Members of Lanaians for Sensible Growth may be feeling like they’ve been sideswiped. Before they could take their turn arguing whether potable water had been improperly used to irrigate Castle and Cooke Resorts’ Manele golf course, the state Land Use Commission decided this past summer to entertain petitions that would essentially make their arguments moot.
In 1991, the LUC reclassified – from Agricultural and Rural to Urban – 139 acres owned at the time by Lana`i Resort Partners. The company was planning to build a golf course on the site, which was adjacent to the site of the future Manele Bay Hotel.
Condition 10 of the reclassification order prohibited the landowner, now Castle and Cooke Resorts, from using potable water from the island’s high-level groundwater aquifer to irrigate the golf course. Instead, the company was required to develop and use alternative, non-potable sources of water, e.g., brackish water or reclaimed sewage effluent.
Despite this condition, Lana`i Resort Partners used water pumped from wells that tap high-level ground water, although the water from the wells has higher chloride levels than what is usually present in water deemed potable. In 1993, believing that the company was not following condition 10, the LUC ordered the company to show cause why the reclassification should not be reversed.
It took three years, but in 1996, the LUC determined that the condition had, indeed, been violated and ordered the company to stop using high-level water on its golf course. Lana`i Resort affiliate Lana`i Company, Inc. (LCI), successfully appealed the decision to the Second Circuit Court, arguing that they had no choice but to use water from “non-potable, brackish” wells No.1 and 9.
The LUC and Lanaians for Sensible Growth (LSG), represented by the Native Hawaiian Legal Corporation, appealed to the Hawai`i Supreme Court. In 2004, the high court remanded the issue back to the LUC, ordering it to determine whether the company had been using potable water on the golf course.
On May 17, 2006, the LUC held a hearing on Lana`i on motions to resolve whether LCI, which merged with C&C in 2000, had in fact used potable water. At hearings in June, C&C, Maui County, and the state Office of Planning presented evidence and witnesses. (The Office of Planning is, by law, always a party to Land Use Commission redistricting decisions.)
According to the NHLC, “LSG was the only party that was not able to present its witnesses and evidence, including its water hydrology expert, Mr. William Meyer, who resides in Arizona.”
The hearings were later adjourned to allow for settlement discussions, which lasted from August 2006 to February 2007 but eventually failed. In May, the LUC decided to turn the hearings over to a hearing officer. But before they could resume, the Office of Planning and C&C filed petitions to modify condition 10 in such a way as to allow C&C to use on the golf course water from high-level sources so long as the chloride levels were greater than 250 mg/l, which Maui County has recently claimed is its standard for non-potable water that may be used for golf course irrigation.
C&C’s petition proposed limiting the use of non-potable, high-level water to an average of 650,000 gallons per day or other reasonable limit determined by the Maui County Council. The company also proposed that the LUC dissolve its 1996 cease-and-desist order.
The OP’s petition proposed that in the event the company violates any of Maui’s ordinances regulating golf courses, C&C must stop using the high-level source until chloride levels conform with county guidelines; report its test results to the LUC, OP, the state Commission on Water Resource Management, and the county Planning Department; and post those result on a website.
Also, the OP recommended that for five years, C&C hire an engineer to perform quarterly audits of chloride tests, well head water level measurements, reports of ground water use for each well on Lana`i, and reports of ground water use for the Manele Project District. Those audits would be given to the Lana`i Water Advisory Committee and be made available to the public via a website, newspaper or other acceptable medium.
Finally, the OP proposed interim conditions that would be in effect only until the county and the state Water Commission adopted a Water Use and Development Plan. Those included prohibiting the use of ground water to irrigate the golf course if ground water use exceeds 3.5 million gallons a day, and forbidding the company from imposing restrictions on residential use to come in under that standard. (The maximum sustainable yield of Lana`i’s high level aquifer is 6 mgd, and the maximum projected water demand for that aquifer is 4.5 mgd.)
Under the OP’s interim conditions, C&C would also have to analyze the efficiency of all wells on Lana`i and complete an audit of the transmission system by July 1, 2009.
In support of OP’s petition, deputy attorney general Bryan Yee acknowledged that the Supreme Court has tasked the LUC with defining the term ‘potable’ as it was used in its 1991 decision.
“Rather than engage in a backward-looking process, trying to interpret what was meant by individuals no longer with the LUC, the Office of Planning proposes that the LUC simply amend the Decision and Order with clear and specific requirements,” Yee told the commission.
While both the OP and C&C see their petitions as a just way of ending more than a decade of litigation, NHLC attorneys Alan Murakami and Anthony Quan, Jr., argue that the petitions defy the court’s order to determine whether potable water from the high-level aquifer was used for the golf course, and they violate accepted legal principles limiting parties to one opportunity to litigate aspects of a case so that inconsistent results and multiple suits are avoided.
“The LUC, having already commenced evidentiary hearings to clarify these points of concern by the Supreme Court, is obligated and bound to carry out and complete these hearings, instead of arbitrarily in midstream amending or modifying Condition 10,” they state in commission filings. “Further, LSG should be able to exercise its rights as a party to action to present witnesses, including its hydrology expert.”
Last month, the LUC was scheduled to take action on the various issues raised by the Lana`i Resort case, but deferred the matter pending further discussion with the parties involved. According to LUC executive director Anthony Ching, the commission will probably take up the case again at its January 10 meeting.
For further reading:
These articles, published in our February 1994 edition and available on our website, provide more background on the dispute over Lana`i high-level water.
— Teresa Dawson
Volume 18, Number 6 — December 2007