HOUSE OF REPRESENTATIVES
THIRTY-FIRST LEGISLATURE, 2021
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO DISPOSITION OF WATER LICENSES BY THE BOARD OF LAND AND NATURAL RESOURCES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 171-58, Hawaii Revised Statutes, is amended to read as follows:
"§171-58 Minerals and water rights. (a) Except as provided in this section, the right to any mineral or surface or ground water shall not be included in any lease, license, agreement, or sale, this right being reserved to the State; provided that the board may make provisions in the lease, license, agreement, or sale, for the payment of just compensation to the surface owner for improvements taken as a condition precedent to the exercise by the State of any reserved rights to enter, sever, and remove minerals or to capture, divert, or impound water.
(b) Disposition of mineral rights shall be in accordance with the laws relating to the disposition of mineral rights enacted or hereafter enacted by the legislature.
(c) Disposition [
of] for water [ rights]
may be made by [ lease] license at public auction or by direct
negotiation as provided in this chapter for a term of no more than thirty
years, or by permit for temporary use on a month-to-month basis under those
conditions which will best serve the interests of the State and subject to a
maximum term of one year and other restrictions under the law; provided that [ any]:
(1) A license for water may be disposed of through direct negotiation, without recourse to public auction; provided that the license rental for water shall be at fair market value determined by independent appraisal. Prior to approving a direct license, the board shall publish a request for interest and request for qualifications notice inviting persons to express their interest in the license for water and their qualifications as potential licensees. The notice shall be given at least once statewide and at least once in the county in which the land is located and shall contain:
(A) The qualifications required of eligible licensees;
(B) A general description of the land, water, and any improvements on the land appurtenant to the use of the water;
(C) The proposed use and amount of the water to be allowed under the license;
(D) The closing date and manner by which a person shall indicate interest and submit a statement of qualifications; and
(E) Notice that a current business plan that shall include the proposed use and amount of the water is a prerequisite to participate at time of auction or direct negotiation, if applicable, and shall be made a term of the license.
The board shall, in its sole discretion, determine if any persons have qualified under the terms of the request for qualifications and shall notify all persons who expressed interest as to whether they qualified. If the board determines there is no more than one potential qualified bidder, then the board may dispose of a license for water by direct negotiation, without recourse to public auction;
(2) In determining the fair market value for the license for water, the following factors may be considered, where appropriate:
(A) The amount of water diverted and the proposed use of water allowed under the license;
(B) The amount of water diverted in proportion to the amount of water available from the diversion source;
(C) The costs of delivery of the water;
(D) The avoided cost to the licensee of obtaining the water from practicable alternative sources;
(E) The net economic benefit to the licensee;
(F) The value contributed by the licensee for watershed management pursuant to subsection (e); and
(G) The public benefit provided from the use of water pursuant to section 174C-2;
(3) If the licensee disagrees with the fair market value for the license for water, the board shall have sole discretion to resolve the dispute; provided that such resolution is consistent with the public trust doctrine;
(4) Any disposition
lease] license for water shall be subject to disapproval by
the legislature by two-thirds vote of either the senate or the house of
representatives or by majority vote of both in any regular or special session
next following the date of disposition; [ provided further that after] and
a certain land or water use has been authorized by the board subsequent to
public hearings and conservation district use application approval, and [
impact statement approvals,] complies with chapter 343, water used
in nonpolluting ways, for nonconsumptive purposes because
it is returned to the same stream or other body of water from which it was
drawn, and essentially not affecting the volume and quality of water or biota in
the stream or other body of water, may also be [ leased] licensed by
the board with the prior approval of the governor and the prior authorization
of the legislature by concurrent resolution.
(d) Any [
lease of] license for water
[ rights] shall contain a covenant on the part of the [ lessee] licensee
that the [ lessee] licensee shall provide from waters [ leased]
licensed from the State under the [ lease] license or from
any water sources privately owned by the [ lessee] licensee to any
farmer or rancher engaged in irrigated pasture operations, crop farming, pen
feeding operations, or raising of grain and forage crops, or for those public
uses and purposes as may be determined by the board, at the same rental price
paid under the [ lease,] license, plus the proportionate actual
costs, as determined by the board, to make these waters available, so much of
the waters as are determined by the board to be surplus to the [ lessee's]
licensee's needs and for that minimum period as the board shall
accordingly determine; provided that in lieu of payment for those waters as the
State may take for public uses and purposes the board may elect to reduce the
rental price under the [ lease of] license for water [ rights]
in proportion to the value of the waters and the proportionate actual costs of
making the waters available. [ Subject
to the applicable provisions of section 171-37(3), the] The board,
at any time during the term of the [ lease of] license for water [ rights],
may withdraw from waters [ leased] licensed from the State and
from sources privately owned by the [ lessee] licensee so much
water as it may deem necessary to (1) preserve human life and (2) preserve
animal life, in that order of priority; and that from waters [ leased] licensed
from the State, the board, at any time during the term of the [ lease
of] license for water [ rights], may also withdraw so much
water as it may deem necessary to preserve crops; provided that payment for the
waters shall be made in the same manner as provided in this section.
(e) Any new [
lease of] license for water
[ rights] shall [ contain a covenant that requires] require
the [ lessee] licensee and the department [ of land and natural
resources] to jointly develop and implement a watershed management plan[ .]
that prioritizes the availability of water resources from forested watersheds.
The board shall not [ approve] issue
any new [ lease of] license for water [ rights] without [ the
foregoing covenant or] a watershed management plan[ .] and a
commitment from the licensee to assist in implementation of the watershed management
board shall prescribe the minimum content of a watershed management plan[ ;]
developed pursuant to this section;
provided that the watershed management plan shall require the prevention of the
degradation of [ surface water and ground water quality] water resources
from forested watersheds to the extent that degradation can be avoided
using reasonable management practices.
Upon renewal, any lease of water rights
shall contain a covenant that requires the lessee and the department of land and
natural resources to jointly develop and implement a watershed management plan.
The board shall not renew any lease of
water rights without the foregoing covenant or a watershed management plan. The board shall prescribe the minimum content
of a watershed management plan; provided that the watershed management plan
shall require the prevention of the degradation of surface water and ground
water quality to the extent that degradation can be avoided using reasonable
management practices.] The board shall consult with the commission on water
resource management to determine whether the proposed disposition is consistent
with chapter 174C.
(g) The department [
of land and natural
resources] shall notify the department of Hawaiian home lands of its intent
to execute any new [ lease, or to renew any existing lease of water rights.]
license for water. After consultation
with affected beneficiaries, these departments shall jointly develop a reservation
of water rights sufficient to support current and future homestead needs. Any [ lease of] license for water
[ rights or renewal] shall be subject to the rights of the department of
Hawaiian home lands as provided by section 221 of the Hawaiian Homes Commission
(h) This section shall not apply to any authorization of instream, in-watershed use of water for wetland kalo cultivation done in a traditional manner."
SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 4. This Act shall take effect on January 1, 2050.
Water License; BLNR
Clarifies the conditions and manner in which the board of land and natural resources may dispose of water by license. Effective 1/1/2050. (HD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.