The fundamental premise establishing the protection of ground water as a public trust resource under the Hawaii Constitution is based on the recognition that water is the source of all life in Hawaii that no one — not even ali’i — could own. The duty to uphold and protect the public trust is thrust upon all state and county agencies, and in this case, the Planning Commission.
The Planning Commission does not take its burden to uphold the public trust lightly, especially given the Hawaii Supreme Court’s review of this very case nearly six years ago.
As members of the Planning Commission, we must volunteer our time to apply increasingly complex laws and standards prescribed by county and state statutes, as well as difficult case law mandated by the courts.
Here, despite the Circuit Court’s reversal of the commission’s decision in 2007, the Intermediate Court of Appeals and the Hawaii Supreme Court affirmed that the commission got it right — it said the commission’s “decision to deny the permits was not arbitrary and capricious.”
As public trustee, however, the Planning Commission was directed to “clarify its findings and conclusions” to analyze the proposed water use under the public trust. Despite doing exactly that, we are back fighting the same battle that played out over the past decade.
Private commercial uses like Kauai Springs Inc.’s water-bottling and commercial-sale operations are not protected under the public trust. To be clear, the amount of people that enjoy Kauai Springs Inc.’s water, who their customers are, and how much water the company gives away to charities or at sports events does not make their proposed use protected under the public trust.
To the contrary, private commercial uses are subject to higher scrutiny. Where members of the public raised their concerns that the water extraction would result in harm to recognized public trust purposes, including Native Hawaiian practices and the ecology and environment downstream of Kauai Springs Inc., the commission took those concerns very seriously and had to do so to fulfill its constitutional mandate.
Instead of showing that no harm in fact results to those public-trust purposes as required by case law standards that were developed over decades of litigation, Kauai Springs Inc. argued that relatively little water is taken.
Protecting the public trust is not just about how much or how little water is taken. We are obligated to strictly apply the test to uphold the public trust and ensure precious water resources will continue to enrich the riparian and near shore environments and exist for future generations.
Sean Mahoney is chairman of the County of Kauai Planning Commission.