Ka Wai Ola - Office of Hawaiian Affairs, Volume 38, Number 8, 1 August 2021 — What are “Appurtenant” Water Rights? [ARTICLE+ILLUSTRATION]

What are “Appurtenant” Water Rights?

By Wayne Tanaka, OHA Public Policy Manager Appurtenant water rights, also known as "appurtenant rights of kuleana and taro lands," are expressly recognized in our constitution and state water

code, and, along with Native Hawaiian traditional and customary practices and other "public trust purposes," merit the highest consideration and priority in the allocation of our public trust water resources. These rights are attached to kuleana and other lands in cultivation during the Mahele, and generally allow current landowners to make a elaim for the amount of water that was being used on their land at the time it was originally converted into fee simple (i.e., during the Mahele). The Hawai'i Supreme Court has recognized and reaffirmed that these rights cannot be reserved by a landowner when selling their lands, and that these rights ean be lost or extinguished if a sale of land "reserves" appurtenant water rights for the seller. Accordingly, the historical practice of large landowners trying to "reserve" their appurtenant water rights when selling their lands to developers or others effectively extinguished these rights. The recent Nō Wai 'Ehō Decision and Order (D&0) continues to recognize the priority that appurtenant water rights should have in allocating water from Nō Wai 'Ehā, and also acknowledges the Hawai'i Supreme Court holding that these rights ean be extinguished if landowners try to reserve them for themselves when selling their land. However, questions remain as to why the D&0 appears to award Wailuku Country Estates 6 million gallons per day, based on their claims to appurtenant rights that have already been shown to have been extinguished. Even more questions remain as to why kalo farmers and others who have already established their appurtenant water rights during the decade-plus long contested case hearing must now produce deeds going back to the Mahele to prove that their rights were never extinguished.