§220.  Development projects; appropriations by legislature; bonds issued by legislature; mandatory reservation of water.  (a)  Subject to subsection (d), the department is authorized directly to undertake and carry on general water and other development projects in respect to Hawaiian home lands and to undertake other activities having to do with the economic and social welfare of the homesteaders, including the authority to derive revenue from the sale, to others than homesteaders, of water and other products of such projects or activities, or from the enjoyment thereof by others than homesteaders, where such sale of products or enjoyment of projects or activities by others does not interfere with the proper performance of the duties of the department; provided that roads through or over Hawaiian home lands, other than federal-aid highways and roads, shall be maintained by the county in which the particular road or roads to be maintained are located.

     (b)  The legislature is authorized to appropriate out of the treasury of the State such sums as it deems necessary to augment the funds of the department and to provide the department with funds sufficient to execute and carry on such projects and activities.  The legislature is further authorized to issue bonds to the extent required to yield the amount of any sums so appropriated for the payment of which, if issued for revenue-producing improvements, the department shall provide, as set forth in section 213.

     (c)  To enable the construction of irrigation projects which will service Hawaiian home lands, either exclusively or in conjunction with other lands served by such projects, the department is authorized, with the approval of the governor, and subject to subsection (d), to:

     (1)  Grant to the board of land and natural resources, or to any other agency of the government of the State or the United States undertaking the construction and operation of such irrigation projects, licenses for rights-of-way for pipelines, tunnels, ditches, flumes, and other water conveying facilities, reservoirs, and other storage facilities, and for the development and use of water appurtenant to Hawaiian home lands;

     (2)  Exchange available lands for public lands, as provided in section 204 of this Act, for sites for reservoirs and subsurface water development wells and shafts;

     (3)  Request any such irrigation agency to organize irrigation projects for Hawaiian home lands and to transfer irrigation facilities constructed by the department to any such irrigation agency;

     (4)  Agree to pay the tolls and assessments made against community pastures for irrigation water supplied to such pastures; and

     (5)  Agree to pay the costs of construction of projects constructed for Hawaiian home lands at the request of the department, in the event the assessments paid by the homesteaders upon lands are not sufficient to pay such costs;

provided that licenses for rights-of-way for the purposes and in the manner specified in this section may be granted for a term of years longer than is required for amortization of the costs of the project or projects requiring use of such rights-of-way only if authority for such longer grant is approved by an act of the legislature of the State.  Such payments shall be made from, and be a charge against the Hawaiian home operating fund.

     (d)  For projects pursuant to this section, sufficient water shall be reserved for current and foreseeable domestic, stock water, aquaculture, and irrigation activities on tracts leased to native Hawaiians pursuant to section 207(a). [Am Jul. 10, 1937, c 482, 50 Stat 507; Nov. 26, 1941, c 544, §6, 55 Stat 786; Jun. 14, 1948, c 464, §7, 62 Stat 393; Aug. 1, 1956, c 855, §1, 70 Stat 915; am L 1963, c 207, §§2, 5(a); am L 1986, c 249, §4; am L 1991, c 325, §2]


Cross References


  Bond issues, see Organic Act, §55 and HRS chapters 39, 47, and 49.

  Water or irrigation projects, see §§167-13, 167-14; §174-13.


Attorney General Opinions


  Lien on lands as security for improvement bonds is not authorized.  Att. Gen. Op. 63-25.


Law Journals and Reviews


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

Case Notes


  Pursuant to article XI, §§1 and 7 of the Hawaii constitution, subsection (d) of this 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.

  Where commission on water resource management refused to permit cross examination of water use applicant's oceanography expert regarding the limu population along the shoreline, in effect precluding the commission from effectively balancing the applicant's proposed private commercial use of water against an enumerated public trust purpose, the commission failed adequately to discharge its public trust duty to protect native Hawaiians' traditional and customary gathering rights, as guaranteed by this section, article XII, §7 of the Hawaii constitution, and §174C-101.  103 H. 401, 83 P.3d 664.