Ka Wai Ola - Office of Hawaiian Affairs, Volume 3, Number 12, 1 December 1986 — NHLC Report [ARTICLE]

NHLC Report

Native Hawaiian Leaal Corporation

More on Water

By Mahealani Ing Executive Director

In the last issue we discussed some problems whieh ean arise when small farmers and large commercial users compete for the same water resource — more often than not, the small farmers lose out. The Native Hawaiian Legal Corporation is an especial advocate of the kuleana farmer who wishes to grow taro or otherwise engage in traditional agricultural pursuits. As previously discussed, kuleana farmers have appurtenant rights. This means they are entitled to as mueh water as is reasonable to support their farming aetivities. These rights have been preserved and protected through statutory and case law since the Great Mahele, and are superior to the riparian rights whieh entitle an owner whose property is next to a stream to the natural flow of that stream for the beneficial use of his property.

Although kuleana farmers have the above-described "superior" rights, they have often had to go to court to enforce them. lt is no exaggeration to say that this is often a "David and Goliath" situation, with the large landowner rallying staggering legal and financial resources against the small farmer. In one case, NHLC fought for over two years before it finally won a court decision in favor of its client. Our present system leaves the kuleana owner to his risk and cost of enforcing rignts in court. This hardship has been advanced as one reason why many kuleana have been abandoned.

In 1978, delegates to Hawaii's Constitutional Convention recognized that although the state had repeatedly stated its intent to support diversified agriculture, the water allocation system under whieh it was operating, whieh essentially allowed the highest bidder to get the water, did not support that policy. It therefore mandated the creation of an independent agency whieh would have overall responsibility for water regulation and conservation.

Implementing legislation, the proposed State Water Code, has been before the Legislature during the last two sessions. Its enactment would create an administrative permit type system to regulate water use. Predictably, big business is against it; small farmers support it. The counties have generally opposed a statewide permitting system because they feel decisions regarding water allocation should be left to the affected county. Opponents of the Code feel it is anti-business legislation because it inhibits long-range planning and financing. Commercial users have no assurance of eontinuing availability of water under the Code. They have therefore supported 50-year, or even longer, openended, permit periods.

Proponents feel continuing under the unregulated market-oriented system presently in plaee is unacceptable for it promotes the inequitable situation described with the small taro farmer above. Presently, 63 percent of Hawaii's water is controlled by large commercial users. Proponents further believe a short term permit system would allow the state and counties to gradually amortize present uses to shift them towards democratically agreed upon development goals. Thus, the Water Code would be a device to avoid water shortages and crises. It would also be a means of implementing desired development objectives by insuring the availability of water. Current costs of water make it extremely difficult for small farmers to make a living from their land. Public policy whieh allocates water to small agricultural users must be adopted if we are to achieve this public good.