§174C-49 Conditions for a permit. (a) To obtain a permit pursuant to this part, the applicant shall establish that the proposed use of water:
(1) Can be accommodated with the available water source;
(2) Is a reasonable-beneficial use as defined in section 174C-3;
(3) Will not interfere with any existing legal use of water;
(4) Is consistent with the public interest;
(5) Is consistent with state and county general plans and land use designations;
(6) Is consistent with county land use plans and policies; and
(7) Will not interfere with the rights of the department of Hawaiian home lands as provided in section 221 of the Hawaiian Homes Commission Act.
(b) Within sixty days after receipt of a notice of a permit application, the county shall inform the commission if the proposed use is inconsistent with county land use plans and policies.
(c) The common law of the State to the contrary notwithstanding, the commission shall allow the holder of a use permit to transport and use surface or ground water beyond overlying land or outside the watershed from which it is taken if the commission determines that such transport and use are consistent with the public interest and the general plans and land use policies of the State and counties.
(d) The commission, by rule, may reserve water in such locations and quantities and for such seasons of the year as in its judgment may be necessary. Such reservations shall be subject to periodic review and revision in the light of changed conditions; provided that all presently existing legal uses of water shall be protected.
(e) All permits issued by the commission shall be subject to the rights of the department of Hawaiian home lands as provided in section 221 of the Hawaiian Homes Commission Act, whether or not the condition is explicitly stated in the permit. [L 1987, c 45, pt of §2; am L 1991, 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 water from public streams to satisfy those needs. 94 H. 97, 9 P.3d 409.
The "reasonable-beneficial use" standard and the related criterion of "consistent with the public interest" demand examination of the proposed use not only standing alone, but also in relation to other public and private uses and the particular water source in question; thus, permit applicants requesting water diverted from streams must duly take into account the public interest in instream flows. 94 H. 97, 9 P.3d 409.
Waiahole Ditch water use permittees being required to fund subsequent stream studies and monitoring activities was not an illegal "tax" where the studies directly benefited permittees by helping them prove as required under this section that their uses were "reasonable-beneficial" and "consistent with the public interest" and by also allowing them exclusive use of public resources in the interim, despite the present absence of such proof. 94 H. 97, 9 P.3d 409.
Where permit applicant failed to obtain development plan approval, commission did not err in denying permit request and requiring compliance with county zoning classifications. 94 H. 97, 9 P.3d 409.
Although the Hawaii administrative rules denominate aquifer-specific reservations of water to the department of Hawaiian home lands, such a limitation for purposes of water resource management does not divest the department of its right to protect its reservation interests from interfering 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) that transport of water outside the watershed of origin was consistent with the public interest and the general plans and land use policies of the State and counties, applicant was allowed to transport and use ground water outside the original aquifer system. 103 H. 401, 83 P.3d 664.
Commission did not abuse its discretion in imposing a well monitoring program as a condition to granting applicant a water use permit, and utilizing a well located in a different aquifer system for such purpose. 103 H. 401, 83 P.3d 664.
Where commission on water resource management failed to render the requisite findings of fact and conclusions of law with respect to whether applicant had satisfied its burden as mandated by the state water code, it violated its public trust duty to protect the department of Hawaiian home lands' reservation rights under the Hawaiian Homes Commission Act, the state water code, the state constitution, and the public trust doctrine in balancing the various competing interests in the state water resources trust. 103 H. 401, 83 P.3d 664.
Where commission on water resource management's findings supporting its conclusion that the proposed use of water would not interfere with department of Hawaiian home lands' reservation rights under §221 of the Hawaiian Homes Commission Act failed to address whether the proposed user had adduced sufficient evidence with respect to the impact of the proposed use on the department's reservation in the adjacent aquifer system, commission erred in concluding that proposed user had met its burden under this section to obtain 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 be utilized for existing purposes, commission erred in granting an "interim" use permit, ostensibly pursuant to subsection (a); §174C-50 provides for the issuance of an interim use permit only for "existing legal uses". 103 H. 401, 83 P.3d 664.
As the department of Hawaiian home lands' reservation of water did not constitute an "existing legal use" for purposes of subsection (a)(3) but a public trust "purpose", commission on water resource management was obligated to take this reservation into account in the planning and allocation of water resources and to protect it whenever feasible, as this public trust purpose status made it superior to private interests in the resources at any given time; however, commission was not precluded from approving uses which may compromise this reservation, as long as commission's decision 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 yield determination in spite of evidence that the aquifer may have been overdrawn and the sustainable yield actually lower where commission was mandated by this code to determine a sustainable yield for each hydrological unit within the State "using the best information available", and this code precluded the ad hoc revision of the sustainable yield such that it would have been inappropriate for the commission to reevaluate the sustainable yield figure in a permit application proceeding. 116 H. 481, 174 P.3d 320.
Commission on water resource management failed in its public trust duty to hold permit applicant to its burden of demonstrating the absence of other practicable alternative sources of water when it reserved consideration of feasible alternative sources of water until after the "new uses" water permit had been granted; commission thus failed to establish an adequate basis for the amount of "new uses" water allocated 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 water resource management from allocating water to applicant to supply water to domestic end users from a delivery system that may not comply with chapter 340E; as this jurisdiction separately regulates water allocation and drinking water standards, and there was no discernable legislative intent to make water use permit applications subject to compliance with chapter 340E, violations of chapter 340E were not germane to a review of the propriety of water allocation under the water code and the public trust. 116 H. 481, 174 P.3d 320.
Where commission on water resource management's findings of fact with respect to subsection (a)(4), (5), and (6) established the findings as set forth in subsection (c)--the impact that permit applicant's use would have on the Molokai economy and environment, that applicant's uses were consistent with state and county general plans, land use designations, and county land use plans and policies, applicant was allowed to transport and use water from well overlying aquifer system. 116 H. 481, 174 P.3d 320.
Where it could not be said that closure of hotel and golf course would have no impact on permit applicant's proposed uses in light of commission on water resource management's findings and conclusions pursuant to the "reasonable-beneficial use" standard set forth in this section and defined in §174C-3, commission's reliance on §174C-58(4), allowing applicant four years to fulfill its proposed uses before the commission may suspend or revoke a permit, was misplaced; as commission failed to consider the impact the closures may have on applicant's proposed uses when it made its proposed use allocation decision, proposed use permit vacated. 116 H. 481, 174 P.3d 320.