Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-First State Legislature

Regular Session of 2002

State of Hawaii

Sir:

Your Committee on Water and Land Use, to which was referred S.B. No. 2808, S.D. 2, entitled:

begs leave to report as follows:

The purpose of this bill is to ensure better management and enhanced protection of water resources by authorizing the Commission on Water Resource Management (Commission) to determine appurtenant water rights under the State Water Code.

The Department of Land and Natural Resources and the Honolulu Board of Water Supply testified in support of this measure.

Currently, the Commission has exclusive jurisdiction and final authority on all matters relating to the implementation and administration of the State Water Code. However, according to the Hawaii Supreme Court, appurtenant rights are an incident of land ownership. The Court defined appurtenant water rights as the "rights to the use of water utilized by parcels of land at the time of their original conversion into fee simple lands."

Because the determination of appurtenant water rights is directly tied to a determination of rights in land, the Attorney General (AG) advised the Commission that it is not authorized to determine appurtenant rights since the Commission lacks authority to make determinations about rights in land. The AG advised that under current law, the courts are the proper forums to determine appurtenant water rights.

Your Committee believes that the Commission should be authorized to determine and quantify appurtenant water rights:

(1) To protect the exercise of appurtenant rights; and

Moreover, adjudicating appurtenant rights in the courts will probably be expensive and time consuming.

Your Committee has amended this bill by making technical, nonsubstantive amendments to conform to standard drafting conventions.

As affirmed by the record of votes of the members of your Committee on Water and Land Use that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2808, S.D. 2, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 2808, S.D. 2, H.D. 1, and be referred to the Committee on Judiciary and Hawaiian Affairs.