Built from 1913 – 1916, the Waiahole Ditch Trail services the Waiahole Ditch Irrigation System that diverts water over a distance of 25 miles away from the wet windward valleys of Kahana, Waikane, and Waiʻahole through a tunnel under the Koʻolau Mountains to the dry leeward-side of the island. This water is being stolen from the tenants of the land. Hawaiians have historically been literally starved off of their lands as evidenced in Kingdom documents where many Hawaiians pleaded for their water to be released as their ohana were starving and dying from foreign disease.
Concerning Water Features and Water Rights in Waiahole and Waikane Valley
The streams, estuaries, and wetlands of Waiahole and Waikane are essential features in the natural, cultural, subsistence, and ecological landscapes of O‘ahu and the surrounding sea. The following wetland systems, as dictated by the United States Fish and Wildlife Service (USFWS), have been identified within, and or adjacent to, the two areas of Waiahole and Waikane, these are: palustrine, riverine, estuarine, and marine (AECOS, 1995, p. 29).
Waiahole stream “drains an area of 2,620 acres” (AECOS, 1995, p. 32). Uwau and Waianu Streams in Waiahole Valley are tributaries of Waiahole Stream. Waikane Stream drains an area of approximately 2,430 acres. Waike’eke’e Stream in Waikane Valley is a tributary of Waikane Stream (AECOS, 1995, p. 32).
In the year 1912, in response to the idea that transporting water from the wet windward side to the dry leeward side would be more lucrative to sugar enterprises, the Waiahole Water Company was formed (Van Dyke, 1979, p. 171). The purpose of forming this organization was to combine the Waiahole, Waikane, and Kahana Streams into a single aqueduct in order to transport water through the Ko‘olau Mountains to the dry leeward plains for sugar cane cultivation. Although construction of the Waiahole Ditch was considered an engineering marvel for its time, Van Dyke states that “the diversion of the three major Windward streams seriously affected lower-level stream flow” (1979, pp. 171; 174). Van Dyke goes on to state that:
Today the lost stream flow on the windward side is taking on greater importance to residents of those valleys who find that the low stream flow places severe constraints on the possibility of developing small diversified agricultural operations. The key issues center around whether all the water rights acquired by Waiahole Water Company are legitimate and whether such water rights can be severed from the land and transferred from the watershed. Another important issue is the amount of water taken from the stream. The Waiahole tunnel system has seriously affected the flow of the Waiahole, Waikane, and Kahana Streams because most of the water is diverted above the 800-foot level. A 1969 study of the water resources of Windward Oahu stated that the Waiahole Ditch tunnel system caused two Waiahole Valley springs to dry up, resulting in a loss of a substantial amount of water. (Van Dyke, 1979, p. 174)
A study entitled A Natural Resources Inventory of Coastal Parcels at Waiahole and Waikane on Windward Oahu, conducted around the year 1995, describes the present day legal situation in regards to water diversion and water rights in both Waiahole and Waikane Valleys:
Waiahole Stream is presently at the center of a controversy over water diversion rights and practices (see OSP, 1995). Recently, water flow in the stream was substantially increased by the reduction of diversions to central O‘ahu via the Waiahole Ditch & tunnel system. Studies in Waiahole Stream are reportedly ongoing, including studies of the native biota inhabiting the upper stream reaches. However, because of the legal controversies surrounding the diversion question, results from these studies are not presently available. (AECOS, 1995, p. 32)
The situation involving water rights in Waiahole and Waikane is a very complicated one. The section below will attempt to make clear, through historical documentation, some of the legalities asserted and enforced thus far by the court system in Hawai‘i. This is an overview, or summary, of appurtenant and prescriptive water rights. The water laws in Hawai‘i are much more in depth and detailed than any summary can provide.In addition to appurtenant and prescriptive water rights there are surplus, riparian, and sovereign water rights, among others. In an attempt to explain the complicated water laws in Hawai‘i the information below has been compliled, but is by no means an absolute authority on the subject. Please be sure to consult appropriate legal professionals for more details regarding water laws in Hawai‘i.
Appurtenant Water Rights
Appurtenant water rights derive from the ancient Hawaiian agricultural system. Taro farmers were entitled to a certain amount of water for domestic purposes and irrigation. The konohiki of the ahupua'a controlled the distribution of water among tenants. The right to use water for irrigation became attached or "appurtenant" to taro lands. This customary right evolved into a legal right and precedent when land titles were awarded by the Land Commission of the Kingdom of Hawai‘i.
The amount of water allotted by the appurtenant right is the amount customarily used at and immediately prior to the Land Commission Award. The Hawai'i water rights case Peck v. Bailey (1867) established the appurtenant rights of the parties involved. According to the court “if any of the lands were entitled to water by immemorial usage [. . .] this right was included in the conveyance as an appurtenance” (Mackenzie 1991, pp. 153-154). The court also held that the defendant had the right to transfer water to kula lands, or dry plains, in accordance to the amount the defendant was entitled to for taro patches by immemorial usage.
Prescriptive Water Rights
Prescriptive water rights are rights that are acquired through adverse use. According to Van Dyke prescriptive water rights are “rights acquired by a person without actual title who has used the water against the wishes of the actual owner of the statutory period of time” (1979, p. 177). Prescriptive water rights are very much similar to the acquisition of land through adverse possession. Prescriptive water rights allow for an entity without legal title to acquire a legal right to water that “belongs” to a rightful tenant, or title holder, providing certain legal requirements are met. The use of water must be “actual, open, notorious, [and] hostile to the rightful holder of the water right and continuous for a statutory length of time, for example 20 years” (Mackenzie, 1991, p. 154). If proof of all of these elements is verified, than an entity without legal title can legally acquire prescriptive water rights that no other entity can legally deprive them of.
The first example involving prescriptive water rights is in the case Lonoaea v. Wailuku Sugar Co. (1895). In this case Lonoaea petitioned the court to declare Wailuku Sugar Co.’s taking of the water illegal. Lonoaea alleged that Wailuku Sugar Co. had been taking more than its legal share of water for irrigation of their sugar fields during the day. This forced Lonoaea to only have the option of taking water for irrigation of their kalo fields at night. In this case Wailuku Sugar Co. was awarded prescriptive water rights on the grounds that it had been adversely diverting water for over 30 years. At the same time the court also asserted that “the sugar company’s use of the water by day could not diminish the taro grower’s supply, since the latter used the water at night” (Mackenzie, 1991, p. 155). Ironically, as a result Lonoaea was also allotted prescriptive water rights based on the grounds that Lonoaea had been adversely taking water at night for a period longer than the statutory amount of time required by the prescriptive water rights law.
After deciding that both parties had prescriptive water rights the subject of just how much water would be allowed was not decided upon until a later case, Hawaiian Commercial & Sugar co. v. Wailuku Sugar Co. (1902). Here the court ruled that the prescriptive water right entitlement only allows for the amount of water that was used during the period of adverse possession and nothing more (Mackenzie, 1991, p. 154). Therefore an tenant that holds prescriptive water rights is not entitled to more water if said entity acquires more kula land, or dry plains.
Another precedent set in regards to prescriptive water rights involved the control of water originating from upwelling springs located on a tenant’s property. In the case Davis v. Afong (1884) where property owners downstream had been denied water rights by tenants upstream “the court held that a prescriptive right could be acquired to spring waters which came to the surface from an underground source” and that “since plaintiffs [downstream] had taken water from the ‘auwai for well over 20 years [. . .] the court held that the plaintiffs “had acquired a prescriptive right to use those waters” (Mackenzie, 1991, p. 155). In other words if prescriptive rights can be proven a tenant upstream cannot deny water to those downstream even if the water originates on the property of the tenant upstream.
References
AECOS, Inc.
1995 A Natural Resources Inventory of Coastal Parcels at Waiahole and Waikane on Windward O‘ahu. Kailua, Hawai‘i.
Mackenzie, Melody Kapilialoha (editor)
1991 Native Hawaiian Rights Handbook. Native Hawaiian Legal Corporation, Honolulu.
Van Dyke, Jon
1979 Excerpt From Land and Water Resource Management In Hawai’i. State of Hawai‘i Dept. of Budget & Finance, Honolulu.
The streams, estuaries, and wetlands of Waiahole and Waikane are essential features in the natural, cultural, subsistence, and ecological landscapes of O‘ahu and the surrounding sea. The following wetland systems, as dictated by the United States Fish and Wildlife Service (USFWS), have been identified within, and or adjacent to, the two areas of Waiahole and Waikane, these are: palustrine, riverine, estuarine, and marine (AECOS, 1995, p. 29).
Waiahole stream “drains an area of 2,620 acres” (AECOS, 1995, p. 32). Uwau and Waianu Streams in Waiahole Valley are tributaries of Waiahole Stream. Waikane Stream drains an area of approximately 2,430 acres. Waike’eke’e Stream in Waikane Valley is a tributary of Waikane Stream (AECOS, 1995, p. 32).
In the year 1912, in response to the idea that transporting water from the wet windward side to the dry leeward side would be more lucrative to sugar enterprises, the Waiahole Water Company was formed (Van Dyke, 1979, p. 171). The purpose of forming this organization was to combine the Waiahole, Waikane, and Kahana Streams into a single aqueduct in order to transport water through the Ko‘olau Mountains to the dry leeward plains for sugar cane cultivation. Although construction of the Waiahole Ditch was considered an engineering marvel for its time, Van Dyke states that “the diversion of the three major Windward streams seriously affected lower-level stream flow” (1979, pp. 171; 174). Van Dyke goes on to state that:
Today the lost stream flow on the windward side is taking on greater importance to residents of those valleys who find that the low stream flow places severe constraints on the possibility of developing small diversified agricultural operations. The key issues center around whether all the water rights acquired by Waiahole Water Company are legitimate and whether such water rights can be severed from the land and transferred from the watershed. Another important issue is the amount of water taken from the stream. The Waiahole tunnel system has seriously affected the flow of the Waiahole, Waikane, and Kahana Streams because most of the water is diverted above the 800-foot level. A 1969 study of the water resources of Windward Oahu stated that the Waiahole Ditch tunnel system caused two Waiahole Valley springs to dry up, resulting in a loss of a substantial amount of water. (Van Dyke, 1979, p. 174)
A study entitled A Natural Resources Inventory of Coastal Parcels at Waiahole and Waikane on Windward Oahu, conducted around the year 1995, describes the present day legal situation in regards to water diversion and water rights in both Waiahole and Waikane Valleys:
Waiahole Stream is presently at the center of a controversy over water diversion rights and practices (see OSP, 1995). Recently, water flow in the stream was substantially increased by the reduction of diversions to central O‘ahu via the Waiahole Ditch & tunnel system. Studies in Waiahole Stream are reportedly ongoing, including studies of the native biota inhabiting the upper stream reaches. However, because of the legal controversies surrounding the diversion question, results from these studies are not presently available. (AECOS, 1995, p. 32)
The situation involving water rights in Waiahole and Waikane is a very complicated one. The section below will attempt to make clear, through historical documentation, some of the legalities asserted and enforced thus far by the court system in Hawai‘i. This is an overview, or summary, of appurtenant and prescriptive water rights. The water laws in Hawai‘i are much more in depth and detailed than any summary can provide.In addition to appurtenant and prescriptive water rights there are surplus, riparian, and sovereign water rights, among others. In an attempt to explain the complicated water laws in Hawai‘i the information below has been compliled, but is by no means an absolute authority on the subject. Please be sure to consult appropriate legal professionals for more details regarding water laws in Hawai‘i.
Appurtenant Water Rights
Appurtenant water rights derive from the ancient Hawaiian agricultural system. Taro farmers were entitled to a certain amount of water for domestic purposes and irrigation. The konohiki of the ahupua'a controlled the distribution of water among tenants. The right to use water for irrigation became attached or "appurtenant" to taro lands. This customary right evolved into a legal right and precedent when land titles were awarded by the Land Commission of the Kingdom of Hawai‘i.
The amount of water allotted by the appurtenant right is the amount customarily used at and immediately prior to the Land Commission Award. The Hawai'i water rights case Peck v. Bailey (1867) established the appurtenant rights of the parties involved. According to the court “if any of the lands were entitled to water by immemorial usage [. . .] this right was included in the conveyance as an appurtenance” (Mackenzie 1991, pp. 153-154). The court also held that the defendant had the right to transfer water to kula lands, or dry plains, in accordance to the amount the defendant was entitled to for taro patches by immemorial usage.
Prescriptive Water Rights
Prescriptive water rights are rights that are acquired through adverse use. According to Van Dyke prescriptive water rights are “rights acquired by a person without actual title who has used the water against the wishes of the actual owner of the statutory period of time” (1979, p. 177). Prescriptive water rights are very much similar to the acquisition of land through adverse possession. Prescriptive water rights allow for an entity without legal title to acquire a legal right to water that “belongs” to a rightful tenant, or title holder, providing certain legal requirements are met. The use of water must be “actual, open, notorious, [and] hostile to the rightful holder of the water right and continuous for a statutory length of time, for example 20 years” (Mackenzie, 1991, p. 154). If proof of all of these elements is verified, than an entity without legal title can legally acquire prescriptive water rights that no other entity can legally deprive them of.
The first example involving prescriptive water rights is in the case Lonoaea v. Wailuku Sugar Co. (1895). In this case Lonoaea petitioned the court to declare Wailuku Sugar Co.’s taking of the water illegal. Lonoaea alleged that Wailuku Sugar Co. had been taking more than its legal share of water for irrigation of their sugar fields during the day. This forced Lonoaea to only have the option of taking water for irrigation of their kalo fields at night. In this case Wailuku Sugar Co. was awarded prescriptive water rights on the grounds that it had been adversely diverting water for over 30 years. At the same time the court also asserted that “the sugar company’s use of the water by day could not diminish the taro grower’s supply, since the latter used the water at night” (Mackenzie, 1991, p. 155). Ironically, as a result Lonoaea was also allotted prescriptive water rights based on the grounds that Lonoaea had been adversely taking water at night for a period longer than the statutory amount of time required by the prescriptive water rights law.
After deciding that both parties had prescriptive water rights the subject of just how much water would be allowed was not decided upon until a later case, Hawaiian Commercial & Sugar co. v. Wailuku Sugar Co. (1902). Here the court ruled that the prescriptive water right entitlement only allows for the amount of water that was used during the period of adverse possession and nothing more (Mackenzie, 1991, p. 154). Therefore an tenant that holds prescriptive water rights is not entitled to more water if said entity acquires more kula land, or dry plains.
Another precedent set in regards to prescriptive water rights involved the control of water originating from upwelling springs located on a tenant’s property. In the case Davis v. Afong (1884) where property owners downstream had been denied water rights by tenants upstream “the court held that a prescriptive right could be acquired to spring waters which came to the surface from an underground source” and that “since plaintiffs [downstream] had taken water from the ‘auwai for well over 20 years [. . .] the court held that the plaintiffs “had acquired a prescriptive right to use those waters” (Mackenzie, 1991, p. 155). In other words if prescriptive rights can be proven a tenant upstream cannot deny water to those downstream even if the water originates on the property of the tenant upstream.
References
AECOS, Inc.
1995 A Natural Resources Inventory of Coastal Parcels at Waiahole and Waikane on Windward O‘ahu. Kailua, Hawai‘i.
Mackenzie, Melody Kapilialoha (editor)
1991 Native Hawaiian Rights Handbook. Native Hawaiian Legal Corporation, Honolulu.
Van Dyke, Jon
1979 Excerpt From Land and Water Resource Management In Hawai’i. State of Hawai‘i Dept. of Budget & Finance, Honolulu.