The Hawai‘i Supreme Court has upheld the decision of the state Land Use Commission in a dispute over water on Lana‘i that goes back three decades, allowing the use of brackish water from the island’s high-level aquifer to be used to irrigate Lana‘i Resort’s Manele golf course.
But the decision in Lanaians for Sensible Growth vs. Land Use Commission et al., released on May 15, has to be counted as one of the more fractured ones in the court’s history, with three of the five justices writing separate opinions. One attorney involved in the litigation described it as convoluted. Ben Kudo, who represented Lana‘i Resorts, LLC, told Environment Hawai‘i, “At this time we are still analyzing different aspects of the Supreme Court holding so we don’t have all of the answers.”
Counsel for the Native Hawaiian Legal Corporation, which brought the appeal to the Supreme Court, did not respond to several requests for comment.
The opinion of the court was unreservedly agreed to by just two associate justices – Richard Pollack, who authored it, and Sabrina McKenna, who joined with him. Associate Justice Michael Wilson joined in part, but dissented from the conclusion. Chief Justice Mark Recktenwald, joined by Associate Justice Paula Nakayama, dissented from Pollack’s analysis but joined in the judgment.
In other words, the decision was 4-1, with Wilson alone in wanting to see the dispute remanded to the LUC, giving it a fifth bite at the apple. (Previous LUC votes on the matter occurred in 1991, 1996, 2010, and 2017.)
The history of litigation is extensive. At the crux of it is the question of exactly what the commission intended when it included Condition 10 in the original 1991 decision and order, which approved the petition of Castle & Cooke Resorts to develop the Manele golf course.
That condition provides that the resort “shall not utilize the potable water from the high level groundwater aquifer for the golf course irrigation use, and shall instead develop and utilize only alternative non-potable sources of water (e.g., brackish water, reclaimed sewage effluent) for golf course irrigation requirements.”
As the LUC noted in its 1996 decision on an order to show cause as to why the resort should not be found to be in violation of that condition, “Throughout the original proceedings … Petitioner [the resort] used the term ‘high level aquifer’ to be synonymous with potable water. Petitioner defined alternative sources of water as water sources outside of the high level aquifer. Petitioner’s definition also included water reclamation and effluent.Petitioner noted that alternate sources were ‘everything outside of the high level aquifer or outside of the influence of or external factors that would influence the high level aquifer.”
At the time of the hearing on the show-cause order, the resort was drawing brackish water from Wells 1 and 9 in the high-level aquifer for irrigation purposes. The outcome of the hearing was a finding that the resort’s use of that water was a violation of condition 10. The resort was ordered to cease that use and inform the commission of how it was intending to develop other sources of water.
Appeals and remands followed, culminating in the LUC issuing an order in 2017 that became the subject of the most recent Supreme Court ruling.
That 2017 order qualified Condition 10, allowing the resort to draw irrigation water from the high level aquifer so long as it did not meet Maui County drinking water standards. The LUC found that the resort had shown the water was, indeed, brackish and per se “non-potable,” and therefore using it for irrigation purposes was allowed under the original Condition 10.
Yet some brackish water is potable, if the chloride content is low enough. This fact was at the heart of the direct appeal to the Supreme Court made by the Lanaians for Sensible Growth, which also argued that the LUC had violated the public trust doctrine in its order.
Pollack discussed at length the distinction between potable and brackish water, finding that the LUC had departed from the “plain meaning” of brackish and instead used a “special interpretation of the term.”
“Thus,” the order states, “the 2017 LUC’s interpretation divorces the term ‘brackish’ from Condition 10’s overarching requirement that the water utilized by the resort be non-potable in the first instance. … Simply being brackish,
however, does not make water non-potable within the meaning of Condition 10. The key inquiry instead is whether the water at issue fulfills the common meaning of the term ‘potable,’ which this court has stated to be ‘suitable for drinking.’ … Brackish water is therefore ‘potable’ if it is suitable for drinking under county water quality standards and ‘non-potable’ if it is not.”
Chief Justice Recktenwald parted company with his colleagues over this point. In referring to county water standards, he writes, the majority “creates a standard contrary to the text of the condition, deprives the resort of fair warning of its ongoing obligations under the LUC’s order, and provides little useful guidance to the resort for future water use.”
Nothing in Condition 10 prevented the resort from using brackish water from the high level aquifer, Recktenwald wrote. In the earlier Supreme Court decision involving the Lana‘i resort’s use of Wells 1 and 9, tapping from the high-level aquifer, Recktenwald pointed out, the court had agreed with the resort that Condition 10 did not preclude their use as a source of irrigation water and instead “suggest[ed] that the use of these wells, and their brackish water supply, was permissible.”
Associate Justice Wilson agreed that the LUC had failed to define the terms “potable” and “non-potable” in Condition 10. But he did not agree with Pollack’s finding that the LUC had not abused its discretion in improperly applying the term “potable.” “In my view,” he wrote, “if the correct standard had been properly applied by the LUC in 2017, its finding in 1991 that the water from Wells 1 and 9 was not potable would not have been clearly erroneous.”
In other words, Wilson’s position is that the wrong standard of potability was used by the LUC in 1991 and that it abused its discretion in 2017 by upholding an order that was based on that standard. Because of that, he would have had the case remanded to the LUC for an evidentiary hearing to determine whether “potable” brackish water was being used by the resort, in violation of Condition 10.
Maui County Standards
The on-the-ground effect of the ruling, which affirmed the 2017 LUC order, would seem to be limited. According to the resort-owned Lana‘i Water Company, Wells 1 and 9 are currently out of service.
Should the company wish to begin pumping from them again, the water would need to have a chloride content in excess of what Maui County would allow in its potable water.
According to Jeff Pearson, director of the Maui Department of Water Supply, the county uses secondary drinking water standards set by the state Department of Health, which in turn is charged with enforcing standards of the U.S. Environmental Protection Agency. “The USEPA secondary standard for chloride is 250 mg/L,” he noted. “The DWS may occasionally blend groundwater with high chlorides with other sources for aesthetic reasons (salty taste) or technical effects (corrosion of pipes and material). However, high chlorides may be an indication of aquifer upconing, so that reduced pumpage of the well in question is the preferred action long-term.”
The Maui County Code defines potable water as “water that meets the standards established by the [state] Department of Health as suitable for cooking or drinking water purposes. A supply of water that at one time met the standards established by the Department of Health as potable water may not be used for golf course irrigation or other non-domestic uses, regardless of whether it is rendered non-potable through such activities including, but not limited to, mixing or blending with any source of non-potable water, storage in ponds or reservoirs, transmission through ditch systems, or exceeding the established pump capacity for a groundwater well.”
— Patricia Tummons