Bill Text: HI HB501 | 2022 | Regular Session | Introduced
Bill Title: Relating To Water Rights.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2021-12-10 - Carried over to 2022 Regular Session. [HB501 Detail]
Download: Hawaii-2022-HB501-Introduced.html
HOUSE OF REPRESENTATIVES |
H.B. NO. |
501 |
THIRTY-FIRST LEGISLATURE, 2021 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to water rights.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that when private property in land was created during the Great Mahele and as noted by the Hawaii supreme court in McBryde Sugar Co. v. Robinson, 54 Haw. 174 (1973), the "right to water was not intended to be, could not be, and was not transferred to the awardee, and the ownership of all water in natural watercourses streams and rivers remained in the people of Hawaii for their common good." This principle has been reaffirmed by the people of Hawaii in the state constitution under article XI, sections 1 and 7.
The legislature further finds that a primary source of funding for the implementation of the Hawaiian homes commission act, since its passage by congress in 1921, was to be from thirty per cent of the receipts derived from water licenses, codified in section 213 of the Hawaiian homes commission act, 1920, as amended, and article XII, section 1 of the state constitution. However, the legislature finds that the statute for issuing and pricing water leases and licenses has not been clarified to reflect the constitutional provisions that all water is held by the State in trust.
The legislature also finds that because all water is held by the State in trust, there is significant inequity in the application of water leasing law, where only water that is immediately and completely diverted from state owned land parcels has been required to obtain a lease. While statutory leasing provisions require that water leases be priced at fair market value, this cannot be reliably, consistently, or fairly done since no private market in water rights exists in Hawaii.
Instead of seeking to rapidly, consistently, and fairly apply pricing and the overall applicability of the licensing process for water resources consistent with the understanding that water is a public trust resource, the department of land and natural resources has moved slowly and inconsistently to implement provisions relating to minerals and water rights. The slow and inconsistent application of minerals and water rights has not only caused significant and notable controversy across the State, but the amount of revenue generated from water leases and licenses has declined significantly over time, even as the economic value of water for agricultural, renewable energy, and commercial purposes has risen.
The legislature finds that since the revenues from the licensing of water support programs for watershed management by the department of land and natural resources, the betterment of conditions of native Hawaiians and Hawaiians by the office of Hawaiian affairs, and operation of the native Hawaiian rehabilitation fund, improvements in the pricing provisions and overall application of minerals and water rights is in the best interest of the State.
Accordingly, the purpose of this Act is to:
(1) Require
that any disposition of water rights by the State shall comply with minerals
and water rights requirements;
(2) Prohibit the disposition of water rights for less than a certain percentage of the cost of the least expensive alternative source of water of similar quality and purpose, except for water leases or licenses issued for instream traditional and customary native Hawaiian practices; and
(3) Require the department of land and natural resources, commission on water resource management, and department of Hawaiian home lands to report on the application of minerals and water rights and make recommendations for improvement.
SECTION 2. Section 171-58, Hawaii Revised Statutes, is amended to read as follows:
"§171-58 Minerals and water rights. (a) Except as provided in this section the right to any mineral or surface or ground water shall not be included in any lease, agreement, or sale, this right being reserved to the State; provided that the board may make provisions in the lease, agreement, or sale, for the payment of just compensation to the surface owner for improvements taken as a condition precedent to the exercise by the State of any reserved rights to enter, sever, and remove minerals or to capture, divert, or impound water.
(b) Disposition of mineral rights shall be in accordance with the laws relating to the disposition of mineral rights enacted or hereafter enacted by the legislature.
(c) Disposition of water rights may be made by lease at public auction as provided in this chapter or by permit for temporary use on a month-to-month basis under those conditions which will best serve the interests of the State and subject to a maximum term of one year and other restrictions under the law; provided that any disposition by lease shall be subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by majority vote of both in any regular or special session next following the date of disposition; provided further that after a certain land or water use has been authorized by the board subsequent to public hearings and conservation district use application and environmental impact statement approvals, water used in nonpolluting ways, for nonconsumptive purposes because it is returned to the same stream or other body of water from which it was drawn, essentially not affecting the volume and quality of water or biota in the stream or other body of water, may also be leased by the board with the prior approval of the governor and the prior authorization of the legislature by concurrent resolution.
(d) Any lease of water rights shall contain a covenant on the part of the lessee that the lessee shall provide from waters leased from the State under the lease or from any water sources privately owned by the lessee to any farmer or rancher engaged in irrigated pasture operations, crop farming, pen feeding operations, or raising of grain and forage crops, or for those public uses and purposes as may be determined by the board, at the same rental price paid under the lease, plus the proportionate actual costs, as determined by the board, to make these waters available, so much of the waters as are determined by the board to be surplus to the lessee's needs and for that minimum period as the board shall accordingly determine; provided that in lieu of payment for those waters as the State may take for public uses and purposes the board may elect to reduce the rental price under the lease of water rights in proportion to the value of the waters and the proportionate actual costs of making the waters available. Subject to the applicable provisions of section 171-37(3), the board, at any time during the term of the lease of water rights, may withdraw from waters leased from the State and from sources privately owned by the lessee so much water as it may deem necessary to (1) preserve human life and (2) preserve animal life, in that order of priority; and that from waters leased from the State the board, at any time during the term of the lease of water rights, may also withdraw so much water as it may deem necessary to preserve crops; provided that payment for the waters shall be made in the same manner as provided in this section.
(e) Any new lease of water rights shall contain a covenant that requires the lessee and the department of land and natural resources to jointly develop and implement a watershed management plan. The board shall not approve any new lease of water rights without the foregoing covenant or a watershed management plan. The board shall prescribe the minimum content of a watershed management plan; provided that the watershed management plan shall require the prevention of the degradation of surface water and ground water quality to the extent that degradation can be avoided using reasonable management practices.
(f) Upon renewal, any lease of water rights shall contain a covenant that requires the lessee and the department of land and natural resources to jointly develop and implement a watershed management plan. The board shall not renew any lease of water rights without the foregoing covenant or a watershed management plan. The board shall prescribe the minimum content of a watershed management plan; provided that the watershed management plan shall require the prevention of the degradation of surface water and ground water quality to the extent that degradation can be avoided using reasonable management practices.
(g) The department of land and natural resources shall notify the department of Hawaiian home lands of its intent to execute any new lease, or to renew any existing lease of water rights. After consultation with affected beneficiaries, these departments shall jointly develop a reservation of water rights sufficient to support current and future homestead needs. Any lease of water rights or renewal shall be subject to the rights of the department of Hawaiian home lands as provided by section 221 of the Hawaiian Homes Commission Act.
(h) Any disposition of water rights by the State, whether
alone or appurtenant to any land, and whether by lease, license, permit, or otherwise,
shall comply with this section.
(i) Except for water leases or licenses issued for instream traditional and customary native Hawaiian practices, including lo‘i kalo cultivation, no water rights shall be disposed of for less than per cent of the cost of the least expensive alternative source of water of similar quality and purpose, as determined by an appraiser."
SECTION 3. The department of land and natural resources,
commission on water resource management, and department of Hawaiian home lands shall
review whether the provisions of section 171-58, Hawaii Revised Statutes, are being
applied in all situations where legally required, and what administrative actions,
funding, staffing, and legislative changes may enable the consistent application
of these provisions. The department of land
and natural resources shall submit a report of its findings and
recommendations, including any proposed legislation, to the legislature no
later than twenty days prior to the convening of the regular session of 2022.
SECTION 4. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
INTRODUCED BY: |
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Report Title:
Minerals and Water Rights; Water Leases or Licenses; Water Disposition
Description:
Requires any disposition of water rights by the State to comply with existing minerals and water rights requirements. Prohibits the disposition of water rights for less than a certain percentage of the cost of the least expensive alternative source of water of similar quality and purpose, except for water leases or licenses issued for instream traditional and customary native Hawaiian practices. Requires the DLNR, commission on water resource management, and DHHL to report on the application of minerals and water rights and make recommendations for improvement.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.