PART VI. 
INSTREAM USES OF WATER



 



§174C-71  Protection of instream uses. 
The commission shall establish and administer a statewide instream use
protection program.  In carrying out this part, the commission shall cooperate
with the United States government or any of its agencies, other state agencies,
and the county governments and any of their agencies.  In the performance of
its duties the commission shall:



(1)  Establish instream flow standards on a
stream-by-stream basis whenever necessary to protect the public interest in
waters of the State;



(A)  The commission, on its own motion, may
determine that the public interest in the waters of the State requires the
establishment of an instream flow standard for streams;



(B)  In acting upon the establishment of
instream flow standards, the commission shall set forth in writing its
conclusion that the public interest does or does not require, as is
appropriate, an instream flow standard to be set for the stream, the reasons
therefor, and the findings supporting the reasons;



(C)  Each instream flow standard shall describe
the flows necessary to protect the public interest in the particular stream. 
Flows shall be expressed in terms of variable flows of water necessary to
protect adequately fishery, wildlife, recreational, aesthetic, scenic, or other
beneficial instream uses in the stream in light of existing and potential water
developments including the economic impact of restriction of such use;



(D)  Establishment or modification of an
instream flow standard shall be initiated by the commission by providing notice
of its intention to set an instream flow standard in a newspaper of general
circulation published in the vicinity of the stream in question, to the mayor
of the appropriate county, and to persons who have previously requested such
notice in writing;



(E)  After giving notice of its intention to
set an instream flow standard, the commission or other agencies in
participation with the commission shall investigate the stream.  During the
process of this investigation, the commission shall consult with and consider
the recommendations of the department of health, the aquatic biologist of the
department of land and natural resources, the natural area reserves system
commission, the University of Hawaii cooperative fishery unit, the United
States Fish and Wildlife Service, the mayor of the county in which the stream
is located, and other agencies having interest in or information on the stream,
and may consult with and consider the recommendations of persons having
interest in or information on the stream.  In formulating the proposed
standard, the commission shall weigh the importance of the present or potential
instream values with the importance of the present or potential uses of water
from the stream for noninstream purposes, including the economic impact of
restriction of such uses.  In order to avoid or minimize the impact on existing
uses of preserving, enhancing, or restoring instream values, the commission
shall consider physical solutions, including water exchanges, modifications of
project operations, changes in points of diversion, changes in time and rate of
diversion, uses of water from alternative sources, or any other solution;



(F)  Before adoption of an instream flow
standard or modification of an established instream flow standard, the
commission shall give notice and hold a hearing on its proposed standard or
modification;



(2)  Establish interim instream flow standards;



(A)  Any person with the proper standing may
petition the commission to adopt an interim instream flow standard for streams
in order to protect the public interest pending the establishment of a
permanent instream flow standard;



(B)  Any interim instream flow standard adopted
under this section shall terminate upon the establishment of a permanent
instream flow standard for the stream on which the interim standards were
adopted;



(C)  A petition to adopt an interim instream
flow standard under this section shall set forth data and information
concerning the need to protect and conserve beneficial instream uses of water
and any other relevant and reasonable information required by the commission;



(D)  In considering a petition to adopt an
interim instream flow standard, the commission shall weigh the importance of
the present or potential instream values with the importance of the present or
potential uses of water for noninstream purposes, including the economic impact
of restricting such uses;



(E)  The commission shall grant or reject a
petition to adopt an interim instream flow standard under this section within
one hundred eighty days of the date the petition is filed.  The one hundred
eighty days may be extended a maximum of one hundred eighty days at the request
of the petitioner and subject to the approval of the commission;



(F)  Interim instream flow standards may be
adopted on a stream-by-stream basis or may consist of a general instream flow
standard applicable to all streams within a specified area;



(3)  Protect stream channels from alteration whenever
practicable to provide for fishery, wildlife, recreational, aesthetic, scenic,
and other beneficial instream uses;



(A)  The commission shall require persons to
obtain a permit from the commission prior to undertaking a stream channel
alteration; provided that routine streambed and drainageway maintenance
activities and maintenance of existing facilities are exempt from obtaining a
permit;



(B)  Projects which have commenced construction
or projects reviewed and approved by the appropriate federal, state, or county
agency prior to July 1, 1987, shall not be affected by this part;



(C)  The commission shall establish guidelines
for processing and considering applications for stream channel alterations
consistent with section 174C-93;



(D)  The commission shall require filing fees
by users to accompany each application for stream channel alteration;



(4)  Establish an instream flow program to protect,
enhance, and reestablish, where practicable, beneficial instream uses of
water.  The commission shall conduct investigations and collect instream flow
data including fishing, wildlife, aesthetic, recreational, water quality, and
ecological information and basic streamflow characteristics necessary for
determining instream flow requirements.



The commission shall implement its instream
flow standards when disposing of water from state watersheds, including that
removed by wells or tunnels where they may affect stream flow, and when
regulating use of lands and waters within the state conservation district,
including water development. [L 1987, c 45, pt of §2; am L 1988, c 276, §2]



 



Case Notes



 



  Commission's designation of water otherwise available for
instream purposes as a "nonpermitted ground water buffer" that the
commission could use to satisfy future permit applications without amending the
interim instream flow standards for windward streams was not authorized by the
code, offended the public trust, and the spirit of the instream use protection
scheme.  94 H. 97, 9 P.3d 409.



  In requiring the commission to establish instream flow
standards at an early planning stage, the code contemplates the designation of
the standards based not only on scientifically proven facts, but also on future
predictions, generalized assumptions, and policy judgments; thus neither the
Hawaii constitution nor the code constrains the commission to wait for full
scientific certainty in fulfilling its duty towards the public interest in
minimum instream flows.  94 H. 97, 9 P.3d 409.



  Petitions for interim instream flow standard amendments are
not among the water use permit applications "competing" under
§174C-54; this section, relating to instream use protection,  operates
independently of the procedures for water use regulation outlined in part IV. 
94 H. 97, 9 P.3d 409.



  The code allows the amendment of interim instream flow
standards.  94 H. 97, 9 P.3d 409.