Waiahole Decision Part 4

*177 Three doctrines have been advanced by courts and text writers which bear more or less directly on this subject. One referred to in the argument of this case and in some of the books as "the common-law doctrine" is that an individual owner of a piece of land, who has the good fortune to sink successfully an artesian well on his [or her] land, is the absolute owner of all the water that naturally flows from the well or that can be drawn therefrom by any pump, however powerful, and that he [or she] may use the water as he [or she] pleases and may conduct it to supply lands and communities at any distance from his [or her] own piece or parcel of land and may even waste it. Another, sometimes called "the reasonable use doctrine," is that an individual owner of land possessing such a well may use all of the waters flowing from the well by nature or obtainable therefrom by pumping, provided the water is used on his [or her] own land only, but that he [or she] may so use it either for domestic purposes or for irrigation or for the maintenance of factories or other industrial purposes. Under this rule there is no limit to the quantity of water that may be used, provided it is used on the owner's land. The third is known as "the rule of correlative rights" and is to the effect that all of the owners of lands under which lies an artesian basin have rights to the waters of that basin; that each may use water therefrom as long as he [or she] does not injure thereby the rights of others and that in times when there is not sufficient water for all each will be limited to a reasonable share of the water. Under this third rule a diversion of water to lands other than that of origin might, perhaps, be permitted under some circumstances and not under others and certain larger uses, as for industrial purposes, might, perhaps, not be permitted on even the land of origin under some circumstances while being permitted under others.

Id. at 922-23 (emphasis added). After eschewing the "common-law rule" as "unsound" and inconsistent with the free-flowing nature of underground waters, the court adopted the "correlative rights rule," to the effect that:

Each [landowner] should so exercise his right as not to deprive others of their rights in whole or in part. In times of plenty greater freedom of use probably can be permitted and ordinarily would be permitted without question. In times of greater scarcity or of threatened scarcity or deterioration in quality of the waters, all would be required under this view to so conduct themselves in their use of the water as not to take more than their reasonable share.

Id. at 925. [FN90]

FN90. As this description indicates, the correlative right of an overlying landowner is "analogous to that of a riparian owner's right [of reasonable use] in a stream." Wright v. Goleta Water Dist., 174 Cal.App.3d 74, 219 Cal.Rptr. 740, 746 (1985).

Having determined the nature of plaintiff's rights to ground water, the court reversed the commission's denial of plaintiff's permit application for the construction of a new well. The police power, the court held, did not "justify, under the showing made in this case, the prohibition of the appellant's proposed well while at the same time permitting all existing wells to continue to be operated without diminution." Id. at 946.

This state continues to recognize the "correlative rights rule." See Haw. Const. art. XI, § 7 (referring to "correlative uses"); HRS § 174C- 27(a) (1993) (same); Reppun, 65 Haw. at 555-56 n. 16, 656 P.2d at 73 n. 16 (citing City Mill ). [FN91] As this court noted in Reppun, however, "groundwater rights have never been defined with exactness and the precise scope of those rights have always remained subject to development." 65 Haw. at 556 n. 16, 656 P.2d at 73 n. 16. In City Mill, the court only decided that the state could not arbitrarily prevent one landowner's use while allowing other landowners' uses freely to continue and saw "no necessity, therefore, of stating with exactness the precise principles which should govern the admeasurement *178 of the share of each [land]owner." 30 Haw. at 933.

FN91. Based on the facts of City Mill, WWCA and the City argue that correlative rights only encompass use for domestic purposes. We find no reason or precedent for such a limitation on these rights.

As a preliminary matter, we affirm the Commission's conclusion that the rule of correlative rights applies to all ground waters of the state. COLs at 29. [FN92] As the Commission observed, although the facts of City Mill involved "artesian" waters specifically, the decision offers no sound basis for distinguishing "artesian" water from any other category of ground water, including the dike-impounded "percolating" waters involved in this case. [FN93] Modern hydrology has erased the traditional distinctions among ground water categories. See Tarlock, supra, § 4:5. Present knowledge and necessity have also compelled states to abandon the "absolute dominion" or "common law" rule, which imposed no limitation on a landowner to drain "percolating" water to the injury of his or her neighbors. See id. § § 4:7 to 4:18; City Mill, 30 Haw. at 926-33 (recognizing the general trend away from the rule of absolute ownership). The City Mill court avoided the issue, stating that the common law rule "may, or it may not, be applicable to waters merely oozing in or seeping through soil." 30 Haw. at 924. Presented with it here, we adopt the correlative rights rule in City Mill in relation to all the ground water resources of our state. To the extent that previous cases may be construed as following the "absolute dominion rule" for certain ground water categories, see Davis v. Afong, 5 Haw. 216, 222-23 (1884); Wong Leong v. Irwin, 10 Haw. 265, 270 (1896), they are hereby overruled.

FN92. None of the parties dispute this conclusion.

FN93. Ground water was traditionally classified as either "artesian," "percolating," or "underground watercourses." See Tarlock, supra, § 4:5. "Percolating" referred to diffuse water not flowing in any defined watercourse, see Earl F. Murphy, Quantitative Ground Water Law, in 3 Water Rights § 20.07(b)(1), and "artesian" referred to water confined under pressure, see Tarlock, supra, § 4:3. Today, all diffuse waters are known as "vadose" water, or water in the "vadose zone," and "artesian" denotes but one subset of a general category of water bodies known as "aquifers." See Murphy, supra, § 20.07(b)(1), at 101.

Turning to the instant case, we note that Castle and KSBE's "correlative rights" claims exceed the scope of such rights at common law. Castle asserts a right to use ground water drawn from its windward lands on distant leeward lands. Correlative rights, however, extend only to uses on lands overlying the water source. See Katz v. Walkinshaw, 141 Cal. 116, 74 P. 766, 772 (1903). Parties transporting water to distant lands are deemed mere "appropriators," subordinate in right to overlying landowners. See id.; Wright, 219 Cal.Rptr. at 749; Tarlock, supra, § 4:14. Castle can thus claim no "correlative rights" in this case.

As for KSBE, the correlative rights rule grants overlying landowners a right only to such water as necessary for reasonable use. See Katz, 74 P. at 772; City Mill, 30 Haw. at 932 ("[E]ach landowner is restricted to a reasonable exercise of his [or her] own rights and a reasonable use of his [or her] own property, in view of the similar rights of others." (quoting Meeker v. City of East Orange, 77 N.J.L. 623, 74 A. 379, 380 (1909))). Until overlying landowners develop an actual need to use ground water, nonoverlying parties may use any available "surplus." See Katz, 74 P. at 772; Wright, 219 Cal.Rptr. at 747. In this case, KSBE was asserting correlative rights to use water for landscaping purposes prior to obtaining the necessary land use approvals for its proposed development. The Commission thus properly denied KSBE's application as premature, without addressing the reasonableness of KSBE's proposed use.

Even apart from the correlative rights Castle and KSBE may have at common law, however, the Water Code establishes a different order of priority that governs this case. As currently structured, the Code establishes a "bifurcated system of water rights." Ko'olau Agricultural, 83 Hawai'i at 491, 927 P.2d at 1374. "In [water management areas], the permitting provisions of the Code prevail; water rights in non-designated areas are governed by the common law." Id. In this case, the lands from which Castle and KSBE seek ground water lie in ground water management areas. Any determination of their rights, therefore, *179 must proceed according to the relevant Code provisions, rather than the common law.

Article I, section 7 of the Hawai'i Constitution mandates that the Commission "assur[e] appurtenant rights and existing correlative and riparian uses." (Emphases added.) The legislature preserved this distinction in the Code. HRS § 174C-27, for example, provides that the existing usage validated in certificates issued by the Commission "shall be recognized by the commission in resolving claims relating to existing water rights and uses including appurtenant rights, riparian and correlative use." (Emphases added.)

HRS § 174C-63 states in relevant part: "Appurtenant rights are preserved. Nothing in this part shall be construed to deny the exercise of an appurtenant right by the holder at any time. A permit for water use based on an existing appurtenant right shall be issued upon application." See also HRS § 174C- 101(d) ("The appurtenant water rights of kuleana and taro lands, along with those traditional and customary rights assured in this section, shall not be diminished or extinguished by a failure to apply for or receive a permit under this chapter."). The Code contains no comparable provisions preserving riparian and correlative "rights." HRS § 174C-50(b) requires the Commission to issue permits for existing uses upon compliance with the proper procedures, see supra Part III.F.4.a (definition of "existing use"), provided that they are reasonable and beneficial. HRS § 174C-49(a)(3) conditions permits for "new" uses on the applicant showing that the use "will not interfere with any existing legal use of water." (Emphasis added.) When existing uses are "competing," however, the Code grants the Commission discretion, after a hearing, "to determine the quantity of water that may be consumed and the conditions to be imposed on each existing use." HRS § 174C-50(h).

Finally, although the common law rules of riparian and correlative rights impose certain restrictions on the export of water out of the watershed or to nonoverlying lands, the Code expressly provides:

The common law of the State to the contrary notwithstanding, the commission shall allow the holder of a use permit to transport and use surface or ground water beyond overlying land or outside the watershed from which it is taken if the commission determines that such transport and use are consistent with the public interest and the general plans and land use policies of the State and counties.

The foregoing provisions, therefore, reflect the legislative purpose of substituting, in designated management areas, a comprehensive regulatory system based on permits issued by the Commission in place of the common law regime of water rights administered by the courts. See generally Tarlock, supra, § § 3:89 to 3:100 (reviewing statutory modifications of common law riparian rights); infra note 98. Under the statutory permitting process, common law riparian and correlative rightholders receive priority 1) to the extent that they have established an "existing" use that a) comports with the common law rules and b) is reasonable and beneficial, but only 2) in relation to "new" uses. See Conf. Comm. Rep. No. 119, in 1987 House Journal, at 1069 ("Appurtenant rights may not be lost. Riparian and correlative uses are protected in designated areas." (emphases added)); Ko'olau Agricultural, 83 Hawai'i at 492, 927 P.2d at 1375 ("Existing uses are given preferences under the Code; that preference is lost, however, if the existing user fails to apply for a permit to continue the existing use.").

Neither Castle nor KSBE have established an existing legal correlative use in the present case. Castle and KSBE thus cannot claim any superior right or entitlement to a permit in relation to any other permit applicant under the Code. Consequently, the Commission's conclusions that "the ability to transport water away from its overlying land or area of origin is ... subject to other superior claims," COLs at 31, and that "[KSBE] has correlative rights to ground water underlying its land," id. at 30, have no bearing on the statutory permitting process and, in this case, amount to mere academic legal commentary.

To summarize, Castle and KSBE have not established any entitlement to water under *180 the traditional scope of the common law rule of correlative rights. In any event, under the controlling Code permitting provisions, Castle and KSBE have no superior "right" to a permit because they have not established any "existing" correlative uses.

5. KSBE's Takings Claim

Having reviewed the legal foundation of KSBE's claims of right, we address KSBE's allegation that the Commission has effected an unconstitutional "taking" of KSBE's property without just compensation [FN94] by denying KSBE's request to use Waiawa ground water and allocating that water to other leeward parties. First of all, we have held that the Commission properly denied KSBE's permit application for noncompliance with the statutory conditions, see supra Part III.H.1. KSBE's takings claim is thus entirely premature. See PASH, 79 Hawai'i at 452, 903 P.2d at 1273 (citing Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 185-86, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); Robinson v. Ariyoshi, 887 F.2d 215 (9th Cir.1989)).

FN94. The fifth amendment to the United States Constitution states in relevant part: "[N]or shall private property be taken for public use, without just compensation." Article I, section 20 of the Hawai'i Constitution states: "Private property shall not be taken or damaged for public use without just compensation."

But KSBE's argument suffers from more fundamental flaws. KSBE relies on City Mill in insisting that it "owns all of the ground water underlying its lands." That case, in fact, expressly rejected the notion of absolute ownership advanced by KSBE. See 30 Haw. at 923-24. Moreover, contrary to KSBE's reading, City Mill stands for the narrow proposition that, all things being equal, the government cannot entirely prevent one landowner from using ground water while allowing the uses of other landowners to continue unabated. [FN95] It does not preclude the regulation of water uses pursuant to a comprehensive system designed to ensure the highest and best use of the state's water resources, or grant landowners absolute ownership of underlying ground water free from such regulation. [FN96]

FN95. Statutes in other states, by contrast, have preserved the right to initiate domestic uses not unlike those denied the plaintiff in City Mill. See, e.g., Kan. Stat. Ann. § 42-311 (1993); N.D. Cent.Code § 61-04-02 (1995).

FN96. This court's recognition that water rights have financial value for eminent domain purposes, see, e.g., City & County of Honolulu v. Collins, 42 Haw. 199, 210-14 (1957), is inapposite to any analysis under either the police power or the public trust.

It is generally recognized that a simple private ownership model of property is conceptually incompatible with the actualities of natural watercourses. Rather, the variable and transient nature of the resource, as well as the necessity of preserving its purity and flow for others who are entitled to its use and enjoyment have led to water rights being uniformly regarded as usufruct [ua]ry and correlative in nature.

Robinson, 65 Haw. at 667, 658 P.2d at 305-06 (emphases added); see also City Mill, 30 Haw. at 925-27 (acknowledging the fluid and migratory nature of water in rejecting the rule of absolute ownership). In line with this understanding, the correlative rights rule of City Mill does not describe an unqualified right of ownership, but a limited, situational right of use contingent at all times on numerous variables. See id. at 931 (recognizing the "strong trend" away from the doctrine of "unlimited and irresponsible control" towards a rule considering various factors according to the maxim that one cannot exercise rights to the injury of others (quoting Gagnon v. French Lick Springs Hotel Co., 163 Ind. 687, 72 N.E. 849, 852 (1904))). KSBE emphasizes one aspect of the rule, the priority given to uses of overlying landowners. The rule, however, also includes an element of "reasonableness," which requires examination of the purpose, manner, and quantity of the proposed use both in the abstract and in relation to other uses, and with due regard to the available water supply and broad issues of public policy. See id. at 930 ("[E]ach landowner may use such water only in a reasonable manner and to a reasonable extent upon his [or her] own land and without undue interference with the rights of other landowners *181 to a like use and enjoyment ...." (quoting Patrick v. Smith, 75 Wash. 407, 134 P. 1076, 1079 (1913))). [FN97] Consequently, depending on the situation, a landowner could be entitled to certain uses of water but not others. Even established uses could later fall into disfavor. A severe shortage could foreclose use altogether. Usufructuary water rights, in sum, "have always been incomplete property rights, so the expectations of [rightholders] to the enjoyment of these rights are generally weaker than the expectation of the right to exploit the full value of dry land." Tarlock, supra, § 3:92, at 3-153. See also Model Water Code, supra, ch. 2 commentary at 165-68 (recognizing the uncertainty of riparian rights and the corresponding absence of a "property interest in those particular rules of distribution prevailing at any time"); Joseph L. Sax, The Constitution, Property Rights and the Future of Water Law, 61 U. Colo. L.Rev. 257, 267-69 (1990) [hereinafter Sax, Water Law ] (explaining how "change is the unchanging chronicle of water jurisprudence").

FN97. KSBE cites dictum in City Mill speculating that "[i]f a person or other entity should purchase all of a large tract of land under which an artesian basin exists, it would be easy to take the view, we think, that that owner of the land would be the sole owner of the water underneath it." Id. at 924-25. KSBE has not demonstrated that it is the sole owner of the entire ground water basin in question. In any event, to the extent that the foregoing dictum suggests that a landowner may claim absolute ownership of ground water, we overrule it as contrary to the rule of reasonableness, the basic understanding of usufructuary rights, and the public trust.

In the interest of protection and maximum beneficial use of water resources, numerous states have enacted legislation replacing common law rights, particularly those not yet converted into actual reasonable and beneficial use, with "administrative rights" based on permit systems. See Model Water Code, supra, ch. 1 commentary at 78-79 (identifying three advantages of permit systems over common law rights regimes: 1) the agency makes its decisions before disputes have erupted into litigation; 2) the agency makes its decisions on a comprehensive, rather than piecemeal, basis; and 3) agency decisionmakers are experts and base their decisions on long-range plans). [FN98] Pursuant to article XI, section 7 of its constitution, this state has followed suit. Courts in other jurisdictions have sustained such regulation against constitutional challenge. See Omernik v. State, 64 Wis.2d 6, 218 N.W.2d 734 (1974); Omernick [sic] v. Department of Natural Resources, 71 Wis.2d 370, 238 N.W.2d 114, cert. denied, 425 U.S. 941, 96 S.Ct. 1679, 48 L.Ed.2d 184 (1976); Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663 (Fla.), cert. denied, 444 U.S. 965, 100 S.Ct. 453, 62 L.Ed.2d 377 (1979); Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 638 P.2d 1324 (1981) (en banc), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2897, 73 L.Ed.2d 1310 (1982); Cherry v. Steiner, 543 F.Supp. 1270 (D.Ariz.1982), aff'd, 716 F.2d 687 (9th Cir.1983), cert. denied, 466 U.S. 931, 104 S.Ct. 1719, 80 L.Ed.2d 190 (1984). [FN99] They join many others *182 that have validated statutes taking the seemingly more substantial step of abolishing unexercised common law riparian or ground water rights in order to accommodate the development of private appropriative rights. [FN100]

FN98. Like the State Water Code, such statutes generally grant preferences or exemptions to uses in existence by a certain deadline, usually the effective date of the statute. See, e.g., Ala.Code § 9- 10B-20(a), (b), (d) (Supp.1999) (within 90 or 180 days of the promulgation of the implementing rules for certain public water systems, or Jan. 1, 1993 for certain irrigation uses); Conn. Gen.Stat. § 22a-368 (1999) (July 1, 1982); Fla. Stat. Ann. § § 373.226, (West Supp.2000) (April 25, 1972); Ga.Code Ann. § § 12-5-31(a)(3), 12-5-105(a) (1996) (July 1, 1988); Ind.Code Ann. § 14-25-3-11 (Burns 1995) (date of restricted use area designation); Iowa Code Ann. § 455B.265(2) (West Supp.1999) (July 1, 1985); Md.Code Ann., Envir. § 5-502(c) (Supp.1999) (July 1, 1988 for agricultural uses); Mass. Gen. Laws Ann. ch. 21G, § 7 (West 1994) (effective date of the implementing regulations); Miss.Code Ann. § 51- 3-5(2), (3) (1999) (April 1, 1985); N.J. Stat. Ann. § 58:1A-6 (West Supp.1999) (August 13, 1981); N.Y. Envtl. Conserv. Law § 15-1501 (McKinney 1997) (Sept. 1, 1979); N.C. Gen.Stat. § 143-215.16(e) (date of capacity use area designation) (1999); S.C.Code Ann. § 49-5-70(F)- (H) (Law Co-op. Supp.1999) (date of declaration of capacity use area); Va.Code Ann. § § 62.1-243 and 62.1-261 (Michie 1998) (July 1, 1989 for surface water, July 1, 1992 for ground water); Wis. Stat. Ann. § 30.18(6)(b) (West 1998) (Aug. 1, 1957).

FN99. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), which found a taking where regulation deprived a landowner of all economically beneficial use of his land, provides little guidance here. KSBE has not shown that the denial of its request for water from this particular source and for the specific use proposed, even if final for takings purposes, would deprive it of all economic use of its land. See Tequesta, 371 So.2d at 669-70 (holding that restriction on landowner's water use "deprived [owner] of no beneficial use of the land itself" and, thus, did not constitute a taking); see also Lucas, 505 U.S. at 1017 n. 7, 112 S.Ct. 2886 (relying on the "rich tradition of protection" of the "fee simple interest" in land at common law and on the state court's finding of a loss of all economic use of the land in deciding that a "total taking" had occurred).

FN100. See, e.g., In re Hood River, 114 Or. 112, 227 P. 1065 (1924), appeal dismissed, 273 U.S. 647, 47 S.Ct. 245, 71 L.Ed. 821 (1926); California-Oregon Power Co. v. Beaver Portland Cement Co., 73 F.2d 555 (9th Cir.1934), aff'd on other grounds, 295 U.S. 142, 55 S.Ct. 725, 79 L.Ed. 1356 (1935); Baumann v. Smrha, 145 F.Supp. 617 (D.Kan.), aff'd, 352 U.S. 863, 77 S.Ct. 96, 1 L.Ed.2d 73 (1956); Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (1962), appeal dismissed, 375 U.S. 7, 84 S.Ct. 46, 11 L.Ed.2d 38 (1963); Baeth v. Hoisveen, 157 N.W.2d 728 (N.D.1968); Knight v. Grimes, 80 S.D. 517, 127 N.W.2d 708 (1964); In re Deadman Creek Drainage Basin, 103 Wash.2d 686, 694 P.2d 1071 (1985); see also Connecticut v. Massachusetts, 282 U.S. 660, 670, 51 S.Ct. 286, 75 L.Ed. 602 (1931) ("[E]very State is free to change its laws governing riparian ownership and to permit the appropriation of flowing waters for such purposes as it may deem wise."). But see Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Bd., 855 P.2d 568 (Okla.1990).

The foregoing courts have primarily justified the disputed regulations based on the police power. See, e.g., Omernik, 218 N.W.2d at 743; Tequesta, 371 So.2d at 670; Knight, 127 N.W.2d at 711-14; California-Oregon Power, 73 F.2d at 567-69; cf. Hudson County Water Co. v. McCarter, 209 U.S. 349, 356, 28 S.Ct. 529, 52 L.Ed. 828 (1908) (averring that the public interest in substantially undiminished rivers is "omnipresent" and "fundamental" and that "private property ... cannot be supposed to have deeper roots"). While this rationale is compelling in itself, the Code rests on the further principle that the state holds all waters of the state in trust for the benefit of its people. As stated previously, the reserved sovereign prerogatives over the waters of the state precludes the assertion of vested rights to water contrary to public trust purposes. This restriction preceded the formation of property rights in this jurisdiction; in other words, the right to absolute ownership of water exclusive of the public trust never accompanied the "bundle of rights" conferred in the Māhele. See Robinson, 65 Haw. at 677, 658 P.2d at 312; see also PASH, 79 Hawai'i at 442-447, 903 P.2d at 1263-68; cf. California-Oregon Power, 295 U.S. 142, 55 S.Ct. 725, 79 L.Ed. 1356 (holding that federal land patents issued after the enactment of the Desert Land Act carried with them no common law water rights); State v. Valmont Plantations, 346 S.W.2d 853 (Tex.Civ.App.1961) (holding that Spanish and Mexican riparian land grants did not include appurtenant irrigation rights), aff'd, 163 Tex. 381, 355 S.W.2d 502 (1962). Even beyond the police power, therefore, the original limitation of the public trust defeats KSBE's claims of absolute entitlement to water. See PASH, 79 Hawai'i at 452, 903 P.2d at 1273 (acknowledging that "the government assuredly can assert a permanent easement that reflects a pre- existing limitation upon the landowner's title" (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028-29, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)) (internal quotation marks, ellipsis, and brackets omitted)); cf. Mississippi State Highway Comm'n v. Gilich, 609 So.2d 367, 375 (Miss.1992) (holding that landowners had no right to compensation with respect to beach land held in trust by the state for public use); Wilson v. Commonwealth, 31 Mass.App.Ct. 757, 583 N.E.2d 894, 901 (1992) (noting that, if the public trust were found to apply, "plaintiffs, from the outset, have had only qualified rights to their shoreland and have no reasonable investment- backed expectations under which to mount a taking challenge"), aff'd in part and rev'd in part, 413 Mass. 352, 597 N.E.2d 43 (1992); State v. Slotness, 289 Minn. 485, 185 N.W.2d 530, 533 (1971) ("Riparian rights ... are held subject to the stated public rights in navigable waters, and the mere exercise of those public rights does not constitute a taking of riparian property."). As such, neither the enactment of the Code nor the denial of *183 KSBE's permit application thereunder effected an unconstitutionaltaking. [FN101]

FN101. KSBE also alleges a taking of its "ali'i rights." See supra Part III.H.3. The withdrawal or limitation of delegated sovereign authority, however, does not amount to a taking of property. See, e.g., United States ex rel. Tennessee Valley Auth. v. Powelson, 319 U.S. 266, 276, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943) (holding that the grant of the sovereign power of eminent domain to a private party "is a mere revocable privilege for which a state cannot be required to make compensation").

6. Ankersmit's Testimony

KSBE finally contends that the Commission erred by refusing to qualify one of KSBE's witnesses, Barbara Ankersmit (Ankersmit), as an expert and by striking her testimony. At KSBE's request, Ankersmit had conducted a public opinion poll of approximately 1,600 adult O'ahu residents regarding the direction of future growth on O'ahu and the allocation of water from Waiāhole Ditch System. During the hearing, the Commission initially sustained an objection to Ankersmit's qualifications, allowing her to testify nonetheless about the survey, then struck her testimony in its entirety, stating that "this particular information is irrelevant."

We review determinations of expert qualifications under the abuse of discretion standard. See State v. Rodrigues, 67 Haw. 70, 73-74, 679 P.2d 615, 618 (1984). An abuse of discretion occurs when the decisionmaker "exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party." Bank of Hawaii v. Kunimoto, 91 Hawai'i 372, 387 984 P.2d 1198, 1213 (1999).

Hawai'i Rules of Evidence (HRE) Rule 702 (1993) provides for the qualification of an expert "by knowledge, skill, experience, training, or education." KSBE proffered Ankersmit as a "public opinion" expert. Ankersmit testified regarding her extensive experience in the field of public opinion polling, spanning 23 years and "over 2000" surveys for various private and government organizations. The objecting party presented no specific rebuttal to her qualifications. Based on the record, we hold that the Commission abused its discretion by declining to qualify Ankersmit as an expert.

We do not believe, however, that the Commission erred in excluding Ankersmit's testimony as irrelevant. We review evidentiary rulings concerning admissibility based on relevance under the right/wrong standard. See State v. Staley, 91 Hawai'i 275, 281, 982 P.2d 904, 910 (1999). KSBE asserts that the public opinion poll was relevant to whether its proposed water use was "consistent with the public interest," HRS § 174C-49(a)(4). Even assuming the accuracy of Ankersmit's findings, nothing in the constitution or Code identifies current public opinion as a relevant consideration in the comprehensive, long-term regulatory process implemented by the Commission. We agree with the Commission that a public opinion poll taken at random, without regard to the respondents' background or knowledge concerning the relevant issues, has no bearing on the Commission's constitutionally and statutorily appointed mission of comprehensive water resource planning and management. Cf. Kaiser Hawaii Kai Dev. Corp. v. City & County of Honolulu, 70 Haw. 480, 483-84, 777 P.2d 244, 246-47 (1989) (holding that the zoning enabling statute evinced legislative policy against land use zoning through the initiative process because "[z]oning by initiative is inconsistent with the goal of long range planning"). Accordingly, the Commission properly excluded Ankersmit's testimony from consideration in the hearing.

I. REQUIREMENT TO FUND STUDIES

Campbell Estate, joined by other leeward parties, (collectively, the leeward permittees) object to the requirement that they contribute to subsequent stream studies and monitoring activities. The relevant part of the Commission's decision reads:

The permittees on whose lands the water from the Waiahole Ditch system is used shall prepare, or contract for, a portion of the studies and monitoring activities resulting from this order (see, for example, In re: Mono Lake, Decision 1631, State of California Water Resources Control Board, *184 9/20/94, page 211, ∂ 8e). Funding shall be based on the amount of water used and shall be on a pro rata basis. The Commission shall establish a committee to recommend a reasonable amount for the funding, and coordinate and set up the mechanism for the collection, accounting, and distribution of the funds. The committee shall submit its findings and recommendations to the Commission for approval within eight (8) months from the date the Final [D & O] is issued.

The leeward permittees maintain that the Code requires the Commission to fund the studies. The provisions they cite simply mandate that the Commission conduct various investigations, studies, and inventories. They do not command the Commission to finance these activities on its own, or prohibit it from ordering appropriate alternative sources of funding. See HRS § § 174C- 5(1), -31(c), -41(a), -43, -71(1)(E), -71(4) (1993 & Supp.1999).

HRS § 174C-31(j) mandates that the Commission "shall condition permits under Part IV of this chapter in such a manner as to protect instream flows." The Code includes numerous other references to permit conditions. See HRS § 174C-49(e) (1993) (stating that all permits shall be subject to the rights of the department of Hawaiian home lands "whether or not the condition is explicitly stated in the permit"); HRS § 174C-56 (1993) (requiring the Commission to conduct a comprehensive study of all issued permits once every twenty years to monitor compliance with permit conditions); HRS § 174C-57(a) (1993) (providing that "modification of one aspect or condition of a permit may be conditioned on the permittee's acceptance of changes in other aspects of the permit"); HRS § 174C- 58(2) (1993) (allowing the Commission to suspend or revoke a permit for "any willful violation of any condition of the permit"); HRS § 174C-59 (Supp.1999) (last paragraph) (stating that a transfer that "involves a change in any condition of the permit ... is also invalid and constitutes a ground for revocation"); HRS § 174C-62(f) (1993) (requiring notice to permittees of any change in permit conditions due to a declared water shortage). These provisions, expressly and by obvious implication, grant the Commission wide- ranging authority to condition water use permits in accordance with its mandate to protect and regulate water resources for the common good. Presumably, such authority encompasses the requirement that a permittee contribute to studies that will assist the Commission in determining the impact of the permitted use on the water source.

The leeward permittees assert, however, that this condition amounts to unconstitutional "regulatory leveraging" in violation of the fifth amendment to the United States Constitution and article I, section 20 of the Hawai'i Constitution, see supra note 94. As the basis of their claim, they cite Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), in which the United States Supreme Court invalidated a building permit condition requiring the dedication of a public access easement, where the condition lacked an "essential nexus" to the purpose of the underlying building regulations. See id. at 834-37, 107 S.Ct. 3141. See also Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (requiring "rough proportionality" between the development condition and the impact of the proposed development). Nollan and Dolan, however, dealt with the regulation of fee simple interests in real estate under the police power. This case, by contrast, involves the management of usufructuary interests in water, a state public trust resource to which no individual can claim exclusive right. [FN102] Hence, the leeward permitees' argued analogy between the instant funding requirement and the land *185 development exactions invalidated in Nollan and Dolan fails at the outset. See Sax, Water Law, supra, at 280 ("[A]n owner of a water right has a lesser property right than the landowner in Nollan. ... The state is not 'taking' something belonging to an owner, but is asserting a right it always held as a servitude burdening owners of water rights."). [FN103]

FN102. We need not address the additional question whether and to what degree Nollan and Dolan extend beyond land dedications to include monetary exactions such as those presently at issue. See, e.g., Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1578-79 & n. 21 (10th Cir.1995) (viewing Nollan and Dolan as an extension of the physical takings cases); Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir.1998) ("Assuming [Nollan and Dolan ] apply outside the context of physical invasions, a plaintiff must still show in the first [instance] that government imposition of the exaction would constitute a taking.").

FN103. Even if we were to apply Nollan 's "essential nexus" test, the disputed funding requirement would readily pass muster. Here, the funding requirement directly relates to the public interest in investigating and protecting instream uses and values. The leeward permittees' insistence that the Commission must "measure the extent of any proven or anticipated harmful effects of granting the permits" before imposing such a condition misses the point; it is precisely because the permittees have received allocations even while falling short in their burden of proof that the studies are necessary. The Commission, of course, has yet to determine the actual fee rate. We note, in any event, that Nollan and Dolan do not require the level of mathematical precision demanded by the leeward permittees.

The leeward permittees' contention that the funding requirement constitutes an illegal "tax" is closer to the point, but similarly unavailing. See Kentucky River Auth. v. City of Danville, 932 S.W.2d 374 (Ky.Ct.App.1996), cert. denied, 520 U.S. 1186, 117 S.Ct. 1469, 137 L.Ed.2d 682 (1997) (inquiring whether charge assessed by river authority for water use was an illegal tax or a legitimate user fee). We acknowledge that, while the Commission has the authority to condition permits on the payment of appropriate fees, it does not have any taxing power. See generally Haw. Const. art. VIII, section 3. In State v. Medeiros, 89 Hawai'i 361, 973 P.2d 736 (1999), we addressed the question whether a charge imposed by a governmental entity is a "fee" instead of a "tax." We developed therein a three-part test "analyz [ing] whether the charge (1) applies to the direct beneficiary of a particular service, (2) is allocated directly to defraying the costs of providing the service, and (3) is reasonably proportionate to the benefit received." Id. at 367, 973 P.2d at 742.

The leeward permittees assert that "it is not fair to require [them] to pay for studies which primarily determine the effects of the decision on the general public or the windward users." In other words, with respect to the first prong of the Medeiros test, they argue that the studies do not directly benefit them in a manner "not shared by other members of a society." Id. at 366, 973 P.2d at 741 (quoting National Cable Television Ass'n v. United States, 415 U.S. 336, 341, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974)). The leeward permittees fail to acknowledge, however, that the studies directly relate to their burden of proving that their uses are "reasonable-beneficial" and "consistent with the public interest," HRS § 174C-49(a). As previously discussed, the lack of any previous comprehensive studies precluded the permittees from proving, and the Commission from determining, the actual extent to which the diversions would sacrifice public values in the windward stream and estuary ecosystem. Rather than denying the permits for insufficient proof, the Commission decided to grant the permits with the condition that the permittees contribute to studies aimed at determining the effect of the diversions. The studies, therefore, "directly benefit" leeward permittees in two ways: not only by helping them to marshal their requisite proof, but also by allowing them exclusive use of public resources in the interim, despite the present absence of such proof. The public as a whole, to be sure, will also gain from the studies through enhanced knowledge and better informed regulation. Nevertheless, to the extent that the studies grant the leeward permittees benefits not shared by the public at large, perhaps even at the public's expense, we do not believe it unfair to require the permittees to provide a reasonable share of the costs.

The second prong of the Medeiros test is satisfied insofar as the Commission's decision provides that any contributions by the leeward permittees will help fund the studies. As for the last prong, we cannot determine at this time whether the funding requirement is "reasonably proportionate" to the benefits received by the permittees because the Commission has not yet settled how it will calculate the fees charged. The leeward permittees protest that "the fees to fund the studies are not set forth on a schedule *186 and not applied uniformly; rather the fees are to be imposed on an individual basis without any defined monetary limit." Their objections are premature. Certainly, the Commission's decision to measure the fees imposed on a pro rata basis according to amount of water used should answer many of their concerns. Cf. Kentucky River, 932 S.W.2d at 377 (upholding fee based on actual use of water in the regulated river basin). As for the remaining details, the Commission should adequately address them as it determines the final fee schedule based on the committee's recommendations and pursuant to the appropriate decisionmaking procedures. We observe, however, that the term "reasonably proportionate" describes a less exacting standard than that applicable to land use exactions. "[W]e do not demand precise equality between the value conferred and fee charged. To be valid, a fee need only bear a reasonable relationship to the cost of the services rendered by the agency." National Cable Television Ass'n v. FCC, 554 F.2d 1094, 1108 (D.C.Cir.1976) (emphasis in original). See also Massachusetts v. United States, 435 U.S. 444, 463 n. 19, 98 S.Ct. 1153, 55 L.Ed.2d 403 (1978) (requiring only a "fair approximation of the cost of benefits supplied").

In conclusion, the Commission has the general authority to condition the permits upon compliance with the instant funding requirement, which more properly falls under the category of a regulatory fee, rather than a land development exaction. Under the standard applicable to such fees, we hold that, as a general matter, the funding requirement does not constitute an illegal tax. We reserve final resolution of this question, however, pending the determination of the appropriate fee schedule by the Commission.

J. DOA/DLNR's MISCELLANEOUS OBJECTIONS

In its proposed decision, the Commission denied DOA's water use permit application seeking 0.75 mgd for the DOA's agricultural park "without prejudice to reappl[ication] when DOA can demonstrate that actual use will commence within a reasonable time frame." D & O at 10. DOA objected, seeking clarification regarding the meaning of "reasonable time frame." The final decision affirmed the Commission's initial ruling without the requested clarification. On appeal, DOA/DLNR contends that the Commission's failure to clarify its decision was arbitrary and capricious.

The Commission concluded that "[DOA]'s proposed use of water for an agricultural park is still in the planning stage and not yet certain enough to assure actual use within a reasonable time frame." COLs at 26. In short, DOA's application was premature. DOA/DLNR does not dispute this ruling, but simply protests that the lack of clarification "leaves DOA, as well as other prospective [applicants], in great uncertainty" because "no one will risk making a legal or financial commitment for an agricultural venture without the assurance that water will be available." DOA/DLNR fails to explain, however, how mere clarification as to the proper time frame for reapplication would lessen the uncertainty surrounding the ultimate availability of water. Even if the Commission advised DOA when exactly to reapply, the Commission would still have to decide at that later date whether the application fulfilled the statutory permit criteria.

We acknowledge the need for assurances of water availability in the development planning process. The Code specifically addresses this need, however, in providing for water reservations. The Commission did not rule on any reservation petitions in the instant proceeding, but only decided that it could not yet issue DOA a water use permit. DOA, again, does not challenge this determination, and we do not deem it erroneous. Along the same lines, we cannot say that the Commission's denial of DOA's request for clarification as to the "reasonable time frame" for reapplication was arbitrary and capricious.

DOA/DLNR also contests the Commission's decision to set aside 1.58 mgd as a "proposed agricultural reservation," pending confirmation pursuant to the rulemaking procedures mandated by the Code, see HRS § 174C- 49(d) (1993); supra note 3. According to DOA/DLNR, the Commission lacks the authority to designate a specified amount of water as a proposed reservation.

*187 DOA/DLNR's objection is unfounded. The proposed reservation, as its name indicates, merely offers a suggested amount, contingent on proper approval through rulemaking. The Commission is not bound by this proposal. In this case, even as it ruled on the water use permit applications and petitions to amend the interim standard for windward streams, the Commission could anticipate the need to address the already pending petitions for reservations. By earmarking an estimated amount of water required in the subsequent proceedings, the Commission provided specific notice of its proposal for further diversions for agricultural use in the near future. See generally HRS § 91-3(a)(1)(B) (requiring the agency, prior to the hearing, to make available the proposed rule to be adopted). No error resulted from such action.

K. THE CITY'S MISCELLANEOUS OBJECTIONS

The City takes issue with the discussion in the Commission's final decision concerning the City's future water needs. The City first alleges that the Commission erroneously foreclosed the City from using Waiāhole Ditch water in the future where "no notice was given that the City's future use ... would be considered and [the Commission] expressly precluded the City from presenting evidence on that issue." To begin, the City does not mention or contest the Commission's denial of the City's petition for a water reservation on grounds of untimeliness. The City, moreover, fails to point to a single adverse evidentiary ruling by the Commission. The Commission, in fact, granted the City ample opportunity during the hearing to present evidence on its future water demands. [FN104]

FN104. The City also argues that the Commission failed to consider the economic impact of stream restoration on potential municipal water uses. Nothing in the record or the Commission's decision substantiates this claim.

In any event, the City overstates the Commission's ruling. The portion of the decision contested by the City reads as follows:

At least for the near term, water quantities in excess of the amended interim instream flow standard and subject to the conditions affecting supplemental flows are available at the present time to satisfy water use permit applicants for those existing and future offstream uses identified in the [decision]....

This determination does not mean that the [City]'s projected growth demands can be satisfied from Wai[ā]hole Ditch water; rather the [City]'s projected needs will require even greater analysis. The evidence presented in this case indicates that by the year 2020, water demand for Oahu's projected growth (an additional 90 mgd) will exceed the island's estimated remaining ground water supply (76 mgd) by at least 14 mgd.

COLs at 23 (emphases added). Contrary to the City's reading, this discussion suggests no prospective bar to the City's use of Waiāhole Ditch water. Rather, it simply states the inescapable reality that, in times of scarcity and competition, no one, be it the City or any other potential user, can expect to demand water in such quantities and from such sources as it sees fit.

The City apparently rejects even this latter proposition, however, inasmuch as it also opposes the requirement that it "prioritize" its future demands. The relevant portion of the Commission's decision states:

As competition for water resources increases, the analysis of both the public interest and of reasonableness must become both more rigorous and affirmative. The counties will be required to articulate their land use priorities with greater specificity. For example, even at the present time, there is more land zoned for various uses than available water to supply those proposed uses. Thus, it is not sufficient to merely conclude that a particular parcel of land is properly zoned and that the use is "beneficial." That minimal conclusion may be inadequate to resolve situations in which competitive demand exceeds supply. Further analysis of public interest criteria relevant to water (e.g., conservation, alternative uses, comparative public costs and benefits) will be needed.

*188 Id. at 25 (emphasis added). Another portion of the decision states:

The Commission concludes that all of the proposed water use permit applicants have or propose uses that are "consistent with county land use plans and policies" except [KSBE] as noted above. While these applications are all "consistent" with such land use plans and policies, the lack of priority among the county plans and policies only provides a minimal standard by which to judge applications.

Id. at 27 (emphasis added).

The City asserts that requiring the counties to designate priorities among proposed uses usurps their land use planning and zoning authority. The Water Code expressly reserves the counties' authority with respect to land use planning and policy. The Code's "declaration of policy" states: "The state water code shall be liberally interpreted and applied in a manner which conforms with intentions and plans of the counties in terms of land use planning," HRS § 174C-2(e). HRS § 174C-4 (1993) further provides: "Nothing in this chapter to the contrary shall restrict the planning or zoning power of any county under [HRS] chapter 46." See also HRS § 46- 4(a) (1993) (stating that the counties' powers "shall be liberally construed in favor of the county exercising them").

The City nonetheless fails to explain how any aspect of the Commission's decision actually interfered with the City's planning function. Insofar as the City formulated its present plans while OSCo was still using Waiāhole Ditch water, it can hardly claim that the plans depend on the availability of this water. More fundamentally, we reject the City's suggestion that the Commission will illegally "restrict" the City's land use planning authority unless it accedes to any and all of the City's water demands. Such an expansive view of the counties' powers runs headlong into the express constitutional and statutory designation of the Commission as the final authority over matters of water use planning and regulation. See Haw. Const. art. I, § 7; HRS § 174C-7(a).

In alleging that the Commission imposed a "directive" to prioritize uses on the counties, the City misapprehends the Commission's position. The Commission has consistently acknowledged on appeal that it has neither the authority nor the inclination to force any such action by the City and that its discussion of priorities "is, in fact, a request for [the City's] help." As the Commission observed in its decision, the existing water supply is already insufficient to accommodate the land uses planned and zoned by the City. Thus, whether the City accepts it or not, this shortfall will compel the Commission to prioritize among proposed uses in making ultimate choices among them. Indeed, the City itself must, as a matter of sound planning policy, actively develop integrated water use plans addressing the contingencies arising from the limitations in supply, see, e.g., HRS § 174C-31(d). Such a process, if properly undertaken, will necessarily entail prioritizing among competing uses. [FN105] The City's objections, therefore, not only contradict the Code, but also disregard the need for priorities in managing any scarce resource. See, e.g., HRS § § 174C-54 (competing applications); HRS § 174C-62(a) (1993) (requiring Commission to formulate plan for periods of water shortage, including a system of permit *189 classification). [FN106]

FN105. The Commission's decision includes an excellent description of this planning process:

The Commission believes that an integrated water resource plan must be developed in order to prepare for Oahu's water future. This plan must address how we will meet water demand given our dwindling supply and must prioritize competing demands. The plan would construct various planning scenarios to help decision-makers incorporate uncertainties, environmental externalities, and community needs into decision-making. The scenarios would assess ranges of population projections and commensurate water demands. An integrated water resource plan encompasses the concept of least-cost planning and considers all types of resources equally: new supply, conservation, reclaimed water, alternative rate structures, as well as other demand management methods. The planning process would assess and balance competing needs such as urban, agricultural, appurtenant rights, traditional and customary gathering rights, Hawaiian Home Lands rights, and stream protection, and set priorities for allocation decisions.

FN106. The City wrongly alleges that the Commission seeks to institute a system of "fixed priorities" between uses contrary to the public trust and the Code. The Commission does not demand a rigid hierarchy of uses applicable in any situation, but merely acknowledges that, in future cases involving the Waiāhole Ditch System, it will be required to deny certain uses in favor of others and, thus, will need to prioritize among proposed uses.

The Code contemplates coordination, rather than conflict, between the Commission and the counties. HRS § 174C-49(a)(6), for example, requires that water use permits issued by the Commission be "consistent with county land use plans and policies," ensuring consistency between water and land uses. Both the water use planning and instream use protection provisions mandate cooperation between the Commission and the counties. See HRS § 174C- 31(d) ( "the commission in coordination with the counties ... shall formulate an integrated coordinated program for the protection, conservation, and management of the waters in each county"); HRS § 174C-71 ("In carrying out this part, the commission shall cooperate with ... the county governments and any of their agencies."). The objectives of the Commission and the counties will not always converge. To the extent that their respective functions and duties permit, however, the Commission and counties should be seeking common ground. In this regard, we agree with the Commission that its prioritizing requirement is not a threat to the City's authority, but, rather, is a call for cooperation and mutual accommodation in keeping with the spirit of the Code. So understood, the City's allegation of error lacks merit.

In the introduction to its decision and order, the Commission projected that, "by the year 2020, water demand for projected growth of Oahu will exceed the remaining ground-water resources on the island." Id. at 1. This forecast underscores the urgent need for planning and preparation by the Commission and the counties before more serious complications develop. The constitutional framers and thelegislature designed the Commission as an instrument for judicious planning and regulation, rather than crisis management. [FN107] The Commission's decision reflects the considerable time and attention it devoted to this case; we commend its efforts. But much more work lies in the critical years ahead if the Commission is to realize its constitutionally and statutorily mandated purpose.

FN107. See, e.g., Stand. Comm. Rep. No. 77, in 1 Proceedings, at 688 ("[The public trust] concept implies not only the power to protect the resources but the responsibility to do so long before any crisis develops."); Stand. Comm. Rep. No. 348, in 1987 House Journal, at 1262- 63 ("[Y]our Committee is of the opinion that the water code should serve as a tool and an incentive for planning the wise use of Hawaii's water resources, rather than as a water crisis and shortage management mechanism.").

We have rendered our decision with utmost care, balancing due deference to the Commission's judgment with a level of scrutiny necessitated by the ultimate importance of these matters to the present and future generations of our state. For the reasons stated in this opinion, we vacate in part the Commission's decision and remand for additional findings and conclusions, with further hearings if necessary, consistent with this opinion, regarding the following: 1) the designation of an interim instream flow standard for windward streams based on the best information available, as well as the specific apportionment of any flows allocated or otherwise released to the windward streams, see supra Part III.D.3; 2) the merits of the petition to amend the interim standard for Waikāne Stream, see supra Part III.D.4; 3) the actual need for 2,500 gallons per acre per day over all acres in diversified agriculture, see supra Part III.F.2; 4) the actual needs of Field Nos. 146 and 166 (ICI Seeds), see supra Part III.F.3.a, and Field Nos. 115, 116, 145, and 161 (Gentry and Cozzens), see supra Part III.F.3.b; 5) the practicability of Campbell Estate and PMI using alternative ground water sources, see supra Parts III.F.3.c & III.F.4.d; 6) practicable measures to mitigate the impact of variable offstream demand on the streams, see supra Part III.F.5; and 7) the merits of the permit application for ditch "system losses," see supra Part III.G. *190 We affirm all other aspects of the Commission's decision not otherwise addressed in this opinion. [FN108]

FN108. The dissent proposes a revolutionary theory of the public trust doctrine, in which the trust amounts to nothing more than what the present majority says it is, or in other words, "the sum of competing social and economic interests of the individuals that compose the public." Dissent at 16. While this view may suit the purposes of the dissent, it finds no basis in law. The dissent can cite no precedent applying the public trust doctrine in the expansive manner that it advocates (the Washington cases cited proceeded from the premise that the doctrine did not apply; Washington courts have recognized the doctrine as a substantive protection where applicable, see, e.g., Caminiti, supra; Weden, supra ). The reason undoubtedly lies in the obvious reality that such an interpretation would render the public trust meaningless--a result that the dissent seems all too ready to embrace, notwithstanding the rich common law heritage in this jurisdiction and others recognizing the public trust as a concrete guarantee of public rights and the manifest intent of the framers of our constitution to adopt the basic understanding of the trust, where "disposition and use of these resources [are] done with procedural fairness, for purposes that are justifiable and with results that are consistent with the protection and perpetuation of the resource." Debates, in 2 Proceedings, at 866-67.

Equally astonishing is the dissent's attempt to conform the Code to its views. The dissent can accuse us of "rewriting the Code" only because it ignores so many of the Code's express provisions. See, e.g., HRS § 174C-2 (condition that "adequate provision shall be made" for various protective purposes); HRS § 174C-5(3) (mandating the establishment of an instream flow program to protect, enhance, and reestablish, where practicable, beneficial instream uses); HRS § 174C-71 (last paragraph) ("[t]he commission shall implement its instream flow standards when disposing water"); HRS § 174C-31(j) ("[t]he commission shall condition permits ... in such a manner as to protect instream flows and sustainable yields"); HRS § 174C-31(d) (requiring the completion of the "water resource protection plan" before the adoption of the "water use and development plans"); HRS § 174C-31(k) (mandating "careful consideration" of various protective purposes and allowing the Commission to prohibit other uses inconsistent with these purposes). If, as the dissent maintains, public instream uses receive no different treatment than other uses, then presumably the inchoate public, including generations yet unborn, should be required to advocate and prove its water needs in applying for water use permits. As the Code abundantly demonstrates, the legislature did not create such a system. The dissent insists that "the State" or "the people," i.e., the legislature, should determine water law and policy. See Dissent at 196, 9 P.3d at 508. We generally share this sentiment, but, unlike the dissent, we duly follow it.

The dissent voices concern regarding our water future lying in the hands of "six persons, or in this case, the four persons who composed the Commission." See id. at 196, 9 P.3d at 508. Ironically, after nullifying the protections of the public trust and dismantling the regulatory framework established by the legislature, the dissent would leave the people of this state with nothing but an agency unchecked in its discretion and a regulatory "free-for-all" guided by the mere reminder of the necessity of "balancing," see id. at 192, 9 P.3d at 504.

The dissent's objections to the permit applicant's burden of proof prove our point, namely, that the legislature intended the Commission to investigate, plan, and provide for instream flows as soon as possible. That mandate remaining yet unfulfilled, we have recognized that the Commission's interim task entails the balancing of risks and the implementation of the Code based on the best information available. See supra Part III.E. We do not, as the dissent alleges, impose an insurmountable burden on permit applicants in the interim, but neither do we allow applicants to disregard their burden of justifying their uses to the extent that circumstances allow.

Finally, in its repeated protests against "priorities" among uses, the dissent largely rails against a "straw man" of itsown invention. Contrary to the Commission's designation of a categorical preference in favor of resource protection, we do not establish any "priorities" as that notion is commonly understood in water law and has been previously eschewed by the legislature. Rather, we simply reaffirm the basic, modest principle that use of the precious water resources of our state must ultimately proceed with due regard for certain enduring public rights. This principle runs as a common thread through the constitution, Code, and common law of our state. Inattention to this principle may have brought short-term convenience to some in the past. But the constitutional framers and legislature understood, and others concerned about the proper functioning of our democratic system and the continued vitality of our island environment and community may also appreciate, that we can ill-afford to continue down this garden path this late in the day.

Dissenting Opinion by RAMIL, J.

Because the majority resorts to the nebulous common law public trust doctrine as a distinct and separate authority to assign "superior claims" status to "public instream uses" and "native Hawaiian and traditional and customary rights," thereby trumping Hawai'i Revised Statutes (HRS) chapter 174C (1993 & Supp.1999) (the Code), I dissent. The public trust doctrine, as expressed in the Hawai'i Constitution and as subsequently incorporated into the Code, does not *191 mandate preference for instream uses or native Hawaiian rights. Rather, a review of the history of the 1978 Constitutional Convention reveals that the framers viewed the public trust simply as a fiduciary duty on the State to "protect, control and regulate the use of Hawaii's water resources for the benefit of its people." Haw. Const. art. XI, section 7. Therefore, I would hold that the Commission on Water Resource Management (the Commission) exceeded its statutory authority when it cited to the common law public trust doctrine as a distinct and separate authority for justifying priority for particular uses of water.

Additionally, because more definitive instream flow standards designed to restore and sustain instream uses have yet to be established, I believe that the majority imposes an impossible burden of proof on off-stream users to "justify[ ] their proposed uses in light of protected public rights in the resource." Majority at 160, 9 P.3d at 472.

Most troubling, perhaps, is that the majority, in the process of reaching their desired result, breaches a number of fundamental principles of law which we have recognized and adhered to in the past, thus, creating confusion and uncertainty in an area of law that desperately requires clarity. Because the majority essentially rewrites the Code through this opinion today, I suspect that this opinion will generate litigation by applicants arguing that their particular use of water is a public trust use or value.

I. The State's Public Trust Duty, as Enshrined in the Hawai'i Constitution, Requires a Balancing Process Between Competing Public Interest Users.

The majority, in its effort to define the purposes of the public trust, relies on vague, common law notions from foreign jurisdictions. I start with our Constitution.

Because constitutions derive their authority from the people who draft and adopt them, we have long held that the Hawai'i Constitution must be construed in accordance with the intent of the framers and the people adopting it, and that the "fundamental principle in interpreting a constitutional provision is to give effect to that intent." State v. Mallan, 86 Hawai'i 440, 448, 950 P.2d 178, 186 (1998) (quoting Convention Center Authority v. Anzai, 78 Hawai'i 157, 167, 890 P.2d 1197, 1207 (1995) (internal quotation marks and citations omitted)). Accordingly, I turn to the history of the public trust doctrine as expressed in the Hawai'i Constitution in order to discern the framers' intent.

Pursuant to the 1978 Constitutional Convention, the people of this State adopted the following constitutional provisions which define the State's trust responsibilities in managing its water resources:

CONSERVATION, CONTROL AND DEVELOPMENT OF RESOURCES

CONSERVATION AND DEVELOPMENT OF RESOURCES

Section 1. For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii'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 resources are held in trust by the State for the benefit of the people.

Section 7. The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.

The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environment; establish criteria for water use priorities while assuring *192 appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources.

Haw. Const. art. XI, § § 1 and 7 (1978) (Emphases added).

A plain reading of the above constitutional provisions does not reveal an intent to accord superior claims to certain uses. To the contrary, Article XI, Section 1 generally obligates the State to "promote the development and utilization" of our water resources (1) "in a manner consistent with their conservation" and (2) "in furtherance of the self-sufficiency of the State." Furthermore, contrary to the majority's expansive use of the public trust doctrine, Article XI, Section 7 makes it plain, that "the legislature shall provide for a water resources agency which, as provided by law, shall ... establish criteria for water use priorities...." (Emphasis added.) In other words, the "how" or the public policy making function was properly reserved for the legislature. Accordingly, these constitutional provisions did not adopt the common law public trust doctrine as a device to determine how water is to be used or prioritized.

Turning now to the constitutional history of these provisions, I find nothing to equate the State's public trust obligation to "protect, control and regulate the use of Hawaii's water resources for the benefit of its people" with according superior claims to certain uses. Rather, the framers used the term "public trust" to "describe the nature of the relationship between the State and its people and the duty of the State to actively and affirmatively protect, control and regulate water resources, including the development, use and allocation of water." Comm. Whole Rep. No. 18, in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 1026 (1980) [hereinafter Proceedings ]. Indeed, the framers were keenly aware that such a fiduciary duty to "protect, control and regulate" water necessarily involved a balancing of competing social and economic interests. Id. ("When considering use and development of our natural resources, economic and social benefits are major concerns. However, the broad definition of economics, that of 'careful and thrifty' use of resources, rather than the narrow sense of immediate financial return, should be adopted."). In establishing the State's duty to "protect, control and regulate" water for the benefit of all its people, the framers presumably meant exactly what they said--nothing more, nothing less.

Specifically, article XI, section 1 imposes a two-fold obligation on the State to (1) conserve and protect Hawai'i's natural resources, and (2) develop the resources "in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State." The framers further defined "conservation" as "the protection, improvement and use of natural resources according to principles that will assure their highest economic or social benefits." Stand. Comm. Rep. No. 77, in 1 Proceedings, at 686 (emphasis added). In fashioning the State's duty to conserve and develop its natural resources, the framers, while cognizant of the need to balance the competing interests in preserving and using the resource, did not mandate that such balancing be skewed to favor particular uses.

Furthermore, article XI, section 7 imposes upon the State a fiduciary "obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people." The constitutional history behind this provision fails to support any suggestion that the adoption of the "public trust," as expressed in the Hawai'i Constitution, was intended to grant superior claims to particular types of water use. Rather, the "public trust," as defined by the framers, [FN1] formally imposed a *193 fiduciary duty on the State to "actively and affirmatively protect, control and regulate" the water resource as opposed to the mere authority to do so. Comm. Whole Rep. No. 18, in 1 Proceedings, at 1026; see Comm. of the Whole Debates, September 14, 1978 [hereinafter Debates], in 2 Proceedings, at 863 ("What the [amendment] attempts to do is to, first of all, create a fiduciary duty on the part of the State to regulate and control the water. The second thing that it does is establish a coordinating agency to regulate all water.") (Statement by Delegate Waihee); Id. at 865 ("The intent [of the amendment] was to make it clear that the State had the duty and the responsibility to care for Hawaii's water resources, rather than simply the power to do so.") (Statement by Delegate Fukunaga); Id. at 867 ("Exercise of the police power is purely discretionary, and for discretionary results; "trust" language imposes an obligation to act for the benefit of all the people.") (Statement by Delegate Hornick). Once again, while the framers were mindful of the need to balance various competing interests in regulating water use, see Comm. Whole Rep. No. 18, in 1 Proceedings, at 1026 ("Because of the evergrowing population, the need to maintain present agricultural uses and develop some new ones and the diminishing freshwater supply, it is extremely important that the State act with a sense of fiduciary responsibility with regard to the use of water"); Debates, in 2 Proceedings, at 870 ("I think the one thing we wanted was to protect the small taro farmer as well as the agricultural users of water, unless it conflicts with some overall emergency situation or use priority") (statement by Delegate Waihee), article XI, section 7 reserved the task of prioritizing uses for the legislature. Haw. Const. art. XI, § 7; Debates, in 2 Proceedings, at 870 ("[W]hat we've done is set out a policy to be considered in establishing criteria.... [J]ust to make it clear, its not only this agency that will be setting the criteria or policy; this would be done, in the overall sense by the state legislature, and the agency itself would be implementing the details. What we wanted was an agency whose policies would have as broad a public input as possible. So the overall scheme for this ... would be set up 'in accordance with law' or by the legislature, and the agency would then set the implementation and the finer points of this.") (Statement by Delegate Waihee)); Id. at 869 ("As the amended proposal states, it will allow the legislature to set water use priorities, 'set overall water conservation' and so forth.") (Statement by Delegate Chong)).

FN1. The framers were keenly aware of the nebulous aspects of the public trust doctrine. The opening proposal submitted by the Committee on Environment, Agriculture, Conservation and Land read in relevant part, "All waters shall be held by the State as a public trust for the people of Hawaii." Stand. Comm. Rep. No. 77, in 1 Proceedings, at 688 (emphasis added). The term "public trust," however, was deleted and the proposal was subsequently amended to read, "The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people." Comm. Whole Rep. No. 18, in 1 Proceedings, at 1026. According to the Committee on the Whole, it amended the proposal in order to

clarify the intent behind the use of the term "public trust." Some confusion has been generated by the term because "trust" implies ownership. However, it was never intended to that the proposal confront the question of ownership of water resources because that is more appropriately a matter for the courts. The question of ownership of the freshwater resources is irrelevant to the ability of the State to exercise its police powers with regard to water because the State has long possessed the power to protect, control and regulate Hawaii's freshwater resources for the health and welfare of Hawaii's people. ... Therefore, "public trust" was used to describe the nature of the relationship between the State and its people and the duty of the State to actively and affirmatively protect, control and regulate water resources, including development, use and allocation of water.

The public trust theory holds that the public has certain important rights in water resources, including land underlying navigable water and fisheries. These resources are to be held in trust for the use and enjoyment of people. The Hawaii supreme court has already imposed the public trust on navigable waters and the lands under them in the case of Bishop v. Mahiko, 35 Haw. 608 (1940). However, to avoid confusion and possible litigation, your Committee has substituted language which your Committee believes fully conveys the theory of "public trust."

Id. (emphases added). Simply put, "what the amendment attempts to do ... is to define what 'public trust' means." Comm. of the Whole Debates, September 14, 1978 [hereinafter Debates], in 2 Proceedings, at 859 (statement by Delegate Waihee).

Furthermore, this court itself has recognized that "[t]he extent of the state's trust obligation over all waters of course would not be identical to that which applies to navigable waters." Robinson v. Ariyoshi, 65 Haw. 641, 675, 658 P.2d 287, 310 (1982), reconsideration denied, 66 Haw. 528, 726 P.2d 1133 (1983).

In sum, a review of the constitutional history reveals that the framers viewed the "public trust" as a fiduciary duty of the State to protect, control, and regulate the use of water for all its people. The framers made it clear that their view of the public trust obligation also embraced offstream economic uses of water, such as agriculture, by the *194 beneficiaries of the trust. See Comm. Whole Rep. No. 18, in 1 Proceedings, at 1026; Debates, in 2 Proceedings, at 870. It is equally apparent that by engrafting this obligation into the Hawai'i Constitution, the framers did not intend to prioritize uses; they reserved that matter for the legislature. [FN2] Indeed, to avoid confusion, the framers deleted the term "public trust," recognizing that the vague, common law public trust doctrine could be, and has been, used to justify anything, i.e., ownership. See, e.g., Payne v. Kassab, 361 A.2d 263 (Pa.1976) (rejecting appellants claim that the state violated the public trust by implementing a street widening project that would negatively impact "the historical, scenic, recreational and environmental values" of a tract of land). The majority's expansive use of the public trust doctrine in this case, in my view, will create confusion and uncertainty. The public trust doctrine merely imposes an obligation on the State to affirmatively protect and regulate our water resources. The doctrine does not provide guidance as to "how" to protect those waters. "That guidance, which is crucial to the decision we reach today, is found only in the Water Code." Rettkowski v. Department of Ecology, 858 P.2d 232, 240 (Wash.1993) (en banc). Given that (1) the framers called on the legislature to create the Commission and to set forth the Commission's authority "as provided by law," i.e., the Code, and (2) statutes trump common law, Fujioka v. Kam, 55 Haw. 7, 10, 514 P.2d 568, 570 (1973), it would be inconsistent to conclude that the framers intended to adopt the common law public trust doctrine when they urged the legislature to enact the Code. Accordingly, I strongly disagree with the majority's holding that article XI, sections 1 and 7 adopt wholesale the common law public trust doctrine as a fundamental principle of our constitutional law. Majority at 34-35, 9 P.3d at 443-446.

FN2. In Robinson, this court observed that the parameters of the State's authority and interests in water resources "should be developed on a case by case basis or by the legislature as the particular interests of the public are raised and defined." 65 Haw. at 677, 658 P.2d at 312. In 1987, the legislature did just that as it raised and defined the competing public interests in water resources in the Code.

II. The Code is a Comprehensive Regulatory Statute That Trumps Common Law.

After many years of exhaustive hearings, the legislature finally struck an acceptable balance between competing public interest users that enabled it to pass the Code in 1987. Through the Code, the legislature not only affirmed the State's constitutional obligation to "protect, control and regulate water for the benefit of all its people," it established "a program of comprehensive water resources planning," HRS 174C-2(b) (1993 & Supp.1999), that set forth how the State would go about satisfying this duty. Haw. Const. art. XI, § 7 ("The legislature shall provide for a water resources agency which, as provided by law, shall ... establish criteria for water use priorities....") (Emphasis added.) In its declaration of policy, the Code embraces the public trust as set forth in the Hawai'i Constitution by providing that, "the waters of the State are held for the benefit of the citizens of the State. It is declared that the people of the State are beneficiaries and have a right to have the waters protected for their use." HRS § 174C-2(a) (1993). [FN3] The Code then identifies various competing interests that the Commission must balance in administering the State's charge to "protect, control and regulate" water:

FN3. Contrastingly, in an analogous provision, the Model Water Code provides:

(1) Recognizing that the waters of the state are the property of the state and are held in public trust for the benefit of its citizens, it is declared that the people of the state as beneficiaries of this trust have the right to have the waters protected for their use.

A Model Water Code § 1.02, at 81 (Frank E. Maloney et. al.1972) (emphases added). Apparently following the framers lead in article XI, section 7 of the Hawai'i Constitution, the legislature did not use the term "public trust" in HRS § 174C-2(a).

The [Code] shall be liberally interpreted to obtain maximum beneficial use of the waters of the State for purposes such as domestic uses, aquaculture uses, irrigation and other agricultural uses, power development, and commercial and industrial uses. However, adequate provision shall be made for the protection of traditional *195 and customary Hawaiian rights, the protection and procreation of fish and wildlife, the maintenance of proper ecological balance and scenic beauty, and the preservation and enhancement of the waters of the State for municipal uses, public recreation, public water supply, agriculture, and navigation. Such objectives are declared to be in the public interest.

HRS § 174C-2(c) (1993) (emphases added). In my view, HRS § 174C-2(c) falls well short of constituting a directive that bestows superior claims to any particular classification of uses. Rather, HRS § 174C-2(c) reflects the legislature's intent that the Commission engage in comprehensive water resources management by balancing the need to protect with the need to use water without placing any fixed priority, presumptive or otherwise, on any classification of uses. For example, even in the process of setting interim and permanent instream flow standards, the Commission must assess the economic ramifications of such standards on offstream uses. HRS § 174C- 71(1)(E) (1993) ("In formulating the proposed [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 from the stream for noninstream purposes, including the economic impact of restriction of such uses"); HRS § 174C-71(2)(D) (1993) ("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"). Moreover, the Code specifies that its provisions shall be liberally interpreted to obtain maximum beneficial use of water for "irrigation and other agricultural uses"; yet, it also mandates that "adequate provision" shall be made for uses including "preservation and enhancement of waters for ... agriculture...." HRS § 174C-2(c). Agricultural uses, by definition, are offstream uses, and thus, contrary to the majority's reading, the Code does not establish priority for instream uses.

Given that water is absolutely essential to the continued existence of this island state, had the legislature intended to prioritize the use of water, it would have done so in no uncertain terms. Indeed, the legislature's failure to adopt a 1995 proposal to amend the Code by establishing water use priorities illustrates my point. In 1987, the legislature established a review commission on the Code to comprehensively review and develop recommendations for improving the Code.1987 Haw. Sess. L. Act 45, § 5, at 101. On December 28, 1994, about seven years after its creation, the review commission submitted its final report to the legislature. Review Commission of the State Water Code, Final Report to the Hawai'i State Legislature at 1 (December 28, 1994). Among other things, the review commission recommended that the Code be amended to establish a hierarchy of water uses. Id. at 23-26, app. B at 49-56. To date, the legislature has yet to adopt the proposal to prioritize water uses.

Accordingly, the State's public trust obligation, as enshrined in the Hawai'i Constitution and as incorporated into the Code, does not mandate that instream uses or native Hawaiian rights be accorded "superior claims." I would therefore hold that the Commission exceeded its statutory authority under HRS chapter 91 when it relied on the common law notion of the public trust doctrine that is neither grounded in the Hawai'i Constitution nor in the Code to justify imposing "a heightened level of scrutiny" for off-stream uses. HRS § 91-14(g)(2) (1993) (providing that a court may affirm, reverse, or modify an agency decision if such decision is "[i]n excess of the statutory authority or jurisdiction of the agency"); Rettkowski 858 P.2d at 236 (holding that it is a fundamental rule of law that "an agency may only do that which it is authorized to do by the Legislature"); Tri County Tel. Ass'n, Inc. v. Wyoming Public Service Comm'n, 910 P.2d 1359, 1361 (Wyo.1996) (holding that, "As a creature of the legislature, an administrative agency has limited powers and can do no more than it is statutorily authorized to do"); cf. Stop H-3 Association v. State, 68 Haw. 154, 161, 706 P.2d 446, 451 (1985) (observing that, "[a] public administrative agency possesses only such rule-making authority as is delegated to it by the state legislature and may only *196 exercise this power within the framework of the statute under which it is conferred"); HOH Corp. v. Motor Vehicle Industry Licensing Bd., 69 Haw. 135, 141, 736 P.2d 1271, 1275 (1987) (maintaining that an agency " generally lacks the power to pass upon the constitutionality of a statute. The law has long been clear that agencies may not nullify statutes.") (Quoting 4 K. Davis, Administrative Law Treatise § 26:6, at 434 (2d ed.1983)).

It is the State that owes a fiduciary duty to its people to "protect, control and regulate the use of Hawaii's water resources for the benefit of its people." Haw. Const. art. XI, § 7. Thus, it is the legislature, as the body charged with the responsibility of making laws, that determines public policy, and it is the legislature who should set water use priorities "as provided by law." See id. Water is the lifeblood of this island state, and a decision to prioritize competing uses of water is a public policy determination that will undoubtedly shape the course of our future. Such a determination should rest in the hands of the people of this State instead of the discretion of six persons, or in this case, the four persons who composed the Commission. Cf. Konno v. County of Hawai'i, 85 Hawai'i 61, 79, 937 P.2d 397, 415 (1997) ( "The determination of what the law could be or should be is one that is properly left to the people, [who are sovereign,] through their elected legislative representatives."). To conclude otherwise, as the majority does, would impermissibly transgress the separation of powers doctrine by allowing an executive agency to transcend its statutory authority and usurp the legislature's lawmaking function under the guise of enforcing the agency's interpretation of what the "public trust" demands. See R.D. Merrill Co. v. State, 137 Wash.2d 118, 969 P.2d 458, 467 (1999) ("[T]he [public trust duty] devolves upon the State, not any particular agency. The [agency's] enabling statute does not grant it authority to assume the public trust duties of the state.... [R]esort to the public trust doctrine as an additional canon of construction is not necessary in light of the specific provisions at issue and the water law policies expressed in the state water codes."); Community College of Delaware v. Fox, 20 Pa.Cmwlth. 335, 342 A.2d 468, 483 (1975) (Bowman, P.J., concurring) ("Simply by invoking [the constitutional provision identifying the state as the trustee of 'public natural resources,'] neither [the agency] nor a third party can enlarge its 'trustee' role beyond the parameters of its statutory power and authority."). Simply put, the Code trumps common law, not the other way around. Fujioka, 55 Haw. at 10, 514 P.2d at 570.

III. The Majority's Expansive View of the Public Trust Doctrine will Inject Substantial Uncertainty into the Code-Based Water Allocation Process.

In my view, the majority employs the public trust doctrine as a device to (1) recognize certain uses, such as instream uses and native Hawaiian rights, as public trust values and (2) launch its analysis from the proposition that these public trust values have superior claims to other uses. The majority goes on to "eschew" any view of the trust that embraces private commercial use as a public trust purpose. Majority at 138, 9 P.3d at 450. With such an approach, I cannot agree. As previously discussed, I believe that the public trust, as established in the Hawai'i Constitution and as adopted in the Code, is simply a fiduciary duty to protect, control, and regulate the use of our water resources for the benefit of all the people of Hawai'i. Such an obligation demands that the State actively manage its natural resources by diligently balancing competing interests, both economic and social, in order to arrive at a policy determination of what is ultimately in the public's best interest; it does not mandate priority for particular uses. The State's constitutional obligations to "promote diversified agriculture" and "increase agricultural self-sufficiency" warrant no less consideration because they involve offstream uses that result in economic gain for private individuals. Haw. Const. art. XI, § 3 (1978). Indeed, the public interest advanced by the trust amounts to no more than the sum of competing social and economic interests of the individuals that compose the public. See James L. Huffman, A Fish Out of Water: The Public Trust Doctrine in a Constitutional Democracy, 19 Envtl. L. 527, 549 (1989) *197 ("Public rights are exercised by the public, which in a democracy is the people.").

The majority's view of the public trust invites this court to essentially rewrite the Code to prioritize particular uses, thereby imposing a higher level of scrutiny on "non-public trust uses," where the legislature imposed none. Because accepting such an invitation would devalue the Code as drafted, circumvent the democratic process, and inject substantial uncertainty into the Code-based water allocation process upon which this State depends, I am compelled to dissent.

IV. Offstream Users Face an Impossible Burden of Proof.

The majority holds that "[u]nder the public trust and the Code, permit applicants have the burden of justifying their proposed uses in light of protected public rights in the resource." Majority at 160, 9 P.3d at 472. The majority arrives at this determination by taking the following steps. The majority reasons that the public trust, as defined by the common law and as incorporated into the constitution, "begin[s] with a presumption in favor of public use, access, and enjoyment." Id. at 142, 9 P.3d at 454. Turning to the Code, the majority equates the following interests listed in HRS § 174C-2(c) as "public trust purposes dependent upon instream flows": "protection of traditional and customary Hawaiian rights, the protection and procreation of fish and wildlife, the maintenance of proper ecological balance and scenic beauty, and the preservation and enhancement of waters of the State for municipal uses, public recreation, public water supply, agriculture, and navigation." Majority 145-146, 9 P.3d at 457-458. Instream flow standards, as the majority observes, serve as the "primary mechanism" to fulfill the State's duty to uphold these instream trust purposes. Id. at 146, 9 P.3d at 458. Indeed, the majority declares that such "public instream uses are among the 'superior claims' to which, upon consideration of all relevant factors, existing uses may have to yield." Id. at 149 n. 52, 9 P.3d at 461, n. 52. Therefore, because the public trust carries an inherent presumption favoring "public use," applicants bear the burden of justify[ing their uses] in light of the purposes protected by the trust." Id. at 144, 9 P.3d at 454.

Even accepting the majority's articulation of the public trust as true, given that (1) the scientific knowledge necessary to establish more definitive instream flow standards--the primary mechanism to safeguard instream uses--is admittedly "years away," majority at 114, 9 P.3d at 426, and (2) the full scope of public instream uses consequently remain undefined, I believe that it is impossible for applicants to demonstrate that their offstream uses will not impair public instream uses. The majority acknowledges that "the uncertainty created by the lack of instream flow standards modifies the nature of the Commission's analysis...." Id. at 161, 9 P.3d at 473. In light of this uncertainty, the majority holds that the applicants for offstream uses, "[a]t a very minimum," must demonstrate (1) their actual needs, and (2) "within the constraints of available knowledge, the propriety of draining water from public streams to satisfy those needs," i.e., absence of practicable mitigation measures. Id. at 162, 9 P.3d 474. (emphases added). Despite this floor set by the majority, due to the lack of more conclusive instream flow standards, the onus apparently remains on the applicant to justify its proposed offstream use by (1) identifying instream and potential instream uses, (2) assessing how much water those instream uses require, and (3) justifying their proposed uses in light of existing or potential instream values. Without addressing these three issues, it appears that applicants requesting water for offstream uses may meet the floor established by the majority only to fall short of satisfying their ultimate burden to justify their proposed use in light of instream values. See Majority at 160, 9 P.3d at 472. ("We thus confirm and emphasize that the 'reasonable beneficial use' standard and the related criterion of 'consistent with the public interest' demand examination of the proposed use not only standing alone, but also in relation to other public and private uses and the particular water source in question."). By granting "superior claims" status to instream uses, the majority renders this already difficult task impossible.

I wholeheartedly join the majority's call for the Commission to establish more definitive instream flow standards for the windward streams with "utmost haste and purpose." Id. at 156, 9 P.3d at 468. I fear, however, that in the period necessary to achieve these more conclusive standards, offstream uses, which, in substantial part, drive the economy and promote the self-sufficiency of this State, may run dry.

MOTIONS FOR RECONSIDERATION

On August 30, 2000, appellee/cross-appellant The Estate of James Campbell (Campbell Estate) filed a motion for reconsideration and/or clarification of this court's published opinion, In re Water Use Permit Applications, Petitions for Interim Instream Flow Standard Amendments, and Petitions for Water Reservations for the Waiāhole Ditch Combined Contested Case Hearing, No. 21309 (August 22, 2000). On August 31, 2000, appellant Kamehameha Schools Bishop Estate (KSBE) filed a motion for reconsideration. Upon due consideration of the motions and supporting documents and arguments, we rule as follows:

Campbell Estate's motion is denied. Campbell Estate should direct any questions and arguments regarding its interim use, pending the outcome of remanded proceedings, to the Commission on Water Resource Management (the Commission). We refer Campbell Estate to various portions of this court's decision potentially relevant to its concerns. See op. at 159, 9 P.3d at 471 (maintaining that the Commission's failure to establish more definitive standards does not "preclude[ ] present and future allocations for offstream use" and that the Commission must employ a methodology incorporating elements of uncertainty and risk); id. at 164, 9 P.3d at 475 (ruling that the Commission did not err in "accommodating existing agricultural uses" at this time); id. at 167 n. 70, 9 P.3d at 479, n. 70 (holding that the commission did not err in allowing Pu'u Makakilo, Inc. to continue using ditch water pending final decision on its application, notwithstanding the fact that it was not an "existing use").

KSBE's motion is denied. KSBE points out that it previously sold water to leeward parties via a lease that expired on December 31, 1996. Assuming arguendo that such sale of water constitutes "use," under the common law rule of correlative rights, it establishes KSBE, at best, as an "appropriator" of ground water for use on distant lands, and not an existing "correlative" user. See id. at 178, 9 P.3d at 490 (stating the rule that "parties transporting water to distant lands are deemed mere 'appropriators' "). Accordingly, the points made by this court regarding the scope of KSBE's "rights" stand: 1) KSBE can assert no common law "correlative rights" to ground water because, absent the requisite land use approvals, it has yet to establish a need for reasonable use of such water in connection with the overlying land, see id.; and, in any event, 2) under the controlling Code permitting provisions, KSBE has not established an "existing correlative use " and, thus, cannot claim any superior priority or entitlement to a permit, see id. at 179-180, 9 P.3d at 491-492. Put simply, while KSBE's ability to use water from the Waiāhole Ditch System remains an open question, subject to, inter alia, KSBE's reapplication for such water, KSBE has no underlying superior right or entitlement, "correlative" or otherwise, to use such water.

As for KSBE's arguments that the denial of its permit application amounted to an unconstitutional "taking" of its property without just compensation, we refer KSBE to the relevant discussion sections in this court's published opinion. See id. at 133-136 & n. 32, 9 P.3d at 445-448 & n. 32 (affirming that public trust applies to all waters, including ground water); id. at 181-183, 9 P.3d at 493-495 (rejecting KSBE's argument on ripeness grounds and reviewing the nature of usufructuary rights, statutes in other jurisdictions modifying common law water rights, case law upholding such statutes, and the effect of the public trust on claims of vested water rights).