Ka Wai Ola - Office of Hawaiian Affairs, Volume 32, Number 12, 1 December 2015 — Re-establishing the Public Trust [ARTICLE+ILLUSTRATION]

Re-establishing the Public Trust

This month 's article is a guest pieee submitted by Kaua'i resident Matthew Bernabe.

For nearly two hundred years Westem concepts have successfully worked on converting Hawai'i's traditional land tenure system into a fee simple, privatized system. This has direct impacts on today's water issues. On Kaua'i, since the 19th century, sugar plantations controlled most water resources and

helped form the government. Large plantations helped subsidize the responsibilities and Ananeial burden for mueh of the water infrastructure and this practice allowed for mueh abuse to occur. It also prevented any attempts to challenge those abuses that were occurring. Many diversions took more than the fifty percent of the natural llow, and in many cases almost all of the water got diverted. As a result of these diversions, native species like o'opu and 'opae have stmggled, vanishing from some tributaries out right. It also led to some of Kaua'i's fertile taro lands drying out. As the sugar industry downsized and eventually left, the State and counties did a poor job of filling the void left by the plantations in maintaining the ditch systems. The County of Kaua'i held the position that its responsibility is to take care of domestic demand (household uses), while the State is responsible for other uses. This resulted in fragmented oversight of many water systems and both Kaua'i County and the State have neglected their responsibility to provide proper oversight. Hawai'i has very progressive laws that are meant to protect the water for generations to eome, such as the

puhlie trust doctrine. However, over the years the intent and implementation of these laws has been muddied. Proper manaae-

ment and enforcement has been the root of numerous legal struggles over water. As a result of a case brought here on Kaua'i, we were able to get clearer guidance on implementation of the puhlie trust doctrine from the Hawai'i Supreme Court. In Kauai Springs v. Planning Commission of the County of Kaua 'i, the court outlined basic principles to assist agencies in the application of the puhlie

trust doctrine. It should not be so difficult to carry out the intent of the puhlie trust doctrine as it reads very clearly: "For the benefit of present and future generations, the State and its poliīieal subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals, and energy sources, and shall promote the development and utilization of these resources in manner eonsistent with their conservation and furtherance of the self-sufficiency of the State." However, struggles over proper use and management of our resources continue. With clearer guidance from the courts we are hoping to make progress though. Kaua'i's water department has started to broaden its scope and is even talking about monitoring private wells. This work needs to start with updating current data on the condition of riparian and sub-surface bodies of water, then several plans for restoration and use need to be formed and followed by implementation. It won't be easy, but now we have the ability to enforce against and end abuses that have been grandfathered in from many decades ago. ■

E kala mai . In the November issue of Ka Wai Ola, an older masthead appeared that did not show the current Board of Trustees. The masthead, at left, reflects the current board. In addition, due to an editing error, the word "embraced" was misspelled in the headline to Trustee Dan Ahuna's eolumn. KWO regrets the errors. ■

Dan Ahuna VicE Chair, TrustEE, Kaua'i and Ni'ihau