Kauai water feud goes to court
A bottling company says it received all necessary permits, but the county disagrees
KOLOA, Kauai » A small Kauai water-bottling company has turned to Circuit Court to keep the Kauai Planning Commission from closing it down.
Kauai Springs, which operates on land leased from the Grove Farm Co., takes water from a stream above the town of Koloa.
The planning commission denied the company a special use permit in January.
That decision was cheered by the Office of Hawaiian Affairs, among other native Hawaiian groups, which said that native Hawaiians have rights to surface water and anywhere surface water and underground water mix.
The water used by Kauai Springs belongs to the Hawaiian people, and to profit off that is wrong, said Kaiulani Huff at the planning commission's Feb. 13 meeting.
"Shame on you, Kauai Springs, for wanting to profit off of natural resources which belong to a group of people," Huff said.
But the company appealed to state Circuit Court, saying it had all necessary permits from county and state agencies when it began bottling the water in 2003.
Last week, Circuit Judge Kathleen Watanabe issued a 10-day order allowing the company to keep bottling spring water. Another ruling on whether the business can keep going past 10 days is expected this week.
Kauai Springs had asked for and received a building permit to build a "bottled water purification facility" in 2002. It received all state permits. And it even sold water to county agencies in the same building as the county planning department, lawyers for the family-run business said.
But, responding to a complaint last year, the planning commission sent out a cease-and-desist order, saying the company failed to get a use permit.
When Jim Satterfield, owner of Kauai Springs, filed to get a permit, it was denied.
Deputy County Attorney James Tagupa said at last week's court hearing that bottling water for commercial use is a violation of zoning laws on agricultural land. And just because Kauai Springs received a building permit doesn't mean it didn't need a use permit, he added.
Kauai Springs "was basically operating illegally for a number of years," Tagupa told Judge Watanabe.
The lawyer for Kauai Springs, however, said that water is a food like any other agricultural product and that closing down an agricultural business for commercially selling its product is ludicrous.
Robert Thomas, an attorney with Pacific Legal Foundation representing Kauai Springs, said last week that the commission made a hasty decision, overstepped its bounds and made a decision on water rights, not land rights.
Both the state Public Utilities Commission and the State Commission on Water Resource Management wrote letters to the county, saying the company had met all their criteria.
But County Planner Bryan Mamaclay testified before the Planning Commission that the county was unsatisfied that water bottling is an allowed use on agricultural land.
"We needed some comfort letter or some certainty that the applicant has the right or the authority to extract and draw water on a commercial basis," Mamaclay added.
And because, according to Mamaclay, it's up to the applicant to prove that the use is allowed, the commission, in a 4-1 vote, denied the permit.
Satterfield said Kauai Springs will continue to operate as long as the judge's order remains in place.
Judge Watanabe has not yet set a date on when the planning commission appeal will be heard.