Intermediate Court of Appeals Creates Public Trust Evaluation Criteria for All Boards and Commissions

[CASE UPDATE: Hawaii Supreme Court Provides Clearer Guidance on Public Trust Doctrine and Water]

In Kauai Springs v. Planning Commission of the County of Kauai, Hawaii's Intermediate Court of Appeals ("ICA") addressed the question of whether "the Planning Commission had public trust obligations to review Kauai Springs' use of water," and "whether the Planning Commission applied the proper standards and criteria in reviewing the application for the permits."

Kauai Springs is a water bottling company.  They sought various land use permits to continue their water bottling operation within property zoned for agricultural uses.  These permits were evaluated and approved by the Kauai Planning Commission.  Generally, under its rules and permitting criteria, the Commission is charged with evaluating land use proposals based on consistency with existing zoning, allowed uses, and conditions that mitigate impacts from uses not permitted within the agricultural zone.

Based primarily on Article XI, section 1 of the Hawaii Constitution, the ICA determined that the Commission's duties extend to public trust resources, in this case, water.  Therefore, even though the Commission's decision-making criteria does not include evaluation of impacts to water uses, the Commission must evaluate those impacts.  Compare, for example, the Commission on Water Resource Management, which is specifically tasked with evaluating impacts and use of surface and ground water.

The ICA developed the following public trust criteria:

. . . the Planning Commission's decision should be initially grounded in the framework of the statutes and regulatory provisions that authorize the Planning Commission to act in this instance; in addition, the Planning Commission should make appropriate assessments and require reasonable measures to protect the water resources at issue in this case; and, because Kauai Springs seeks to use the water for economic gain, this case requires that the Planning Commission give the permit application a higher level of scrutiny and, although Kauai Springs' use of the water is not illegal or improper per se, Kauai Springs carries the burden to justify the use of the water in light of the purposes protected by the public trust.

(Emphasis in original.)

This new judicially created criteria ostensibly applies to all boards and commissions making land use decisions, such as the Board of Land and Natural Resources, all four county planning commissions, and the Land Use Commission.

The responsibility for compliance and implementation will fall on project proponents and public decision-makers that review and process land use permits and entitlements.