WAIAHOLE DITCH DECISION: COMMENTS AND
EXCERPTS REGARDING THE PUBLIC TRUST DOCTRINE
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I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. The Court's Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 B. Relationship to the State Water Code . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. The State Water Resources Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. Substance of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 b. Powers and Duties of the State Under the Trust. . . . . . .7 B. Private Commercial Applicants Have a Higher Burden. . . . . . . . . . . . . 11 C. The Precautionary Principle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 AND PROVED IN CONNECTION WITH WATER USE APPLICATIONS?. . . . . . . . . . .13 B. The Water Use Applicant's Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 AND THE COUNTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 |
WAIAHOLE DITCH DECISION: COMMENTS AND
EXCERPTS REGARDING THE PUBLIC TRUST DOCTRINE
(In re Water Use Permit Applications, 94 Hawaii 97; 9 P.3d 409 (2000))
prepared by James T. Paul, counsel for
Hawaii's Thousand Friends in this case
The original ditch system was built by Oahu Sugar Company between 1913-1916
to irrigate sugar cane. By the 1990's, that company shut down, no longer
needing the ditch water or the additional water it pumped from the Pearl
Harbor aquifer.
Through August, 2000, at the time of the Hawaii Supreme Court's decision,
various leeward parties seeking to use Waiahole Ditch water still owned
the permits to pump more water than was in the Ditch, but elected not to
use that water.
As contemplated by the Hawaii Water Code, in 1992 the Water Commission
began a process which required anyone who sought to use Waiahole Ditch
water to apply for a permit. Many private and public parties asked for
permits to consume, in total, far more water than was in the ditch. Several
windward community groups (the "Windward Parties") petitioned for more
water to stay in the windward streams.
In December, 1997, after more than 50 days of hearings in 1995 and 1996, the Commission decided to divide the 27 mgd as follows:
6.97 mgd as an "agricultural reserve" and "non-permitted ground water buffer" for water use; and 6 mgd to be released for the windward streams.
Of the more than twenty parties, the Windward Parties and Hawaii's Thousand
Friends argued before the Supreme Court that the Water Commission had taken
too much water away from the streams. Hawaii's Thousand Friends focused
on the grounds that the public trust doctrine was misapplied and misunderstood
by the Water Commission.
B. The Court's Decision
The Supreme Court criticized the Water Commission in several ways, and reversed the Commission's decision to establish the buffer, reversed the Commission's decision to award permits to the leeward parties for agricultural uses, and revised its decision to permit 2.1 mgd for "system losses." The Court strongly endorsed the public trust doctrine, and suggested that far more than 6 mgd should be returned to the streams involved.
While complimenting the Commission for its hard work, in the lengthy opinion the Court addressed the Commission's decision, at times using strong language:
We have rejected the idea of public streams serving as convenient reservoirs for offstream private use. p. 155
[t]he Commission's present disposition largely defeats the purpose of the instream use protection scheme set forth in [the Hawaii Water Code]. Every concession to immediate offstream demands made by the Commission increases the risk of unwarranted impairment of instream values, ad hoc planning, and arbitrary distribution. p. 154
II. THE PUBLIC TRUST DOCTRINE
The Court embraced the public trust doctrine, setting forth the doctrine's
history and development in Hawaii and its relationship to the Hawaii Water
Code. The result is what the Court announced for the first time as "The
State Water Resources Trust." The Court described the scope of that trust,
its substance, its purposes, the powers and duties of the State as the
trustee of all water in the State, and the fundamental principles which
will guide the Water Commission and other government agencies in the future
regarding water planning and preservation and management.
A. History and Development
In 1978, Hawaii added several provisions to its constitution specifically
relating to water resources.
Section 1. For the benefit of present and future generations,
the State and its political subdivisions shall conserve and protect
. . . all natural resources including . . . water, . . .
and
shall promote the development and utilization of these resources in a manner
consistent with their conservation . . . .
All public natural resources are held in trust by the State for
the benefit of the people. (emphasis the Court's)
Section 7. The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people. (emphasis the Court's) pp. 129, 130
B. Relationship to the State Water Code
The . . . suggestion that [the Water Code] could extinguish
the public trust . . . contradicts the doctrine's basic premise, that the
state has certain powers and duties which it cannot legislatively abdicate.
[In
several cases] this court has held that the doctrine would invalidate
such measures, sanctioned by statute but violative of the public trust
. . . . pp. 130, 131
Most importantly, the people of this state have elevated the public
trust doctrine to the level of a constitutional mandate. p. 131
The plain reading of [the above-quoted provisions of the State
Constitution] manifests the framers' intent to incorporate the notion
of the public trust into our constitution. p. 131
We therefore hold that [the constitution] adopt[s]
the public trust doctrine as a fundamental principle of constitutional
law in Hawaii. pp. 131, 132
Other state courts, without the benefit of such constitutional provisions, have decided that the public trust doctrine exists independently of any statutory protections supplied by the legislature. [For example, California, Idaho, Arizona and Washington.] p. 132
1. Scope of the Trust
Modern science and technology have discredited the surface-ground
dichotomy. p. 135
As a logical extension from the increasing number of public trust
uses of waters in their natural state, courts have recognized the distinct
public interest in resource protection. As explained by the California
Supreme Court:
Although its purpose has evolved over time, the public trust has
never been understood to safeguard rights of exclusive use for private
commercial gain. Such an interpretation, indeed, eviscerates the trust's
basic purpose of reserving the resource for use and access by the general
public without preference or restriction. p. 138
The state water resources trust thus embodies a dual mandate of 1)
protection and 2) maximum reasonable and beneficial use. p. 139
As commonly understood, the trust protects public waters and submerged
lands against irrevocable transfer to private parties, or "substantial
impairment," whether for private or public purposes. In this jurisdiction,
. . . the state has a comparable duty to ensure the continued availability
and existence of its water resources for present and future generations.
p.
139
[t]he water resources trust also encompasses a duty to promote the
reasonable and beneficial use of water resources in order to maximize their
social and economic benefits to the people of this state. Post-Mahele water
rights decisions ignored this duty, treating public water resources as
a commodity reducible to absolute private ownership . . . . [t]his
court subsequently reasserted the dormant public interest in the equitable
and maximum beneficial allocation of water resources. p. 139
This state [then] adopted such principles in its constitution.
p. 139
In short, the object is not maximum consumptive use, but rather the
most equitable, reasonable, and beneficial allocation of state water resources,
with full recognition that resource protection also constitutes "use."
p.
140
If one must distinguish the [California Mono Lake case
from this Waiahole Ditch decision, the Mono Lake case]
appears to provide less, rather than more, protection [of stream waters]
than
arguably justified in this case. p. 140
[i] Under the public trust, the state has both the authority and
duty to preserve the rights of present and future generations in the waters
of the state. The continuing authority of the state over its water
resources precludes any grant or assertion of vested rights to use water
to the detriment of public trust purposes. ("[T]he public trust doctrine
takes precedent even over vested water rights.") This authority empowers
the state to revisit prior diversions and allocations, even those made
with due consideration of their effect on the public trust.
[ii] The state also bears an "affirmative duty to take the
public trust into account in the planning and allocation of water resources,
and to protect public trust uses whenever feasible." (Read narrowly, the
term "feasible" could mean "capable of achievement," apart from any balancing
of benefits and costs. [We do] not use "feasible" in this strict
sense . . .) p. 141 and fn. 39
Therefore, apart from the question of historical practice, reason
and necessity dictate that the public trust may have to accommodate offstream
diversions inconsistent with the mandate of protection, to the unavoidable
impairment of public instream uses and values. "[c]onservation,"
. . . does not preclude offstream use, but merely requires that all uses,
offstream or instream, public or private, promote the best economic and
social interests of the people of this state. In the words of another court,
"[t]he result . . . is a controlled development of resources rather
than no development." (emphasis the Court's) p. 141
We have indicated a preference for accommodating both instream and
offstream uses where feasible. p. 142
[w]e hold that the Commission inevitably must weigh competing public
and private water uses on a case-by-case basis, according to any appropriate
standards provided by law. p. 142
The Commission . . . must still ensure that all trust purposes are
protected to the extent feasible. p. 142, fn. 43
Specifically, the public trust compels the state duly to consider
the cumulative impact of existing and proposed diversions on trust purposes
and to implement reasonable measures to mitigate this impact, including
the use of alternative sources. p. 143
[i]n sum, the state may compromise public rights in the resource pursuant only to a decision made with a level of openness, diligence, and foresight commensurate with the high priority these rights command under the laws of our state. p. 143
The public trust, however, is a state constitutional doctrine. As
with other state constitutional guarantees, the ultimate authority to interpret
and defend the public trust in Hawaii rests with the courts of this state.
p.
143
Because the State (and its agencies) is the trustee of water resources
under the public trust, it is the State's duty to do all investigations
and analyses necessary to determine whether water can be used as requested
by permit applicants. ("The Commission . . . must . . . ensure that all
trust purposes are protected . . . .")
As a practical matter, the burden of producing the necessary data and
information, and the burden of persuading the decision maker that water
use should be permitted, is on the applicant seeking a permit to use water.
This is critical because in difficult or close cases, including cases
where there is simply insufficient knowledge or uncertainty about the harm
that may be caused by granting the permit, failing to meet this burden
should result in denial of the permit.
In effect, this should minimize the burden on those who oppose permit
applications.
The Supreme Court defined this burden in various ways:
Under the public trust and the Code, permit applicants have the burden
of justifying their proposed uses in light of protected public rights in
the resource. [t]he public trust effectively creates this burden
through its inherent presumption in favor of public use, access, and enjoyment.
p.
160
[T]he burden of demonstrating that any transfer of water was not
injurious to the rights of others rested wholly upon those seeking [a
permit]. p. 143
[p]ermit applicants requesting water diverted from streams must duly
take into account the public interest in instream flows. p. 161
[This will include] consideration of possible harm to society
through harm to the water body, and a balancing of any harm caused by the
use against methods currently available to reduce or eliminate that harm.
(emphasis
the Court's) p. 161
In the instant case, the prior unavailability of proper instream
flow standards made the permit applicants' task of justifying their proposed
uses more difficult. p. 161
At a very minimum, applicants must prove their own actual water needs
. Furthermore, besides advocating the social and economic utility of their
proposed uses, permit applicants must also demonstrate the absence of practicable
mitigating measures, including the use of alternative water sources. Such
a requirement is intrinsic to the public trust, the statutory instream
use protection scheme, and the definition of "reasonable-beneficial" use,
. . . permit applicants must still demonstrate their actual needs and,
within the constraints of available knowledge, the propriety of draining
water from public streams to satisfy those needs. p. 162
It is axiomatic that the Commission must also consider alternative sources in permitting existing or new uses in the first instance, as a part of its analysis of the "reasonable-beneficial" and "consistent with the public interest" conditions for a permit. p. 161, fn. 65
[i]nsofar as the public trust, by nature and definition, establishes use consistent with trust purposes as the norm or "default" condition, we affirm the Commission's conclusion that it effectively prescribes a "higher level of scrutiny" for private commercial uses such as those proposed in this case. In practical terms, this means that the burden ultimately lies with those seeking or approving such uses to justify them in light of the purposes protected by the trust. (emphasis added) p. 142
Questions involving the environment are particularly prone to uncertainty
. . . . Yet the statutes--and common sense--demand regulatory action
to prevent harm, even if the regulator is less than certain that harm
is otherwise inevitable.
Undoubtedly, certainty is the scientific ideal--to the extent that
even science can be certain of its truth . . . . Awaiting certainty
[, however,] will often allow for only reactive, not preventative, regulation.
Petitioners suggest that anything less than certainty, that any speculation,
is irresponsible. But when statutes seek to avoid environmental catastrophe,
can preventative, albeit uncertain, decisions legitimately be so labeled?
(emphasis
the Hawaii Court's) p. 154, fn. 59
The decision makes it clear that as the trustee of the State Water Resource
Trust the State has affirmative duties to protect the water. The lengthy
decision gives some insights as to what those specific duties are. When
deciding on applications for water use applications, as a practical matter,
the State (the Water Commission or other agency acting on behalf of the
State) will expect the applicant to do much of the trustee's work in discharging
its duties to the trust. Therefore, the following partial checklist of
matters that the decision mandates the Water Commission to perform also
should be part of any applicant's checklist in presenting a water use application.
The following duties have been culled from the decision:
A. Duties of the State as Trustee of the State Water Resource Trust
1. Generally:
b. Catalog existing uses but do not automatically "grandfather" them ("We agree with the Commission that existing uses are not automatically "grandfathered" under the constitution and the Code, especially in relation to public trust uses.");
c. Ensure that all trust purposes are protected to the extent feasible (and "feasible" is meant broadly);
d. "Preserve the rights of present and future generations in the waters of the State", and "take the public trust into account in the planning and allocation of water resources," using the presumptions and default conditions noted in the Decision.
b. Determine if there are sufficient studies and information for the Water Commission to fulfill "the instream use protection framework" required;
d. Revisit prior diversions periodically ("even those made [previously]
with due consideration of their effect on the public trust" to "protect
public trust uses whenever feasible"). For example, when diversions are
already occurring, consider evidence that additional flows to the stream
would increase the native biota habitat.
b. Determine all alternative sources of water available to an applicant. "It is axiomatic that the [Water] Commission must also consider alternative sources in permitting existing or new uses in the first instance," (as part of its analysis in granting or denying a permit);
c. Employ a "higher level of scrutiny" for applications for the private commercial use of water;
d. In balancing public and private purposes, "begin with a presumption in favor of public use, access, and enjoyment" (This is "the norm or 'default' condition");
e. Determine any possible harm to the water body and all alternatives available to reduce or eliminate that harm;
f. "Consider the cumulative impact of existing and proposed diversions . . ., and implement reasonable measures to mitigate this impact, including the use of alternative sources";
g. Permit no "buffers" by any label because any such "use" establishes a working presumption against public instream uses;
h. Grant no vested rights to use water to the detriment of public trust purposes;
i. Weigh competing public and private water uses on a case-by-case basis,
according to the applicable standards provided by law, and the mandates
noted in this decision.
In addition to assisting the State by addressing the above listed matters,
and providing the other information required by the Water Code, the decision
makes it clear that an applicant for a water use permit must "justify their
proposed uses" by at a minimum providing the following information:
2. "The absence of practicable mitigating measures, including the use of alternative water sources";
3. "The propriety of draining water from public streams to satisfy" the applicant's needs in light of the public's interest in stream flows "within the constraints of available knowledge";
4. Fundamentally, a justification for the requested uses "in light of the purposes protected by the [public] trust";
5. Address the precautionary principle and whether there is sufficient certainty generally among scientists that the requested water use will not cause harm to the resource.
The following excerpts from the decision are instructive regarding the respective responsibilities of the Water Commission and the Counties, and the relationship between them:
Fundamentally, "The [Water] Code's comprehensive planning provisions ... require the Commission to complete its 'water resource, protection and quality plan' before the adoption of the 'water use and development plans' by each county .... p. 148
"Nothing in this chapter to the contrary shall restrict the planning or zoning power of any county under [HRS] chapter 46." See also HRS § 46-4(a) (1993) (stating that the counties' powers "shall be liberally construed in favor of the county exercising them"). p. 188
[However] we reject the [City and County of Honolulu's] suggestion that the Commission will illegally "restrict" the City's land use planning authority unless it accedes to any and all of the City's water demands. Such an expansive view of the counties' powers runs headlong into the express constitutional and statutory designation of the Commission as the final authority over matters of water use planning and regulation. See Haw. Const. art. I, § 7; HRS § 174C-7(a). p. 188
[The City and County of Honolulu alleges] that the Commission imposed a "directive" to prioritize uses on the counties . . . . [T]he Commission has consistently acknowledged . . . that it has neither the authority nor the inclination to force any such action by the City and that its discussion of priorities "is, in fact, a request for [the City's] help." As the Commission observed in its decision, the existing water supply is already insufficient to accommodate the land uses planned and zoned by the City. p. 188
The Commission's decision includes an excellent description of this
planning process:
The Commission should . . . take the initiative in planning for the appropriate instream flows before demand for new uses heightens the temptation simply to accept renewed diversions as a foregone conclusion. p. 149
THE AUGUST, 2000 HAWAII SUPREME COURT
WAIAHOLE DITCH DECISION: COMMENTS AND
EXCERPTS REGARDING THE PUBLIC TRUST DOCTRINE
(In re Water Use Permit Applications, 94 Hawaii 97; 9 P.3d 409
(2000))
Prepared by James T. Paul
Paul Johnson Park & Niles
Honolulu, Hawaii
(808) 524-1212
Counsel for Hawaii's Thousand Friends
Second Edition,
September, 2001