Panel finds that irrigation rules not violated at Lanai golf course

The state Land Use Commission on Thursday adopted a hearings officer’s recommendation and found that Lanai Resort Partners did not violate a condition regarding golf course irrigation set by the commission in 1991.

The condition allowed for the development of the Manele Golf Course and nearby areas, but it banned the use of Lanai’s high-level groundwater for golf course irrigation. Instead, it allowed the development and use of alternative, nonpotable sources of water, such as brackish water and reclaimed wastewater effluent.

If a violation were found, the company’s golf course lands and areas around it could revert to agricultural or rural land use designations, and the course could be closed, according to documents filed with the commission.

In 1991, the commission reclassified 38 acres from agricultural to urban for the 18-hole golf course. Another 110 acres were reclassified from rural to urban district.

But with the reclassification came conditions. Those included the ban on using drinking water from the high-level groundwater aquifer for golf course irrigation.

For years, and through many hearings and court challenges, owners of the course, which included former majority Lanai island owner David Murdock of Dole Food Co./Castle & Cooke and now majority island owner billionaire Larry Ellison, have came under fire. Critics and the group Lanaians for Sensible Growth have maintained that drinking water was being used from high-level ground aquifers to irrigate the course, a violation of the 1991 condition.

Ellison bought 97 percent of the island from Castle & Cooke in June 2012.

Course owners have said that the water, coming from what has been identified as wells 1 and 9, has been used for the course. And, the water was and remains brackish, salty water the commission allowed as an “alternative nonpotable” source of water.

But Lanaians for Sensible Growth has argued that some brackish water is potable.

There have been various court appeals and commission hearings since 1993. And, as a result, on June 24, the commission appointed its first vice chairman, Jonathan Likeke Scheuer, as the hearings officer to hear the case.

After hearings on Lanai and Molokai last year, Scheuer released his recommended finds of fact, conclusions of law and decision and order on April 4. In a nutshell, it said Lanai Resorts “has provided substantial credible evidence that the water being used to irrigate the Manele Golf Course was and is brackish under the specific meaning of the language in Condition 10 in the 1991 Order, and therefore an allowable alternate source of water.”

People who attended the commission’s meeting at the Lanai Community Center reported the vote was five to one to adopt the hearings officer’s recommendations, with amendments. There were seven commissioners present with one recusing himself on the vote.

A final order for the commission to adopt the recommendations with modifications is tentatively scheduled for May 31 on Maui, said Maui County Deputy Corporation Counsel Michael Hopper.

Maui County supported the adoption of the hearings officer’s report with modifications and supported the conclusion that Lanai Resorts did not violate the water condition, Hopper added.

Lanaians for Sensible Growth declined comment Thursday.

Ben Kudo of Ashford & Wriston LLP, who represented Lanai Resorts, said in an email statement: “We are pleased by today’s Land Use Commission decision that allows us to continue using nonpotable, brackish water to irrigate the golf course and other areas in Manele. The residents’ lives, the island’s economy, and the shared vision for Lanai’s future depend on a sustainable source of nonpotable, brackish water for crop irrigation and landscaping.”

Aside from operating the Manele Golf Course, Lanai Resorts, doing business as Pulama Lana’i, will conduct special events at the Manele Golf Course. According to a bill approved on second reading recently by the Maui County Council, Pulama Lana’i may conduct up to 40 special events a year at the course.

Also in the Manele area, Pulama Lana’i has recently received council approval for a conditional permit to develop a helistop pad and other improvements.

The commission’s decision Thursday concludes a battle that started in 1993 between the golf course operator and Lanaians for Sensible Growth over the company’s use of groundwater to irrigate the golf course. The commission in 1996 initially ruled in favor of Lanaians for Sensible Growth, which set off legal challenges that reached the Hawaii Supreme Court.

The case eventually returned to the commission following a March 2016 Intermediate Court of Appeals ruling, and Scheuer was appointed the matter’s hearings officer. Hearings were held again on Lanai and Maui last year.

Scheuer issued his recommended findings of fact and conclusions of law and decision and order on April 4.

The commission heard and considered exceptions and arguments to the hearings officer’s recommendations on Wednesday and Thursday on Lanai.

* Melissa Tanji can be reached at mtanji@mauinews.com.