The Interim Instream Flow Standard for all streams on East
Maui, as adopted by the commission on water resource management on June 15,
1988, shall be that amount of water flowing in each stream on the effective
date of this standard, and as that flow may naturally vary throughout the year
and from year to year without further amounts of water being diverted offstream
through new of expanded diversions, and under the stream conditions existing on
the effective date of the standard, except as may be modified by the following
conditions:
(1) Based upon additional
information or a compelling public need, a person may petition the commission
on water resource management to amend the standard to allow future diversion,
restoration, or other utilization of any streamflow.
(2) The commission reserves its authority to
modify the standard or establish new standards, including area-wide or
stream-by-stream standards, based upon supplemental or additional
information.
(3) In any proceeding
to enforce the instream flow standard, the commission, its delegated hearing
officer, or a judicial officer may abate the enforcement proceeding if, under
the circumstances and weighing the importance of the present or potential
instream values with the importance of the present or potential uses of the
stream's water for non-instream purposes (including the economic impact of
restricting such uses), the enforcement of the instream flow standard would:
(A) Create a substantial hardship on a use
existing on the effective date of this standard; or
(B) Impermissibly burden a right, title, or
interest arising under law.
(4) Projects under construction or projects
that have secured all discretionary permits required by appropriate federal,
state, or county agencies prior to July 1, 1987 shall not be affected by the
standard.
