§174C-49 - Conditions for a permit.

§174C-49  Conditions for a permit.  (a) To obtain a permit pursuant to this part, the applicant shall establish thatthe proposed use of water:

(1)  Can be accommodated with the available watersource;

(2)  Is a reasonable-beneficial use as defined in section174C-3;

(3)  Will not interfere with any existing legal use ofwater;

(4)  Is consistent with the public interest;

(5)  Is consistent with state and county general plansand land use designations;

(6)  Is consistent with county land use plans and policies;and

(7)  Will not interfere with the rights of thedepartment of Hawaiian home lands as provided in section 221 of the HawaiianHomes Commission Act.

(b)  Within sixty days after receipt of anotice of a permit application, the county shall inform the commission if theproposed use is inconsistent with county land use plans and policies.

(c)  The common law of the State to thecontrary notwithstanding, the commission shall allow the holder of a use permitto transport and use surface or ground water beyond overlying land or outsidethe watershed from which it is taken if the commission determines that suchtransport and use are consistent with the public interest and the general plansand land use policies of the State and counties.

(d)  The commission, by rule, may reserve waterin such locations and quantities and for such seasons of the year as in itsjudgment may be necessary.  Such reservations shall be subject to periodicreview and revision in the light of changed conditions; provided that allpresently existing legal uses of water shall be protected.

(e)  All permits issued by the commission shallbe subject to the rights of the department of Hawaiian home lands as providedin section 221 of the Hawaiian Homes Commission Act, whether or not thecondition is explicitly stated in the permit. [L 1987, c 45, pt of §2; am L1991, c 325, §7]

Law Journals and Reviews

  Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders.  25 UH L. Rev.85.

Case Notes

  Permit applicants must demonstrate their actual needs and,within the constraints of available knowledge, the propriety of draining waterfrom public streams to satisfy those needs.  94 H. 97, 9 P.3d 409.

  The "reasonable-beneficial use" standard and therelated criterion of "consistent with the public interest" demandexamination of the proposed use not only standing alone, but also in relationto other public and private uses and the particular water source in question;thus, permit applicants requesting water diverted from streams must duly takeinto account the public interest in instream flows.  94 H. 97, 9 P.3d 409.

  Waiahole Ditch water use permittees being required to fundsubsequent stream studies and monitoring activities was not an illegal"tax" where the studies directly benefited permittees by helping themprove as required under this section that their uses were"reasonable-beneficial" and "consistent with the publicinterest" and by also allowing them exclusive use of public resources inthe interim, despite the present absence of such proof.  94 H. 97, 9 P.3d 409.

  Where permit applicant failed to obtain development planapproval, commission did not err in denying permit request and  requiringcompliance with county zoning classifications.  94 H. 97, 9 P.3d 409.

  Although the Hawaii administrative rules denominateaquifer-specific reservations of water to the department of Hawaiian homelands, such a limitation for purposes of water resource management does notdivest the department of its right to protect its reservation interests frominterfering water uses in adjacent aquifers.  103 H. 401, 83 P.3d 664.

  A "reservation" of water does not constitute an"existing legal use" within the meaning of subsection (a)(3).  103 H.401, 83 P.3d 664.

  As commission's findings of fact with respect to subsection(a)(4), (5), and (6) established the findings under subsection (c) thattransport of water outside the watershed of origin was consistent with thepublic interest and the general plans and land use policies of the State andcounties, applicant was allowed to transport and use ground water outside theoriginal aquifer system.  103 H. 401, 83 P.3d 664.

  Commission did not abuse its discretion in imposing a wellmonitoring program as a condition to granting applicant a water use permit, andutilizing a well located in a different aquifer system for such purpose.  103H. 401, 83 P.3d 664.

  Where commission on water resource management failed torender the requisite findings of fact and conclusions of law with respect towhether applicant had satisfied its burden as mandated by the state water code,it violated its public trust duty to protect the department of Hawaiian homelands' reservation rights under the Hawaiian Homes Commission Act, the statewater code, the state constitution, and the public trust doctrine in balancingthe various competing interests in the state water resources trust.  103 H.401, 83 P.3d 664.

  Where commission on water resource management's findings supportingits conclusion that the proposed use of water would not interfere withdepartment of Hawaiian home lands' reservation rights under §221 of theHawaiian Homes Commission Act failed to address whether the proposed user hadadduced sufficient evidence with respect to the impact of the proposed use onthe department's reservation in the adjacent aquifer system, commission erredin concluding that proposed user had met its burden under this section toobtain a water use permit.  103 H. 401, 83 P.3d 664.

  Where proposed well constituted a "new" use,irrespective of whether a portion of the water derived therefrom would beutilized for existing purposes, commission erred in granting an"interim" use permit, ostensibly pursuant to subsection (a); §174C-50provides for the issuance of an interim use permit only for "existinglegal uses".  103 H. 401, 83 P.3d 664.

  As the department of Hawaiian home lands' reservation ofwater did not constitute an "existing legal use" for purposes ofsubsection (a)(3) but a public trust "purpose", commission on waterresource management was obligated to take this reservation into account in theplanning and allocation of water resources and to protect it whenever feasible,as this public trust purpose status made it superior to private interests inthe resources at any given time; however, commission was not precluded fromapproving uses which may compromise this reservation, as long as commission'sdecision was "made with a level of openness, diligence, and foresight". 116 H. 481, 174 P.3d 320.

  Commission did not err by relying on the sustainable yielddetermination in spite of evidence that the aquifer may have been overdrawn andthe sustainable yield actually lower where commission was mandated by this codeto determine a sustainable yield for each hydrological unit within the State"using the best information available", and this code precluded thead hoc revision of the sustainable yield such that it would have beeninappropriate for the commission to reevaluate the sustainable yield figure ina permit application proceeding.  116 H. 481, 174 P.3d 320.

  Commission on water resource management failed in its publictrust duty to hold permit applicant to its burden of demonstrating the absenceof other practicable alternative sources of water when it reservedconsideration of feasible alternative sources of water until after the"new uses" water permit had been granted; commission thus failed toestablish an adequate basis for the amount of "new uses" waterallocated to applicant.  116 H. 481, 174 P.3d 320.

  Despite evidence that permit applicant violated chapter 340E,neither the water code nor the public trust precluded the commission on waterresource management from allocating water to applicant to supply water to domesticend users from a delivery system that may not comply with chapter 340E; as thisjurisdiction separately regulates water allocation and drinking waterstandards, and there was no discernable legislative intent to make water usepermit applications subject to compliance with chapter 340E, violations ofchapter 340E were not germane to a review of the propriety of water allocationunder the water code and the public trust.  116 H. 481, 174 P.3d 320.

  Where commission on water resource management's findings offact with respect to subsection (a)(4), (5), and (6) established the findingsas set forth in subsection (c)--the impact that permit applicant's use wouldhave on the Molokai economy and environment, that applicant's uses wereconsistent with state and county general plans, land use designations, andcounty land use plans and policies, applicant was allowed to transport and usewater from well overlying aquifer system.  116 H. 481, 174 P.3d 320.

  Where it could not be said that closure of hotel and golfcourse would have no impact on permit applicant's proposed uses in light ofcommission on water resource management's findings and conclusions pursuant tothe "reasonable-beneficial use" standard set forth in this sectionand defined in §174C-3, commission's reliance on §174C-58(4), allowingapplicant four years to fulfill its proposed uses before the commission maysuspend or revoke a permit, was misplaced; as commission failed to consider theimpact the closures may have on applicant's proposed uses when it made itsproposed use allocation decision, proposed use permit vacated.  116 H. 481, 174P.3d 320.