Is Lanai drinking water irrigating the Manele Golf Course in violation of a 1991 state Land Use Commission condition against doing so?

That’s the crux of an ongoing dispute in order-to-show-cause hearings before the commission.

The panel completed hearing evidence this month on Lanai and Maui. And now it has scheduled closing statements for Dec. 8, said Daniel Orodenker, the commission’s executive officer. The meeting’s time and location have yet to be determined.

Documents filed with the commission lay out the positions of Lana’i Resorts Inc., Lanaians for Sensible Growth, the state Office of Planning and the county Department of Planning.

The order-to-show-cause dispute could result in the golf course reverting to its agricultural/rural designation, according to written testimony submitted by Planning Director William Spence.

“The impacts of closing the golf course to a community where tourism is the major economic force would be tremendous and should not be ordered without substantial evidence,” he wrote.

Office of State Planning Director Leo Asuncion told commissioners that the Hawaii Supreme Court found in 2004 that the condition against using potable water for golf course irrigation, known as Condition 10, “did not prohibit the use of all water from the high-level aquifer, but only potable water from the high-level aquifer.”

He said his office did not foresee future problems with using brackish water for golf course irrigation, and that its use is not a violation of Condition 10.

“The irrigation of Manele Golf Course with brackish water has not prevented the continuous and normal functioning of the potable water wells on Lanai,” he said. “Given the sustainable yield (6 million gallons per day) and amount of water currently being used (1.5 million gallons per day), the use of brackish water wells to irrigate the Manele Golf Course does not appear to be causing problems with the availability of water from current drinking water wells.”

Native Hawaiian Legal Corp. attorneys David Kopper and Li’ula Nakama, representing Lanaians for Sensible Growth, maintain the resort has violated Condition 10 by using brackish water and breaking its original commitment to the community against using any water from the island’s high-level aquifer.

“Lana’i Resorts is using the only source of Lanai’s drinking water to irrigate a golf course,” Kopper and Nakama told commissioners. “The Land Use Commission is bound by the public trust to protect drinking water as a vital public trust purpose of the highest order. The commission cannot be neutral: it actually must be partial and biased, as the public trust doctrine requires the commission to favor the protection of domestic water use over competing use of water for financial gain.”

Lana’i Resorts attorneys Benjamin Kudo and Clara Park say the commission should focus on the resort’s use of brackish water from well Nos. 1 and 9 (both in the Palawai Basin) from 1991 to 1993 when the alleged violation occurred. Other wells developed later are beyond the scope of the commission’s proceeding, they say.

“We believe that the use of brackish water from Wells 1 and 9 was a reasonable and beneficial use by Lanai Co. Inc. and continues to be so today,” Kudo and Park argue. “Any decision which results in the complete prohibition of a continued, reasonable use of groundwater would be incompatible with the spirit of the correlative rights doctrine and would fail to assure the existing correlative uses under the state constitution.”

The landowner has the right to use the water under the state constitution, and, under common law, the correlative rights doctrine “grants reasonable use of the groundwater and calls for the sharing of water resources amongst existing, competing users. It does not call for the exclusion of one user over the other.”

Lanaians for Sensible Growth attorneys Kopper and Nakama say the resort is using high-level water to irrigate the golf course, and that water is “potable,” meaning “water suitable for drinking.”

They say the resort has advocated for a standard of water potability that “ignores the plain definition of the term,” and instead contends that an “arbitrary level of chloride concentration of 250 milligrams per liter should be used to determine potability. This argument has no merit.”

They write that the commission never defined “potable water” in a way different from the prevailing common and legal definitions, and “neither this commission nor the resort can read an unwritten term or condition into Condition 10.”

“Water with chloride levels well above 250 milligrams per liter can be drunk: Maui County services its clients with water containing higher chloride concentrations than the water used by the resort to irrigate its golf course,” Kopper and Nakama say. “Chlorides are not considered a contaminant that renders water dangerous to drink.”

Lana’i Resorts’ Kudo and Park say it’s problematic to argue about the definition of the word “potable” 25 years after the Land Use Commission prohibited its use.

They suggested it would be “more fruitful and less problematic” to determine what is “non-potable” water.

Kudo and Park say the commission defined “non-potable” water by allowing, within Condition 10 itself, the resort to “develop and utilize only alternative non-potable sources of water (e.g. brackish water, reclaimed sewage effluent) for golf course irrigation.”

Well Nos. 1 and 9 have been acknowledged as having “brackish” water, allowing them to be used within the condition’s examples of nonpotable water, they write. Testing showed the wells 1 and 9 were brackish and “have remained brackish until today.”

Kopper and Nakama argue for Lanaians for Sensible Growth that there’s “leakage” of high-level fresh drinking water into lower Palawai Basin wells that are used for golf course irrigation.

“On Lanai, there is a general movement of water from the center of the island toward the ocean,” they say. “In the high-level aquifer, water flows from dike compartments within high water levels to those with lower water levels as part of this movement.”

They say that pumping from the lower Palawai wells “necessarily means that pumpage (from those wells) has caused greater amounts of water to flow to the basin wells from the upper wells than they naturally would.”

They point out that chloride levels in Well No. 1 dropped from 816 milligrams per liter in 1948 to 274 milligrams in the present day. Chloride levels in other wells also have fallen, they say.

“This is use of potable water prohibited by Condition 10,” they say.

Lana’i Resorts believes the “leakage” argument is a “non-issue,” Kudo and Park say.

They point to testimony from resort water consultant Tom Nance, who agreed that the island’s small aquifers are interconnected and that there is leakage from the high- to low-level aquifers. But he said there was no evidence that pumping from the lower-level wells “directly caused or induced such leakage.”

Nance explained that “it was impossible to attribute a causal link between the leakage and (the resort’s) pumping because there is too little known about the aquifer and the movement of groundwater to be able to say what would be causing the leakage.”

“We believe a debate or discourse on leakage (i.e. the interrelationship by and between hundreds of geologic compartments on the island of Lanai), albeit interesting, will be inconclusive and of limited value,” Kudo and Park say.

Oracle founder and billionaire Larry Ellison bought 97 percent of Lanai from Castle & Cooke in June 2012. A little more than a year later, he renamed Lana’i Resorts “Pulama Lana’i.”

Documents submitted to the commission for the order-to-show-cause proceedings refer to the landowner as Lana’i Resorts or Lana’i Resort Partners.

* Brian Perry can be reached at bperry@mauinews.com.