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By David Callies

Saturday, September 9, 2000


Supreme Court
ignored water mandates

LET'S say you own a lot in Leeward Oahu upon which sits a dilapidated house. You want to tear it down and build a duplex instead. Since the Honolulu land use ordinance permits both single-family and duplex homes, your intentions conform to local zoning.

Let's further assume the county development plan for your neighborhood designates your land "residential" -- again, just the use you intend with your duplex. Your lot is also within the "urban" boundary set by the state Land Use Commission. Compliance all around. So all you need is a building permit, right?

Your understandable reliance on our zoning and planning is misplaced. You need more water for the domestic use of the two families in a duplex than the one (or perhaps no) family in the run-down single-family dwelling.

Therefore the amount of water available for Leeward Oahu will pretty much determine whether you can build your duplex. Water is an issue more important than whether county and state land use plans, ordinances and statutes permit your proposed duplex.

Our state Water Commission makes the decisions about such allocations of water, after holding public hearings. This is what the commission has recently done, for months and months, at huge public and private cost, continuing to send substantial water from the Windward to the Leeward side.

The commission did not act in a vacuum. It is governed by our state Water Code, enacted by the Legislature, and is bound by those standards and objectives embodied in the code.

The principal objective states that the code "shall be liberally interpreted to obtain maximum beneficial use of the waters of the state for purposes such as aquaculture uses, irrigation and other agricultural uses, power development, and commercial and industrial uses."

Moreover, water plans that more specifically guide the commission in allocating water "shall be consistent with the respective county land use plans and policies including general plan and zoning."

The land use development plans for Honolulu, its General Plan and its zoning all direct further economic growth to Leeward Oahu, and away from the Windward side. With the exceptions of Kailua and Kaneohe, Oahu's General Plan directs 95 percent of the projected year 2010 growth to Ewa, the Primary Urban Center and East Honolulu, all on the Leeward side.

THIS Water Code requirement of consistency with county (and state) plans and zoning is nothing new. Our courts have -- until now -- stressed for the past 25 years the critical importance of land use planning in deciding how we use our land, striking down even popular initiative votes that, under the Water Code, ignore such plans.

So how is it that our state Supreme Court has ignored these statutory and planning mandates and sent the Water Commission's allocation of water between the Windward and Leeward side back to the commission for rehearing?

It has done so by elevating an arcane doctrine called the "public trust" over the Water Commission and the statutory code created by our Legislature to implement our state constitutional protection of our natural resources -- including water.

Contrary to all our plans and zoning on Oahu, the court has elevated maintenance of "instream flows" where the water originates over the "maximum beneficial use" for growth and development of the Leeward side.

Such instream uses are at best a very secondary and unstated objective under the code, implied from "adequate provision" for such purposes as the protection of fish and wildlife, ecologic balance and scenic beauty.

Even this "adequate provision" section ends with "the preservation and enhancement of waters of the state for municipal uses, public recreation, public water supply, agriculture and navigation."

Somehow, the public trust doctrine as interpreted by the court's majority does not appear to include that part of the public that is attempting to maintain and further develop our county's economic base and resources.

DOES this fly in the face of our land use plans and a substantial part of the Water Code? You bet. Our governor was right when he recently complained about the difficult if not impossible task state (and county) agencies have in attempting to plan for growth and development of the Leeward side without the water essential for that growth.

The dissenting justice in this water rights decision is also correct in observing 1) that when the Legislature through the Water Code makes specific provisions for water allocation, the public trust doctrine is unnecessary and irrelevant and 2) by elevating so-called "instream" uses (all on the Windward side) to superior status over land plan-based economic uses (all on the Leeward side), it makes the commission's water allocation job impossible.

For these very reasons, so should we all dissent from this surprising and intrusive opinion, which reduces sound land use planning -- and the land use controls based upon it -- to an exercise in futility.


David Callies is a law professor at the University of Hawaii.




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