§174C-71 Protection of instream uses. The commission shall establish and administer a statewide instream use protection program. In carrying out this part, the commission shall cooperate with the United States government or any of its agencies, other state agencies, and the county governments and any of their agencies. In the performance of its duties the commission shall:

(1) Establish instream flow standards on a stream-by-stream basis whenever necessary to protect the public interest in waters of the State;

(A) The commission, on its own motion, may determine that the public interest in the waters of the State requires the establishment of an instream flow standard for streams;

(B) In acting upon the establishment of instream flow standards, the commission shall set forth in writing its conclusion that the public interest does or does not require, as is appropriate, an instream flow standard to be set for the stream, the reasons therefor, and the findings supporting the reasons;

(C) Each instream flow standard shall describe the flows necessary to protect the public interest in the particular stream. Flows shall be expressed in terms of variable flows of water necessary to protect adequately fishery, wildlife, recreational, aesthetic, scenic, or other beneficial instream uses in the stream in light of existing and potential water developments including the economic impact of restriction of such use;

(D) Establishment or modification of an instream flow standard shall be initiated by the commission by providing notice of its intention to set an instream flow standard in a newspaper of general circulation published in the vicinity of the stream in question, to the mayor of the appropriate county, and to persons who have previously requested such notice in writing;

(E) After giving notice of its intention to set an instream flow standard, the commission or other agencies in participation with the commission shall investigate the stream. During the process of this investigation, the commission shall consult with and consider the recommendations of the department of health, the aquatic biologist of the department of land and natural resources, the natural area reserves system commission, the University of Hawaii cooperative fishery unit, the United States Fish and Wildlife Service, the mayor of the county in which the stream is located, and other agencies having interest in or information on the stream, and may consult with and consider the recommendations of persons having interest in or information on the stream. In formulating the proposed standard, the commission shall weigh the importance of the present or potential instream values with the importance of the present or potential uses of water from the stream for noninstream purposes, including the economic impact of restriction of such uses. In order to avoid or minimize the impact on existing uses of preserving, enhancing, or restoring instream values, the commission shall consider physical solutions, including water exchanges, modifications of project operations, changes in points of diversion, changes in time and rate of diversion, uses of water from alternative sources, or any other solution;

(F) Before adoption of an instream flow standard or modification of an established instream flow standard, the commission shall give notice and hold a hearing on its proposed standard or modification;

(2) Establish interim instream flow standards;

(A) Any person with the proper standing may petition the commission to adopt an interim instream flow standard for streams in order to protect the public interest pending the establishment of a permanent instream flow standard;

(B) Any interim instream flow standard adopted under this section shall terminate upon the establishment of a permanent instream flow standard for the stream on which the interim standards were adopted;

(C) A petition to adopt an interim instream flow standard under this section shall set forth data and information concerning the need to protect and conserve beneficial instream uses of water and any other relevant and reasonable information required by the commission;

(D) In considering a petition to adopt an interim instream flow standard, the commission shall weigh the importance of the present or potential instream values with the importance of the present or potential uses of water for noninstream purposes, including the economic impact of restricting such uses;

(E) The commission shall grant or reject a petition to adopt an interim instream flow standard under this section within one hundred eighty days of the date the petition is filed. The one hundred eighty days may be extended a maximum of one hundred eighty days at the request of the petitioner and subject to the approval of the commission;

(F) Interim instream flow standards may be adopted on a stream-by-stream basis or may consist of a general instream flow standard applicable to all streams within a specified area;

(3) Protect stream channels from alteration whenever practicable to provide for fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses;

(A) The commission shall require persons to obtain a permit from the commission prior to undertaking a stream channel alteration; provided that routine streambed and drainageway maintenance activities and maintenance of existing facilities are exempt from obtaining a permit;

(B) Projects which have commenced construction or projects reviewed and approved by the appropriate federal, state, or county agency prior to July 1, 1987, shall not be affected by this part;

(C) The commission shall establish guidelines for processing and considering applications for stream channel alterations consistent with section 174C-93;

(D) The commission shall require filing fees by users to accompany each application for stream channel alteration;

(4) Establish an instream flow program to protect, enhance, and reestablish, where practicable, beneficial instream uses of water. The commission shall conduct investigations and collect instream flow data including fishing, wildlife, aesthetic, recreational, water quality, and ecological information and basic streamflow characteristics necessary for determining instream flow requirements.

The commission shall implement its instream flow standards when disposing of water from state watersheds, including that removed by wells or tunnels where they may affect stream flow, and when regulating use of lands and waters within the state conservation district, including water development. [L 1987, c 45, pt of §2; am L 1988, c 276, §2]

Law Journals and Reviews

The Public Trust Doctrine: Some Jurisprudential Variations and Their Implications. 38 UH L. Rev. 261 (2016).

Case Notes

Commission's designation of water otherwise available for instream purposes as a "nonpermitted ground water buffer" that the commission could use to satisfy future permit applications without amending the interim instream flow standards for windward streams was not authorized by the code, offended the public trust, and the spirit of the instream use protection scheme. 94 H. 97, 9 P.3d 409.

In requiring the commission to establish instream flow standards at an early planning stage, the code contemplates the designation of the standards based not only on scientifically proven facts, but also on future predictions, generalized assumptions, and policy judgments; thus neither the Hawaii constitution nor the code constrains the commission to wait for full scientific certainty in fulfilling its duty towards the public interest in minimum instream flows. 94 H. 97, 9 P.3d 409.

Petitions for interim instream flow standard amendments are not among the water use permit applications "competing" under §174C-54; this section, relating to instream use protection, operates independently of the procedures for water use regulation outlined in part IV. 94 H. 97, 9 P.3d 409.

The code allows the amendment of interim instream flow standards. 94 H. 97, 9 P.3d 409.

Commission erred in its consideration of alternative water sources for the fields and in its calculation of diverting parties’ acreage and reasonable system losses where it: (1) went beyond taking judicial notice under HRE rule 201 of facts reported in the newspapers and improperly predicted the impact of those facts on the sugar company’s water supply; (2) permitted the company to include marginal farm lands in its acreage; (3) assumed that companies’ system losses could be halved; and (4) made its decision regarding a well as an alternative source based on cost while acknowledging it did not have the data to analyze the cost. 128 H. 228, 287 P.3d 129 (2012).

Commission erred in its consideration of viable alternatives to diverting the Maui stream waters for irrigation where, based solely on the fact that the county currently had no existing infrastructure to deliver the recycled wastewater to the sugar company’s fields, it concluded that the practicability of using recycled wastewater from the wastewater treatment plant did not merit consideration; this decision did not evince "a level of openness, diligence, and foresight commensurate with the high priority these [public water] rights command under the laws of our state". 128 H. 228, 287 P.3d 129 (2012).

The Hawaii supreme court had appellate jurisdiction over, and petitioners had a due process right to a hearing and judicial review of the commission on water resource management’s (CWRM) interim instream flow standards (IIFS) determination where: (1) the analysis that the CWRM had to undertake in setting IIFS was complex and involved significant and thorough analysis and factfinding, taking into consideration the factors specified in paragraph (2)(D); and (2) the ramifications of an erroneous IIFS could offend the public trust, and was too important to deprive the parties of due process and judicial review. 128 H. 228, 287 P.3d 129 (2012).

Where the commission on water resource management (CWRM) did not explain in its findings of fact/conclusions of law (FOF/COL), and decision and order (D&O), its focus on Iao and Waikapu Streams’ limited reproductive potential for amphidromous species above the evidence of other instream uses, and failed to weigh evidence that the streams can support other instream uses as against noninstream uses, as required by paragraph (2)(D), the CWRM erred in not considering this evidence, and on remand, needed to undertake and articulate that analysis. 128 H. 228, 287 P.3d 129 (2012).