Ka Wai Ola - Office of Hawaiian Affairs, Volume 11, Number 3, 1 March 1994 — OHA outlines recommendations for water code [ARTICLE+ILLUSTRATION]

OHA outlines recommendations for water code

by Patrick Johnston "The most important point regarding the revision of the water code is that native Hawaiians do have water rights and they must be secured for the future." UH law professor and OHA counsel Jon Van Dyke presented this and other OHA recommendations to the Review Commission on the State Water Code at a pubhc workshop held Jan. 26 in Mabel Smyth auditorium. Van Dyke noted that, under the Hawai'i constitution, the Office of

Hawaiian Affairs has the power and responsibihty to make policy regard-

1 ing Hawaiian rights to natural i resources and the management of I these resources. OHA proposals include updating I the 1921 Hawaiian Homes I Commission Act and the seven-year- ! old water code so they more accurateI ly reflect the modern eeonomie activiI ties most Hawaiians are engaged in. "It is important to modemize water I rights," Van Dyke pointed out, adding I that most Hawaiians do not, and wih I not, be doing the kinds of things laid I out in the 1921 Hawaiian Homes I Commission Act and water code. HHCA and the water code give preferential treatment to the water

needs of homesteaders and the traditional water rights of Hawaiians. These include gathering rights to 'ōpae, hihiwai, and 'o'opu, and appurtenant rights to guarantee enough water for cultivating taro and other traditional uses. Van Dyke said it was important now to include activities such as industry or resort development that are more in line with Hawai'i's modem economy. Other OHA recommendations presented by Van Dyke included increasing the number of water commission members from six to eight and making sure that the native Hawaiian community is represented in the eight. For starters, OHA recommends including the chair of the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands. Van Dyke added that, "When a Hawaiian nahon is created, these positions would be transferred to leaders of the new nation."

OHA would also like the water commission to take a more aggressive water management stance and designate the whole state a water management area. Now, the commission has taken what has been termed a "crisis management" approach, only designating islands where water supplies are threatened. Regarding the controversial issue of quantification, Van Dyke explained that quantifying water rights based on present demonstrable needs - a move most technicians and engineers support — was impossible because no one is certain about what kind of water needs Hawaiians will have in the future. Instead, OHA is recommending that the commission reserve water for Hawaiians based on estimated future use. OHA also recommends that the commission allow temporary non-Hawaiian uses of reserved water only on the condition that these would be reduced if Hawaiian needs increase, and deny those that infringe on native Hawaiian uses. Van Dyke insisted that Hawaiian rights to water exist regardless of whether they ean be quantified. "The right is its own measurement," he said.

OHA is also recommending that a 30-year ceiling be put on water permits and that fees be put in plaee that would help build infrastructure to deliver water to Hawaiians and others. Other recommendations include having the water commission look into the loss of kuleana lands brought about by the building of irrigation ditches on various islands, and giving attention to the water needs of Kaho'olawe.

Maui stream