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GOT WATER?

Thursday, July 20th, 2006

Part 4: A serious look into current water issues finalizes the series.

Water is critical to our existence on this little island called Molokai in the middle of the Pacific Ocean, but many times it’s mired in law. Most of Hawaii’s water laws are based on English common law with a Hawaiian twist that includes native gathering rights. In the state constitution it states, “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua`a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Island prior to 1778, subject to the right of the State to regulate such rights”.

In 1990, the State Legislature enacted the State Water Code that established a priority of water rights, with Hawaiian Homesteaders and taro farmers on their ancestral lands at the top of this list. Hawaiian Homesteaders have first rights to this water and also the right to reserve water for future use of their lands. This priority is part of the state’s trust responsibility in enforcing and implementing the Hawaiian Homes Act of 1920, transferred to them by the federal government when Hawaii became a state. Yet on many occasions, the state agency responsible for enforcing the State Water Code, the Department of Land and Natural Resources Commission on Water Resource Management (CWRM), has not interpreted the law correctly.