§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. [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 Molokai
Irrigation System did not "dispose" of state water where the
proportionate 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.2d
570.



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