Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 7, 1 Iulai 1990 — Homestead water issues still unresolved [ARTICLE]

Homestead water issues still unresolved

By Deborah L. Ward Fulfilling a promise made last August when he held the first congressional oversight hearings in 70 years on the Hawaiian Homes Commission Act of 1920, Senator Daniel K. Inouye returned May 30 to Moloka'i to hear testimony from homesteaders

and government witnesses at Mitchell Pauole community center. Inouye was accompanied by members of the Senate Select Committee on Indian Affairs. They went to Moloka'i to hear homestead community concerns and their reaction to state Senate Bill 3236 whieh proposes inserting a new purpose clause in the homestead act.

SB 3236 was passed by both houses in the state legislature this spring and awaited signature in June by Governor John Waihee. (Ed. note: see complete text of SB 3236 in this issue on page 5.) To become law it will need passage in Congressas an amendment to the Hawaiian Homes Commission Act. During the Moloka'i hearing whieh initiated the latest round of congressional hearings the eommittee also heard from panels of homesteaders concerned about use of water and their goals for eeonomie development and homestead enterprises.

Water nghts Inouye said during the hearings in August 1989, laek of access to water was identified as a major obstacle by homesteaders. They stressed the need for funds to develop water resources, saying that the Department of Hawaiian Home Lands cannot pay for all the costs of needed water development on homestead lands. They also voiced strong eoneem over Native Hawaiian water rights, fearful that tourism-oriented developers would get first preference. Many homesteaders believe they should have first preference use of water from homestead lands.

Many of the same concerns were expressed in the May hearings. Ho'olehua homesteaders Wilma Choy and Barbara Kalipi, Matthew Adolfo, DeGray Vanderbilt and Collette Machado were among those who testified on their concerns about water.

In response, Sen. Inouye said he had discussions with Maui county officials on ways to amortize over 20 years the cost of the required water meter, or to add it to the cost of water so residents need only pay $120 a year as compared to the current cost of $2,000 a year. He also told them a moratorium of water development on Moloka'i is not within the federal jurisdiction but promised to discuss the matter with state and county officials. Sen. John McCain, a member of Inouye's committee, suggested negotiation between concerned parties

might produce valuable results, as was the case in his home state of Arizona. Inouye invited government witnesses to explain how they are dealing with water rights and water use on homelands. Panel members included Hoaliku Drake, director of the Department of Hawaiian Home Lands, and chairman of the Hawaiian Homes Commission, William Paty, director of the Department of Land and Natural Resources and chairman of the Board of Land and Natural Resources. Also on the panel were William Tam, deputy attorney general for the State Attorney General's office, and Mahealani Kamauu, executive director of the Native Hawaiian Legal Corporation.

While they agree state law and the homestead act do protect Hawaiian water rights, the question of priority of water rights for DHHL needs is still not clear. Hoaliku Drake noted that the Hawaiian Homes Commission Act gives the Department of Hawaiian Home Lands special rights to water over and above other uses. Sect. 221, as amended by Act 24 of the 1990 state legislature, reserves to DHHL the right to use any government owned water DHHL deems necessary for agriculture operations on homestead tracts in addition to aquaculture and domestic use, if the water is not covered by a water license issued by DLNR. DHHL may also contract to use or acquire through eminent domain proceedings, the right to use any privately-owned or government-owned surplus water covered by a water license whieh does not contain a reservation of the water for public benefit.

DHHL owns 25,398 acres on Moloka'i, some parts with significant water resources. Projected demand for waterinthe year2010is 1.5milliongallons a day (mgd) for domestic uses plus 1.5 mgd for Kalamaula homestead agricultural uses. The Hawaiian Homes Commission Act and the State Admissions Act acknowiedge priority use by DHHL of water on homestead land, Drake said. DHHL has automatic first right and pre-emptive power over the state water code, she said. The state must satisfy DHHL needs, then share with other prospective users, she said. "We favor no single group" Land board chairman William Paty explained that a petition for designation of Moloka'i as a water management area is being reviewed by the

water commission. He said all future development will thus be scrutinized by the commission and require a permit. However, he noted, "We favor no single group." He said the commission is very sensitive to the needs of native Hawaiian homesteaders on Moloka'i and will eonhnue to be so.

Paty said development of a state water plan as required by the water code will serve to coordinate state water resources development and management. He warned that competition for dwindling water supplies is intense and will continue to be so. Today, DLNR and the Department of Agriculture are working to expand the system capacity especially for DHHL needs through two new deepwater wells. DLNR wants to augment the Moloka'i Irrigation System agriculture water supply. He said the commission will cooperate with DHHL for water development needed to settle future homesteaders on Moloka'i.

Deputy attorney general William Tam said DHHL has regulatory plus statutory rights to water in Section 221 and Section 168.4 of the Hawaiian Homes Commission act, and Section 101. a of the Hawai'i watercode. Article 12, section 1 of the state constitution nrotects "appurtenant rights whether they are used or not" and protects "existing correlative and npanan rights," he said. These refer to what is generally known as traditional Hawaiian water rights. Mahealani Kamauu of the Native Hawaiian Legal Corporation agreed that Section 221 provides preferential water use for homestead domestic and irrigation, and now (under Act 24) agricultural purposes. However, she disagreed with Tam that homestead rights are protected because they are still subordinate to already granted non-native uses. Kamauu cited two case studies involving homesteaders on Moloka'i and Kaua'i to make her point.

Native Hawaiian Legal Corporation recommends prompt federal action to: fund water infrastructure development to plaee beneficiaries on their lots; directly monitor water development rights through the federal Department of Justice; provide farm loans to homesteaders and needed educational support programs; and to explore alternate financing for roads and other infrastructure via the Housing and Urban Development, DHHL, state government, and with private sector and community involvement.