For the third time in three decades, the state Land Use Commission has come to a different conclusion on whether the owner of Lanai is using a proper source of water to irrigate its luxury ocean-view golf course.

The decision made Thursday was in favor of Lanai’s owner, billionaire Larry Ellison, and allows him to continue using potable water on the golf course. But the issue probably hasn’t been settled for good.

The Native Hawaiian Legal Corp., representing a Lanai community group opposed to the resort’s source for irrigating its Manele Golf Course, suggested it will appeal the decision, which it called “faulty” and “illogical.”

A core issue in the case is the meaning of “potable,” or drinkable, water.

The dispute over that definition dates back to the 1980s, when the previous owner of Lanai, Castle & Cooke Hawaii, sought to develop two resorts on the island in a shift from pineapple farming, which had long been the island’s economic base.

What has played out before the LUC and state courts since then has been like a slow-motion pingpong match affecting the island’s 3,000 residents, its relatively small water supply and an 18-hole golf course where it costs $425 to play a round.

Castle & Cooke won LUC approval for developing two proposed hotels and golf courses in 1991, and water was a heavily debated issue during public hearings on the resort development plan.

To address concerns about Lanai’s fresh water supply, the commission imposed a condition that said Castle & Cooke “shall not utilize the potable water from the high-level groundwater aquifer for golf course irrigation use, and shall instead develop and utilize only alternative nonpotable sources of water (e.g. brackish water, reclaimed sewage effluent) for golf course irrigation requirements.”

Slightly salty

After the Manele Golf Course was built, the LUC questioned whether Castle & Cooke was complying with the water-use condition, and that led to 12 hearings between 1993 and 1996 to examine the issue. The commission concluded that Castle & Cooke was violating the condition and ordered the water use to stop. Ping.

Castle & Cooke appealed to state Circuit Court, which reversed the LUC decision and prevented a golf course shutdown. Pong.

In response the LUC appealed the lower court’s ruling to the Hawaii Supreme Court in 1999.

In 2004 the high court upheld the lower court ruling and said the water-use condition didn’t prohibit Castle & Cooke from using “any” water from the high-level aquifer to irrigate the golf course.

At that time it was undetermined whether the irrigation water used for the golf course was potable. So the high court sent the case back to the LUC so it could clarify whether Castle & Cooke was using potable water from the high-level aquifer. Ping.

To examine this question, the LUC held nine more hearings between 2006 and 2010.

Manele Golf Course irrigation water, which is from two wells in the high-level aquifer, was tested and confirmed to be brackish, or partly salty, but potable by federal and state standards that regard potable water to be free of harmful contaminants and safe to drink.

The community group contesting the water use, Lanaians for Sensible Growth, felt its argument had been proven. The golf course owners were using potable water to irrigate the course, the group said.

But Castle & Cooke asked the commission to modify its original condition so that water from the high-level aquifer for golf course use would be permitted as long as its salt content was more than 250 milligrams per liter, a level at which most people will notice a salty taste.

Castle & Cooke argued that this lightly salty yet potable water would seep into the ocean if not used for golf course irrigation. Lanaians for Sensible Growth argued that pumping the brackish water reduces fresh water in the aquifer that is the island’s only supply.

The LUC in 2010 approved the developer’s requested modification to allow the use of lightly salty potable water. Pong.

But Lanaians for Sensible Growth appealed this decision to Circuit Court, arguing that the group hadn’t been allowed to present live witness testimony because the commission canceled a final day of a hearing because it lacked a quorum.

In 2012 the court ruled in favor of the community group and invalidated the modified water use rule. Ping.

Castle & Cooke, in frustration, called the group’s effort a “misguided crusade” to keep alive “perpetual litigation.”

At this point Ellison stepped into the shoes of Castle & Cooke with his purchase of Lanai in June 2012, and his company, now known as Pulama Lanai, appealed the Circuit Court decision to the Hawaii Intermediate Court of Appeals, which in 2016 upheld the lower court decision but also sent the case back to the LUC to clarify what “potable water” means as used in the water-use condition.

State, county support

Four days of hearings with expert witnesses and public testimony were held in November on Lanai and Maui.

Residents on the island are divided, though nearly all the written testimony supported the existing water use and was largely from Pulama Lanai employees, including a petition from the union representing 600 Pulama Lanai workers.

T.J. Orban, assistant golf pro at the Manele course, said in written testimony that there’s a good chance his job will cease to exist if the water is cut off. He said it would be reckless and irresponsible to threaten the livelihood of many who depend on golf and tourism.

“This water is the lifeblood for so many people,” he said. “I urge those in power to not make this life-altering mistake.”

Michelle Fujie, a Lanai High and Elementary School math teacher, noted that the original agreement on water was made when she was a child on the island.

“We are now the generation that must fight to insure that these safeguards remain active,” she said in written testimony that asked the commission to hold Pulama Lanai responsible for its obligations.

The state Office of Planning supported the existing water use. Maui County said the water-use condition had not been violated.

Pulama Lanai officials testified that they have reduced water use on the golf course by about 20 percent in recent years and that the company is working to protect the watershed. However, a plan to develop a more than $100 million desalination plant was dropped after the company could only obtain a permit for a shorter term than it said it needed.

The LUC ruled Thursday that no evidence shows pumping brackish water from the high-level aquifer is having a negative impact on fresh water. Most of the LUC’s decision, however, focused on the 1991 water-use condition.

LUC commissioner and hearings officer Jonathan Likeke Scheuer said in the written decision that the record shows Castle & Cooke officials referred to brackish water from the high-level aquifer as nonpotable.

The commission noted that there were some inconsistent and contradictory representations by Castle & Cooke about water during the original 1991 hearings but that the preponderance of the evidence shows that Lanai’s owner has not violated the water use condition in which “potable” had a special interpretation.

The LUC’s Thursday ruling basically says the water being used to irrigate the golf course is potable, but because it is also brackish, it is OK to use.

“The language of (the water use condition) has proved to be confusing and contentious for over two decades,” the LUC order said. “While there is substantial evidence on the record that a ‘common sense’ meaning of the word ‘potable’ could include the waters drawn (for golf course irrigation), the specific language of (the condition) excluded that common sense meaning and specifically excluded from ‘potability’ brackish water of a kind that is used elsewhere in these islands for drinking.” Pong.