Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2002

State of Hawaii

Sir:

Your Committee on Water, Land, Energy and Environment, to which was referred S.B. No. 2808 entitled:

begs leave to report as follows:

The purpose of this measure is to authorize the Commission on Water Resource Management to determine appurtenant water rights under the State Water Code.

Testimony in support of this measure was received from the Commission on Water Resource Management and Earthjustice.

Your Committee finds that Article XI, Section 7, of the State Constitution calls for the protection of appurtenant water rights, and the State Water Code specifically provides that appurtenant rights are preserved under section 174C-63 Hawaii Revised Statutes. However, the Hawaii Supreme Court has said that appurtenant rights are an incident of land ownership, and 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." Reppun v. Board of Water Supply, 65 Hawaii 531, 551 (1982).

Your Committee has heard that because the determination of appurtenant water rights is directly tied to a determination of rights in land, on April 25, 2001, the Department of the Attorney General (AG) advised the Commission that it is not currently authorized to determine appurtenant rights, since the Commission lacks authority to make determinations about rights in land. The AG advised that under the current law, the courts are the proper forums to determine appurtenant water rights.

Your Committee understands that adjudicating appurtenant rights in the courts in most cases will be very expensive and time consuming. In addition, the Commission strongly believes the inability to determine and quantify appurtenant rights will seriously hamper the Commission from carrying out its responsibilities in allocating water in water management areas and determining instream flow standards.

Your Committee supports providing the Commission with the appropriate authority to carry out its duties to protect appurtenant rights, while at the same time recognizing the proper jurisdiction of the courts in land matters. Your Committee has amended this measure to address a concern that the proposed language was too narrow, to make technical amendments to remove references to a statute that will be repealed on July 1, 2002.

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