§171-58  Minerals and water rights. (a)  Except as provided in this section the right to any mineral or surface orground water shall not be included in any lease, agreement, or sale, this rightbeing reserved to the State; provided that the board may make provisions in thelease, agreement, or sale, for the payment of just compensation to the surfaceowner for improvements taken as a condition precedent to the exercise by theState of any reserved rights to enter, sever, and remove minerals or to capture,divert, or impound water.

(b)  Disposition of mineral rights shall be inaccordance with the laws relating to the disposition of mineral rights enactedor hereafter enacted by the legislature.

(c)  Disposition of water rights may be made bylease at public auction as provided in this chapter or by permit for temporaryuse on a month-to-month basis under those conditions which will best serve theinterests of the State and subject to a maximum term of one year and otherrestrictions under the law; provided that any disposition by lease shall besubject to disapproval by the legislature by two-thirds vote of either thesenate or the house of representatives or by majority vote of both in anyregular or special session next following the date of disposition; providedfurther that after a certain land or water use has been authorized by the boardsubsequent to public hearings and conservation district use application andenvironmental impact statement approvals, water used in nonpolluting ways, fornonconsumptive purposes because it is returned to the same stream or other bodyof water from which it was drawn, essentially not affecting the volume andquality of water or biota in the stream or other body of water, may also beleased by the board with the prior approval of the governor and the priorauthorization of the legislature by concurrent resolution.

(d)  Any lease of water rights shall contain acovenant on the part of the lessee that the lessee shall provide from watersleased from the State under the lease or from any water sources privately ownedby the lessee to any farmer or rancher engaged in irrigated pasture operations,crop farming, pen feeding operations, or raising of grain and forage crops, orfor those public uses and purposes as may be determined by the board, at thesame rental price paid under the lease, plus the proportionate actual costs, asdetermined by the board, to make these waters available, so much of the watersas are determined by the board to be surplus to the lessee's needs and for thatminimum period as the board shall accordingly determine; provided that in lieuof payment for those waters as the State may take for public uses and purposesthe board may elect to reduce the rental price under the lease of water rightsin proportion to the value of the waters and the proportionate actual costs ofmaking the waters available.  Subject to the applicable provisions of section171-37(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 ownedby the lessee so much water as it may deem necessary to (1) preserve human lifeand (2) preserve animal life, in that order of priority; and that from watersleased from the State the board, at any time during the term of the lease ofwater rights, may also withdraw so much water as it may deem necessary topreserve crops; provided that payment for the waters shall be made in the samemanner as provided in this section.

(e)  Any new lease of water rights shallcontain a covenant that requires the lessee and the department of land andnatural resources to jointly develop and implement a watershed managementplan.  The board shall not approve any new lease of water rights without theforegoing covenant or a watershed management plan.  The board shall prescribethe minimum content of a watershed management plan; provided that the watershedmanagement plan shall require the prevention of the degradation of surfacewater and ground water quality to the extent that degradation can be avoidedusing reasonable management practices.

(f)  Upon renewal, any lease of water rightsshall contain a covenant that requires the lessee and the department of landand natural resources to jointly develop and implement a watershed managementplan.  The board shall not renew any lease of water rights without theforegoing covenant or a watershed management plan.  The board shall prescribethe minimum content of a watershed management plan; provided that the watershedmanagement plan shall require the prevention of the degradation of surfacewater and ground water quality to the extent that degradation can be avoidedusing reasonable management practices.

(g)  The department of land and naturalresources shall notify the department of Hawaiian home lands of its intent toexecute any new lease, or to renew any existing lease of water rights.  Afterconsultation with affected beneficiaries, these departments shall jointlydevelop a reservation of water rights sufficient to support current and futurehomestead needs.  Any lease of water rights or renewal shall be subject to therights of the department of Hawaiian home lands as provided by section 221 ofthe Hawaiian Homes Commission Act. [L 1962, c 32, pt of §2; am L 1965, c 239,§32; Supp, §103A-55; HRS §171-58; am L 1970, c 101, §1; am L 1987, c 367, §1;am L 1990, c 201, §1; am L 1991, c 325, §3]

 

Cross References

 

  Reservation of mineral rights, see §182-2.

 

Law Journals and Reviews

 

  Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders.  25 UH L.Rev. 85.

 

Case Notes

 

  Rental by board of excess transmission capacity in MolokaiIrrigation System did not "dispose" of state water where theproportionate amount of state water in the system was not diminished.  62 H.546, 617 P.2d 1208.

Decisions under prior law.

  Reservation as self-effectuating.  49 H. 429, 440, 421 P.2d570.

  Reservation of mineral rights in royal patent issued on landcommission award, validity of.  49 H. 429, 421 P.2d 570.