Technical Report No. 150
William Kloos, Nathan Aipa, Williamson B.C. Chang
The unique situation concerning water rights in Hawaii presents some particularly difficult legal questions. This report analyzes the constitution, “taking” issues involved if Hawaii were to move from its present, judicially created system of water rights to a system allocating water based on limited-duration permits. Such a problem arises under the fifth amendment of the United States Constitution (prohibiting the taking of property without just compensation) because present Hawaiian water rights, namely riparian, appurtenant, and konohiki water rights, could be considered “property”. Replacing such rights with permits of limited duration, or the failure to grant a permit to an existing inchoate use, might therefore be considered a taking. Hence, the issue as to whether or not compensation in such cases is constitutionally compelled casts a pall of legal and economic uncertainty over the adoption of a permit system. This report develops a model for answering these questions based on the following steps: (1) the determination of the present state of water rights, (2) ascertainment of the degree to which these rights constitute “property” in a constitutional sense, (3) an assessment of the degree to which a comprehensive regulatory system is required by the constitutional amendment on water resources, (4) a discussion of the desirability of a limited-duration permit system,(5)the derivation of a test for determining whether a taking has occurred, and (6) the isolation of different factual patterns which would raise a taking question. The constitutional analysis proceeds under the assumption of a pre-McBryde state of affairs since this presents a ‘worst case’ scenario and magnifies the constitutional issues involved. In conclusion, a limited duration permit system is recommended as a constitutionally permissible and viable means of maintaining the needed flexibility to meet future demands and shifting uses.