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noting that the LUC possesses a continuing constitutional obligation to ensure that measures it imposes to protect public trust resources are implemented and complied with
Summary of this case from In re Application of Gas Co.Opinion
SCOT-17-0000526
05-15-2020
LANA‘IANS FOR SENSIBLE GROWTH, Intervenor-Appellant, v. LAND USE COMMISSION, County of Maui Department of Planning, State Office of Planning, Appellees, and Lana‘i Resorts, LLC, Petitioner-Appellee.
Alan T. Murakami, (Moses K.N. Haia, III, with him on the briefs), Honolulu, for appellant Lana‘ians for Sensible Growth Bryan C. Yee, Honolulu, (Dawn Takeuchi-Apuna with him on the brief), for appellee State Office of Planning Benjamin A. Kudo, (James K. Mee and Sarah M. Simmons with him on the brief), Honolulu, for appellee Lana‘i Resorts, LLC
Alan T. Murakami, (Moses K.N. Haia, III, with him on the briefs), Honolulu, for appellant Lana‘ians for Sensible Growth
Bryan C. Yee, Honolulu, (Dawn Takeuchi-Apuna with him on the brief), for appellee State Office of Planning
Benjamin A. Kudo, (James K. Mee and Sarah M. Simmons with him on the brief), Honolulu, for appellee Lana‘i Resorts, LLC
McKENNA, POLLACK, JJ., WITH WILSON, J., JOINING IN PARTS I—III(A)-(D) AND DISSENTING IN PARTS III(E) AND IV, AND WITH RECKTENWALD, C.J., CONCURRING IN THE JUDGMENT AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY POLLACK, J., EXCEPT AS TO PARTS III(E) AND IV
In 2017, the Land Use Commission of the State of Hawai‘i determined that, when it prohibited a resort from irrigating its golf course with "potable" water as a condition of its administrative order issued almost thirty years earlier, it did not mean "potable" by any common definition of the term. Instead, the Land Use Commission found that the term was intended to carry a special meaning that the Commission does not define—other than to say it excludes brackish water that contains chlorides over an unspecified level. Based upon this special interpretation of "potable," the Land Use Commission determined that the resort had not violated the administrative order. But neither the text of its administrative order nor the circumstances in which it was adopted offer any reason to depart from the plain meaning of the condition, which was intended to prohibit the resort from watering its golf course with water that is suitable for drinking under county water quality standards. This plain meaning is consistent with the common meaning of "potable" that this court recognized in its previous ruling in this case and serves to fulfill the constitutional duties with which the Land Use Commission is presumed to have complied.
We thus conclude that the Land Use Commission erred in its 2017 Order by interpreting a condition in its administrative order to mean that brackish water is per se "non-potable." Accordingly, we also consider whether the Commission erred in determining that the resort did not violate this condition under its plain meaning, which prohibits the utilization for golf course irrigation water suitable for drinking under the county's water quality standards.
I. BACKGROUND
A. The Initial Proceedings and the 1991 LUC Order
This case began in November 1989, when Lana‘i Resorts (the Resort) filed a Petition for Land Use District Boundary Amendment (Petition) with the Land Use Commission of the State of Hawai‘i (LUC). The Petition sought "to effect district reclassification" of a large tract of rural and agricultural land so that the Resort could build an eighteen-hole golf course in Manele on the island of Lana‘i. The LUC permitted Lana‘ians for Sensible Growth (LSG) to intervene in the matter. In April 1991, after six days of hearings, the LUC issued an order approving the Resort's Petition subject to several conditions (1991 LUC Order). Among these conditions was Condition 10, which gave rise to the litigation now before this court. Condition 10 states that the Resort is not allowed to use potable water to irrigate the golf course:
Several entities have owned the Resort since the original boundary amendment proceedings in 1989. For clarity, these entities are collectively referred to as "the Resort."
LSG is "an unincorporated association of Lanai residents" who "used the subject property for hiking, subsistence and recreational fishing, and for the enjoyment and appreciation of the ancient Hawaiian archaeological sites located there."
10. [The Resort] shall not utilize the potable water from the high-level groundwater aquifer for 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.
In addition, [the Resort] shall comply with the requirements imposed upon [it] by the State Commission on Water Resource Management as outlined in the State Commission on Water Resource Management's Resubmittal—Petition for Designating the Island of Lanai as a Water Management Area, dated March 29, 1990.
(Emphasis added.) The "Resubmittal" referred to in the second paragraph of Condition 10 refers to the State Commission on Water Resource Management's (CWRM) March 1990 recommendation against designating the island of Lana‘i as a water management area.
In May 1989, the CWRM received a "petition to designate the Island of Lanai as a Water Management Area for the purpose of regulating the use of ground-water resources" because the "resort development on Lanai in the future would cause water demand to exceed the available water supply."
B. The 1996 LUC Order
In October 1993, the LUC issued an Order to Show Cause (OSC) to the Resort, directing it to show why certain portions of its golf course should not revert to their former land use classification or otherwise be changed to a more appropriate classification. The OSC stated that the LUC had reason to believe the Resort had failed to comply with Condition 10's requirement that it develop and utilize alternative sources of non-potable water for golf course irrigation.
Following twelve days of hearings regarding the OSC, the LUC issued its Findings of Fact, Conclusions of Law, and Decision and Order (1996 LUC Order). The LUC found that the Resort was irrigating the golf course primarily with nonpotable, brackish water from two wells located within the high level aquifer: Well 1 and Well 9. The LUC concluded that this use did not comply with Condition 10 and accordingly ordered the Resort to "immediately cease and desist any use of water from the high level aquifer for golf course irrigation requirements."
Section 20.24.020 of the Maui County Code, the LUC noted, "define[d] potable water as water containing less than 250 milligram per liter of chlorides." Nonetheless, the LUC found that "[t]he potability of any water source does not depend on any particular level of chloride concentration."
The Resort appealed the LUC's decision to the Circuit Court of the Second Circuit, which reversed the 1996 LUC Order. See Lanai Co. v. Land Use Comm'n, 105 Hawai‘i 296, 306, 97 P.3d 372, 382 (2004). We affirmed on review, holding that "the LUC erred in interpreting Condition No. 10 as precluding the use of ‘any’ or all water from the high level aquifer." Id. at 319, 97 P.3d at 395. This court explained that Condition 10 bars the use of only potable water from the high-level aquifer, and it allows the Resort to use non-potable water for golf course irrigation. Id. at 310, 97 P.3d at 386. We stated that "potable" is ordinarily defined as "suitable for drinking" but noted that the parties disagreed as to the meaning the 1991 LUC intended when it used the term in Condition 10. Id. at 299 n.8, 97 P.3d at 375 n.8 (2004) (quoting Webster's Seventh New Collegiate Dictionary 664 (1965)). The evidence did not conclusively establish that the aquifer contained only potable water, we held, and, indeed, the LUC's findings of fact "suggest[ed] that the use of [Wells 1 and 9], and their brackish water supply, was permissible." Id. at 313, 97 P.3d at 389. Because the 1996 LUC Order was ambiguous, we remanded the case to the LUC "for clarification of its findings ... as to whether [the Resort] used potable water from the high level aquifer, in violation of Condition No. 10." Id. at 319, 97 P.3d at 395.
C. The 2010 LUC Order
On remand in 2010, the LUC vacated its 1996 Order and granted the Resort's Motion for Modification of Condition 10 (2010 LUC Order). The newly-modified Condition 10 provided, in relevant part, the following:
a. [The Resort] shall not use ground water to irrigate the Manele Golf Course, driving range and other associated landscaping if the chloride concentration measured at the well head is 250 milligrams per liter (250 mg/l) or less.
b. In the event the chloride concentration measurement of ground water to irrigate the Manele Golf Course, driving range and associated landscaping falls below 250 mg/l, [the Resort] shall cease use of the affected well(s) producing such ground water for irrigation purposes until such time as the chloride concentration measurement of the water drawn from such wells rises above 250 mg/l.
The case was again appealed, and on review the Intermediate Court of Appeals (ICA) held that the 2010 LUC Order was invalid because LSG was not given a "full and fair opportunity to have its evidence heard and considered post-remand." Lanaians for Sensible Growth v. Lanai Resorts, LLC, Nos. CAAP-13-0000314, CAAP-12-0001065, 2016 WL 1123383 (App. Mar. 21, 2016) (mem.).
D. The 2017 LUC Order
The LUC held further hearings following the second remand and on June 1, 2017, issued the Findings of Fact, Conclusions of Law and Decision and Order that are the subject of this appeal (2017 LUC Order). In determining whether the Resort had violated Condition 10 when it used brackish water from Wells 1 and 9 for golf course irrigation, the LUC explained that the "common sense definition" of potable is "drinkable," and that the word "brackish" means "somewhat salty" and "distasteful." (Quoting Lanai Co., 105 Hawai‘i at 299 n.10, 97 P.3d at 375 n.10.) Based on testimony from the hearings, the LUC determined that "[w]ater with chloride concentrations above 250 ppm or mg/L is considered ‘brackish,’ " but water above this threshold "may also be considered ‘potable.’ "
The LUC noted that the Hawai‘i Department of Health defines "potable water" as "water free from impurities in amounts sufficient to cause disease or harmful physiological effects." The terms potable and non-potable "do not exist in State or federal primary drinking water regulations," the LUC stated.
One milligram (mg) per liter (l) is equal to one part per million (ppm), and the LUC appears to have used the terms interchangeably.
The LUC noted that the United States Environmental Protection Agency's (EPA) "secondary standards" define "brackish water" as "water having chlorides of 250 mg/L or above." When chloride levels exceed 250 mg/L, the LUC stated, customers begin to complain of "taste issues" and problems arise "with the water system itself such as corrosion and deposits in the pipelines." The LUC also explained that "in practice, county water departments generally limit chloride levels of water within their municipal system to less than 160mg/L, or at most, under the EPA's secondary standard of 250 mg/L."
The LUC found, however, that chlorides are considered to be a "secondary contaminant" because they affect only the "aesthetic qualities" of drinking water. In other words, chloride levels are not regulated by standards designed to protect public health. The Hawai‘i Department of Health (DOH) would allow public water systems to provide drinking water with chloride levels in excess of 250 mg/L, the LUC found, and some public water systems have done so in the past. It is also "typical," the LUC stated, "for county water supplies to use water pumped at or above 250 ppm in their domestic water systems, blended into other water." There are currently potable wells on O‘ahu that produce water with over 250 mg/L chlorides, the LUC found, and Maui wells have likely also done so in the past. Thus, the LUC reasoned that "it is possible for water with chloride concentrations of greater than 250 ppm to be used as potable water ... either directly or blended with other potable sources ... so long as other drinking water standards are met."
The LUC also concluded that "the record contains inconclusive evidence as to the degree to which the pumping of water from Wells 1 and 9 in the Palawai Basin may cause the leakage of water from other areas of the high level aquifer that are currently used for potable drinking water."
Turning to the wells used to irrigate the golf course, the LUC explained that "[f]rom 1948 to present, the documented chloride levels of water from Well 1 have always been greater than 250 mg/L." The LUC found that Well 9 was "connected to the brackish water system" in 1992, and "[f]rom 1993 to present, the documented chloride levels of the water from [the well] have always been greater than 250 mg/L." "No party," the LUC found, "presented any evidence that the chloride levels of either Well 1 or 9 has ever dropped below 250 mg/L." Wells 1 and 9 "draw the only known high-level ground water in the state that is brackish, as opposed to fresh," the LUC stated. And, although Wells 1 and 9 had been tested for potability and found to be free of primary contaminants, the LUC determined that they would "not be accepted by the County[ of Maui] as potable wells" due to their chloride levels.
The LUC found that "it was reasonable to conclude that the water from Wells 1 and 9 may be considered ‘potable’ " under the term's "common sense meaning." The LUC reasoned, however, that when it was used in Condition 10, "potable" had "a special interpretation other than its common or general meaning," as evidenced by the inclusion of "the category of ‘brackish’ water as a specific example ... [of] an ‘alternate source’ of water." Due to the "unique existence of brackish high-level water" in Wells 1 and 9, those involved in the original hearing may have incorrectly assumed that the high level aquifer contained only freshwater, the LUC explained. Thus, "in the specific context of this Docket and Condition 10, ‘brackish’ water was considered not to be potable," the LUC found, "but rather a source of water ‘alternate’ to the ‘potable’ water supplies" found in the high level aquifer.
The LUC therefore concluded that the specific language of Condition 10 indicated that the term "potable" was not used in accordance with its common sense meaning, and the condition "specifically excluded from ‘potability’ brackish water of a kind that is used elsewhere in these islands for drinking." The LUC stated that the Resort presented "substantial credible evidence" that the water used to irrigate the golf course "was and is brackish under the specific meaning of the language in Condition 10 in the 1991 [LUC] Order, and therefore an allowable alternate source of water."
The LUC also addressed the public trust doctrine explaining that "[u]nder the public trust, the state has both the authority and duty to preserve the rights of present and future generations in the waters of the state." (Quoting In re Water Use Permit Applications (Waiahole I), 94 Hawai‘i 97, 141, 9 P.3d 409, 443 (2000).) Additionally, the LUC noted that it was required to "consider whether [the Resort's] use negatively affects past, current or future uses of potable water from the high-level aquifer." Although the evidence regarding "the potential long-term effect of withdrawals from Wells 1 and 9 on drinking water wells" on Lana‘i was "ambiguous," the LUC found, "no party [ ] raised a reasonable allegation of harm against that or any other public trust use of water." Therefore, the LUC concluded that the Resort "made an affirmative showing that its use of Wells 1 and 9 to irrigate Manele Golf Course does not conflict and is consistent with public trust principles and purposes." The 1996 LUC Order was vacated by the 2017 LUC because of its determination that the Resort "proved its compliance with Condition No. 10 by a preponderance of the evidence."
LSG filed a direct appeal from the 2017 LUC Order to this court.
II. STANDARDS OF REVIEW
Pursuant to Hawai‘i Revised Statutes (HRS) § 205-19 (Supp. 2016), this court reviews LUC decisions under the standards set forth in the judicial review provision of the Hawai‘i Administrative Procedures Act, HRS § 91-14(g). HRS § 91-14(g) (Supp. 2016) provides as follows:
Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
This court has further clarified that
[c]onclusions of law are reviewed de novo, pursuant to subsections (1), (2) and (4); questions regarding procedural defects are reviewable under subsection (3); findings of fact (FOF) are reviewable under the clearly erroneous standard, pursuant to subsection (5), and an agency's exercise of discretion is reviewed under the arbitrary and capricious standard, pursuant to subsection (6).
Kauai Springs, Inc. v. Planning Comm'n of Kaua‘i, 133 Hawai‘i 141, 164, 324 P.3d 951, 974 (2014).
III. DISCUSSION
The 2017 LUC determined that brackish water is per se "non-potable" within the meaning of Condition 10, notwithstanding that this meaning is contrary to the "common sense" definition of the term. However, given the text of Condition 10, the presumption that the 1991 LUC complied with its constitutional public trust duties, and the circumstances in which the condition was adopted, it is apparent that the 1991 LUC intended to use the term "potable" in accordance with its common sense meaning rather than a special interpretation under which water with chloride levels higher than an unspecified number is inherently non-potable. This is to say that Condition 10 prohibits the Resort from irrigating its golf course with water suitable for drinking under the county's water quality standards.
A. The 2017 LUC's Interpretation of Condition 10 Is Contrary to Its Plain Meaning, Which Prohibits Golf Course Irrigation with Water that Is Suitable for Drinking under County Water Quality Standards.
The 2017 LUC concluded that the plain language of Condition 10 indicates that, counter to the common sense meaning of its terms, brackish water is necessarily "non-potable" within the meaning of the condition. In interpreting the text of Condition 10, the general principles of statutory construction apply. See Boswell v. Brazos Elec. Power Co-op., Inc., 910 S.W.2d 593, 599 (Tex. App. 1995) ("Rules of statutory construction apply equally to the construction of an administrative order." (citing Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 439 (1946) )); State v. Guyton, 135 Hawai‘i 372, 378, 351 P.3d 1138, 1144 (2015) (applying canons of statutory construction to a court order) ; Int'l Bhd. of Elec. Workers, Local 1357 v. Hawaiian Tel. Co., 68 Haw. 316, 323, 713 P.2d 943, 950 (1986) (applying canons of statutory construction to an administrative rule). If the language of the order is unambiguous and applying it in its literal sense would not produce a result that is absurd, unjust, or at odds with governing law, we are bound to enforce the plain meaning of the administrative order. See Guyton, 135 Hawai‘i at 378, 351 P.3d at 1144. We are only free to depart from this plain meaning if there is some indication that a term was intended to be "given a special interpretation other than its common and general meaning." Singleton v. Liquor Comm'n, 111 Hawai‘i 234, 244, 140 P.3d 1014, 1024 (2006).
The 2017 LUC found such an indication in the language of Condition 10, which includes brackish water as a possible example of non-potable water. The 2017 LUC expressly acknowledged that the water from Wells 1 and 9 could be considered "potable" under the common sense meaning of the word. It however reasoned that, by stating that the Resort was required to "develop and utilize only alternative non-potable sources of water (e.g., brackish water, reclaimed sewage effluent)," Condition 10 clearly indicated that brackish water was considered "non-potable" for purposes of the condition, and the term must therefore carry a "special interpretation" other than its common sense meaning. (Emphasis added.)
But "e.g.", an abbreviation for the Latin phrase exempli gratia, simply means "for example." Black's Law Dictionary 717 (11th ed. 2019). The inclusion of brackish water following the abbreviation indicates only that brackish water is an example of water that could be "non-potable" if the water qualifies as such under the word's ordinary meaning. In contrast, the term "i.e.", an abbreviation for the Latin phrase id est, means "that is." Black's Law Dictionary 895 (11th ed. 2019). Thus, when a term is meant to be interchangeable with or definitional of an affected term, rather than just a possible example, "i.e." is used. See DePierre v. United States, 564 U.S. 70, 80, 131 S.Ct. 2225, 180 L.Ed.2d 114 (2011) (using "i.e." to demonstrate that cocaine hydrochloride and powder cocaine are the same substance); Droplets, Inc. v. eBay, Inc., No. 2:11-CV-401-JRG-RSP, 2014 WL 4217376, at *7 (E.D. Tex. Aug. 22, 2014) (finding that "i.e." is a definitional expression while "e.g." is merely an explanatory expression); Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1373 (Fed. Cir. 2014) (noting that "i.e." serves as a definitional phrase that provides clarity compared to "e.g." which serves to provide an example); Hoseman v. Weinschneider (In re Weinschneider), 42 Collier Bankr.Cas.2d 1860, 1999 WL 676519, at *3 n.3 (Bankr. N.D. Ill. Aug. 30, 1999) (using "i.e." to demonstrate that a name is interchangeable with an acronym). The 2017 LUC altered the established meaning of "e.g." by finding that brackish water is per se non-potable because the term "e.g." was used. This nullifies the distinction between "i.e." and "e.g." as it converts "e.g." into a definitional phrase, rendering brackish water as an interchangeable term for non-potable.
Thus, 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. ("[The Resort] shall not utilize the potable water from the high-level groundwater aquifer for golf course irrigation use[.]") Simply being brackish, however, does not make water non-potable within the meaning of Condition 10. The key inquiry is instead whether the water at issue fulfills the common meaning of the term "potable," which this court has stated to be "suitable for drinking." Lanai Co. v. Land Use Comm'n, 105 Hawai‘i 296, 299 n.8, 97 P.3d 372, 375 n.8 (2004) (quoting Webster's Seventh New Collegiate Dictionary 664 (1965)). Brackish water is therefore "potable" if it is suitable for drinking under county water quality standards and "non-potable" if it is not.
Tellingly, neither the 2017 LUC nor the Chief Justice's opinion concurring in the judgment and dissenting (minority), which accepts the specialized meaning adopted by the 2017 LUC, has offered an alternative definition of "nonpotable." Because they eschew the common definition of the terms of Condition 10 in favor of a "special interpretation," their analysis is untethered to any specific test that can be applied in the future. It is thus wholly unclear what water would qualify as non-potable other than the brackish water and reclaimed sewage effluent that are expressly mentioned in Condition 10.
In support of its revamping of the definition of "potable," the minority points to the second paragraph of Condition 10 that requires the Resort to comply with the requirements imposed by the CWRM Resubmittal, which appears to include an authorization for the CWRM chairperson to reinstitute a water-management-area designation proceeding if certain indications of an impending water shortage exist. Minority Op. at 146 Hawai‘i at 518-19, 463 P.3d at 1175-76; see infra note 9. But this authorization cannot change the meanings of the terms used in Condition 10, which are fixed based on the LUC's intention at the time the condition was imposed.
Conversely, applying the plain language of Condition 10 in accordance with its common meaning does not produce an absurd or unjust result. Instead, it effectuates the purpose of Condition 10: to protect Lana‘i's drinking water supply for use by the general public. The provision does not expressly identify all brackish water as a permissible source of water for golf course irrigation, nor does it present any other reason to deviate from the plain meaning of its terms. This court is therefore not at liberty to do so, and we thus reject the 2017 LUC's "special interpretation."
B. The LUC Is Presumed To Have Complied with Its Constitutional Public Trust Duties, Including the Preservation of Water for Domestic Use.
The plain reading of Condition 10 is reinforced by the presumption that the LUC complied with its public trust obligations. Waiahole I, 94 Hawai‘i at 135, 9 P.3d at 447 ("The public trust is a dual concept of sovereign right and responsibility."). Under our precedent, "agency decisions affecting public trust resources carry a presumption of validity." Id. at 143, 9 P.3d at 455. Thus, logically, if an administrative order is reasonably susceptible to an interpretation that would not meet the agency's public trust obligations and one that would properly fulfill those duties, we are obligated to adopt the latter. Cf. Morita v. Gorak, 145 Hawai‘i 385, 391, 453 P.3d 205, 211 (2019) ; In re Doe, 96 Hawai‘i 73, 81, 26 P.3d 562, 570 (2001) ("[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is [to] adopt the latter." (quoting Jones v. United States, 529 U.S. 848, 857, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) )). In other words, the 1991 LUC is presumed to have reviewed and granted the Resort's Petition in a manner that was consistent with its constitutional public trust duties, and this court must interpret Condition 10 in light of this commitment.
As the 2017 LUC recognized, these duties include an obligation to protect and preserve water for domestic use by the public with a particular focus on "protecting an adequate supply of drinking water." Kauai Springs, Inc. v. Planning Comm‘n of Kaua‘i, 133 Hawai‘i 141, 172, 324 P.3d 951, 982 (2014) (citing Waiahole I, 94 Hawai‘i at 136–37, 9 P.3d at 449–50 ). Further, the LUC possesses a continuing constitutional obligation to ensure that the measures it imposes to protect public trust resources are implemented and complied with. See Kelly v. 1250 Oceanside Partners, 111 Hawai‘i 205, 231, 140 P.3d 985, 1011 (2006) (holding that an agency has a continuing public trust duty "not only [to] issue permits after prescribed measures appear to be in compliance with state regulation, but also to ensure that the prescribed measures are actually being implemented").
From this perspective, it is apparent that Condition 10 serves to protect and preserve the waters of Lana‘i for domestic use by prohibiting the Resort from irrigating its golf course with water that would otherwise be used as drinking water. Thus, whether the water in Wells 1 and 9 is "potable" for purposes of Condition 10 would not turn on whether the chloride concentration exceeds a given level—for which there is no evidence that the 1991 LUC contemplated when it first imposed the condition.
Indeed, the 1991 LUC would have violated its public trust duties if it had intended "potable" water to convey the special, non-common sense interpretation adopted by the 2017 LUC and endorsed by the minority. Permitting the Resort an indefinite license to irrigate its golf course using any water with chloride levels in excess of a given level would not adequately preserve and protect Lana‘i's drinking water supply in the long term because, as technology develops and climate change likely fundamentally alters the availability of fresh water, "brackish" water may become needed for domestic use. It would assuredly be counter to the State's public trust obligations to permit a private commercial resort to irrigate its golf course with water that the public needs for daily living, and the 2017 LUC's special interpretation does little to prevent this outcome. See Waiahole I, 94 Hawai‘i at 138, 9 P.3d at 450 ("[A]lthough its purpose has evolved over time, the public trust has never been understood to safeguard rights of exclusive use for private commercial gain.").
The minority would have this court instead rely on the CWRM's review of the monthly monitoring reports that Condition 10 requires the Resort to submit to hold that the LUC's public trust obligations have been satisfied. Minority Op. at 146 Hawa‘:i at 518-19, 463 P.3d at 1175-76. While these reports are relevant to the State's continuing public trust duty to monitor the Resort's compliance with Condition 10, the submission of monthly water reports prepared by the Resort would not by itself assure the required level of protection and preservation of Lana‘i's water resources. Ching v. Case, 145 Hawai‘i 148, 170, 449 P.3d 1146, 1168 (2019) ("The most basic aspect of the State's trust duties is the obligation ‘to protect and maintain the trust property and regulate its use’ " which includes a duty "to reasonably monitor the trust property," to ensure that "a trustee fulfills the mandate of ‘elementary trust law’ that trust property not be permitted to ‘fall into ruin on the [the trustee's] watch’ " (alteration in original)).
Condition 10 states that the Resort shall comply with the conditions set forth in the CWRM Resubmittal, which recommended the following actions to protect Lana‘i's water supply:
1. Require [the Resort] to immediately commence monthly reporting of water use to the [CWRM], under the authority of Chapter 174C-83, HRS, which would include pumpage, water level, temperature, and chloride measurements from all wells and shafts;
2. In addition to monthly water use reporting and pursuant to Secs. 174C-43 & 44, HRS, require [the Resort] to monitor the hydrologic situation so that if and when ground-water withdrawals reach the 80-percent-of-sustainable-yield rate, the [Resort] can expeditiously institute public informational meetings in collaboration with the [CWRM] to discuss mitigative measures;
3. Require [the Resort] to formulate a water shortage plan that would outline actions to be taken by the [Resort] in the event a water shortage situation occurs. This plan shall be approved by the [CWRM] and shall be used in regulating water use on Lanai if the [CWRM] should exercise its declaratory powers of a water emergency pursuant to Section 174C-62(g) of the State Water Code. A draft of this plan should be available for public and [CWRM] review no later than the beginning of October 1990 and shall be approved by the [CWRM] no later than January 1991;
4. That the [CWRM] hold annual public informational meetings on Lanai during the month of October to furnish and receive information regarding the island's water conditions. The public shall be duly notified of such meetings;
5. Authorize the Chairperson to re-institute water-management-area designation proceedings and, hence, reevaluations of ground-water conditions on the island if and when:
a. The state water-level of any production well falls below one-half its original elevation above mean sea level, or
b. Any non-potable alternative source of supply contained in the [Resort's] water development plan fails to materialize and full land development continues as scheduled.
c. Items 1, 2, and 3 are not fulfilled by [the Resort].
d. If source water uses exceeds 4.3 [million gallons per day].
The CWRM's powers are intended to be used to respond to and mitigate a water shortage once it has begun. See HRS § 174C-62. By contrast, Condition 10's prohibition on the use of potable water serves to help prevent such a shortage from arising in the first place. If the "potable" distinction in Condition 10 is properly interpreted to vary based on whether the water is of a quality that the county water agency would, at that time, deem suitable for domestic use, the provision fulfills the LUC's public trust duty to ensure that the public's use of the limited natural resource is always prioritized over the irrigation of a private commercial golf course, regardless of whether Lana‘i's water supply is actively threatened. See Kauai Springs, Inc., 133 Hawai‘i at 174, 324 P.3d at 984 (noting that the public trust doctrine obligates an agency to consider "whether the proposed use is consistent with," inter alia, "the protection of domestic water use" and to subject commercial uses to "a high level of scrutiny"). The position asserted by the minority clearly would not protect and preserve the public trust as it concludes that all brackish water is non-potable, thus allowing perpetual commercial use of a public water resource to irrigate the Resort's golf course unless the CWRM determines that there exists a water shortage on Lana‘i of sufficient severity to require mitigation measures. The 2017 LUC's interpretation therefore renders Condition 10 ineffectual in preserving Lana‘i's public water resource for future generations in derogation of the public trust. Waiahole I, 94 Hawai‘i at 139, 9 P.3d at 451 ("The second clause of article XI, section 1 [of the Hawai‘i Constitution] provides that the state ‘shall promote the development and utilization of [water] resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.’ " (second alteration in original)).
HRS § 174C-62 (2011) provides as follows:
(a) The commission shall formulate a plan for implementation during periods of water shortage. As a part of the plan, the commission shall adopt a reasonable system of permit classification according to source of water supply, method of extraction or diversion, use of water, or a combination thereof.
(b) The commission, by rule, may declare that a water shortage exists within all or part of an area when insufficient water is available to meet the requirements of the permit system or when conditions are such as to require a temporary reduction in total water use within the area to protect water resources from serious harm. The commission shall publish a set of criteria for determining when a water shortage exists.
(c) In accordance with the plan adopted under subsection (a), the commission may impose such restrictions on one or more classes of permits as may be necessary to protect the water resources of the area from serious harm and to restore them to their previous condition.
....
(g) If an emergency condition arises due to a water shortage within any area, whether within or outside of a water management area, and if the commission finds that the restrictions imposed under subsection (c) are not sufficient to protect the public health, safety, or welfare, or the health of animals, fish, or aquatic life, or a public water supply, or recreational, municipal, agricultural, or other reasonable uses, the commission may issue orders reciting the existence of such an emergency and requiring that such actions as the commission deems necessary to meet the emergency be taken, including but not limited to apportioning, rotating, limiting, or prohibiting the use of the water resources of the area. Any party to whom an emergency order is directed may challenge such an order but shall immediately comply with the order, pending disposition of the party's challenge. The commission shall give precedence to a hearing on such challenge over all other pending matters.
County water quality standards necessarily take into consideration the DOH and the EPA's safety regulations. See Hawai‘i Administrative Rules §§ 11-20-2, 11-20-4 to 11-20-7, 11-21-2; 40 C.F.R. §§ 141.2, 141.61 -.66 (2020). However, more than just safety considerations inform a county water agency's evaluation of the suitability of water for domestic use. A host of secondary considerations such as taste, appearance, odor, the cost and feasibility of purification or other processing, and the availability of alternative sources may affect whether a county water agency views a water source as suited for domestic use. See EPA, Secondary Drinking Water Standards: Guidance for Nuisance Chemicals (2017) (listing various chemicals that do not threaten water safety but may negatively affect the desirability of water for drinking), https://www.epa.gov/dwstandardsregulations/secondary-drinking-water-standards-guidance-nuisance-chemicals [https://perma.cc/NT4B-6MAE].
The minority claims to agree that the Resort is not allowed perpetual use of the water in Wells 1 and 9. Minority Op. at 146 Hawai‘i at 515, 463 P.3d at 1172. Yet its reading of Condition 10 specifically provides for this outcome. As the minority itself states, "if Wells 1 and 9 were made part of Lana‘i's potable water system—in other words, if they no longer were ‘brackish’," then the Resort "[o]f course" could not use the water. Minority Op. at 146 Hawai‘i at 515, 463 P.3d at 1172. This reading of Condition 10 means that water would have to be no longer brackish for it to be made part of Lana‘i's potable water system, ignoring the scientific reality that brackish water can be potable. Consequently, the minority allows the perpetual use of potable water.
Further, the interpretation advocated by the minority would rely on the Resort to self-report the composition of the water in Wells 1 and 9. As we have held, "an agency of the State must perform its statutory function in a manner that fulfills the State's affirmative constitutional obligations." Mauna Kea Anaina Hou v. BLNR, 136 Hawai‘i 376, 414, 363 P.3d 224, 262 (2015) (opinion of the court as to Part IV by Pollack, J.). The State's affirmative duty to protect and preserve constitutional rights is by its very nature not delegable to a private entity. See Ka Pa‘akai O Ka‘Aina v. Land Use Comm'n, 94 Hawai‘i 31, 50–51, 7 P.3d 1068, 1087–88 (2000). And, manifestly, it is not reasonable for a trustee to delegate the supervision of a third party's compliance with an agreement that is designed to protect trust property to the third party itself. Ching, 145 Hawai‘i at 181, 449 P.3d at 1179 ("It is self-evident that, as a general matter, it is not reasonable for a trustee to delegate the supervision of a lessee's compliance with the terms of a lease of trust property to the lessee."); see also In re Estate of Dwight, 67 Haw. 139, 146, 681 P.2d 563, 568 (1984) ("A trustee is under a duty to use the care and skill of a [person] of ordinary prudence to preserve the trust property." (citing Bishop v. Pittman, 33 Haw. 647, 654 (Haw. Terr. 1935) )); cf. Halderman v. Pennhurst State Sch. & Hosp., 526 F.Supp. 428, 433 (E.D. Pa. 1981) ("The Commonwealth defendants appear to take the position that they should be able to monitor their own compliance with the Court's Orders. This would be somewhat akin to requesting the fox to guard the henhouse.").
The Hawai‘i Constitution requires the State to engage in evaluative monitoring of the wells with regard to the county's standards for domestic water usage to protect against the conflict of interest inherent in self-reporting. Ching, 145 Hawai‘i at 178, 449 P.3d at 1176 (holding that the State has a "constitutional trust obligation" to reasonably monitor the lessee to ensure that the lessee actually complies with the conditions of the lease); Kelly, 111 Hawai‘i at 231, 140 P.3d at 1011 (concluding that the State had a continuing public trust duty to reasonably monitor the developer to ensure that the permit conditions are being followed). By engaging in reasonable monitoring, the State can thus determine on an ongoing basis whether the Resort has violated Condition 10 by irrigating its golf course with water that the county water agency would at that time deem suitable for domestic use. The 1991 LUC would have fulfilled its public trust duties by crafting such a standard that can evolve with time and contemporary conditions, including the changing environment and developing technologies. Waiahole I, 94 Hawai‘i at 137, 9 P.3d at 449 ("[W]e recognize domestic water use as a purpose of the state water resources trust."). This court therefore presumes that the common sense meaning of potable water is indeed what the LUC intended in Condition 10.
As noted, the appeal in this case was taken following our remand to the LUC to determine whether the Resort "was using potable water from the high level aquifer" in violation of Condition 10. Lanai Co., 105 Hawai‘i at 306, 316, 97 P.3d at 382, 392. Accordingly, this opinion reviews the 2017 LUC's decision on remand and does not consider whether the Resort's prospective use of the water in Wells 1 and 9 complies with the LUC's constitutional public trust obligations to "preserve the rights of present and future generations in the waters of the state," which "precludes any grant or assertion of vested rights to use water to the detriment of public trust purposes[ ]" and "empowers the state to reexamine any prior use." Kauai Springs, Inc., 133 Hawai‘i at 172, 324 P.3d at 982 (citing Waiahole I, 94 Hawai‘i at 141, 9 P.3d at 453 ).
The minority also contends that there is nothing in Condition 10 that expressly provides the Resort with "fair notice" that its authorization to use water from Wells 1 and 9 was subject to changing circumstances. Minority Op. at 146 Hawai‘i at 512-13, 463 P.3d at 1169-70. This contention assumes that the Resort was given permanent authorization to use all brackish water in Wells 1 and 9 because all such water is non-potable. It is far more logical to conclude that the Resort would have been on notice that its usage of Wells 1 and 9 for golf course irrigation would no longer be permitted when the water was potable, i.e., suitable for drinking under county water quality standards. As this court has emphasized, "The public trust, by its very nature, does not remain fixed for all time, but must conform to changing needs and circumstances." Waiahole I, 94 Hawai‘i at 135, 9 P.3d at 447.
In concluding that Condition 10 of the Permit was intended to prohibit the Resort from watering its golf course with a public water resource suitable for drinking under county water quality standards, this court is following a long line of public trust doctrine rulings in which this court recognized rights and obligations protected under the Hawai‘i Constitution. See King v. Oahu Ry. & Land Co., 11 Haw. 717, 725 (Haw. Terr. 1899) (holding that navigable waters are owned by the State in public trust); State by Kobayashi v. Zimring, 58 Haw. 106, 121, 566 P.2d 725, 735 (1977) (concluding that lava extensions are public land held in trust for the people of Hawai‘i); Cty. of Hawaii v. Sotomura, 55 Haw. 176, 183-84, 517 P.2d 57, 63 (1973) (holding that land below the high water mark is a natural resource owned by the State); In re Sanborn, 57 Haw. 585, 593-94, 562 P.2d 771, 776 (1977) (stating that any purported land court registration of land below the high water mark is ineffective because such land is held in public trust); McBryde Sugar Co. v. Robinson, 54 Haw. 174, 186-87, 504 P.2d 1330, 1339 (1973) (holding that the right to water was specifically and definitely reserved for the people of Hawai‘i); Waiahole I, 94 Hawai‘i at 132, 9 P.3d at 444 ("The state also bears an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible." (quotations and footnote omitted) (quoting Nat'l Audubon Soc'y v. Superior Ct., 33 Cal.3d 419, 189 Cal.Rptr. 346, 658 P.2d 709, 728 (1983) )). Such rulings were made without consideration of whether the landowners or impacted parties had notice of the existence of those rights prior to the court's disposition. See, e.g., Sotomura, 55 Haw. at 180, 517 P.2d at 61 ("We hold that registered ocean front property is subject to the same burdens and incidents as unregistered land[.]" (citing HRS § 501-81 )); Oahu Ry. & Land Co., 11 Haw. at 736 (observing that "it is doubtful if the State as a trustee for the public could consent to" private condemnation of the waters of Honolulu harbor); see generally Native Hawaiian Law: A Treatise, 76-148, 426-458 (Melody Kapilialoha MacKenzie ed. 2015) (discussing the historical and current development of public trust doctrine and water law in Hawai‘i).
In none of these cases did we suppose that the constitutional mandates of the public trust doctrine were inoperable or unrecognizable because the parties did not have express notice of the existence of the rights protected under the doctrine. Instead, our cases indicate that State action with regard to trust resources is inherently limited by and subject to the State's public trust duties. See Waiahole I, 94 Hawai‘i at 131, 9 P.3d at 443 ("This court has held that the [public trust] doctrine would invalidate such measures, sanctioned by statute but violative of the public trust, as: the use of delegated eminent domain powers by a private party to condemn a public harbor; the land court's registration of tidelands below the high water mark; and a sale of lava extensions that did not promote a ‘valid public purpose.’ " (citations omitted)); see also Oahu Ry. & Land Co., 11 Haw. at 725 (public harbor); In re Sanborn, 57 Haw. at 593-94, 562 P.2d at 776 (land court registration below high water mark); Zimring, 58 Haw. at 121, 566 P.2d at 735 (lava extensions). As this court has unequivocally stated, "if the public trust is to retain any meaning and effect, it must recognize enduring public rights in trust resources separate from, and superior to, the prevailing private interests in the resources at any given time." Waiahole I, 94 Hawai‘i at 138, 9 P.3d at 450. The LUC's duty to protect and preserve Lana‘i's drinking water in trust for future generations therefore inherently limits the Resort from utilizing water in Wells 1 and 9 that is suitable for drinking under county water quality standards. See id. at 131, 9 P.3d at 443 ; Kauai Springs, Inc., 133 Hawai‘i at 172, 324 P.3d at 982 ("[T]he public trust protects domestic water use, in particular, protecting an adequate supply of drinking water.").
"[T]his court has repeatedly reaffirmed that the State's public trust obligations pursuant to article XI, section 1 of the Hawai‘i Constitution extend ‘to all water resources.’ " Umberger v. Dep't of Land & Nat. Res., 140 Hawai‘i 500, 521, 403 P.3d 277, 298 (2017) (quoting Waiahole I, 94 Hawai‘i at 133, 9 P.3d at 455 ); accord Kauai Springs, Inc., 133 Hawai‘i at 172, 324 P.3d at 982 ("[T]he public trust doctrine applies to all water resources without exception or distinction." (alteration in original)). The State thus has a constitutional obligation to protect water for all future generations. Kauai Springs, Inc., 133 Hawai‘i at 172, 324 P.3d at 982 ("The public trust is, therefore, the duty and authority to maintain the purity and flow of our waters for future generations ...." (citing Waiahole I, 94 Hawai‘i at 138, 9 P.3d at 450 )). Accordingly, "[a]n agency is not at liberty to abdicate its duty to uphold and enforce rights guaranteed by the Hawai‘i Constitution when such rights are implicated by an agency action or decision." Mauna Kea Anaina Hou, 136 Hawai‘i at 415, 363 P.3d at 263 (opinion of the court as to Part IV by Pollack, J.). The LUC therefore could not have waived its duty to ensure that water potable under county water quality standards from Wells 1 and 9 would not be permitted for golf course irrigation. Waiahole I, 94 Hawai‘i at 141, 9 P.3d at 453 ("The continuing authority of the state over its water resources precludes any grant or assertion of vested rights to use water to the detriment of public trust purposes."); Ching, 145 Hawai‘i at 170, 449 P.3d at 1168 ("The most basic aspect of the State's trust duties is the obligation ‘to protect and maintain the trust property and regulate its use.’ "). Thus, the LUC has a continuing duty to evaluate the potability of the water in Wells 1 and 9 to ensure that the Resort does not violate Condition 10 by using water for irrigation that is suitable for drinking under county water quality standards, regardless of the chloride level of the water.
The minority relies on this court's decision in DW Aina to contend that this opinion fails to give the Resort the "ascertainable certainty" required in an administrative order. Minority Op. at 146 Hawai‘i at 512-14, 463 P.3d at 1169-71 (citing DW Aina Le‘a Dev., LLC v. Bridge Aina Le‘a, LLC, 134 Hawai‘i 187, 215-16, 339 P.3d 685, 713-14 (2014) ). The court in DW Aina was presented with a contractual dispute over whether the LUC had adequately defined the term "completed" as it related to affordable housing. DW Aina Le‘a Dev., LLC, 134 Hawai‘i at 215-16, 339 P.3d at 713-14. Whether and when housing was "completed" in that case did not concern the State's public trust duties. In pointed contrast, in this case, "potable" is imbedded with constitutional implications under the public trust doctrine that extend beyond a permit condition or administrative rule. See Ching, 145 Hawai‘i at 178, 449 P.3d at 1176 ("[T]he State's constitutional public trust obligations exist independent of any statutory mandate and must be fulfilled regardless of whether they coincide with any other legal duty."); In re Conservation Dist. Use Application HA-3568 (In re TMT), 143 Hawai‘i 379, 415, 431 P.3d 752, 788 (2018) (Pollack, J., concurring) ("This court has indicated that an agency's public trust obligations may overlap with the agency's statutory duties, and it would follow that they may similarly overlap with duties imposed by an administrative rule.").
The minority further asserts that county water quality standards fail to provide fair and predictable elements. Minority Op. at 146 Hawai‘i at 512-13, 463 P.3d at 1169-70. As stated, county water quality standards are those standards that the county water agency would use in its domestic water system.
C. The 1991 Hearing and Findings of Fact Do Not Indicate the 1991 LUC Considered Brackish Water To Be Per Se Non-potable.
The 1991 LUC's findings of fact are consistent with an interpretation of potability that is based on whether water meets the county's water quality standards for drinking water rather than whether water contains enough chlorides to qualify as "brackish." For instance, finding of fact 73 of the 1991 LUC Order stated that the "[g]roundwater underlying the proposed golf course at Manele is too brackish for drinking water." (Emphasis added.) By stating that some water is too brackish for domestic use, the LUC indicated that there is water that is brackish, but not so brackish as to render it non-potable under then-existing standards for domestic use. The 1991 LUC thus does not appear to have considered brackishness to be a binary, yes-or-no trait that necessarily makes water non-potable, but rather as one factor that is evaluated in determining potability.
As noted, the term "brackish" is commonly defined as "somewhat salty, distasteful." Lanai Co., 105 Hawai‘i at 299 n.10, 97 P.3d at 375 n.10.
But this does not mean that the LUC intended that the water in Wells 1 and 9 would always be considered non-potable regardless of surrounding circumstances, nor that the LUC intended that the designation would change only if the chloride levels were to drop below the threshold of 250 ppm. Indeed, there is no indication that the LUC contemplated the proposed 250 ppm threshold prior to imposing Condition 10, and it is therefore significantly more likely that it considered "non-potable" only in terms of county water quality standards rather than any specific numerical value. Accordingly, the circumstances in which the 1991 LUC Order was adopted also do not present any reason to depart from the plain meaning of its terms.
The minority and the Resort argue, however, that various references in the LUC's 1991 Findings of Fact and the testimony and questions posed at the original LUC hearings suggest that the LUC viewed Wells 1 and 9 as permissible sources of non-potable water for irrigation. Minority Op. at 146 Hawai‘i at 516-17, 463 P.3d at 1173-74. A court "must read the language of an administrative order in the context of the entire order." Lanai Co., 105 Hawai‘i at 310, 97 P.3d at 386 (emphasis added). Instead, the minority rejects the common sense meaning of potable in favor of reliance on disparate references in the testimony of selected witnesses in a record exceeding 17,000 pages, including hundreds of pages of hearing transcripts, to determine the 1991 LUC's intent in imposing Condition 10. See Minority Op. at 146 Hawai‘i at 516-17, 463 P.3d at 1173-74. Equally problematic is the minority's reliance on the phrasing of questions posed by counsel during the hearing to interpret the meaning of a term in Condition 10. Minority Op. at 146 Hawai‘i at 516-17, 463 P.3d at 1173-74. The minority infers that because LSG's lawyer, in referencing a witness's prior response during cross-examination, asked about "a nonpotable or brackish water source" for the golf course, the lawyer believed brackish was synonymous with non-potable. Minority Op. at 146 Hawai‘i at 517, 463 P.3d at 1174. The manner in which the question was posed to the witness does not mean that the lawyer considered brackish water and non-potable water to be the same; instead, it highlights the analytical flaws of extrapolating from an interpretation of a lawyer's question to determine the meaning of a term in the 1991 LUC Order.
Additionally, some of the testimony cited by the minority appears to implicitly acknowledge that potability is an evolving concept that may change with time. Minority Op. at 146 Hawai‘i at 517, 463 P.3d at 1174. For example, James Kumagai, the Resort's expert witness on civil, sanitary, and environmental engineering, testified that "Well 9 has proved to have higher chlorides than what we had anticipated .... It's brackish and we consider that right now nonpotable, but suitable for landscape irrigation." (Emphasis added.) If potability was a static concept based only on whether chloride levels exceed a specific threshold, there would be no reason for Kumagai to clarify that, as of that moment, the Resort considered the brackish water in Well 9 to be non-potable.
It is plainly contrary to principles of statutory construction in interpreting an administrative order to rely on selected witness testimony and the phrasing of attorney questions. See Guyton, 135 Hawai‘i at 378, 351 P.3d at 1144. Instead, the plain meaning of the term "potable," as made clear by the entirety of the 1991 LUC Order, must prevail.
The language of Condition 10 and the circumstances in which it was adopted indicate that the 1991 LUC did not intend that all brackish water would be considered inherently nonpotable. By the 2017 LUC's own admission, such a holding would require this court to interpret the terms "potable" and "nonpotable" in a manner that is contrary to their "common sense" meanings. We reject an interpretation of a term that is contrary to its common sense meaning, especially in the absence of far stronger indications that this is what was intended. Further, such an interpretation would be contrary to public trust principles with which the LUC is presumed to have complied. The 1991 LUC fulfilled its constitutional public trust duties with respect to Condition 10 by crafting a standard that turns on county water quality standards for drinking water as they develop.
D. A Proper Interpretation of Condition 10 Permits a Correct Analysis of the Effects of Leakage from the High Level Aquifer.
In Lanai Co., this court noted that the LUC had not determined whether the Resort's actions were the cause of potable water leaking into Wells 1 and 9, and assuming that they were, the LUC had not indicated whether the effect of such actions would mean that potable water was being utilized under Condition 10:
LUC makes no specific finding or conclusion as to whether [the Resort] was using potable water. Additionally, it is not clear from finding No. 30, whether the potable water leaking into Wells No. 1 and 9 is a direct result of [the Resort's] actions, or if such leakage would occur irrespective of [the Resort's] water usage. Similarly, assuming
[the Resort's] use is affecting potable water in the high level aquifer, the LUC did not indicate whether such an effect would qualify as "utiliz[ing] the potable water" under Condition No. 10.
Lanai Co., 105 Hawai‘i at 316, 97 P.3d at 392 (emphases added) (last alteration in original). On remand, the 2017 LUC found that the record was inconclusive as to the degree to which the pumping of water from Wells 1 and 9 may cause the leakage of water from other areas of the high level aquifer that are currently used for potable drinking water. It further found that there was no indication that any leakage has harmed existing or planned uses of water for domestic purposes. Finally, the 2017 LUC concluded that the leakage "theory" is inconsistent with the language of Condition 10 "in which brackish water was described as non-potable, and in which brackish water from Wells 1 and 9 [was] proposed for irrigation of the Manele Golf Course."
Properly interpreting Condition 10 to prohibit the Resort from utilizing water that meets county water quality standards for domestic use resolves the issue of leakage. Leakage would result in a violation of Condition 10 if the commingling of freshwater with brackish water changes the composition of the water in Wells 1 and 9 such that it becomes suitable for domestic use under county water standards and the Resort thereafter uses the water for irrigation. However, the 2017 LUC's interpretation would permit utilization of the water in Wells 1 or 9 regardless of whether leakage from the high level aquifer renders the water suitable for domestic use under county water quality standards, further evincing the flawed nature of such an interpretation.
In addressing the issue of freshwater leakage, the minority concludes that the 2017 LUC did not err in holding that, "By drawing only from brackish Wells 1 and 9 in the high-level aquifer, the Resort did not ‘utilize’ any other sources per Condition 10." Minority Op. at 146 Hawai‘i at 517, 463 P.3d at 1174. As stated, under the 2017 LUC interpretation, regardless of whether the Resort's pumping of water from Wells 1 and 9 causes leakage of potable water from the high level aquifer into those wells, such leakage does not constitute "utilization" of potable water from the high level aquifer so as to violate Condition 10. This is because the 2017 LUC would find that the commingling of freshwater with brackish water renders such mixed water in Wells 1 and 9 as nonpotable and thus usable for golf course irrigation. This flawed proposition highlights the illogical and non-common sense interpretation that the 2017 LUC applies to Condition 10 in equating non-potable water with brackish water.
Indeed, the analysis applied by the 2017 LUC would allow the Resort to pump water from Wells 1 and 9 with the full knowledge that potable water was leaking from the high level aquifer as a result of its pumpage. But even assuming that the Resort was unaware that its actions were causing leakage, the language of Condition 10 makes no distinction as to whether the Resort's utilization of potable water is intentional or not; it is not permitted. The minority would require "conclusive evidence of leakage, and that leakage caused the designation of Wells 1 and 9 to change from ‘brackish’ to ‘potable’ " in order to prove that the Resort was utilizing water from a potable well. Minority Op. at 146 Hawai‘i at 517 n.4, 463 P.3d at 1174 n.4 (emphasis added). Such a reading clearly violates the public trust doctrine. If there is evidence of potable water leaking from the high level aquifer into Wells 1 and 9, the Resort will be in violation of Condition 10, regardless of whether the water in Wells 1 and 9 remain non-potable. See Kauai Springs, Inc., 133 Hawai‘i at 174, 324 P.3d at 984. Alternatively, the minority would require conclusive evidence that the water utilized by the Resort "originated in the potable wells." Minority Op. at 146 Hawai‘i at 517 n.4, 463 P.3d at 1174 n.4. It is unclear how the source of commingled water can be shown by "conclusive evidence."
E. The 2017 LUC Did Not Clearly Err in Concluding That the Water in Wells 1 and 9 Was Non-potable Under County Water Quality Standards.
The 2017 LUC found that the water from Wells 1 and 9 would not currently be accepted as potable by the County of Maui because of its chloride levels, and it cannot be said that this finding was clearly erroneous given the evidence in the record. The 2017 LUC therefore did not err in determining that the Resort was in compliance with Condition 10. However, the State has a continuing public trust duty to ensure the Resort's compliance with Condition 10 by evaluative monitoring of the quality of water that the Resort uses for irrigation in relation to the county water quality standards for drinking water. Condition 10 would be violated if the Resort were to use water for irrigation that was considered suitable for drinking under county water quality standards, regardless of the chloride level of the water.
The contention in Justice Wilson's opinion, dissenting as to Parts III(E) and IV, that the record does not establish whether the water in Wells 1 and 9 contained potable water under county water quality standards during the relevant time period is unpersuasive. Wilson, J., Dissenting as to Parts III(E) and IV at 146 Hawai‘i at 526-27, 463 P.3d at 1183-84. The 2017 LUC found, and the record does not indicate otherwise, that the County of Maui would not have accepted the water in Wells 1 and 9 as potable. That finding is not clearly erroneous, and the Resort accordingly did not violate Condition 10 of the LUC's administrative order.
IV. CONCLUSION
For the foregoing reasons, the 2017 LUC Order is affirmed to the extent that it is consistent with this opinion.
OPINION CONCURRING IN THE JUDGMENT AND DISSENTING BY RECKTENWALD, C.J., IN WHICH NAKAYAMA, J., JOINS
I. INTRODUCTION
The Land Use Commission's (LUC) determination that the Resort complied with Condition 10 is supported by substantial evidence, and accordingly, I concur in the judgment affirming the LUC's 2017 Order. However, I respectfully disagree with the majority's analysis in reaching this result.
This dispute began in 1991, when the LUC issued an Order (1991 Order) granting the Resort's petition for a district boundary amendment for purposes of building a golf course. The Order imposed Conditions on the Resort, including Condition 10, which provides in relevant part:
[The Resort] shall not utilize the potable water from the high-level groundwater aquifer for 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.
In 1996, the LUC determined that the Resort violated Condition 10 by using water from the high-level aquifer to irrigate the golf course (1996 Order). In 2004, we vacated and remanded the LUC's 1996 Order and held that Condition 10 did not preclude use of all water from the high-level aquifer, only the "potable" water. Lanai Co. v. Land Use Commission, 105 Hawai‘i 296, 314, 97 P.3d 372, 390 (2004). Because the LUC's 1996 Order did not contain reasonably clear findings as to whether the Resort used potable water in violation of Condition 10, we directed the LUC on remand to clarify its findings and conclusions and, if necessary, conduct further hearings. Id. On remand, the LUC concluded that the Resort complied with Condition 10 and that the Resort's use of Wells 1 and 9 to irrigate the Manele golf course did not pose a threat to public trust resources (2017 Order).
The LUC's conclusions are supported by the record and correctly apply the law. The Resort's use of brackish water from Wells 1 and 9 did not violate Condition 10, nor does such a reading of the Condition violate the public trust doctrine. Condition 10 clarified, by way of an "e.g." clause, that "brackish" water was an example of water that was nonpotable within the context of the Order and thus available for use by the Resort.
The majority, however, defines potable in reference to "county water quality standards." This reading ignores the terms of the Condition, for "county water quality standards" appears nowhere in it. Because 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, I respectfully dissent.
II. DISCUSSION
A. The Majority's Definition of "Potable" is Divorced from the Text of the 1991 Order
At the center of this decades-long dispute is, ultimately, the proper interpretation of Condition 10 and the meaning of the word "potable." The majority contends that the 1991 LUC intended "potable" to mean "suitable for drinking under county water quality standards." Majority at 146 Hawai‘i at 498, 463 P.3d at 1155. I respectfully disagree.
The majority cannot find its definition in the Order itself, because that language does not exist. We cannot "enforce a construction of Condition 10 that was not expressly adopted." Lanai Co., 105 Hawai‘i at 314, 97 P.3d at 390. "Parties subject to an administrative decision must have fair warning of the conduct the government prohibits or requires" in order to ensure the parties receive notice of their obligations. Id. As such, the LUC must "stat[e] with ascertainable certainty what is meant by the conditions it has imposed" in an administrative order. Id. While the majority rightly recognizes that "the meanings of the terms used in Condition 10" should be "fixed based on the LUC's intention at the time the condition was imposed," this intention must be stated "with ascertainable certainty" to be enforceable. Majority at 146 Hawai‘i at 504 n.8, 463 P.3d at 1161 n.8; Lanai Co., 105 Hawai‘i at 314, 97 P.3d at 390.
By creating and importing a new definition of potable into Condition 10, the majority's construction fails that test. It is difficult to imagine how the LUC could have given "fair notice" to the parties and stated its intention "with ascertainable certainty" through the absence of language that the majority now determines to bind the Resort. Tellingly, the majority can only point to one finding of fact in the 1991 Order that purports to support its "county water quality standards" definition - and even that must be contorted to support their conclusion. Majority at 146 Hawai‘i at 509-10, 463 P.3d at 1166-67. The most straightforward interpretation of the finding that the "[g]roundwater underlying the golf course at Manele is too brackish for drinking water" is that, consistent with Condition 10 itself and the Order as a whole, the LUC understood "brackish" water to be "nonpotable." Had the LUC intended to limit the Resort's ability to use brackish water based on additional standards, to monitor for EPA primary contaminants, to take into account "a host of secondary considerations," or to apply any other criteria beyond those provided under Condition 10, it could and should have expressly done so. Majority at 146 Hawai‘i at 506 n.11, 463 P.3d at 1163 n.11; see Lanai Co., 105 Hawai‘i at 314, 97 P.3d at 390 ; DW Aina Le‘a Development, LLC v. Bridge Aina Lea, LLC, 134 Hawai‘i 187, 215-16, 339 P.3d 685, 713-14 (2014).
In DW Aina, we held that the LUC erred in enforcing a condition that was not expressly stated. 134 Hawai‘i at 215–16, 339 P.3d at 713–14. In that case, the LUC issued an order that rescinded an Order to Show Cause, "provided that as a condition precedent, sixteen affordable units be completed by March 31, 2010." Id. at 215, 339 P.3d at 713 (emphasis added). Like the word "potable" in the instant case, the word "complete" in DW Aina was subject to multiple interpretations. As we noted, the LUC's order "did not make it clear what would qualify as a ‘complete’ unit" or "state what level of completion would satisfy" the condition. Id. At a hearing before the LUC, the developer "made it clear to the LUC that vertical and horizontal construction would be occurring simultaneously, and that townhouses would be completed" prior to connecting them to utilities. Id. (emphasis added). However, the LUC later claimed that it intended the word "complete" to mean not only that the physical structures were built, but also that they were ready to be occupied. See id. In light of the LUC's failure to define "complete" with "ascertainable certainty," and in light of the developer's representations about its progress towards "completion," we held that the LUC erred by imposing on the developer a definition of "complete" not contemplated by the original condition. Id. at 215-16, 339 P.3d at 713-14.
Here, if the LUC indeed meant "potable" to mean "suitable for drinking under county water quality standard," it conveyed this intention with considerably less "ascertainable certainty" than in DW Aina. See id. at 215–16, 339 P.3d at 713–14 ; see also Lanai Co., 105 Hawai‘i at 314, 97 P.3d at 390. As such, this is not an enforceable interpretation of Condition 10. By contrast, Condition 10's plain text offered clear guidance: brackish water is an example of nonpotable water that the Resort may use for golf course irrigation.
If Condition 10 did not adequately protect the public trust, the administrative order must, of course, give way to the LUC's constitutional duties, regardless of whether the parties had "express notice of the existence of the rights protected under the doctrine," Majority at 146 Hawai‘i at 508, 463 P.3d at 1165; the LUC undeniably had an affirmative duty to protect water resources. See In re Waiola O Molokai, Inc., 103 Hawai‘i 401, 430, 83 P.3d 664, 693 (2004). However, I disagree at the outset that the construction set forth in this opinion poses public trust concerns. See infra Part II.C.
"In this jurisdiction, our decisions in McBryde and its progeny and the plain meaning and history of the term ‘protection’ in article XI, section 1 and article XI, section 7 [of the Hawai‘i Constitution] establish that the state has a comparable duty to ensure the continued availability and existence of its water resources for present and future generations." In re Water Use Permit Applications (Waiahole I ), 94 Hawai‘i 97, 139, 9 P.3d 409, 451 (2000) (footnote omitted).
B. Condition 10 Permits the Resort to Use Water Designated as Brackish - and Prevents the Resort from Using Water from the "Potable" System - to Irrigate the Golf Course
1. The 1991 Order was clear that "brackish" water is "nonpotable" and thus available for use
"[T]he 1991 Order cannot be construed to mean what the LUC may have intended but did not express." Lanai Co., 105 Hawai‘i at 314, 97 P.3d at 390. While the definition of "potable" has long been a matter for debate, as Lanai Co. and the 2017 Order recognized, the 1991 Order does provide specific guidance about what constitutes nonpotable water. The Order expressly excluded "brackish" water from its definition of potable, and the Resort, therefore, was permitted to use brackish water from Wells 1 and 9 for irrigation.
In interpreting the meaning of an administrative order, we start with the plain language. See Lanai Co., 105 Hawai‘i at 310, 97 P.3d at 386. The disputed portion of Condition 10 of the 1991 Order reads as follows:
[The Resort] shall not utilize the potable water from the high-level groundwater aquifer for 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.
(Emphases added.)
As the LUC found in the 2017 Order, "[t]he language of Condition 10 has proved to be confusing and contentious," and "reasonable Commissioners or observers may have read the language of Condition 10 to have different meanings." However, citing the testimony of one witness from the 1990–91 hearings, the LUC found that "[t]he common sense definition of the word ‘potable’ is drinkable." Likewise, this court has stated that "[t]he term for ‘potable’ water is ordinarily defined as ‘suitable for drinking,’ " but we recognized that reasonable minds could disagree as to what "potable" means and how to measure "potability." Lanai Co., 105 Hawai‘i at 299 n.8, 97 P.3d at 375 n.8 (quoting Webster's Seventh New Collegiate Dictionary, 664 (1965)). "Potable water" could reasonably be defined as water that is "safe" for drinking, "suitable" for drinking, or "used" for drinking. All of these definitions could be described as "common meaning[s]" of the term potable, but the majority provides no compelling reason why "suitable for drinking under county water quality standards" prevails. Majority at 146 Hawai‘i at 503, 463 P.3d at 1160.
By contrast, when there is a need to draw fine distinctions between these definitions, such as in this case, we must do so by reading the term "potable" in context. See Lanai Co., 105 Hawai‘i at 310, 97 P.3d at 386. The LUC's ruling in the 2017 Order was properly based on a contextual reading of the term "potable," consistent with the language of Condition 10. In particular, the LUC considered the rest of the language in the first paragraph of Condition 10, construing the "e.g." clause as a plain-language tool intended to help narrow the meaning of "potable" and more clearly define the Resort's obligations. The LUC found:
The Resort and the Office of Planning agreed, arguing that it is clear from the language of Condition 10 that brackish water and reclaimed sewage effluent are examples of alternative non-potable sources of water, and "[t]he only reasonable reading of Condition 10, therefore, is that the term ‘potable water’ excludes brackish water and reclaimed sewage effluent."
However, Lana‘ians for Sensible Growth is not precluded from seeking a determination from the LUC as to whether, under county water quality standards, wells 1 and 9 presently contain potable water.
By including the category of "brackish" water as a specific example (in an e.g. clause) as an "alternate source" of water, Condition 10 clearly indicated that in the specific context of this Docket and Condition 10, "brackish" water was considered not to be potable, but rather a source of water "alternate" to the "potable" water supplies of the island[.]
(Emphases in original.)
LSG argues that the LUC's construction of Condition 10 departs from its plain and unambiguous language, asserting:
Condition 10 restricts [the Resort] to using nonpotable water. Whether the water is "brackish" or not is literally not sufficient. Brackish water is either potable or nonpotable. Condition 10 bars its use if it is the
former and allows it if it is the latter. The meaning of Condition 10 is plain and unambiguous. Nothing could be clearer.
While I disagree LSG's contention that what the Order meant by "potable" is "plain and unambiguous" - it is anything but - it does plainly indicate that the LUC contemplated two kinds of water sources to be "nonpotable": brackish water and reclaimed sewage effluent. The majority's contention that we and the LUC are reading the "e.g." clause as an "i.e." clause simply lacks merit. Majority at 146 Hawai‘i at 503, 463 P.3d at 1160. I do not suggest that brackish is an "interchangeable term for non-potable" any more than I suggest that reclaimed sewage effluent is interchangeable for non-potable. Majority at 146 Hawai‘i at 503, 463 P.3d at 1160. I only conclude that brackish water is a specific example of a non-potable source as defined by Condition 10. Likewise, reclaimed sewage effluent may or may not be brackish, but it is non-potable within the meaning of Condition 10, as it is also an example within the "e.g." clause.
Indeed, the use of non-examples in an open-ended list can help clarify and narrow the meaning of broad terms applied in a given context, and the "e.g." clause could reasonably be construed as a means of doing so in the context of the 1991 Order. By way of analogy, if a catering business posted on its website, "Meat options are not available on Fridays," some people might reasonably assume that "meat" includes any form of animal protein, while others might not. Imagine that in the sentence after that, the company states, "However, non-meat protein options (e.g., fish, tofu) are available." In so doing, the company has clarified that it does not consider "fish" to be a "meat option" on the menu. While some might disagree with that meaning of "meat," the sentence nonetheless made it clear that "fish" will not be taken off the Friday menu.
As this multi-decade litigation throws into sharp relief, different people might construe the term "potable" differently. The "e.g." clause in Condition 10 clarified the meaning of "potable" water sources within the context of the Order by furnishing two non-examples: brackish water and reclaimed sewage effluent. These non-examples constitute two sources that the Condition, by its terms, qualify as "nonpotable," and in turn, the Resort could safely use those sources of water for golf course irrigation without running afoul of Condition 10.
Nothing about my construction of Condition 10 or the 1991 Order requires Wells 1 and 9 to remain in Lana‘i's brackish water system in perpetuity, as the majority asserts. See, e.g., Majority at 146 Hawai‘i at 504-05, 463 P.3d at 1161-62. Of course, if Wells 1 and 9 were made part of Lana‘i's potable water system - in other words, if they no longer were "brackish" - their use for golf course irrigation would violate Condition 10. I agree with the majority that the Resort is not entitled to unmitigated and perpetual use of specific resources. But the Resort must be appraised of what kind of water they can use, such that if the island's resources change character, it may respond by changing its practices in accordance with the 1991 Order. In contrast to water sources changing relative to a fixed definition, the majority's definition of "potable" itself may change based on unstated factors.
2. Read as a whole, the 1991 Order provides the Resort fair notice of its obligations
While the majority's definition cannot be gleaned from the 1991 Order itself, by defining "brackish" water as an "alternative non-potable source," separate and distinct from "potable" water, Condition 10 provided the Resort fair notice that it could not irrigate the golf course with any water from the high-level aquifer designated for use as part of the island's "potable" system - the Condition did not, however "prohibit [the Resort] from using all water from the high level aquifer." 105 Hawai‘i at 310, 97 P.3d at 386.
Lana‘i's high-level aquifer is unique in that it has certain wells that "draw the only known high-level ground water in the state that is brackish, as opposed to fresh." Because the high-level aquifer contains both fresh and brackish water, both the "potable" and "brackish" water systems on Lana‘i draw from the high-level aquifer. Consistent with this understanding, Condition 10 precluded the Resort from using "the potable water from the high-level groundwater aquifer," or water in the "potable" system, to irrigate the golf course. But it did not preclude the Resort from using all water from the high-level aquifer, given the unique presence of brackish water sources, which, at the time, were already used in the "brackish" system for irrigation purposes.
In Lanai Co., this court distinguished the "potable" water in the high-level aquifer from the "brackish water supply" in the Palawai Basin area of the high-level aquifer. 105 Hawai‘i at 313, 97 P.3d at 389. Because the map in the record showed Well 1 and the Palawai Basin to be within the high-level aquifer, we concluded that the LUC could not have believed "that the high level aquifer consisted of only potable water." Id. We noted:
If the LUC believed that the high level aquifer only consisted of potable water, or that Wells No. 1 and 9 were not to be used, it could have expressly said so in the 1991 Order. Indeed, the mention of Wells No. 1 and 9 in finding 48 of the 1991 Order, suggests that the use of these wells, and their brackish water supply, was permissible.
Id. (footnote omitted).
Similarly, the LUC's findings in the 1991 Order indicate that the terms "potable" and "brackish" were used as mutually exclusive terms, while "non-potable" and "brackish" were used interchangeably. The 1991 Order referred to the Resort's plans to develop "brackish water sources" and the "brackish water supply" at the same time it referred to the Resort's plans to "irrigate the golf course with nonpotable water" from sources "other than potable water from the high level aquifer." Under a section of the 1991 Order titled "Water Resources," the LUC found that "[t]he proposed golf course ... will be irrigated with nonpotable water from sources other than potable water from the high level aquifer," and that "[the Resort] proposes to provide alternate sources of water for golf course irrigation by developing the brackish water supply." Similarly, under a section of the 1991 Order titled "Water Service," the LUC found that the Resort "intends to irrigate the golf course with nonpotable water," and "is now in the process of developing the brackish water supply for irrigation of the proposed golf course."
Findings in the "Water Resources" and "Water Service" sections also specified what steps the Resort was taking "to provide adequate quantities of ... non-potable water to service the subject property." In light of projected "golf course irrigation requirements" of 624,000 gallons per day (gpd) to 800,000 gpd, the findings cited the Resort's plans to "develop[ ] the brackish water supply." The LUC referred to the possibility of using certain wells, including "Well No. 1 which is operational and which has a capacity of about 600,000 gpd," and "Well No[.] 9," which had "been subjected to full testing" and which had a "capacit[y] of about 300,000 gpd." The findings noted that the wells had an "aggregate brackish source capacity in excess of the projected requirements." The LUC also cited testimony establishing that "the brackish water sources necessary to supply enough water for golf course irrigation could be developed and be operational within a year," and that "it is only a matter of cost to develop" them. These findings aligned with Condition 10, which directed the Resort to "develop and utilize only alternative non-potable sources of water (e.g., brackish water ...) for golf course irrigation requirements." They also aligned with Condition 11, which required the Resort to "fund the design and construction of all necessary water facility improvements, including source development and transmission, to provide adequate quantities of potable and non-potable water to service the subject property."
The language of the 1991 Order thus reflected the LUC's understanding that Wells 1 and 9, brackish wells from the high-level aquifer, would be among the "alternate non-potable sources of water" used to satisfy the projected "golf course irrigation requirements." As we noted in Lanai Co., "[t]he 1991 Order does not make any express findings which prohibit the use of Wells No. 1 and 9" and instead "suggests that the use of these wells, and their brackish water supply, was permissible." 105 Hawai‘i at 313, 97 P.3d at 389.
3. The administrative record supports this reading of Condition 10.
The transcripts of the district boundary amendment hearings, which indicate that people often used the terms "nonpotable" and "brackish" interchangeably and that the Resort was clear in its representations that it intended to use brackish water to irrigate the golf course, also support the LUC's understanding and intent as reflected in the 1991 Order. To cite only a few examples, Thomas Leppert, an employee of the Resort, equated "non-potable" and "brackish" multiple times throughout the 1991 hearings. When asked whether it was his intention to "utilize brackish water and sewage effluent on the Manele course," he responded, "Yes. We have no intention of using the potable water." Leppert referred to Well 9 as "brackish or non-potable" and also later referred to Wells 1 and 9 as non-potable. The Resort's witness, engineering consultant James Kumagai, testified: "Well 9 has proved to have higher chlorides than what we had anticipated .... It's brackish and we consider that right now nonpotable, but suitable for landscape irrigation."
The majority criticizes my reliance on the administrative record, but I cite to the hearings only to supplement and aid in analysis of the "entire order." Majority at 146 Hawai‘i at 510, 463 P.3d at 1167; Lanai Co., 105 Hawai‘i at 310, 97 P.3d at 386. I agree that interpreting the language itself must be the touchstone, but looking to the record to help understand how parties used key words, like looking to legislative history to understand a statute, is a well-established way to help interpret disputed language. Id. at 313, 97 P.3d at 389 (relying in part on map provided during the 1991 hearings); DW Aina, 134 Hawai‘i at 215, 339 P.3d at 713 (looking to the administrative hearing transcript); cf. Kauai Springs, Inc. v. Planning Comm'n of the Cty. of Kaua‘i, 133 Hawai‘i 141, 165–66, 324 P.3d 951, 975–76 (2014) (relying in part on legislative history to interpret specific statutory language).
The date of the opinion in Lana‘i I was September 17, 2004, but the remand was not effective until the judgment on appeal was filed on March 17, 2005.
Moreover, on the final day of the hearing, the LUC chairman asked Kumagai if he could "commit to us today that there is enough brackish water that's exploitable to meet your projections of usage[,]" and Kumagai agreed: "That is correct. ... Without qualification, like I say, it's cost." (Emphasis added.) Picking up on this exchange, LSG's counsel requested to recross Kumagai about whether "it would be possible to obtain a nonpotable or brackish water source for the golf course in time to use that water for the golf course when it's built." (Emphasis added.) On recross, LSG asked, "[W]hen [the LUC chairman] asked you a question about whether nonpotable water was available, you said it was available without qualification?" (Emphasis added.) The LUC chairman likewise used "non-potable" and "brackish" interchangeably when discussing water sources, asking at one point: "With respect to the potential for using nonpotable sources, or brackish water, easier put, where else do they use brackish water, and to what success?" (Emphasis added.) Thus, the evidence in the record supports what the text of the Order itself shows - that the 1991 LUC considered the brackish wells in the high-level aquifer to be "alternative non-potable sources" under Condition 10.
4. The LUC did not err by concluding the Resort did not violate Condition 10.
The LUC concluded that "[d]uring the time period at issue in the 1996 OSC Order, Wells 1 and 9 and reclaimed sewage effluent were the sole sources of irrigation water for the Manele Golf Course." (Emphasis added.) Because Wells 1 and 9 were not part of Lana‘i's drinking water system at any relevant point in time, but instead were designated as brackish wells, those wells did not constitute "potable" water sources at any time relevant to this appeal. Thus, the LUC did not err in holding that the possibility of freshwater "leakage" into Wells 1 and 9 did not give rise to a credible claim that the Resort violated Condition 10. By drawing only from brackish Wells 1 and 9 in the high-level aquifer, the Resort did not "utilize" any other sources per Condition 10.
This is not to say that any freshwater leakage into Wells 1 and 9 would not violate Condition 10. The LUC found inconclusive evidence of leakage resulting from the pumping of water from Wells 1 and 9, as the majority recognizes. Majority at 146 Hawai‘i at 510-11, 463 P.3d at 1167-68. If there were conclusive evidence of leakage, and that leakage caused the designation of Wells 1 and 9 to change from "brackish" to "potable" - or if the Resort used water that could be credibly shown to have originated in the potable wells - the Resort would be in violation of Condition 10 because in either of these scenarios, the Resort would be utilizing water supplied from a potable well.
Accordingly, this court's remand instructions specifically stated that, because the LUC did not at any time determine whether potable water from Wells 1 and 9 was being used, further LUC proceedings were required to determine whether potable water was ever being used in violation of Condition 10:
Finding 16 that "Wells No. 1 and 9 ... provide nonpotable, brackish water[,]" is countered by finding 29, which states that [the Resort] "has not performed a comprehensive test to determine the potability of Wells No. 1 and 9." Additionally, the findings explain that "there is leakage from the high level potable water area to the low level brackish water area."
While such findings seem to imply that [the Resort] was using potable water, the LUC did not include any express findings in this regard in its 1996 Order. As such, the LUC has failed to "make its findings reasonably clear" as to whether [the Resort] was using potable water in violation of Condition No. 10.
....
Accordingly, we remand the issue of whether [the Resort] has violated Condition No. 10 by utilizing potable water from the high level aquifer, to the court, with instructions to remand the case to the LUC for clarification of its findings and conclusions, or for further hearings if necessary.
Lana‘i I, 105 Hawai‘i at 316, 97 P.3d at 392 (internal citations omitted).
C. Condition 10, Properly Construed, is Consistent with the Public Trust
Contrary to the majority's assertion that "the 1991 Order would have violated its public trust duties" under the meaning of Condition 10 proposed by the 2017 Order and herein, Majority at 146 Hawai‘i at 504-05, 463 P.3d at 1161-62, the LUC indeed met its public trust obligations when it adopted Condition 10, and its 2017 reading of the Condition does not pose any public trust concerns. The LUC, in reviewing a petition for reclassification of district boundaries, must specifically consider the impact of the proposed reclassification on preserving natural systems and natural resources. HRS § 205-17. It did so here.
HRS § 205-17 provides, in relevant part:
In its review of any petition for reclassification of district boundaries pursuant to this chapter, the [LUC] shall specifically consider the following:
(1) The extent to which the proposed reclassification conforms to the applicable goals, objectives, and policies of the Hawaii state plan and relates to the applicable priority guidelines of the Hawaii state plan and the adopted functional plans;
(2) The extent to which the proposed reclassification conforms to the applicable district standards;
(3) The impact of the proposed reclassification on the following areas of state concern:
(A) Preservation or maintenance of important natural systems or habitats;
(B) Maintenance of valued cultural, historical, or natural resources;
(C) Maintenance of other natural resources relevant to Hawaii's economy, including agricultural resources[.]
Condition 10 was amended to read in relevant part:
a. [The Resort] shall not use ground water to irrigate the Manele Golf Course, driving range and other associated landscaping if the chloride concentration measured at the well head is 250 milligrams per liter(250 mg/l) or less.
b. In the event the chloride concentration measurement of ground water to irrigate the Manele Golf Course, driving range and associated landscaping falls below 250 mg/l, [the Resort] shall cease use of the affected well(s) producing such ground water for irrigation purposes until such time as the chloride concentration measurement of the water drawn from such wells rises above 250 mg/l.
Under the LUC's construction, the first paragraph of Condition 10 is consistent with the purposes of the state water resource public trust. See, e.g., Kauai Springs, Inc. v. Planning Comm'n of the Cty. of Kaua‘i, 133 Hawai‘i 141, 172, 324 P.3d 951, 982 (2014). One public trust purpose is "domestic water use," with particular attention toward "protecting an adequate supply of drinking water." Id.; see In re Water Use Permit Applications, 94 Hawai‘i 97, 137, 9 P.3d 409, 449 (2000). By adopting terms of Condition 10 that align with the terms that define the two systems of water use and delivery on Lana‘i, the LUC stated with "ascertainable certainty" that no source of drinking water on Lana‘i can be used to irrigate the golf course. Lanai Co., 105 Hawai‘i at 315, 97 P.3d at 391.
Moreover, understanding that the supply of drinking water on Lana‘i may be impacted by overuse of brackish groundwater, the second paragraph of Condition 10 establishes important limitations designed to protect and prioritize the need for an adequate supply of drinking water. In exercising its obligations under the first paragraph of Condition 10 of the 1991 Order, the Resort must additionally
comply with the requirements imposed upon the [Resort] by the State Commission on Water Resource Management as outlined in the State Commission on Water Resource Management's Resubmittal - Petition for Designating the Island of Lanai as a Water Management Area, dated March 29, 1990.
The LUC therefore included in Condition 10 requirements imposed by the Water Commission, which is tasked with protecting the State's water resources. Condition 10 requires that the Resort provide monthly water reports to the Water Commission, so it can closely monitor Lana‘i's water resources and step in to reinstitute designation proceedings if certain indicators suggest that the island's groundwater resources are threatened. These requirements involve monitoring Lana‘i's sustainable yield in order to determine whether and to what extent the golf course's operations strain Lana‘i's drinking water supply. Given that the Resort's compliance with Condition 10 is monitored by the LUC, the Water Commission, and the public, through the reporting requirements the Resort must follow, I disagree with the majority and would hold that no public trust obligations have been improperly delegated to the Resort under the correct construction of this condition.
The State Water Code declares the "need for a program of comprehensive water resources planning to address the problems of supply and conservation of water." HRS § 174C-2(b). "The general administration of the state water code shall rest with" the Water Commission. HRS § 174C-5.
The 2017 LUC recognized that "there is substantial evidence on the record that a ‘common sense’ meaning of the word ‘potable’ could include the waters drawn from Wells 1 and 9," but concluded that "the specific language of Condition 10 excluded that common sense meaning and specifically excluded from ‘potability’ brackish water of a kind that is used elsewhere in these islands for drinking."
And in fact, the record reflects no threat to the public trust. The Resort included in the record its monthly periodic water reports from 1991 until 2016. During that time, the Water Commission has reviewed the periodic water reports and found no evidence of a threat to Lana‘i's water resources. In 2009, the Chair of the Lana‘i Water Advisory Committee requested that the Water Commission hold meetings concerning designation of the aquifer as a groundwater management area. The Water Commission responded that the Resort was complying with the requirements in its 1990 resubmittal and that the conditions for designation had not been met. The Commission has continued to review the monthly water reports, and has not found that Lana‘i's water is threatened. As the LUC found in the 2017 Order:
The Periodic Water Reports ... show no changes that pose a threat to the water resources on the island. The only change is that pumpage is now lower than it was when pineapple agricultural uses were ongoing.
The Resort also worked with the Lana‘i community to develop the Water Use Development Plan (WUDP). The Lana‘i WUDP incorporates the requirements in the CWRM resubmittal, including, for example, that the Water Commission monitor Lana‘i's sustainable yield, which is set at 6 million gallons per day, and will reinstitute designation proceedings if total pumpage exceeds 4.3 million gallons per day. A witness on behalf of the Water Commission confirmed that, based on his analysis of the periodic reports, the present use of water did not pose a threat to water resources on Lana‘i. Finally, as the LUC found, the Resort has improved water conservation measures at the golf course and has taken measures to develop the watershed, thereby increasing aquifer recharge. Based on the record in this case, the Resort has complied with the Water Commission requirements in Condition 10 established to protect the public trust, and no threat of harm to the public trust has been shown.
III. CONCLUSION
I concur in the judgment affirming the LUC's June 1, 2017 findings of fact/conclusions of law, decision & order. Because Condition 10, by its own terms, excludes water designated as "brackish" from its definition of "potable" water, and because this construction poses no public trust issues, I respectfully dissent in all other respects.
Two of my colleagues in the majority come to the same conclusion on other grounds. Since I respectfully disagree with their reasoning, I concur only in the judgment affirming the LUC's 2017 Order.
Prior to 2016, the decision of the LUC would have been appealed to the environmental court and to the ICA thereafter. S.B. 632, 27th Leg., Reg. Sess. (2014). But in 2016, jurisdiction was removed from the environmental court. H.B. 1581, 28th Leg., Reg. & Sec. Spec. Sess. (2016). The 2016 amendment to Hawaii Revised Statutes ("HRS") Chapter 91 established direct appeal from LUC orders to the Hawai‘i Supreme Court:
(a) Chapter 91 shall apply to every contested case arising under this chapter except where chapter 91 conflicts with this chapter, in which case this chapter shall apply. Any other law to the contrary notwithstanding, including chapter 91, any contested case under this chapter shall be appealed from a final decision and order or a preliminary ruling that is of the nature defined by section 91-14(a) upon the record directly to the supreme court for final decision. Only a person aggrieved in a contested case proceeding provided for in this chapter may appeal from the final decision and order or preliminary ruling. For the purposes of this section, the term "person aggrieved" includes an agency that is a party to a contested case proceeding before that agency or another agency.
HRS § 205-19 (Supp. 2016).
DISSENTING OPINION AS TO PARTS III(E) AND IV BY WILSON, J.
The Decision of the State Land Use Commission ("LUC") in 2017 authorized—for the first time—the irrigation of golf courses on Lana‘i with water that is eligible for drinking as defined by county water quality standards. To do so, it defined all brackish water as non-potable—a definition that is without support in science, principles of public health, or precedent. The novel "brackish-means-non-potable" proposition removed the protection1 afforded to high-level potable groundwater by the LUC in its 1991 Findings of Fact, Conclusions of Law, and Decision and Order ("1991 Order") prohibiting the use of high-level aquifer ("HLA") drinking water for golf course irrigation. Despite overwhelming evidence to the contrary, the "brackish-means-non-potable" definition applied by the 2017 LUC established that all brackish water of the HLA with a chloride concentration heretofore legally potable is non-potable and available for golf course use.
The 2017 LUC erred in its failure to define the terms "potable" and "non-potable" in Condition 10 in accordance with their common sense meanings. The test to determine potability must take into consideration federal, state, and county laws that set standards for safe drinking water. Accordingly, I join Parts I-III(A-D) of the Majority opinion.
However, I disagree with the conclusion in Part III(E) of the Majority opinion that application of the wrong potability standard by the 2017 LUC was not an abuse of discretion. In my view, 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.2 Discretion is abused when it is exercised pursuant to an improper legal standard. Lana‘ians for Sensible Growth's ("LSG") right to due process guarantees it the opportunity to establish under the correct potability standard that Wells 1 and 9, contain potable water that cannot be used for golf course irrigation. LSG has never been provided the process it is due to present its case to the LUC pursuant to correct county water quality standards defining potability. Once granted its due process right to have the LUC apply the correct legal definition of potability, LSG would have the opportunity to prove that the 1996 LUC correctly concluded that potable water from Wells 1 and 9 was being used for golf course irrigation in violation of the LUC's 1991 Findings of Fact, Conclusions of Law, and Decision and Order ("1991 Order") prohibiting the use of HLA drinking water for golf course irrigation. Thus, I dissent from Parts III-E and IV of the Majority opinion and with the Chief Justice's concurring/dissenting opinion.
I. Background
In 1989, the Lana‘i Resorts, LLC ("Resort") petitioned the LUC for a land use district boundary amendment at Manele on the island of Lana‘i to change the land-use designation for land it sought to develop for an eighteen-hole golf course from rural and agricultural to urban. After granting a petition to intervene filed by LSG, and holding hearings, the LUC (hereinafter "1991 LUC") issued its 1991 Order granting the Resort's request. However, it did so based on conditions. Condition 10 of the 1991 Order prohibits the Resort from using potable water from the HLA to irrigate the golf course:
10. [The Resort] shall not utilize the potable water from the high-level groundwater aquifer for 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.
In other words, Condition 10 was specifically imposed by the 1991 LUC to prevent the use of potable drinking water for irrigation, requiring instead the use of "alternative non-potable sources of water[.]" In return for the benefit of receiving authorization to convert rural and agricultural land to urban land for a golf course, the Resort was required to assume the obligation of not using the water in the HLA that was potable.
The Resort constructed the proposed golf course and irrigated it with brackish water pumped from Wells 1 and 9 of the HLA. The Resort did not determine whether the brackish water was, in fact, an "alternative non-potable source[ ] of water"—rather than potable brackish water—before using the water to irrigate the golf course. On notice that the Resort was using water from Wells 1 and 9 for golf course irrigation possibly in violation of Condition 10, the LUC ("1996 LUC") issued an Order to Show Cause requesting that the Resort explain "why the property should not revert back to its former land use classification." In its 1996 Findings of Fact, Conclusions of Law, and Decision and Order ("1996 LUC Order of Violation"), the 1996 LUC sought to follow the intent of the 1991 LUC to protect the use of potable water in the HLA for public use as drinking water, rather than for private use on a golf course. The 1996 LUC found that the Resort violated Condition 10 and ordered the Resort to "immediately cease and desist any use of water from the high level aquifer for golf course irrigation requirements." The 1996 LUC reached this determination because it interpreted Condition 10 to preclude the use of all water from the HLA, which it assumed to be potable. It also recognized that the Resort had not performed a comprehensive test to determine whether the water from Wells 1 and 9 was potable or non-potable.
The Resort appealed the 1996 LUC Order of Violation to the Circuit Court of the Second Circuit ("circuit court"). The circuit court reversed the 1996 LUC Order of Violation, finding, inter alia, that the LUC's decision that the Resort "violated Condition 10 was arbitrary, capricious, and clearly erroneous." The record contains no explanation from the circuit court as to the basis of its finding. The result of the circuit court's finding was to free all water in Wells 1 and 9 to be used for golf course irrigation.
LSG and the 1996 LUC appealed to the Hawai‘i Supreme Court the circuit court's finding that all water from Wells 1 and 9 in the HLA could be used to irrigate the Resort's golf course. Lanai Co. v. Land Use Comm'n (Lana‘i I ), 105 Hawai‘i 296, 306, 97 P.3d 372, 382 (2004). The 1996 LUC contended that the Resort made inaccurate representations that Wells 1 and 9 were non-potable water sources. Id. The LUC maintained that, throughout the boundary amendment proceedings before the 1991 LUC, "the term ‘high level aquifer’ was used interchangeably with the term potable water," thus, according to the 1996 LUC, the 1991 LUC regarded the HLA as containing potable water. Id. Accordingly, the 1996 LUC interpreted the phrase "alternative, non-potable sources of water" in Condition 10 of the 1991 Order to mean water outside the HLA—thereby prohibiting the use of water in Wells 1 and 9 for golf course irrigation. Id. This court determined that the 1996 LUC failed to make "sufficient ‘findings or conclusions that would enable meaningful review’ " of whether the Resort used potable water for golf course irrigation in violation of Condition 10. Id. at 316, 97 P.3d at 392. The case was remanded to the circuit court on March 17, 2005,3 with directions to remand the case to the LUC to clarify its findings of facts and conduct further hearings, if necessary, to determine if the Resort violated Condition 10 by utilizing potable water from the HLA.4 Id. at 319, 97 P.3d at 395.
On remand, rather than determine whether the Resort used potable water in violation of Condition 10, the LUC ("2010 LUC") authorized—for the first time—all water with a chloride concentration exceeding 250 PPM, otherwise known as brackish water, to be used for golf course irrigation. The LUC held hearings on June 7 and 8, 2006 at which the Resort, the County of Maui, and the State of Hawai‘i Office of Planning presented testimony. Lanaians for Sensible Growth v. Lanai Resorts, LLC (Lana‘i II ), Nos. CAAP-13-0000314, CAAP-12-0001065, 2016 WL 1123383 at *2 (App. March 21, 2016) (mem.). On June 9, 2006, the day LSG was supposed to present testimony, the hearing was cancelled for lack of quorum. Id. at *8. Approximately one year later, the Resort filed a motion seeking to vacate the 1996 LUC Order of Violation and modify Condition 10 to allow the use of water with a chloride concentration exceeding 250 PPM for golf course irrigation. Id. at *3. The 2010 LUC granted the Resort's motion to modify Condition 10 and, in so doing, supplied a new definition of potable that declared all water with a chloride concentration exceeding 250 PPM to be nonpotable.5 Id. Because the chloride concentration in the water in Wells 1 and 9 surpassed 250 PPM, the water was deemed non-potable and available for golf course irrigation. See id.
LSG appealed the decision of the LUC to the circuit court, arguing that the LUC used unlawful procedures by depriving LSG of the opportunity to testify at the LUC hearings. Id. at *3, *7. The circuit court agreed with LSG and vacated the 2010 LUC's order. Id. at *3. It found that the LUC failed to abide by this court's mandate to determine the meaning of Condition 10, did not follow its procedures for contested cases, and failed to afford LSG a full and fair opportunity to present evidence and testimony at the hearings. Id. at *7. The Resort appealed to the Intermediate Court of Appeals ("ICA") which affirmed the circuit court's finding that the LUC used unlawful procedures by depriving LSG of an opportunity to participate in the hearings. Id. at *3, *7. The case was, once again, remanded to the LUC to determine whether the Resort violated Condition 10 by using potable water for irrigation. See id. at *9.
On remand from the ICA, and after holding hearings, the LUC ("2017 LUC") adopted the new definition of potable water that makes all brackish water in the HLA, including Wells 1 and 9, available for irrigation of the Manele Golf Course on Lana‘i. The definition supplied by the 2017 LUC in its June 1, 2017 Findings of Fact, Conclusions of Law, and Decision and Order ("2017 Order Releasing High Level Aquifer for Golf Course Irrigation") deems all brackish water non-potable and thus available for golf course use. The 2017 LUC recognized that by declaring all brackish water to be non-potable, it contradicted the "common sense meaning" of the word potable.6 Nonetheless, the 2017 LUC rejected the common sense meaning of potable and instead found that the 1991 LUC intended the phrase "alternative non-potable sources of water (e.g., brackish water[) ]" to mean that all brackish water is non-potable. On appeal to this court, LSG objects to the definition of potable adopted by the 2017 LUC that interprets Condition 10 to authorize the Resort to use all brackish water in the HLA, including Wells 1 and 9, for golf course irrigation. Before this court, LSG seeks the application of the "common sense" definition of potable water relied upon by the 1991 LUC—the definition applied by the 1991 LUC to prohibit the use of potable brackish water from Wells 1 and 9 for golf course use.7
II. Discussion
The phrase "shall instead develop and utilize only alternative non-potable sources of water (e.g., brackish water[) ]" contained in Condition 10 of the 1991 Order was intended to protect an important public trust resource—potable water for drinking—and prevent its use for golf course irrigation. During the district boundary amendment proceedings spanning 1989 to 1991, the LUC exercised its public trust duty to "conserve and protect" the potable water in the HLA and hold the water in trust for the benefit of the people of Hawai‘i. The 1991 LUC sought to fulfill this duty by imposing Condition 10, which indisputably prohibited the use of potable water to irrigate the Resort's private commercial golf course.
Hawai‘i Constitution article XI, section 1 provides:
For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawai‘i's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.
All public natural resources are held in trust by the State for the benefit of the people.
The purpose of Condition 10, as stated by the 1991 LUC in its 1991 Order, is to ensure that the Resort "not utilize the potable water from the high-level groundwater aquifer for golf course irrigation use, and ... instead develop and utilize only alternative non-potable sources of water[.]" Consistent with this purpose, the 1991 LUC provided an example of a non-potable alternative source when it listed in Condition 10 "brackish water" along with "sewage effluent." Notably, the 1991 LUC did not state in its 1991 Order that all brackish water could be used for golf course irrigation. Nonetheless, the 2017 LUC concluded that the phrase "e.g., brackish water" is meant to include all brackish water in the HLA, including water that would be considered "potable" under the "common sense" definition of potable drinking water. This supposition would not only render meaningless the purpose of Condition 10, which is to conserve potable water for drinking by the public, but would also ignore the fact that brackish water may be potable or non-potable. And, under this interpretation, Condition 10 would violate the LUC's public trust duty to protect potable brackish water on Lana‘i for use as drinking water and would violate the LUC's duty to "make reasonable precautionary presumptions or allowances in the public interest" in the face of scientific uncertainty. Waiahole I, 94 Hawai‘i at 159, 9 P.3d at 471.
A. Wells 1 and 9 of the HLA may contain potable brackish water under state, federal, and county law.
The plain meaning of potable water, as defined by the State of Hawai‘i Department of Health ("DOH"), does not exclude brackish water like that found in Wells 1 and 9. See Hawai‘i Administrative Rules ("HAR") § 11-21-2. DOH defines potable water as "water free from impurities in amounts sufficient to cause disease or harmful physiological effects." Id. Therefore, Wells 1 and 9 contain water that, under DOH regulations, may be potable although it is brackish.
The DOH's definition of potable water was the only legal definition of the term under the laws of the State of Hawai‘i and the County of Maui at the time the 1991 LUC adopted Condition 10.
Under DOH's Rules Relating to Public Water Systems, HAR §§ 11-20-4 to 11-20-7, and the National Primary Drinking Water Regulations ("primary standards") promulgated by the U.S. Environmental Protection Agency ("EPA"), 40 C.F.R. §§ 141.61 - .66 (2020), water is determined to be potable when it contains primary standard contaminants that are below maximum allowable limits. Maximum contaminant levels are based on the level "at which no known or anticipated adverse effect on the health of persons occur, and which allows an adequate margin of safety." 40 C.F.R. § 141.2 (2020) ; HAR § 11-20-2.
Examples of the types of contaminants regulated by HAR Ch. 11-20 and 40 C.F.R. § 141 include arsenic, asbestos, nitrate, nitrite, cyanide, and fluoride.
The former Director of Utilities of Lana‘i Water Company, Cliff Jamile, testified that Wells 1 and 9 of the HLA were tested for contaminants under the EPA's primary standards and the standards set forth in HAR Ch. 11-20. Wells 1 and 9 of the HLA were found to be contaminant-free:
The EPA's primary standards and HAR Ch. 11-20 do not specifically refer to "potable" water. However, the regulations are used to determine whether water is suitable for human consumption. 40 C.F.R. § 141.4 (2020) (regulating public water systems to provide water for "human consumption"); HAR § 11-20-2 (defining the public water system regulated by the DOH as "a system which provides water for human consumption").
[T]he EPA sets certain guidelines, sets certain requirements that we have to comply with, and that is the first stage contaminant
list in there. There must be about 25 to 30 contaminant[s] that we have to test for .... So we send those to the lab ... and the lab runs those test[s] exactly as they are supposed to do in accordance with the EPA's requirements and test methods. And so far as I know, well I do know for sure that wells #1, 9, and 14 were tested and no contaminants were found present in the water.
Having found the water in Wells 1 and 9 free of contaminants, Jamile established a significant condition of potability. William Meyer, retired hydrologist for the U.S. Geological Survey, echoed Cliff Jamile's testimony:
Q: Do you have any doubt that potable water is the primary constituent of the water being pumped from wells 1, 9, and 14?
A: Frankly, because there is no evidence that there is a contaminate in the water being pumped from those wells that exceeds U.S. EPA and the State of Hawai‘i standards for drinking water, all of the water being pumped is potable. The level of chlorides being recorded in those wells are irrelevant to that inquiry.
(Emphasis added.)
Thus, according to those experts’ testimony, the water in Wells 1 and 9 contained levels of primary standard contaminants that were not adverse to human health by federal and state regulatory standards. As noted, DOH defines potable water as "water free from impurities in amounts sufficient to cause disease or harmful physiological effects." HAR § 11-21-2. Therefore, Wells 1 and 9 may contain water that, under DOH regulations, is potable. Faced with a lack of evidence that Wells 1 and 9 contain primary standard contaminants that exceed the legally-enforceable limits to render the water non-potable, the Resort relies upon chloride content to argue that the water being used to irrigate the golf course is non-potable. In 1990, the Resort's environmental consultant, James Kumagai, testified that the chloride content in Wells 1 and 9 was 407 PPM and 500 to 600 PPM, respectively. Water with high chloride levels is considered "brackish;" it may have a salty taste, but the water is still "safe to drink" and is not "health threatening." United States Environmental Protection Agency, Secondary Drinking Water Standards: Guidance for Nuisance Chemicals, https://www.epa.gov/dwstandardsregulations/secondary-drinking-water-standards-guidance-nuisance-chemicals (last visited Jan. 7, 2020). The EPA's National Secondary Drinking Water Regulations ("secondary standards"), 40 C.F.R. § 143.3 (2020), identify water with a chloride level that exceeds 250 PPM as brackish. Id. No law imposes a hard limit on chloride concentrations in potable water. Because water with high chloride levels does not adversely affect human health, there are no limits for chloride concentration in drinking water under federal law, or Hawai‘i's state and county laws.
The groundwater hydrologic program manager for the State of Hawai‘i Commission on Water Resource Management, William Roy Hardy, testified that water with a chloride concentration between 250 and 17,000 PPM is considered "brackish." Notably, the chloride concentration of the water in Wells 1 and 9 is on the low end of brackishness as defined by Hardy.
Secondary standards are "reasonable goals" that assist state and federal governments in managing the aesthetic quality of water that is provided for human consumption in public water systems. 40 C.F.R. § 143.3 ; see also U.S. EPA, supra.
Nine months after the LUC imposed Condition 10 in the 1991 Order, Maui County enacted Maui County Code ("MCC") § 20.24.020 (1991), which defined "potable water" as having a maximum chloride concentration of 250 PPM—in direct contravention to state and federal law. The Resort relied on this erroneous definition to justify its use of water from the HLA. Maui County amended the ordinance in 2009 to reflect the fact that chloride concentration does not determine potability. See MCC § 14.08.020 (2009) (" ‘Potable water’ means water that meets the standards established by the department of health as suitable for cooking or drinking 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 nondomestic uses, regardless of whether it is rendered nonpotable through such activities including, but not limited to, mixing or blending with any source of nonpotable water, storage in ponds or reservoirs, transmission through ditch systems, or exceeding the established pump capacity for a groundwater well.")
Consistent with the fact that there are no legally-enforceable limits to regulate chloride concentration in potable water, testimony presented at the 2016 LUC hearings on remand establishes that the water in Wells 1 and 9 may be potable as defined by the general practices of the State of Hawai‘i and its counties. Representatives from DOH testified that it "would allow public water systems to provide water in excess of 250 [PPM] chlorides for domestic use" and "there are water systems that have served drinking water in excess of 250 [PPM]." Although some county officials testified that "county water departments generally limit chloride levels of water within their municipal system to less than 160 [PPM], or at most, under the EPA's secondary standard of 250 [PPM]," other county officials stated that counties typically "use water pumped at or above 250 [PPM] in their domestic water systems, blended into other water." Evidence was introduced that "potable wells on O‘ahu are producing water over 250 [PPM] chlorides." Dave Taylor, Director of the Department of Water Supply for Maui County, testified that Maui wells have likely produced water with over 250 PPM chlorides. Because the chloride levels in Wells 1 and 9 exceed 250 PPM, it is brackish; but this does not render the water non-potable under the EPA's secondary standards or state and county law, nor does it conflict with the general practice of the counties to provide potable water in excess of 250 PPM chlorides.
The conclusion that the water in Wells 1 and 9 may be potable is supported by additional findings of the LUC and the record. In its 2017 Order Releasing High Level Aquifer for Golf Course Irrigation, the LUC expressly recognized that "it is reasonable to conclude that the water from Wells 1 and 9 may be considered to be ‘potable.’ " Furthermore, in the thirty years that have elapsed since the original boundary amendment proceedings in 1989-1990, the Resort has made multiple attempts to modify Condition 10 to reflect the reality that it may be using potable brackish water to irrigate its golf course in violation of Condition 10. The Resort filed motions to modify Condition 10 in 1993 and 2007. The Resort's multiple attempts to modify Condition 10 to allow the use of potable brackish water for irrigation raises the question: if the Resort already possessed the right to use all potable as well as non-potable brackish water for irrigation pursuant to Condition 10, why would a modification be necessary? The logical answer is that the LUC did not grant the Resort the right to use potable brackish water for golf course irrigation under Condition 10 and, therefore, the Resort sought to modify Condition 10 to create this benefit. Thus, the Resort's action in seeking to amend Condition 10 contradicts the conclusions reached by the 2017 LUC and the Chief Justice's concurring/dissenting opinion that Condition 10 excludes the "common sense meaning" of potable and "specifically exclude[s] from ‘potability’ brackish water of a kind that is used elsewhere in these islands for drinking." Instead, the Resort's attempts to modify Condition 10 to include the use of brackish water for golf course irrigation signal an understanding that Condition 10, as drafted by the 1991 LUC, applied the common sense definition of potable water to protect brackish potable water in Wells 1 and 9 from use for golf course irrigation.
The 1993 request read in relevant part:
10. No potable groundwater from the high level aquifer will be used for golf course maintenance or operation (other than as water for human consumption and irrigation adjacent to the clubhouse and maintenance building). All irrigation of the golf course shall be through nonpotable water sources, including brackish water from the lower portion of the high level aquifer. Effective January l, 1994 and January l, 1995 the total amount of nonpotable water from said brackish water portion of the high level aquifer that may be used for irrigation of the golf course in the Manele project district shall not exceed an average of 800,000 gallons per day and 750,000 gallons per day, respectively, on an annualized basis.
(Emphasis added.) On August 9, 1995, the Resort filed an amendment to its 1993 motion for a modification requesting the following modification in relevant part:
10. Effective January 1, 1995 no potable water drawn from the high level aquifer may be used for irrigation of the golf course, driving range and other associated landscaping. The total amount of nonpotable water drawn from the high level aquifer that may be used for irrigation of the golf course, driving range and other associated landscaping shall not exceed an average of 650,000 gallons per day expressed as a moving annualized average using 13 - 28 day periods rather than 12 calendar months or such other reasonable withdrawal as may be determined by the Maui county council upon advice from its standing committee on water use.
The 2007 request sought to amend Condition 10 to state:
No potable water drawn from the high level aquifer may be used for irrigation of the golf course, driving range and other associated landscaping. The total amount of nonpotable water drawn from the high level aquifer that may be used for irrigation of the golf course, driving range and other associated landscaping shall not exceed an average of six hundred fifty thousand gallons per day expressed as a moving annualized average using thirteen to twenty-eight day periods rather than twelve calendar months or such other reasonable withdrawal as may be determined by the Maui County council upon advice from its standing committee on water use. "Potable water" means surface water or groundwater containing less than two hundred fifty milligrams per liter (mg/1) chlorides [ (brackish) ] and which can be disinfected to satisfy standards set forth in the State of Hawaii Department of Health rules chapter 20 entitled "potable water systems" and maximum contaminant level goals and national secondary drinking water contaminants set forth in 40 C.F.R. sections 141 and 143 (1990)[.]
(Emphasis added.)
B. The LUC has yet to comply with the remand instructions contained in our opinion in Lana‘i I.
The LUC has not yet complied with our 2004 remand instructions in Lana‘i I. It is undisputed that on remand in Lana‘i I, the LUC was to determine whether potable water from Wells 1 and 9 was being used for irrigation of the golf course. The 2017 LUC thereafter failed to do so because it applied an incorrect definition of potability that rendered all water in Wells 1 and 9 available for golf course irrigation. Our remand was based in part on testimony supporting the conclusion that potable water was being used from Wells 1 and 9 for irrigation of the golf course. Finding of fact 22 of the LUC's 1996 Order stated that "there is leakage from the high level potable water area to the low level brackish water area" which, as found by this court, implied "that LCI was using potable water[.]" Lana‘i I, 105 Hawai‘i at 316, 97 P.3d at 391. The chair of the State Water Commission also offered testimony at the 1993 LUC hearing that the "chlorides in Well 1 dropped from about 700 ppm to between 320 to 350 ppm" which implies that "at least half the water pumped from Well 1 is potable water." Id. And our remand was based in part on the concern that "assuming LCI's use is affecting potable water in the high level aquifer, the LUC did not indicate whether such an effect would qualify as ‘utiliz[ing] the potable water’ under Condition No. 10." Id.
Thus, even under the chloride-based definition of potability suggested by the concurrence, the evidence supports the conclusion potable water was in Well 1.
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As we concluded in Lana‘i I, notwithstanding the ample evidence in the record implying that potable water from Wells 1 and 9 was being used in violation of Condition 10, the LUC failed to render findings of fact and conclusions of law as to whether such potable water was being used for golf course irrigation. Our remand instructions, therefore, have yet to be complied with; LSG has not received from the LUC its duly ordered hearing to determine whether–pursuant to county water quality standards—Wells 1 and 9 contain potable water that is being used for golf course irrigation in violation of Condition 10 of the 1991 Order.
III. Conclusion
In 1991, the LUC exercised its public trust duty to "conserve and protect" potable water for the benefit of the people of Hawai‘i when it imposed Condition 10 to prohibit the use of potable water from Lana‘i's high level aquifer to irrigate a private commercial golf course. In so doing, the 1991 LUC applied the common sense definition of "potable," which incorporates EPA and DOH regulations, to include water that may be brackish. It also used the designation "e.g." to identify non-potable brackish water as one example of an "alternative non-potable source[ ] of water[.]" Incorrectly assuming "e.g." to mean "all," the LUC erroneously adopted the "brackish-means-non-potable" proposition to effectively allow all the water in Wells 1 and 9 to be used for golf course irrigation—regardless of whether the water is potable and brackish.
Respectfully, pursuant to the plain language of Condition 10, which prohibits the use of potable water for golf course irrigation and requires the use of "alternative nonpotable sources of water (e.g., brackish water[) ]", and the definition of potable water under federal, state, and county law, Condition 10 requires a determination of whether the water being used by the Resort from Wells 1 and 9 to irrigate its golf course contains potable or non-potable brackish water. To find that all water in Wells 1 and 9 is presently non-potable brackish water without such a determination vitiates the plain meaning of Condition 10 and violates the LUC's public trust duty to "conserve and protect" Lana‘i's limited drinking water resources for the benefit of the people of Hawai‘i.
When the 1991 LUC approved the change in land use designation of 138.577 acres of rural and agricultural land to urban use, the Resort committed to utilizing only non-potable water from the HLA to irrigate its golf course. In addition to the grant of its request for a land use change, the Resort was given the use of public water–as long as it was non-potable. For twenty-nine years, the Resort has received both benefits without a determination–as required by our previous remand instructions–of whether Wells 1 and 9 contain potable brackish water. Absent such a determination, the 2017 LUC's conclusion that the Resort did not violate Condition 10 by using potable brackish water from Wells 1 and 9 for golf course irrigation is error. Consistent with our remand order in Lana‘i I, LSG should receive a hearing before the LUC to determine whether potable brackish water from Wells 1 and 9—as defined by county water quality standards—is being used in violation of Condition 10 of the 1991 Order.