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Can One Government Official Really Hold Up Necessary Water Uses? The Hawaii Public Water Trust In Action
By Robert Thomas @ 12:05 AM :: 4971 Views :: Maui County, Environment, Greenmail, Land Use, OHA

KS_aerial
According to the County, this is an "industrial" use, incompatible with "agricultural" zoning

Can One Government Official Really Hold Up Necessary Water Uses? The Hawaii Public Water Trust In Action

by Robert Thomas, Inverse Condemnation, Sept 21, 2023

Note: sorry, this is one of those longer posts, but the topic is a serious one, so we felt it needed more than our usual cursory treatment.

How Can That Be?

We've been somewhat reluctant to post too much on the legal aspects of the Maui wildfires (other than to comment on the first lawsuit), just because it still seems "too soon." The focus should be on aiding the victims and helping those who want to rebuild to do so, and not on premature blamestorming (see also this), legal theories, and  the "opportunities" this disaster presents (see also this.and this).

But we did want to clear one thing up. There are a lot of stories (see here and here, for example), about the State of Hawaii official -- the Deputy Director of the Commission on Water Resource Management and an employee of the State Department of Land and Natural Resources -- who allegedly refused for several hours to release water as requested to fill reservoirs, until first obtaining the approval of a taro farmer.

A lot of the reaction has been of the "how could this be?" variety. How can a government official refuse to release water needed for fire suppression? How is it that a private farmer needed to be asked for approval? Can this be accurate?

Short story: yes.

This is exactly how Hawaii's water law is designed to work, and is the system functioning as intended. And please don't get us wrong -- we're not at all suggesting that working-as-designed has resulted in a system that actually, you know, works. No, we are being purely descriptive, not normative, and just laying out our experience about how Hawaii water law plays out day-to-day in all its intended glory.

Bottom line: the water law regime in Hawaii is designed so that a government official can hold up water uses -- even if that use is to fight fires.

No Private Rights

First, it is essential to understand that all water in Hawaii -- and by that we mean all water -- fresh, salt, surface, ground, runoff, freshet, riparian, stream, ocean, lake, you-name-it -- is owned by the public, and administered by every agency at every level of state and municipal government under a trust-beneficiary model.

This approach is unique to Hawaii. But how did it develop?

It wasn't always this way, and for more than a century, Hawaii's water law -- mostly developed though court cases -- followed its English and American counterparts with a few local modifications. The law recognized private rights to "own" and use water, subject to the rights of others.

But in the 1960's and 1970's, the activist Hawaii Supreme Court began altering the governing law, ultimately concluding that water resources are (and have always been) incapable of private ownership -- despite a century of Hawaii common law that seemed to hold otherwise. The court began developing the idea that water is a public resource and consequently is impressed with a "public trust."

In a clever bit of sleight-of-law, the court held that the "public trust' doctrine was adopted by the Kingdom courts in the 19th Century, and then "later decisions of this court confirmed the acceptance of the public trust doctrine in this jurisdiction." Kelly v. 1250 Oceanside Partners, 140 P.3d 985, 1002 (Haw. 2006). The problem with that conclusion is that the "public trust" doctrine referred to in the 19th Century Kingdom cases was the traditional public trust -- the one that has its roots in Roman and English law -- the public's right to use navigable waters for activities such as commerce, navigation, and fishing. It had nothing to do with ownership of the water, or water rights, or the government's authority to control and regulate uses. Instead, the newly created "public trust" doctrine the Hawaii Supreme Court was referring to was much broader, and applied to all water whether navigable or not, and all uses whether related to commerce or navigation.

National Property Scholar: You Keep Using the Term "Public Trust." I Do Not Think It Means What You Think It Means

As renown property and water rights scholar Thomas Merrill wrote:

The public trust doctrine burst forth in Hawaii, in a big time way, as part of a series of highly controversial decisions by the state supreme court involving water rights. The rights in question did not involve the public right of access to navigable waters for commerce and fishing -- the classic issue in Illinois Central and Oahu Railway. Instead, these decisions have involved the rights to consumptive uses of water for purposes like irrigation or public drinking water systems -- what the Hawaii courts call "water resources" law. The public trust doctrine has never been applied to water resources in this sense in Illinois or New York. Indeed, the only other state besides Hawaii that has extended the doctrine in this fashion is California. And even there, the famous Mono Lake decision involved the diversion of waters by the city of Los Angeles from tributaries of a navigable lake, so the diversion had an impact on navigation. In Hawaii, the connection to navigation has been cut altogether.

See Merrill, The Public Trust Doctrine: Some Jurisprudential Variations and Their Implications, 38 U. Haw. L. Rev. 261, 276-277 (2016) (footnotes omitted).

In altering the longstanding rules, the Hawaii Supreme Court based its rulings on, among other things, a 1978 amendment to the Hawaii Constitution, which, according to the court, publicized all water resources:

The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.

The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources.

Haw. Const. art. XI, § 7.

The long and the short of it is that all Hawaii water is incapable of private ownership. (So if anyone tells you that there are what you think of as "water rights" in Hawaii, they are in our opinion mistaken. Or at least the concept of a substantial private interest in water is markedly different in Hawaii than elsewhere.) In case you are wondering, yes, there have been challenges to this altered water regime as a taking, both legislative and judicial. But those cases mostly went nowhere, with the most significant challenge crashing and burning on the shoals of Williamson County's ripeness doctrine.

The Regulatory Regime

Next, after effectively publicizing private water rights, the Hawaii Supreme Court imposed a regulatory system -- again based on this new "public [water] trust" concept -- on how the State and its subsidiaries and agencies were to "control and regulate" water (as that term is used in article XI, noted above). The obligation to control and regulate water use extends to all uses of water, no matter how de minimis the use, or how necessary (such as fire suppression).

If you think we might be exaggerating about this, we offer an example (other than the Maui fire situation), from one of our own cases from when we were in private practice.

Setting the Stage for Lahaina

In Kauai Springs, Inc. v. Planning Comm'n of the Cnty. of Kauai, 324 P.3d 951 (Haw. 2014), "Kauai Springs" was a small, family owned business that purchased approximately 750 gallons per day of water emanating from a natural spring on the island of Kauai. For more than a century, thousands of gallons of water per day had naturally flowed out of the spring, where it was channeled into an above-ground pipeline to irrigate sugar fields several miles from the source. The water wasn't pumped out or down -- gravity did the work. When the sugar plantations went away in more recent times, a small portion of the water in the pipe was used by several nearby homes as drinking water, but otherwise, thousands of gallons of water per day emptied from the pipeline into a nearby stream bed where it eventually flowed into the ocean.

Sensing an opportunity, a Kauai family obtained a license from the owner of the spring to capture some of that water, ensure it was up to USDA water quality standards, and bottle it in those 5-gallon plastic bottles that go on top of a dispenser unit. The family would deliver these to homes and offices on the island.

The problems began when someone dropped dime and reported to the Kauai County Planning Department that Kauai Springs was making an "industrial" use of land zoned for agriculture. Sure enough, planning officials paid a visit and issued a notice of violation and a shut down order.

Kauai Springs sought after-the-fact permits allowing its use as either a special use, or as a conditional use. You land users understand that when an unpermitted use is kind of like a permitted use, and really won't have much of an impact on the land, then very often the owner may be allowed to make an otherwise unpermitted use. That was the case here, where Kauai Springs argued that putting water into 5 gallon bottles at its facility (see photo above) was not that much different than typical agricultural uses, and had no significant different impacts on the land or the surrounding properties.

But the County of Kauai denied the permits. Why? Not because the building (see above photo) or the low-impact activity of bottling water are incompatible with agricultural zoning. Rather, it was because Kauai Springs was bottling water, and it had not proven that using 750 gallons per day from the pipeline flowing thousands of gallons per day into the ocean would not significantly impact the water resources of the County of Kauai.

You read that right. Seven-hundred-and-fifty gallons per day represented .22% (that's 0.0022 for you who are mathematically-challenged like me) of the total daily output of the spring. So minuscule that when we tried to create a demonstrative exhibit to show how little this was "impacting" water resources, it was impossible because in order to get the X-axis (Kauai Springs' useage) large enough to be visible, the Y-axis (total volume) would not fit on any reasonably-sized poster board - it would have needed to be yards long. 

Additionally, the County said that until the State Public Utilities Commission and the State Commission on Water Resources had weighed in, it was premature for the County to grant a zoning permit that might affect the County's water resources. Never mind that both agencies did not have subject matter jurisdiction over this, and had told the County so.

An Already Long Story Shorter

By the time the case reached the Hawaii Supreme Court, the first big issue was whether under the Hawaii public water trust, county agencies like the Kauai County Planning Department and Planning Commission have an obligation to make searching inquiries into whether the grant of zoning permits might affect the County's water resources. After all, neither agency has any expertise in the area of water regulation. Their expertise, if any, is in land use, not water and hydrology. Surely the public trust cannot be read as requiring every state and local agency to make its own independent determination about water resources, and in the case of Kauai Springs, the County agencies could simply adopt the views of the State PUC and the State Commission on Water Resource Management that there was nothing here to worry about.

The second question was who has the burden of demonstrating that use of 750 gallons per day would or would not detrimentally impact the County's water resources. While that might seem like a common-sense determination in light of the overall amount (.22%), the court was asked whether the County could deny the zoning permits on the basis that Kauai Springs had not met its burden to show to the satisfaction of the County that 750 gpd would not have a serious impact on the County's overall water resources. (Remember, Kauai bills itself as one of the "wettest spots on Earth.")

Could the County rely on the precautionary principle writ large? Does Hawaii's public water trust really enshrine the principle of inaction in the face of any doubt?

The Precautionary Principle Reaches the Parody Stage

Bottom line: yes, it does.

The Hawaii Supreme Court held that every agency and official in Hawaii -- state and county -- has a duty under Hawaii's public water trust to protect water resources. It doesn't matter whether the agency has any type of interest or expertise in water regulation, or the decision it is being asked to make (remember that Kauai Springs was asking the County for zoning permits, not asking its permission to use the water).

The court rejected the extreme hypothetical we posed - does the public water trust require that the local DMV make an inquiry about whether issuing a commercial driver license to the driver of a water company truck? After all, issuing a CDL to someone who drives a truck to deliver water might affect the public's water resources. Aw, come on that is ridiculous you say? What business does the DMV have in regulation of water uses? Every business, the court held. The public water trust is a sacred obligation, and the court held that the Hawaii Constitution's language ("The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.") means that the State itself, every State agency, and every municipality and municipal agency has an obligation to "protect, control and regulate" water. Yes, even the DMV.

Moreover, to fulfill this duty, these officials and agencies cannot rely on the conclusions of other -- perhaps more appropriate and expert -- agencies and officials. Thus, the Kauai Planning Department and the Planning Commission could not consider their public trust duties fulfilled by noting that the State Commission on Water Resources and the state PUC had both disclaimed any interest in Kauai Springs. The County agencies have an obligation to make their own independent determinations.

Next, the court concluded that the public trust duty is fulfilled by these agencies and officials if they rely on the precautionary principle to place the burden on the user of water and do nothing if the user can't disprove that its use will not adversely impact water resources. In the absence of convincing proof of no impact, the government as the trustee of the public water trust can deny, deny, deny any request for action.

Thus, the County properly denied Kauai Springs' zoning permits.

How it Works

This regime works as it intended (to slow or stop development, to give anyone who might object to a use or action a way to challenge it, and to not act when in doubt (which there almost always is)). But you can see how this regime can be deployed selectively. For example, after the Supreme Court issued its opinion, a liquor manufacturing facility across the highway from Kauai Springs sailed through the zoning and permitting process without a squeak of objection even though it makes its product from water from the exact same water source that resulted in the problem with Kauai Springs, and uses a ton more water. But did anyone even ask whether making liquor (whose main ingredient is water) would affect water resources and insist that the producer disprove an adverse impact on Kauai's water resources? 

No, and there's the rub. The way this works is that officials and agencies have nearly total discretion to apply the exacting public water trust standards ad hoc. There's no requirement of comprehensiveness, or that every action be evaluated under the public water trust. Only a requirement that every agency and official do so when prompted (either sua sponte, or by third-party objectors who object to the underlying action).  

In short, if Water User "A" can stay off the radar, no sweat. Nobody seems to want to challenge the liquor producer, or new hotels (which use a ton of water daily without any restrictions), or the new car wash. But if someone drops a dime on Water User "B," or B ends up on its own catching a government official's attention, then the Kauai Springs principles spring into action:

If there's doubt, do nothing

In our opinion, that's what looks like might have gone on when that State of Hawaii official did not immediately act to release water for fire suppression (if that is indeed accurate, as the news stories report). You can see how government agencies and officials -- used to denying, delaying, and deferring -- are not really that used to acting quickly and decisively to release the precious public resource of water, even when the situation dictates quick action. After all, a wrong move will invite claims that the official -- a trustee of the trust with fiduciary responsibilities to the public to preserve, protect, and conserve the resource -- breached this sacred duty.

In short, Hawaii's water law is very conservative: go slow, do nothing, be sure before you act; there's no downside to doing nothing.

To answer this post's headline's question, "Can one government official really hold up necessary water uses?"

You bet. That's the Hawaii public water trust working as it was intended. There isn't a necessity, or let's-save-some-lives exception, at least just yet.

Sadly, it looks to us like this just had some devastating consequences.

---30---

PDF: Kauai Springs, Inc. v. Planning Comm'n of the Cnty. of Kauai, No. SCWC-29440 (Haw. Feb. 28, 2014)

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