Technical Report No. 173
Williamson B.C. Chang
During the nine years since the enactment of the amendment to the state constitution calling for a water code, those proposing various codes have faced four main problems identified here as (1) the ownership question, (2) the question of which agency shall ultimately control water allocation, (3) relationship between the state and counties, and (4) the question of Native Hawaiian water rights. Early debate on various codes focused on the issue of ownership. Many parties incorrectly assumed that government regulation could only be based on government ownership of water. The confusion was exacerbated by the decision in McBryde v. Robinson which purported to give corporeal ownership of the water to the state. This report discusses limited duration permit systems that grant the government the power to allocate water without reliance on ownership. Two of the major issues focus on the proper governmental agency for regulation of water. The counties have opposed statewide control over water allocation for fear that the decisions made in Honolulu will not reflect local concerns and out of a concern that county land-use planning decisions will not be supported by water allocation decisions made by a state agency. Secondly, the Department of Health expressed fears that its water quality decisions could be bypassed by powers lodged in the Department of Land and Natural Resources. The last major issue focuses on respect for traditional Native Hawaiian water rights that are not clearly defined. The various codes present the possibility that such claims would be nullified. Such a scenario would represent a perpetuation of harm done to the Native Hawaiian which began with the alienation of land from the Hawaiian in the middle nineteenth century.