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Fresh Water in Hawaiʻi: Water in Law

A selected annotated bibliography by Shavonn Matsuda

Books

State of Hawai'i and County of Maui Government Resources

County of Maui. Code of the County of Maui, Hawaii. Seattle: Book Publishing Company, 1980.
Title 14, Article 1, provides the County Water Code.  As stated in its purpose, the County of Maui Water Code is intended to comply with and complement the State Water Code.  It includes Maui County’s policies on water conservation, services, and use.

Review Commission on the State Water Code, State of Hawaii.  Final report to the Hawaii State Legislature.  Honolulu: The Commission, 1994.
Call Number: KFH446 .A433 A2 1994
237 pages.  Presents the findings and recommendations of the Review Commission on the State Water Code.  Pages 15-16 directly discuss Hawaiian water rights – one of 20 major issues identified by the Review Commission as needing further discussion (page 38-39).  The overall report is helpful in understanding the role of the Commission on Water Resource Management, the effects of a permitting system of water allocation, and the issues involved in the implementation of the State Water Code.

State of Hawaii, Hawaii State Legislature. Hawaii Revised Statutes.
The prescribed laws of the State of Hawaii.  Chapters 174 (Water and Land Development) and 174C (State Water Code) pertain specifically to water.  Chapter 7 (Miscellaneous Rights of the People) is also of interest as it gives mention to people's rights to drinking water and running water.

State of Hawaii, Department of Agriculture. Agricultural Water Use and Development Plan. Rev. ed. December 2004.
Available from the Department of Agricultures website: http://hawaii.gov/hdoa/Info/arm/arm.
256 pages.
 
The Agriculural Water Use and Development Plan (AWUDP) was created to ensure that the plantation irrigation systems affected by plantation closures woul be rehabilitated and maintained for agricultural use.  An extensive documentation of active irrigation systems, including the privately owned systems, on each island.  Maps of ditches included in the appendices.

State of Hawaii, Department of Land and Natural Resources, Commission on Water Resource Management. Commission on Water Resource Management.
xv, 40 pages.  Established in 1987 by the Hawaii State Legislature, the Commissions purpose is to protect, control, and regulate Hawaiis water resources.  The About Us section includes basic information about the Commission, including short biographires of current members, and pertinent laws and regulations, such as the State Water Code.  Information about stream channel alterations and diversions, streamflow conditions, instream flow standards, and regulations and permits is included in the “Surface Water” section.  Also of interest, the “News and Events” section includes information on public notices, contested case hearings, and upcoming commission meetings.

Hawaii. State Water Commission. Hawaii's Water Resources: Directions for the Future; a Report to the Governor of the State of Hawaii. Honolulu: State Water Commission, 1979.
Call Number: HD1694.H3 H389 1979

As explained in the foreward and background sections, a number of events in mid-1977 led to an increased concern over fresh water in Hawai‘i.  In October 1977, the State Water Commission – a panel of experts, state officials, and others appointed by Governor George R. Ariyoshi – convened to assess water supplies across the state.  This report presents the findings and recommendations of the Commission in regard to: 1) water supply and demand, 2) water for agriculture, 3) water for instream values, 4) water use regulations, 5) water rights, 6) information needs, and 7) financing water programs and projects.  Appendix includes drafts of two recommended legislative bills.

Articles and Other Sources


Chang, Williamson B.C.  Water code development in Hawaiʻi: history and analysis, 1978-1987. Honolulu: Water Resources Research Center, University of Hawai‘i at Mānoa, 1987.
Call Number:  TC1 .H37 no.173

vii, 54 pages.  The 1978 Constitutional Convention called for the creation of a state agency to set water policies but, as of 1987, no water code had been enacted.  In this paper, Chang outlines the main questions surrounding the establishment of a water code: 1) ownership, 2) who should be in charge of water allocation, 3) whether a state water code would be adequate for local concerns and county land-use planning, and 4) Native Hawaiian water rights.  In regard to Native Hawaiian water rights, Chang asserts the Code presents an opportunity for Hawaiians to leverage their communal law claims for water monies.  Appendix includes a lengthy discussion of the legal considerations and impacts of a limited duration permit system – correlative and riparian rights, appurtenant rights, and Konohiki rights are analyzed.

Cooper, George. Legal History and Definitions of Appurtenant Water Rights in Hawaii.  Honolulu: 1993.
Call Number: KFH446.A433 C66 1993

20 pages. A technical paper presented to the Commission on Water Resource Management to assist in identifying appurtenant water rights.  Has no official status beyond it being a contractor's report.  Cooper, the main author, is an attorney who also authored Land and Power in Hawaii: The Democratic Years (1990).   Briefly clarifies common misperceptions about water rights and includes discussions of the Mahele, the Kuleana Act, and the 1978 Hawai'i Constitutional Convention.  Includes sections on evidences of the existence of appurtenant rights, the quality and quantity of water these rights entail, and the uses of appurtenant water.  A good resource for people without a legal background who are interested in understanding appurtenant water rights.


Kloos, William, Nathan Aipa, and Williamson B.C. Chang. Water rights, water regulation, and the “taking issue” in Hawaii. Honolulu: Water Resources Research Center, University of Hawaii at Mānoa, 1983.
Call Number: TC1 .H37 no. 147-150
vii, 109 pages.  Recommends limited duration permits as a water allocation system for Hawai‘i.  Questions the legality of implementing such a system as it may challenge the fifth amendment of the U.S. Constitution – replacing Hawaiian water rights (riparian, appurtenant, and konohiki water rights), considered “property,” with limited duration permits could be considered a taking of property without just compensation.  Examines the existing water rights, the effects of implementing restricted rights under new regulations, and the ‘taking’ issue.   Also discusses the effects of the McBryde and Reppun cases.


Perry, Antonio. A Brief History of Water Rights. Honolulu: TS. Hamilton Library, University of Hawaii at Mānoa, 1912.
Call Number: HD1694. A5 P47

12 pages. A brief history of water rights in Hawai‘i from pre-Mahele to 1912 presented in a speech at the Annual Dinner for the Hawai‘i Bar Association.  Perry comments on the scarcity of quarrels over water prior to the Mahele, and the growing concern over rights to water thereafter in part due to the interests of foreigners. Among the topics discussed are ‘auwai, the Land Commission, konohiki and luna wai.  Concludes by saying that water rights have not yet been authoritatively defined and that these rights will play a larger role in the future due to the growth of urban communities and agricultural development.


Van Dyke, Jon M. The Protection and Implementation of Native Hawaiian Water Rights. Honolulu: Dec. 17, 1993.
Call Number: KFH446.A433 V36 1993

19 pages.  Paper submitted on behalf of the Office of Hawaiian Affairs (OHA) to the Review Commission on the State Water Code outlining OHAs recommendations for ensuring Hawaiian water rights for future generations.  Notes that as provided for in Hawaiis State Constitution and the Hawaii Revised Statutes, OHA is tasked with formulating policy regarding the rights to natural resource of persons of Hawaiian ancestry and to monitor the management of these resources.  Discusses two types of water rights - 1) rights provided for in the Hawaiian Homes Commission Act; and, 2) traditional and customary rights.  Emphasizes the need for clarification of water rights; recommends modernizing the language of Hawaiian water rights so that these rights can be translated for and applied to future generations and future uses.  OHAs suggestions are summarized into 10 bullet points in the conclusion.

Websites

Native Hawaiian Legal Corporation. Protecting Traditional and Customary Rights. Native Hawaiian Legal Corporation.
The Native Hawaiian Legal Corporation (NHLC) provides legal services on issues facing the Native Hawaiian community.  In particular, the NHLC seeks to defend traditional and customary rights in Hawai‘i.  The right to water for traditional Hawaiian agricultural practices has been an ongoing battle for Native Hawaiian farmers.  In recent news, there have been legal disputes over water in East Maui and Nā Wai ‘Ehā; the NHLC has worked with farmers in East Maui on the former case.  The NHLC website includes a short video testimony from Ed Wendt, a Hawaiian kalo farmer in East Maui.

mahalo!

mahalo!