Water is a resource held in trust for the people of Hawaiʻi. The public trust doctrine prioritizes Native Hawaiian traditional and customary practices and the health of free-flowing streams and coastal life over private commercial uses. Despite this and other constitutional protections, water has historically been mismanaged and private profits prioritized over sustainable management for community, cultural practices, and the long-term health of the environment. As a result, Hawaiʻi has suffered dry stream beds, habitat loss, change in water temperature, degradation of coastal ecosystems, increased risk of invasive species and wildfires, and, in communities without steady access to fresh water, the decline of sustainable rural ways of life. Among this long parade of negative environmental outcomes are harms to Native Hawaiian agricultural and fishing practices protected by the Hawaiʻi State Constitution. 

NHLC is proud of its historical and ongoing advocacy on behalf of Hawai‘i communities across the pae ʻāina who fight for the return of their water where it has been lost and continuation of their traditional practices.   

In honor of Earth Day 2025, NHLC is summarizing the constitutional protections for wai, the history of wai legal issues, and the cultural practices that rely on the uninhibited flow of surface and ground water. 

The concept of water as a public trust resource existed in Hawaiʻi in ancient times. No one owned water; instead, it was a resource managed for present and future generations. Wai was correlated with life (ola), land (‘āina), and wealth (waiwai): 

…The life of taro was dependent upon water. In his role as life-giver, Kane the procreator was addressed as Kane-of-the-water-of-life (Kane-ka-wai-ola). Water (wai) was so associated with the idea of bounty that the word for wealth was waiwai. And water rights were the basic form of law, the Hawaiian word for which was kānāwai, meaning “relative to water…”  

 …Fresh water as a life-giver was not to the Hawaiians merely a physical element; it had a spiritual connotation. In prayers of thanks and invocations used in offering fruits of the land, and in prayers chanted when planting, and in prayers for rain, the “Water of Life of Kane” is referred to over and over again… 

Wai O Ke Ola: He Wahi Mo‘olelo No Maui Hikina, Vol. 1 at 21 (citing Handy, Handy and Pukui (1972)(emphasis in original) (internal citations omitted).   

However, when foreigners arrived to Hawaiʻi, water became a commodity. Western contact brought about significant changes in both the traditional Hawaiian land tenure system and Hawai‘i’s social structure.  As plantation agriculture was prioritized and enabled at scale, concentration of land ownership and control increased, significantly impacting kānaka maoli and their traditional views on resource management. Plantations purchased considerable quantities of government land and secured long-term leases on other portions of government and crown lands. 

Long-term leases at low prices enabled sugar companies to mortgage the land and secure working capital with little risk.  In East Maui, for example, construction of the system of ditches and tunnels that once diverted on average 160 million gallons per day from East Maui streams to irrigate sugarcane in Central Maui commenced in 1876.  It began a conflict between a community and commercial interests over a public trust resource that has fed kānaka maoli for centuries. 

Incompatible traditional and western concepts of ground and surface water management would inevitably result in conflict, however, the spiritual belief in the integration of water into the life, land and wealth of kānaka maoli persevered in practice and in the development of Hawaiʻi law. Beginning in the 1970s, a series of court decisions and constitutional amendments reaffirmed the traditional public trust concepts were, in fact, applicable to wai. 

The state has fundamental trust duties to protect water in Hawaiʻi. Article XI, § 1 of Hawai‘i’s Constitution provides that “all public natural resources are held in trust by the State for the benefit of the people.” Article XI, § 7 mandates that “[t]he State has an obligation to protect, control and regulate the use of Hawaiʻi’s water resources for the benefit of its people.”  

The Hawai‘i Supreme Court recognizes that, together, those provisions “adopt the public trust doctrine as a fundamental principle of constitutional law in Hawai‘i.” In re Waiāhole Combined Contested Case Hearing, 94 Hawai‘i 97, 132, 9 P.3d 409, 444 (2000) (“Waiāhole I”). Article XI, § 7 also established the Commission on Water Resource Management (“Commission”), which has primary authority over fresh water use and management in Hawai‘i. 

The state also has the kuleana to protect traditional and customary practices. Article XII, § 7 requires that the state “shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778[.]” See also Ka Paʻakai O Ka ʻĀina v. Land Use Comm’n, 94 Hawai‘i 31, 45, 7 P.3d. 1068, 1082 (2000). This applies to cultural practices that rely on the uninhibited flow of surface and ground water—one of four public trust uses of water that must be protected. See Kauaʻi Springs, Inc. v. Planning Comm’n of Kauaʻi, 133 Hawaiʻi 141, 172, 324 P.3d 951, 982 (2014). 

The Hawaiʻi Supreme Court has acknowledged the Commission’s “affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.” Waiāhole I, 94 Hawaiʻi at 141, 9 P.3d at 453. The public trust imposes “a dual mandate of 1) protection and 2) maximum reasonable and beneficial use.” Id. at 139, 9 P.3d at 451.  

Public trust purposes have priority over private commercial uses, which do not enjoy the same protection. The public trust also requires a higher level of scrutiny for private commercial uses. As such, government decisionmakers must closely examine requests to use public resources for private gain to ensure that the public’s interest in the resource is fully protected.  

In further support of protecting and conserving public trust resources, the Hawaiʻi Supreme Court has also adopted the “precautionary principle,” ruling that “the lack of full scientific certainty should not be a basis for postponing effective measures to prevent environmental degradation” and that “where [scientific] uncertainty exists, a trustee’s duty to protect the resource mitigates in favor of choosing presumptions that also protect the resource.” Id. at 154, 9 P.3d at 466. 

Today, the use of fresh water in Hawaiʻi is largely managed through the State Water Code, Hawaiʻi Revised Statutes Chapter 174C via the Commission. However, the constitutional protections of the public trust and Native Hawaiian traditional and customary practices obligate all state and county agencies to protect these resources and the rights of kalo farmers, fishers, gatherers, and kiaʻi loko iʻa whenever the state takes action.

For decades, NHLC has advocated for Native Hawaiian communities to protect their rights and resources—to restore wai to historically dewatered streams and push for environmental review that was long overdue in East Maui; to protect the nearshore marine area on Molokaʻi and in Kona from additional ground water pumping that would impact aquatic resources relied upon by the community for subsistence and cultural practices; to prevent the Lānaʻi community’s drinking water from being used to irrigate golf courses; and to support groundbreaking legal efforts in Waiāhole.

While Earth Day might be a way to bring attention to what can be done to help mālama the ʻāina, it is just as important to put the legal applications into practice every day to ensure that resources are preserved for our current and future generations.