WATER RESOURCES

 

     Section 7.  The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.

     The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources. [Add Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  State water code, see chapter 174C.

 

Attorney General Opinions

 

  The Hawaii constitution does not include any provision for geothermal resources analogous to that afforded to water under this section; the same level of protection and interest-balancing afforded to water resources are not applicable to geothermal resources.  Att. Gen. Op. 14-1.

 

Law Journals and Reviews

 

  Private Hopes and Public Values in the "Reasonable Beneficial Use" of Hawaii's Water:  Is Balance Possible?  18 UH L. Rev. 1.

  Cultures in Conflict in Hawai`i:  The Law and Politics of Native Hawaiian Water Rights.  18 UH L. Rev. 71.

  Proceedings of the 2001 Symposium on Managing Hawai`i's Public Trust Doctrine.  24 UH L. Rev. 21.

  Native Hawaiian Homestead Water Reservation Rights:  Providing Good Living Conditions for Native Hawaiian Homesteaders.  25 UH L. Rev. 85.

  Biopiracy in Paradise?:  Fulfilling the Legal Duty to Regulate Bioprospecting in Hawai`i.  28 UH L. Rev. 387.

  Water Regulation, Land Use and the Environment.  30 UH L. Rev. 49.

  Where Justice Flows Like Water:  The Moon Court's Role in Illuminating Hawai`i Water Law.  33 UH L. Rev. 537 (2011).

  A New Narrative:  Native Hawaiian Law.  39 UH L. Rev. 233 (2016).

 

Case Notes

 

  Although the public trust doctrine and the state water code share similar core principles, the code does not supplant the protections of the public trust doctrine.  94 H. 97, 9 P.3d 409.

  In denying water use permit application, water resource management commission did not wrongfully ignore and abridge petitioner's "ali‘i rights" where, to the extent that the ali‘i exercised sovereign authority over water, they received such authority by delegation from the sovereign; pursuant to constitutional and statutory mandate, final delegated authority presently resides in the commission, to be exercised for the benefit of the people of the State.  94 H. 97, 9 P.3d 409.

  The maintenance of waters in their natural state constitutes a distinct "use" under the water resources trust.  94 H. 97, 9 P.3d 409.

  The rule of correlative rights applies to all ground waters of the State.  94 H. 97, 9 P.3d 409.

  The state water resources trust embodies the following fundamental principles:  the State has both the authority and duty to preserve the rights of present and future generations in the waters of the State; and the State bears an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.  94 H. 97, 9 P.3d 409.

  This section and article XI, §1 of the Hawaii constitution adopt the public trust doctrine as a fundamental principle of constitutional law in Hawaii.  94 H. 97, 9 P.3d 409.

  Under this section, article XI, §1 of the Hawaii constitution and the sovereign reservation, the public trust doctrine applies to all water resources, unlimited by any surface-ground distinction.  94 H. 97, 9 P.3d 409.

  Pursuant to this section and §1 of the Hawaii constitution, §220(d) of the Hawaiian Homes Commission Act, and §174C-101(a), a reservation of water constitutes a public trust purpose.  103 H. 401, 83 P.3d 664.

  Where commission on water resource management failed to render the requisite findings of fact and conclusions of law with respect to whether applicant had satisfied its burden as mandated by the state water code, it violated its public trust duty to protect the department of Hawaiian home lands' reservation rights under the Hawaiian Homes Commission Act, the state water code, the state constitution, and the public trust doctrine in balancing the various competing interests in the state water resources trust.  103 H. 401, 83 P.3d 664.

  As the department of Hawaiian home lands' reservation of water did not constitute an "existing legal use" for purposes of §174C-49(a)(3) but a public trust "purpose", commission on water resource management was obligated to take this reservation into account in the planning and allocation of water resources and to protect it whenever feasible, as this public trust purpose status made it superior to private interests in the resources at any given time; however, commission was not precluded from approving uses which may compromise this reservation, as long as commission's decision was "made with a level of openness, diligence, and foresight".  116 H. 481, 174 P.3d 320.

  Commission on water resource management failed in its public trust duty to hold water use permit applicant to its burden of demonstrating the absence of other practicable alternative sources of water when it reserved consideration of feasible alternative sources of water until after the "new uses" water permit had been granted; commission thus failed to establish an adequate basis for the amount of "new uses" water allocated to applicant.  116 H. 481, 174 P.3d 320.

  The planning commission's findings of fact were not erroneous and its conclusions of law were correct, viewed in light of the duties and authority mandated by the public trust; therefore its decision to deny applicant's permits was not arbitrary and capricious.  133 H. 141, 324 P.3d 951 (2014).

  Where the public utilities commission dealt not with a proposed use, but rather a rate increase that did not increase the amount of water used or change how the water was extracted, and the utility's effect on the public trust water resources would be the same whether or not the rate increase was approved by the commission, the commission's rate approval had no effect on the public trust; thus, the commission did not violate the public trust doctrine.  127 H. 234 (App.), 277 P.3d 328 (2012).

 

 

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