STAND. COM. REP. NO. 3501

Honolulu, Hawaii

RE: H.B. No. 1768

H.D. 2

S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Thirty-First State Legislature

Regular Session of 2022

State of Hawaii

Sir:

Your Committees on Water and Land and Agriculture and Environment, to which was referred H.B. No. 1768, H.D. 2, entitled:

"A BILL FOR AN ACT RELATING TO THE DISPOSITION OF WATER RIGHTS,"

beg leave to report as follows:

The purpose and intent of this measure is to exempt the instream use of water for:

(1) Traditional and customary kalo cultivation practices; and

(2) Commercial kalo cultivation conducted in a manner consistent with traditional and customary Native Hawaiian practices from the existing process for disposition of water rights.

Your Committees received testimony in support of this measure from the Department of Hawaiian Home Lands, Hawaii State Aha Moku, Office of Hawaiian Affairs, one member of the Hawai‘i County Council, one member of the Kaua‘i County Council, County of Kaua‘i Office of the Mayor, Restore the Commons, Center for Biological Diversity, Kua‘āina Ulu ‘Auamo, Hanalei Watershed Hui, Sierra Club of Hawai‘i, Hawaiian Affairs Caucus of the Democratic Party of Hawai‘i, Kanaeokana Network, ‘Ai Pohaku – The Stone Eaters, Wai‘oli Valley Taro Hui, Earthjustice, Papa Ola Lōkahi, Waipā Foundation, Hanalei Hawaiian Civic Club, Hui o Nā Wai ‘Ehā, Hawai‘i Alliance for Progressive Action, Hawaiian Islands Land Trust, ‘Ahahui o nā Kauka – Association of Native Hawaiian Physicians, Council for Native Hawaiian Advancement, and twenty-seven individuals. Your Committees received testimony in opposition to this measure from Makahanaloa Fishing Association.

Your Committees find that for nearly two thousand years, Native Hawaiians have been farming successfully on lands throughout the State without adversely impacting the land. As a significant cultural and traditional practice, Native Hawaiian farming practices serve as a key tradition that also benefits the quality of life for Hawaii's residents. While the State has a fiduciary duty to assure the preservation and enhancement of water for various public interests, some regulatory actions disrupt protected cultural rights and traditions of Native Hawaiians.

However, your Committees have heard the concerns of many testifiers, including Hui o Nā Wai ‘Ehā, that this measure as drafted should confirm and uphold existing water rights. According to Hui o Nā Wai ‘Ehā, protections of traditional, customary, and kuleana rights, including rights to access traditional water course or auwai, support kalo farmers across the State. Some kalo farmers have waited over twenty years to have priority rights recognized. The gap in recognition has led to delays or deprivation of water rights access. To preserve traditional Native Hawaiian cultural rights while also providing clean, safe, and protected water to the people of Hawaii, amendments to this measure are therefore necessary to provide further justice for kalo farmers to exercise traditional, customary, and kuleana water rights.

Your Committees have amended this measure by:

(1) Deleting language that would have exempted commercial kalo cultivation conducted in a manner consistent with traditional and customary Native Hawaiian practices from the existing process for disposition of water rights;

(2) Clarifying that the powers and duties of the Commission on Water Resource Management to determine appurtenant water rights include the specification of the water course or the means of access and delivery entitled to by that right;

(3) Clarifying that nothing in chapter 174C, part IV, Hawaii Revised Statutes, shall be construed to deny the exercise of an appurtenant right, including the use, access, delivery, and quality of water, by the holder thereof at any time;

(4) Clarifying that the appurtenant water rights of kuleana and taro lands, include but are not limited to the rights of use, access, delivery, and quality of water;

(5) Inserting a severability clause;

(6) Amending section 1 to reflect its amended purpose; and

(7) Making technical, nonsubstantive amendments for the purposes of clarity and consistency.

As affirmed by the records of votes of the members of your Committees on Water and Land and Agriculture and Environment that are attached to this report, your Committees are in accord with the intent and purpose of H.B. No. 1768, H.D. 2, as amended herein, and recommend that it pass Second Reading in the form attached hereto as H.B. No. 1768, H.D. 2, S.D. 1, and be referred to your Committee on Judiciary.

Respectfully submitted on behalf of the members of the Committees on Water and Land and Agriculture and Environment,

________________________________ MIKE GABBARD, Chair

________________________________ LORRAINE R. INOUYE, Chair