Friday, February 28, 2014

Hawaii Supreme Court Provides Clearer Guidance on Public Trust Doctrine and Water

Diversion, Wailua River, Kauai
The Kauai Springs case has been working its way through Hawaii's courts.  A summary of the case is described in Intermediate Court of Appeals Creates Public Trust Evaluation Criteria for All Boards and Commissions.

The Hawaii Supreme Court took up the matter and issued its opinion in Kauai Springs v. Planning Commission of the County of Kauai on February 28, 2014.  The court held that while the Planning Commission’s decision to deny permits for a water bottling facility were not arbitrary and capricious, the matter is remanded to the Planning Commission to clarify its findings and conclusions.

In summary, the court's analysis begins with Hawaii's Constitution, which “adopt[s] the public trust doctrine as a fundamental principle of constitutional law[.]”  Article XI, section 1 provides as follows:
For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.
All public natural resources are held in trust by the State for the benefit of the people. 
The court then reviewed the line of cases dealing with the public trust doctrine as it applies to water, and laid out the following principles that an agency must evaluate when considering a water use request:
  1. The agency’s duty and authority is to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial use.
  2. The agency must determine whether the proposed use is consistent with the trust purposes:  i. the maintenance of waters in their natural state; ii. the protection of domestic water use; iii. the protection of water in the exercise of Native Hawaiian and traditional and customary rights; and iv. the reservation of water enumerated by the State Water Code.
  3. The agency is to apply a presumption in favor of public use, access, enjoyment, and resource protection.
  4. The agency should evaluate each proposal for use on a case-by-case basis, recognizing that there can be no vested rights in the use of public water.
  5. If the requested use is private or commercial, the agency should apply a high level of scrutiny.
  6. The agency should evaluate the proposed use under a “reasonable and beneficial use” standard, which requires examination of the proposed use in relation to other public and private uses.
Applicants have the burden to justify the proposed water use in light of the trust purposes:
  1. Permit applicants must demonstrate their actual needs and the propriety of draining water from public streams to satisfy those needs.
  2. The applicant must demonstrate the absence of a practicable alternative water source.
  3. If there is a reasonable allegation of harm to public trust purposes, then the applicant must demonstrate that there is no harm in fact or that the requested use is nevertheless reasonable and beneficial.
  4. If the impact is found to be reasonable and beneficial, the applicant must implement reasonable measures to mitigate the cumulative impact of existing and proposed diversions on trust purposes, if the proposed use is to be approved.

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