‘Forging new territory’

LIHUE — The owners of Kauai Springs, a Koloa-based bottled water company, are asking the County of Kauai to stop proceedings to withdraw the permits to operate their business.

Those permits, denied in 2007 by the county Planning Commission but reversed a year later by the 5th Circuit Court, temporarily allowed Kauai Springs owner Jim Satterfield and his family to operate their company using spring water from Mount Kahili on land leased from Grove Farm Company.

A state Supreme Court appeal filed by the county Planning Commission, however, reversed the 5th Circuit Court’s ruling and remanded the permit approval process back to the Planning Commission, where a proposal to withdraw Kauai Springs’ permits were floated on Tuesday.

“Things are pending but we’re moving to comply with the Supreme Court’s order as is the Planning Commission,” Kauai Springs attorney Robert Thomas said. “Ultimately, this is a commission duty based on how the Supreme Court sent the case back.” 

Though the Planning Commission, following several hours of closed-door talks Tuesday, decided to defer any decisions on the matter until its next meeting on April 12, it served as a first step in what legal experts on both sides agree is uncharted territory. 

“The order to remand means the applicant files for the above permits are still technically open,” County Planning Director Michael Dahilig explained. 

Recommendations to withdraw the permits, Dahilig said, were floated because the department did not receive “a formal communication from the applicant (Kauai Springs) to initiate further proceedings” even though loose documents, including hydrological studies, have been submitted.  

“We’re forging new territory, in a sense, because there’s a new bunch of new rules for everybody — the Planning Commission, Kauai Springs, and me,” Thomas said. “We’re sort of working through it, and we appreciate the time and what not to try and get it right.” 

Kauai Springs, as a part of the new ruling, must justify its proposed water use; demonstrate the absence of a practicable alternative water source; demonstrate actual needs and the propriety of draining water from public streams to satisfy those needs; and demonstrate affirmatively that their proposed use will not affect other protected uses.

“The absence of evidence that the proposed use would affect a protected use is insufficient,” the Supreme Court ruled last year.

The Planning Commission, according to the state Supreme Court, must determine whether the proposed use will preserve the waters for continued cultural use and public benefit; evaluate each proposal for use on a case-by-case basis; apply a high level of scrutiny for private or commercial uses; and evaluate the proposed use in relation to other public and private uses.

The Planning Commission will take up the Kauai Springs permits at their April 12 meeting, beginning at 9 a.m. in the Moikeha Building, Meeting Room 2A/2B.

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