Sunday, March 18, 2012

Letting A Stream Be A Stream

The State Water Code provides for the Commission on Water Resource Management (Water Commission) to establish and administer a statewide instream use protection program.

Duties under this program include:
        Establishing instream flow standards on a stream-by-stream basis whenever necessary to protect the public interest in waters of the State
        Establishing interim instream flow standards
        Protecting stream channels from alteration whenever practicable to provide for fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses
        Establishing an instream flow program to protect, enhance and reestablish, where practicable, beneficial instream uses of water

Instream Flow Standard is “a quantity or flow of water or depth of water which is required to be present at a specific location in a stream system at certain specified times of the year to protect fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses.”

The technical language of the law is complicated; I simplify this to say that the instream flow standard allows a stream to be a stream.

Unfortunately, Hawai‘i’s do not have permanent IFS; our streams are monitored under Interim Instream Flow Standards (IIFS.)  Essentially this means that, years ago, the Water Commission allowed existing diversions to continue and whatever remained in the stream was the IIFS.

Lack of Instream Flow Standards has caused a number of litigations, Waiāhole being the most prominent.  The Waiāhole water case and others have taught us that we need to do things differently.

The Hawai‘i Supreme Court emphasized in the Waiāhole case that instream flow standards serve as the primary mechanism by which the Water Commission is to discharge its duty to protect and promote the entire range of public trust purposes dependent upon instream flows.

Under the Constitution, the State has an obligation to protect, control and regulate the use of Hawaii’s water resources for the benefit of its people.  In the Waiāhole case, the Supreme Court reaffirmed that the public trust doctrine applies to all water resources of the State.

The Court also identified three purposes or uses under the public trust doctrine: Maintenance of waters in their natural state (letting a steam be a stream;) Domestic water use (drinking water for you and me;) and Native Hawaiian traditional and customary rights.

Rather than react to the next litigation or crisis, we need to take proactive, comprehensive and collaborative approaches in developing instream flow standards for Hawai‘i’s stream systems.

While at DLNR, I Chaired the State Commission on Water Resource Management (the Water Commission.)  We worked on several programs to develop a better understanding of Hawai‘i’s 376 perennial streams.

These programs included: Statewide Watershed Coding System – providing a framework for inventorying of surface water resource information; Stream Diversion Database - providing information for all diversions statewide; Surface Water Information Management System – providing the informational foundation for instream flow standards; and Hawaii Stream Assessment through DLNR’s division on Aquatic Resources - the stream coding system.

The goal is to establish permanent instream flow standards for all streams across the state that are consistent and, to the extent practicable, based on scientific or measurable data, all in a manner that is understandable and transparent.  It is anticipated that this methodology will avoid future, lengthy litigation, as experienced in the past.

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