The Interim Instream Flow Standard for all streams on
Windward Oahu, as adopted by the commission on water resource management on
April 19, 1989, 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 or 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.
Notes
Haw. Code R.
§
13-169-49.1
[Eff. MAY 04, 1992]
(Auth: HRS §
174C-8)
(Imp: HRS §
174C-2,
174C-3,
174C-5,
174C-71)
