Ka Wai Ola - Office of Hawaiian Affairs, Volume 27, Number 3, 1 Malaki 2010 — Help for navigating water rights [ARTICLE+ILLUSTRATION]

Help for navigating water rights

Ola I Ka Wai: A Legal Primer for Water Use and Management in Hawai'i

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Litigation in the Nā Wai 'Ehā and Waiāhole cases has magnified the complexities of the legal and cultural framework of water rights in Hawai'i. For example, the state water code and Constitution both recognize that kuleana land awarded at the time of the Great Mahele in the mid-19th century retains rights to the necessary amount of water to continue to cultivate crops. So-called appurtenant rights, however, continue to be at the center of several legal disputes. Critics say that the state Commission on Water Resource Management, the enforcer of the water code, lacks regulations that ean be applied to appurtenant rights. This is but a single facet of water rights of special interest to Native Hawaiians that is explained in clear and compelling detail in 01 a I Ka Wai: A Legal Primei for Water Use anel Management in Hawai'i. Written by D. Kapua'ala Sproat of the Ka Huli Ao Center for Excellence in Native Hawaiian Law

at the University of Hawai'i, and printed with funds from OHA, will help you understand your water rights and related matters of policy, permitting and eomplianee. It begins with a look back at ancient Hawai'i, when the chief with authority to manage water resources was regarded as the physical manifestation of akua. Sproat cites this fact to underscore the respect for the primacy of water in the native management system, whieh, as she goes on to point out, changed drastically with the arrival of foreigners who brought with them the concept of water as a private commodity that "goes to the highest bidder." Despite these underlying clashes, Hawai'i law makes clear that the Islands' abundant fresh waters are managed to serve the eommon good. Sounds simple, but, of course, it is not. Did you know, for example, that Hawai'i has a bifurcated water code that separates ground and surface water? If you are applying for a permit as a water user you might find yourself navigat-

ing such administrative subtleties. This primer will eome in handy. It's not intended as legal advice, but rather a guide to action,

māĒĒĒĒĒĒKī^ helping us all to respect, restore and protect the abundant waters that are everyone's to share. The primer comes complete with a glossary of definitions, a comprehensive list of resources and a eompanion CD containing constitutional provisions, water code and administrative rules and cases. — Liza Simon

A friendly guide to HawaiTs water laws. - Photo : iohn Matsuzaki

, In this file photo, attorneys Kapua Sproat and lsaac Moriwake and former OHA policy advocate Jonathan Scheuer (middle) take a time-out during a fact-find- ■ ing trip to Nā Wai 'Ehā. ^