Ka Wai Ola - Office of Hawaiian Affairs, Volume 3, Number 11, 1 Nowemapa 1986 — NHLC Report [ARTICLE]

NHLC Report

Native Hawaiian Leaal Cornoration

For many decades, East Maui irrigation (EMl), a subsidiary of Alexander and Baldwin (A&B), had diverted and transported hundreds of millions of gallons of water from the EMI watershed area along the Hana coast line to central Maui for agricultural operations. The Board of Land and Natural Resources, (BLNR) and its predecessor agencies had regularly granted water li censes to EMI for this purpose. After the McBryde water decision, the state issued a series of annual revocable permits in alternate years to EMI & A&B to continue this practice. While the license purported to respect the appurtenant and riparian rights of downstream land owners, in practice, the board had never quantified a reserved amount of water to respect these rights.

A riparian right exists when the landowner owns property abutting the stream and by the ownership is entitled to reasonable beneficial use of the property; an appurtenant right is a right whieh was attached at the time of the G reat Mahele when the King created property rights. It is especially criticai to kuleana owners for cultivation of taro and other reasonable domestic use. Over the years, various land owners growing taro experienced water shortages in the dry periods, whieh had adversely affected their ability to cultivate taro and other traditional crops on their property. In addition, the reduced flow had altered the ecosystem for various natural fresh water stream life forms. Kuleana owners traditionally have the right to obtain sufficient water to cultivate taro on their kuleana from the nearest surface water source. This appurtenant water right is superior to any other competing use of water involving the same stream source. NHLC represented several small lessees and landowners downstream of the watershed area to assert their riparian and appurtenant water rights along those streams. Initially, NHLC filed petitions for contested case hearings to quantify the reserved amount of water for these Iandowners and lessees. The BLNR rejected those peititions. After an appeai to the circuit court, NHLC won a reversal of the board's decision, and the board was required to conduct a contested case hearing prior to issuing any revocable permits for water licenses affecting the streams along the watershed area. After an appeal of that decision was filed with the Hawaii Supreme Court, the State and A&B withdrew their appeals, leaving in plaee the lower court decision. In the meantime, the board considered the issuance of a 30year water license to A&B. NHLC represented its elients in requesting another contested case hearing on that matter.

Currently, the state is attempting to schedule the contested case hearing or to reach an informal resolution of this conflict by devising a means to determine the amount of water whieh NHLC clients will need to eontinue their traditional and customary practice of growing taro. Land owners whose property abut a natural stream have a right to the natural flow of that stream for any or reasonable and beneficial use of the property. This riparian right is superior to any other competing form of water use involving the same stream except for appurtenant rights. 1 f N