolulu agricultural reservation; by an Frak D. Padgett, on the briefs, for agement conduct various investigations, stud Planning Department and Board of Water Appel estimated amount of water required in subse lant (mmission on Water Com Supply. Resource Man ies, and inventories did not require the quent proceedings, the Commission provided agemdit. mission to finance these activities on its own, specific notice of its proposal for further Michael W. Gibson, Douglas S. Appleton nor prohibit it from ordering appropriate Jan4s K. Mee of Paeiflc Legal Foundation diversions for agricultural use in the near and Keith M. Yonamine of Ashford & Wri alternative sources of funding. HRS and Cky T. Tanaka of Matsuinoto, LaFoun future. HRS § 91—3(a)(1)(B). ston, on the briefs, for Applicazit7-Appel- S 174C—5(1), 174C—31(c), 1740—41(a), 174C— taiite Chow, on the briefs, lee/Cross-Appellant The for Appellee Estate of’ James Hwaii Farm Bureau. 174C—71(1)(E), (4). 133. Waters and Water Courses e140 Campbell. Jon T. Yamamura and Kevin E. 128. Eminent Domain €2(1O) Commission on Water Resource Man Paul Moore of H. Achitoff and David L. Hnkin of Carismith Ball, on Requirement that permittee contribute agement did not improperly impose a di the briefs, for Appli Earthjilstice Legal Defense Fund for Peti cant/Appellee Nihonkai studies that would assist the Commission to prioritize water uses on city and Lease Co., Ltd. to rective tioners/Appellants Waiahole—WaikAne Com Water Resource Management in deter counties; eissting water supply was insu Lois J. Schiffer, on munity Association, Hakipu’u ‘Ohana and Ka Assistant Attorney Gener the impact of permitted use on the accommodate the land uses planned al, Robert Klarquist mining dent to Lahui Hawai’i and Alan T. Murakami and and Andrew C. Mergen, was not an unconstitutional shortfall Attorneys, water source and zoned by city and resulting Carl C. Christensen of the Native Hawaiian Appellate Section Environment & “regulatory leveraging.” U.S.C.A. Const. Commission to prioritize Natural Resources compelled the Legal Corporation, on the briefs, for Peti Division, Department of Amend. Coast. Art. 1, 20. making ultimate Justice and 5; §. among proposed uses in tioners/Appellants Waiahole—Waikäne Com Cheryl Connett and Paul M. chblees among them and required city to munity Association Sullivan, Attorneys, Pacific Division, Naval 129. TaxatiOn 1 and Hakipu’u ‘Ohana. acively develop integrated water use plans Facilities Engineering Command, on the Water Courses €133 Waters and addressing the contingencies arising from the Gino L. Gabrio, Patrick W. Hanifiri and briefs, for Appellee United States Depart Requirement that permittees contribute limitations in supply. HRS § 174C—31(d), Laurie A. Kuribayashi of Cades, Schutte, ment of the Navy. to studies that would assist the Commission 174C—54, 174C—62(a). Fleming & Wright and Orlando R. Davidson Alan M. Oshima of Oshima Chun on Water Resource Management in deter and David L. Callies, on the briefs, for Fong & Ap Chung for Appellee/Cross—Appellant mining the impact of permitted use on the pellee/Cross—Appellant Land Use Research The Es tate of James Campbell. water source was not an illegal tax; studies Foundation. directly related to permitees’ burden of prov Gilbert D. Butson of Reinwald O’Connor & Naomi U. Kuwaye of Dwyer Imanaka Gary M. Slovin, Margaret Jenkins ing that their uses were reasonable-beneficial Playdon, on the briefs, for Appellee/CrOss— Leong Schraff Kudo Meyer and Fujirnoto for Appli and Lisa Bail of Goodsill, Anderson, id consistent with the public interest. AppUant Pun Makakilo. Quinn & cant/ Petitioner—Appellant Kamehanieha Stifel, on the briefs, Jonst. Art. 8, § 3; HRS § 174C—49(a). for Applicant—Appel- Schools Bishop Estate. S,ephen K.C. Mau and Cheryl A. Nakamu TABLE OF CONTENTS 130. Municipal Corporations e’589 ra of Rush, Moore, Craven, Sutton, Morry & I. BACKGROUND A. INTRODUCTION To be valid, fee need only bear a reason Beh oh the briefs, for Appellee/Cross-APPeI B. PROCEDURALHISTORY relationshiP to the cost of the services lant Robinson Estate. able The C. FINAL DECISION administrative agency. — rendered by the II. STANDARD OF REVIEW Margery Bronster, Attorney General of ‘ S. III. DISCUSSION — Courses ‘l33 131. Waters and Water Hawai’i, Heidi M. Rian, Haunani Burns and — A. PROCEDURAL DUE PRO SS Commission on Water Resource Man Marjorie Lau, Deputy Attorneys General, on — 1. Dual Status of the Commission Chairperson agement’s denying Department of Agricul the briefs, for Appellees/CrO5SAPPe11nts 2. Improper Influence by the Attorney General and Governor ture’s (DOA) water use permit application State of Hawai’i Department of Agriculture B. PUBLIC TRUST DOCTRINE — seeking 0.75 million gallons per day (mgd) and Department of Land and Natural Re 1. History and Development — — for DOA’s agricultural park without preju sources. 2. Relationship to the State Water Code when DOA could demonstrate 3. State Water Resources Trust dice to reapply — Benjamin A. Kudo, Wesley M. Fujimoto a. Scope of the Trust that actual use would commence within a — Uehara of Dwyer, Imanaka, b. Substance of the Trust reasonable time frame was neither arbitrary and Stacy E. — i. Purposes of the Trust nor capricious; proposed water use was still Schraff, Kudo, Meyer & Fujimoto, on the — ii. Powers and Duties of the State Under the Trust not certain briefs, for Applicant/PetitiOflerAPPellant — in the planning stage and yet c. Standard of Review under the Trust — 94 HAWAI’T REPORTS IN 110 RE WATER USE ‘PERMIT APPLICATIONS Cite as 94 IIawsI’i 97 (2000) 111 C. INTERPRETATION OF THE STATE WATER CODE — States Department of the Navy (USN). We from the Pearl Harbor aquifer. At the 1. Basic Principles of Statutory Construction have carefully reviewed time — their arguments in 2, Water Code Declaration of Policy of this appeal, various leeward parties still light of the entire breadth of this state’s D. INSTREAM FLOW STANDARDS legal retained, but were not using, well permits to for Instream Use Protection — mandates and 1. Overview of the Statutory Framework practical demands. For the pump approximately 53 Objections to the WIIFS Amendment — mgd• of leeward 2. Procedural reasons fully explained below, we affirm in ground water. 3. Substantive Objections to Instream Allocations , part and vacate in for Waikane Stream part the Commission’s 4. Interim Standard decision Diversions by the ditch system reduced USES — and remand for further E. INTERIM BALANCING OF INSTREAM AND OFFSTREAM Proceedings the flows in several — consistent with this opinion. windward streams, spe F. WATER USE PERMITS cifically, 1. Permit Applicants’ Burden of Proof Waiãhole, Waianu, Waikane, and Generally, and the Allocation of 2,500 Gallons Kahana streams, affecting 2. Diversified Agriculture, I. the natural envi — BACKGROUND per Acre per Day ronmnt and human communities dependent Estate’s Permits — 3. Campbell A. INTRODUCTION upon $hem. Diminished flows a. Field Nos. 146, 166 (ICI Seeds) — impaired na tive sleam life and may have contributed to b. Field Nos. 115, 116, 145, 161 (Gentry/Cozzens) The Waiahole Ditch System collects fresh — the de$line in the c. Alternative Ground Water Sources surface water and greater ICãne’ohe Bay eco — dike,jmpounded ground systei4 4. PMI’s Permit water including the offshore fisheries. The — from the Ko’olau mountain range on a. “Existing Use” impacts of stream diversion, however, Use” the windward side of the island went b. “Agricultural of O’ahu and largely unacknowledged — until, in the early c,. Distinctive Treatment of “Nonagricultural Uses” delivers it to the island’s central plain. Be Standards — 1990s, the sugar industry on O’ahu d. Application of the Commission’s ginning in lCahana Valley, the came to a Moving Average — collectnn por cloe. 5. 12—Month tion of the system G. USE OF KAHANA SURFACE WATER TO COMPENSATE FOR proceeds along the wind — ward side of the DITCH “SYSTEM LOSSES” Ko’olaus, then passes under B. PROCEDURAL HISTORY H. KSBE’S POINTS OF ERROR — the Ko’olau crest, to the leeward side at the — On July 15, 1992, the 1. Zoning Requirement North Portal. The section of the Commission desig — system 2. Unified Regulation of the Ditch System nated the five aquifer systems of known as the Waiahole Main’ Bore or Tunnel Windward 3. “.Ali’i Rights” O’aliu as ground water management areas, — extends from the North Portal to 4. Correlative Rights the Tun effectively requiring — existing users 5. KSBE’s Takings Claim nel’s leeward exit, South Portal Adit S (Adit of — Waighole Ditch water to apply for water 6. Ankersmit’s Testimony 8). The delivery portion of the system be use FUND STUDIES — permits within one I. REQUIREMENT TO gins at Adit 8 and winds year of that date.2 In — through the plain of J. DOAJDLNR’S MISCELLANEOUS OBJECTIONS June 1993, the Waiãhole. Irrigation Company OBJECTIONS — Central O’ahu. Measured at Adit 8, the K. THE C177’S MISCELLANEOUS sys (WTC), the operator of the — tem develops ditch system, flied IV. CONCLUSION approximately 27 million gal- a Ions a combined water use permit application for MOON, C.J., LEVINSON, NAKAYAMA, sion and order (D & 0) (collectively, final day (mgd). the existing users of ditch water. In August RAMIL, JJ. and Circuit Judge IBARRA, in decision or decision) on December 24, 1997. The ditch system was built in significant 1993, OSCo announced that it would end its Place of KLEIN, J. Recused, Parties on appeal include: the Commis part from 1913 to 1916 to irrigate a sugar sugar operations, signaling the imminent sion; appellee/cross-appellant Estate of plantation owned and by NAKAYAM.A, J. operated by Oahu Sug availability of the ditch water used by OSCo Opinion of the Court James Campbell (Campbell Estate); appel ar Company, Ltd. (OSCo), Until the planta and raising the question of its future The present appeal arises from an extend lants City and County of Honolulu Planning alloca tion ceased operations in 1995, OSCo used tion. ed dispute over the water distributed by the Department and Board of Water Supply (col much of the ditch’s flow, in addition to a Waiahole Ditch System, a major irrigation lectvely, the City); appeilees/cross-appel Conflict ensued. On November 4, 1993, substantial supply of ground water pàmped infrastructure on the island of O’ahu supply lantfs Department of Agriculture (DOA) and DOA filed a petition to reserve3 the ditch Department of Land and Natural Resources 1. See generally ing the island’s leeward side with water di Reppun v. Board of Water ,upply, and surface (DINR), State of Hawai’i (collectively, DOAJ 65 1kw. 531, 533, 656 waters in the area to ensure rca verted from its windward side. In 1995, this P.2d 57, 60 (l9S2(”The sonable.beneficl Dole Food geological structure of the use of the water resources in in a contested case hear DLNE); appelleWcross-appellant Koolau moun4ins of the public interest. dispute culminated (Castle); Oahu enables parts thereof to act as Company, InclCastle & Cooke, Inc. Ijatural HRS § 174C_48(a) (1991) provides ing of heretofore unprecedented size, dura reservoirs of fresh water; these natural slorage that: “No appellee Hawaii Farm Bureau (HFB); appal person shall make any withdrawal, tion, and complexity before appellee Commis compartments are called dike complexes or sys diversion, lant Hawaii’s Thousand Friends (HTF); ap tents.”). impoundment or consumptive use of water in Management any sion on Water Resource (the pellant Karnehameha Schools Bernice Pauahi 1’ designated water management area without 2. See first obtaining a Commission). At the hearing, the Commis Bishop Estate (KSBE); appellee/cross appel Hawaj’i Revised Statutes (HRS) ch. 174C, permit from the commission” Pt. IV (1993 & Supp.1999) “Existing uses,” however, sion considered petitions to amend the inter lant Land Use Research Foundation (‘Regulation Of Wa may continue pending ter Use”). HRS § 174C—’41(a) (1993) states: application for a water use permit. See Id. HRS im instreani flow standards for windward (LURF); appellee Nihonkai Lease Co., Inc. § 174C—50(c) When it can be reasonably determined, after (1993) requires that permit appli affected by the ditch, water use per Pu’u cations for streams (Nihonkai); appelleWcross-appellant conducting scientific’ investigations and re. “existing uses” be made within one year from mit applications for various leeward offs Makakilo, Inc. (PMI); appellee/cross-appel search, that the Water resources in an area the effective date of Water manage. ment area &eam purposes, and water reservation peti lant Robinson Estate (Robinson); appellants may be threatened by existing or proposed designation. withdrawals or tions for both instream and offstream uses. Waiahole—Waikane Community Association, diversions of waler, the com. mission shall designate the area for 3. HRS § I 74C—49(d) (1993) states: issued its final findings of Hakipu’u Ohana, and Ka Lahui Hawai’i (col the pur. The Commission pose of establishing administrative control appellee United The commission, by rule, may reserve water fact (FOFs), conclusions of law (COLs), deci lectively, WWCA); and over the withdrawals and diversions of ground in such locations and quantities and for such - -

IN i HAwi’i REPORTS RE WATER USE PERMIT APPLICATIONS ‘ 112 Cite as 94 HawaiI 97 (2000) - 113 investigation and several (goby), ‘Opae (shrimp), and hfhiwaj flow for agricultural uses. The Office of After holding an (snail).5 submitted written and oral exceptions. an order to show Hawaiian Affairs (OHA), WWCA, KSBE, meetings and considering On January 25, 1995, the Commission or While the’ Commission ‘was considering its WIC’s continuing, waste of and the Department of Htwaflan Homelands cause regarding dered a combined contested case hearing on final decision, the state governor and attor requested the parties also filed petitions to reserve water.- On water, the Commission the permit applications, reservation petitions, ney general publicly criticized the proposed into mediation. The media and December 7, 1993, WWCA petitioned to involved to enter petitions to amend the WIIFS. At a decision as inadequately providing for lee the Commission’s subse public hearing amend upward the interim instream flow tion agreement and on April 18, 1995, the Com ward interests. At about the same time, the December 19, 1994 provid mission standards for the Windward O’ahu streams quent order dated received public testimony and re deputy attorney general representing the continue to supply 8 mgd quests to affected by the ditch (WIIFS);4 OHA ified a ed that WIC would participate in the consolidated Cohimission was summarily dismissed, The at the North For- hearing. The similar petition on February 28, 1995. to the ditch, as measured Commission admitted a final Conrnissjon issued its final decision on De the surplus into the wind total of r KSBE and Castle also filed separate water tel, and release twenty-five parties, ce4ber 24, 1997. The final decision differed use permit applications specifically request ward streams. On July 14, 1995, the Commission’s staff frofn the proposed decision in various re ditch system from submitted a most notably in ing water drawn by the The interim restoration of windward proposed order to bifurcate the its increasing the to amend contested amount of water lands they owned. The petitions stream flows had an immediate apparent pos. case hearing. The’ proposed order allocgted to leeward permit- applications col recommended tees by 3.79 mgd. the WIIFS and the permit itive effect on the stream ecology. The high that the Commjssioh decide in entire flow of the a separate lectively exceeded the er flows flushed out exotic fish species ‘that proceeding the a]lpcation of - ground water C. THE ditch. were harming native species by carrying par drawn from KSBFI’s Waiawa FINA! DECIgION competing for food and lands in the Pearl Harbor aquifer sector on In May 1994, the Commission received asites and disease, The Commission’s final decision consisted with spawning rituals. the leeward side, of the Ko’olau,g. On August complaints that, with the close of OSCo’s space, and interfering of 1,109 FOFs, an extensive legal discussion potential for the repo 7, 1995, the Commission issued an order sugar operations, WIC was discharging un Experts saw excellent section styled as COLs, and a D & 0 explain stream life such ‘as ‘o’opu denying the proposed bifurcation order on used ditch water into Central O’ahu gulches, pulation of native ing at length the Commission’s disposition. the grounds that th interrelated nature of the impor The following summary highlights the promi as its judgment may be or potential instream values with the applications seasons of the year in water for Waiahole Ditch water nent reservations shall be subject tance of the present or potential uses of elements of the Commission’s analysis necessary. Such the eco favored the consolidated process. to periodic review and revision in the light of for noninstream ‘purposes, including and decision; specifically contested FOFs uses; changed conditions; provided that all present nomic impact of restricting such The Commission also held hearings to de and COLs appear in shall grant or reject a the relevant discussion ly existing legal uses of water shall be protect (E) The commission termine the “existing uses” as of toctions to adopt an interim instream flow July 15, of this opinion, ed. petition 1992, the date standard under this section within one hun of the designation of Wind ch, 174, Pt. VI, § 174C—71 (1993) In its COLs, the Commission surveyed the 4. See HRS dred eighty days of the date the petition is ward O’ahu as a ground water management (“Instream Uses Of Water”). HRS § l74C—71 days may be law of water in Hawai’i, as established in the filed. The one hundred eighty area, that would be allowed to continue pend reads in relevant part: of one hundred eighty Hawaj’j Constitution, uses. The commis extended a maximum ing a decision on the State Water Code (the Protection of instream of the petitioner and sub permit applications, see and administer a statewide days at the request Code), and common law, focusing particularly sion shall establish the commission; .supra note 2. On August 15, 1995, the Com protection program,... In the ject to the approval of on the “public trust instream use standards may be mission issued doctrine.” As a preface of its duties the commission shall: (F) Interim instream flow “Order Number 8,” identjjr performance basis or may to its determination of the WIIFS, the Corn- (1) Establish instream flow standards on a adopted on a stream-by-stream ing the existing uses and their respective a general instream flow standard mission concluded that: stream-by-stream basis whenever necessary to Consist of interim allocations. “Order Number 10,” protect the public interest in waters of the applicable to all streams within a specified dated October 16, 1995, amended and clari Under the State Constitution and the State; area; public (3) Protect stream channels from alteration fied Order Number 8, allowing 9.3698 mgd, trust doctrine, the State’s first duty instream flow Stan to provide for fishery, is to protect - (2) Establish interim whenever practicable as measured at the North Portal, tt the fresh water resources and flow into dards; wildlife, recreational, aesthetic, scenic, the ditch until (surface and ground) which are part with the proper standing uses; further order of th Commis of the (A) Any person other beneficial instreSm public trust res. may petition the commission to adopt an inter sion. Haw. Const. Art. XI, im instream flow standard for streams in order (4) Establish an instream flow program to 7; Robjur u Ariyoghi, 65 Maw, (641,J es The contested case hearing commenced on to protect the public interest pending the protect, enhance, and reestablish, where prsc 674[, 658 P.2d 287, 310 (1982)1. The duty tablishment of a permanent instream flow uses of water. The November 9, 1995. Opening staterent,s and •ticable, beneficial instream to protect public water resources is a cate standard; commission shall conduct investigations ‘and presentation of evidence continued 1ntil Au instream flow standard gorical imperative and the (B) Any interim collect instream flow data including fishing. gust 21, 1996, spanning precondition to this section shall terminate flfty-tw hearing all adopted under wildlife, aesthetic, recreational, water quality, subsequent considerations for without establishment of a permanent in- days and four evening sessions, The Com upon the ecological information and basic stream- such underlying protection the standard for the stream on which and mission received written ‘natural en Stream flow characteristics necessary for determining testimony from 161 standards were adopted; flow vironment could, at some point, be irrevo the interim requirements. witnesses, 140 of whom also testified orally, to adopt an interim instream instream flow cably harmed (C) A petition shall implement its in and admitted and the “duty to maintain standard under this Section shall Set forth The commission 567 exhibits into evidence. flow standards whn disposing of water the purity and flow of our waters for fu data and information concerning the need to stream flow The parties presented closing arguments watersheds, including that removed ture generations protect and conserve beneficial instream uses from state from and ‘to assure that the they may affect September 18 to 20, 1996. water and any other relevant and reasonable by wells or tunnels where waters of our land are put to of use of lands reasonable information required by the commission; stream flow, and when regulating On July 15, 1997, the Commission released dis and beneficial uses” could be endangered. In considering a, petition to adopt an and waters within the state conservation its proposed (D) ‘decision, to which the parties Id. However, the duty to interim instresm flow standard, the commis trict, including water developmenL protect does not sion shall weigh the importance of the present 5. See Mary Kawena Pukui & Samuel I-I. Elbert, Hawaiian Dictionary 68, 290—91 (rev. ed.1986) 114 94 I1AWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS Cite 115 mean that all streams upon which to reach some perma as 94 HawaIi 97 (2000) neceaiarily or in every ease requests for water collectively 174C—71. exceeded the sures; 6) the availability offstream uses must cease, that no new nent solution. Haw.Rev.Stat. § flow of the ditch, of alternative the Commission concluded sources (ground offstream uses may be made, or that all Unfortunately, such firm knowledge will that, “[alt water and reusable waste least for the near term, water water);[ 9] waters must be returned to. a state of require considerably more work and is quantities 7) the four year non-use provi in excess of the amended interim sions nature before even the first Hawaiians ar years away. Until that scientific knowl instream of the Code (Haw.Rev.Stat. § 174C— flow standard and subject to the 0] available, stream management de 58);[ 8) compliance review (Haw.Rev. rived in these islands and diverted stream edge is conditions affecting supplemental 7] flows[ Stat. § 174C—58 [sic] 11] water to grow taro. The particular level of cisions will require a methodology that are available at the ).;[ and 9) low near present time to satisfy term demand. Thus, protection may vary with circumstances recognizes the preliminary and incomplete water use permit careful. management applicants for those exists may defer time to time; but the primary nature of existing evidence. ing the need to consider a higher and from and future offstream uses identified in level of scrutiny in analyzing the “public duty itself remains. Given the long term work needed to the [D & 01 Id. at 23. Based on this interest” test until the time when there COLs at 11. The Commission identified define an ecologically necessary flow in a conclusion, the Commission further is ruled ipadequate water for competing demands. Windward O’ahu ground water and streams particular stream, the Commission will that the statutory requirement of “reason.. Where, finally, there need to amend “interim” instream flow able-beneficial use” could is inadequate sup and Kane’ohe Bay as ‘part of the public trust be fulfilled, partic jiy for periodically until permanent ularly with respect competing needs, both the “public res ... subject to review under the State’s standards to agricultural uses, by a iiterest” test and the examination of “rea public trust responsibility as expressed in the standards can be adopted. “prima fade showing” of reasonableness and nableness” will require more than State Water Code.” I& at 31. From the long term vantage point of consistency with the public interest. Id. a pri at na facie showing. As competition the biological and environmental 24—25. The Commission reasoned for Wa The Commission acknowledged its duty science, tr resources increases, preliminary. [I]n this case, the analysis of under the Code to establish instream flow evidence regarding streams is a variety of mnagement both the public and interest and of reasonable instituting a program for in- The data collection is just beginning. The. legal factors postpone the need to flillr standards in ness must become.both more rigorous and conclusions are tentative. In some areas, analyze the affirmative “publi interest” stream use protection, see supra- note 4. The affirmative. The counties will be required interim restora experts are even hesitant to offer opinions. tests in the context of deciding “reasonable Commission found that the to articulate their land use priorities with For the foreseeable future, it will be neces beneficial use.” Among these factors are: tionof windward stream flows had a “positive greater specificity. For example, even sary to manage and protect streams 1) the obligation not to waste; at effect,” FOFs at 17—18, and that “generally, 2) the re the present time, there is more system of working presumptions lease into windward streams land zoned the higher the volume of instream flow and through a of permitted, for various uses than scientific but not used, ground available water to closer the stream flow approaches its natural rather than on the basis of firm water; 3) the release supply those proposed into windward streams uses. Thus, it is pre-diversion levels, the greater the support knowledge. of unallocated not sufficient to merely ground water; conclude that a for biological processes in the stream and its COLs at 16. The Commission nonetheless 4) the ditch operation and particular management parcel of land is properly zoned according maintained: plan; 5) conservation snea ecosystem,” COLs at 32. Thus, to and that the use is “beneficial.” That mm the Commission, “in general, it is expected Where scientific evidence is preliminary (3) Will not interfere with any existing legal FOF 793.-74, use of water; The Commission also noted the that additional flows to the streams would and not yet conclusive regarding the man limited (4) Is consistent use of reclaimed water for irrigatiqn, blots habitat.” FOFs at with the public interest; concluded but increase the native agement of fresh water resources which (5) Is consistent that reclaimed water was not present. with state and county gen ly available, 17 are part of the public trust, it is prudent to eral plans and in view of concerns regarding use land use designations; reclaimed of “precctutiofl(LrY prtnctjles” (6) Is consistent water over potable aquifers and health A more conclusive determination of the adopt in pro with county land use plans regulations and policies; and limiting such use to certain kinds tecting the resource. That is, where there crops. of necessary instream flows, however, remained (7) Will not interfere FOF 677—786; D & 0 at 8. The Commis with the rights of the sion, elusive. The Commission explained: are present. or potential threats of serious department of Hawaiian nevertheless, stated that it would ‘revisit home lands as provid and, damage, lack of full scientific certainty ed in section 221 of if appropriate, reduce existing ground-water The Commission has found it difficult to the Hawaiian Homes Com permits mission Act. if reclaimed water becomes available corresponds should not be a basis for postponing effec and quantify an instream flow that is allowable, subject to economic and health tive measures to prevent environmental 7. As explained considerations.” to a biological condition for a given flora or below, the Commission’ created a D & 0 at 8. result, the methods used degradation.... In addition, where un “buffer” of unallocated water for initJaI release fauna. As a on in the certainty exists, a trustee’s duty to protect streams and future allocation fooffstream 10. HRS § l74C—58 (1993) provides the continental United States to determine use. in relevant mitigates choosing part: an appropriate instream flow have proven te resource in fa’zor of presumptions that also protect the re 8. Revocation of permits. unsuitable in Hawaii. FIRS § 174C—3 (1993 & Supp.1999) defines After a hearing, the “reasonable-beneficial commission may suspend source. use” as ‘the us of water or revoke a permit The Water Code provides for the estab in such for: a quantity as is necessary for iconomic modification both interim Id.. at 33 (emphasis added). and efficient lishment and of utilization, for a purposeand in a manner which is (4) Partial or total.nonuse; for reasons and permanent instream flow standards on The Commission also reviewed the legal both reasonable and ,lonsistent than other with the state and county conservation, of the water allowed by the the assumption that scientific data will requirements for issuance of water use per land use plans and the permit public interest.” for a period of four continuous years or eventually provide firm knowledge about mits under the Code.6 Although the various more. 9. The Commission acknowledged 6. FIRS § l74C—49(a) (1993) mandates: (I) Can be accommodated with the available that various 11. FIRS § 174C—56 (1993) leeward parties had access to leeward states in relevant part: To obtain a permit pursuant to this part, the water source; ground “At least once every twenty water. Campbell Estate, for example, years, the commis applicant shall establish that the proposed use (2) Is a reasonable.benefic use as defined still held sion shall conduct a 35 mgd in well permits, FOF 788. comprehensive study of all in section 174C—3; and Del Monte permits issued under of water: was profitably using its own this chapter to determine ground water wells whether the conditions to irrigate lands for which it on such permits are be. sought ditch water, ing complied with.” IN 116 94 HAWAPI REPORTS RE WATER USE PERMIT APPLICATIONS Cltas 94 Hawal’j 97 (2000) 117 of ditch water over the ‘Ewa Plain 19, “more than 25% of the imal conclusion may be inadequate to re igin,” use average total 12.22 mgd total, the Commission allocated for new nonagricultural uses was Waiahole Ditch flow measured at solve situations in which competitive de caprock the North 10.64 mgd in water use permits, calculated disfavored.” Ici The Com Portal (23.3 mgd),” id. at 33. mand exceeds supply. Further analysis of “presumptively Specifically, by multiplying the 4,915 acres in “existing also stated: the Commission added 4.0 mgd to public interest criteria relevant to water mission the 3.9 use” under Orders Number 8 and 10 by the mgd “Q90 base flow” of Waiãhole (e.g., conservation, alternative uses, com Other non-agricultural uses in leeward Stream lesser of 2,500 gad or the amount requested. be and 2.0 mgd to the 0.5 rngd Q90 base parative public costs and benefits) will Oahu for golf course and landscaping uses flow of Id. at 7. The remaining 1.58 mgd was desig Waianu Stream, a tributary of needed.t121 which could utilize available ground water Waiahole nated a “proposed agricultural reserve,” Stream. D & 0 at 3. The or treated effluent also carry a heavy bur Commission thus wlich would become available for Id at25. increased the agricultur should be combined base - flow of uses, the Commission conclud den to show why stream water al use permits if confirmed through the req. — Agricultural of its watershed of origin, WaiAhole and Waianu Streams to 10.4 mgd. ed, were “generally” consistent with the pub diverted out uilte rulemaking procedures, see supra note Oahu is closer to Id. The Commission neither mentioned, nor lic interest “where adequate water [wa]s even though central 3. 1) & 0 at 7. The Commission expressly than the Ewa Plain. In made any provision for, the instream flow of at 26. In times of scarcity - windward Oahu prhibited unauthorized “double counting” available.” Id. - of uncertainty regarding the Waikane Stream. and competition, however, “the standard of the short term, wdter allocations, or the use of Pearl Harbor over a potable áqui The Commission set review Iwouldi be higher.” Id at 26—27. use of treated effluent aside a total of 13.31 ground water on the same lands to which infrastructure to move Waia mgd for leeward offstream Existing golf course and other nonagricultur fér, existing uses:’ 12.22 mgd permits to use Waiãhole Ditch water -applied, system water, and the need to for “agricultural” uses and al uses were “already subject to this higher hole Ditch 1.29 ifor “other” and noted that it could suspend or revoke flow needs all mitigate in uses. Id. at 6—7, 22.. standard, in light of higher uses for wind study instream Leeward ‘water uses permits fdr ground water from the Waipahu— continuing the use of Waiahole would be measured according to ward surface water, including retaining the favor of average use Walawa aquifer system after four years of 1992 uses. over a twelve-month period, or- water in the streams.” Id at 27. The Com water for the “twelve partial or total nonuse, see .supra note 10. D all permits to “conditions use of Waiahole month moving average” (12—MAY). Id. at - mission subjected -- Likewise, the continued & Oat 8. 12. The 12—MAV, providing for stream restoration if the Com Ditch water through the existing ditch sys the Commission elaborat ed, “allows for Nonagricul mission determines that additional water tem to preserve agriculture in central seasonal fluctuation, and is or “other” uses, including generally used for uses by a should be returned to the streams.” D & 0 Oahu on lands in sugar production in 1992 -all water use reporting state prison, a cemetery, and two requirements by golf at 30. (“footprint” lands) as well as on other the Commission.” ici courses, PMI and MiJi]anj Golf Club, agricul received 1.29 mgd in permit The Commission recognized its statutory lands in central Oahu suitable for In calculating the 12.22 mgd “agricultural allocations. The value. If and until allowance,” Commission, however, granted PMI’s use duty, when considering competing water use - tufe has important. the Commission preliminarily of is avail 0.75 mgd “subject to permit applications, to approve the applica treated effluent or ground water found that “2,500 gallons per acre per day special requirements

13 - including a duty to tion that “best serves the -public interest.” able, the State has a strong interest in (gad) is a reasonable duty of water for diver seek alternative sources lands. where they are In the Commission’s view, an inherent con retaining agriculture on these sified agriculture.” Id, at 6. The Commission reasonably available in the near future.” ffict existed between the permit applications, Where instream flow values may be pro left the gad figure open to future evaluation COLs at 25. The Commission likewise reservation petitions, and petitions to amend tected and offstream agricultural uses and adjustment, noting that it tended to imposed on Mililani Golf Course the duty the WHFS, but “[ajfter the evidence was maintained, both “uses” are accommodated wards “the lower end of the range of esti to use alternative sources when they weighed and reasonable beneficial uses eval in the manner promoted by Haw.Rev.Stat. mates” due to the incipient state of diversi became reasonably available. frI uated, the scope of competition narrowed § 174C—54. fled agriculture operations and “a lack of The Commission also created a “non-per significantly.” COLs at 28. The Commis data on actual uses.” Id. “Ther was evi 4i at 28—29. mitted ground water buffer” of 5.39 mgd, sion, however, did indicate certain general dence for both higher and lower quantities,” discussed the legal grounds for its intended for initial release in the windward priorities between types of uses. For exam- Having the Commission stated, but “the flxibility in the Commission apportioned the streams, but available for offstream uses as a pie, because use of-brackish water or treated tecision, operational requirerne and the 4uty not to Wahole Ditch water as follows. The Com secondary source after the 1.58 mgd pro effluent over the ‘Ewa Plain would not harm waste should provide the appropflate safe granted in part and denied in part posed reserve. Id. at 33—34. Applicants for the underlying caprock aquifer, and trans mission guards in either direction.” COLs at 25. OHA’s petitions to amend the the buffer water would not be porting water across the island “further re WWCA’s and required to to restore a The 12.22 mgd agricultural allonce con petition to amend the protection afforded the stream WIIFS, deeming it “practicable” WIIFS. D & 0 at 11. duces the sisted of 10.0 mgd for former OSo sugar- The in its area of or- total of 6.0 mgd to windward streams, id. at Commission, however, would take a ecosystem by keeping water cane lands currently used -for diversified “‘hard look’ at the best available scientific I74C—49 are pending for a quantity of agriculture 12. Elsewhere in its decision, the Commission Lion (approximately 4,000 acres sup and stream inadequate for both or all, or flow data and decide whether an maintained that its determination of current wa water that is plied at 2,500 gad), and reason are in conflict, the 2.22 mgd for Castle’s amendment to the [WIT is ter availability did not necessarily ‘mean that the which for any other FS] needed” before first, seek to allocate Water agricultural lands (approximately 1,552 acres [City’s] projected growth demands [could] be sat commission shall approving any application and would issue all water; rather, the a manner as to accommodate both supplied at the lesser of 2,500 isfied from Waiahole Ditch in such gad or the permits subject to “conditions providing for will require even greater applications if possible; second, if mutual amount [City’s] projected needs requested). D & 0 at 6—7. Of the stream restoration if the analysis.’ Id. at 23. sharing is not possible, then the commission Commission deter- shall approve that application which best setves 14. The “Q90 base flow” represents the states: minimum observation that “[riunoff dominates stream flow 13. HRS § 174C—54 (1993) the public interest. flow of a stream equaled or exceeded at least ap 90 in Hawaii and is responsible for highly variable Competing applications. If two or more (Emphasis added,) percent of the time. D & 0 at 2. The eec- Commjs stream flows.... In Hawaii, streams exceed plications which otherwise comply with sion’s use of the 090 base flow stems from its average flow just 10% of the time.” COLs at 16. 94 HAWAI’I REPORTS IN RE 118 WATER USE PERMIT’ APPLICATIONS s 94 HawI’j 97 (2000) 119 mines that additional water should be re opment, stating that “[KSBE] may apply for unreasonable in its consequences. Kon Hawai’i 305, 310, 933 P.2d 1339, . [upon receiving] the no v. 1344 turned to the stream.” COLs at 34. additional water County of Hawaj’j, 85 Hawai’i 61, (1997) 77, (citations omitted); HRS § 91— Preliminarily, therefore, the Commission proper land use classification, development 937 P.2d 397, 413 (1997) (citations omitted). 14(g)(1), (2), and (4). released into windward streams, in addition plan approvals, and zoning changes and actual use of water will “A COL that presents mixed ques to the 6.0 rngd added to the WIIFS, a “sup [demonstrating] that HRS § 91—l4(g) (1993) enumerates time frame for tions of fact and law is reviewed plemental flow” of 6.97 mgd or more, consist commence within a reasonable the standards of review applicable to under an the clearly erroneous standard ing of the 5.39 mgd buffer, the 1.58 mgd a proposed project.” COLs at 27. agency appeal and provided: because ‘Upon re the conclusion is dependent proposed reserve, and any water authorized to grant view of the record. the court upon the The Commission also declined may affirm facts and circumstances use permits but not actually the decision of the of the particular for use in water WIC’s request for 2.0 mgd to compensate for agency or remand the case.” Price case with v. Zoning BeL of Appeals used, which the Commission mandated would the “operational losses” of the ditch system instructions for further pro of City and County of Honolulu, 77 remain in windward streams “to avoid unlaw due to factors such as evaporation and leak ceedings; or it may reverse or modify Iawai’i 168, 172, 883 P.2d ful waste.” IcL The Commission explained Commission none the decision and order if the 629, 633 age. D & 0 at 11. The substantial )I994). When mixed will provide rights of the questions of law that “[t]hese supplemental flows theless observed that, until it designated the petitioners may have been nd fact prejudiced are presented, an appellate a field test to monitor and scientifically study Kahana watershed as a surface water man because the administrative ourt findings, must give deference to the agen the streams. As these supplemental flows agement area, the 2.1 mgd of “non-regulat conclusions, decisions, or or cy’s expertise and experience in the par may be permitted for offstream uses and the ed” Kahana surface water drawn by the ditch ders are: Iicular field. Dole Hawaii Division... actual stream flow reduced from present lev would approximately cover such losses. Id. (1) In violation of constitutional or Castle & Cooke, Inc. v. Ramj4 71 Haw. els, scientific studies will be conducted to at 12. The Commission proffered that, after statutory provisions; or 419, 424, 794 P.2d 1115, 1118 (1990). examine the impact of reducing stream designating Kahana as a stuface water man (2) In excess of the “[T]he statutory authori court should not substitute its flows.” Id. agement area and receiving water use permit ty or jurisdiction of the agency; or own judgment for that of the agency.” The Commission announced its plan to applications for the water, it “may consider IcL i (3) Made upon unlawful procedure; or (citing Camarce v. Agsalud, 67 Haw.. establish technical advisory committees, deducting the operational losses from the 212, 216, 685 (4) Affected by other error of law; P.2d 794, 797 (1984)), representing a cross-section of interests, to non-permitted ground water.” Id. or (5) Clearly Poe, 87 Hawai’j at 197, 95,3 P.2d at such as assessing the im erroneous in view of the 573. undertake tasks In all, of the 27 mgd total flow of the Curtis reliable, probative, and substantial evi v. Board of Appeals, 90 Hawaii 384, plementation of the final decision, deter ditch, as measured at Adit 8, the Commission dence on the whole record; or 392—93, 978 P.2d 822, 830—31 (1999). mining the feasibility of using treated assigned 14.08 mgd to permitted leeward ag (6) Arbitrary, or capricious, [1,2] An FOF wastewater over potable aquifers, and rec ricihitural and nonagricultural uses and “sys or charac or a mixed determination terized by abuse of of law and fact is ommending studies, conservation measures, tem losses.” For the near term, the Com discretion or clear clearly erroneous when (1) ly unwarranted exercise the record lacks and monitoring, plans. D & 0 4-5. Par mission released 1297 mgd in windward of discretion. substantial evidence to sup GATRI v. Blane, port the finding ties receiving permits to use Waiahole streams. However, 6.97 mgd of this 12.97 88 Hawai’j 108, 112, 962 or determination, or (2) de P.2d 367, 371 spite substantial Ditch water on their lands would be re mgd remained available for offstream lee (1998) (citing Poe v Hawai’j evidence to support the Labor Relations finding or determination, quired to “prepare, or contract for, a por ward uses as a “proposed agricultural re Board; 87 Hawaj’j 191, the appellate court 194—95, 953 P.2d is left with the tion of the studies and monitoring activities serve” or “non-permitted ground water buff 569, 572—73 (1998)). definite and firm conviction that a mistake has resulting from this order,” contributing er.” The present appeal followed. [FOFs] are reviewable under the been made. See Leslie v. Estate of Tava,res, funds on a pro rata basis according to the clearly erroneous standard to dtermjne 91 Hawaj’j 394, 399, 984 if P.2d 1220, 1225 (1999). amount of water used. Id. at 10. The the agency decision was clearly erro “We have defined II. STANDARD OF REVIEW ‘substantial evidence’ Commission would establish a committee neous in view of reliable, probative, and as credible evidence which is of sufficient “to recommend a reasonable amount for Hwai’j Revised Statutes (HRS) 174C— substantial evidence on the whqle rec quality and probative and set up the review of rules ord. value to enable a person the funding and coordinate 12 (193) provides: “Judicial Alvarez v. Liberty House, 4ic., 85 of reasonable cau tion to support mechanism for the collection, accounting, and orders of the commission under this Hawaj’j 275, 277, 942 P.2d 5, a conclusion.” Id. (quoting 541 State and distribution of the funds.” Id. chapter shah be governed by [HRS] chapter (1997); HRS § 9l—l4(g)(5). u Kotis, 91 Hawai’i 319, 328, 984 P.2d 91 [the Hawai’i Administrative Procedures 78, 87 (1999)). Several of the Commission’s denials of wa [COLs] are freely reviewable to deter Act, or HAPAJ, Trial de novo is not allowed mine if the ter use requests are relevant to the present agency’s decision was In vio on review of commission actions under this III. DISCUSSION 15 appeal. The Commission rejected DOA’s lation of constitutional or statuto4r pro chapter.” Regarding appeals from agency visions, in 0.75 mgd permit application for a planned excess of statutory authority A. PROCEDup DUE decisions generally, this court has stated: or PROCESS agricultural park “without prejudice to [reap jurisdiction of agency, or affected by [3] As its first point on appeal, plication] when DOA can demonstrate that This court’s review is ... qualified by other error of law. WWCA Hardin v. Akibcj, 84 alleges a violation agency’s decision of its constitutional right actual use will commence within a reasonable the principle that the 15. As a,threshold matter, we note that we have time frame.” Id. The Commission denied carries a presumption of validity and jurisdiction that they have jurisdiction to hear to entertain this appeal. See general. and determine the heavy burden of mak ly Peterson each case” (quoting Housing Fin. KSBE’s requested allocation for golf-couñe appellant has v. Hawaii Elec. Light Co., 85 Hawaii & Dev. Corp. v. 322, Castle, 79 Hawaii 64. 76, and landscaping uses in connection with its ing a convincing showing that the deci 326, 944 P.2d 3265, 1269 (1997) (recogniz 898 y.2d 576, 588 ing the “obligation (3995)) Pursuant to FIRS § 174C—12, planned Waiawa by Gentry residential devel sion is invalid because it is unjust and of appellate courts to insure chapter FIRS 91 governs our review of the Commis 120 94 HAWAI’I REPORTS 121 a “cn±1ict of interest” due to his chairperson of the to procedural due process, specifically, its having commission.” HRS draws closer comparisoas to precedent.jnvalj as chairperson of the state § 174C—7Qj) (1993). The legislature right to a fair tribunal. In Sussel v, City & concurrent status has thus dating procedures whereby judges presided and Natural Resources deemed it appropriate for one County of Honolulu Civil Service Commi,g Department of Land person to over nonsummary contempt proceedlings that to W”rVCA in the serve in both capacities. sion, 71 Haw. 101, 107, 784 P.2d 867, 87& (DLNR), an adverse party they played an instrumental role in bringing hearing before the (1989), we recognized: instant contested case [71 We must still decide, however, wheth about17 See, e.p, Murchison, ,s’upra (finding the outset that “There are certain fundamentals of just Commission,16 We note at er any impernhjssible conflicts of interest pre a due process violation where a judge who the Commis procedure which are the same for every the positions of chairperson of vented Wilson from presiding over the in served as “one-man grand jury” also presid type of tribunal and every type of proceed sion and chairperson of the DLNR are not stant proceeding. See Coyne v. State ex rel. ed ovbr the trial); Brown, supra (ruling that ing.” R. Pound, Administrative Law 75 incompatible per se. The common law doc Thomas, 595 P.2d 970, 973 (Wyo.1979) (dis a ju4e indirectly responsible for the institu in a fair (1942). “Concededly, a ‘fair trial trine of incompatible offices prohibits an indi tinguishing incompatibility of offices and con tion 4f a contempt charge for conduct of of due pro tribunal is a basic requirement vidual from serving in dual capacity “[i]f one flict of interest). In arguing the negative, whichf he had no personal knowledge could 349 U.S. 133,136, cess.’ In re Murchison, office is subordinate, to the other or the the Commission cites its own rule of disquali not feside over trial); see also White v. 99 L.Ed. 942 (1955). This 75 S.Ct. 623, functions of the offices are inherently incon fication, Hawaj’i Administrative Rules (HAR) Board of Educ,, 54 Raw. 10, 16, 501 P.2d 358, to administrative agencies which applies sistent and repugnant to each other.” State § 13—167—61 (1988), which states in elevant 363 (172) (holding that, although the super i’udicateas well as to courts. Gibson v. part; “No u Villeza, 85 Hawai’i 258, 270, 942 P.2d 522, commission member shall sit in inendent of education was the secretary of 411 U.S. 564, 579, 93 S.Ct. 1689, any Jerryhill, see also Woods v. Treo.dway, 31 proceeding in which the member!has any the decisionmaking board, he should have (1973).” Withrow v. Lar 584 (1997); 36 L.Ed.2d 488 legislature may pecuniary or business interest in he pro recused himself from a hearing regarding 1456, 43 -Haw. 792, 794 (1931). The kin, 421 U.S. 35, 46—47, 95 S.Ct. ceeding or who is related within disciplinary action that nevertheless override this rule as it deems the first he imposed). Here, L.Ed.2d 712 (1975). degree by blood or Wilson or necessary. Se Sehulman st marriage to any party to similarly presided ‘over a proceeding for its alle appropriate the WVVCA raises several grounds 626, 545 proceeding.” in which he, by direct association18 assumed ad O’Reilly—Land,o, 226 N.J.Super. gation of a denial of due process. We It is an active partisan role. He sat in judgment,. A,2d 241, 243 (1988); American Canyon Fire Undisputed that Wilson had no per dress each in turn. sonal on the one hand, of legal claims Dist v. County of Napa, 141 Cal. financial or familial interest in this and factual Protection representations he Cal.Rptr. 189, 192 (1983). proceeding, WWCA nonetheless analogizes advanced, on the other, 1. Dual Status of the Commission Chair App.3d 100, 190 this case to the line of precedent relating to person In this case, the legislature has expressly Aside from any actual institutional bias on chairperson of the board disqualification for “institutional” or “struc Wilson’s accuses the chairperson of decreed that “[t]he part in this case, [4—61 WWCA be the tural” bias, See Tumey v, Ohia, 273 U,S. Wilson (Wilson), of of ‘land and natural resources shall “no one the Commission, Michael 510, 47 S.Ct. 437, 71 L,Ed. 749 (1927) (re would argue seriously that the at stake. See Puna Geothermal, 77 versing a conviction disqualificatj , of fdecision-makersj on sion’s decision. See also FIRS § 174C—60 (1993) privileges” rendered by a mayor Hawai’i at 68, 881 P.2d at 1214. grounds of actual bias (Contested cases’) (‘Chapter 91 shall apply ex concurrently serving as village chief execu .,. prevents unfair FIRS 1 74C—60 states in relevant part: “Any cept where it conflicts with this chapter:”). FIRS § tive and judge, where ness in all cases.” State v. Brown, 70 law .to the contraiy notwithstanding, in the fines collected in 91—14(a) (1993) allows judicial review of a other Raw. 459, 467, § cluding chapter 91, any contested case hearing the mayor’s court provided a substantial part 776p,2d 1182, 1187 (1989), final decision and order in a contested case,” this section shall be appealed upon the of his salary and So “our system of [justiceJ has contested case is an agency hearing that 1) is under the village’s finances); Al always “A directly to the supreme court, for final by law and 2) determines the rights, record p/ta Epsilon Phi Tau Chapter Hous, Ass’n v, endeavored to prevent even the probability required See also HAR § 13—167—65(b), 13— duties, or privileges of specific parties.” Pele decision.” City of Berkeley, 114 of unfairness” In re Murchi.son, supra. l7—26 (1988). Although the referent of “this F3d 840, 844..47 (9th )efense Fund v. Pun,s Geothermal Venture, 77 section” is unclear, see Ko’olau Agric. Co. v. Cir.1997) (discussing the standards estab The Hawai’i 64, 67, 881 P,2d 1210, 1213 (1994); see Supreme Court teaches us too that Commission on Water Resource Management, 83 lished by Tumey and its 1-iRS 91—1(5) (1993). progeny). 1Unlike justice can “perform its high in § H4vai’i 484, 492, 927 P.2d 1367, 1375 (1996) function those cases, the procedural infirmity *re lies the best way [only In this case, the parties appeal the Commis (noting the “inartful drafting” of the Water if it satisfies] ‘the ap sound less in the potential for incidental sion’s decision regarding permit applications for Codes review provisions), we discern no insltution pearance of justice,’ Offiett v, United certain mat al benefit to “existing” and “new” uses and petitions to basis ‘for demarcating decisions on either the Commission orbLNR States 348 U.S. 11, 14, 75 court under S.Ct. 11, 99 amend interim instream flow standards. As to ters for initial appeal to the circuit than in the DLNR’s institutional as in cases such as interest, L.Ed. 11 [(1954)1,” In re Murchison, su existing use applications, FIRS § l74C—50(b) FIRS § 91—14(a), particularly a party consolidates directly involved in this ca4 in a pro. For in a popular (1993) and Hawai’i Administrative Rules (1-TAR) this one, where the Commission government, “‘jus hearing, According. favorable decision by the Commissio, 13—171—14(b) (1988) require a hearing where, various matters in a single In tice must not only be done but manifestly § to provide for direct our view, as here, the quantity of water applied for exceeds ly, we read HRS § 1 74C—60 therefore, the matter before us be seen to be done,,..’ court from the instant Rex v. Justices of 25,000 gallons per month and an objection to the appeal to the supreme case in its entirety. But cr application is filed by a person having standing combined contested 18, We do not join flOA/DLNR in’speculating at 331, 944 P.2d at 1274 as to object. Furthermore, while the statutes and Peterson, 85 Hawai’i to how much to HRS § 269—16(0 (1993), do not require a hearing with respect to (holding, pursuant, rules order of Public Utilities petitions to amend interim inssream flow stan that direct appeal from court only when order HRS § l74C—3 (definition of interim Commission lies to this dards, see of utility rates” or “rate- standard); HAR § 13—169—40(e) (1988), or pertains to “regulation procedures”). “new” use applications, see HRS § 174C—53 making (1993); HAR § 13—171—12, —13, —16 to —19 joined in the leeward parties’ joint (1988), constitutional due process mandates a 16, DLNR for a water use permit and in many hearing in both instances because ofthe individ application their motions during the hearing. ual instream and offstream “rights, duties, and of 122 94 HAWAIi REPORTS IN RE WATER USE PERMIT APPLICATIONS Cite 123 chairperson of tle Commission and considerations, must be Bodmin, [19471 1 KB. 321, 325.” Joint the joint timely or the objec status as chairperson of the Commission and. presiding over the hearing. tion is waived.”). Anti-Fascist Refugee Comm. •v. McGrath, DLNR from the DLNR, therefore, did not constitute a 123, 172 n. 19, 71 S.Ct. 624, 95 Despite its awareness of Wilson’s reversible due process 341 U.S. [8,91 The appropriate remedy for any dual sta violation under the (Frankfurter, J., concurring) tus, WWCA, apparently as a facts of this LEd. 817 bias, conflict of interest, or appearance of matter of delib case. erate and strategic choice, never (1951) impropriety is the recusal or disqualification sought Wil son’s disqualification. WWCA cannot now 2. improper Susse4 71 Haw. at 107—08, 784 P.2d at 870 of the tainted adjudicator. See Ross 89 Ha Influence by the Governor raise the matter as grounds for overturning See also State v. Ross, wai’i at 376—77, 974 P.2d at 16—17; 2 Charles and Attorney General (brackets in original). the Commission’s decision. 89 Hawai’i 371, 379, 974 P.2d 11, 19 (1998) H. Koch, Jr., Administrative Law & Practice WWCA also argues that the state goverhor (1997). Nonetheless, al [12] Additionally, even if ‘ (“[A]side from the technical absence of bias § 6.10[4], at 306 WWCA had and attorney general exerted improper influ moved to or conflict of interest, certain situations may though WWCA objected early to Wilson’s disqualify Wilson, the long-recog ence n the Commission during the period of nized “rule of give rise to such uncertainty concerning the dual status, at no point during the proceed necessity” not only allows, but delibejation between the proposed and final It requires a ability of the [adjudicator] to rule impartially ings did it seek Wilson’s disqualification. decisionmaker to “act in a pro decisins. WWCA specifically refers to the ceeding, when he that disqualification becomes necessary.”). instead filed a motion seeking to dismiss [or she] would otherwise be gover4or’s public criticism of the proposed DLNR from the instant proceeding. WWCA disqualified, if jurisdiction is exclusive and no decisi4n, the attorney We have held that “the test for disqualifi general’s personal ap not cited, nor have we discovered, any provision exists for substitution.” Yamo4o. impropriety’ has pearance before the Commission in order to cation due to the ‘appearance of WWCA’s v. Natural Disaster Claims precedent for such a measure.’9 Com’/n, 54 argue ‘DLNRDOA’5 exceptions to the pro is an objective one, based not on the beliefs less Haw. 621, 628, 513 P.2d 1001, 1006. course of action suggests that it objects (1973). poked decision, and the dismissal of the depu of the petitioner or [adjudicator], but on the See also Schwab v. Ariyoshj, to the chairperson’s dual status than to the 57 Htw. 348, ty’attorney general assigned to the assessment of a reasonable impartial onlook 350, 555 Commis nature of DLNR’s participation in this case.2° P.2d 1329, 1331 (1976) (“[D]iqualifi sion. er apprised of all the facts.” Ross, 89 Ha cation will not be permitted to destroy the 974 P.2d at 20. From this asserting grounds for wai’i at 380, [10, 11] A party only tribunal with power in the premises.” [13] Where an agency performs its judi we fall to see how Wil timely present the ob objective viewpoint, disqualification must (quoting Brinkley v. Hassig, 83 F.2d 351, 357 cial function, external political pressure can dual status as adjudicator and litigant before the commencement of son’s jection, either (10th Cir.1936)). violate the parties’ right to procedural due could not have reasonably cast doubt on his proceeding or as soon as the disqualify the HA.R § 13—167-6 (1988) provides: “Four process, thereby invalidating the agency’s de ability to rule with absolute impartiality. In ing facts become known. See, e.g., Honolulu members of the commission shall constitute a cision. See generally Sokaogon Chippewa deed, Roofing Co. v. Feli 49 Haw. 578, 615—16, quorum to transact business and the concur Comm. Asstn v. Babbitt, 929 F.Supp. 1165, P.2d 298, 322 (1967); Yorita v. Okumoto, [h]aving been a part of [the advocacy) pro 426 rence of a simple majority of the members of 1173—SO (D.Wis.1996) (consolidating the case Haw.App. 148, 152, 643 P.2d 820, 824 cess a[n adjudicator] cannot be, in the very 3 the commission shall be necessary to approve law); Koch, supra, at § 6.13. Such improper CapitoL Transp. Inc. v. United nature of things, wholly disinterested in (1982); any action of the commission.” No proce influence may issue from the legislature, see, States, 612 F.2d 1312, 1325 (1st Cir.1979) [the result]. V,ThilO he [or she] would not dure exists for the appointment of substitute e.g., A7’X inc. v. United States Dept. qf of bias should be raised as likely have all the zeal of a [party], it can (“Contentions commissioners.21 As stated previously, two Transp., 41 F.3d 1522, 1527 (D.C.Cir.1994); soon as practicable after a party has reason certainly not be said that he [or she) would commissioners withdrew from the case at the Pillsbury Co. v. Federal Trade Comm’n, 354 cause to believe that grounds for dis have none of that zeal. able outset, reducing the six-member Commission F.2d 952, 963—64 (5th, Cir.1966), as well as exist.”). The unjustified failure qualification charged with “exclusive jurisdiction and final from sources within the executive branch, Murchison, 349 U.S. at 137, 75 S.Ct. 623. raise the issue of disqualification to properly authority in all matters relating to the imple see, e.g., Portland Audubon Socy v. Endan agency forecloses any subsequent “[Nb [person]. can be a judge in his [or befure the mentation and administration of thç state gered Species Comm., 984 F.2d 1534, 1543—48 to the decisionmakers’ qualifica her) own case....” Brown, 70 Haw. at 466, challenges water code,” HRS § 174C—7(a), to the four- (9th Cir.1993); ,Jarrott v. Scrjvene’r 225 appeal. See Power v. Federal Labor 776 P.2d at 1187 (citing Murchison, 349U.S. tiots on member quorum required to conduct busi F.Supp. 827 (D.D.C.1964). As the United Auth., 146 F.3d 995, 1002 (D.C.Cir. at 136, 75 S.Ct. 623). Wilson served in that Retçstions ness. Consequently, where Wilson’s csqual States Court of Appeals for the D.C. Circuit . for a claimant to exact capacity with respect to DLNR in the 1998) (“[lit will not do ification would have prevented the Cmmis explained in ATX: proceeding. We. thus hold that, suppress his misgivings regarding bias while sion from acting on this instant case, the “l4ule of [External political] interference in the DLNR was a party in the contested waiting anxiously to see whether the decision necessity” demanded that where Wilson preside administrative process is of heightened the Commission, the basic consti goes in his favor.” (citation and brackets over the instant proceeding. case before Wilson dual concern in a quasi-judicial proceeding, tutional mandate that a tribunal be impartial omitted)); In re Duffij, 78 Wash.App. 579, 21. HAR § I3—167—56(c) (1988) 897 P.2d 1279, 1281 (1995) (“A litigant’s as provide4 “The ters that normally and properly arise in and that “justice must satisfy the appearance chairperson of the commission the shall be the pre course of a hearing authorized by law that justice,” id. at 467, 776 P.2d at 1188 (citing sertior of th.e right to disqualify a judge, siding officer. However, the are of chairperson may necessary for the orderly and just conduct whether based upon statute or due process designate another commission of a Offutt, 348 U.S. at 14, 75 S.Ct. 11),reclüded member, an ap hearing.” HAR § 13—167—56 does not allow pointed representative, or a the master to be presid grant of any ultimate decisionmaking authority on appeal, WWCA does not seek the 20. As WWCA points out, HAR § 13—169—32 ing officer unless prohibited by law.” 19. Even As cx. to an alternate presiding officer. To the con of rehearing or reconsideration and —33 (1988) require DLNR to assist the Com plained in HAR § 13—167—56(b), usual remedy the “presiding trary, the Code mandates that the six-member the chairperson, see, e.g., White, 54 Haw, mission in investigating streams and developing officer” performs mere administrative without functions, Commission “shall have exclusive jurisdiction at 16, 501 P.2d at 363 (remanding for rehearing), instream flow standards. such as giving notice of the hearing, administer and final authority,” HRS § 174C—7(a), and that but simply asks this court to set aside the Com ing oaths, issuing subpoenas, ruling on objec. “[tJhe final decision on any matter shall be made mission’s final decision, see infra note 24. tions or motions, and “dispos[ing] of other tnat by the commission,” HRS § t74C—1o (1993). IN 94 HAWAI’I REPORTS RE WATER USE ‘PERMIT APPLICATIONS 125 124 Ctt as 94 Hawat’j 97 (2000) legitimate demonstrate the requisite “nexu9 which is guided by two principles.. First, do not take lightly the governor’s between may represent, a state employee in civil to the pressure and the actual “the appearance of bias or pressure may supervisory interest and role with respect decision maker.” matters while investigating and prose time, we can ATX 41 F.3d at 1527. As a result, be no less objectionable than the reality.” the Commission. At the same we have cuting him in criminal matters, so long no choice but to [District of Columbia Fed’n of Civic Ass’ns not emphasize strongly enough that all adju presume that the Cornrnjs as the staff of the [department of the sion upheld its duty to decide v. ]Volpe, 459 F.2d [1231,] 1246—47 dicative proceedings conducted by the Com the case with attorney general] can be assigned in out taking the cert. denied, 405 U.S. 1030, 92 mission must conform to the same exacting governor’s remarh into con such a matmer as to afford independent [(D.C.Cir.), sideration. S.Ct. 1290, 31 L.Ed.2d 489 (1972) } (empha standards of fairness, impartiality, and inde legal counsel and representation in the sis added); see also Koniag Inc. u An pendence of judgment applicable in any court civl matter, and so long as such repre [161 Regarding the complaint against the drus, 580 F.2d 601, 6i0 (D.C.Cir.), cerL of law. See Sussel, 71 Haw. at 107, 784 P.2d se4tation does not result in prejudice in attorney general’s personal participation in denied, 439 U.S. 1052, 99 S.Ct. 733, 58 at 870. th4 criminal matter to the person repre the hearing, we first note that, in contrast to L.Ed.2d 712 (1978) (Koniag) (congressional seijted. case, however, the gover the cases cited above, the attorney letter “compromised the appearance of the In the instant general remarks fall short of the level of expressed her objections not through [Stat v. Klattenhzoff 71 Haw. 598,] 605, Secretary’s impartiality”). Second, judicial nor’s public any ex that courts have deemed viola parte communications but during the 8Q1 P.2d [548,] 552 [(1990)]. In other evaluation of the pressure must focus on interference formal In the leading case on proceedings on the record. More word, “separate units of a governmental he nexus between the pressure and the tive of due process. significant Pillsbury, the adjudica ly, all the cases of improper aency, such as the office of actual decision maker. As we have previ improper influence, influenc& cited attorney gen to “searching by WWCA and unearthed by our eal, may undertake concurrent ously observed, “the proper focus is not on tor was personally subjected own re représen the examination as to how and why he reached search involved interference,by an offide hav tation that would otherwise offend [the the content of . . - communications in before him ing superior status or some provisions of the Hawaj’i abstract, but rather upon the relation be his decision in a case still pending control over the Rules of Profes the ‘wrong’ salary or tenure of the sional Conduct tween the communications and the adjudi and ... critici[sm] for reaching decisjonmaker. See (HRPC) governing conflicts cases e.g., ATX supra of interest, including cater’s decisionmaking process.” [Pe decision.” 354 F.2d at 964. Other (communications from mem HRPC 1.7 (1995)’], of direct bers .of Congress); Pillsburç SOlOngaoprejudiceguff ter ]Kiewit [ Sons’ Co. v. United States involved, at minimum, some sort supra (same); Portland Audubon, any of the Army Corps of Engrs], 714 F.2d [163,] contact with the decisionmaker regarding the supra (alleged interfer clients.” Comment [41 to 580 ence from president HRPC 1.10 169—70 [(D.C.Cir.1983)]. merits of the dispute. See e.g., Koniag, and his staff); Jarrot(, (1995) (emphasis added). F.d at 610; Jarrott, 225 F.Supp. at 83143; supra (high level state department officials 41 F.3d at 1527 (footnote omitted). See also Chun v. Board of Trustees of Employees’ see also Gulf Oil Carp. v. Federal Power contacted District of Columbia zoning board); Pillsbury 354 F.2d at 964 (holding that ex Retirement System of State of Hawai 87 Commn, 563 F.2d 588, 611 (3d Cir.1977) Barkey v. Nick, 11 Mich.App. 381, 161 ternal pressure “focus[ing] directly and sub Hawai’i 152, 173—74, 952 P.2d 1215, 1236—37 (holding that intervention for the purpose of N.W.2d 445, 447 (1968) (city commissioner stantially upon the mental decisional process (1998) (some alterations in original); see also case expediting the disposition, rather than affect appeared before zoning board); Place v: es” of an administrator in a pending HAR § 13—167—29(h) (198) (requiring state ing its merits, did not influence the agency); Board of Adjustment, 42 N.J. 324, 200 A.2d “sacriflce[d] the appearance of impartiality— agencies appearing before the Commission as jus ATX 41 F.3d at 1528 (recognizing that legis 601, 605 (1964) (mayor appeared before zon the sine qua non of American judicial an applicant or in an adjudicative setting to lative hearings not focusing directly on the ing board). Unlike the governor, the attor tice”). use coOnsel independent of the ‘Commis decisionmakers and the merits of the case ney general wields no such authority over the [14] WWCA first objects to the gover sion’s). did not invalidate the agency decision). Commission. The attorney general’s person ‘or’s public remarks concerning his opinions al intervention in the hearing, although di In Klattenhoff we allowed separate depu ; the merits of this case. After the issu Here, the governor made several general rect, does not amount to the ‘type and degree ties or divisions of the attorney general’s ance of the proposed decision, the governor statements about his own views of the case. of political control that would normall vio office to represent conflicting interests. See publicly announced his support for leeward Although they related directly to the. dispute late due process. icL at ‘605, 801 P.2d at 552. In this case, interests, criticizing the Commission’s pre before the Commission, the comments arose however, the attorney general herself advo liminary disposition.22 in public forums apart from the instant pro [17] WWCA argues that, because the of cated on behalf of two state agencies, DLNR ceeding and reached the Commission indi fice of the attorney [15] The governor appoints all of the general simultaneus1y and DOlt, while deputy attorneys general rectly, if only through the windward parties’ represented the commissioners, two of whom, the chairperson Commission, the resIting represented the Commission and another objections. WWCA provides no evidence of “conflict of interest” of DLNR and the director of the Depart compromised WWCA’s agency, DHHL. HRS § 28—8(a) (Supp.1999) See the type of direct and focused interference right to a fair hearing. ment of Health, serve in his cabinet. The attorney general authorizes the attorney general to “appoint, 6. seen in the cases cited above.n In the ab has a statutory duty, HRS § 174C—7(b); Haw. Const. art. V., § among others, to pro and at [her] pleasure remove, a first deputy The governor thus occupies an obvious posi sence of evidence of direct communication vide legal counsel to state agencies such as and such other deputies .... [who] shall act We with the decisionmakers, WWCA fails to the Commission See tion of influence over the Commission. HRS § 26—7 (1993) under [her] direction and shall perform such (attorney general “shall administer and ren duties governor’s comments do not appear in Commission disclose any ex parte communica as [she] may require.” Given the 22. The his der state legal the record. None of the other parties, however, tions between the• governor or others on services”); HRS § 28—4 attorney general’s plenary authority over her that they can be dispute WWCA’s rendition of their general con behalf and the Commission “so (1993) (attorney general “shall give advice department, we agree minimize their impact with WWCA that the tent. dealt with to eliminate or and counsel”). Regarding potential conflicts case.” The Commission apparently did attorney general’s personal representation of on this in this duty, we have held 23. In its written objection to the Commission, not respond to this request. that the office of DLNRJDOA necessarily prevented her de Friends demanded that the the attorney general Hawaii’s Thousand partment from affording independent legal II 94 IIAWAPI REPORTS 126 IN RE WATER USE PERMIT APPLICATIONS 127 CItE s 94 HwaI’i 97 (2000) counsel to other state parties, particularly of counsel after the Commission’s attorney Finally, WWCA attempts to. combine the conduct of the public officials in this case did the Commission. was dismissed.” Momentarily setting other governor’s comments with the attorney gen nothing to improve public confidence in gov questions of its propriety aside, therefore, we eral’s conduct as [181 The question remains, however, components of a larger ernment and the administration of justice in hold that the dismissal effectively cured the concerted whether this conflict of interest deprived effort by the administration to un this state. conflict generated by the attorney general’s dermine the WWCA of its right to a fair hearing. In Commission. WWCA offers no representation of the Commission. concrete proof Notwithstanding our feeling of unease Chun, we recognized that the attorney gen of this alleged conspiracy. re Without garding the circumstances eral’s obligations as coubsel to state agencies more, we have no alternative but to under which the WWCA also protests the dismissal conclude Commission rendered its final may conflict with her common law duties as [191 that the whole does not exceed the decision, our impropriety in itself. We indeed har sum the assessment of the totality of representative of the “public interest,” see as an of parts. See In re Bouslog, 41 the circum bor doubts about the manner in which the Haw. 270, 277 (1956) stances prevents us from concluding that the HRS § 26-7 (providing that the attorney (maintaining that alle attorney general withdrew as the Commis gations of impropriety “must be based upon aforelj3entioned conduct constitutes a viola general “shall ... have such authority as HRPC 1.16(d) for ex facts tion WWCA’s due process heretofore provided by common law”). See sion’s counsel. (1994), buttressed by reasons, and not a suppo dJ rights. Fur attorneys, upon termination sitious ther4re, in reviewing the Chun, 87 Hawai’i at 170, 952 P.2d at 1233. ample, requires cumulative effect, which is at best a merits of this • of representation, to “take steps to the extent mere conclusion arguendo” case, 4’e have identified substantial Indeed, the legislature implicitly foresaw (citation and in problems reasonably practicable to protect a client’s ternal quotation marks omitted)). with te Commission’s decision that the likelihood of conflicts ‘eventuating” in require interests.” The record affords little evidence further attention. Thus, for the reasons ar connection with the Attorney General’s In sum, based on the foregoing 4cts and consideration of the Commission’s in ticülathd below, we vacate and multiple roles, duties, and functions when of any the relevant precedent, we cannot say that a remand the terests on the part of the attorney general. dcision for further proceedings. In so it enacted HRS § 28—8.3 in 1995, confer violation of constitutional dimensitns oc do curred in ing, we are confident that the intervening ring upon the attorney general the prerog WWCA suggests that the dismissal both this case. This holding does not adequately convey, years, along with the changes in the Commis ative, “for reasons deemed . . - good and however, our seribus mis impaired the competence of the Commission sion’s ‘ givings regarding the personnel, have sufficiently removed sufficient,” to decline “to employ or retain and induced the Commission to change its events following the 2 Commission’s proposed any taint of impropriety created by the con an attorney” to represent “any depart- decision. As to the first contention, the Code decision. The ques tion of timing is key to our flicts and political pressures present in the ment, board, commission, agency, bureau, vests final decisionmaking authority and re concerns. The events in controversy prior proceeding. See Pillsbury, 354 F.2d at or officer of the State” and, in that event, sponsibility in the commissioners, see HRS occurred after months of painstaking hearings and deliberations— 965; Koniag 580 F.2d at 611.24 authorizing the state instrumentality—with 4 174C—7(a), and mandates that “[elach during the final stage the concurrence of the governor—to retain member shall have substantial experience in between the Commis sion’s proposed and final legal counsel on its own initiative for the the area of water resource management,” decisions. In the B. THE PUBLIC TRUST DOCTRINE end, the Commission did in fact substantially purpose of securing such representation. HRS § 174C—7(b). As to th second, alter its decision, deleting Substantial controversy arises from the See HRS § 28—8.3(a)(16) and (b). WWCA fails to show how the dismissal could language favorable to the windward parties Commission’s discussion of the “public trust Id at 174, 952 P.2d at 1237 (internal cross- have served as an intelligible and effective and increasing the amount of water doctrine” in its decision. Before addressing reference omitted). We thus held that, means of swaying the Commission on the allocated to leeward permit- tees. These eleventh the parties’ arguments, we survey the histor I, where the attorney general “perceived her merits, even assuming that it was so intend hour developments, while falling short of a constitutional ical development of the doctrine in this juris self to be in a conflict of interest with the ed. All told, we are not convinced that the viola tion, strongly suggest that diction. [agency she represented), [she] was ethically dismissal impaired the Commission’s abifity improper consid erations tipped the in obligated to recommend the retention of oth to decide this case competently and impar scales this difficult and hotly disputed case. 1. er counsel to represent the [agency) and to tially to such an extent that a violation of History and Development other action as, in her opinion, the take such WWCA’s due process rights occurred. [21) We acknowledge the prerogtive of The United States Supreme Court ad circumstances required - - - “ IcL at 176, 952 public officials to advocate according $o their vanced the seminal modern expression of the views P.2d at 1239. [20) WWCA argues that the substantial of the “public interest” and t voice public trust doctrine in Illinois Central Rail their views Here, in personally advocating DO.AJ changes in the final decision, all to WWCA’s on public policy in public ornms. road Co. v. Illinois, 146 US. 387, 13 S.Ct. Yet DLNR’s interests, the attorney general evi detriment, establish that external pressure in public officials must also be mii*iful of 110, 36 L.Ed. 1018 (1892).25 The case arose the dently decided that her vision of the “public fact influenced the Commission. We agree broader public interest in the fairness from a disputed conveyance of land sub and interest” diverged from the Commission’s. that a sudden reversal in direction or a weak integrity of the adjudicatory ocess. merged under the navigable waters of Lake Along At about the same time as her appearance at ly supported decision may raise an inference these lines, it is safe to say t at the Michigan by the state legislature to private the hearing, however, the attorney general of improper influence. See ATX 41 F.3d at 24. In raising its various due process objections, 836 representation of the Com 1529. Given the tenuous nexus between the (remanding for rehearing by a specially con “terminated” her WWCA specifically seeks the remedy of reinstate stituted board). mission by summarily dismissing the Com conduct of the governor and attorney general ment of the Commission’s proposed decision. In most cases, however, a remand for mission’s attorney. While the reason for the and the Commission’s deliberations, however, reconsidera. 25. The doctrine tion or further proceedings will suffice to purge traces its origins to the English dismissal is disputed, its practical conse we believe that the changes, though con the taint of improper influence. But see Koniag common law and ancient Roman law, See Lyn da L. quence was as the Commission described in cededly oddly timed, did not amount to an v. Kieppe, 405 F.Supp. 1360, 1372—73 (D.D.C. Butler, The Commons Concept: A Histori 1975) cal Concept with Modern the cover, letter of the final decision: “The appearance of impropriety warranting rever (reinstating the last untainted authoritative Relevance, 23 Wm. & ruling because the effect of the external pressure Mary LRev. 835, 846—67 (1982). decision was rendered without the assistance sal. had not yet dissipated); Jarroti, 225 F.Supp. at 94 HAWAI’l REPORTS IN RE WATER USE PERMIT APPLICATIONS 129 128 Cite as 94 Hawaii 97 (2000) and the with the rather, interests. The Court characterized the grant was “necessarily revocable, courage and even to enforce the usufruct of do property as it pleases; the property state’s interest in such lands as exercise of the trust by which lands for the common good.” See hi at 184— we comprehend the nature of the State’s can be resumed at any 86, 94 S.Ct. 3164 504 P.2d at 1337—39 (quot as a retention of such authority title different in character from that which was held by the State ownership 13 S.Ct. 110. ing Principles Adopted By The Board of to assure the continued existence and ben the State holds in lands intended for time,” id. at 455, the endorsed the public trust doc Commissioners To Quiet Land Titles In eficial application of the resource for the sale. . . It is a title held in trust for This court Their Adjudication Of Claims Presented To people of the State that they may enjoy the trine in King v. Oahu Railway & Land Co., common good. Them, 2 Statute Laws of His Majesty Kame navigation of the waters, carry on com 11 Haw. 717 (1899). Quoting extensively Id. at;674, 658 P.2d at 310 (emphases added). hameha III(SLH) 81, 85 (1847), reprinted in merce over them, and have liberty of fish from Illinois Centra4 we agreed that “[t]he 2 Revised Laws of Hawaii (RLH) 2124, 2128 In t3e footnote accompanying this passage, ing therein freed from the obstruction or people of Hawaii hold the absolute rights to (1925) [hereinafter Land Commission Princi we aded: interference of private parties. all its navigable waters and the soils under common use. The lands pies]). “The right to water,” we explained, has the power to Id. at 452, 13 S.Ct. 110 (emphasis added). them for their own Thef State unquestionably waters in and around the is one of the most important usufruét of much of this through its police “The control of the state for purposes of the under the navigable accmplish Hawaiian Government are lands, and it appears clear to us that by Co. v. trust,” the Court continued, territory of the powers. Hudson County Water for the public uses of naviga the foregoing limitation the right to water 209 U.S. 349, 28 S.Ct. 529, 52 can never be lost, except as to such parcels held in trust Mcfi’arter, at 725 (citation omitted). Later was specifically and definitely reserved for L.Ed. 828 (1908). We believe however as are used in promoting the interests of tion.” Id. confirmed our embrace of the pub the people of Hawaii for their common that the king’s reservation of his sovereign the public therein, or can be disposed of decisions See County of Hawaii v. good in all of the land grants. without any substantial impairment of the lic trust doctrine. prerogatives respecting water constituted 176,. 183—84, 517 P.2d 57, Thus by the Mahele and subsequent public interest in the lands and waters Sotomura, 55 Haw. much more than restatement of police (“Land below the high water mark Land Commission Award and issuance of it remaining The State can no more 63 (1973) powers, rather we find that retained on resource owned by the state Royal Patent right to water was not iii abdicate its trust over property in which is a natural beha(f of the people an interest in the in some sense in trust for, the tended to be, could not be, and was not the whole people are interested, like navi subject to, but waters of the kingdom which the State has. certain public rights.” (citation transferred to the awardee, and the owner gable waters and soils under them, so as to enjoyment of an obligation to enforce and which neces marks omitted)), cert. ship of water in natural watercourses and leave them entirely under the use and and internal quotation sarily limited the creation of certain pri denied, 419 U.S. 872, 95 S.Ct. 132, 42 rivers remained in the people of Hawaii vate interests in waters. See, Sax, The control of private parties, ... than it can In re Sanborn, 57 Haw. for their common good. abdicate its police powers in the adminis L.Ed.2d 111 (1974); public Trust Doctrine in Natural Re P.2d 771, 776 (1977) (observ Id. at 186—87, 504 P.2d at 133849 tration of government and the preservation 585, 593—94, 562 (footnote source Law: Effective Judicial Interven purported land court registra omitted) (emphases added). In Robinson v. of the peace. In the administration of ing that any tion, 68 Mich. L.Rev. 471 (1970); Maloney, below the high water mark was Ariyoshi, 65 Haw. 641, 658 P.2d 287 government the use of such powers may tion of lands (1982), Ausness & Morris, A Model Water Code, the public trust doctrine); we on our McBryde decision, for a limited period be delegated to a ineffective under elaborated [Jat 81 (1972). State v. Zimring, 58 Haw. 106, 121, 566 P.2d comparing the retained sovereign “preroga municipality or other body, but there al Id. at 674 n. 31, 658 P.2d at 310 n. 31 725, 735 (1977) (holding that lava extensions tives, powers and duties” concerning water to ways iemains with the State the right to (emphasis added). The trust over the water “vest when created in the people of Hawaii, a “public trust”: revoke those powers and exercise them in resources of this state, we observed, was con held in public trust by the government for [W]e believe that by [the sOvereign reser a more direct manner, and one more “akin to the title held by all states in naviga trusts the benefit, use and enjoyment of all the vation], a public trust was imposed upon formable to its wishes. So with ble waterways which was recognized in [illi proper ieople.”). all the waters of the kingdom. Thht is, we connected with public property, or nois Central 1.” Robinson, 65 Haw. at 674, under Sugar Co. v. Robinson, 54 find the public interest in the watels of the ty of a special character like lands In McBryde 658 P.2d at 310. Insofar as the two trusts placed aff’d on reh’g, 55 kingdom was understood to necesitate a navigable waters, they cannot be lIaw. 174, 504 P.2d 1330, differ in origin 28 and concern, however, we control 26 (1973), appeal dis retention of authority and the is4sosition entirely beyond the direction and Hàw. 260, 517 P.2d recognized that “the extent of the state’s 417 U.S. 962, 94 of a concomitant duty to main(zin the of the State. missed and cert. denied, trust obligation of course would not be identi L.Ed.2d 1135 (1974), we con purity and flow of our waters for future id. at 453—54, 13 ..Ct. 110 (emphases add S.Ct. 3164, 41 cal to that which applies to navigable water interest in water re generations and to assure that th ,waters ed).26 Because the wholesale surrender of templated the public ways.” Id at 675, 658 P.2d at 310. and prac of our land are put to reo.sona le and state authority over the lands in question was sources. Consulting the prior laws that, in beneficial uses. This is not ownè ship in In 1978, this state added several provisions “not consistent with the exercise of that trust tices of this jurisdiction, we observed the the corporeal sense where the State may to its constitution specifically relating to wa which requires the government of the State granting land ownership interests in Kingdom expressly to preserve such waters for the uses of the Mahele,27 the Hawaiian 28. Regarding the navigable waters trust, the “[t]o en- • public,” id. at 453, 13 S.Ct. 110 the disputed reserved its sovereign prerogatives United States Supreme Court has explained: The new States admitted into the Union At cdmmon law, the title and dominion in since the adoption of the Constitution have the Kuleana Act 26. Courts and commentators have identified up 27. The MShele and the subsequent lands flowed by the tide water were in the same rights as the original States in the tide of private property in the to three separate interests in trust resources: the instituted the concept King for the benefit of the nation.... Upon Waters, and in the lands under them, within Kingdom. For an overview of its op jas privaturn, or private property right, the jus Hawaiian the American Revolution, these rights, charged their respective jurisdictions. 2 eration, see Id. at 184—85, 504 P.2d at 1337—38; regiurn, otherwise known as the police power, with a like trust. were vested in the original Phillips Petroleum Co. v. Mississippi, 484 U.S. Jon 3. Chinen, The Great Mahele (1958); LilikalS the jus publicurn, the public trust. See, e.g., States within their respective borders, subject 469, 473—74, 108 S.Ct. 791, 98 L.Ed.2d 877 and Kame’eleihiwa, Native Lands and Foreign De Butler, supra, at 861—62. to the rights surrendered by the Constitution of (1988) (quoting Shively v. Bow/by, 152 U.S. 1, 57, Id. at 456—58; sires (1992). the United States. 14 S.Ct. 548, 38 LEd. 331 (1894)). HAWAI’I 130 94 REPORTS IN RE WATER USE PERMIT APPLICATIONS Cite as 94 HawaiI 97 (2000) 131 ter resources. Article XI, section 1 of the properly expanded its statutory powers, up cannot legislatively abdicate. See Illinois (citation omitted)). “In this regard, the Hawai’i Constitution states: setting the Code’s “balance of interests.” Central 146 U.S. at 453—54, 13 S.Ct. 110. settled rule is that in the construction of a CONSERVATION AND DEVELOP This court has held that [22—24] The public trust in the water re the doctrine would constitutional provision the words are pre MENT OF RESOURCES invalidate such measures, sources of this state, like the navigable wa sanctioned by stat sumed to be used in their natural sense ute but violative Section 1. For the benefit of present ters trust, has its genesis in the common law. of the public trust, as: the unless the context furnishes some ground use of delegated eminent and future generations, the State and its See generally HRS § 1—1 (1993); Housing domain powers by a to control, qualify, or enlarge them.” Pray private party to condemn political subdivisions shall conserve and Fin. & Des. Corp. v. Ferguson, 91 Hawai’i a public harbor, see v. Judicial Selection Commh, 75 Haw. Oahu Railway, supra protect Hawaii’s natural beauty and all 81, 89—90, 979 P.2d 1107, 1115—16 (1999) the land court’s regis 333, 342, 861 P.2d 723, 727 (1993) (citation, natural resources, tration of tidelands below the high water internal quotation including land, water, (recognizing that “[t]he common law ... in- marks, brackets, and el mark, air, minerals and energy sources, and shall eludes the entire wealth of received tradition see Sanbtirn, supro and a sale of lava lips6s omitted). extensions that did not promote promote the development and utilization and usage”). The legislature may, subject to a “valid pub- Mtreover, “a constitutional provision lie purpose,” see Zimring, of these resources in a manner consistent the constitution, modify or abrogate common supra. Regarding mus4be construed in connection with other water resources in particular, with their èonservation and in furtherance law rules by statute. See Fujioka v. Kam, history and provions of the instrument, and also in precedent have established of the self-sufficiency of the State. 55 Haw. 7, 10, 514 P.2d 568, 570 (1973). the public trust the 4ght of the circumstancei under which as an inherent attribute of sovereign All public natural resources are held in Statutes in derogation of the common law, authori it was adopted and the history which pre ty that the government “ought not, trust by the State for the benefit of the however, must be strictly construed. Burns an1 ergo, cMed it[.]” Carter v: Gears 16 Haw. 242, cannot surrender.” See people. Int’l Sec. Servs., Inc. v. Department of McBryde, 54 244 (1904), affirmed, 197 U.S. 348, 25 S.Ct. Haw. at 186, 504 P.2d at 1338 (quotin Land (Emphases Transp., 66 Haw. 607, 611, 671 P.2d 446, 449 41, 49 L.Ed. 787 (1905). added.) Article XI, section 7 fur Commission Principles); cf Illinois (1983). “Where it does not appear there was Centra4 Hawaii State AFL-CIO ther provides: 146 U.S. at 455; v. Yóshina, 84 Ha legisl.tive purpose in superseding the com 13 S.Ct. 110 (“[S]uch proper wai’i WATER RESOURCES 374, 376, 935 P.2d 89, 91(1997). mon law, the common law will be followed.” ty is held by the State, by virtue of ith [261 Article XI, section 1 of the Section 7. The State’ has an obligation I&; see also Watson v. Brown, 67 Haw. 252, sovereignty, in trust for the public.”). Hawai’i to Constitution mandates that, “Wor the benefit protect, control and regulate the use of 256, 686 P.2d 12, 15 (1984) (holding that a Most importantly, the people of this state of preáent and future generations, the State Hawaiis water resources for the benefit of statutory remedy is “merely cumulative and have elevated the public trust doctrine to the and its political subdivisions shall protect and its people. does not abolish an existing common law level of a constitutional mandate. In inter conserve ... all natural resources, The legislature shall provide for a water remedy unless so declared in express terms preting constitutional provisions: including water ... and shall promote resources agency which, as provided on by necessary implication”). The Code the develop by “[Vile have long recognized that the Ha merit and utilization of these resources .. in law, shall set overall water conservation, does not evince any legislative’ intent to abol wai’i Constitution must be construed with a manner consistent with their conserva quality and use polices; define beneficial ish the common law public trust doctrine. due regard to the intent of the framers and tion” and further declares that “[ajIl public and reasonable uses; protect ground and To -the contrary, as discussed in Part III. the people adopting it, and the fundamen natural resources are held in trust for the surface water resources, watersheds and D.2., infra, the legislature appears to have tal principle in interpreting a constitutional’ benefit of the people.” (mphases added.) natural stream environments; establish engrafted the doctrine wholesale in the Code. provision is to give effect to that intent.” Article XI, section 7 reiterates the. State’s criteria for water use priorities while as Hirono v. Peabody, 81 Hawai’i [25] As LURF points out, statutes estab 230, 232, “obligation to protect, control and regulate suring appurtenant rights and existing cor 916 P.2d 704, 706 (1996) (citation lishing comprehensive regulatory schemes omitted). the use of Hawaii’s water resources for the relative and riparian uses and establish “This intent is to be found in the instru form an exception to the rule of strict con benefit of its, people.” (Emphases added.) procedures for regulating all uses of Ha ment itself.” State v. Kahibaun, 64 struinion. See Department of Transp. v. Haw. The plain reading of these provisions mani waii’s water resources. 197, 201, 638 P.2d 309, 314 Transportation Comm’h, 111 Wis.2d 80, 330 (1981). fests the framers’ intent to incorporate the (Emphasis added.) In 1987, As we recently pursuant to the N.W.2d 159, 164—65 (1983); Norman J. Sing reiterated in Stçtte of notion of the’ public trust into our constitu constitutional mandate of article XI, l Hawai ez rel. section er, Sutherland Statutory Construction Bronster v. Yoshi’.o, 84 tion. The intensive deliberations on the sub 7, the legislature enacted Hawai’i 179, the State Water § 61.OS, at 190 (rev. 5th ed.1999). The Code 932 P.2d 316 (1997), ‘[tjhe ject in the convention record substantiate Code, HRS chapter 174C. general rule is that, certainly displaces common law rules of wa if the words usec in a this interpretation. See Debates in Commit

constitutional provision ... ter use where effective. See Ko’olau Agric. are clear and tee of the Whole on Conservation, Control 2. Relationship to the State Water Cod;e unambiguous, Co., LtcL v. Commission on Water Resource they are to be constr4d as and Development of Resources [hereinafter Several parties, most notably they are written.” LURF, con Management, 83 Hawai’i 484, 491, 927 P.2d IcL[ at 186], 932 P’2d at Debates],’ in 2 Proceedings of the Constitu tend that the Commission erred by relying 323 (quoting Blair[ 1367, 1374 (1996) (“In [water management v. Cayetano], 73 Haw. tional Convention of Hawaii of 1978, at 855— upon the public trust doctrine as legal [536,] 543, 836 P.2d a areas], the permitting provisions ofthe Code [1066,] 1070 [(1992)] 81 (1980) [hereinafter Proceedings]. We authority in addition to the State Water prevail; water rights in non-designated areas 29. The delegates discussed at length the proposal late and protect,” id. at 857 Code. According to LURF, the Code “sub are governed by the common that (statement by Dele. law.”). The produced the final version of article XI, gate Fukunaga); “[W]hat the sumes and supplants whatever section amendment at common law further suggestion that such a statute could 7. Some notable comments include: tempts to do, as I read “[T)he it, is to define what doctrine of public trust may previously have extinguish amendment and committee proposal go “public trust” means the public trust, however, contra ., [;] it’s an attempt tO beyond the mere power to regulate—which existed in Hawai’i.” By invoking the public dicts is clarify and put it in the Constitution,” id at 859 the doctrine’s basic premise, that the generally known as the police trust, LURF argues, power of the (statement by Delegate Waihee); “[T]his amend the Commission im state has certain powers and duties which it State—and impose a duty upon the State to regu ment recognizes ... that water is a resource in

L 132 133. therefore hold that article XI, section 1 and by the legislature. See, e.g., National Audu (1999) (“Thepublictrust doctrine is a consti lands beneath them irrespective of tidality. article XI, section 730 adopt the public trust bon Soc’y v. Superior Ct. Of Alpine Cty., 33 tutional limitation on legislative power. See Illinois Centra4 supra Phillips Petrole doctrine as a fundamental principle of consti Cal.3d 419, 189 Cal.Rptr. 346, 658 P.2d 709, The Legislature cannot order the courts to urn, 484 U.s. 469, 108 S.Ct. 791, 98 L.Ed.2d tutional law in Hawai’i. See Payne v. Kas 728 n. 27 (1983.) (“Aside from the possibility make the doctrine inapplicable to these or 877 (1988) (confirming that the public trust sab, 468 Pa. 226, 361 A.2d 263, 272 (1976) that statutory protections can be repealed, any proceedings.”). To the extent that other still applies to tidal waters, whether naviga (“There can be no question that the [constitu the noncodifled public trust doctrine remains courts have held otherwise, their decisions ble or not). In Hawai’i, this court has recog tion) declares and creates a public trust of important both to confirm the state’s sover are neither controlling nor, for the reasons nized, }ased on founding principles of law in public natural resources for the benefit of all eign supeñision and to require consideration stated above, applicable in this state. Sees this juisdiction, a distinct public trust en people (including future generations as yet of public trust uses in cases filed directly in e.g., R.D. Merrill Co. v. State of Wash. Pollu compaing all the water resources of the unborn) ); State v. Bleck, 114 Wis.2d the courts ..‘.“), cert. denied; 464 U.S. 977, tion Control Hearings Bd, 137 Wash.2d 118, state. lSee Robinson, 65 Haw. at 674, 658 454, 338 N.W.2d 492, 497 (1983) (grounding 104 S,Ct. 413, 78 L.Ed2d 351 (1983); Koote 969 P.2d 458 (1999). P.Zd a4 310. The Hawai’i Constitution de the public trust doctrine in the state constitu nai Envtl Alliance v, Panhandle Yacht clares fhat “all public resources are held in The. Code and its implementing tion); Save Ourselves v. Louisiana Env’t Club, Inc., 105 Idaho 622, 671 P.2d 1085, 1095 [271 trust by the state for the benefit of its peo agency, the Commission, do not overijde the “imtrol Comm’h, 452 So.2d 1152, 1154 (La. (1983) (“[M]ere compliance by [agencies] with ple,” Ifaw. Const. art. XI, § 1, and estab public trust doctrine or render it superfluous. 84) (recognizing a public trust based on the their legislative authority is not sufficient to lisles a public trust obligation “to protect, Even with the enactment and any future state constitution); Owsichek v. State, Guide determine if their actions comport with the control, and• regulate the use of Hawaii’s development of the Code, the doctrine contin Lwensing and Control BcL, 763 P.2d 488, requirements of the public trust doctrine. water resources for the benefit of its people,” ues to inform the Code’s interpretation, de 493—96 (Alaska 1988) (holding that the consti The public trust doctrine at all times forms Haw. Const. art. XI, § 7. fine its permissible “outer limits,” and justify tutional “common use” clause adopted com the outer boundaries of permissible govern ‘ its existence. To this end, although we re mon law trust principles in relation to fish, ment action with respect to public trust re [28] We need not define the full extent of gard the public trust and Code as sharing reference “all public wildlife, and water resources). sources.”). This view is all the more compel article XI, section l’s to similar core principles, we hold that the Code resources” at this juncture. For the pur Other state courts, without the benefit of ling here, in light of our state’s constitutional does not supplant the protections of the pub of this case, however, we reaffirm that, such constitutional provisions, have decided psblic trust mandate, See San Carlos poses lic trust doctrjne. under article XI, sections 1 and 7 and the. that the public trust doctrine exists indepen Apache Tribe v. Superior Court ex ret. Mo.ri reservation, the public trust doc dently of any statutory protections supplied copa County, 193 Aria. 195, 972 P.2d 179, 199 sovereign 3. The State Water Resources Trust trine applies to all water resources without that term, “substitut Hawaii that needs to be protected for the use of resources” and, in place of public trust doc exception or distinction. KSBE and Castle [that they] believe[d] fully convey[ed] Having established the all people,’ id. at 860 (statement by Delegate De ed language advocate for the exclusion of ground waters Soto); “[The amendment] maintains the intent of the theory of public trust.’” Comm. Whole Rep. trine’s independent validity; we must define the committee to establish a public trust doctrine No. 18, in I Proceedings, at 1026 (emphasis its basic parameters with respect to the wa from the. public trust. Their arguments, for the State of Hawaii to protect the total water added). ter resources of this state. In so doing, we first, contradict the clear import of the con resources for the benefit of the people of Ha address: 1) the “scope” of the trust, or the stitutional provisions, which do not differenti Delegate Hoe); “I urge Because article XI, section 7 also mandates waii” Id, (statement by 30. between categories of water in mandating the passage of this amendment establishing a the creation of an agency to regulate water use resources it encompasses; and 2) the “sub ate state water agency to act as trustee of all the ‘as provided by law,” LURF and HFB argue that stance” of the trust, including the purposes the protection and regulation of water re water resources of Hawaii for the benefit of the itis not self-executing. See State v. Rodrigues, 63 or uses it upholds and the powers an duties sources for the common good.3t The conven people,” Id. (statement by Delegate Chong); 412, 629 P.2d 1111 (1981) (holding that Hw. it confers on the state. tion’s records confirm that the framers un “mhe committee proposal as amended would tile creation of the independent grand jury coun “water resources” as “includ[ing] make the State of Hawaii the trustee of the water s4l position in article I, section 11 was not self derstood of Hawaii for the benefit of the people of Ha eilecuting). Whereas review of the history of a. Scope of the Trust ground water, surface water and all other. waii,” Id. at 866 (statement by Delegate Hor article I, section 11 in Rodrigues evidenced the water.” Debates, in 2 Proceedings, at 861 concept means that you go The public trust doctrine has v*ied in nick); “[I’]his trust intent to require further legislative action, the (statement by Delegate Fukunaga). for the benefit of the people, and that’s different same inquiry here reveals that the framers in scope over time and across jurisdictions. In from just mere regulation,” id. at 876 (statement tended to invoke the public trust in article XI, its ancient form, the public trust included We are also unpersuaded by the contention by Delegate Hanaike). See also 14. at 862—68 seCtion 7. See supra note 29. Article Xl, section “the air, running water, the sea, an conse of KSBE and Castle that the sovereign res (rejecting a proposed amendment stating merely 7 is thus self-executing to the extent that it adopts . does not extend to ground waters. that ‘[t]he State shall regulate and control all the public trust doctrine. See Debates, in 2 Pro quently the shores of the sea.” J. Ins 2.1.1. ervation water”). ceedings at 863 (statement by Delegate Waihee) Under the English common law, the trust Their argument rests almost entirely on one The delegates deleted an express reference to (“What the [amendment] attempts to do is, first covered tidal waters and lands. See Shively the “public trust” in article XI, section 7 because of all, create a fiduciary duty to regulate and v. Bowlby, 152 U.S. 1, 11, 14 S.Ct. 548, 38 of “[sjome confusion generated by the [thought control the water. The second thing that it does establish a coordinating agency to regulate sil L.Ed. 331 (1894). Courts in the United that] .. ‘trust’ implies ownership.” Comm. is Whole Rep. No. Is, in 1 Proceedings, at 1026. water.”); Haw. Const. art XVI § 16 (“The provi States have commonly understood the trust Public rights under the trust do not constitute sions of this constitution shall be self-executing as extending to all navigable waters and the state ‘ownership.” See Illinois Central, 146 U.S. to the fullest extent that their respective natures at 452, 13 S.Ct. 110; Robinson, 65 Haw. at 674, permit.”); cf Payne v. ITorts § 850A cmi. c over them, and have liberty’of fishing therein natural state, courts tennts’. rights to essential incidents of land in resource protection. (1979) [hereinafter Restatement (Second) 1 “d from the obstruction or interference of tinct public interest beyond their own kuleana, including water, in California Supreme (preference for domestic, or ,“natural,” uses parties.” 146 U.S. at 452, 13 S.Ct. As explained by the rec4gnition that “a little bit of land even with i,ate under riparian law); Cal. Water Code 1254 110 (emphases added). The trust, in the Court: alloilial title, if they be cut off from all other public uses of (West 1971) (“domestic use is the highest Court’s simplest terms, “requires the govern [O]ne of the most important privileges would be of vely little ‘value,” 3B within use”); Minn.Stat. Ann. 103G.2d1(a)(1) ment of the State to preserve such waters for the tidelands—a use encompassed Privy Council Records 713 (1850). See also preservation of (West 1997) (domestic use given first priori the use of the public.” Id. at 458, 13 S.Ct. the tidelands trust—is the Reppun, 65 Haw. at 549—SO, 656 P.2d at 69— so that ty). This jurisdiction presents no exception. 110 (emphasis added). those lands in their natural state, 70 (analogizing riparian rights under section they may serve as ecological units for sci In granting individuals fee simple title to 7 of the Kuleana Act to water rights of Based on this formulation, other courts entific study, as open space; and as envi land in the Kuleana Act, the kingdom ex Indian reservations in Winters v. United have sought to. further define the require t’onments which provide food and habitat pressly guaranteed: “The people shall States 207 U.S. 564, 28 S.Ct. 207, 52 LEd. ments of the public trust doctrine. The for birds and marine life, and which favor have a right to drinldng water, and running 340 (1908)); Peck v. Bailey, 8 Raw. 658, rules developed in order to protect public qf ably affect the scenery and climate of the water. - - .“ Enactment of Further Princi 661 (1867) (recognizing “appurtenant rights” water bodies and submerged lands for public area. ples of 1850 § 7, Laws of 1850 at 202 (codi to water based on “immemorial usage”). In access and, use, however, see, e.g., State v. 189 Cal.Rptr. 346, 658 fied at ,HRS § 7—1 (1993)). See also line with this history and our prior prece Public Sent Comm 275 Wis. 112, 81 National Audubon, Marks v. Whitney, 6 McBryde, 54 Haw. at 191—98, 504 P.2d at dent, see Kalipi v. Hawaiian Trust Co., 66. N.W.2d 71, 74 (1957) (prohibiting substantial P.2d at 719 (quoting Cal.Rptr. 790, 491 P.2d 374, 1341—44 (comparing section 7 of the Kuleana Haw. 1, 656 P.2d 743 (1982); Public Access destruction of navigable waters through land Cal.3d 251, 98 added). Thus, with act with authority in other jurisdictions Shoreline Hawaii v. Hawaii Planning reclamation); People ex reL Webb v. Califor 380 (1971)) (emphasis lake ecosystem involved in that recognizing riparian rights to water for do Commtn, 79 Hawai’i 425 438—447, 903 P.2d nia Fish Co., 166 Cal. 576, 138 P. 79, 88 respect to the that the public trust mestic uses); Carter v. Territory, 24 Haw. 1246, 1259—68 (1995), cert. denied, 517 U.S. (1913) (holding that a grantee of submerged case, the court held described as “recreational 47, 66 (1917) (granting priority to domestic 1163, 116 S.Ct. 1559, 134 L.Ed.2d 660 (1996) lands gains “naked title,” subject to the protected values scenic views of the lake use based on riparian principles and section 7 [hereinafter PASH 1, and constitutional man ublic easement” in the waters above), do and cological—the the air, and the of the Kuleana Act). And although this pro date, see Raw. Const. art. XII, § 7, we con .ot readily apply in the context of water and its shore, the purity of for nesting and feeding by vision and others, including the tinue to uphold the exercise of Native Hawai resources valued for consumptive purposes, use Of the lake reservation of sovereign prerogatives, evidently oiginat ian and traditional and customary rights as a where competing uses are more often mutu bird.” Id ed out of concern for the rights ofnative public trust purpose See generally Eliza ally exclusive. This court recognized as [321... This court has likewise acknowl in particular, we have no doubt that beth Ann Ho’oipo Kala’ena’auao Pa Martin et much in Robinson, stating that “[t]he extent edged resource protection, with its numerous tenants they apply today, in a broader sense, to the al., Cultures in Conflict in Hawai’i: The of the state’s trust obligation over all waters derivative public uses, benefits, and values, uses of the general ‘5ublic. Law and Politics of Native Hawaiian Water of course would not be identical to that as an important underlying purpose of the vital domestic Right.s 18 U. Raw. L.Rev. 71, 147—79 (1996) which applies to navigable waters.” 65 Raw. reserved water resources trust. See Robin- Accordingly, we recognize domestic water the water (surveying various rights). at .675, 658 P.2d at 310. Keeping this dis son, 65 Raw. at 674—76, 658 P.2d at 310—il use as a purpose of state resources tinction in mind, we consider the substance (upholding the public interest in’the “purity trust. Cf Clsfton v. Passaic Valley Water LURF asserts that the public trust in Ha Commtn, of the water resources trust of this state, and flow,” “continued existence,” and “pres 224 N.J.Super. 53, 539 A.2d 760, wai’i encompasses private use of resources specifically, the purposes protected by the ervation” of the waters of the state). The 765 (Law Div.1987) (holding that the public for “economic development,” citing, inter trust and the powers and duties conferred on people of our state have validated resource trust “applies with equal impact upon the alia, Territory v. Liliuokalani, 14 Haw. 88 private mdi the state thereunder. “protection” by express constitutional decree. control of drinking water reserves”). (1902) (grants of tidal landi to thus See Haw. Coost. art. XI, § 1 & 7. We 34. The trust’s protection of traditional and cus 35. Our holding with respect to the public trust i. Purposes of the Trust hold that the maintenance of waters in their tomary rights also extends to the appurtenant does not supplant any other protections of these “use” un rights recognized in Peck. rights already existing. In other states, the “purposes” or “uses” of natural state constitutes, a distinct disposes the public trust have evolved with changing der the water resources trust. This effect

138 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 139 Cite a 94 i1wai’i 97 (2000) viduals), Haalelea v. Montgomery, 2 Haw. 62 such as increasing tax revenues, or be “use and’ development.” The state water of the ancient Hawaiian system and present (1858) (konohiki fishing rights), and the Ad cause the grantee might put the property resources trust thus embodies a dual man necessity, this court subsequently reasserted missions Act, Act of Mar. 18, 1959, Pub.L. to a commercial use. date of 1) protection and 2) maximum reason the dormant public interest in the equitable 83—3, 73 Stat. 4, 5(f) (designating “develop;. Thus, the public trust is more than an able and beneficial use. and maximum beneficial allocation of water of farm and home ownership” as one of ment affirmation of state power to use public [37] The mandate of “protection” co resources. SeC id; Robinson, 65 Haw. at purposes of the state ceded lands trust). the property for public purposes. It is an incides with the traditional notion of the pub 674—77, 658 P.2d at 310—12. examples generally demonstrate While these affirmation of the duty of the state to lic trust developed with respect to navigable public trust may allow grants of [39] This state has adopted such princi that the protect the people’s common heritage of and tidal waters. As commonly understood, private interests in trust resources under pies in its constitution. The second clause of streams, lakes, marshlands and tidelands, the trust protects public waters and sub certain circumstances, they in no way estab article XI, section 1 provides that the state T surrendering that right of protection only merged lands among the against irrevocable transfer to “shall promote the development and utiliza lish private commercial use as in rare cases when the abandonment of private parties, see, e.g., Illinois Central, en- tion 1f [water) resources in a manner consis public purposes protected by the trust. that right is consistent with the, purposes pro, or “substantial impairment,” whether for tentfwith their conservation and in further Although its purpose has evolved over of the trust. privat& or public purposes, see, e.g., State v. ancej of the self-sufficiency of the time, the public trust has never been under State.” National Audubon, 189 Cal.Rptr. 346, 658 Public Serv. Comm’n, supra. In this juris (Emshasis The stood to safeguard rights of exclusive use for added.) framers deemed it P.2d at 723—24 (citations omitted). diction, our decisions in McBryde and its necessary to define “conservation” and private commercial gain. Such an interpre progeny and the plain meaning and Nstory of water agreed on’ the following: “the protection, im tation, indeed, eviscerates the trust’s basic [35] We hold that, while the state the term “protection” 36 in article XI, section that private provement and use of natural resources ac purpose of reserving the resource for use resources trust acknowledges I and article XI, section 7 establist that the without may pro ording to principles that will assure their and access by the general public use. for “economic development” state has a comparable duty to ebsure the HRS and that, such highest ecoiwmic or social benefits.” See preference or restriction. See, e.g., duce important public benefits continued availability and existence’ of its Wa providing, of Stand. Comm. Rep. No. 77, in 1978 Proceed § 7—1 (codifying law of kingdom benefits must figure into any balancing ter resources for present and future genera ings, at 685-86 (emphases added). The sec inter alia, that “[tjhe springs of water, run competing interests in water, it stops short tions. ning water, and roads shall be free to all”); of embracing private commercial use as a ond clause of article XI, section 1 thus re Illinois Central, 146 U.S. at 456, 13 S.Ct. 110 protected “trust purpose.” We thus eschew [38] In this jurisdiction, the water’ re sembles laws in other states mandating the (observing that the trust’s limitation on pri LURF’s view of the trust, in which the sources trust also encompasses a duty to maximum beneficial or highest and best use vate rights “follows necessarily from the pub “‘public interest’ advanced by the trust is promote the reasonable and beneficial use of of water resources. See, e.g., Cal. Const. art. lic character of the property, being held. by the sum of competing private ‘interests” and water resources in order to maximize their X, § 2; N.M. Const. art. 16, § 3; N.D. Cent. social and economic benefits to the people of code 61—04—01.1.1 (Supp.1999). the whole people for purposes in which the the “rhetorical distinction between . ‘public § Unlike whole people are interested”); see generally trust’ and ‘private gain’ is a false dichotomy.” this state. Post—Mahele water rights deci many of the traditional water rights systems Carol Rose, The Comedy. of the Commcm.s: To the contrary, if the public trust is to sions ignored this duty, treating public water governed by such provisions, however, article Custom, Commerce,. and inherently Public retain any meaning and effect, it must recog resources as a commodity reducible to abso XI, section l’s mandate of “conservation”- Property, 53 U. Chi L.Rev. 711 (1986) (dis nize enduring public rights in trust resources lute private ownership, such that “no limita minded use recognizes “protection” as a valid cussing the history and underlying policies of separate from, and superior to, the prevail tion ... existed or was supposed to exist to purpose consonant with assuring the “highest the concept of “inherently public property”). ing private interests in the resources at any [the owner’s] power to use the . . . waters as economic and social benefits” of the resource. In considering a similar argument, the Cali given time. See Robinson, 65 Haw. at 677, he saw fit,” Hawaiian Commerciaj & Sugar See Owen L. Anderson et al., Prior Appro fornia Supreme Court stated: 658 P.2d at 312 (“[U)nderlying every private Co. v. Wailuku Sugar Co., 15 Haw; 675, 680 prio.tion, in 2 Waters and Water Rights Since the publiC trust doctrine does not diversion and application there is, as there (1904). See Reppun, 65 Haw. at 539—48, 656 § 12.03(c)(2), at 114 (Robert B. Beck ed., prevent the state from choosing between always has been, a superior public interest in P.2d at 63-69. Based on fohnding principles 1991) [hereinafter Water Rights] (noting ear the Attorney General of Califor trust uses, this natural bounty.”). 36. In deleting a prior draft of article pCI, section ered the State to “conserve and develop its nia, seeking to maximize state power under I merely stating that “[tJhe IegisIatur shall pro natural beauty.” of mote the conservation, development .nd the trust, argues for a broad. concept ii. Powers and Duties of the State utiliza Stand. Comm. Rep. No. 77, in 1 Proceedings, at • trust uses. In his view, “trust uses” en tion of •.. natural resources,” and 4placing it 686 (emphases added). See also id. at 688 (ex. under the Trust with the present language expressly mandating all public uses, so that in practical plaining, with respect to a prior draft of article compass “protection,” the committee noted: XI, section 7, that the “agency will [361 This court has described the public also have the the doctrine would impose no re duty to protect groundwater resources, water resources as the au Much testimony was received cx ssing the strictions on the state’s ability to allocate trust relating to water opinion that the current language o Section 1 sheds and natural stream environments because trust property. We know of no authority thority and duty “to maintain the purity and is contradictory ‘and places insuf/Ic cot weight groundwater resources, watersheds and streams which supports this view of the public flaw of our waters for future generations and on the preservation or protection end of the form the basis of our water resources system”); balance Debates, in 2 Proceedings, at 857 (statement by to assure that the waters of our land are put that is implied in the word “conserva trust, except perhaps the dissenting opin tion.” Your Committee agreed with this testi Delegate Hoe) (“[Article XI, section 7] strives to beneficial uses.” IcL at ion in Illinois Central .... The tideland to reasonable and mony and amended Section [1] to’ recognize make clear that our obligations include the wel Sim cases make this point clear; ... no one 674, 658 P.2d at 310 (emphases added). this concern.... [T]he language of this sec fare of future generations and therefore in the could contend that the state cOuld grant ilarly, article XI, section 1 of the Hawai’i tion mandates that the State and its political use of our resources we must protect our natural subdivisions provide ‘for the conservation and resources against irreversible depletion, waste or because Constitution requires the state both to “pro tidelands free of the trust merely protection of natural beauty, as contrasted with destruction and safeguard the natural beauty of the ‘grant served some public purpose, tect” natural resources and to promote their the previous language which simply empow our State.”). 141

that, in so do from this source and others, we seek to made with due consideration of their effect ly proscriptions against “nonuse”as “the per court nonetheless maintained its duty as define the trust’s essential parameters in on the public trust. See National Audubon, ceived biggest waste of all”). But see Id. ing, “the state must bear in mind effect of the taking on light of this state’s legal and practical re 189 Cal.Rptr. 346, 658 P.2d at 728. § 13.05(a) (explaining the modern trend to trustee to consider the far as quirements and its historical and present cir wards providing for instreani flows and uses). the public trust and to preserve, so cumstances. To this end, -we hold that the [42—44] The state also bears an “affirma In short, the object is not maximum con consistent with the public interest, the uses state water resources trust embodies the fol tive duty to take the public trust into account sumptive use, but rather the most equitable, protected by the trust.” Id. 189 Cal.Rptr. lowing fundamental principles: in th planning and allocation of water re reasonable, and beneficial allocation of state 346, 658 P.2d at 728 (citation omitted). sourcs, and to protect public trust uses water resources, with full recognition that advo [40, 41] Under the public trust, the state Many of the parties, primarily those feasiblet 39)” add also constitutes “use.” has both the authority and duty to preserve whe4ver Id. (emphasis — resource protection uses, attempt to distinguish cating offstream ed). jPreliminarily, we note that this duty the foregoing discussion suggests, the Lake case, from the present one. the rights of present and future generations As the Mono may Inot readily translate into substantive the public trust fash differ in important in the waters of the state. See Robinson, 65 conventional notion of The two cases indeed resul.° The public has a definite interest context of navigable and tidal Audubon involved Haw. at 674, 658 P.2d at 310; see also State ioned in the respects. First, National in the development and use of water re only a partial picture of the purpose, the domestic v. Central Vt. Ry., 153 Vt. 337, 571 A.2d 1128, waters offers diversions for a public sdurcès for various reasonable and beneficial resources trust of this state. With this Angeles. No compa 1132 (1989) (“[T]he state’s power to supervise ‘cater uses of, the City of Los public and private offstream purposes, in we turn to the leading deci needs are advanced trust property in perpetuity is couiled with .inderstanding, rable offstream public agriculture, see generally Haw. to water re the ineluctable duty to exercise this power.”), cuding sion applying the public trust here.37 Second, the Nalional Audubon court 341 cert. denied, 495 U.S. 931, .110S.Ct. 171, 109 Const.- art. XI, § Therefore, apart from sources, National Audubon Society v. Supe sought to assert the public trust against a L.Ed.2d 501 (1990). The continuing authos-i the question of historical practice,42 reason rior Court of Alpine County, 33 CaI.3d 419, water rights system equating nonconsump ty of the state over its water resources pre and necessity dictate that the public trust 189 Cal.Rptr. 346, 658 P.2d 709, cert, denied, tive hse with “waste.” See, e.g., In re Waters 351 cludes any grant or assertion of vested rights may have to accommodate offstream diver 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d of Long Valley 25 Cal.3d 339, 158 Cal.Rptr “Mono Lake” to use water to the detriment of public -trust sions inconsistent with the mandate of pro (1983), otherwise known as the 350, 599 P.2d 656, 664 (1979) (noting that purposes. See Robinson, 65 Haw. at 677, 668 tection, to the unavoidable impairment of case. article X, section 2 of the California constitu P.2d at 312; see also National Audubon, 189 public instream uses and values. See Na In National Audubon, the California Su tion “prevents waste of waters of the state Cal.Rptr. 346, 658 P.2d at 727; Kootenai, 671 tional Audubon, 189 CaLRptr. 346, 658 P.2d preme Court confronted two legal systems resulting from an interpretation of our law P.2d at 1094 (“[TIhe public trust doctrine at 727. As discussed above, by conditioning “on a collision course”: •the public trust and which permits them to flow unused, unre takes precedent even over vested• water use and development on resource “conserva appropriative rights. See Id. 189 CàI.Rptr. strained and undiminished to the sea”). Our rights.”); cf Ka’ram v. Department of tion,” article XI, section 1 does not preclude 346, 658 P.2d at 711—12. The public water common law riparian system does not share Envtl. Protection, 308 N.J.Super. 225, 705 offstream use, but merely requires that all utility of the City of Los Angeles had ob such a view; moreover, the mandate of “con A.2d 1221, 1228 (App.Div.1998) (“[T]he sover uses, offstream or instream, public or pri tained permits to appropriate, for domestic use subsumed in our servation”-minded eign never waives its right to regulate the vate, promote the best economic and social purposes, nearly the entire flow of four of the water resources trust contemplates state’s use of publie trust property.”), affd, 157 N.J. interests of the people of this state. In the. five streams flowing into Mono Lake, the “protection” of waters in their natural state .. . is a The diver 187, 723 A.2d 943, cert. denied, * U.S. wordl of another court, “[t]he result second largest lake in California. as a beneficial use. Finally, unlike Califor (l999). —, 120 S.Ct. 51, 145 L.Ed.2d 45 controlled development of resources rather sions had resulted in a precipitous decline in nia, this state bears an additional duty under the This authority empowers the state o revisit than no development.” Payne v. Kassab, 11 the level of the lake, thereby imperilling Article XII, section 7 of its constitution to values. prior diversions and allocations, een those Pa.Cmwlth. 14, 312 A.2d 86, 94 (1973), affd, lake’s scenic beauty and ecological potect traditional and customary Native Ha the Seeking an “accommodation” between wiian rights. If one must distinguish the 38. We agree with the National Audsbon court and with results that are consLient with the pro rights, the tection and perpetuation of the resource.” (empha public trust and appropriative two cases, therefore, National Audubon ap that the few exceptions to the gejieral rule of the trust sis added)). court initially held that the state’s “[continu than more, pro against the abandonment pblic peat’s to provide less, rather would not likely apply in the c ntext I usufi-uc supervisory control] prevents any party ing tection than arguably justified in this case. tuaty water rights. See id. at 727 n. 25. 3 in relevant part: to appropriate 41. Article XI. section States from acquiring a vested right “The State shall conserve and protect agricultur Despite these differences, we recognize water in a manner harmful to the interests 39. Read narrowly, the term “feasil” could al lands, promote diversified agriculture, in the public trust protected by the public trust.” Id. 189 Cal. that the dichotomy between mean “capable of achievement,” apartf from any crease agricultural self-sufficiency and assure the in California lands. The Rptr. 346, 658 P.2d at 727. The court ac and appropriative system balancing of benefits and costs. See Industria availability of agriculturally suitable roughly approximates the dual nature of the lUnic,n Dept., AFL-CIO v. American Petroleum legislature shall provide standards and criteria to knowledged that, “[als a matter of current the foregoing.” in the water resources of this Inst., 448 U.S. 607, 718—19, 100 S.Ct. 2844, 65 accomplish and historical necessity,” the state may per public trust L.Ed.2d 1010 (1980) (Marshall, 3., dissenting). National Audubon mit an appropriator to take water from flow state. Consequently, The National Audubon court apparently did not 42. Although, this court has held that the “natural the manner in ing streams, “even though this taking does provides useful guidance on use “feasible” in this strict sense, and neither do flow” theoty of riparianism best approximated case. and may unavoidably harm, the which this state may balance the potentially we in this the ancient Hawaiian system, we-note that diver not promote, of water out of watershed boundaries were Id. The conflicting mandates of the trust. Drawing sions trust uses at the source stream.” 40. But see Debates, in 2 Proceedings, at 866—67 the permitted (statement by Delegate Hornick) (“The public We note that Waiawa Correctional Facility aquifers is an incidental effect of 37. re trust doctrine implies that the disposition and received a .15 mgd permit partially for ‘domes surface uses, the ultimate benefit of which use of these resources must be done with proce tic’ purposes, which no one challenges on ap mains in dispute. See FOF 915—23. dural fairness, for purposes that are justifiable peal. D & 0 at 8—9. The recharge of leeward 142 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 143 Cite as 94 Hawat’l 97 (2000) 14 Pa.Cmwlth. 491, 323 A.2d 407 (1974), affd that the constitutional requirements of “pro private commercial purposes bore the burden c. Standard of Review under the Trust of proof); 468 Pa. 226, 361 A.2d 263 (1976). tection” and “conservation,” the historical cf Robinson, 65 Haw. at 649 n. 8, [51,52] Finally, the special public inter and continuing understanding of the trust as 658 P.2d at 295 n. 8 (noting that, under the [45] We have indicated a preference for ests in trust resources demand that this a guarantee of public rights, and the common common law, “[t]he burden of demonstrating accommodating both instream and offstream court observe certain qualifications of its reality of the “zero-sum” game between com that any transfer of water was not injurious uses where feasible. See Rep’pun, 65 Haw. standard of review, see Part II, supra. As peting water uses demand that any balancing to the rights of others rested wholly upon at 552—54, 556—63 & n. 20, 656 P.2d at 71—72, in other cases, agency decisions affecting between public and private purposes begin those seeking the transfer”). public 73—78 & n. 20 (allowing ground water diver trust resources carry a presumption of with a presumption in favor of public use, validity. sions short of “actual harm” to surface uses); The presumption is particularly access, and enjoyment. See, e.g., Zimring, [47—50] The constitution designates the significant where the appellant challenges a F Robinson, 65 Haw. at 674, 658 P.2d at 310 58 Haw. at 121, 566 P.2d at 735 (“[T]he State substdntive (describing the trust as “authority to assure Commission as the primary guardian of pub decision within the agency’s ex as trustee has the duty to protect and main pertis4 as “clearly the continued existence and beneficial appli lic rights under the trust, Haw. Const. art. erroneous,” HRS § 91— tain the trust [resource] and regulate itsuse. 14(g)(), “arbitrary,” cation of the resource for the common good” XI, section 7. As such, the Commission must “capricious,” or an Presumptively, this duty is to be implement “abusq of (emphasis added)). In times of greater scar not relegate itself to the role of a mere discretion,” HRS § 91—14(g)(6). ed by devoting the [resource] to actual public See Sclve Ourselves, 452 So.2d city, however, the state will confront difficult “umpire passively calling balls and strikes for at 1159. uses, e.g., recreation.”). Thus, insofar as the choices that may not lend themselves to for adversaries appearing before it,” but instead 53] The public trust, however, public. trust, by nature and definition, estab is a state and must take the initiative in considering, pro constittitional doctrine. As mulaic solutions. Given the diverse not lishes use consistent with trust purposes as with other state complementary range of water tecting, and advancing public right in the coistitutional guarantees, the ultimate necessarily the norm or “default” condition, we affirm au public trust uses• alone, resource at every stage of the planning and thority to interprot and defend uses, even among we the Commission’s conclusion that it effective the public neither feasible nor prudent to decisionmalcing process. Save Ourselves, 452 trust in Hawai’i rests with the courts consider it ly prescribes a “higher level of scrutiny” for of this priorities between So.2d at 1157 (citing Calvert state. See State v. Quitog, 85 Hawai’i designate absolute broad private commercial uses such as those pro Cliffs’ Coorcli 128, categories of uses under the water resources nating Comm. 130 n. 3, 938 P.2d 559, 561 n. 3 (1997) (recog posed in this case.43 In practical terms, this v. United States Atomic En Contrary to the Commission’s conclu ergy Commtn, nizing the Hawai’i Supreme Court as the trust. means that the burden ultimately lies with 449 F.2d 1109, 1119 (D.C.Cir. establishes “ultimate judicial tribunal with final, sion that the trust resource pro those seeking or approving such uses to jus 1971); Scenic Hudson Preservation Confer unre “a categorical imperative and the viewable authority to interpret and enforce tection as tfy them in light of the purposes protected ence v. FPC 354 F.2d 608, 620 (2d Cir. precondition to all subsequent consider the Hawai’i Constitution”)). by the trust. Cf Maroon, Inc. v. Common 1965))); see also Debates, in 2 Proceedings, hold that the Commission inevita Judicial review Li ations,” we sçealth Dep’t of EnvtL Resources, 76 Pa. at 857 (statement by Delegate Fukunaga) of public trust dispensa. 41jj bly must weigh competing public and private tions complements the concept Cmwlth. 56, 462 A.2d 969, 971 (1983). (main (“Thus, under [article XI äection 7], the of a public water uses on a case-by-case basis, according trust. [The Arizona Supreme thining that, given the “special concerns in State must take an active and affirmative Court] said appropriate standards provided by “The duties I.1I to any volved in this area of the law,” i.e., the public role in water management.”). Specifically, imposed upon the state See Robinson, 65Haw. at 677, 658 P.2d are the duties of a trustee law. trust, the petitioner and the agency had the the public trust compels the state duly to and not simply at 312; see also Save Ourselves, 452 So.2d at the duties of a good business duty to justify the permit); Commonwealth consider the cumulative impact of existing manager.” 1152 (reading the constitution to establish a Kadish. v. Arizona State Land Dep’t, 155 Dep’t of EnvtL Resources v. Commonwealth and proposed diversions on trust purposes “rule of reasonableness” requiring the bal Ariz. 484, 487, 747 P.2d 1183, 1186 (1987), Pub. UtiL Comm’n, 18 Pa.Cmwlth. 558, 335 and to implement reasonable measures to ancing of environmental costs and benefits affd 490 U.S. 605, 109 S.Ct. 2037, 104 A.2d 860, 865 (1975) (holding that, once ad mitigate this impact, including .the use of against economic, social, and. other factors). L.Ed.2d 696 (1989). Just as private trust verse impact to the constitutional public trust alternative sources. See, e.g., Save Our ees are judicially accountable to their ben [46] Having recognized the necessity of a is aised, “the applicant’s burdçn is intensi selves, 452 So.2d at 1157-58; Payae, 312 eficiaries for dispositions of the res, so the balancing process, we do not suggest that the fied,” and the agency and reviewing court A.2d at 94; Kootenai, 671 P.2d at 1b92—93; legislative and executive branches are judi state’s public trust duties amount to nothing “mist.be satisfied that the [relevant constitu Hamilton v. Diamond 42 A.D.2d 45, 349 cially accountable for the dispositions of more than a restatement of its prerogatives, tional test] is met”); Superior Public Rights, I’.Y.S.2d 146, 148—49 (1973), appeal lenied, the public trust. The beneficiaries of the see Robinson, 65 Haw. at 674 n. 31, 658 P.2d In u State Dep’t of Natural Resources, 80 34 N.Y.2d 516, 357 N.Y.S.2d 10, 314 public trust are not just present genera at 310 n. 31, nor do we ascribe to the consti Mich.App. 72, 263 N.W.2d 290, 294 (1977) N.E.2d 425 (1974), The trust also requires tions but those to come. The check and tutional. framers the intent to enact laws (deciding, in the absence of direction from planning and decisionmaking from a lobal, balance of judicial review provides a level devoid of any real substance and effect, see the relevant statutes or rules, that party long-term perspective. See United lains of protection against improvident dissipa supra notes 29, 36 & 40. Rather, we observe applying for use of public trust lands for men Ass’n v. North Dakota State Water tion of an irreplaceable res. 43. It is widely understood that the public trust 81 N.W.2d at 73—74 (noting that no one public Commn, 247 N.W.2d 457, 462—64 (N.D.1976). Arizona Cent. for Law in Pub. Interest v. assigns no priorities or presumptions in the bal and use would be destroyed or greatly impaired In sum, the state may compromise public Hassel4 172 Ariz. 356, 837 P.2d 158, 168—69 ancing of public trust purposes, See National that the benefit to public use outweighed the rights in the resource Audubon, 189 Cal.Rptr. 346, 658 P.2d at 723; harm), and must conform to article XI, section pursuant only to a (Ariz.Ct.App.1991), review dismissed, 172 Jan S. Stevens, The Public Trust: A Sovereign’s l’s mandate of “conservation.” The Commis decision made with a level of openness, dili Aria. 356, 837 P.2d 158 (1992) (brackets and Ancient Prerogative Becomes the People’s Environ sion, in other words, must still ensure that all gence, and foresight commensurate with citation omitted). mental Right, 14U.C. Davis L.Rev. 195, 223—225 the trust purposes are protected to the extent feasi high priority these rights command under (1980). Such balancing, nevertheless, must be ble. Nevertheless, as the Idaho Supreme Court reasonable, see, e.g., State v. Public Serv. Comm’n, the laws of our state. elaborated:

- 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 145 144 Cite as 94 Hawaii 97 (2000)

the use of 172 sary, is accepted as the for develop- V This is not to say that this court will legislative intent. One avenue is (1996)). Such deference “reflects a guide tool. sensitivity to the roles of ing and implementing this policy. supplant its judgment for that of the legis legislative history as an interpretive proper the political and judicial branches,” insofar as “the reso • (c) The state water code shall be liberal lature or agency. However, it does mean Gray (v. Administrative Dir. of the a at lution of ambiguity in a statutory text is interpreted to obtain maximum benefi that this court will take “close look” Court], 84 Hawai’i 138,) 148, 931 P.2d ly if it complies with often more a question of policy than law.” cial use of the waters of the State for the action to determine [580,) 590 [(1997)] (quoting State v Toyo Pauley v. BethEnergy Mines, Inc, 501 U.S. purposes such as domestic uses, aquacul. the public trust doctrine,and it will not act 904 P.24 893, mura, 80 Hawai’i 8, 18—19, 111 S.Ct. 2524, 115 604 as a rubber stamp for agency or 680, 696, L.Ed.2d ture, uses, irrigation and other agricultural merely 903—04 (1995)) (brackets and ellipsis points (1991). V uses power development, and commercial legislative action. omitted). This court in original) (footnote and industrial uses. However adequate 1092 reason and spirit • Kootenai, 671 P.2d at (emphasis added). may also consider “[t]he [57] The rule of judicial deference, how protsion shall be made for the protection 763 P.24 at 494 (holding of the law, and the cause which induced ever, does not apply when the agency’s V See also Owsicheck, of tfraditional and customary Hawaiian V that grants of exclusive rights to harvest the legislature to enact it ... to discover reading .of the statnte contravenes the legis rights, the protection and procreation of natural resources should be subjected to its true meaning.” HRS § 1—15(2). (1993). lature’s manifest purpose. See Camara v. fish and wildlife, the maintenance of prop- “close scrutiny”); Weden v. San Juan Caun “Laws in pan materia, or upon the same Agsalud, 67 Haw. 212, 216, 685 P.24 794, • or eological balance and scenic beauty, ‘y, 135 Wash.2d 678, 958 P.2d 273, 283 (1998) subject matter, shall be construed with 797 (1984) (“To be granted deference, nd the preservation and enhancement of constitutional the agency’s decision must be coisistent V ,öbserving that, even absent a reference to eaèh other. What is clear in vaters of the State for municipal uses, mandate, “courts review legislation under the one statute may be called upon in aid to with the legislative purpose.”); State v. Dill public recreation, public water supply, public trust doctrine with a heightened de-. explain what is doubtful in another.” HRS ingham Corp., 60 Haw. 393, 409, 591 P.2d agriculture, and navigation. Such objec grée of judicial scrutiny, as if they were § 1—16 (1993). V 1049, 1059 (1979) (“[N)either official cosi tives are declared to be in the public inter Vmeasuring that legislation against constitu struction or usage, no matter how long in est. (citation and internal quo Barnett v. State, .91 Hawai’i 20, 31, 979 P.2d dulged in, can be successfully invoked to tional protections” (4) The state water code shall be liberal-. 1046, 1Q57 (1999) (quoting State v. Davio., 87 defeat the purpose and effect of a statute tation marks omitted)). ly interpreted to protect and improve the Hawai’i 249, 254, 953 P.2d 1347, 1352 (1998)). which is free from ambiguity.;..”). Conse quality of waters of the State and to pro C. INTERPRETATION OF THE WA quently, we have not hesitated to reject an [54—56) If we determine, based on the vide that no substance be discharged into TER CODE incorrect or unreasonable statutory con furegoing rules of statutory construction, such waters without first receiving the struction advanced by the agency entrusted V Statutory Con legislature has unambiguously spo necessary treatment or other corrective V of 1. Basic Principles 1hat the with the statute’s implementation. See, e.g., matter in question, then our action. The people of Hawaii have a sub struction ken on the Government Employees Ins. Co. v. Dan 89 USA, Inc. interest in prevention, inquiry ends. See, e.g., Chevron V stantial the abate significant number of issues on appeal Hawai’i 8, 15, 967 P.2d 1066, 1073 (1998); In A v. Natural Resources Defense Counci4 Inc., ment, and control of both new and existing require interpretation of the State Water re Mald.onado, 67 Haw. 347, 351, 687 P.2d 1, 467 U.S. 837, 842—43, 104 S.Ct. 2778, 81 water pollution and in the maintenance of Code. In construing statutes, we have recog 4 (1984). L.Ed.2d 694 (1984)). When the legislative high standards of water quality. nized that less than clear, however, this court (e) The state water code shall be liberal intent is 2. Water Code Declaration of Policy our foremost obligation is to ascertain and will observe the “well established rule of ly interpreted and applied in a manner give effect to the intention of the legisla sttutory construction that, where an admin Our analysis of the Code begins vith its which conforms with intentions and plans V obtained primarily set ture, which is to be istrative agency is charged with the respon “declaration of policy,” forth in HRS of the counties in terms of land use plan from the language contained in the statute 174C—2 (1993 Supp.1999) as follo,s: out of a § & ning. silility of carrying the mandate read statutory lan itself. And we must stAtute which contains wards of broad and (a) It is recognized that the witers of (Emphases added.) guage in the context of the entire statute indefinite meaning, courts accord persuasive the State are held for the benefij of the This policy statement generally mirrors and construe it in a manner consistent with weight to administrative construction and citizens of the State. It is declared that the public trust principles outlined above. its purpose. follow the same, unless the construction is the people of the State are beneficiaries Cf Caminiti v. Boyle, 107 Wash.2d 662, 732 When there is doubt, doubleness of palpably erroneous.” Brown v. Thompson, and have a right to have the wa s pro P.24 989, 995 (1987) (noting that the state meaning, or indistinctiveness or uncertain 91 Hawai’i 1, 18, 979 P.24 586, 603 (1999) tected for their use. Shoreline Management Act complied with

ty of an expression used in a statute, an (quoting Keliipuleole v. Wilson, 85 Hawai’i (b) There is a need for a program of the requirements of the constitutional public See also ambiguity exists.... 217, 226, 941 P.2d 300, 309 (1997)). comprehensive water resources planning trust), cert, deniec4 484 U.S. 1008, 108 S.Ct. Government Employees Ins. Co. v. Hyman, to address problems of and 703, 98 L.Ed.2d 654 (1988); Save Ourselves In construing an ambiguous statute, the supply 211, 215 (1999) “[t]he meaning of the ambiguous words 90 Hawai’i 1, 5, 975 P.2d conservation of water. The Hawaii water 452 So.2d at 1157 (concluding that the statute agency expertise is may be sought by examining the context, (“[Jjudicial deference to plan, with such future amendments, sup “implement[sj and perpetuate[s] the constitu interpretation V precept where the V with which the ambiguous words, phrases, a guiding plements, and additions as may be neces tional rule”). HRS § 174C—2(a) reiterates order and application of broad or ambiguous statu and sentences may be compared, in 44. our prior decisions contrarily 908 (1990); In re 67 Haw. 347, administrative tribunal Several of sug Maldonado, 351, to ascertain their true meaning.” HRS tory language by an gest that agency interpretations of statutes are 687 P.2d 1, 4 (1984). We reconcile this apparent (quoting Richard § 1—15(1) [(1993)). Moreover, the courts are the subject of review.” reviewed de novo. See, e.g., Maha ulepu v. Lond disparity in the present discussion. Use Comm’n. 71 Haw. 332, 336, 790 P.2d 906, may resort to extrinsic aids in determining v. Metcalf 82 Hawai’i 249, 252, 921 P.24 169, 146 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 147 Cite aa 94 HawaIi 97 (2000) the decree in our constitution and case law Dougal, PrivateRopes and Public Values in The Commission, however, found calculat use protection provisions, and then consider. ing that the state holds water resources for the the “Reasonable Beneficial Use” of Hawai’i’s the exact relationship between instream the parties’ specific objections. flows and benefit of the public and emphasizes the Waten Is Balance Possible?, 18 U. Haw. ecological benefit “difficult” due to 46 a lack of sufficient scientific knowledge. essential feature of the public trust, i.e., the L.Rev. 1, 46—47 n. 222 (1996); cf Califor 1. Overt,iew o the Statutory Framework COLs at 16. Still, for the time being, the right of the people to have the waters pro nia Trou(, Inc. v. Water Resources Control for Instream Commission deemed it Use Protection tected for their use. URS § 174C-2(b) rec Bd., 207 Cal.App.3d 585, 255 Cal.Rptr. 184; “practicable” to in crease the interim instream ognizes the policy of comprehensive resource 190—94 (1989) (construing statutory require flow standards [59—61] Instream flow are an for windward streams (WIIFS) planning intrinsic to the public trust concept. ment of “sufficient water” for the preserva by 6.0 mgi integral part of the regulatory scheme estab Id. at 19. It also assigned to the In line with the dual nature of the state tion of fish to establish a categorical priority). streams a lisheci by the Code. HRS § l74C—71 (1993) 5.39 mgd “non-permitted ground water buff water resources trust, HRS § 1740—2(c) We do not believe, however, that the-legisla provides at the outset that “[t]he commission er” and 1.58 proposed agricuitural • mandates liberal interpretation in favor of ture intended to adopt the unconditional rule reserve. shall stablish and administer a statewide IcL at 33. maximum beneficial use, but also demarids proposed by WWCA. Viewing the Code in its instrm use protection program.” In fur adequate provision for traditional and cus entirety, see, e.g., HRS § 174C—71(1)(E), DOA/DLNR, the City, and KSBE raise thera4ce of this mandate, the Code states tomary Hawaiian rights, wildlife, mainte (2)(D) (1993) (requiring balancing between several procedural challenges to the Commis that he Commission “shall,” inter alia,’ sion’s nance of ecological balance and scenic beau instream and offstream purposes), we read amendment of the WIIFS. They also “[e]stablish instream flow standards on a allege that the ty, and the preservation and enhancement of HRS § 174C—2(c) to describe a statutory ‘ Commission erred by amend streanl-by-stream basis whenever necessary ing the to the waters for various uses in the public public trust essentially identical to the prey WIIFS absent sufficient evidence of protect the public interest in the waters of the exact interest. ously outlined dual mandate of protection quantity of water require for in- the state,” HRS § 174C—7l(1); “[e]stablish and “conservation”-minded use, under which stream uses. WWCA and HTF arçue that interim instream flow standards,” HRS [58] DOAJDLNR asserts that the provi resource “protection,” “maintenance,” and the Commission wrongfully allocated water I 1740—71(2); and “[ejstablish an instream sion promoting “maximum beneficial use” in for offstream “preservation and enhancement” receive spe use before determining the flow program to protect, enhance, and rees HRS § 174C—2(c) expresses a preference for quantity actually cial consideration or scrutiny, but not a cate needed for the streams; in tablish, where practicable, beneficial in- “consumptive uses such as agriculture” over particular, they gorical priority. contest the designation of the stream uses of water,” HRS § 174C—71(4); instream uses. On the contrary, this provi buffer flows. We first review the general see also HRS § 174C—5(3) (1993) (same); sion does not dictate maximum consumptive design and operation of the Code’s D. INSTREAMFLOWSTANDARDS instream HRS § 174C—31()(1) (Supp,1999) (requiring use, but instead requires, maximum benefi 48. The Code defines “instream cial use for the range of purposes described, In its decision, the Commission acknowl flow standard” 361, 367 n. 5, 973 P.2d 736, 742 n. 5 (1999) as: “a quantity or flow of water or depth of (citation and internal the condition that “adequate provision edged the “positive effect” of the partial res quotation marks omitted). with water which is required to be present at a specif We must also interpret statutes in accordance shall be made” for various protective pur ‘toration of Waiahole and Waianu streams. ic location in a stream system at certain specified with any relevant constitutional requirements. times the poses. See A Mode] Water Code §1.02(3) FOFs at 17—18. In the Commission’s view, of year to protect fishery, wildlife, See id. at 367—68 n. 5, 973 P.2d at 742—43 n, 5. recreational, aesthetic, higher the volume of instream scenic, and other benefi Construing HRS § l74C—71(1) in light of the commentary at 85 (Frank E. Maloney et “generally, the cial instream uses.” HRS § 174C—3. An “inter general mandate and purpose of the Code’s in al.1972) [hereinafter Model Water Code].45 flow and closer the streamfiow approaches its im instream flow standard” is “a temporary in stream use protection provisions and the public the stream flow standard of WWCA argues the opposite of DOAJDLNR’s natural pre-diversion levels, the greater immediate applicability, trust, we believe that it affords the Commission adopted by the commission without view, namely, that HRS 174C—2(c)’s “ade support for biological processes in the stream the necessity limited discretion in determining whether per § of a public hearing, and terminating upon the manent standards are required, If, quate provision” mandate grants an absolute and its ecosystem.” COLs at 32. Thus, “in establishment of an instream for example, flow standard.” Id. a stream offers minimal priority to resource protection. At first general, it is expected that additional flows to actual or potential in, In this opinion, we follow the parties’ practice stream values, or faces little foreseeable increase the native biota offs blush, this provision appears more protective the streams would of referring to instream flow standardsof more tream demand, the Commission may choose not than the constitution. See Douglas W. Mac- knbitat.”t FOFs at 17. than “interim” applicability as “permanent” to establish permanent standards. The Commis standards. Unless otherwise indicated we use sion. has no such discretion, however, in situa 45. The commentary to sectinn 1.02(3) of the proposed uses that would have the effect of the, term “instream flow standards” bhadly to tions involving substantial conflict between in Mode) Water Code, which, apart from the addi polluting a stream or aquifer, or that would encompass both “interim” and “peInanent” stream and offstream interests either presently or excessive tion of Hawaiian rights, HRS § )74C—2(c) tracks damage the resource through pump standards. in the foreseeable future. Cf HRS § 174C—41(a) verbatim, explains: ing or diversion, should not be permitted, no (requiring water management area 49. The designation a matter how useful the application of that water permanent standard provisions further “when it Subsection (3) sets out list of water uses can be reasonably determined ... that enterprise.... This would state that “[t]he commission, ownnotion, which are declared to be beneficial. A second might be to a given on its the water resources in an area may be threat a matter of law, no further bal may determine that the public class of water uses is declared to be in the mean that, as interesi in the ened by, existing or proposed withdrawals or ancing occurs at that extreme level of harm. waters of the State requires the public interest. These.uses receive special pro establisltment of diversions of water”); Concerned Citizens of PuE Id. (emphasis added). an instream flow standard for streams.’ tection under the Model Water Code. There is an HRS isam County for Responsive Gov’t v. St. § 174C—7l(l)(A) (emphasis added). John’s affirmative This sug. River Water Management Dist., 622 So.2d 47. The Commission also ‘found: “Even small gests that the directive to establish 520, permanent 523 ‘(Fla.Ct.App.l993) (reading the should be viewed as beneficial to standards may be nonmandatory. minimum flow increases flow statute as mandatory). the native biota because those incremental im “[I]n determining whether a statute is manda In this case, the Commission provements could not only become substantial decided to post tory or directory, we may determine the inten. pone the establishment of with time but we could also improve our know) permanent standards tion of the legislature from a consideration of the pending more conclusive edge base during the entire period, if appropriate scientific studies, but entire act, its nature, its object, and the conse still clearly proceeded simultaneous studies were undertaken.” FOF from the premise that quences that would result fromconstruing it one such standards were 174. necessary. We agree with way or the other.” State v. Medeiros, 89 Hawai’i this underlying appraisal. IN RE WATER USE PERMIT APPLICATIONS 149 HAWAI’I REPORTS 148 94 Cite M 94 HawaIi 97 (2000) preserves the integrity of the Commission’s public interest in instreaxn flows. Here, the part IV of this chapter in such a the Commission to establish, within each hy under comprehensive planning function. If the close of sugar operations in Central O’ahu as to protect •instream flows and drologic unit, “[am instream use and protec manner Commission decides instream flow standards has provided the Commission a unique and yields ..,“ HRS § 174C—31(j) tion program for the surface watereourses in. sustainable and, permit applications at the same time, valuable opportunity to restore previously di These provisions confirm what the area”). Under the Code, therefore, in- (Supp.1999). private interests in offstream use will have verted streams while rethinking the future of Commission recognized in its decision, stream flow standards serve as the primary the already become “highly particularized,” risk O’ahu’s water uses. The Commission should Code contemplates the instream mechanism by which the Commission is to that the ing an ad hoe planning process driven by thus take the initiative in planning for the as the “surface water corol discharge its duty to protect and promote the flow standard immediate demands. See MacDougal, supra, apprQpr ate instream flows before demand the ground water ‘sustainable entire range of public trust purposes depen lary to at 66 & n. 302 (citing United States v. State for n4w uses heightens the temptation simply ° COL5 at 32. Both instream flow dent upon instream flows. yield.’” Water Resources Control BL, 182 Cal. to acept renewed diversions as a foregone standards and sustainable yields perform the Commission App.3d 82, 227 Cal.Rptr. 161, 180 (1986)). concl,sion. t62] In its decision, the same function of guiding water planning and offstream uses under Finally, initial designation of instream flow weighed instream and regulation by prescribing responsible [64 Furthermore, we agree with the “competing applica standards relieves the Commission, as well the provision addressing limits to the development and use of public Comrhission that existing uses are not auto permits, HRS § 174C—54 as existing and potential offstream users, of tions” for water use water resources. Cf The Regulated Ripari maticlly “grandfathered” under the consti note 13. The Commission the complexity and uncertainty presbnted by ‘1993), see supra an Model Water Code § 3R—2--01 & com tution and the Code, especially in relation to instream flow values the unsettled question of instream flow re oncluded that, “[wihere mentary at 82 (Joseph W. Dellapenna phblic trust uses.52 As stated above, the and offstream agricultural quirements. See hi 58—59, 66. ibnce the to may be protected ed.1997) (mandating the establishment of public trust authorizes the Commission are accommodat Commission translates-the public iqterest in uses maintained, bOth ‘uses’ minimum flows and levels in a consolidated reassess previous diversions and .allocations, promoted by [HRS instream flows, into “a certain and managea ed in the manner section “central to achieving the goal. of sus even those made with due regard to. their at 29. This analysis ble quantity[, t)he reference to consistency § 174C—541.” COLs tamable development and protecting the effect on trust purposes. Consistently with water with. the public inereat in the definition of misconstrues the Code’s framework for in the waters of the State”). this principle, the Code calls for “an instream public interest reasonable use likewise becomes, a resource management. Petitions for interim beneficial flow program to protect enhance, and. rees The Commission, obviously, cannot “imple reference to Id. at instream flow standard amendments are not that quantity.” 62. The tablish, where practicable, beneficial in- ment” or “protect” standards that do not tentative grant of water use permits without among the water use permit applications stream uses of water.” HRS § 174C—5(3), — In order for the “instream use protec “competing” under HRS § 174C—54. The exist. any determination of instream flow stan 71(4) (emphasis added). The Code’s in- framework to fulfill its stated purpose, relating to instream use protection, I tion” dards, conversely, presents the least desir stream flow standard provisions also man statute Commission must designate therefore, the able scenario: , no assurance that public HRS chapter 174C, part VI, or HRS date: instream flow standards as early as possible, adequate 174C—71, operates independently of the rights are receiving provision, no In order to avoid or minimize the impact § the process of comprehensive plan procedures for water use regulation outlined during genuine comprehensive planning process, on existing uses of preserving, enhancing, ning, and particularly before it authorizes no modicum of certainty for permit ap in HRS chapter 174C, part 1V (1993 & Supp. and or restoring instream values, the commis offstream diversions potentially detrimental plicants and grantees. Cf Concerned Citi 1999). sion shall consider physical solutions, in to public instream uses and values. See zens of Putnam County for Responsive Gov’t last paragraph of HRS § 174C—71 cluding water exchanges, modifications of The Conf. Comm. Rep. No. 119, in 1987 House v. St. John’s River Water Management Dist., commission shall imple project operations, changes in points of provides that “[tihe at 1069; Conf. Comm. Rep. No. 118, when dis Journal, 622 So.2d 520, 523 (Fla.Ct.App.1993) (“[lit is diversion, changes in time and rate of di ment its instream flow standards Journal, at 886 (“To the full in 1987 Senate difficult ... to imagine how the water supply of water from state watersheds, in the version, uses of water from alternative posing st extent possible, it is the intent of can be managed without the establisiment of that removed by wells or tunnels sources, or any other solution.. cluding Legislature that interim instream flow stan minimums.”). may affect stream flow...” HRS § 174C—71(1)(E) (emphases added). where they iards be established prior to either new or comprehensive planning provi [631 We recognize, as several leeward The clear implication of ‘these provisions is The Code’s xpanded diversions of water from a chapter 174C, part III (1993 & parties point out, that this case lgely in that the Commission may reclaim instream sions, HRS stieam.”); IvlacDougal, supra, at 60—6 Supp.1999) (“Hawai’i Water Plan”), require volves “existing” diversions predating the values to the inevitable displacement of exist Early designation of instream flow stan the Commission to complete its “water re Code. But this does not relieve theDommis ing offstream uses. Cf Comm. Whole Rep. furthers several important objectives. source protection and quality plan” before dards sion of its duty to consider and su4port the No. 18, in 1 Proceedings, at 1026 (“[TJhe CommissiOn’s duty of of the “water use and develop First, it fulfills the the adoption en 52. The Commisiion explained: to modification to satisfy superior claims (e.g., see HRS protection under constitution and statute, ment plans” by each county, Existing uses which are subject of a water unexercised appurtenant rights). that suring that instream uses do not suffer inad § 174C—31(d) (Supp.1999), and mandate use permit application must meet the Water COL5 at 27—28. See also Advisory Study Com and needless impairment.51 It also “[t]he commission shall condition permits vertent Code requirements and be subject to permit mission on Water Resources, Report to the Thir conditions as any permit holder. While as a teenth Hawaii Legislature 11(1985) (“ ‘Grandfa [through a1option of the previous defines ‘sustainable yield’ as ‘the the Status quo practical matter, most existing uses meet the thering’ all present riparian and correlative uses 50. The Code helped to prevent any future rate at which water may be with interim standards] law’s requirements, prior uses are not auto would have thwarted the conservation and effi maximum while the scientific basis for a water source without impairing harm to streams. matically granted a water use permit (so called ciency goals of the proposed code.”). We agree drawn from instream flow standards utility or quality of the water source as deter determining appropriate ‘grandfathering”) That could be inconsis with the Commission and add that public in- the overall stream protection mined by the commission.” HRS § 174C—3. is developed and an tent with constitutional requirements and the stream uses are among the “superior claims” to program put into place.” COLs at 17. burden of proof established in the Water Code. which, upon consideration of all relevant factors, purpose 51. The Commission recognized this In the future some existing uses may be subject existing uses may have to yield. when it noted that, “[a]t a minimum, retaining 94 HAWAI’I REPORTS 150 IN RE WATER USE PERMIT APPLICATIONS 151 Cite e 94 Hawd’I 97 (2000) flexibility to regulate manent” standards pursuant to HRS’ DLNR agency should have the relies on passing references to “modi Code allows the amendment of interim in- existing as well as future water usage of § 174C—71(1). fication” appearing in the instream flow stan stream flow standards. dard provisions, Hawaii’s water resources “). HRS § 174C—71(2) states in relevant part: see HRS § 174C—71(1)(D), (F), but not in the interim standard provi [69] DOA/DLNR also argues that the [65, 66] The constitution and Code, there (A) Any person with the proper standing “protecting,” sions. In certain situations, such reasoning Commission must establish interim standards fore, do not differentiate among may petition the commission to adopt an may control, based on the rule of coñstruc through rulemaking procedures under “enhancing,” and “restoring” public instream interim instream flow standard for streams undoing tion that “[w)here [the legislature] includes HAPA, see HRS § 91—3 (Supp.1999). The values, or between preventing and in order to protect the public interest particular language in one section of a stat Code provides to the contrary, defining such “harm” thereto. To be sure, in providing for pending the establishment of a permanent must duly ute but omits it in another section of the standards as “temporary instream flow stan instream uses, the Commission instream flow standard.; same Act, dard[sJ ... adopted consider the significant public interest in con it is generally presumed that [the by the commission with- Any interim instream flow standard legislature] out necessity tinuing reasonable and beneficial existing (B) acts intentionally and purposely thi of a public hearing.” HRS adopted under this section shall terminate in the disparate 174(-.3 offstream uses. See HRS § 174C—71U)(E), inclusion or exclusion,” Go § (emphasis added). Indeed, the upon the establishment of a permanent zlon—Peretz v. United States, Code goes not even (2)(D); Debates, in 2 Proceedings, at 870 498 U.s. 395, require rulemaking for instream flow standard for the stream on 404, 111 the (statement by Delegate Waihee) (explaining S.Ct. 840, 112 L.Ed.2d 919 (1991) establishment of permanent standards; which the interim standards were (quoting Russello HRS that the language in article XI, section 7 v. United States, 464 U.S. 174C—71(1)(F) merely states that, 16, 23, 104 S.Ct. 296, 78 requiring the legislature to “assur[e] appur adopted. L.Ed.2d 17 (1983)). “[blefore adoption of an instream flow stan In this case, however, the argument dard ol- modification tenant rights and existing riparian and cor (Emphases added.) HRS § 174C—3 (1993 & bears of an established in little weight. First, the legislature stram relative uses” enunciates a policy of protect Supp.1999) defines “interim instream flow m.ndated flow standard, the commission shall the adoption of the original interim ing existing uses of among others, “the small standard” as “a temporary instream flow standards gWe notice and hold a hearing on its pro in the same act in which taro farmer as well as the agricultural standard of immediate applicability, adopted it established the posed standard or modification,” see also Code, see supra note 53. If the legislature users”). By the same token, the Commis by the commission without the necessity of a HRS § 174C—71(1)(D) (specifying the notice intended to preclude the amendment sion’s duty to establish proper instream flow public hearing, and terminating upon the of these requirements). standards, then it would not have included standards continues notwithstanding existing establishment of an instreccm fl.ow stan The rule adopted by the Commission in the provisions for the adoption of interim diversions. dard.” (Emphases added.) 1992 includes the following relevant standards in the Code. More importantly, caveats: Because these provisions contemplate in HRS 174C-41(2)(A) (1) Based upon additional information or a 2. Procedural Objections to the WIIFS § calls for “petitions to terim standards as a stopgap solution preced adopt compelling public need, a person may peti Amendment an interim instream flow standard for ing the establishment of permanent stan streams in order to protect the public inter lion the commission on water resource “firm knowledge [67] Having found that dards, DOA”DLNR argues that allowing the est.” (Emphasis added.) Notwithstanding management to amend the standard to al upon which to reach some about streams Commission to amend interim standards their temporary effect, therefore, interim low future diversion, restoration, or other solution .... will require consid permanent would render the permanent standard provi standards must still provide meaningful pro utilization of any streamflów. erably. work and is years away,” the more sions “meaningless.” We agree. that the tection of instream uses.55 In light of the (2) The commission rd.serves its authority announced its intention, begin Commission Code envisions the establishment of bona fide foregoing language and the general design of to modify the standard or new establish this case, “to amend ‘interim’ in- ning with “permanent” instream flow standards as an the Code, we see no sound basis for prevent standards [sic], including area-wide or standards periodically until per stream flow ultimate objective in its mandated “instream ing the Commission from amending interim stream-by-stream standards, based on sup adopted.” COLs at manent standards can be use protection, program,” HRS § 174C— standards to provide further protection plemental or additional information. 16. The Commission previously adopted in 71(4), —5(3). We also share DOA/DLNR’s where, according to the Commission, tse evi H.AR § 13—169—49.1. These provisions make terim standards for windward streams when, cohcern that interim standard amendments dence generally demonstrates the need for no reference to rulemaking; such a require effective May 4, 1992, it promulgated a rule my serve as a convenient means of circum increased flows, but nonetheless falls s{lort of ment would, in fact, render the rule a su designating the WIIFS as the amount of viting this objective repeatedly and indefi the desired showing for establishing perma-. perfluous repetition of HRS § 91—3, which water flowing in each stream at that time, see nitely. DOA,IDLNR, however, misdirects its nent standards. . already allows amendment of rules by rule HAR § 13—169--49.1. As the Commission objection to the mere procedure of amending Interim standards must respond to mterim making. During the hearing, the Commis admitted in its present decision, the 1992 as the source of any such interim standards circumstances. DOAJDLNR objects to the sion issued “Order standards did nothing more than ratify the No. 16,” wherein it con problem. amendment of the interim standard&ased cluded that the foregoing major diversions already existing. provisions allowed on less than conclusive evidence, but nsists the modification instream IJOA/DLNR, however, asserts that the Com [68] Az the textual basis for its argument of flow standards on keeping the 1992 standards, which lack without amendment mission lacks the authority to alter the 1992 that the Code limits the Commission to only of the underlying rule. any evidentiary basis. This proposition Considering the ambiguity standards pending the establishment of “per- one interim standard per stream, DOlt! of the rule and strains the overall purpose of the Code as the deference owed to agency readings of 53. In the same act in which it promulgated the 54. The Commission explained that it “established well as the limits of reason. We thus affirm their own regulations, see, e.g., Maita’ulepu the legislature mandated the adoption of the [l992]’interim flow on the basis of existing Code, the Commission’s determination that the v. Land Use Comm’n, 71 Haw. 332, 339, 790 state-wide interim inatream flow standards, be water diversion structures .. . rather than on the Windward O’ahu. See Raw. Sess. L. basis of the biological or ecological value of any 55. The Commission ginning with acknowledged as much, stat sion’s duty to protect instream uses.” COL5 at Act 45, § 4 at 101. given stream flow level.” COLa at 17. ing that “[tlhe fact that the interim standard is 15. adopted more quickly does not alter the Commis IN RE WAER USE PERMIT APPLICATIONS 94 HAWAI’I REPORTS 153 152 Cite as 94 Hawaii 97 (2000) in HRS §1 174C—71(2)(E),——50(d), Commission’s analysis. The Commission, information required by the commission.” F.2d 906, 910 (1990), we cannot say that the time limit “until such time as the commission first, considered the petitions to amend the The statute, however, does not assign any Commission erred in its interpretation. and —53(c) is able to act on the merits of the applications WIIFS and the water use permit applications burden of proof, and we do not believe that that, while one of the We also observe and petitions.” The City maintains .that the together in the same hearing. Regarding the ultimate burden of justifying interim its “generality of hallmarks of rulemaking is Code does not authorize such extensions. the windward stream and estuary ecosystem, standards falls on the petitioner. Apart from Elec. Co., 81 effect,” see In re Hawaiian We first note that, although the foregoing the Commission acknowledged the generally the adversarial process initiated by WWCA’s Hawai’i 459, 466, 918 P.2d 561, 568 (1996), deadline provisions are phrased in the man beneficial effect of increased instream flows, petitiqn, the Commission has an affirmative the instream the decisions at hand concerned datory, they provide no indication of the con but concluded that “a more definitive deter duty under the public trust to protect and streams. In Or may just flow standards of particular sequences of noncompliance. One mination of the [WHFSJ depends on the promdte instream trust uses. In áècordance Commission explained: legislature intend der No. 16, the as easily surmise that the collection of additional information and sub with is duty, the Commission must estab flows at of the statutory time period instream values and A petition to modify instream ed the expiration sequent weighing of lish p4rmanent instream flow standards of its approval, rather H specific locations is a fact-intensive, indi to operate as an automatic offstream uses. .. .“ COLs at 31. Having See, own 2cord “whenever necessary to protect vidualized determination at each site that than denial, of the pending application. conceded the lack of a firm scientific basis for . the (repealed 1994) the public interest in the waters of may directly affect downstream and offs e.g., HRS § 183—41 (1993) its disposition, the Commission then allocated applicant’s proposed Stkte2’ HRS § l74C—71(1); see also .supra tream interests.... [I]ndividual claims (automatically granting a quantity of water to windward streams that district land at expiration nte 49. HRS § 174C—71(4) requires the may need to be examined. The site-spe use of.conservation it deemed “practicable” in light of inimediate statutory period); HRS § 91— Commission to “[e]stablish an instream flow cific inquiry required in this case is not of 180—day and near-term offstream demands. IcL at 19. (requiring agencies to act program to protect, enhance, and reestablish, compatible with rule making, but with a 13.5(c) (Supp.1999) At the same time, however, it granted permit application for a “business or develop where practicable, beneficial instream uses of method which provides the due process on an applications for offstream uses based on a permit, license or approval” water” and to “conduct investigations and necessary to assess individual ment-related “prima facie” standard and the bare conclu procedures provided, “or the appli within the time limit sion that “there is adequate water to meet collect instream flow data including fishing, interests. deemed approved”). cation shall be the immediate water use needs as set forth in wildlife, aesthetic, recreational, water quality, We agree with the Commission’s assessment In any event, the City fails to point to any the & IcL at 23—25. Close review of and ecological information and basic stream and, thus, reject the contention that the [D 0].” objection in the record to the Commission’s the Commission’s reasoning, therefore, re flow characteristics necessary for determin Commission improperly amended the WIIFS of Ap extension of time. See Hawai’i Rules veals the nature of its decisionmaking pro ing instream flow requirements.” The Code via adjudication instead of rulemaking. Rule 28(b)(4) ‘pellate Procedure (HRAP) cess: without any proper findings as to the pkinning provisions mandate the Commission yet another proce of error to include [70] The City raises (2000) (requiring the point actual requirements for instream purposes, to “study and inventory the existing water that the Commission the appellant objected to dural objection, arguing where in the record or the reasonableness of offstream diversions resources of the State and the means and petitions to amend The City suggests no improperly granted the the alleged error). relative to these requirements, the Commis methods of conserving and augmenting such expiration of the statu why we should depart from the gener the WIIFS after the reason sion effectively assigned to windward water resources,” HRS § 174C—31(c)(l) action on such petitions. al rule that issues not properly raised shall tory time limit for streams the water remaining after it had (Supp.1999), in formulating a “water re provides: be deemed waived. See Hill v. Inouye, 90 HRS § 174C—71(2)(E) approved the bulk of the offstream use per protection and quality plan,” which 82, 976 P.2d 390, 396 (1998). sources The commission shall grant or reject a Hawai’i 76, it does not appear that the mit requests. must include, among other information, “re petition to adopt an interim instream flow Furthermore, objected to the Commission’s prior deci The City argues that WWCA failed quirements for beneficial instream uses and standard under this section within one eity [71] ion to consolidate the proceedings for the to meet its burden of proving the actual environmental protection,” HRS § 174C— hundred eighty days of the date the peti petitions to amend the WIIFS and the water amount required for instream used. HRS 31(d)(2).57 The Code also obligates the Com tion is filed. The one hundred eighty days ise permit applications, which should have 174C—71(2)(C) requires that petitions to mission to ensure that it does not “abridge or may be extended a maximum of one hun § placed all parties on notice that the respec adopt interim standards “set forth Iata and deny” traditional and customary rights of dred eighty days at the request of the be met. Live time limits probably would not information concerning the need t protect Native Hawaiians. See HRS § 174C—101(c) petitioner and subject to the approval of numerous par The Commission granted the and conserve beneficial instream uses of wa (1993); see also HRS § 174C—63 (1993) (pre the commission.... considerable ties it admitted in the hearing ter and any other relevant and r7sonable serving appurtenant rights). Although it escapes the City’s attention, the latitude in presenting evidence and argu Code also imposes a deadline on decisions ment. The City showed little concern for 56. The Commission summarized the “nethodol as well as the economic impact of. restricting ogy” of establishing instream flow standards un such uses. Fourth and finally, the Commission regarding water use permit applications. time constraints in fully availing itself of this der HRS § 174C—71 as follows: must weigh and decide what water, if any, may 174C—50(d) (Supp.1999), relating to For these reasons, we hold HRS § opportunity. Commission must investigate the be removed from its source and effectively 174C—53(c) objections to the First, the “existing uses,” and HRS § that the City waived its ecology of the stream including the stream diverted from windward streams for offstream (1993), relating to “new uses,” identically re Commission’s decision to extend the statuto flows. Second, with this information, the use both within the watershed and, as sought here, outside the watershed. quire action on an application “within ninety ry deadlines in the instant proceeding. Commission determines how different water flows affect different levels of protection (in COLs at 13. calendar days of an application not requiring Objections to Instream Al cluding partial restoration, if needed) that a hearing, or within hundred eighty calendar 3. Substantive should be afforded the streams at issue by 57. The Commission was required to have days of an application requiring a hearing.” locations evaluating the water flows needed for instream adopted the entire Hawaii water plan “not later than three years from July 1, 1987.” HRS In reviewing the Commission’s designation values. Third, the Commission must deter On July 13, 1995, the Commission issued mine the present and potential offstream uses, § 174C—32(c) (1993). it is instructive to distill the Order No. 5, which extended the 180-day of the WIIFS, 154 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 155 Cite as 94 Hawaii 97 (2000) [721 The Commission made numerous ‘,Vhere scientific evidence is preliminary statute to permit use of carcinogenic foOd Commission’s amendment of the WIIFS for findings regarding the current lack of scienti and not yet conclusive regarding the man additives, regardless of degree of risk), cert. hack of a concrete evidentiary basis. Uncer fic knowledge and the inability of the experts agement of fresh water resources which deniec4 5Q7 U.S. 950, 113 S.Ct. 1361, 122 tainty regarding the exact level of protection to quantify the correlation between stream are part of the public trust, it is prudent to L.Ed.2d 740 (1993); see generally Gregory necessary justifies neither the least protec flows and environmental benefits. We de adopt “precautionary principles” in pro D. Fullem, Comment, The Precautionary tion feasible nor the absence of protection. chine to substitute our judgment for the Com tecting the resource. That is, where there Principle: Environmental Protection in the As stated above, although interim standards Face of Scientific Uncertainty, mission’s concerning its ultimate ruling that are present or potential threats of serious 31 Wilamette are merely stopgap measures, they must still L.Rev. 495 (1995). As with any general prin there was insufficient evidence to support a damage, lack of full scientific certainty protect instream values to the extent practi ciple, its meaning must vary according to the more conclusive assessment of instream flow should not be a basis for postponing effec cable. Here, the Commission determined 6.0 situation and can only develop over time. In requfrements. Such a mixed determination tive measures to prevent environmental mg to be available for instream purposes, this case, we believe the Commission de of law and fact lies within the Commission’s degradation. “Awaiting for certainty will eves as it made substantial allocations for scribes the principle in its quintessential designated expertise and sound discretion, often allow for only reactive, not preven preent and near-term offstreani use and form: at minimum, the absence of finn scien and the evidence in this case does not dem tive, regulatory action,” Ethyl Corp. v. proosed to reserve more for future offs clearly See tific proof should not tie the Commission’s onstrate it to be erroneous. EPA, 541 F.2d 1, 25, 5—29 (D.C.Cir.), cert trem agricultural uses, all under a “prima Ko’olau Agricultural, 83 Hawai’i at 493, 927 hands in adopting reasonable measures de denied 426 U.S. 941 [96 S.Ct. 2663, 49 facifr’ standard, and set aside even more as a P.2d at 1376 (according deference to the signed to further the public interest. L.Ed.2d 394] (1976). In addition, where ?buffer” for unspecified future offstream Commission’s expertise in the designation of So defined, the precautionar principle uncertainty exists, a trustee’s duty to pro uses: We do not consider the Commission’s water management areas); Camaro, 67 Haw. simply restates the Commission’s duties un tect the resource mitigates in favor of decision to add the remaining 6.0 mgd to the at 216, 685 P.2d at 797 (“[I]n deference to the der the constitution and Code. Indeed, the choosing presumptions that also protect WIIFS overly protective. Quite the oppo administrative agency’s expertise and experi lack of full scientific certainty does not extin the resource. Lead Indus. Asstn a EPA, site, it appears to provide chose to the least ence in its particular field, the courts should guish the presumption in favor of public trust 647 F.2d 1130, 1152—56 (D.C.Cir.1976 amount of instream use protection practica not substitute their own judgment for that of purposes or vitiate the Commission’s affirma [1980]), cert. dev.ied 449 U.S. 1042 ble under the circumstances. the administrative agency where mixed ques (1980). tive duty to protect such purposes wherever tions of fact and law are presented.”). feasible. Nor does inability COLa at 33 (emphasis added). The “precau present to fulfill [751 For similar reasons, we disagree the instreana use protection framework ren [731 We must emphasize, however, that tionary principle” appears in diverse forms with the Commission’s designation of 5.39 der the statute’s directives less the Commission’s present disposition largely throughout the field of environmental law. any mandato mgd otherwise available for instream pur ry. In requiring the Commission to establish defeats the purpose of the instream use pro- See, e.g., Ethyl Corp., 5.41 F.2d at 20—29; poses as a “nonpermitted ground water buff instream flow standardsat an early planning tection scheme set forth in HRS § 174C—71. Lead Industries, 647 F.2d at 1154—55 (rely br” that the Commis9ion could use to satisfy stage, the COde contemplates the designation Every concession to immediate offstream de ing on the statutory “margin of safety” re future permit applications without amending of the standards based not only on scient mands made by the Commission increases quirement in rejecting argument that agency the WIIFS. Nothing in the Code authorizes tically proven facts, but also on future predic the risk of unwarranted impairment of in- could only authorize standards designed to such a measure. More fundamentally, the tions, generalized assumptions, and policy stream values, ad hoc planning, and arbitrary protect “clearly harmful health effects”); Les notion of a buffer freely available for uniden judgments.6° Neither the constitution nor distribution. A number of parties object to v. Reilly, 968 F2d 985 (9th Cir.1992) (con tified offstream uses, while instream flow Code, therefore, constrains the Commission the Commission’s conclusion that: firming that agency has no discretion under standards still await proper designation, of to wait for full scientific certainty in fulfilling fends the public trust and the spirit of the 58. As the Commission explained: the special judicial interest in favor of protec its duty towards the public interest in mini and instream use protection scheme. We have The Instream Flow Standard (“IFS”) re tion of the health welfare of people, even in mum instream flows. quires a more rigorous investigation and con areas where certainty does not exist. rejected the idea of public streams serving as sultation process than the Interim Instream Questions involving the environment are [741 In this case, a proper understanding convenient reservoirs for offstream private Flow Standard (“IIFS”) in part because a particularly prone to uncertainty.... Yet the permanent’ IFS implies that after a compre statutes—and common sense—demand regula of the Commission’s mandate rveals the use. See Robinson, 65 Flaw, at 676, 658 P.2d hensive study, the conclusion is more certain tory action to prevent harm, even if the regu faulty logic of the arguments chalnging the at 311 (maintaining that private parties do and there will be less reason to revisit the lator is less than certain that harm is otherwise situation absent compelling changes. inevitable. 60. At this early planning stage, the Lmmission the Commission to designate water management need COLa at 15. Undoubtedly, certainty is the scientific ide. only reasonably estimate instream and offs areas “[w]hen it can be reasonably determined, tream demands. See MacDougal, sua, al—to the extent that even science can be cer at 66 n. after conducting scientific investigations and re 59. In the lodestar opinion of Ethyl Corp., the 300 (citing State Water Resources Co4lrol Board, United States Court Appeals tain its truth.... Awaiting certainty[, how search, that water resources in an area may be of for the D.C. Cir of 227 Cal.Rptr. at 180); see also MdeI Water cuit upheld the Environmental Protection Agen ever,] will often allow for only reactive, not threatened” (emphasis added)). The Commis Code, supra, § 107(5) (requiring the skate agency sion’s own regulations, for example, allows cy’s authority under the Clean Air Act, 42 United preventative, regulation. Petitioners suggest to calculate instream flows the “using best infor DLNR, in assessing instream uses, to “employ States Code (U.S.C.) § 740 1—7626, to regulate in that anything less than certainty, that any spec mation available”); Joseph W. Dellapenna, Regu the face of scientific uncertainty. See id. at various methods to determine the significance of 20— ulation, is irresponsible. But when statutes lated Riparianism, in I Water Rights § 905(b). at 29. Judge 3. Skelly Wright’s majority opinion to avoid environmental catastrophe, can each use and its associated stream water require. seek 534 (“The minimum flow process, ... like plan includes an extensive policy discussion that, ments. Instream uste may be quantitatively or preventative, albeit uncertain, decisions legiti ning generally ..., is to take place more in the qualitatively while specifically addressing human health con mately be so labeled? abstract and will establish a benchmark on the rated, recognizing that instream uses cern,, is also illuminating in relation to the pub Id. at 24—25 (citation and footnote omitted) (em basis of which competing users may rely on factors other than streamfiow to lic interest in instream flows: phases added). maintain their overall value.” liAR § 13—169— Regulators such as the [Commission] must be 33(b) (1988) (emphasis added). accorded flexibility, a flexibility that recognizes 94 HAWAJ’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 157 156 Cite as 94 Hawaii 97 (2000) as trustee, and in standard all streams in a speci not have the unfettered right “to drain rivers Thus, pursuant to its duties terim standard should, at least for the time applicable-to Commission much of the total fied area.” HRS 174C-71(2)(F). In this dry for whatever purposes they s[ee] fit”). the interest of precaution, the being, incorporate pres § “mar- the amended the WIIFS Nonetheless, the buffer achieves that very should consider providing reasonable ent instream flows: 1) lack of proper case, the Commission purposes on the stifi identified which result, insofar as it reverses the constitution gins of safety” -for insti-eam trust studies and adequate information on a general basis, but 2) inability of receive the increased base al and statutory burden of proof and estab when establishing instream flow standards. streams; the corresponding streams would not con Commission presently to fulfill the in- with its findings, the lishes a working presumption against public The Commission, however, should the flows. In accordance at use protection framework;. the same.with respect instream uses. cern itself with allocations to a “buffer” stream 3) Commission should do the the outset. Rather, the Commission should substantial, largely uncontroverted expert to tle new minimum flows established on The Commission portrayed the buffer as incorporate any allowances for scientific un testimony that the present instream flows rema1nd and any flows in. excess of this mini “one aspect of the precautionary principle. certainty into its initial determination of the represent the minimum necessary to sus mun including the proposed agricultural re A buffer allows for margins of error in the minimum standard. Any flows in excess of tain an adequate stream habitat; 4) the serv estimates and for the delay in recognizing this standard shall remain in the stream until Commission’s finding that, “in general, it is and measuring changes.” COLs at 33. On permitted and actually needed for offstream expected that additional flows to the 4. Interim Standardfor Waikane Stream the contrary, we do not believe that a “buff native biota use, in keeping with the policy against waste streams would increase the er,” as a formal and distinct category of the Commissions gener [77] WWCA petitioned the Commission and in recognition that the standard merely habitat”; and 5) )allocation, would fulfill a truly protective or for immediate and qear-term amend the interim standard for particular states an absolute minimum required under ous provision precautionary purpose. As stated above, demands under a “prima facie” windward streams. Waikane Stream was any circumstances. -These unallocated flows, offstream where the Commission has yet to designate Commission’s assignment of among the streams identified i the petition. however, will not constitute a distinct catego standard. The proper instream flow standards, a buffer the buffer flows to the windward streams, The Commission nonetheless only amended ry or quantity, bul will fluctuat according to stands the constitution and Code on their to determi the base flows of Waiãhole and Waianu supply and demand. on its face, seems to amount a allowing diversions of instream flows variations in heads, nation that it • “practicable” to “protect, Streams. before the completion of the requisite proce Based on the foregoing, we vacate the uses by enhance, and reestablish” instream WWCA presented evidence of the need for dure and analysis for instream use protec Commission’s designation of the WIIFS If that quantity, at least for the interim. increased flows in Waikane Stream, none of tion. Even where the Commission sets out and “nonpermitted groundwater buffer” so, this would generally meet the definition which the parties dispute.6’ The Commis in earnest to determine the appropriate in- and remand for further proceedings consis standards under and purpose of “interim” sion, however, does not mention Waikane stream flow standards, we think that a for tent with this opinion. In order to effectu the final analysis of the Code. We leave Stream at all in its allocation of instream mal “buffer” category serves less as an in ate the Water Code’s framework for in- factors and of the foregoing determination flows. In its brief ois appeal, the Commis strument of protection than as a distraction stream use protection, the Commission interim standard to the the appropriate sion states -that “the gates avallable for water from the mandated task of establishing mini shall, with utmost haste and purpose, work on remand. Commission restoration cannot now put water in Waikane mum instream flows and an invitation to towards establishing permanent instream [761 Finally, in providing for the release Stream.... Any physical reconstruction of understate this minimum in light of the tem flow standards for windward streams. In of the “buffer” and “proposed agricultural the ditch system should await more in-depth porary. protection provided by the buffer. If the meantime, the Commission shall desig reserve” into windward streains, the Com studies.” Whethervalid or not, this justifica the Commission determines the minimum in- nate an interim standard based on the best mission did not specify how it would appor tion appears nowhere in the Commission’s stream flows first, as contemplated by the information presently available. Cf Cali tion these “supplemental flows” mong the decision. Nothing in the decision indicates Code, it need not designate formal “buffer” fornia Trout, Inc. v. Superior Court, 218 specific streams. Such ambiguity hinders that the Commission considered the practica flows for the sake of precaution. As the al.App.3d 187, 266 Cal.Rptr. 788, 801 progress towards a rational instream use bility of restoring flows to Waikane Stream. Commission recognized, the policy against (ordering the water board to estab (1990) protection program. The Commision found waste dictates that any water above the des lish flow rates based on available data that “[a] more suitable restoratioz of wind [78, 79] “[T]he agency must make its ignated minimum flows and not otherwise while proceeding with more elaborate stud ward streams would involve the prtitioning findings reasonably clear. The parties and needed for use remain in the streams in any We do not bar the Commission, ies). of flow among a number of stream systems the court should not be left to guess, with event.6’ At best, therefore, a buffer is super pending the establishment of permanent such as [Kahana, Waikãne, Waianu, and respect to any material question of fact, or to at worst, it is a violation of the public from setting the interim stan fluous; standards, Waiahole Streams],” FOF 172, an that “[ut any group of minor matters that may have and an end run around the instream lower than the combined total of the trust dard makes a difference how the water distrib cumulative significance, the precise finding of use protection provisions. Since it. serves no “base” and “buffer” flows 62 or previous uted into the streams. Water should be the agency.” In re Kauai Elen Div. of legitimate purpose, we refuse to let it stand. amending the standard subsequently. from more equally distributed.... This is an un Citizens Utilities Co., 60 Haw. 166, 183, 590 Part 1II.E. In this case, however, We find no fault with the general princi See infra natural restoration,” FOF 180. The Code P.2d 524, 537 (1978) (quoting In re Terminal factors suggest to us that the in- ples underlying the Commission’s reasoning. several grants the Commission discretion to adopt Transportation, Inc., 54 Haw. 134, 139, 504 for example, may designate interim standards “on a stream-by-stream P.2d 1214, 1217 (1972)). See also Kilauea 61. We are also unconvinced by the Commissions 62. The Commission, interim standard so as to allow for fluctua Ass’n v. Use Comm’n, 7 that the buffer enables the Commis the basis or ... [as] a general instream flow Neighborhood Land reasoning IIl.F.5. sion to study the effect of flow reductions on the tions in permitted uses. See infra Part streams. The Commission could just as easily 63. Aquatic biologist Marc Hodges, for example, and Henry Roberts, part-Hawaiian farmers resid accomplish this purpose by alternating flows testified that it would probably require a dou ing in WaikSne Valley, testified that the diminish among the streams, instead of diverting flows for bling of the current flow of WaikSne Stream to ed flows are insufficient to support their desired offstream uses. create a good stream habitat. Denise Medeiros levels of taro cultivation. 158 94 HAWAI’I REPORTS IN RE’ WATER UE PERMIT APPLICATIONS 159 Cite as 94 Hawaii 97 (2000) HawApp. 227, 230, 751 P.2d 1031, 1034 possibility of additional diversions. The could drain a stream dry incrementally, or public interest. The Commission may still (1988) (“An agency’s findings must be suffi Commission correctly identified the investi leave a diverted stream dry in perpetuity, act when public benefits and risks are not cient to allow the reviewing court to track gation of the stream ecology and determina without ever determining the appropriate in- capable of exact quantification. At all times, the• steps by which the agency reached its tion of the correlation between flow levels stream flows. Needless to say, we cannot however, the Commission should not hide decision.”); Rife v. Akiba, 81 Hawai’i 84, 87— and instream values as the first steps in the accept such a proposition. behind scientific uncertainty, but should con determining the ‘instream 88, 912 P.2d 581, 584—85 (App.1996) (review “methodology” for The opposite alternative, however, does front it as ‘systematically and judiciously as supra note 56, but admit ing the numerous practical reasons for. re flow standards, see not appear very practicable. WWCA insists possible—considering every offstream use’ in quiring adequate findings and conclusions). ted that the lack of “firm” scientific evidence that the Commission bar the issuance of any view of the cumulative potential harm to these Clarity in the agency’s decision is all the prevented it from properly completing permits for offstream uses until sufficient instream uses and values ‘and the need for more essential. “in a case such as this where preliminary inquiries. In sum, we are still scientific information on instream require meaningful studies of stream flow require- of how the Commission the agency performs as a public trustee and left with the question ments becomes available. We do not believe me ts. We do not expect this to be an easy is duty bound to demonstrate that it has should, presently and for the foreseeable fu that the law mandates such a per se rule. tas . Yet it is nothing novel to the adminis instream and offs properly exercised the discretion vested in it ture, balance competing The Commission can hardly be expected to tra ye function or the legal process in gener to develop by the constitution and the statute.” Save tream interests as it proceeds suspend all offstream uses, however reason al. See Ethyl Corp. 541 F.2d at 28 n. 58 flow standards. Ourselves 452 So.2d at 1159—60. permanent instream able and beneficial, for an indefinite period of (ex laming how “assessment of risk is a nor In this case, the Commission has not pro In its decision, the Commission recognized time that, according to the Commission, may mal part of judicial and administrative, fact-’ q vided any findings or conclusions that would the need for high base flows, stating: amount to years. finding”). And it is no more and no less than enable meaningful review of its decision re High base flow is important to the estuary This dilemma offers no simple solution. what the people of this state created the garding Waikane Stream. We thus remand ecosystem as well as the stream itself. At the present time, we hold onlir that the Commission to do. this matter for proper resolution by the The flows generated during storm events Commission’s inability to designate more de As a practical matter, the Commission may Commission. See Kauai Electric, 60 Haw. at perform a function different from that of finitive instream flow standards neither al : decide that the foregoing balance supports 185—86, 590 P.2d at 537—38 (recognizing re base flows. The estuary does not assimi • lows the prolonged deferral of the question postponing certain uses, or holding them to’ a mand as an appropriate remedy “where the late a great deal of nutrients from flood of instream use protection nor necessarily higher standard of proof, pending more con agency has made invalid, inadequate, or in events, because the water moves through precludes present and future allocations for clusive evidence of instream flow require complete findings”); see also 3 Kenneth C. the system .so rapidly. Those flows flush offstream purposes. Accordingly, the Com ments. See, e.g., HRS § 174C—31(d)(2) (re Davis & Richard J. Pierce, Jr., Administra out the estuarine system. The base flow mission must apply, in its own words, “a quiring the Commission to include in the tive. Law T’,eatise § 18.1 (3d ed.1994) (dis carries the steady load of nutrients that is methodology that recognizes the preliminary vater resource protection plan “desirable cussing the usual remedy of “set aside and essential for estuarine productivity, and .is and incomplete nature of existing evidence,” uses worthy of preservation by permit, and remand”). essential to sustain the nutrient levels COLs at 16, and, indeed, incorporates ele undesirable uses for which permits may be throughout the year. ments of uncertainty and, risk as part of its denied”); HRS § 174C—31(k) (Supp.1999) E. INTERIM BALANCING OF IN- FOF 262. Consistent long-term flows are analysis. Such a methodology, by its nature, (mandating “careful consideration” of “the STREAM AND OFFSTREAM USES also essential to conducting meaningful must rely as much on policy considerations requirements of public recreation, the’protec stream studies. The Commission found that, as on hard scientific ,“facts.” [80] Our foregoing rulings concerning the See Ethyl tion of the environment, and the ‘procreation “to adequately evaluate any impacts on a Corp.,’ 541 F.2d at 29 Commission) WIIFS neither preclude nor permit any (“[The of fish and wildlife” and enabling the Com •change in flow regime, the study would need must act, in part on factual present and future allocations for’ offstream issues, but large mission to prohibit or restrict uses on certain to be conducted over an extended period of on choices of policy, on an use. As the Commission recognized, “[gliven ly assessment of streams which may be inconsistent with time, starting with at least two (2) or three risks, and on predictions dealing with the long term work needed to define an mat these objectives); HRS § 174C—31(l) (Supp. (8) years,” FOF 167, and that “it is better to ters on the frontiers of scientific ecologically necessary flow in a particular knowledge 1999) (allowing the Commission to designate ather years of accumulated data before de ....“(quoting Amoco Oil stream, the Commission will need to amend Co. v. EPA, 501 certain uses’ in connection with a particular siding whether there was an impact,” FOF F.2d 722, 741 (D.C.Cir.1974)) [interim standards) periodically until perma (brtkets and source as an “undesirable use,” for which the 200 See generally lIAR § 13-169—20(2), — internal quotation marks ‘omitted; nent standards can be adopted.” COLs at Indus Commission may deny a permit), HRS 22(1), —23 (1988) (recognizing the “vital” im trial Union Dept., 16. Thus, even after the Commission desig AFL-CIO v. American § 174C—31(m) (Supp.1999) (allowing the portance of a “systematic program of base Petroleum Inst., 448 607, nates the WIIFS on remand based on the U.S. 7OSL100 S.Ct. Commission to designate certain uses in con line research” and requiring the Commission 2844, 65 L.d.2d 1010 (1980) j, best available information, it may amend the (M4shall, nection with a particular source that “shall be to conduct such research as part of the man dissenting) (“[W]hen the W’IIFS in either direction as further informa questioif involves preferred over other uses” in the permitting dated instream use protection program). determination of the acceptable level of risk, tion becomes available. On the other hand, process). Even if it tentatively decides to the ultimate decision in merely affirming the Commission’s interim Until adequate scientific information be must necessarily be allow certain offstream uses to proceed, the based on considerations of policy solution of effectively assigning to instream comes available, therefore, ongoing or fur as well as Commission may still subject the uses to empirically verifiable facts.”). uses the water not otherwise allocated for ther offstream allocations not only subject permit conditions designed to protect the immediate and near-term offstream uses, we instream values to unknown impairment and In furtherance of its trust obligations, the public interest. See HRS § 174C—aflj). At have not yet addressed thO validity of the risk, but also undermine efforts at effective Commission may make reasonable precau the very least, the Commission should, as it present offstream allocations, let alone the research. Conceivably, the Commission tionary presumptions or allowances in the did in this case, condition permits so as to IN RE WATER USE PERMIT APPLICATIONS 94 HAWAI’I REPORTS 161 16Q Cite as 94 Hawaii 97 (204)0) its economic value, its value to society in maintenance of minimum flows and levels”). constitutional and statutory au 1. Permit Applicants’ Burden of Proof confirm its cluding consideration of posrible harm to Due to the continuing uncertainty regarding revoke the permits trust and the Code, thority to modify or [821 Under the public society through harm to the water body, instream flow requirements,the.Commission, present in- the burden of justify should it later determine that permit applicants have, and a balancing of any harm caused by by its own admission, could not fully apply lIAR 13— uses in light of protected stream flows are inadequate. Cf §. ing their proposed the use against methods currently avail and assess the results of the “reasonable- shall re resource. As stated 171—22(a) (1988) (“The commission public rights in the able to reduce or eliminate that. harm. beneficial use” and “public interest” tests tain andcontinue to have jurisdiction for the above, the public trust effectively creates this Frank E. Maloney, Florida’s “Reasonable under the Code. The Commission was thus purpose of reviewing and modifying every burden through its inherent presumption in Beneficial” Water Use Standarth Have East constrained to subject all permits to condi permit as may be necessary in fulfillment of favor of public use, access, and enjoyment. and West Met?, 31 U. Fla. L.Rev. 253, 274 tions “providing for stream restoration if the its duties and obligations under [the Code].”). The legislature supplied the specific proce (1979) (emphasis added); see also Model Wa Comission determines that additional water dure for potential users to meet this burden ter Code, supra, § 202 commentary at 179 shoul be returned to the streams.” D & 0 Under no circumstances, however, in the permitting provisions of the Code, [81] (clarifying that, under the “consistent with at 3l. Therefore, although many pro-lee constitution or Code allow the Com HRS chapter 174C, part IV. do the the public interest” standard, “a proposed ward parties criticize the Commission’s pre grant permit applications with ‘(1993) enumerates the mission to HRS § 174C-49(a) use, otherwise valid, which would, have an lisninary designation of the WIIFS, they fail Here, the Commission de permits under the minimal scrutiny. conditions for water use unreasonably harmful effect on fish or wild to realize that the absence of a more conclu “there is adequate water to meet of the conditions ired that Code, see supra note ‘6. Two life might well be rejected as being1 inconsis ive determination of necessary instream water use needs,” and made Commission in ne immediate require the applicant, and the tent with the express statement of public flows predetermined every aspect of the for offstream uses based effect of the requested liberal allowances turn, to address the interest in [the model provision or HRS Commission’s decision, including the water on a mere “prima facie” standard, reasoning allocation on public instream values: “rea issued,, to be tentative at best. § 174C—3(c) ]“). We thus confirm ‘and em use permits management may defer the HRS § 174C— that “careful sonable-beneficial use,” phasize that the “reasonable-beneficial use” We explained above that the uncertainty higher level of scrutiny in with the public in need to consider a 49(a)(2); and “consistent standard and the related criterion of “consis created by the lack of instream flow stan [permit applications] tintil the 174C—49(a)(4). The two con analyzing the terest,” HRS § tent with the public interest” demand exaini dards modifies the nature of the Commis inadequate water for com the Code defines “reason time when there is ditions overlap; nation of the proposed use not only’ standing sion’s analysis, but does not reduce the level COLs at 25. In truth, the as “use of water in such peting demands;” able-beneficial use” alone, but also in relation to other public and of scrutiny it must apply; Similarly, such actual instream flow necessary for economic and uncertainty regarding quantity as is private uses and the perticular water source uncertainty does not excuse permit appli prevented any determination for a purpose, and in’ a requirements efficient utilization, in question. Hence, permit applicants re cants from affirmatively justifying their pro of the present water which is both reasonable and consis-, as to the adequacy manner questing water diverted from streams must posed uses insofar as circumstances allow. not justify any less rigorous the state and county land use plans supply and did tent with duly take into account the public interest in At a very minimum, applicants must prove the permit applications than public interest,” HRS § 174C—3 (em analysis of and the instream flows. Cf Shôkal v. Dunn, 109 their own actual water needs. The Code’s in any event. would be required phases added). Idaho 330, 707 P.2d 441, 450 (1985) (“[T]he “reasonable-beneficial use” standard allows We are troubled, therefore, by the Com [83] As discussed above, the Commission burden of proof in all cases as to where the use only “in such a quantity as is necessary mission’s permissive view towards stream di erroneously examined instream use as a public interest ‘lies .. rests with the appli for economic and efficient utifization.” HRS versions, particularly while the instream flow “competing use” under HRS § 174C—54. cant ). § 174C—3 (emphasis added). Furthermore, public standards remained in limbo. Such an ap Nevertheless, it properly construed In the instant case, the prior unavailability besides advocating the social and economic ‘woach contradicts not only the Commission’s instream values as an intrinsic element of the of proper instream flow standards made the utility of their proposed uses, permit appli process. iwn findings and conclusions, but also the inqwry involved in the permitting permit applicants’ task of justifying their cants must also demonstrate the absence of the law and logic of water resource management Thç Model Water Code, the source of proposed uses more difficult. Hadjthe Com practicable mitigating measures, including in this state. With these concerns in mind, Coke’s definition of “reasonable-beneficial mission been able previously to; establish the use of alternative water sources. .Such a stan we turn to the Code permitting provisions use,” gee id. § 1.03(4), states that the more conclusive standards, the pplicants requirement is intrinsic to the public trust, the “best fea and the water use permits issued by the dard ‘was intended to combine would have only needed to show, wi’th respect the statutory instream use protection riparian law Commission in this case. tures” of “reasonable use” under to public instream uses and values, that their scheme,65 and the definition of “reasonable- and “beneficial use” under prior appropria allocations would not impair the signated beneficial” use, cf Restatement (Second), tion law. See id ch. 2 commentary at 171, instream flows. See HRS §1 174C.f31(j), —71 supra, § 850A(f) & cmt. h (considering the F. WATER USE PERMITS - As one of’ the authors of the Model Water (last paragraph); Model Water Code, supra, “practicality of avoiding harm by adjusting WWCA and HTF contest the water use Code explained: § 1.07(6) commentary at 107 (explaining that the use or method of use” as one factor in permits granted by the Commission. They A standard of “reasonable beneficial use” the model provision for HRS § 174C—31(j) riparian “reasonable use” inquiry), and is an of argue that, as a general matter, the permit which incorporates the “best features “prohibits the granting of any consumptive essential part of any balancing between corn applicants failed to meet their burden of both reasonable use and beneficial use” use permit that would adversely affect the peting interests, see, e.g., Kahana Sunset also raises various specific would thus be a standard which required proof. WWCA Commission must also consider alternative an examination of the purpose of the use, 65. As discussed above, HRS § 174C—71(l’)(E) re objections to the permits issued. quires the Commission to consider various sources in permitting existing or new uses in the “physical solutions,” including “uses of water first instance, as a part of its analysis of the (Second), supra, § lZ.03(c)(2) (beneficial use). 64. See generally Restatement alternative sources,” when determining in ‘reasonable-beneficial” and “consistent with the use); Anderson, supra, from § 850A (reasonable stream flow standards. It is axiomatic that the public interest” conditions for a permit. 162 94 HAWAI’I REPORTS IN RE WATER ‘USE PERMIT APPLICATIONS 163 Cite as Hawaii Owners Ass’n v. County of Maui, 86 Hawai’i fled agriculture.” Id. at 6. This uncertainty 94 97 (2000) an average over all acres given all acres’ (Emphasis added.) 66, 72, 947 P.2d 378, 384 (1997) (explaining appears to stem largely from the embryonic Instead of the .186 mgd are not irrigated at’ one time. In actual that Sou confirmed that analysis under the Hawai’i Environmen state of diversified agricultural operations. would be “sufficient” un practicality, as much as 2” of water (54,000 der efficient use conditions, tal Policy Act must include mitigating mea The Commission issued the permits based on Sou received gallons/acre) is necessary when a crop is 2,500 gad for every one sures and alternatives). Notwithstanding approximate demand, but mandated the re of the 190 acres he first planted. After the initial irrigation to leases from Nihonkai, or .48 mgd in the present uncertain and tentative nature of lease of any unused permitted water into the total. D germinate, water is set at a range of 15,000 & 0 at 21. the permitting process, therefore, permit ap windward streams, id. at 10, and conditioned gallons per day (gpd) and gradually re plicants must still demonstrate their actual the permits on a final determination of water Larry Jefts’s lease with Campbell Estate duced to 6,000 gpd. The amount of water needs and, within the constraints of available use quantity in five years, id. at 30. Al states: “Average annual usage .. is esti used will vary depending upon the crop, knowledge, the propriety of draining water though these measures appear appropriate at meted to be 2,500 per day per acre of arable season, weather, how long a field was fal from public streams to satisfy those needs. this time, we reiterate that permits should la4d being cultivated.” (Emphasis added.) low, and market factors. reflect actual water needs. Tl Commission quoted this language in its There will 2. Diversified Agriculture, Generallp be times when peak use is of dision, D & 0 at 6, but still allocated water WWCA specifically contests the Commis vital importance. and the Allocation of2,500 Gallons per However, during certain fo4 all 620 acres leased to Jefts, without sion’s provision of 2,500 gallons per acre per seasons or we Acre per Day months, will average as retard to acreage actually in cultivation, jet day (gad) for every acre of land in diversified much as 5,400 [gad). During other periods at 21. Finally, the Commission noted that, [84, At the outset, we agree with the 85) agriculture, where ‘only a fraction of such we may be using as little as ,800 [gad). beéause of the much lower per-acre water Commission that, as a general matter, water land is in actual cultivation at any given time. (Emphasis added.) At the heari9g, Sou reit requirements of diversified agriculture, 1,800 use for diversified agriculture on land zoned WWCA does not dispute the reasonableness erated that “the average we are giving is an to 5,400 gad, as compared to the previously for agriculture is consistent with the public of the 2,500 gad figure as applied to acreage average on land, all land over period of grown sugar, 7,500 to 10,000 gad, water interest. Such use fulfills state policies in actually in cultivation. Parties testified in years.” In questioning Sou about esti would become available for other purposes favor of reasonable and beneficial water use, his support of lower and higher amounts, but the mates, Commissioner Miike stated: “I know “even if the same acreage was’ planted.” diversified agriculture, conservation of agri Commission selected this “more conserva across all your lands you’re saying 3500[gad) COLs at 19 (emphasis added), The Commis cultural lands, and increased self-sufficiency tive” figure as a “starting point,” noting, that considering fallow land Accordingly, sion, nevertheless, assigned 2,500 gallons per of this state. See Haw. Const. art. XI, § 1 will “it is an adjustable number and be evalu Nihonkai asserts, ‘the record evinces that the day to as much as two or three times the & 3; HRS § 174C—2(c). Moreover, in this ated periodically or upon request, based on Commission included fallow land in its calcu acreage actually planted, resulting in a per- case, the Commission primarily considered the best available data and field experience.” lations. acre duty apparently approaching that of and granted permit applications for agricul Id. at 6. WV/CA asserts, however, that the sugar and contradicting the Commission’s tural uses already in existence, adding the On another occasion, however, Sou appar application of this -per-acre figure to every description of 2,500 ently acknowledged that the gad figure ap gad as a “more conserva caveat that it would “revisit and, if appropri acre. of agricultural land, including those figure.” ly plied only to land actually tive ate, reduce existing ground-water permits if ing fallow, resulted in a “gross over-alloca in cultivation. The transcript reads in relevant part: reclaimed water becomes available and is tion” of water far exceeding actual fleed. [86, 87] “A reviewing court must judge allowable, subject to economic and health Q: Now, the lease that you signed with the propriety of agency action solely by the considerations.” D & 0 at 8. For the time The uncontroverted evidence at the hear Nihonkai says that 2,325 [gad] will be rea grounds invoked by the agency, and that being, therefore, the Commission’s disposi in establishes that leeward farmers cultivate sonably sufficient for your cultivation pur basis must be set forth with such clarity as to only one-third to one-half of their land at any tion more or less maintains’the interim solu poses; isn’t that right? - be understandable.” Louisiana—Pacific tion reached during the contested case hear given time. This evidence includes the testi A: Yes. Corp., Western Div. v. NLRB, 52 F.Sd 255, mpny of farmers Larry Jefts and Alec Sou, 259 (9th (quoting ing and the positive effects on’ the windward Q: And the chart attached t your July Cir.1995) SEC v. Chenery on which the Commission based its determi Corp., 332 U.S. 194, 196—97 streams resulting therefrom. Because the 18th affidavit shows that you don’t intend (1947)) (brackets ntion of the 2,500 gad figure. The Commis and internal quotation Commission must still determine the ultimate to have more than 80 acres in ci4itivation at marks omitted). sibn observed in its decision that, according Here, validity of the present allocations in relation any one time, correct? the record contains patent incongrui to instream requirements, and depending on to Su, “at any one point, the maximum they ties that the Commission’s decision does not Al Yes, exceeding that would11run into a the availability of reclaimed water, nothing is have in actual crop on ground is one-third (!6) satisfactorily resolve. - The failure of the lot of trouble. settled from a long-term standpoint. For of their land, while the other two-thirds (S) is Commission to address and explain these present purposes, however, apart from any in various stages of harvest, plow down and Q: Okay. So according to ml math, 80 contradictions precludes effective review of yet unanswered questions regarding actual arid aeration to disrupt insect buildup.” Id. acres using 2,825 [gad] would t4tal 186,000 its decision. See Kauai Electric, 60 Haw. at gallons per day. So according to your 183—86, 590 P.2d at 536—38. needs and practicable mitigating measures Campbell Estate proffers that the Com We do not de figures in your affidavit and in your lease, mand from the Commission and alternatives, we cannot say that the mission’s reliance upon Sou’s testimony dem a written assess 186,000 gallons per day is reasonably suffi ment of every evidence Commission erred in accommodating existing onstrates that the Commission duly consid piece of or testimony. cient for your needs; is that right? Nor do we foreclose the agricultural uses while restoring instream ered uncultivated land in allocating 2,500 gad Commission from A: This would be sufficient provided that allocating more than flows. for every acre. Nihonkai further cites Sou’s 2,500 gallons per day we accounted for every aspect of irrigation, per acre in cultivation if more In its decision, the Commission admitted direct written testimony that his estimated is indeed nec having the best system in line, shutting it essary. But where to “a lack of data on actual uses for diversi duty of 3,500 gad represented the record demonstrates off exactly when it’s at a peak. considerable conflict or uncertainty in the 94 HAWAI’I REPORTS IN RE WATER USE PERMiT APPLICATIONS 165 164 Cue as 94 Hawaii 97 (2000) evidence, the agency must articulate its fac b. Field Nos. 115, 116, 1.45, and 161 Ditch water.” Even if true, this broad state permits beyond noting their existence and ment has little meaning without tual analysis with reasonable clarity, giving (Gentry and Cozzens) evidence and present nonuse. One finding states that analysis. of the actual per-unit breakdown of “Campbell Estate has well permits for 35 some reason for discounting the evidence [891 Campbell Estate also received 1.19 these costs relative to the cost of ditch water mgd,” FOF 788, and the COLs section men rejected. See e.g., Green v. Shalala, 51 F.3d mgd for Field Nos. 115, 116, 145, and 161, and other alternatives. The record, in fact, tions in a footnote that “[a]gricultural water 96, 101—02 (7th Cir.1995); Thompson v. Bow consisting of 145 total acres multiplied by reveals that Campbell Estate could supply up use permits of’ approximately 53 mgd for en, 850 F.2d 346, 349 (8th Cir.1988); Venwo, 2,500 gad. The record reveals that, at least to &16 mgd of its permitted ground water to PQarl liar. v. NLRB, 79 F.3d 526, 528 (6th Cir. Cozzens’s Circle “C”.Ranch Harbor ground water are still held by until 1995, Terry certain agricultural fields for as little as 39 to 1996). Such articulation is especially crucial leased this land for various parties and [are] not being used,” icL & Hay Co. (Cozzens) 45 cents per thousand gallons. By compari under circumstances such as those before us, In November 1995, atji9 n. 10. As Campbell Estate points out, forage production. son, leeward farmers pay 35 cents per thou in which small variations in the interpreta Fields Nos. 115, 116, th Commission did make variOus general Campbell Estate leased sand gallons for ditch water, and county rate tion of evidence lead to vast differences in Co. (Gentry). firfdings on the effects of irrigation on lee and 145 to Gentry Development schedules indicate that many other farmers result. Because the Commission has failed w4rd aquifers, the costs of developing other At the hearing, the Campbell Estate rep dependent on municipal water supplies pay to provide this minimal analysis, we vacate alkrnative sources, and future growth in resentative testified: “I have not been in anywhere from 60 cents to $2.47 per thou its adoption of the 2,500 gad figure and re water demand. None of these answer, with discussion with [Gentry] on what they’re’do sand gallons. OSCo used extensive amounts mand for further proceedings consistent with any reasonable degree of clarity, why it is ing, but my understanding is that they will of ground water on Campbell state lands ‘this opinion. not practicable for Campbell Estate to- use be growing agricultural crops [on Fields Nos. with little apparent difficulty, and Del Monte ground water permitted to it and not other 115, 116, and 145].” The record contains no currently tunis a profit using pumped wise in use as an alternative to diverting the Campbell Estate’s Permits evidence of the type or -amount of crops ground water on Campbell Estate lands. sole source of water for windward streams, • cultivate. As for Field No. Royal O’ahu Resort decided that it could a. Field Nos. 146 and 166. (ICI Seeds) Gentry intends to especially given the still unsettled state of feasibly use ground 161, the record does not indicate whether water from its on-site the instream flow standards. [881 WV/CA contests the Commission’s Cozzens is still occupying the land, much less well and, accordingly, withdrew its applica allocation of .86 mgd to Field Nos. 146 and the nature and extent of his present and tion for’ water from the ditch. In neglecting to address the practicability 166 of Campbell Estate, leased to Zeneca, of using pumped ground water as an alterna planned operations. Campbell. Estate as [91, 92] The Commission maint.ined that dba 101 Seeds (101 Seeds). The Com tive to stream diversion, the ‘Commission Inc., serts that Del Monte owns the master lease it “is ‘not obliged to ensure thatany particu mission derived .86 mgd by multiplying the failed to establish’ an adequate basis for the and intends to grow agricultural crops. No lar user enjoys a subsidy or guaranteed aC of both fields by 2,500 gallons allocations granted to Campbell Estate. We 344 total acres direct evidence of this intent appears in the cess to less expensive water sources when day (gad). At the hearing, thus vacate Campbell Estate’s permit and per acre per record. alternatives are available and public values however, 101 Seeds testified that, during its remand for further proceedings consistent Absent such basic information on current are at stake.” COLs ‘at 19. We agree. peak season from November to February; it with this opinion. and projected use, the allocation of 1.19 mgd Stream protection and restoration need not plants only 80 to 100 acres of seed corn and for diversified agriculture on these fields was be the least expensive alternative for offs uses an average of only 300,000 gallons of 4. PMI’s Permit clearly erroneous. We vacate the allocations tream users to be “practicable” from a water per day, or .3 mgd. During the sum Field Nos. 115, 116, 145, and 161 and broader, long-term social and econOmic per WV/CA also argues that the Commission mer months, 101 Seeds plants only “three or to for further proceedings consistent spective. Unlike leeward offstream uses, erred by issuing PMI a .75 mgd permit for four” acres of corn and “some other crops, remand vith this opinion. windward instream uses have ho alterna golf course use, contrary to its own legal very small amounts.” tives at any cost to the windward ground conclusions regarding such use. PMI de water in question. Recognizing, Campbell Estate asserts that the .86 mgd c. Alternative Ground Water Sources that such fends its ‘permit allocation and challenges the allocation includes provision for sorghum and water “is the only source to supplement validity of the [0J At the time of the hearing, Campbell Commission’s conclusions in soy bean also cultivated by 101 Seeds. 101 base stream flow .... and [to] atisfy any the first Estate held permits to pump 35 mgd of instance. PhIl’s objections require Seeds actually stated: ‘We have grown sorg riparian uses, appurtenant rights, potential our initial attention. ground water from beneath its lands for agri hum and soy beans in the past and we still offstream agriculture in the affected area cultural purposes. WV/CA argues that the grow some sorghum, but our main focus is on and enhancement, of the Kjneohe Bay Commission erred by not requiring Campbell a. “Eristing Use” corn.” 101 Seeds did not express any inten estuary and fisheries,” id. at 19 the Com Estate to use this water, no longer in use tion of increasing its corn cultivation and, in mission conditionally approved leeward agri [931 As its first point of error, PMI con since OSCo concluded operations, in order to fact, testified to a need for “isolation space” cultural uses “[i]f and until treated effluent tests the Commission’s designation of PMI’s minimize diversions from windward streams. between its plots of corn. Thus, the Com or ground water is available,” icL at 28—29. water use as a “new,” as opposed to “exist mission’s year-round allocation of .86 mgd for Regarding the practicability of using The Commission’s decision, nonetheless, fails ing,” use under the Code.67 HRS § 1740— Field Nos. 146 and 166, nearly three times its pumped ground water, Campbell -Estate to discuss Campbell Estate’s ground water 50(c) (1993) provides in relevant part: merely cites testimony to the effect that “it stated average demand during its four-month 66. The same section in the Commissions pro not explained why it retains these agricultural peak season, finds no basis in the record and would require millions of dollars to put infra posed decision stated: “Agricultural water use permits while seeking windward Oahu water for is clearly erroneous. We vacate the alloca structure in place to pump water from the permits of approximately 32 mgd for Pearl Har agriculture and remand for further Pearl Harbor aquifer wells to the Campbell bor ground water are still held (and barely used) tion to 101 Seeds by the Campbell Estate. Campbell Estate has 67. WWCA argues that the point is immaterial proceedings consistent with this opinion. Estate fields which Currently use Waiahole because existing uses enjoy no greater rights IN RE WATER USE PERMIT APPLICATIONS 167 166 94 }IAWAI’I REPORTS Ctte as 94 HawaIi 97 (2000) further provides that “the commission shall to PMI, golf-course irrigation qualifies as an express statutory deadline for ex An application for a permit to continue ignore the issue a pet-mit for the continuation of a use “agricultural use” under the Code. existing use must be made within a isting use permit applications. an in existence on July 1, 1987, if the criteria in PMI cites the Code’s policy favoring “max period of one year from the effective date HRS § .1740-50(c) allows the Commission subsection (a) are met and the existing use is imum beneficial use .,. for purposes such as designation [of the water management “just cause,” of to accept late filings based on reasonable and beneficial.” (Emphasis add irrigation and other agricultural uses,” area]. Except for appurtenant rights, fail from accept but precludes the Commission ed.) These initial provisions in the Code’s HRS § 1740—2(c) (emphasis added), as sup ure to apply within this period creates a five years ing late applications “more than section on “existing uses” establish that the port for its argument that “‘irrigation’ is and of abandonment of the use, presumption after the effective date of rules implementing legislature intended the term “existing use” always was an ‘agricultural’ use.” PMI and the uter, if the user desires to revive this chapter.” The Commission promulgated to refer to uses existing on July 1, 1987, the reads too much into this provision. The lan use, must apply for a permit under the the rules implementing the Code on May 27, effective date of the Code, see 1987 Haw. gtage in question confirms that “agricultural section 1740—51. If the commission deter 1988 and, thus, could not accept any late Sess, L. Act 45, § 10 at 102; see also infra uss” may entail irrigation, but does not ren mines that there is just cause for the applications after May 27, 1993. None of the note 98 (listing analogous provisions in other “irrigation” and “agricultural use” synon failure to file, it may allow a late filing. d* applications in this case met this deadline. jurisdictions).69 We thus hold that the Com ystous or coextensive. However, the commission may not allow a PMI argues that the Commission’s literal mission erred in identifying July 15, 1992, the than five years after the rhe Code defines “change in use” as “any late filing more leads to an date of designation of the windward ground this reading of HRS § 174C—50(c) môdiflcation or change in water use from or effective date of rules implementing water management areas, as the relevant absurd result insofar as it set the deadline to domestic, municipal, military, agricultural chapter. under the for late filings before the expiration of the cut-off date for “existing uses’ (ircluding agricultural processing), or indus (Emphases added). In this case, the Com Code. one-year filing period following designation trial uses.” HRS § 174C—3; see generally mission designated the windward aquifers as of the water management area. To the con According to PMI, “[t)he prior owner of HRS § 1740—57 (1993) (requiring permittees ground water management areas effective traszy, we believe that the legislature could the PMI property began using Waiahole seeking a change in use to apply for a permit July 15, 1992. On June 3, 1993, Waiahole have rationally intended to allow late filings Ditch water in the late summer or fall of modification). PMI contends that, because Irrigation Company (WIC),. the former oper only during an initial period of transition to 1991.” The water use on the PMI property irrigation of a privately owned golf course ator of the ditch, filed a joint water use the regulatory system under the Ode. We entirely postdates July 1, 1987. Even apart meets neither the statutory definitions of permit application on behalf of the parties thus see no error in the Commission’s adher from the untimeliness of PMI’s”existing use” “domestic use” ‘ and “municipal use,” 72 nor using water from the ditch at that time. The ence to HRS § 174C—50(c)’s express terms. permit application, therefore, PMI’a use did the common meanings of “military” or “in application made no mention of PMI. On not meet the Code’s definition of “existing dustrial” use,73 by process of elimination, it June 14, 1994, WIC filed an amendment to [941 Finally, questions of timeliness use,” ° must constitute an “agricultural use.” The the joint application. The amendment mere aside, PMI’s use does not constitute an “ex refereed to PMI in the attached exhibits isting use” as contemplated by the Code. In instant case, however, does not involv any ly b. “Agricultural Use” use,” we not believe, in along with many other existing and proposed identifying the “existing uses” in this case, “change in and do event, that legislature intended to golf courses in Central O’ahu, most of which the Commission proceeded from the premise [95] PMI also objects to the Commis any the did not seek water from the ditch. On Octo that “the term ‘existing use’ as used in the sion’s classification of water use for golf limit the universe of possible use classifica pro ber 24, 1994, WIC filed another amendment Water Code, HRS chapter 1740, for pur courses as “nonagricultural use.” According tions to those enumerated in this single fmally including PMI as an applicant; PMI poses of water use permits, refers to those 69, The reporting provisions of the Code corrobo nated water management area” without a per filed its own application onFebruary 3, 1995. uses as of the date a particular area is desig rate this reading, requiring “[ãlny person making mit, HRS § 174C—48(a), it is silent regarding Neither of these submissions requested an nated as a water management area under a use of water in any area of the State ftoj file a uses initiated after July 1, 1987 but before water declaration of the person’s use within one year context, use” permit for PMI. Part 1V.” This underlying con management area designation. In this “existing HRS 174C, from the effective date of the rules implementing we cannot say that the Commission erred in PMI points out that it did not acquire the àlusion, however, contradicts the plain read this chapter,” I-IRS § 174C-26(a (1993), and allowing PMI’s use to continue pending the Com mandating the Commission to iesue “certifi property in question until a foreclosure sale ihg of the Code. HRS § 1740—50(a) (1993) mission’s final decision. in a cates” based on these declaratiocs confirming on November 21, 1994. PMI also cites the qtates that “[a]ll existing uses of water the usage that “shall be recognize by the com 71. “‘Domestic use’ means any use of water for of WIC’s representative that the designated water management area ... may mission in resolving claims relatlg to existing testimony individual personal needs and for household pur the joint application in becontinued after July 1, 1987 only with a water rights and uses includin4 appurtenant omission of PMI from use,” poses such as drinking, bathing, heating, cook in accordance with sections rights, riparian and correlative HRS 1993 and the first amendment in July 1994 permit issued § 174C—27 (1993) (emphasis added). These pro ing, noncommercial gardening, and sanitation.” “was an oversight on my part.” These exi 174C—51, 174C-.52, and 1740—53(b).” (Em visions reflect the legislature’s inter to limit the HRS § 174C—3. gencies do not compel the Commission to phasis added.) HRS § 1740-50(b) (1993) inventory of “existing rights and t.res” to those existing at the time of the adoptiot of the Code, 72. “‘Municipal use’ means the domestic, inclus than ‘new uses.” On the contrary, the Code sibly subjects “new uses” to higher standard rather than at some unidentified fulure date such trial, and commercial use of water through pub gives “existing” legal uses priority over ‘new” than “existing uses.” as the designation of a water management area. lic services available to persons of a county for the permitting process. See HRS the promotion and protection of their health, uses in 70. We do not agree, however, with WWCA’s con (requiring applicant for a new this in comfort, safety, for § l74C—49(a)(3) 68. The Commission originally advanced tention that the Code necessarily prevented the and the protection of proper establish that the use “will not interfere In use to terpretation of “existinguse” in another case, Commission from allowing PMI to continue its ty from fire, and for the purposes listed under the existing legal use of water”). See also with any re Board of Water Supply Water Use Permit Appli use of WaiShole Ditch water pending a final term ‘domestic use’.” Id. Agricultural, 83 Hawaii at 492, 927 P.2d Ko’olau cations for Koolaupoko Ground Water Manage decision on its application, Although the Code (“Existing uses are given preferences at 1375 ment Area (Oahu), Declaratory Ruling No. DEC— prohibits withdrawal, diversion, impound. 73. The Code does not define these terms. Code...’). Moreover, as WWCA it ‘any under the 0A94—G3 (April 5, 1995). ment, or consumptive use of water in any desig self points out the Commission’s decision osten IN RE WATERUSE PERMIT APPLICATIONS 169 94 HAWAI’I REPORTS Cite as 94 Hawal’! 97 (2000) 168’ (1958)). In this case, the of “Nonagri strictions on “nonagricultural use” not shared Treatise § 5.01 c. Distinctive Treatment on vision. Indeed, golf courses fit the “agricul by other uses in this case,76 such measures Commission was ‘required by law to rule of cultural Uses” tural” category no more readily than any lay squarely within the Commission’s ap the various competing permit applications, the legal require the others, the suggested comparisons be [98] In its discussion of pointed, function of weighing and negotiating including that of PMI, by way of anadjudica the Commission tween growing land cover and cultivating ments for water use permits, competing interests in regulating the water tive proceeding. See Ko’olau Agricultural, intention to hold crops notwithstanding. The legislature ap repeatedly expressed its resources of this state. See, e;g., HRS 83 Hawai’i at 496, 927 P.2d at 1379 (“At the the as “golf course, pears to have agreed, recently amending “nonagricultural uses” such § 174C—31(d)(2), (k)-(m). PMI’s bald allega permitting stage, the Commission is’ required to different Code to clarify that “agricultural use” means parks and landscape irrigation” tions aside, nothing in the record suggests to determine the respective rights uf water process than other uses in pursuant “the use of water for the growing, standards and conditions that the Commission’s decision to subject user’s; ... contested case hearings that, in times of Based ing, and treating of crops, livestock, aquatic this case. Having concluded golf course irrigation to different standards to IRS chapter 91 are required.”). of review plans and animals, and ornamental flowers greater competition, the standard or conditions than other uses was arbitrary on te evidence presented at the hearing, the be higher, the and similar foliage,” and that “existing agri for agricultural uses would and capricious. Conimission decided, in view of the particular that “existing golf cultural use” means “replacing or alternating Commission further stated watr source in question and the specific with existing [99] We also reject PMI’s contention that would th cultivation of any agricultural crop course and other non-agricultural competing interests involved, that it not this higher stan the Commission engaged in ffiegal rulemak than ‘my other agricultural crop, which shall uses are already subject to hold. certain uses to a higher standard windward ing in its distinctive tieatment ofi “nonagri construed as a change in use.” HRS dard, in light of higher uses for pthers. The Commission did not, as PMI in cultural uses,” see HRS § 91_1(4() (1993). (Supp.1999) (emphases added). surface water, including retaining water and others allege, propose any general rules § 174C—3 As we have previously recognized, the “line the streams.” COLs at 27. The Commission automatically applicable in all circumstances, state uses in between [agency rulemaking andi adjudica [96) PMI points out that under the also concluded that “non-agricultural but instead devised a principled solution to a in tion] is not always a clear one and in fact the land use law, agricultural districts may Leeward Oahu for golf course and landscap specific dispute based on “facts applied to in two functions merge at many points.” clude “open area recreational facilities, ing uses which could utilize available ground rules that have already been promulgated by Shoreline Transp., In v. Roberta Tours & cluding golf courses and golf driving ranges.” water or treated effluent ... carry a heavy the legislature,” Town v. Land Use Comm’n, Transp., Inc., 70 Haw. 585, 591, 779 P.2d 868, HRS § 205—2(d) (Supp.1999). State agricul burden to show why stream water should be 55 Haw. 538, 548, 524 P.2d 84, 91 (1974)—the 872 (1989) (citation omitted). In exploring tural districts, however, also include “wind diverted out of its watershed of origin,” id at definition of agency adjudication. out this problematic distinction, therefore, we machines and wind farms” and “small-scale 28, and that “[t]he use of surface water other in have adopted the ‘general rule that “the In rendering its decision, the Commission meteorological, air quality, noise and hide the watershed to irrigate golf courses choice between proceeding by ‘general rule developed new policies and guidelines that scientific and environmental data collection an arid region will not be a reasonable bene or by individual, ad hoc litigation is one that may very well precedentially affect future and monitoring facilities.” IcL The inclusion ficial use if alternatives, including reusable a lies’ primarily in ‘the informed discretion of cases involving the Waiahole Ditch System of a use in “agricultural districts” under wastewater, are available, and other needs the administrative agency.’” Hawaiian and perhaps other water sources. Such a separate land use statute does not establish dependent exclusively upon surface water Electric, 81 Hawai’i at 467, 918 P.2d at 569 process does not constitute rulemaking. As the use as “agricultural” for water allocation would be frustrated,” id. at 24Y Based on (quoting Chenery, 332 U.S. at 203). we stated in Hawaiian Electric: purposes. these conclusions, the Commission decided [I]n exercising its quasi-judicial func that “[PMI] will be subject to special require One useful distinction between rulemaking course irrigation affects tion[,] an agency must frequently decide [971 In classifying golf ments including a duty to seek alternative and adjudication is that “the former the Commission ap controversies on the basis of new doc as “nonagricultural use,” sources when they are reasonably available the rights of individuals in the abstract different poli trines, not theretofore applied to a spe parently decided that it raised ir$ the near future” and that “Mililani Golf (,} while [the latter] operates conceteIy upon uses typically Id. cific problem, though drawn to be sure cy considerations than those Course also has a duty to use alternative individuals in their individual capacity.” use.” PMI does 1 from broader principles reflecting the associated with “agricultural sburces when,they are reasonably available.” at 465-67, 918 P.2d at 568—69 (quoting this mixed determi Law purposes of the statutes involved and not attempt to discredit Id. at 25. Kenneth C. Davis, Administ$tive nation of fact and law as clearly erroneous, as PMI asserts that’ these rulings are arbi 76. The Commission evidently subjeted agricul 77. HAPA defines a “rule” but merely argues that the Commission is seek alter and an abuse of discretion. tural uses to a similar requirement to each agency statement of general or particular statute to designate golf trary, capricious, concluding that it would “revis constrained by First, although native sources in applicability and future effect that implements, use.” They are nothing of the sort. appropriate, reduce exi ng ground course irrigation as an “agricultural it and, if interprets, or prescribes law or policy, or de it received different permit if reclaimed water b omes avail. PMI’s own ob PMI asserts that water permits scribes the organization, procedure, or prac Such an approach contradicts situat and is allowable, subject to e onomic and conditions than the allegedly similarly able requirements of any agency. The term jections to rigid use categories. It also finds health considerations,” V & 0 at 8, and that, tice Golf Club (MGC),75 the Commis does not include regulations concerning only in the Code. According due ed Miilani “[i]f and until treated effluent or ground water is little support both PMI and re the internal management of an agency and not interpretation, sion’s decision in fact requires available, the State has a strong interest in deference to the Commission’s reason on these lands,” COLs at 28— affecting private rights of or procedures avail in MGC to use alternative sources when taining agriculture we hold that the Commission did not err 29. The standard conditions attached to all is able to the public, nor does the term include ably available. Moreover, even assuming “This declaratory rulings issued pursuant to section excluding golf course irrigation from the cat sued permits include the proviso that: Commission imposed exclusive re be modified by the Commission and 9 1—8, nor intra-agency memoranda. “agricultural use.” that the permit may egory of the amount of water initially granted to the per. Id. pro 75. MGC is not party to this appeal. mittee may be reduced if the Commission deter 74. The Commission further ruled that [a] necessary to: ... c. insure adequate golf course use would have to show that mines it is posed measures V & Oat 28. no alternatives are available.” Id. (emphasis conservation added). 170 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 171 Ctte as 94 Hawart 97 (2000) from the rules invoked in dealing with Accordingly, we hold that giving prece proceedings such as the instant hearing. We ticability of using ground water stands at thus related problems. If the agency deci dential effect to prior commission decisions hold that the Commission’s distinctive odds with the Commission’s own analysis and treatment of sion reached under the adjudicatory does not constitute rule-making. “nonagricultural uses” in its decision concerning nonagricultural uses. decision did not constitute power becomes a precedent, it guides 81 Hawai’i at 467—68, 918 P.2d at 569—70 “illegal rulemak We vacate PMI’s permit and remand for future conduct in much the same way as (some alterations in original) (footnote omit further proceedings in accordance with the though it were a new rule promulgated ted). decisions of the Commission and this court. d.. Application of the Commission’s under the rule-making power. The decisions cited by PMI, Aluli v. Lew Standards 5. Twelve—Month Moving Average Shoreline, 70 flaw, at 591—92, 779 P.2d at in, 73 flaw. 56, 828 P.2d 802 (1992), and Vega [100] Our affirmance of the distinct 872 (citing NLRB p. Wyman-Gordon Co., v. National Union Fire Ins. Co., 67 flaw. stan 101] WWCA objects to the Commis dards for nonagricultural uses 394 U.S. 759, 770—71, 89 S.Ct. 1426, 1432, 148, 682 P.2d 73 (1984), are inapposite to this developed by siop’s use of the 12—Month Moving Average the Commission in this case 22 L.Ed.2d 709 (1969) (Black, J., concur case. In Aluli, we invalidated air quality leads us to (1-MAV) to measure leeward uses. Accord WWCA’s allegation that the ring)). standards imposed by the Department of Commission in to WWCA, the 12—MAY allows “almost Health in an individual air pollution permit failed to apply these standards to PMI’s per ut4rnited” diversions at any given time, but The United States Supreme Court also mit proceeding where the pertinent statute con application. The Commission required esjecially during drier summer months, so addressed this issue in Chenery supra, PMI and templated the development of the standards MGC to use alternative sources long as these diversions are offset by below and in its progeny, Wyman--Gordon Co., when by rulemaking, and the matter in question, “reasonably available,” obsbrving that avdrage use over the rest of the year. This supra, and NLRB v. Bell Aerospace Co., the hydrogen sulfide emissions, was susceptible use of diverted stream water for golf arrangement, WWCA argues, reduces the 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 to “generalized” regulation. 73 Haw. at 58— course irrigation in an arid region would not incentive to conserve water and frustrates (1974). In Chenery, the Court explained: 59, 828 P.2d at 803—04. In Vega, we simply be reasonable-beneficial ii alternatives were efforts at instreain use protection. [P]roblems may arise in a case which the the affairs available. As we previously stated, see supra confirmed that a rule “touch[ing] As noted previously, the Commission found administrative agency could not reason delineat[ing] the Part III.F.l., and the Commission itself rec of the entire public and that high, consistent base flows “throughout ably foresee, problems which must be of unnamed ognized, see supra note 76, all users have a future rights of an entire class the year” was “essential” to the stream and resolved despite the absence of a rele “rule” subject to duty to seek practicable alternatives when individuals” was indeed a estuary ecosystem. Despite this finding, the vant general rule. Or the agency may of• H.APA. 67 faced with conflicting public interests. Re the rulemaking procedures Commission did not address the practical not have had sufficient experience with a 78 (quoting garding PMI specifically, however, WWCA Haw. at 155—56, 682 P.2d at effect of the 12—MAy on the base flows of particular problem to warrant rigidifying Auth., 55 Haw. 478, asserts that the Commission failed to consid Aguiar v. Hawaii Hous. windward streams, but simply observed: its tentative judgment into a hard and (brackets er alternative sources already available to 485—86, 522 P.2d 1255, 1261 (1974)) “The 12—MJiV allows for seasonal fluctuation fast rule. Or the problem may be so marks omitted). PMI, namely, pumped ground water. and internal quotation [in offstream demand] and is generally used specialized and varying in nature as to Aluli, neither the Code Here, in contrast to PMI adduced testimony, and the Commis for all water use reporting requirements.” D be impossible of capture within the matter favors the nor the regulated subject sion found, that the original developers had & 0 at 12. This blanket rationale ignores boundaries of a general rule. In those applicable stan promulgation of universally planned to use caprock well water to irrigate the apparent differences between stream di situations, the agency must retain the the In dards through rulemaking. Unlike the golf course under much “rosier” econom versions and uses of water from other power to deal with the problems on a surance Commissioner in Vega, therefore, ic conditions than the present. FOF 462. sources such as basal aquifers.78 the administrative case-to-case basis if the Commission chose to develop the statuto This offers little insight regarding the cur- There is thus The Commission and Campbell Estate ar process is to be effective. ry standards on an ad hoc basis instead of rent practicability of using such water. In evo gue that the release of unused water into the a definite place for the case-by-case I’rigidifying its tentative judgment into a its brief PMI declares that requiring PMI to streams and the requirement that permittees lution of statutory standards. hard and fast rule.” Hawaiian Electric, 81 use the caprock well water “would render the pay for their water use provide adequate Chenery, 332 U.S. at 202—203, 67 S.Ct. at Hawai’i at 468, 918 P.2d at 570 (quoting PMI golf course economically tofeasible.” safeguards. Even if properly limited to actu 1580-81. Chenery Cory., 332 U.S. at 202, 67 S.Ct. Although we question the relevan of PMI’s al need, however, offstream uses may still 1575). current ability to pay for. water, he record As noted in subsequent Supreme Court subject windward streams to extreme and ease more demonstrates, in any event, that an alterna decisions, “[aidjudicated cases may and do In this regard, the present potentially harmful fluctuations in base flow Electric, wherein tive supply of ground water would cost a serve as vehicles for the formation of closely parallels Hawaiian over the course of a year. No one disputes of the uncertain health blended rate of 58 cents per thous d gallons agency policies, which are applied and an we held that, in light the variable nature of agricultural water de fields, the Public to various leeward users, includin PMI, as nounced therein,” and such cases “general effects of electromagnetic mand and the corresponding need far flexi decided opposed to the $1.20 per thousand gallons ly provide a guide to action that the agency Utilities Commission properly bility. Nowhere in its decision, however, did electric transmission lines that PMI pays for WaiShole Ditch water. may be expected to take in future cases. whether to place the Commission fulfill its duty to consider of adjudication rather Subject to the qualified role of stare deci underground by way The grant of PMI’s requested allocation the impact of fluctuating diversions on in- id. at 468—69, 471—72, sis in the administrative process, they may than rulemaking. See without any reasoned discussion of the prac stream base flows and the practicability of 918 P.2d at 570—71, 573-74. Likewise, we do serve as precedents.” Wyman—Gordon 78. its The storage characteristics of basal aquifers reducing draft rates less than the sustainable Co., 394 U.S. at 765—66, 89 S.Ct. at 1429 not believe that the Commission abused allow “draft rates in excess of the sustainable yield during the other periods.” Department of in pursuing the case-by-case evolu yield during (emphasis in original). See Bell Aerospace discretion periods of high demand and low General Planning, City & County of Honolulu, recharge, so long as Co., 416 U.S. at 294, 94 S.Ct. at 1771. tion of water use policy through adjudicative there is compensation by Oahu Water Managemant Plan § 2.4.1 (1990). IN RE WATER USE PERMiT APPLICATIONS 173 172 94 HAWAI’I REPOR1 Cite as 94 Hawai’i 97 (2000) considered the petition to designate Wind ment area subjects both ground and surface málly denied the request application. D & 0 adopting specific measures to mitigate this ward 0’ahu as a surface water management water diversions from the designated area to 11. Conceding that “operational losses impact. at area in 1992. The Commission decided not the statutory permit requirement. occur,” however, the Commission declared: remand this portion to act on the petition at that time based on that [102] We vacate and “Because there was no evidence presented WWCA argues the allocation of water decision. In order to the staff recommendation that “designation for is dis of the Commission’s concerning any present demand for the use operational losses wasteful and of variable offstream de of ground water protects surface waters and system repairs. mitigate the impact of Kahana water, and because water should courages Campbell Estate base flows, the Commis is essentially comparable to designation of counters that such are and mand on instream not be wasted, the Commission temporarily losses necessary such as coordli surface water in [the Kahana, Ko’olau Poko, sion shall consider measures that 2.1 mgd Kahana surface wa inevitable and compare favorably with other rates of offstream recognizes and Waimanalo) aquifer systems.” In the nation of the times and approximately to operational sysems nationwide, We express no opinion and ter corresponds present case, however, the Commission con uses, construction and use of reservoirs, The Commission also on 1his issue at this time, but merely decide to losses.” IcL at 5—s. cluded that, without designating a surface use of a shorter time period over which over the th4 the Commission must scrutinize such an asserted that it lacked jurisdiction water area, it lacks average usage, see, e.g., HAR § 13— management ‘jurisdic alkafion as it would any other proposed measure permitting of Kahana surface water and an (requiring the Commission tion” to permit or otherwise reguiate surface 171—14(b) (1988) its intention to initiate the process “use,” pursuant to the permitting process. nounced water diversions from Kahana - to consider a three-month average in mess stream. ‘On remand, the shall consider of designating the Kahana watershed as a Commission ‘uring existing tsses).?s If necessary, the The Commission’s rationale wotid apply to the permit application for 2.0 mgd to cover surface water management area. Id. at 6. Commission may designate the WIIFS so as any surface water diversion frorri windward system losses and determine whether this higher offstream demand at watersheds; taken to its extreme, it would to accommodate perceive several defects in request is appropriate given the still uncer year. See HRS § 174C— [104, 105] We certain times of the First and most allow anyone to evade the perrdit require tain public interest in instream flows,, and flow standard” as a the Commission’s reasoning. 3 (defining “instream that retaining ment by simply diverting the same water based on actual need and any practicable of water “required to troublesome is the suggestion quantity, flow, or depth contrary from above, rather than below, the ground. mitigating measures, including repairs to the times of water in streams constitutes waste, be present ... at certain specsfiecl Although the Code presumes the prior desig ditch system. to the public trust mandate of protection. the year” (emphasis added)). nation of a water management area in its apart from any water management Second, permit requirement, see HRS § 174C—48 H. KSBE’S POINTS OF ERROR82 the Commission has juris G. USE OF KAHANA STREAM SUR area designation, regarding water (1993), and prescribes different criteria for FACE WATER TO COMPENSATE diction “to hear any dispute 1. Zoning Requirement or consti the designation of surface and ground water DITCH “SYSTEM LOSSES” resource protection, water permits, [106] In its permit application, KSBE re FOR see management areas, see HRS § 174C—44, — tutionally protected water interests,” 4.2 for, inter alio [103] WWCA also contests the Commis 45 (1993 & Supp.1999), these provisions quested mgd golf course HRS § 174C—10 (1993),° and to investigate sion’s use of 2.1 mgd from Kahana Stream to should not be conbtrued so rigidly as to and landscaping uses in connection with its and “take appropriate action” in response to cover operational losses from the ditch sys create an absurdity, or worse yet, to circum proposed “Waiawa by Gentry” development. WWCA’s allegation that the ditch is wasting tem. In its proposed decision, the Commis vent the Commission’s constitutional and The Commission denied the request without water due to deficient operation and upkeep, sion denied the request of the ditch operator statutory obligations. The Commission rec prejudice to reapplication “at such time that see HRS § 174C—13 (1993)81 Third, in rely for 2.0 mgd “as recognition of system losses ognized the integrated nature of the waters [KSBE] obtains the proper land use classifi ing on a lack of evidence to justify inaction, as a use” and ruled that such losses “ihall be collected by the ditch in its present decision. cation, development plan approvals, and zon Commission ignores its own affirmative considered a part of each permitted use in the See also HAR § 13—169—20(3) (“Recognition ing changes, and when it may be determined under the public trust and statutory the system, and shall be subject to the over çluty shall be given to the natural intersielationship that the actual use of water will commence instream use proteëtion scheme to investi all cap within each permit ... [,and] shall be between surface and ground wates.”). This within a reasonable time frame for a pro consider, and protect the public interest identified and addressed in the proposed im sate, court has similarly looked beyor&l artificial posed project.” COLs at 27. KSBE as In the flow of Kahana stream. The Commis plementation plan[, see supra note 79).” In surface-ground distinctions with he under serts that the Commission erred in conclud apparently recognized this duty when it the final decision, the Commission again for- eiqn standing that “all waters are partUof a natu ing that KSBE’s proposed water uses must

matter shall be made . . conform with zoning classifications in addi The final decision on any ral watercourse - constituting a part of the 79. Presumably, some such measures have al by the commission. tion to other, more general land use plans ready been adopted in the “Implementation whole body of moving water.” ppun, 65 (Emphasis added.) Plan” that the Commission required the agricul Raw, at 555, 656 P.2d at 73 (citatiojt omitted); and policies. tural users, along with the ditch operator and 81. HRS 174C—13 provides in relevant part: see also supra Part III.B.3.a. Givn the un To begin, KSBE does not dispute the DOA, to draft within six months of the Commis § facili disputed direct interrelationship between the Commission’s finding that, although Phase I sion’s decision in order to ‘coordinate and If any person files a complaint with the com tate the delivery of water.” D & 0 at 11. mission that any other person is wasting or surface and ground waters in this case, of the development had received develop polluting water or is making a diversion, with therefore, we hold that the designation of ment plan approval, Phase.fl had not. FOF use of wa 80. HRS § 174C—lO states: drawal, impoundment, consumptive Windward O’ahu as a ground water manage- 496. Much of KSBE’s requested 4.2 mgd or any other activity occurring within or resolution. The commission shall ters Dispute outside of a Water management area. not ex have jurisdiction statewide to hear any dispute a 82. As one of its points of error, KSBE contends 83. The Commission granted KSBE 0.17 mgd for pressly exempted under this code, without that the erred by rejecting its pro regarding water resource protection, water Commission existing agricultural uses. D & 0 at 8. permit where one is required, the commission posed findings. KSBE, however, does not pres permits, or constitutionally protected water in shall cause an investigation to be made, take ent any supporting argument, and our review of terests, or where there is insufficient water to appropriate action, and notify the complainant the record does not demonstrate the Commis meet competing needs for water, whether or thereof. sion’s action to be clearly erroneous. not the area involved has been designated as a (Emphasis added.) water management area under this chapter. 94 HAWAI’I REPORTS 174 IN RE WATER USE PERMIT APPLICATIONS Cite as 94 Hawai’i 97 (2000) 175 allocation related to Phase II of the develop thus, fail under the Commission’s general HRS § 174C—53(b) (1993) requires the the Consolidation or contemporaneous ment. With respect to that part of the permitting authority, see HRS § 174C—48. Commission, in acting on a permit applica hearing will be conducive to the proper application, therefore, KSBE’s objection fails KSBE, however, argues that the Commis tion, to consider only “those objections filed dispatch of its business and to the ends of on its own terms. sion, by regulating separate water manage by a person who has some property interest justice and will not unduly ment areas in one proceeding, effectively cre delay the pro HRS 174C—49(a) requires permit appli in any land within the hydrologic unit from ceedings. management cants to establish that their proposed use, ated a new, consolidated water which the water sought by the applicant is to complying with the statutorily KSBE criticizes the Commission’s unified inter alia. “(5) is consistent with state and area without be drawn or who will be directly and imme treatment of the ditch system as “arbitrary, county general plans and land use designa mandated procedures, see HRS § 174C—41 diately affected by the water use proposed in capricious and inconsistent with the laws of tions; [and] (6) is consistent with county land to —47 (1993 & Supp.1999). We disagree. the application.” (Emphases added.) Not The cited provisions merely describe the pro withstanding gravity,” “patently absurd” and “fictitious.” use plans and policies. .“ (Emphasis add the alleged independence of the Ihitially, apart from pointing out that water ed.) Zoning is nothing other than a “land cedures for water management area designa hydrologic units involved, allocations from fltws leeward by force of gravity through the use designation.” Although KSBE argues tion; in no way do they require the Commis the leeward portion of the ditch system “di nnmade tunnel underlying its lands, KSBE that zoning classifications merely “imple sion, once it establishes water management rectly and immediately” affect the windward h.s not proven that the water developed in ment” the development plans, it cannot erase areas, to regulate them on a compartmental parties insofar as any allocation of the lee it lands would not, under natural conditions, the practical, legally established distinction ized basis. Indeed, the Code’s abolition of ward supply proportionately reduces the find its way windward, thereby affecting between the two. See Revised Charter of any common law restrictions against water amount of water otherwise demanded from windward stream flows. In any event, we the City and County of Honolulu § 5—408 transfers and uses “beyond overlying land or windward streams. By its ternis, therefore, believe that the Commission’s consolidated (1994) (“development plans”); id. § 6—907 outside the watershed,” HRS § 174C—49(c) HRS § 174C—53(b) allows the consolidated approach hi this case demonstrates due re (“zoning ordinances”); see also GATRI v. (1993), tends to belie such an approach. The regulation of a single diversion w’orks such as’ gard for the direct and inevitable interrela Bl,ane, 88 Hawai’i 108, 112—15, 962 P.2d 367, Commission, of course, must designate water the Waiahole Ditch System. tionship among the waters collected by the 371—74 (1998) (rejecting the argument that management areas based on specific findings a Finally, although KSBE insists that the 2 ditch system. Given the system’s existence community general plan had no independent relating to each particular area. See HRS Commission must manage the “source” of and continued operation, we consider it no force and effect apart from zoning). Given §l 174C—44, —45. But independent designa water, the very provision it cites states: more absurd or fictitious a unit of regulation the plain language of the statute, we cannot tion does not preclude consolidated regula “Water source” means a place within or than the various “aquifer systems” and “sec say that the Commission erred in requiring tion where, as here, a water delivery system from which water is or may be developed, tors,” “hydrologic units,” and “water manage with county zoning classifications. draws water from several different water compliance including but not limited to: (1) generally, ment areas” it traverses. management areas. an area such as a watershed defined by For the foregoing reasons, we hold 2. Unified Regulation of the Ditch Sys-’ topographic boundaries, or a definitive that Other provisions invoked by KSBE fail to the Commission did not err in regulating the tein ground water body; and (2) specifically, a support, or flatly contradict, its argument Waiahole Ditch infrastructure as a unified [1071 KSBE also objects to the Cornmis particular stream, other surface water that the Commission must regulate water by system. The consolidated regulation of a sion’s treatment of the Waiahole Ditch Sys body, spring, tunnel, or well or related hydrologic units.. HRS § 174C—50(h) (1993) single diversion works comports entirely with tem as a single integrated unit for regulatory combination thereof” addresses competition arising between exist the Commission’s function of comprehensive purposes.85 As KSBE points out, the part of HRS § 174C—3 ing uses when “they. draw water from the (emphasis added). water planning and management. lands on the system underlying its Waiawa same hydrologically controllable area and HAR § 13—167—31 (1988) expressly autho Ko’olaus the part the leeward side of the and •the aggregate quantity of water consumed by rizes the Commission to combine related pro 3. “Ali’i Rights” collecting water from the windward side lie ceedings, the users exceeds the appropriate sustainable providing: [109] KSBE in separate hydrologic units: respectively, alleges that the Commission yield or instream flow standards established Consolidatioas. The commissiqn, upon its wrongfully ignored the Pearl Harbor ground water management and abridged its “ali’i pursuant to law for the area.” (Emphasis own initiation or upon motion, may consoli rights” in denying area and the Ko’olau Poko and Kahana its permit application. In 1added.) The Code defines “hydrologic unit” date for hearing or for other iurposes or essence, KSBE claims ground water management areas. KSBE “sovereign preroga as “a surface drainage area or a ground may contemporaneously consier two or tives” over water along contends that the Commission exceeded its the lines recognized wOter basin or a combination of the two,” more proceedings which involJe substan in MeBryde and its statutory authority and the hounds of reason progeny, by virtue of its HRS § 174C—3, but does not define “hydro tially the same parties or issues which are status. as “the legacy of by collectively regulating water drawn from the Kamehameha logically controllable area.” The plain read the same or closely related, if jfinds that ali’i.” 7 different hydrologic units. ing of the latter term indicates that the area 86. KSBE assigns particular signifl4ance to the Commission properly denied ICSBE’s All the lands in question lie within “controlled” by the ditch system qualifies, representations by both permit ap [108] leeward and windward plication. As a result, we .see nothing parties during the proceeding that illegal or designated water management areas and, irrespective of “hydrologic units.” no one but irrational in the Commission allocating KSBE was seeking water from KSBE’s water lands. otherwise flowing into the ditch bifurcate proceedings, the mea We agree that, as a practical matter, the Com from KSBE’s 84. KSBE estimated its average use to be 1.88 motion, to the lands to permitted uses elsewhere. mgd at the completion of Phase I and 2.92 mgd surement of ditch flows at Adit 8, and the alloca mission has allocated water drawn from at full build-out. tion of water drawn from KSBE’s lands to other KSBE’s lands to other leeward parties. The 87. See generally parties. leeward permittees, however, do not object to George S. Kanahele, Pauahi 85. KSBE specifically contests the denial of the this disposition, nor could they sensibly do so, 164—66 (1986) (documenting the derivation of Commission staffs proposed order, and KSBE’s given the indivisible nature of the ditchs flow. KSBE lands). As for KSBE’s objection, we have held that the 176 94 HAWAI’I REPORTS 177 P.2d at 1337—39; of Peck 8 Raw. at .661—63 We have held that the state has a public Three doctrines have been advanced by Id. at 922—23 (emphasis added). After es (rejecting the claim that the owner of the trust duty to protect Native Hawaiian rights courts and text writers which bear more or chewing the “common-law rule” as “unsound” part of an ahupua’a had superior to water. We also acknowledge KSBE’s larger less directly on this subject. One referred and inconsistent with the free-flowing nature as “lord paramount”). We need not unique background as a charitable trust rights to in the argument of this case and in some of underground waters, the court adopted the the analysis, ably presented in those founded by a Native Hawaiian ali’i. Whatev repeat of the books as “the common-law doctrine” “correlative rights rule,” to the effect that: -in disposing of }CSBE’s argument legal significance this legacy may carry, decisions is that an individual owner of a piece of er Jach [landowner] should so exercise his however, it certainly does not grant KSBE here. land, who has the good fortune to sink -ight as not to deprive others of their “absolute” or “undiminished” right to all the successfully an artesian well on his [or her) in whole or in part. In times of water connected with its lands. KSBE’s 4. Correlative Rights land, is the absolute owner of all the water all, must lenty greater freedom of use probably claim of sovereign right, first of Two parties to this appeal, KSBE and that naturally flows from the well or that to which it an be permitted and ordinarily would be ultimately yield to the sovereign Castle, assert “correlative rights” to ground can be drawn therefrom by any pump, XII, 7 (pro termitted without question. In times of appeals. See Raw. Const. art. § water collected by the ditch. Castle’s prede however powerful, and that he [or she] customary rights kreater scarcity or of threatened scarcity viding that traditional and cessor originally applied for a permit as the may use the water as he [or she] pleases to qr deterioration in quality of the waters, all are subject to “the right of the State “owner” of the Uwau Tunnel of the. ditch and may conduct it to suppl lands and extent that would be required under this view to so regulate such rights”). To the system and the approximately 2.7 mgd of communities at any distance fjom his [or oyer conduct themselves in their use of the wa the ali’i exercised sovereign authority ground water derived therefrom. The Com her] own piece or parcel of land and may by dele ter as not to take more than their reason water, they received such authority mission did not address the ownership claim even waste it. Another, sometimes called Pursuant to able share. gation from the sovereign. in granting Castle a permit; on appeal, Cas “the reasonable use doctrine,” is that an mandate, final constitutional and statutory tle’ merely defends its permitted allocation.as individual owner of land possessing such a Id. at 925.° authority presently resides in the use.” well may use all of the waters flowing from delegated a protected “existing correlative Having determined the nature of plaintiff’s to be exercised for the benefit in maintaining the well by nature or obtainable therefrom Commission, KSBE has gone. further rights to ground water, the court reversed of the state. See Haw. Const. water by pumping, provided the water is-used on of the people throughout that it “owns” the ground the commission’s denial of plaintiffs permit 174C—7(a). his [or her] own land only, but that he [or art. XI, § 7; HRS § drawn by the ditch from its lands. application for the construction of a new well. law makes she) may so use it either for domestic Moreover, as our prior case ‘Castle and ICSBE base their claims on this The police power, the court held, did not speak of “sovereign purposes or for irrigation or for the main clear, it is fruitless to court’s decision in.City Mill Co. v. Honolulu “justify, under the showing made in this case, responsibili tenance of factories or other industrial pur rights” apart from “sovereign Sewer & Wafer Commtn, 30 Haw. 912 (1929). the prohibition of the appellant’s proposed 65 Haw. at 547—48, poses. Under this rule there is no limit to ties.” See, e.g., Reppun, In that case, the appellant City Mill peti well while at the same time permitting all out the “funda the quantity of water that may be used, 656 P.2d at 68-69 (pointing tioned the Honolulu Sewer and Water Com existing wells to continue to be operated “separation of the provided it is used on the owner’s land. mental mistake” in the mission for a permit to drill an artesian well without diminution.” Id. at 946. water from its concomitant The third is known as “the ride of correla ‘right’ to control on its property. See ÜL at 918. The com ).89 no substantive tive rights” and is to the effect that all of This state continues to recognize the “cor ‘duty’ KSBE undertakes mission denied the application based on evi duties owed to the owners of lands under which lies an relative rights rule.” See Haw. Const. art. discussion of any sovereign dence that the new well would further threat See supru. Part III.B. In artesian basin have rights to the waters of XI, § 7 (referring to “correlative uses”); the common good. en the already overburdened ground water than that basin; that each may use water there HRS § 174C—27(a) (1993) (same); Reppuis, this regard, KSBE does little more at 921. supply. Id. from as long as he [or she] does not injure 65 Haw. at 555—56 n. 16, 656 P.2d at 73 n. 16 revive the same claims of absolute right to the court first reviewed the thereby the rights of others that in (citing City Mill )91 water previously disapproved by this court. On appeal, and As this court noted in rules governing ground waters: times when there is not sufflciet water for Reppun, however, “groundwater See, e.g., McBryde, 54 Haw. at 184—87, 504 ‘common law rights have all each will be limited to areasonable never been defined with exactness atid the son of the ali’i nui was sacred (kapu) as 88. See Wells A. Hutchins. The Hawaiian System and share of the water. Under thin third rule precise scope of those rights have always (“Subject to the though he were a god (akua). His power of Water Rights 2 1—22 (1946) was from the king down authority (mana) was complete. But this a diversion of water to lands other than remained subject to development.” 65 Raw. [sovereign] power all persons of to have some rights in the lands not equivalent to our European concept that of origin might, perhaps, bjpertnitted at 556 n. 16, 656 P.2d at 73 n. 16. In City were considered Hawaiian products. (emphasis added)); FOF 981 ‘divine right.” The ali’i nul, in old or its person under some circumstances andf not under Mill the court only decided that the state (“Generally, water use and apportionment were thinking and practice, did not exercise oth others and certain larger uses, as for in could not arbitrarily prevent one landowner’s highly controlled by the chiefs, ... although ulti al dominion, but channeled dominion. In mate authority rested with the king ). er words, he was a trustee. The instances in dustrial purposes, might, perhaps, not be use while allowing other landowners’ uses which an ali’i nui was rejected and even killed permitted on even the land of origin under freely to continue and saw “no necessity, 89. As we observed in that case: of his role are sufficient because of his abuse some circumstances while being permitted therefore, of stating with exactness the pre [The] paramount chief [ali’i nui’or mo’i), horn proof that it was not personal authority but on the soil and hence first-born of the maka’ai trusteeship that established right (pono). under others. cise principles which should govern the ad- (island or dis none [commoners] of a moku Water, then, like sunlight, as a source of life medium in whom was vested 90. As this description indicates, the correlative 91. Based on the facts of City Mill, WWCA and trict), was a to land and man, was the possession of no and authority. But this invest right of an overlying landowner is analogous to the City argue that correlative rights only encom divine power man, even the ali’i nui or ino’i. which was established ritualistically as that of a riparian owner’s right [of reasonable pass use for domestic purposes. We find no ment, Ed. at 548 n. 14, 656 P.2d at 68-69 n. 14 (quoting genealogical -primacy, was instru use] in a stream.” Wright v. Goleta Water Dist., reason or precedent for such a limitation on well as by Handy & Handy, supra, at 63). mental in providing only a channeling of pow 174 Cal.App.3d 74, 219 Cal.Rptr. 740, 746 er and authority, not a vested right. The per- (1985). 178 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 179 Cite es 94 l4awi’j 97 (2000) 5t3j5 must proceed measurement of the share of each [land]own 141 Cal. 116, 74 P. 766, 772 (1903), according to the relevant Code transport and use surface or ground water provisions, er.” 30 Haw. at 933. Parties transporting water to distant lands rather than the common law. beyond overlying land or outside the wa are deemed mere “appropriators,” subor Article I, section 7 of the Hawai’i Constitu tershed from which it is taken if the com [110] As a preliminary matter, we affirm dinate in right to overlying landowners. See tion mandates that the Commission “assur[e] mission determines that such transpàrt the Commission’s conclusion that the rule of id.; Wright, 219 Cal.Rptr. at 749; Tarlock, appurtenant rights and existing correlative and use are consistent with the public in correlative rights applies to all ground wa supro., § 4:14. Castle can thus claim no and riparian uses.” (Emphases added.) The terest and the general plans and land ters of the state. COLs at 29? As the use “correlative rights” in this case. legislature preserved this distinction in the policies of the State and counties. Commission observed, althoOgh the facts of Code. HRS § 174C—27, for example, provides City Mill involved “artesian” waters specifi As for KSBE, the correlative HPS § l74C—49(c). [114—116] that the existing usage validated in certifi cally, the decision offers no sound basis for rule grants overlying landowners a rights cates issued by the, Commission “shall be [18} The foregoing provisions, therefore, distinguishing “artesian” water from any oth only to such water, as necessary for right recognized by the commission in resolving reflct the legislative purpose of substituting, er category of ground water, including the reasonable use. See Katz, 74 P. at 772; City claims relating to existing water rights and in signated management areas, a compre dike-impounded “percolating” waters in Haw. at 932 (“[Ejach landowner is Mill, 30 uses including appurtenant rights, riparian hei4ive regulatory system based on permits volved in this case.93 Modern hydrology has reasonable exercise of his [or restricted..to a and correlative use.” (Emphases added.) issud by the Commission in place of the erased the traditional distinctions among use of his her] own rights and a reasonable common law regime of water rights adminis water categories. See Tarlock, su HRS § 174C—63 states in releVant part: ground [or her] own property, in view of the simllar tered by the courts. “Appurtenant rights are preserved.. See generally Tarlock, pro, § 4:5. Present knowledge and necessity rights of others.” (quoting Meeker v. City of Nothing in this supro., § 3:89 to 3:100 (reviewing statutory have also compelled states to abandon the 623, 74 A. 379, 380 part shall be construed to! deny the Eost Orange, 77 N.J.L. nodifications of common law riparian rights);’ “absolute dominion” or “common law” rule, exercise of an appurtenant right b’ the hold (1909))). Until overlying landowners develop infra note 98. on a landowner er at, any time. A permit for Under the statutory permit-. which imposed no limitation actual need to use ground water, nonover water use an based on ting process, common law riparian and cor to drain “percolating” water to the injury of available “sur an existing appurtenant right shall lying parties may use any relative rightholders receive priority 1) to the his or her neighbors. See id. § 4:7 to 4:18; 219 be issued upon application,” See also HRS plus.” See Katz; 74 P. at 772; Wright, extent that they have established an City Mill, 30 Haw. at 926—33 (recognizing the § 174C—101(cj) (“The appurtenant water “exist-: Cal.Rptr. at 747. In this case, KSBE was ing” use that a) comports general trend away from the rule of absolute rights of kuleana and taro lands, along with with the common asserting correlative rights to use water for law rules and b) is ownership). The City Mill court avoided the those traditional and customary rights as reasonable and beneficial, landscaping purposes prior to obtaining the but only in issue, stating that the common law rule sured in this section, shall not be diminished 2) relation to “new” uses. See necessary land use approvals for its proposed Conf. Comm. Rep. No. “may, or it may not, be applicable to waters or extinguished by a failure to apply for or 119, in 1987 House ‘development. The Commission thus proper Journal, at 1069 merely oozing in or seeping through soil.” receive a permit under this chapter.”). The (“Appurtenant rights may ly denied KSBE’s application as premature, not be lost. 30 Haw at 924. Presented with it here, we Code contains no comparable provisions pre Riparian and correlative uses without addressing the reasonableness of are protected in adopt the correlative rights rule in City Mill serving riparian and correlative “rights.” designated areas.” (emphas KSBE’s proposed use. es added)); Ko’olau in relation to all the ground water resources HRS § 174C—50(b) requires the Commission Agricultural, 83 Hawai’i at 492, 927 P.2d at 1375 of our state. To the extent that previous [117] Even apart from the correlative to issue permits for existing uses upon com (“Existing uses are given preferences under the cases may be construed as following the “ab rights Castle and KSBE may have at com pliance with the proper procedures, see su Code; that pref erence is lost, however, if solute dominion rule” for certain ground wa mon law, however, the Water Code estab pro. Part III.F.4.a (definition of “existing the existing user fails to apply for a ter categories, see Davis v. Afong, 5 Haw. lishes a different order of priority that gov use”), provided that they are reasonable and permit to continue the, existing use.”). 216, 222—23 (1884); Woni Leong v. irwin, 10 ems this case. As currently structured, the beneficial. HRS § 174C—.49(a)(3) conditions over Haw. 265, 270 (1896), they are hereby Cde establishes a “bifurcated system of wa permits for “new” uses on the applicant Neither Castle nor KSBE have established ruled. ter rights.” Ko’olau Agricultural, 83 Ha showing that the use “wifl not interfere with an existing legal correlative use in the pres “In [water any existing legal use [111—113] Turning to the instant case, we i’i at 491, 927 P.2d at 1374. of water.” (mphasis ent case. Castle and KSBE thus cannot provi added.) note that Castle and KSBE’s “correlative management areas], the permitting Wl3en existing uses are “compet claim any superior right or entitlement to a ing,” rights” claims exceed the scope of such rights siont of the Code prevail; water rights in however, the Code grants thek]ommis permit in relation to any other permit appli sion at common law. Castle asserts a’right to use non-designated areas are governed by the discretion, after a hearing, “to determine cant under the Code. Consequently, the the ground water drawn from its windward lands common law.” liL In this case, the lands quantity of water that may be nsumned Commission’s conclusions that “the ability to and on distant leeward lands. Correlative rights, from which Castle and KSBE seek ground the conditions to be imposedon each transport water away from its overlying land ground water management areas. existing use.” HRS § 174C—50(h). 1’ or area of however, extend only to uses on lands overly water lie in origin is ... subject to other ing the water source. See Katz v. Walkin Any determination of their rights, therefore, Finally, although the common law rules of superior claims,” COLs ‘at 31, and that Tar riparian and correlative rights impose certain “[KSBEJ has correlative rights to ground 92. None of the parties dispute this conclusion. ferred to water confined under pressure, see lock, supra, § 4:3. Today, all diffuse Waters are restrictiona on the export of water out of the water underlying its land,” id, at 30, have no 93. Ground, water was traditionally classified as known as ‘vadose’ water, or water in the va watershed or to nonoverlying lands, the Code bearing on the statutory permitting process or either artesian’ percolating,’ ‘under dose zone,” and “artesian’ denotes but one sub expressly and, in this case, amount to mere watercourses.’ See Tarlock, supra. known provides: academic ground Set of a general category of water bodies legal commentary. § 4:5. “Percolating” referred to diffuse water as “aquifers.” See Murphy, supra, § 20.07(b)(1), The common law of the State to the con watercourse, see Earl not flowing in any defined at 101. trary notwithstanding, the commission To Ground Water Law, in 3 summarize, Castle and KSBE have not F. Murphy. Quantitative shall allow the holder of Water Rights § 20.07(b)(l), and “artesian” re a use permit to established any entitlement to water under 94 HAWAPI REPORTS iN RE WATER USE PERMIT APPLICATIONS 181 180 Cite as 94 HawaIi 97 (2000) of underlying owners to a like use and enjoyment cml the traditional scope Of the common law rule owners absolute ownership use, with “administrative rights” based such regulation.98 (quoting Patrick v. Smith, 75 Wash. 407, 134 on of correlative rights. In any event, under ground water free from permit systems. See Model Water Code, P. 1076, 1079 (1913))).97 Consequently, de supro, ch. the controlling Code permitting provisions, It is generally recognized that a simple 1 commentary at 78—79 (identify pending on the situation, a landowner could ing Castle and KSBE have no superior “right” to private onmership model of property is three advantages of permit systems over be entitled to certain uses of water but not a permit because they have not established conceptually incompatible with the actual common law rights regimes: 1) the agency others. Even established uses could later makes any “existing” correlative uses. ities of natural watercourses. Rather, the its decisions before disputes have fall into disfavor. A severe shortage could eriipted variable and transient nature of the re into litigation; 2) the agency makes foreclose use altogether. Usufructuary wa 5. KSBE’s Takings Claim as well as the necessity of preserv itsi decisions on a comprehensive, rather than source, ter rights, in sum, “have always been who are incom piemea1, basis; and 3) agency decisioninak [1191 Having reviewed the legal founda-. ing its purity and flow for others plete property rights, so. the expectations of er are experts and base their KSBE’s claims of right, we address entitled to its use and enjoyment have led decisions on tion of [rightholders] to the. enjoyment of these box-range has rights being uniformly regarded plans).98 Pursuant to article XI,. KSBE’s allegation that the Commission to water rights are generally weaker than the expec and correlative in na seJtion ‘7 of its constitution, this state has effected an unconstitutional “taking” of as usufruct[ua]’ry tation of the right to exploit the full value of follpwed suit. Courts in other jurisdictions KSBE’s property without just compensa ture. dry land.” Tarlock, supra, § 3:92, at 3-153. have sustained such regulation against con tion ‘ by denying KSBE’s request to use at 667, 658 P.2d at 205—06 See also Model Water Code, Robinson, 65 Haw. spro, ch. 2 stitutional challenge. See Omernik v. State, such water and allocating it to other leeward see also City Mi14 30 commentary at 165-68 (recognizing (emphases added); the un 64 Wis.2d 6, 218 N.W.2d 734 (1974); Omer parties. First of all, we have held that the (acknowledging the fluid and certainty of riparian rights and1 the Haw. at 925—27 corre nick [sic] v. Department of Natural Re Commission properly denied KSBE’s permit water in rejecting the sponding absence of a “property migratory nature of interest in sources, 71 Wis.2d 370, 238 N.W.2d 114, cert. application for noncompliance with the statu ownership). In line with this those particular rules of distribution prevail rule of absolute denied, 425 U.S. 941, 96 S.Ct. 1679, 4,3 tory conditions, see Part 111.1.1. KSBE’s tak correlative rights rule of ing at any time”); Joseph L. Sax, The understanding, the Con L.Ed.2d 184 (1976); Village of Tequesta v. ings claim is thus entirely premature. See not describe an unqualified stitution, Property Rights and the Future of City Mill does Jupiter inlet Coxp., 371 So.2d 663 (Fla.), cert PASH, 79 Hawai’i at 452, 903 P2d at 1273 but a limited, situational Water Laui 61 U. Cob. L.Rev. 257, right of oumershi 267—69 denied, 444 U.S. 965, 100 S.Ct. 453, 62 (citing Williamson County Regional Plan at all times on numer (1990) [hereinafter Sax, Water Law] right of use contingent (ex L.Ed.2d 377 (1979); Town Of China Valley a. ning Comm’n v. Hamilton Bank, 473 U.S. See icL at 931 (recognizing the plaining how “change is the unchanging ous variables. City of Prescott, 131 Ariz. 78, 638 P.2d 1324 172, 185—86, 105 S.Ct. 3108, 87 L.Ed.2d 126 trend” away frOm the doctrine of chronicle of water jurisprudence”). “trong (1981) (en banc), appeal dismissed, 457 U.S. (1985); Robinson a. Ariyoshi, 887 F.2d 215 irresponsible control” towards In the “unlimited and interest of protection and maximum 1101,102 S.Ct. 2897, 73 L.Ed.2d 1310 (1982); (9th Cir.1989)). rule considering various factors according beneficial use of water a resources, numerous Cherry a. Steiner 543 F.Supp. 1270 (D.Ariz. that one cannot exercise rights states have [120, 1211 But KSBE’s argument suffers to the maxim enacted legislation replacing 1982), affc4 716 F.2d 687 (9th Cir.1983), cert injury, of others (quoting Co.gnon v. common law rights, from more fundamental flaws. KSBE relies to the particularly those not yet denied, 466 U.S. 931, 104 S.Ct. 1719, 80 Lick Hotel Co., 163 md. 687, converted into on City Mill in insisting that it “owns all of French Springs actual reasonable and benefi L.Ed.2d ‘190 (1984). They join many others its lands.” 72 N.E. 849, 852 (1904))). KSBE emphasizes the ground water underlying 97. KSBE cites in priority given to dictum City Mill speculating use area designation); Iowa Code Ann, case, in fact, expressly rejected the one aspect of the rule, the that “fiJf a person or That other entity should pur § 455B.265(2) (West Supp.l999) (July 1, 1985); uses of overlying landowners. The rule, chase all of a large tract of notion of absolute ownership advanced by land under which an Md.Code Ann., Envir. § S—5O2(c) (Supp.1999) of “reason artesian basin exists, it See 30 Haw. at 923—24. Moreover, owever, also includes an element would be easy to take the (July 1, 1988 for agricultural uses); Mass. Gen. KSBE. view, we think, that that which requires examination of the owner of the land would Laws Ann. ch. 21G, § 7 (West 1994) (effective, contrary to KSBE’s reading, City Mill ableness,” be the sole owner of the water un&rneath it:” date of the implementing regulations); Miss. proposition that, all purpose, manner and quantity of the pro Id. at 924—25. KSBE stands for the narrow has not demontrated that Code Ann. § 51—3—5(2), (3) (1999) (April abstract and in relation it is the sole owner 1, things being equal,. the government cannot hosed use both in the of the entire giund water 1985); N.J. Stat. Ann. § 58:IA—6 basin (West Supp. from using to ther uses, and with due regard to the in question. In any event, tt the extent 1999) (August 13, 1981); entirely prevent one landowner that the’ foregoing water supply and broad issues of dictum suggests dhat a land ground water while allowing the uses of oth available owner may claim absolute ownership (“[Ejach land of ground er landowners to continue unabated.98 It public policy. See üL at 930 water, we overrule it as contrary to the rule of in a reason reasonableness, the does not preclude the regulation of water owner may use such water only basic understancjhg of usu upon fructuasy rights, and the public trust. uses pursuant to a comprehensive system able manner and to a reasonable extent his [or her] own land and without undue designed to ensure the highest and best use 98. Like the State Water Code, such statutes of other land- gen of the state’s water resources, or grant land- interference with the rights erally grant preferences or exemptions to uses in existence by a certain deadline, usually the effec Stat. Ann. 42—311 (1993); ND. Cent. 94. The fifth amendment to the United States e.g., Kan. § tive date of the statute, See, e.g., Ala.Code § 9— Constitution states in relevant part: “[N)or shall Code § 61-04—02 (1995). IOB—20(a), (b), (d) (Supp.1999) (within 90’or 180 private property be taken for public use, without days of the promulgation of the implementing just compensation.” Article I, section 20 of the 96. This court’s recognition that water rights have rules for certain public water systems, or Jan. 1, Hawai’i Constitution states: “Private property financial value for eminent domain purposes, see, 1993 for certain irrigation uses); Conn. Gen. shall not be taken or damaged for public use e.g., City & County of Honolulu v. Collins, 42 Stat. § 22a—368 (1999) (July 1, 1982); Fla. Stat. without just compensation.” Haw. 199, 210—14 (1957), is inapposite to any Ann. § 373.226, (West Supp.2000) (April 25, analysis under either the police power or the ‘1972): Ga.Code Ann. § 12—S—31(a)(3), 12—5— in otherstates, by contrast, have pre 95. Statutes trust. 105(a) (1996) (July 1, 1988); lnd.Code right to initiate domestic uses not public Ann. served the § 14-25—3—11 (Burns 1995) (date of unlike those denied the plaintiff in City Mill. See, restricted 182 94 HAWA1’1 REPORTS IN RE WATER USE PERMIT APPLICATIONS Cite as 94 Hawaii 97 (2000) 183 853 (Tex.Civ.App. tutional taking.’°1 that have validated statutes taking the seem PlantationS 346 S.W.2d ersmit’s testimony as irrelevant. We review ingly more substantial step of abolishing 1961) (holding that Spanish and Mexican ri evidentiary rulings concerning admissibility unexercised common law riparian or ground parian land grants did not include appurte 6. Ankersmits Testimony based on relevance under the right/wrong 163 Tex. 381, water rights in order to accommodate the nant irrigation rights), affd, KSBE finally contends that the Commis standard. See State v. Staley, 91 Hawaii (1962). Even beyond the development of private appropriative 355 S.W.2d 502 sion erred by refusing to qualir one of 275, 281, 982 P.2d 904, 910 (1999). KSBE original limita rights.’t0 police power, therefore, the KSBE’s witnesses, Barbara Ankersmit (Ank asserts that the public opinion poll was rele defeats KSBE’s The foregoing courts have primarily justi tion of the public trust ersmit), as an expert •and by striking her vant to whether its proposed water use was water. See fied the disputed regulations based on the claims of absolute entitlement to testimony. At KSBE’s request, Ankersmit “cOnsistent with the public interest,” HRS P.2d at 1273 IJ police power. See, e.g., Omernik, 218 PASH, 79 Hawai’i at 452, 903 had conducted a public opinion poll of ap § 74C-.49(a)(4). Even assuming the accura government as N.W.2d at 743; Teqnesta, 371 So.2d at 670; (acknowledging that “the proximately 1,600 adult O’ahu residents re cy of Ankersmit’s findings, nothing in the easement Knight, 127 N.W.2d at 711—14; California’- suredly can assert a permanent garding the direction of future growth on costitution or Code identifies current public upon [4 Oregon Power, 73 F.2d at 567—69; cf Hud that reflects a pre-existing limitation O’ahu and the allocation of water from oppion as a ielevant consideration in the son County Water Co. v. McCarter, 209 U.S. the landowner’s title” (quoting Lucas v. Waiahole Ditch System. During the hearing, codsprehensive, long-term regulatory process 349, 356, 28 S.Ct. 529, 52 L.Ed. 828 (1908) South Carolina Coastal Council, 505 U.S. the Commission initially sustaineçl an objec ,implemented by the Commission. We agree (averring that the public interest in substan 1003, 1028—29, 112 S.Ct. 2886, 120 L.Ed.2d tion to Ankersmit’s qualifications, allowing wits the Commission that a public opinion .tially undiminished rivers is “omnipresent” 798 (1992)) (internal quotation marks, ellipsis, her to testir nonetheless about he survey, poll taken at random, without regard to the and “fundamental” and that “private proper and brackets omitted)); cf Mississippi then struck her testimony in its entirety, respondents’ background or knowledge con ty ... cannot be supposed to have deeper State Highway Comrn’n v. Gilich, 609 So.2d stating that “this particular information is cerning the relevant issues, has no bearing roots”). While this rationale is compelling in 367, 375 (Miss.1992) (holding that landowners irrelevant.” on the Commission’s constitutionally and itself, the Code rests on the further principle had no right to compensation with respect to statutorily appointed mission of comprehen [122, 123] We review determinations that the state holds all waters of the state in beach land held in trust by the state for of sive water resource planning and manage As stated expert qualifications under the abuse trust for the benefit of its people. public use); Wilson v. Commonwealth, 31 of dis ment. Cf Kaiser Hawaii Kai Des. Corp. v. cretion standard. See State previously, the reserved sovereign preroga Mass.App.Ct. 757, 583 N.E.2d 894, 901 (1992) v. Rodrigues, 67 City & County of Honolulu, 70 Haw. 480, of the state precludes Haw. 70, 73—74, 679 P.2d 615, 618 tives over the waters (noting that, if the public trust were found to (1984). An 483-84, 777 P.2d 244, 246—47 (1989) (holding vested rights to water con abuse of discretion occurs when the decision- the assertion of 1apply, “plaintiffs, from the outset, have had that the zoning enabling, statute evinced leg trary to public trust purposes. This restric maker “exceeds the bounds of reason or dis islative only qualified rights to their shoreland and policy against land use zoning tion preceded the formation of property regards rules or principles of law or practice have no reasonable investment-backed expec through the initiative process because “[z]on rights in this jurisdiction; in other words, the to the substantial detriment of a party.” ing tations under which to mount a taking chal by initiative is inconsistent with the goal right to absolute ownership of water exclu Bank of Hawaii v. Kunimoto, 91 Hawai’i of long lenge”), a,fl’d in part and rev’d in part, 413 range planning”). Accordingly, the sive of the public trust never accompanied 372, 387 984 P.2d 1198, 1213 (1999). Commission Mass. 352, 597 N.E.2d 43 (1992); State v. properly excluded Ankersmit’s the “bundle of rights” conferred in the testimony Slotness, .289 Minn. 485, 185 N.W.2d 530, 533 [1241 Hawai’i Rules from consideration in the hearing. Mahele. See Robinson, 65 Haw. at 677, 658 of Evidence (HRE) (1971) (“Riparian rights ... are held subject Rule 702 (1993) provides for the qualification P.2d at 312; see also PA.SH 79 Hawai’i at I. REQUIREMENT TO FUND STUD to the stated public rights in navigable wa of an expert “by knowledge, skill, experience, ‘: 442—447, 903 P.2d at 1263—68; c.f Califor IES public training, niaOregon Power; 295 U.S. 142, 55 S.Ct. ters, and the mere exercise of those or education.” KSBE proffered of riparian Ankersmit as [127] Campbell Estate, joined by other 725, 79 L.Ed. 1356 (holding that federal land tights does not constitute a taking a “public opiniot” expert. enactment Ankersmit leeward parties, (collectively, the leeward patents issued after the enactment of the jlroperty.”). As such, neither the testified regarding her’ extensive experience permittees) object to the requirement Desert Land Act carried with them no com the Code nor the denial of KSBE’s permit in the field of public opinion poll .that 4 they contribute to rights); State v. Vnimont application thereunder effected an unconsti ing, spanning 23 years and “over 000” sur subsequent stream studies mon law water and monitoring veys for various private and govertment or activities. The relevant part :I Baumann s’ Smrha, 145 F.Supp. So.2d at 1356 (1935); ic use of its land. See Tequesta, 371 ganizations. The objecting party of the Commission’s decision reads: that restriction on landowner’s 617 (DEan.). aff’d, 352 U.S. 863, 77 S.Ct. 96, 1 presented 669—70 (holding no specific The permittees on whose lands water use “deprived [owner] of no beneficial use L.Ed.2d 73 (1956); Williams v. City of Wichita, rebuttal to her quaications. the wa dis ter of the land itself” and, thus, did not constitute a 190 Kan. 317, 374 P.2d 578 (1962), appeal Based on the record, we hold that Com from the Waiahole Ditch system is L.Ed.2d 38 Ihe taking); see also Lucas, 505 U.S. at 1017 n. 7, missed, 375 U.S. 7, 84 S.Ct. 46, 11 mission abused its discretion by dclining used shall prepare, or contract for, a por v. Hoisveefl, 157 N.W.2d 728 (N.D to 112 S.Ct. 2886 (relying on the “rich tradition of (1963); Baeth quaiify Ankersmit tion of the studies and monitoring at 1968); Knight v. Grimes, 80 S.D. 517, 127 as an expert. activities protection” of the “fee simple interest” in land resulting and on the state court’s finding of a N.W.2d 708 (1964); In re Deadman Creek Drain from this order (see, for example, common law [125, 126] We do not loss of all economic use of the land in deciding age Basin, 103 Wash.2d 686, 694 P.2d 1071 believe, however, In re: Mono Lake, Decision 1631, State of that the Commission that a “total taking” had occurred). (1985); see also erred in excluding Ank California Water Resources Control Board,

101. KSBE also alleges its 100. See, e.g., In re Hood River, 114 Or. 112, 227 a taking of “ali’i 1047, 87 LEd. 1390 (1943) (holding that rights.” See supra Part lIl.H.3. the P. 1065 (1924), appeal dismissed, 273 U.S. 647, The withdrawal grant of the sovereign power of eminent or limitation of delegated sovereign domain 47 S.Ct. 245, 71 LEd. 821 (1926); California— authority, to a private party “is a mere revocable however, does not amOunt to privilege Power Co. v. Beaver Portland Cement Co., a taking of proper for which a state cannot be Oregon ty. See, e.g., United States ar required to make 555 (9th Cir.1934), aff’d on other ret. Tennessee Valley compensation”). 73 F.2d Auth. v. Powelson, 319 U.S. 266, grounds, 295 U.S. 142, 55 S.Ct. 725, 79 LEd. 276, 63 S.Ct. 94 FIAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 184 Cite s 94 Hwj’I 97 (2000) that a transfer that development exactions invalidated in Nollan Ass’n v. 9/20/94, page 211, ii Se). Funding shall be (last paragraph) (stating United States, 415 t.S. 336, 341, 94 of the and Dolan fails at the outset. See S.Ct. based on the amount of water used and “involves a change in any condition Sax, Wa 1146, 39 L.Ed.2d 370 (1974)). The lee constitutes a ter Law, supra, at 280 owner ward shall be on a pro rate basis. The Commis permit .. is also invalid and (“[A]n of a permittees fail to acknowledge, howev water right has a lesser property right er, that the sion shall establish a committee to recom ground for revocation”); FIRS § 1740—62(0 than studies directly relate to their of any the landowner in Nollctn burden mend a reasonable amount for the funding, (1993) (requiring notice to permittees The state is of proving that their uses are “rea a declared not ‘taking’ something sonable-beneficial” and coordinate and set up the mechanism change in permit conditions due to belonging to an owner, and “consistent with the expressly but is asserting a right it always public for the collection, accounting, and distribu water shortage). These provisions, held as a interest,” FIRS § l74C—49(a). As pre the Com servitude burdening owners of viously discussed, the lack of any tion of the funds. The committee shall and by obvious implication, grant water previous rights.”).’53 cmprehensive submit its findings and recommendations mission wide-ranging authority to ëondition studies precluded the permit use permits in accordance with its tes from proving, and the Commission from to the Commission for approval within water [129] The leeward permittees’ contention Final to protect and regulate water re c4sterrnining, the actual extent to which the eight (8) months from the date the mandate that the funding requirement constitutes an for the common good. Presumably, djversions would sacrifice public values in [D&O] is issued. sources illegal “tax” is closer to the point, but similar encompasses the requirement the windward stream and estuary ecosystem. D&OatlO. such authority ly unavailing. See Kentucky River Auth. v. that a permittee contribute to studies that Rather than denying the permits for insuffi The leeward permittees maintain that the City ofDctnville, 932 S.W.2d 374 (Ky.Ct.App. will assist the Commission in determining the cient proof, the Commission decided to grant Code requires the Commission to fund the 1996), cert. denied, 520 U.S. 11S6, 117 S.Ct.l the impact of the permitted use on the water permits with the condition that the per studies. The provisions they cite simply 1469, 137 L.Ed.2d 682 (1997) (inquiring mittees source. contribute to studies aimed at deter mandate that the Commission conduct vail whether charge assessed by ifrer authority mining the effect of the diversions. The assert, ous investigations, studies, and inventories. [1281 The leeward permittees for water use was an illegal tax or a legiti studies, therefore, “directly benefit” leeward un They do not command the Commission to however, that this condition amounts to mate user fee). We acknowledge that, while permittees in two ways: not only by helping in finance these activities on its own, or prohibit constitutional “regulatory leveraging” vio the Commission has the authority to condi them to marshal their requisite proof, but it from ordering appropriate alternative lation of the fifth amendment to the United tion permits on the payment of appropriate also by allowing them exclusive use of public sources of funding. See HRS §1 174C— States Constitution and article I, section 20 fees, it does not have any taxing power. See resources in the interim, despite the present 5(1), —31(c), —41(a), —43, —71(1)(E),-—71(4) of the Hawai’i Constitution, see supra note generally Haw. Const. art. VIII, section 3. In absence of such proof. The public as a (1993 & Supp.1999). 94. As the basis of their claim, they cite State v. Medeiros, 89 Hawai’i 361; 973 P.2d whole, to be sqre, will also gain from the Coastal Commission, 736 (1999), we FIRS § 1740—31(j) mandates that the Nollan v. California addressed the question wheth studies through enhanced knowledge and L.Ed.2d 677 er a Commission “shall condition permits under 483 U.S. 825, 107 S.Ct. 3141, 97 charge imposed by a governmental enti better informed regulation. Nevertheless, to States Supreme ty is a “fee” Part IV of this chapter in such a manner as (1987), in which the United instead of a “tax.” We devel the extent that the studies grant the leeward permit condition oped therein a to protect instream flows.” The Code in Court invalidated a building three-part test “analyz[ing] perrnittees benefits not shared by the public public access cludes numerous other references to permit requiring the dedication of a whether the charge (1) applies to the direct at large, perhaps even at the public’s ex lacked an beneficiary of conditions. See FIRS § 174C—49(e) (1993) easement, where the condition a particular service, (2) is allo pense, we do not believe it unfair to require of the underly cated directly (stating that all permits shall be subject to sential nexus” to the purpose to defraying the costs of pro the permittees to provide a reasonable share at 834—37, the rights of the department of Hawaiian ing building regulations. See ic.L viding the service, and (3) is reasonably pro of the costs. is 107 S.Ct. 3141. See also Dolan v. City of portionate to the benefit received.” IcL at home lands “whether or not the condition 1130] The second prong of the Medeiros permit”); HRS 21igard 512 U.S. 374, 114 S.Ct. 2309, 129 367, 973 P.2d at 742. explicitly stated in the test is satisfied insofar as the Commission’s Commission I.Ed.2d 304 (1994) (requiring “rough propor 1 1740—56 (1993) (requiring the The leeward permittees assei1t that “it is decision provides that any contributions by of all is tonality” between the development condition to conduct a comprehensive study not fair to require [them] to p4’ for studies the leeward permittees will help fund the years to and the impact of the proposed develop sued permits once every twenty which primarily determine the 4ffects of the studies. As for the last prong, we cannot thent). Nollan and Dola’n, however, dealt monitor compliance with permit conditions); decision on the general public Hr the wind determine at this time whether the funding with the regulation of fee simple interests in HRS § 1740—57(a) (1993) (providing that ward users.” In other words, with respect requirement is “reasonably proportionate” to of a real estate under the police power. This “modification of one aspect or condition to the first prong of the Medeirs test, they the benefits received by the permittees be ease, by contrast, involves the management permit may be conditioned on the permittee’s argue that the studies do not di4ctly benefit cause the Commission has not yet settled of usufructuary interests in water, a state acceptance of changes in other aspects of the them in a manner “not shar&1 by other how it will calculate the fees charged. The public trust resource to which no individual permit”); HRS § 174CL58(2) (1993) (allowing members of a society.” IcL at 366, 973 P.2d leeward permittees protest that. “the fees to can claim exclusive right.’02 Hence, the lee the Commission to suspend or revoke a per at 741 (quoting National Cable Television fund the studies are not set forth on a ached- analogy between the mit for “any willful violation of any condition ward pernsitees’ argued the land 103. Even if we were to apply Nollan ‘s “essential misses the point; it is precisely of the permit”); HRS § 1740—59 (Supp.1999) instant funding requirement and because the per nexus” test, the disputed funding requirement mittees have received allocations even while fall 147 would readily pass muster. Here, the funding address the additional question takings cases); Garneau v. City of Seattle, ing short in their burden of proof that the studies 102. We need not requirement directly relates to the public interest degree Nolian and Dolan F.3d 802, 812 (9th Cir.l998) (“Assuming [Nollan are necessary. The Commission, of course, has whether and to what in investigating and protecting instream uses and dedications to include mone and Dolan apply outside the context of physical yet to determine the actual fee rate. We note, in extend beyond land I values. The leeward permittees’ insistence that such as those presently at issue. invasions, a plaintiff must stilL show in the first any event, that Nollan and Dolañ do not require taty exactions the Commission must “measure the extent of any Corp. v. Petera, 70 F.3d [instance] that government imposition of the ex the level of mathematical precision See, e.g., Clajon Prod. proven or anticipated harmful effects of granting demanded by 21(10th Cir.1995) (viewing would constitute a taking.”). the leeward permittees. 1566, 1578—79 & n. action the permits” before imposing such a condition Noliais and Dotan as an extension of the physical 94 HAWAI’I REPORTS .j186 IN RE WATER USE PERMIT APPLICATIONS 187 Ct as 94 HawatI 97 (2000) and not applied uniformly; rather the objected, seeking clarification regarding the DOA/DLNR’s ule objection is unfounded. at the present time to satisfy water use be imposed on an individual basis meaning of “reasonable time frame.” The The proposed fees are to reservation, as its name sug permit applicants for those existing and monetary limit.” Their final decision affirmed the Commission’s ini gests, merely without any defined offers a suggested amount, future offstrearn uses identified in the [de are premature. Certainly, the tial ruling without the requested clarification. contingent on proper objections approval through rule cision] - Commission’s decision to measure the fees On appeal, DOA/DLNR contends that the making. The Commission is not bound by This detertnjnation does not mean. imposed on a pro rats basis according to Commission’s failure to clarify its decision this proposal. In this case, even as it ruled that the [Cityfs projected growth amount of water used should answer many of was arbitrary and capricious. on the water use permit applications and demands can be satisfied from Wai[a]hole Ditch their concerns. Cf Kentucky River 932 The Commission concluded that “[DOA]’s petitions to amend the interim standard for water; rather the [CityTs projected needs will S.W.2d at 377 (upholding fee based on actual proposed use of water for an agricultural windward streams, the Commission could an re ‘quire even greater analysis. use of water in the regulated river basin). park is still in the planning stage and not yet ticipate the need to address the already The evidence presented in this case indicates that As for the remaining details, the Commission certain enough to assure actual use within a pending petitions for reservations. By ear by the year 2020, water demand for’ should adequately address them as it deter reasonable time frame.” COLs at 26. In marking an estimated amount of water re Oahu’s pro jected growth (an additional 90 mines the final fee schedule based on the short, DOA’s application was premature. quired in the, subsequent proceedings, the mgd) will exceed the ‘island’s estimated committee’s recommendations and pursuant DOA/DLNR does not dispute this ruling, but Commission provided specific notice of its remaining ground water supply (76 to the appropriate decisionmaking proce simply protests that the lack of clarification proposal for further diversions for agricultur mgd) by at least 14 mgd. dures. We observe, however, that the term “leaves DOA, as well as other prospective al use in the near future. See generally “reasonably proportionate” describes a less [applicants], in great uncertainty” because HRS § 91—3(a)(l)(B) (requirin the agency COLs at 23 (emphases added). Contrary to exacting standard than that applicable to “no one will risk making a legal or financial prior to the hearing, to make available tha the City’s reading, this discussion suggests land use exactions. “[W]e do not demand commitment for an agricultural venture with proposed rule to be adopted). No error re no prospective bar to the City’s use of precise equality between the value conferred out the assurance that water will be avail sulted from such action. Waiahole Ditch water. Rather, it simply and fee charged. To be valid, a fee need able.” DOA/DLNR fails to explain, however, states the inescapable reality that, in times of only bear a reasonable relationship to the how mere clarification as to the proper time K. THE CITY’S MISCELLANEOUS scarcity and competition, no one, be it the cost of the services rendered by the agency.” frame for reapplication would lessen the un OBJECTIONS City or any other potential user, can expect the ultimate availabili National Cable Television Ass’n v. FCC 554 certainty surrounding The City takes issue with the discussion in to demand water in such quantities and from if the Commission advised F.2d 1094, 1108 (D.C.Cir.1976) (emphasis in ty of water. Even the Commission’s final decision concerning such sources as it sees fit. original). See also Massachusetts n United DOA when exactly to reapply, the Commis the City’s future water needs. The City first The City apparently rejects even this lat States 435 U.s. 444, 463 n. 19, 98 S.Ct. 1153, sibn would still have to decide at that later alleges that the Commission erroneously• ter proposition, however, inasmuch as it also 55 L.Ed.2d 403 (1978) (requiring only a “fair date whether the application fulfilled the foreclosed the City from using Waiahole opposes the requirement that it “prioritize” approximation of the cost of benefits sup statutory permit criteria. Ditch water in the future where “no notice its future demands. The relevant portion of plied”). the need for assurances was given We acknowledge that the City’s future use the Commission’s decision states: In conclusion, the Commission has the gen of water availability in the development plan would be considered and [the Commission] As competition for water eral authority to condition the permits upon ning process. The Code specifically address expressly precluded the City from presenting resources in creases, the analysis of both the compliance with the instant funding require es this need, however, in jrovid.ing for water evidence on that issue.” To begin, the City public interest and of reasonableness ment, which more properly falls under the reservations. The Commission did not rule does not mention or contest the Commis must be come both more rigorous and category of a regulatory fee, rather than a on any reservation petitions in the instant sion’s denial of the City’s petition for a water affirmative. The counties will be required to land development exaction. Under the stan proàeeding, but only decided that it could not reservation on grounds of untimeliness. The articulate their land use priorities with dard applicable to such fees, we hold that, as yet issue DOA a water use permit. DOA, City, moreover, fails to point to a single greater spec ificity. For example, even at a general matter, the funding requirement again, does not challenge this determination, adverse evidentiary ruling by he Commis the present time, there is more land zoned for does not constitute an illegal tax. We re and1 we do not deem it erroneous. Along the sion. The Commission, in fact,granted the various uses than available water to serve final resolution of this question, howev same lines, we cannot say that theCommis City ample opportunity during te hearing to supply those proposed uses. Thus, it is not er, pending the determination of the appro sion’s denial of DOA’s request for clarifica present evidence on its future water de sufficient to merely conclude that a priate fee schedule by the Commission. tion as to the “reasonable time frame” for mands.’°4 particular parcel of and capricious. land is properly zoned and that the use is reapplication was arbitrary In any event, the City overstss the Com “beneficial.” That minimal conclusion may J. DOA/DLNR’s MISCELLANEOUS DOA/DLNR also contests the Com mission’s ruling. The portion ofhe [132] decision be inadequate to resolve situations in OBJECTIONS set aside 1.58 mgd as a contested by the City reads as mission’s decision to follows: which competitive demand exceeds supply. agricultural reservation,” pending At least for the [131] In its proposed decision, the Com “proposed near term, water quantities Further analysis of public interest criteria to the rulemaking pro in excess mission denied DOA’s water use permit ap confirmation pursuant of the amended interim instream relevant to water (e.g., conservation, alter the Code, see HRS flow plication seeking 0.75 mgd for the DOA’s cedures mandated by standard and subject to the conditions native uses, comparative public costs and agricultural park “without prejudice to § 174C—49(d) (1993); supra note 3. Accord affecting supplemental flows are available benefits) will be needed. reappl[ication] when DOA can demonstrate ing to DOA/DLNR, the Commission lacks 104. The City also argues that the Commission Nothing in the record or the that actual use will commence within a rea the authority to designate a specified amount failed Commission’s deci to consider the economic impact of stream sion substantiates this claim. sonable time frame.” D & 0 at 10. DOA of water as a proposed reservation. restoration on potential municipal water uses. 188 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 189 Cite as 94 HawaIi 97 (2000) City’s land use Id. at 25 (emphasis added). Another portion will illegally “restrict” the classification).’06 tional framers and the legislature designed planning authority unless it accedes to any of the decision states: The Code contemplates coordination, rath the Commission as an instrument for judi all of the City’s water demands. Such The Commission concludes that all of and er than conflict, between the Commission and cious planning and regulation, rather than expansive view of the counties’ powers the proposed water use permit applicants an the counties. FIRS § 174C—49(a)(6), for ex crisis management.’°7 The Commission’s de into the express constitutional have or propose uses that are “consistent runs headlong ample, requires that water use permits is cision reflects the considerable time and at designation of the Commission with county land use plans and policies” and statutory sued by the Commission be “consistent with tention it devoted to this case; we commend matters of water except [KSBE] as noted above. While as the final authority over county land use plans and policies,” ensuring ts efforts. But much more work lies in the See Raw. these applications are all “consistent” with use planning and regulation. consistency between water and land uses. ritical years ahead if the Commission is to such land use plans and policies, the lack of Const. art. I, § 7; HRS § 174C—7(a). Both the water use planning and instream jealize its constitutionally and statutorily priority among the county plans and poli use protection provisions mandate coopera mandated purpose. cies only provides a minimal standard by [1331 In alleging that the Commission tion between the Commission and the coun We have rendered our decision with ut which to judge applications. imposed a “directive” to prioritize uses on ties. See HRS 174C—31(d) (“the commis most care, balancing due deference to the the IcL at 27 (emphasis added). the counties, the City misapprehends sion in coordination with the, counties Commission’s judgment with a level of scruti Commission’s position. The Commission has shall ny necessitated by The City asserts that requiring the coun formulate an integratea coordinate the ultimate importance acknowledged on appeal that it program of these matters to Lies to designate priorities among proposed consistently for the protection, conturration, an the present and future authority nor the inclination generations of our state. For uses usurps their land use planning and zon has neither the management of the waters in each county”); the reasons action by the City and that stated in this opinion, we in ing authority. The Water Code expressly to force any such HRS § 174C—71 (“In carrying ‘out this part, vacate part the “is, in fact, a re Commission’s decision and remand priorities the ... for reserves the counties’ authority with respect its discussion of commission shall cooperate with the addi As the Commis county tional findings and conclusions, with to land use planning and policy. The Code’s queht for [the City’s] help.” governments and any of their agen further hearings if necessary, consistent with “declaration of policy” states: “The state wa sion observed in its decision, the existing cies.”). The objectives of the Commission this accom and opinion, regarding the following: 1) the ter code shall be liberally interpreted and water supply is already insufficient to the counties will not always converge. des To the ignation of an interim instream flow standard applied in a manner which conforms with modate the land uses planned and zoned by extent that their respective functions and for windward streams based on the best in intentions and plans of the counties in terms the City. Thus, whether the City accepts it or duties permit, however, the Commission formation available, as well as the specific of land use planning,” HRS § 174C—2(e). not, this shortfall will compel the Commission and counties should be seeking common ground. In this regard, we apportionment of any flows allocated or oth HRS § 174C—4 (1993) further provides: to prioritize among proposed uses in making agree with the erwise released to the windward streams, see “Nothing in this chapter to the contrary shall ultimate choices among them. Indeed, the Commission that its prioritizing requirement supra Part III.D.3; 2) the merits of the restrict the planning or zoning power of any City itself must, as a matter of sound plan is not a threat to the City’s authority, but, petition to amend the interim standard for county under [FIRS] chapter 46.” See also ning policy, actively develop integrated water rather, is a call for cooperation and mutual Waikane Stream, see supra Part III.D.4; 3) HRS § 46-4(a) (1993) (stating that the coun use plans addressing the contingencies aris accommodation in keeping with the spirit of the actual need for 2,500 gallons per acre per ties’ powers “shall be liberally construed in ing from the limitations in supply, see, e.g., the Code. So understood, the City’s allega day over all acres in diversified agriculture, favor of the county exercising them”). FIRS § 174C—31(d). Such a process, if prop tion of error lacks merit. see supra Part III.F.2; 4) the actual needs of erly undertaken, will necessarily entail prio The City nonetheless fails to explain how Field Nos. 146 and 166 (ICI Seeds), see rilizing among competing uses.ttt The City’s IV. CONCLUSION any aspect of the Commission’s decision actu supra Part III.F.S.a., and Field Nos. 115, obections, therefore, not only contradict the ally interfered with the City’s planning func In the introduction to its deision and or 116, 145, and 161 (Gentry and Cozzens), see Code, but also disregard the need for priori tion. Insofar as the City formulated its pres der, the Commission projected jthat, “by the supra Part IH.F.3.b; 5) the practicability of tis in managing any scarce resource. See, ent plans while OSCo was still using year 2020, water demand r projected Campbell and PMI using alternative ground 174C—54 (competing applica Waiahole Ditch water, it can hardly claim e.g., HRS § growth of Oahu will exceed te remaining water sources, see supra, Parts III.F.3.c & 174C—62(a) (1993) (requiring that the plans depend on the availability of tion); HRS § ground-water resources on the island.” IcL III.F.4.d; 6) practicable measures to miti plan for periods of this water. More fundamentally, we reject Commission to formulate at 1. This forecast underscores the urgent gate the impact of variable offstream demand system of permit the City’s suggestion that the Commission water shortage, including a need for planning and prepa4tion by the on the streams, see supra Part III.F.5; and plan Commission and the counties before more 7) the merits of the permit application 105. The Commission’s decision includes an ex mands. An integrated water resource for cellent description of this planning process: encompasses the concept of least-cost plan serious complications develop. I’he constitu ditch “system losses,” see supm Part III.G. The Commission believes that an integrated ning and considers all types of resources 106. The City wrongly alleges that the water resource plan must be developed in or equally: new supply, conservation, reclaimed Commis 107. See, e.g., Stand. Comm. Rep. No. 77, in 1 for Oahu’s water future. This water, alternative rate structures, as well as sion aeeks to institute a system of “fixed priori Proceedings, at 688 (“The public trust] concept der to prepare ties” plan must address how we will meet Water other demand management methods. The between uses contrary to the public trust implies not only the power to protect the re demand given our dwindling supply and must planning process would assess and balance and the Code. The Commission does not demand sources but the responsibility to do so long be fore any prioritize competing demands. The plan competing needs such as urban, agricultural, a rigid hierarchy of uses applicable in any situa crisis develops.”); Stand. Comm. Rep. No. 348, in 1987 would construct various planning scenarios appurtenant rights, traditional and customary tion, but merely acknowledges that, in future House Journal, at 1262—63 (“[Y]our Committee, is of the to help decision-makers incorporate uncer gathering rights, Hawaiian Home Lands cases involving the Waiãhole Ditch Systçm, it opinion that the water code should serve as a tool and an incen tainties, environmental externalities, and rights, and stream protection and set priori will be required to deny certain uses in favor of tive for planning the wise use of Hawaii’s water community needs into decision-making. The ties for allocation decisions. others and, thus, will need to prioritize among would assess ranges of population proposed uses. resources, rather than as a water crisis and scenarios D & Oat 2. shortage projections and commensurate water de management mechanism.”). 190 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 191 We affirm all other aspects of the Commis perior claims” status to “public instream Cite as 94 HawaIi 97 (2000) mandate ‘preference for instrean, uses or na- sion’s decision not otherwise addressed in uses” and “native Hawaiian and traditional is to give effect to ‘that intent.” State v. tive Hawaiian rights. Rather, a review this opinion.’08 and customary rights,” thereby trumping of Mallan, 86 Hawaj’j 440, 448, 950 P,2d 178, the history of the 1978 Constitutional Hawai’i Revised Statutes chapter Con- 186 (1998) (quoting Convention Center (HRS) vention reveals that the Au Dissenting Opinion by RAMIL, J. framers viewed the thority v. Anzai, 78 Hawai’i 157, 174C (1993 & Supp.1999) (the Code), I dis public trust simply 167, 890 as a fiduciary duty on the P.2d 1197, 1207 (1995) Because the majority resorts to the nebu sent. The public trust doctrine, as expressed State to “protect, (internal quotation control and regulate the marks and citations lous common law public trust doctrine as a in the Hawai’i Constitution and as subse use of omitted)). Accordingly, Hawaii’s water resOurces for the bene- I turn distinct and separate authority to assign “su quently incorporated into the Code, does not to the history of the ‘public trust fit of its people.” Haw. Const. art. ‘XI, sec- doctrine as expressed in the Hawai’i Consti 108. The dissent proposes a revolutionary theory for water use permits. As the Code tion 7. Therefore, I would hold that the applying Corn- tution in order to discern the framers’ intent. of the public trust doctrine, in which the trust abundantly demonstrates, the legislature did not mission on Water Resource Management Pursuant amounts to nothing more than what the present create such a system. The dissent insists that (the Commission) exceeded its to the 1978’ Coj,stitutjonal Con- majority says it is, or in other words, “the sum of statutory au- “the State” or “the people,” i.e., the legislature, thority when it eention, the people of this State adopted the competing social and economic interests of the should determine water law and policy. See cited to the common law public fronowing constitutional individuals that compose the public.” Dissent at Dissent at 14—15. We generally share this senti trust doctrine as a distinct and sepa provisions’ which de ‘ine the State’s 16. While this view may suit the purposes of the ment, but, unlike the dissent, we duly follow it. rate authority for justifying priority for par- trust responsibilities in man- dissent, it finds no basis in law. The, dissent can The dissent voices concern regarding our wa ticular uses of water. aging its water resources: cite no precedent applying the public trust doc. ter future lying in the hands of “six persons, or in trifle in the expansive manner that it advocates this case, the four persons who composed the Additionally, because more, definitive in- (the Washington cases cited proceeded from the ARTICLE XI Commission.” See id. at 15. Ironically, after stream flow staidards desigred to restor premise that the doctrine did not apply; Wash. nullifying the protections of the public trust and ington courts have recognized the doctrine and sustain instream uses as a disnantling the regulatory framework estab have yet to be CONSERVATION, CONTROL substantive protection where applicable, see, e.g., lished by the legislature, the dissent would leave established, I believe that th majority im Caminiti, supra; Weden, supra). reason AND DEVELOPMENT OF The un the people of this state with nothing but an poses an impossible burden of doubtedly lies in the obvious reality that such an 3 proof on offs RESOURCES agency unchecked in its discretion and a regula interpretation would render the public trust tream users to “justify[ their’proposed tory “free-for-all” guided by the mere reminder I uses meaningless—a result that the dissent seems all in light of protected of the necessity of “balancing,” see id. at 4—5. public right,s in the CONSERVATION AND too ready to embrace, notwithstanding the rich resource.” Majority at —, 9 P.3d DEVELOPMENT common law heritage in this’jurisdiction and The dissent’s objections to the permit appli at 472. OF others recognizing the public trust as a concrete cant’s burden of proof prove our point, namely, Most troubling, RESOURCES that the legislature intended the Commission to perhaps, is that the major guarantee of public rights and the manifest intent ity, in the process of reaching of the framers of our constitution, to adopt investigate, plan, and provide for instream flows their desired Section 1. For the benefit of present the result, breaches basic understanding of the trust, where “disposi as soon as possible. That mandate remaining yet a number of fundamental and future generations, the State and its unfulfilled, we have recognized that the Comntis principles of law tion and use of these resources [are) done with which we have recognized political subdivisions shall conserve and procedural fairness, for purposes that are justifi sion’s interim task entails the balancing of risks and adhered to in the and the implementation of the Code based on the past, thus, creating protect Hawaii’s natural beauty and all able and with results that are consistent with the confusion and protection and perpetuation of the resource.” best information available. See supra Part IlI.E. uncertainty in an area of law natural resources including land; water, that desperately Debates, in 2 Proceedings, at 866-67. We do not, as the dissent alleges, impose an requires clarity. Because air, minerals and energy sources, and shall insurmountable burden on permit applicants in the majority Equally astonishing is the dissent’s attempt to essentially rewrites the Code promote the development and utilization conform the Code to its views. The dissent can the interim, but neither do we allow applicants to through this opinion disregard their burden of justifying their uses to today, I suspect that of these resources in a manner consistent accuse us of “rewriting the Code” only because it this opinion will ignores so many of the Code’s express provisions. the extent that circumstances allow. generate litigation by appli- wit/t their conservation and in furtherance See, e.g., FIRS § 174C—2 (condition that “ade Finally, in its repeated protests against ‘priori cants arguing that their particular use of of the set’sufficiency of the State, ties” among uses, the dissent largely rails against water is quate provision shall be made” for various pro a public trust use,or value. All public resources tective purposes); FIRS § I 74C—5(3) (mandating & “straw man” of its own invention. Contrary to are held in trust by the establishment of an instream flow program to the Commission’s designation of a categorical the State for the benefit of the people. protect, enhance, and reestablish, where practi Preference in favor of resource protection, we do I. The States Public Trust Luty, as En cable, beneficial instream uses); FIRS § l74C—71 dot establish any “priorities” as that notion is shrined in the Hawaii Conijtutjon, Re (last paragraph) (“[t)he commission shall imple commonly understood in.water law and has been quires a Balancing previously eschewed by the legislature. Rather, Profrs Between ment its instreani flow standards when disposing Competing WATER RESOURCES water”); HRS § 174C—31(j) (“[t)he commission we simply reaffirm the basic, modest principle Publir Interest sers. Section shall condition permits ... in such a manner as that use of the precious water resources of our 7. The State has an The majority, in its effort t define the obligation to protect instream flows and sustainable state must ultimately proceed with due regard to protect, control and regulate the for certain purposes of the public trust, reli s on vague, use of yields”);, FIRS § 174C—3l(d) (requiring the com enduring public rights. This princi Hawaji water resources pletion of the “water resource protection plan” ple runs as a common thread through the consti common law notions from fore for the benefit of gn jurisdic- its people. before the adoption of the “water use and devel tution, Code, and common law of our state. In tions. I start with our Constitution. opment plans”); FIRS § 174C—31(k) (mandating attention to this principle may have brought . The legislature shall provide for a Wa- “careful consideration” of various short-term convenience to some in the past. But Because constitutions, protective derive their .authori- ter resources, agency which, purposes and allowing the Commission to pro the constitutional framers and legislature under ty from the as provided people who draft and adopt by law, shall’ sOt hibit other uses inconsistent with these pur stood, and others concerned about the proper them, overall water conserva we have long , held poses). If, as the dissent maintains, public in functioning of our democratic system and the that the Hawai’i tion, quality and use policies; Constitution must define bene stream uses receive no different treatment than continued vitality of our island environment and be construed in accordance ficial and reasonable with uses; protect ground other uses, then presumably the inchoate public, community may also appreciate, that we can ill- the intent of the framers and .the people and surface including generations yet unborn, should water resources, watersheds’ be re afford to continue down this garden path this adopting it, and that the “fundamental princi- quired to advocate and prove its water needs in late in the day, and natural stream environment; establish pie in interpreting a constitutional provision’ criteria for water use priorities 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 193 192 Cf te as 94 Hawal’f 97 (2000) a bal fiduciary duty, on the suring appurtenant rights and existing regulate” water necessarily involved State to “actively .and. ings, at 870 (“I think the one thing we want in affirmatively protect, control correlative and riparian uses and establish ancing of competing social and economic and regulate” ed was to protect the small taro farmer as the water resource procedures for regulating all uses of Ha- terests. IcL (“When considering use and de as opposed to the mere well as the agricultural users of water, unless authority to waifs water resources. velopment of our natural resources, economic do so. Comm. Whole Rep. No. it confficts with some’ overall emergency situ are major concerns. 18, in 1 Proceedings, at 1026; àee Comm. of ation or use priority”) (statement by Dele Haw. Const. art. XI, §1 1 and 7 (1978) (Em and social benefits definition of economics, the Whole Debates, September 14, 1978 gate Waihee), article XI, section 7 reserved phases added). However, the broad that of ‘careful and thrifty’ use of resources, [hereinafter Debates], in 2 Proceedings, at he task of prioritizing uses for the legisla A plain reading of the above constitutional rather than the narrow sense of immediate 863 (“What the [amendment] attempts to do ture. Haw. Const. art. XI, 7; Debates, in provisions does not reveal an intent to accord financial return, should be adopted.”). In is to, first of all, create a fiduciary duty on Proceedings, at 870 (“[W]hat we’ve done is superior claims to certain uses. To the con establishing the. State’s duty to “protect, con the part of the State to regulate and control 4et out policy to be considered in establish trary, Article XI, Section 1 generally obli trol and regulate” water for the benefit of all the water. The second thing that it does is lsg criteria.... [J]ust to make it clear, its gates the State to “promote the development its people, the framers presumably meant establish a coordinating agency to regulate’ ‘4ot only this agency that will be setting the and utilization” of our water resources (1) “in they said—nothing more, noth all water.”) (Statement by Delegate Wai criteria or policy; this would be done, in the with their conservation” exactly what a manner consistent bee); Id. at 865 (“The intent [Qf the amend-’ qverall sense by the state legislature, and the furtherance of the self-sufficiency ing less. nd (2) “in menti was to make it clear that the State had agency itself would be implementing the de Furthermore, contrary to the if the State.” Specifically, article XI, section 1 imposes a the duty and the responsibilitj to care foti tails. What we wanted was an agency whose use of the public trust majority’s expansive two-fold obligation on the State to (1) con Hawaii’s water resources, rathr than simply policies would have as broad a public input as XI, Section 7 makes it plain, doctrine, Article serve and protect Hawai’i’s natural re the power to do so.”)’ (Statement by Dele possible. ‘So the overall scheme for this legislature shall provide for a water that “the sources, and (2) develop the resources “in a gate Fukunaga); i’d. at 867 (“Exercise of the would be set up ‘in accordance with law’ or agency which, as provided by law, resources ma?mer consistent with their conservation police power is purely discretionary, and for by the legislature, and the agency would then ... establish criteria for water use pri shall and in furtherance of the self-sufficiency of discretionary results; “trust” language ins- set the implementation and the finer points (Emphasis added.) In other orities the State.” The framers further defined poses an obligation to act for the benefit of of this.”) (Statement by Delegate Waihee)); words, the “how” or the public policy making “conservation” as “the protection, improve all the people.”) (Statement by Delegate Id, at 869 (“As the amended proposal states, function was properly reserved for the legis ment and use of natural resources according Hornick). Once again, while the framers it will allow the legislature to set water use lature. Accordingly, these constitutional to principles that will assure their highest were mindful of the need to balance various, priorities, ‘set overall water conservation’ and provisions did not adopt the common law economic or social benefits.” Stand. Comm. coinpeting interests in regulating water use, so forth.”) (Statement by Delegate Chong)). public trust doctrine as a device to determine (empha Rep. No. 77, in 1 Proceedings, at 686 see Comm. Whole Rep. No. 18, in 1 Proceed In sum, a review of the constitutional his how water is to be used or prioritized. duty to sis added). In fashioning the State’s ings, at 1026 (“Because of the evergrowing tory reveals that the framers viewed the constitutional history natural resources, Turning now to the conserve and develop its population, the need to maintain present ag “public trust” as a fiduciary duty of the State find nothing to equate need to of these provisions, I the framers, while cognizant of the ricultural uses and develop some new ones to protect, control, and regulate the use of obligation to “protect, preserving the State’s public trust balance the competing interests in and the’ diminishing freshwater supply, it is water for all its people. The framers made the use of Hawaii’s wa mandate that control and regulate and using the resource, did not extremely important that the State act with a it clear that their view of the public trust ob benefit of its people” particular ter resources for the such balancing be skewed to favor sense of fiduciary responsibility with regard ligation also embraced offstream economic according superior claims to certain with uses. to the use of water”); Debates, in 2 Proceed- uses of water, such as agriculture, by the uses. Rather, the framers used the term imposes “public trust” to “describe the nature of the Furthermore, article XI, section 7 clarify the intent behind the use of the term water and fisheries. These resources are to be State and its people upon the State a fiduciary “obligation to pro “public trust.” Some confusioi1 has been gen held in trust for’ the use and enjoyment of peo relationship between the erated by term because tdct, control and regulate the use of Hawaii’s the tmst” implies ple. The Hawaii supreme court has already and the duty of the State to actively and ownership. However, it was nfrer intended to imposed the benefit of its people.” public trust on navigable waters affirmatively protect, control and regulate watyr resources for the that the proposal confront the cestion of own and the lands under them in the case of Bishop this provi water resources, including the development, The constitutional history behind ership of water resources because that is more v. Mahiko, 35 Haw. 608’ (1940). However, to appropriately a matter of water.” Comm. Whole sion fails to support any suggestion that the for the courts. The avoid confusion and possible litigation, your use and allocation question of ownership of re Committee substituted adoption of the “public trust,” as expressed theVreshwater has language which your Rep. No. 18, in 1 Proceedings of the Consti sources is irrelevant to the abilit of the State to Committee believes fully conveys the theory of tutional Convention of Hawaii of 1978, at in the Hawaii Constitution, was intended to exercise its police powers with’ egard to water “public trust.” (1980) [hereinafter Proceedings]. In grant superior claims to particular types of because the State has long possessed the power Id. (emphases added). Simply put, “what the 1026 to protect, water use. Rather, the “public trust,” as control and regulate Hawaii’s fresh amendment attempts to do ... is to define what deed, the framers were keenly aware that water resources for the health and welfare ‘public formally imposed a of tr,ist’ means.” Comm. of the Whole De such a fiduciary duty to “protect, control and defined by the framers,1 Hawaii’s people Therefore, “public trust” bates, September 14, was used to describe the nature of the relation was subsequently amended to read, 1. The framers were keenly aware of the nebulous proposal ship between the State and its people and the obligation to protect. control aspects of the public trust doctrine. The initial “The State has an duty of the State to actively and affirmatively water resources proposal submitted by the Committee on Envi and regulate the use of Hawaii’s protect, control and regulate water resources, Comm. Whole ronment, Agriculture Conservation and Land for the benefit of its people.” including development, use and -allocation of read in relevant part, ‘All waters shall be held by Rep. No. 18, in 1 Proceedings, at 1026. Accord water. people of it amended the State as a public trust for the ing to the Committee on the Whole, The public trust theory holds that the public 1 Hawaii.” Stand. Comm. Rep. No. 77, in the proposal in orderlo has certain important rights in water, re term Proceedings, at 688 (emphasis added). The sources, including land underlying navigable “public trust,” however, was deleted and the 194 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATiONS - 195 ii Cite s 94 Hawaii 97 (2000) beneficiaries of the trust. See Comm. Whole our constitutional. law. Majority at —— and customary Hawaiian rights, the pro had the legislature intended to prioritize the Rep. No. 18, in 1 Proceedings, at 1026; De —‘ 9 P.3d at 443—446. tection and procreation ‘of fish and wildlife, use of water, it would have done so in no bates, in 2 Proceedings, at 870. It is equally the maintenance of proper ecological bal uncertain terms. Indeed, the legislature’s apparent that by engrafting this obligation ance and scenic beauty, and the preserva II. The Code is a Comprehensive Regulato failure to adopt a 1995 proposal to amend the into the Hawai’i Constitution, the framers tion and enhancement of the waters of the ry Statute That Trumps Common Law. Code by establishing water use priorities 1l did not intend to prioritize uses; they re State for municipal uses, public recreation, lustrates my point. In 1987, the ‘legislature served that matter for the legislature.2 In After many years of exhaustive hearings, public water supply, agriculture, and navi established a review commission on the Code deed, to avoid confusion, the framers deleted the legislature finally struck an acceptable gation. Such objectives are declared to be to comprehensively review the term “public trust,” recognizing that the balance’ in the public interest. and develop rec between competing public interest ommendations vague, common law public trust doctrine for improving the Code.1987 users that enabled it to pass the Code in HRS § 174C—2(c) (1993) (emphases added). Haw. could be, and has been, used to justify Sess. L. Act 45, § 5, at 101. On Decem any 1987. Through the Code, the legislature not In my view, HRS § 174C—2(c) falls well short thing, i.e., ownership. See, e.g., Payne v. ber 28, 1994, about seven years after its only affirmed the State’s constitutional obli of constituting a directive that bestows supe Kcassab, 361 A.2d 263 (Pa.1976) (rejecting creation, the review commission submitted its gation to “protect, control and regulate water rior claims to any ‘particular classification of appellants claim that the state violated final report to the legislature. Review Com the for the benefit of all its people,” it estab uses. Rather, HRS § 174C—2(c) reflects the public trust by implementing a street widen mission of the State Water Code, Final Re lished “a program of comprehensive water legislature’s intent that the Commission en ing project that would negatively impact port to the Hawai’i State Legislature at 1 “the resources planning,” HRS 174C—2(b) (1993 & gage in comprehensive water esources man historical, scenic, recreational i(December 28, 1994). Among other things, and environ Supp.’1999), that set’ forth how the State agement by balancing the nded to proteit mental values” a tract the review commission recommended that of of land). The ma would go about satisfying this duty. Haw. with the need to use water yithout placing the Code be amended to establish jority’s expansive use of the public trust doc Const. art. XI, any fixed priority, presumptive a hierar § 7 (“The legislature shall or otherwisb, chy of water trine in this, case, in my view, will create on any classification uses. Id. at 23—26, app. B at provide for a water resources agency which,, -‘ of uses. For example, 49—56. confusion and uncertainty. The public trust even To date, the legislature has yet to as provided bylaw, shall ... establish crite in the process of setting interim and doctrine merely imposes an obligation on the adopt the proposal to prioritize water uses. ria for water use priorities ...“) (Emphasis 3 permanent instream flow standards, the State to affirmatively protect and regulate Commission added.) In its declaration of policy, the Code must assess the economic rami Accordingly, the State’s public trust obli our water resources. The doctrine does not fications of embraces the public trust as set forth in the such standards on offstream uses. gation, as enshrined in the Hawai’i Constitu provide guidance as to “how” to protect HRS Hawai’i Constitution by providing that, “the § 174C—71(1)(E) (1993) (“In fos-niulat tion and as incorporated into the Code, does those waters. “That guidance, which is cru ing the proposed waters of the State are held for the benefit of [instream flow] standard, not mandate that instream uses or native cial to the decision we reach today, is found the commission the citizens of the State. It is declared that shall weigh the importance of Hawaiian rights be accorded “superior only in the Water Code.” Rettkowski v. De- I the present or potential the people of the State are beneficiaries and instream values with claims.” I would therefore hold that the partment of Ecology, 858 P.2d 232, 240 the have a right to have the waters protected for importance of the present or potential Commission exceeded its (Wash.1993) (en bane). Given that (1) the statutory authority their use.” HRS 174C—2(a) The uses of water from the stream for nonin under HRS framers called on the legislature to create § (1993)? chapter 91 when it relied on the Code then identifies various competing stream purposes, including the economic im common the Commission and to set forth the Com inter law notion of the public trust doc ests that the Commission -must balance pact of - restriction of such uses”); HRS trine that is mission’s authority “as provided by law,” i.e., in neither grounded in the Hawai’i administering State’s I 174C—71(2)(D) (1993) (“In considering a pe Constitution the Code, and (2) statutes trump common the charge to “protect, nor in the Code to justify impos control and regulate” water: tition to adopt an interim instream flow stan ing “a law, Fujioka v. Kant, 55 Haw. 7, 10, 514 P.2d heightened level of scrutiny” for offs dard, the commission shall weigh the impor tream uses. 568, 570 (1973), it would be inconsistent to The [Code] shall be liberally interpreted to HRS § 91—14(g)(2) (1993) (pro tance of the present or potential instream viding that court conclude that the framers intended to adopt obtain maximum beneficial use of the wa a may affirm, reverse, or values with the importance of the present or modify an agency the common law public trust doctrine when ters of the State for purposes such as decision if such decision is potential uses of water for nonjnstreaxn pur “[i]n they urged the legislature to enact the Code. domestic uses, aquaculture uses, irrigation excess of the statutory authority or poses, including the economic impact of re jurisdiction Accordingly, I strongly disagree with the and other agricultural uses, power devel of the agency”); Rettkawski 858 stricting such uses”). Moreo’r, the Code P.2d at majority’s holding that article XI, sections 1 opment, and commercial and industrial 236 (holding that it is a fundamental specifies that its provisions sh4 be liberally rule of law and 7 adopt wholesale the common law public uses. However, adequate provision shall that “an agency may only do that interpreted to obtain maximum’beneficial use trust doctrine as a fundamental principle• of be mode which it is authorized to do by the Legisla for the protection of traditional of water for “irrigation and other agricultural ture”); Tn County TeL Assn., Inc. v. Wyo 2. In Robinson, this court observed that the pa (I) Recognizing that the waters of the state are uses”; yet, it also mandates tlt “adequate ming Public Service Commtn, rameters 910 P.2d 1359, of the State’s authority and interests in the property of the state and are held in public provision” shall be made for ules including water resources ‘should be developed 1361 (Wyo.1996) (holding that, “As a creature on a case trust for the benefit of its citizens, it is declared “preservation and enhancement of waters for by case basis or by the legislature as the particu that the people of the legislature, an administrative agency of the state as beneficiaries of agriculture HRS lar interests of the public are raised ,,and de this trust have the right to have § 174C—2(c). has limited powers and can the waters Agricultural do no more than fined.” 65 Raw, at 677, 658 P.2d at 312. In, protected for their use. uses, by definition, are offstream it is statutorily 1987, the legislature authorized to do”); cf Stop did just that as it raised and A Model Water Code § 1.02, at 81 (Frank E. uses, and thus, contrary to the ‘majority’s defined- the competing public H—S Association v. State, 68 Haw. 154, 161, interests in water Maloney etnäl.1972) (emphases added). Appar reading, the Code does not resources in the Code. establish priority 706 P.2d 446, 451 (1985) (observing ently following the framers lead in article Xl, for instream uses. that, “[a] section 7 of the Hawaii Constitution, the legisla public administrative agency possesses only 3. Contrastingly, in an analogous provision, the ture did not use the term “public trust” in such rule-making authority as is delegated Model Water Code provides: to it by the state legislature and may only 94 HAWAI’I REPORTS IN RE WATER USE PERMIT APPLICATIONS 197 196 Cfte as 94 Hawal’t 97 (2000) (“Public rights are exercised exercise this power within the framework of Pa.Cmwlth. 335, 342 k2d 468, 483 (1975) by the public, burden of justify[ing their uses] in light of which in a democracy is the the statute under which it is conferred”); (Bowman, P.J., concurring) (“Simply by in people.”). the purposes protected by the trust.” Id- at HOH Corp. v. Motor Vehicle Industry Li voking [the constitutional provision identify The majority’s view of the public trust —, 9 P.3d at 454. censing Bd., 69 Haw. 135, 141, 736 P.2d 1271, ing the. state as the trustee of ‘public natural invites this. court to essentially rewrite the, Even accepting the majority’s articulation 1275 (1987) (maintaining that an agency resources,’] neither [the agency] nor a third Code to prioritize particular uses, thereby of the public trust as true, given that (1) the “generally lacks the power to pass upon the party can enlarge its ‘trustee’ role beyond imposing a higher level of scrutiny on “non scientific knowledge necessary to establish constitutionality of a statute: The law has the parameters’ of its statutory power and public trust uses,” where the’ legislature im more definitive instream flow standards—the long been clear, that agencies may not nullify authority.”). Simply put, the Code trumps posed none. Because accepting such an invi primary mechanism to safeguard instream statutes.”) (Quoting 4 K. Davis, Administra common law, not the other way around. Fu tation would devalue the Code as drafted, }uses—is admittedly “years away,” majority tive Law Treatise § 26:6, at 434 (2d jioka, 55 Haw. at 10, 514 P.2d at 570. circumvent the democratic process, and in at —, 9 P.3d at 426, and (2) the full scope ed.1983)). ject substantial uncertainty into the Code- ‘fef public instream uses consequently remain undefined, I believe that it is impossible for It is the State that owes a fiduciary duty to III. The Majority’s Expansive View of the based water allocation process upon which ?applicants to demonstrate that their offs its people to “protect, control and regulate Public Trust Doctrine will Inject Sub this State depends, I am compelled to dis tream uses will not impair instream the use of Hawaii’s water resources for the stantial Uncertainty into the Code- sent. public ises. The majority acknowledges that “the benefit of its people.” Haw. Const. art. XI, Based Water Allocation Process. uncertainty created I § 7. Thus, it is the legislature, as the body IV, Offstream Users Face isis Impossib’e by the lack of instream In my view, the majority employs the pub flow charged with the responsibility of making Burden of Proof standards modifies the nature of the trust doctrine as a device .to (1) recognize Commission’s analysis.. . .“ —, laws, that determines public policy, and it is lic Id. at 9 certain uses, such as instream uses and na The majority holds that “[u]der the public P.3d at 473. In light of this uncertainty, the the legislature who should set water use trust and the Code, permit applicants have Hawaiian rights, as public trust values -, majority that the priorities “as provided by law.” See ÜL Wa .tive holds applicants for offs analysis from ‘the proposi the burden of justifying their proposed uses tream ter is the lifeblood of this island state, and a and (2) launch its uses, “[a]t a very minimum,” must public trust values have supe in light of protected public rights in the (1) their decision to prioritize competing uses of water tion that these demonstrate actual needs, and (2) other uses. The majority goes resource.” Majority at —, 9 P.3d at 472. “within the constraints of available is a public policy determination that will un nor claims to knowl on to “eschew” any view of the trust that The majority arrives at this determination by edge, the propriety of draining water from doubtedly shape the course of our future. taking the following steps. The majority rest, in th embraces private commercial useas a public public streams to satisfy those needs,” ie., Such a determination should reasons that the public trust, as defined by of trust purpose. Majority at —‘ 9 P.3d at absence of practicable mitigation measures. hands of the people of this Stato instead the common law and as incorporated into the in this case; 450. With such an approach, I cannot agree. Id. at —‘ 9 P.3d 474. (emphases added). the discretion ‘of six persons, or constitution, “begin[s) with a presumption in the four persons who composed the Commis As previously discussed, I believe that the Despite this floor set by the majority, due to favor of public use, access, and enjoyment.” lack sion. Cf Konno v. County of Hawai’i, 85 public trust, as established in the Hawai’i the of more conclusive instream flow Id- at —, 9 P.3d at 454. Turning to the Hawai’i 61, 79, 937 P.2d 397, 415 (1997) (“The Constitution and as adopted in the Code, is standards, the onus apparently remains on Code, the majority equates the following in the applicant determination of what the law could be or simply a fiduciary duty to protect, control, to justify its proposed offs terests listed in HRS § 174C—2(c) as “public should be is one that is properly left to the and regulate the use of our water resources tream use by (1) identifying instream and trust purposes dependent upon instream people, [who are sovereign,] through their for the benefit of all the people of Hawai’i. potential instream uses, (2) assessing how flows”: “protection of traditional and custom elected legislative representatives.”). To Such an obligation demands that the State much water those instream uses require, and ary Hawaiian rights, the protction and pro conclude otherwise, as the majority does, actively manage its natural resources by dlii-’ (3) justifying their proposed uses in light of creation of fish and wildlife, the maintenance would impermissibly transgress the separa- gently balancing competing interests, both existing or potential instream values. With of proper ecological balance aid scenic beau tion of powers doctrine by allowing an execu- economic and social, in order to arrive at a out addressing these three issues, it appears 1 ty, and- the preservation and ehancement of tive agency to transcend its statutory author- policy determination of what is ultimately in that applicants requesting water for offs waters of the State for munici,al uses, public tream uses may meet the floor established ity and usurp the legislature’s lawmaking , te public’s best interest; it does not man- by recreation, public water supp!,r, agriculture, function under the guise of enforcing the date priority for particular uses. The State’s the majority only to fall short of satisfying and navigation.” Majority — — —, agency’s interpretation of what the “public constitutional obligations to “promote diversi their ultimate burden to justify their pro 9 P.3d at 457—458. Instream w standards, trust” demands. See RD. Merrill Co. v. fled agriculture” and “increase agricultural posed use in ‘light of instream values. See as the majority observes, ser as the “pri —‘ State, 137 Wash.2d :118, 969 P.2d 458, 467 self-sufficiency” warrant no less consider- Majority at 9 P.3d at. 472. (“We thus mary mechanism” to fulfill the state’s duty to (1999) (“[T]he [public trust duty] devolves ation because they involve offstream uses confirm and emphasize that the ‘reasonable uphold these instream trust purposes. Id. at upon the State, not any particular agency. that result in economic gain for private mdi- beneficial use’ standard and the related crite —‘ 9 P.3d at 458. Indeed, the majority The [agency’s] enabling statute does not viduals. Haw. Coast. art. XI, § 3 (1978). rion of ‘consistent with the public interest’ declares that such “public instream grant it authority to assume the public trust Indeed, the public interest advanced by the uses are demand emination.of the proposed use not among the ‘superior claims’ to which, upon duties of the state.... [R]esort to the pub- trust amounts to no more than the sum of’ only standing alone, but also in relation to consideration of all relevant factors, lic trust doctrine as an additional canon of competing social and economic interests of existing other public and private uses and the particu uses may have —‘ construction is not necessary in light of the the individuals that compose the public. See to yield.” Id- at n. 52, 9 lar water source in question.”). By granting P.3d specific provisions at issue and the water law James L. Huffman, A Fish Out of Water: at 461, n. 52. Therefore, because the “superior claims” status to instream uses, the public trust carries policies expressed in the state water codes.”); The Public Trust Doctrine in a Constitution- an inherent presumption majority renders this already difficult task 1 Community College of Delaware v. Fox, 20 at Democracy, 19 Envtl. L. :527, 549 (1989) favoring “public use,” applicants bear the impossible. 198 94 HAWAI’I REPORTS CONCLUSION parties via a lease that expired on December I wholeheartedly join the majority’s call 31, 1996. Assuming cirguendo that such sale for the Commission to establish more defini of water constitutes “use,” under the common tive instream flow standards for the wind law rule of correlative rights, it establishes ward streams with “utmost haste and pur KSBE, at best, as an “appropi’iator” of pose.” IcL at —, 9 P.3d at 468. I fear, ground water for use on distant lands, and however, that in the period necessary to not an existing “correlative” user. See Id. at achieve these more conclusive standards, —, 9 P.3d at 490 (stating the rule’ that offstream uses, which, in substantial part, “parties transporting water to distantk lands drive the economy and promote the self- are deemed mere ‘appropriators’ “). Açcord sufficiency of this State, may run dry. ingly, the points made by this court rgard ing the scope of KSBE’s “rights” stalld: 1) MOTIONS FOR RECONSIDERATION KSBE can assert no common law “crrela On August 30, 2000, appellee/cross-appel tive rights” to ground water because, .bsent lant The Estate of James Campbell (Camp the requisite land use approvals, it }as yet to bell Estate) filed a motion for reconsideration establish a need for reasonable use o such and/or clarification of this court’s published water in connection ‘yith the oyertying land, opinion, In re Water Use Permit Applica see icL at —, 9 P.3d at 490; afid, in any tions, Petitions for Interim Instream Flow event, 2) under the controlling Code permit Standard Amendments, nd Petitions for ting provisions, KSBE has not established an Water Reservations for t Waiahole Ditch “existing correlative use” and, thus, cannot Combined Contested Case Hearing, No. claim any superior priority or entitlement to 21309 2000). (August 22, On August 31, a permit, see id. at —-—, 9 P.3d at 2000, appellant Kamehameha Schools Bishop 491—492. Put simply, while KSBE’s ability Estate (KSBE) filed a motion for reconsider to use water from the Waiahole Ditch Sys ation. Upon due consideration of the mo tem remains an Open question, subject to, tions and supporting documents and argu inter alia, KSBE’s reapplication for such ments, we rule as follows: water, KSBE has no underlying superior Campbell Estate’s motion is denied. right or entitlement, “correlative” or other Campbell Estate should direct any questions wise, to use such water. and arguments regarding its interim use, As for KSBE’s arguments that the denal pending the outcome of remanded proceed of its permit application amounted to an un ings, to the Commission on Water Resource constitutional “taking” of its property with Management (the Commission). We refer out just compensation, we refer KSBE to the Campbell Estate to various portions of this relevant discussion sections in this court’s court’s decision potentially relevant to its published opinion. Se icL at — — & concerns. See op. at —‘ 9 P.3d at 471 n. 32, 9 P.3d at 445—448 & n. 32 (affirming (maintaining that the Commission’s failure to that public trust applips to all waters, includ establish more definitive standards does not ing ground water); i4. at — — —‘ 9 P.3d “preclude[] present and future allocations at 493—495 (rejectin KSBE’s argument on for offstream use” and that the Commission ripeness grounds andeviewing the nature of must employ a methodology incorporating usufructuary rights, statutes in other juris elements of uncertainty and risk); id. at dictions modifying comon law water rights, —‘ 9 P.3d at•475 (ruling that the Commis case law upholding 4uch statutes, and the sion did not V err in “accommodating existing effect of the public ti-last on claims of vested agricultural uses” at this time); id at — n. water rights). 70, 9 P.3d at 479, n. 70 (holding that the commission did not err in allowing Pu’u Ma Associate Justice RAMIL, having

V kakilo, Inc. to continue using ditch water fromthe V dissented opinion of the court, does pending final decision on its application, not not concur. withstanding the fact that it was not an “existing use”). ysoHeEsuTEM KSBE’s motion is denied. KSBE poifits out that it previously sold water to leeward