PART VI. INSTREAM USES OF WATER

 

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

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

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

(B)  In acting upon the establishment ofinstream flow standards, the commission shall set forth in writing itsconclusion that the public interest does or does not require, as isappropriate, an instream flow standard to be set for the stream, the reasonstherefor, and the findings supporting the reasons;

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

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

(E)  After giving notice of its intention toset an instream flow standard, the commission or other agencies inparticipation with the commission shall investigate the stream.  During theprocess of this investigation, the commission shall consult with and considerthe recommendations of the department of health, the aquatic biologist of thedepartment of land and natural resources, the natural area reserves systemcommission, the University of Hawaii cooperative fishery unit, the UnitedStates Fish and Wildlife Service, the mayor of the county in which the streamis located, and other agencies having interest in or information on the stream,and may consult with and consider the recommendations of persons havinginterest in or information on the stream.  In formulating the proposedstandard, the commission shall weigh the importance of the present or potentialinstream values with the importance of the present or potential uses of waterfrom the stream for noninstream purposes, including the economic impact ofrestriction of such uses.  In order to avoid or minimize the impact on existinguses of preserving, enhancing, or restoring instream values, the commissionshall consider physical solutions, including water exchanges, modifications ofproject operations, changes in points of diversion, changes in time and rate ofdiversion, uses of water from alternative sources, or any other solution;

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

(2)  Establish interim instream flow standards;

(A)  Any person with the proper standing maypetition the commission to adopt an interim instream flow standard for streamsin order to protect the public interest pending the establishment of apermanent instream flow standard;

(B)  Any interim instream flow standard adoptedunder this section shall terminate upon the establishment of a permanentinstream flow standard for the stream on which the interim standards wereadopted;

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

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

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

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

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

(A)  The commission shall require persons toobtain a permit from the commission prior to undertaking a stream channelalteration; provided that routine streambed and drainageway maintenanceactivities and maintenance of existing facilities are exempt from obtaining apermit;

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

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

(D)  The commission shall require filing feesby 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 ofwater.  The commission shall conduct investigations and collect instream flowdata including fishing, wildlife, aesthetic, recreational, water quality, andecological information and basic streamflow characteristics necessary fordetermining instream flow requirements.

The commission shall implement its instreamflow standards when disposing of water from state watersheds, including thatremoved by wells or tunnels where they may affect stream flow, and whenregulating 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 forinstream purposes as a "nonpermitted ground water buffer" that thecommission could use to satisfy future permit applications without amending theinterim instream flow standards for windward streams was not authorized by thecode, offended the public trust, and the spirit of the instream use protectionscheme.  94 H. 97, 9 P.3d 409.

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

  Petitions for interim instream flow standard amendments arenot among the water use permit applications "competing" under§174C-54; this section, relating to instream use protection,  operatesindependently 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 flowstandards.  94 H. 97, 9 P.3d 409.