In ancient times, native Hawaiians drew their water supplies from fresh water streams, springs, lakes and shallow wells.
For centuries, Hawaiians recognized the life giving qualities and significance and value of water to their survival. Water is life; water is wealth.
You could draw water from only the upper parts of the stream. Bathing was to be done downstream. Damaging irrigation systems or harming the water source was severely punished. Water conservation was a preeminent law of the land. (HBWS)
The Hawaiian word for ‘law’ is kānāwai – it is interesting to note that the literal translation of kānāwai is ‘relating to water.’ Traditional Hawaiian law initially developed around the management and use of water. (Sproat)
The first laws or rules of any consequence that the ancient Hawaiians ever had are said to have been those relating to water. The rules were undoubtedly simple at first. The supply of water was usually ample to satisfy the requirements of the land; cultivation on a large scale for purposes of export was unknown. (Perry, Hawaiʻi Supreme Court)
In pre-Captain Cook times, taro played a vital role in Hawaiian culture. It was not only the Hawaiians’ staple food but the cultivation of kalo was at the very core of Hawaiian culture and identity. The early Hawaiians probably planted kalo in marshes near the mouths of rivers.
Over years of expansion of kalo lo‘i (flooded taro patches) up slopes and along rivers, kalo cultivation in Hawai‘i reached a unique level of engineering and sustainable sophistication. The irrigation systems enabled them to turn vast areas into farm lands, feeding a thriving population over the centuries before Westerners arrived.
Kalo lo‘i systems are typically a set of adjoining terraces that are typically reinforced with stone walls and soil berms. Wetland taro thrives on flooded conditions, and cool, circulating water is optimal for taro growth, thus a system may include one or more irrigation ditches, or ‘auwai, to divert water into and out of the planting area. (McElroy)
Dams that diverted water from the stream were a low loose wall of stones with a few clods here and there, high enough only to raise water sufficiently to flow into the ʻauwai, which entered it at almost level.
The quantity of water awarded to irrigate the loʻi was according to the number of workers and the amount of work put into the building of the ʻauwai. Water rights of others taking water from the main stream below the dam had to be respected, and no ʻauwai was permitted to divert more than half the flow from a stream. (Handy & Handy)
In some ʻauwai, not all of the water was used; after irrigating a few patches, the ditch returned the remainder of the water to the stream. (YaleLawJournal) By rotation with others on the ʻauwai, a grower would divert water from the ʻauwai into his kalo. The next, in turn, would draw off water for his allotted period of time. (KSBE)
Loʻi dependent on an ʻauwai also took their share of water in accordance with a time schedule, from a few hours at a time day or night up to two or three days. In times of drought the luna wai (water boss) had the right to adjust the sharing of available water to meet needs. (Handy & Handy)
With ‘contact’ (arrival of Captain Cook in 1778,) Western influence played into the management and use. Kingdom laws formalized and reduced Hawaiian customs and traditions to writing.
The Declaration of Rights and Constitution of 1839-40, which was the first Western-style constitution of the Hawaiian Kingdom, expressly acknowledged that the land, along with all of its resources, “was not (the King’s) private property. It belongs to the Chiefs and the people in common, of whom (the King) was the head and had the management of landed property.”
In 1860, an act was passed providing for the appointment in each election district throughout the Kingdom of three suitable persons to act as commissioners to decide on all controversies respecting rights of way and rights of water between private individuals or between private individuals and the government (the powers and duties of the commissioners were finally, by act of 1907, transferred to the circuit judges.) (Perry)
Then groundwater was pursued when James Campbell envisioned supplying the arid area of ʻEwa with water. He commissioned California well-driller James Ashley to drill a well on his Honouliuli Ranch. In 1879, Ashley drilled Hawaiʻi’s first artesian well; Campbell’s vision had made it possible for Hawaiʻi’s people to grow sugar cane on the dry lands of the ʻEwa Plain.
Subsequent well production expanded and diversified the collection and distribution of water. (Now, nearly all of Hawaiʻi’s drinking water comes from groundwater sources.
Constitution amendments in the 1978 Constitutional Convention (later ratified by the people,) put water as a public resource. Under the State Constitution (Article XI,) the State has an obligation to protect, control and regulate the use of Hawaii’s water resources for the benefit of its people.
Ground and surface water resources are held in public trust for the benefit of the citizens of the state. The people of Hawaiʻi are beneficiaries and have a right to have water protected for their use and/or benefit.
Legal challenges and subsequent decisions by the Hawaiʻi Supreme Court identified four public trust purposes: Maintenance of water in their natural state; Domestic water use of the general public, particularly drinking water; Exercise of Native Hawaiian traditional and customary rights; and Reservations of water for Hawaiian Home Lands.
In 1987, the State Water Code was adopted by the Hawaiʻi Legislature, which set in place various layers of protection for all waters in the Hawaiian Islands; it formed the Commission on Water Resource Management.
The Hawaiʻi Water Plan adopted by the Water Commission (that includes the Water Resource Protection Plan, Water Quality Plan, State Water Projects Plan, Agricultural Water Use and Development Plan and Water Use and Development Plans for each County) is critical for the effective and coordinated protection, conservation, development and management of the State’s water resources.
A comment by an Associate Justice on the Supreme Court 100-years ago holds true today, “Water rights are destined to play an important part in the future of Hawaiʻi as they have in its past.”
“The growth of urban communities and the agricultural development of the territory render inevitable the conservation and use in an increasing degree of the available waters, with probably consolidation of some rights and new distributions of others. The subject will lose none of its interest with the passage of time.” (Perry)
We are reminded of the importance of respect and responsibility we each share for the environment and our natural and cultural resources – including our responsibility to protect and properly use and manage our water resources.
I was honored to have served for 4½-years as the Chair of the State’s Commission on Water Resource Management overseeing, managing and regulating the State’s water resources.
We are fortunate people living in a very special place. Let’s continue to work together to make Hawaiʻi a great place to live.
