A Short Course in Water Rights

posted in: August 1990, Water | 0

While the Hawai`i Water Plan attempts to plan for future water use, it does not speak directly to the issue of water rights. However, water rights are of critical importance in that they limit options for future water use policy. Here, then, is a basic description of several types of water rights in Hawai`i. Let the reader beware: The subject is terribly complex. This discussion could not possibly do justice to the all the legal shadings that must be accounted for in any final determination of what rights exist and who may claim them. (Environment Hawai`i wishes to thank David Penn for his assistance in preparing this article. He should not be held responsible for any errors it may contain.)

Throughout its evolution, the system of water rights in Hawai`i has been claimed to reflect, in varying degrees, Hawaiian land and water use practices. The accuracy of such claims has to be weighed against the fact that pre-contact Hawaiian practices are imperfectly known. Still, the current constitutional, statutory and common law protection given water rights is largely the result of manipulation, argument, and purported reconciliation of Hawaiian and haole (Western) values pertaining to water use. For example, the case of McBryde v. Robinson, which began in 1959 as a continuation of a private dispute over surface waters in the Hanapepe area of Kaua`i, established state administration of a public trust in all water. It is viewed by some as an attempt (which perhaps could only have been made in the political climate following statehood) to correct previous interpretations of Hawaiian traditions.

The present system of water rights can be seen as evolving out of four scenarios: pre-contact, pre-McBryde, post-McBryde, and Water Code. Native Hawaiian rights are yet another consideration, spanning as they do all four scenarios. While they have not been given much attention, they may turn out to be a wild card in future determinations of water use and water rights.

The Pre-Contact Scenario

Most interpretations of the period before the arrival of Westerners suggest that land and water uses were governed by a communal hierarchy of social relationships keyed to the fulfillment of reciprocal obligations. So-called konohiki rights trace back to pre-contact practices. Konohiki directed day-to-day water use to benefit overall productivity within the land unit they oversaw. The “right” to control water use was coupled with obligations to do it in certain ways.

The Pre-McBryde Scenario

Communal interests in land and water use were difficult to reconcile with a haole system of private property, but attempts were made. In general, five types of water rights were commonly recognized. One type — correlative — referred to ground water. The four others — appurtenant, prescriptive, riparian, and konohiki — concerned surface water.

Correlative rights. Under common law, the correlative doctrine of ground water rights means that lands overlying an aquifer can rightfully withdraw water from it, as long as similar use by other lands over the same aquifer is not injured. However, because the court case (City Mill v. Honolulu Sewer and Water Commission, 1929) that established this principle concerned an artesian aquifer, its applicability to other aquifer types may be debatable.

Appurtenant rights. These attach to land, but some of the mechanics of the attachment are vague and/or disputed. Today, the narrowest explanation might be that water used at the time land title was initially conveyed to and recorded by the title recipient (a process that began in 1845 and theoretically continued until 1895) may rightfully be used in connection with the same land in exactly the same way it was used at the time of title conveyance. Broader interpretations vary in their view of the types of titles and conveyances involved; the types of water uses protected; the types of lands protected; transportability of the water to other lands and uses; and transferability and extinction of the rights. Most of the water covered by these rights was used for wetland taro cultivation.

Prescriptive rights. Prescriptive water rights are also attached to land, perhaps even more vaguely than appurtenant rights. When unrightful water uses capture water already covered by water rights after a period of so-called continuous adverse use, they become protected by prescriptive rights.

Konohiki rights. Appurtenant and prescriptive rights had first priority of use. But entire land units (except for smaller land units encompassed by them, such as kuleana and ili kupono), lands documented as “konohiki lands,” or lands whose title passed from persons documented as “konohiki” could rightfully use so-called “normal surplus” flowing on or along them. (Any flow left after the exercise of appurtenant and prescriptive rights was a “normal surplus.”) Unlike appurtenant, prescriptive, and riparian rights, which had to be exercised with regard for other rights in the same class, konohiki rights allowed virtually unrestricted use of normal surplus waters. Thus, they were more like property rights than were other use rights, and were sold separately from the land from which they arose. Water used under konohiki rights was often transported for use on other lands and in other land units.

Riparian rights. Riparian water rights are attached only to land through or along which surface water flows. Both pre- and post-McBryde, riparian water rights are protected under common law. In each scenario, the “natural flow” principle applies, meaning that each rightful riparian use cannot injure other rightful riparian uses of the same water, and must maintain “the natural flow of the stream without substantial diminution in the shape and size given it by nature.”

The Post-McBryde Scenario

The McBryde decision was rendered by the state Supreme Court in 1973, then reversed in U.S. District Court in 1977, on the ground that the state decision violated the private property rights of water users. The U.S. Supreme Court sent the case back for reconsideration to the U.S. District Court, which in 1987 reaffirmed its earlier reversal. In 1989, the original state decision was upheld by the U.S. Circuit Court of Appeals.

When the state Constitutional Convention met in 1978, litigation in the McBryde case was still pending. It is likely that portions of the state Constitution relating to water may have been designed to anticipate any possible outcome of the case, with convention delegates bearing in mind both the 1973 decision at the state level and the 1977 reversal in federal district court.

Another legal precedent — Reppun v. Honolulu Board of Water Supply (1983) — helped shape water rights in post-McBryde and Water Code scenarios. In Reppun, the Board of Water Supply was directed by the state Supreme Court to reduce its ground-water pumping, since the pumping reduced the flow of Waihe`e Stream, injuring downstream taro crops.

Correlative rights. While not given special mention in the state Constitution, Article XI, § 7 assures “existing correlative uses.”

Appurtenant rights. The Constitution gives appurtenant rights somewhat stronger protection. Article XI, § 7 requires criteria for water use priorities to be established “while assuring appurtenant rights.”

Prescriptive rights. Under McBryde, prescriptive rights cannot be created where rights are attached to the state. However, the status of continuing water uses that were previously covered by rights prescribed against state’s rights is a critical issue. These rights are not mentioned in the Constitution.

Konohiki rights. These effectively ceased to exist in the post-McBryde scenario, although use of what was previously called “surplus” water continues. Under the natural flow principle of riparian doctrine, however, there can be no “surplus,” since all flows are accounted for by appurtenant and riparian rights. Because McBryde establishes state administration of a public trust in all water, ongoing uses originating in konohiki rights cannot claim status under prescriptive rights.

Riparian rights. These remain protected under common law in the post-McBryde scenario. However, the Reppun case added a new twist, stating that riparian rights are a “product of the people’s statutory rights to ‘flowing’ and ‘running’ water currently embodied in HRS 7-1,” and cannot be severed from the land “in any fashion.” As in the pre-McBryde scenario, the “natural flow” principle still applies. Expansion of the “natural flow” principle might even address the rights of ocean water to receive surface and sub-surface water inflow.

The Reppun case seems also to apply the riparian “reasonable flow” principle, which mandates consideration of the public interest in determining water rights protection. In the Constitution, “existing riparian uses” are assured.

The Water Code Scenario

This period begins in 1987, the year the state Water Code was passed into law (HRS 174C). Thus, it would appear that Hawai`i’s water rights system is at present governed by a vague combination of principles established in the state Constitution, the Water Code, the McBryde case (resolved only this year, when the period for appeals expired), and Reppun.

Through various administrative procedures, the Commission on Water Resource Management is empowered by the Water Code to sanction almost any water use it deems “reasonable-beneficial” and to exercise varying degrees of control over such uses.

Correlative rights. Correlative rights are not explicitly mentioned in the Water Code. Ground water uses can be certified as “reasonable-beneficial,” and can be permitted in designated Water Management Areas. Existing sources must be registered, and new wells must pass a two-stage permitting process for well-construction and pump installation. Neither the Code nor the Water Plan appears to provide specific policy guidelines or decision-making criteria for allocating ground-water use. In some areas, however, sustainable ground-water yields have already been attained or allocated, although all of the correlative rights in the aquifer are not yet being exercised. Thus, the question of ground water allocation with reference to correlative rights will probably weigh heavily on the Commission in the future.

Appurtenant rights. Part IV, § 63 of the Water Code states that “Appurtenant rights are preserved. Nothing in this part shall be construed to deny the exercise of an appurtenant right.” This is restated in Part IX, § 101: “The appurtenant water rights of kuleana and taro lands … assured in this section shall not be diminished or extinguished by a failure to apply for or to receive a permit under this chapter.” However, in designated water management areas, permits for water uses based on existing appurtenant rights can be permanently revoked under conditions stated in § 58 of the Code, and can be adjusted during water shortages as described in § 62.

Prescriptive rights. These are not explicitly mentioned in the Water Code. As in the post-McBryde scenario, uses previously covered by rights prescribed against state’s rights continue to be an issue.

Konohiki rights. Uses begun under konohiki rights can be certified as “reasonable and beneficial” by the Commission. In designated water management areas, permits for these uses can be issued. However, the Code does not specifically mention konohiki rights or konohiki uses. Much of the surface water currently used by plantations was claimed under konohiki rights, and will certainly be a primary focus of Commission’s attention.

Riparian rights. The Water Code, following Reppun, seems to lean toward the “reasonable flow.” Many of the Commission’s procedures mandated by the Water Code also speak to public interest and “reasonable-beneficial use” considerations. The Commission’s future work will undoubtedly involve trade-offs between two riparian principles (reasonable flow versus natural flow) and between riparian and public interest doctrines.

In addition, Part 6, § 71(4) of the Code directs the Commission to “Establish an instream flow protection program to protect, enhance, and re-establish, where practicable, beneficial instream uses of water.” Part 6, § 71(1)(E) implies the Commission’s power to “preserve, enhance, or restore instream values.” Thus, the common and statutory law seem to provide means for restoring water to streams whose flow is presently diminished by surface-water diversion and the withdrawal of affiliated groundwater.

Native Hawaiian Water Rights

Assuming that konohiki water rights (if not uses) are now out of the way, Native Hawaiian water rights seem to be the most important issue. They may include, but are probably not limited, to: 1. Rights provided for by the Hawaiian Homes Commission Act; 2. Federally reserved water rights akin to those accruing to Indian reservations; 3. Traditional and customary rights of native tenants protected by the state Constitution; 4. Rights to instream uses that protect traditional and customary Hawaiian rights; 5. The appurtenant water rights of kuleana and taro lands; 6. Rights flowing from HRS 175 relating to the Moloka`i Irrigation System; and 7. Rights to trust revenues from water licenses.

Because many of these rights are not explicitly defined, expansive definitions can be argued. Native Hawaiian water rights can potentially cover virtually all of the water in Hawai`i.

Volume 1, Number 2 August 1990