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Hawaii Revised Statutes

Haw. Rev. Stat. § 171-58 (2026)

  Minerals and water rights

✓ current as of July 2026
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     §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 that 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.

     (h)  This section shall not apply to the disposition of water rights for the instream use of water for traditional and customary kalo cultivation practices. [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; am L 2016, c 126, §§1, 4(1); am L 2022, c 27, §2]

 

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 (2002).

  Nā Mo`o o Ko`olau:  The Water Guardians of Ko`olau Weaving and Wielding Collective Memory in the War for East Maui Water.  41 UH L. Rev. 189 (2018).

  A Voice for the Waters of East Maui.  43 UH L. Rev. 166 (2020).

  Ho`okahe Wai:  An Analysis of a Proposed Exemption from Hawai`i's Water Leasing Process for Kalo Farming and Consistency with Hawai`i's Public Trust Doctrine.  44 UH L. Rev. 145 (2022).

 

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 (1980).

 

 

Notes of Decisions
Cited in 8 cases (5 in the last 5 years), 2003–2025 · leading case: Hui Kako'o Aina Ho'opulapula v. Bd. of Land & Nat. Resources, 143 P.3d 1230 (Haw. 2006).
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Hui Kako'o Aina Ho'opulapula v. Bd. of Land & Nat. Resources, 143 P.3d 1230 (Haw. 2006). · cites it 42× “HELCO’s lease request was granted pursuant to HRS § 171-58. That statute does not require or suggest that a contested case hearing is required before the BLNR may exercise its custodial function to grant water rights by lease at public auction.”
Kia'i Wai O Wai'Ale'Ale v. Dep't of Water, Cnty. of Kaua'i., 517 P.3d 725 (Haw. 2022). · cites it 18× “Additionally, the amended complaint alleged neither KDOW nor Grove Farm holds a water lease or permit from the state Board of Land and Natural Resources (“BLNR”), and KDOW violated HRS § 171-58 (2011)18 by failing to obtain a lease or permit prior to granting rights to use state…”
Hawaii Elec. Light Co. v. Dep't of Land & Nat. Resources, 75 P.3d 160 (Haw. 2003). · cites it 4× “’s original position; 16 2) failing to compel a recusing Board member to vote on HELCO’s application; 17 3) omitting the requirement that HELCO obtain the signa *265 tures of both the Board and DHHL to confirm the rights of both agencies to groundwater, and the Board’s right to…”
Maui Tomorrow v. State, Bd. of Land & Nat. Resources, 131 P.3d 517 (Haw. 2006). · cites it 2× “3) W/hether the Board of Land and Natural Resources has complied with the requirements set forth in HRS § 171-58(c). 4) W/hether the Department of Land and Natural Resources has complied with the requirements set forth in HRS § 171—58(g).”
Carmichael v. Bd. of Land & Nat. Resources. (Haw. 2022). · cites it 50× “4 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** stated that they were issued pursuant to HRS § 171-58 (1993).5 The BLNR added, as a condition to the issuance of the revocable permits, that the Department of the Attorney General issue an opinion regarding…”
Kia'i Wai o Wai'ale'ale v. Bd. of Land & Nat. Resources (Haw. 2025). · cites it 19× “The ICA further held the Environmental Court 4 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** exceeded its jurisdiction by reviewing whether the Board correctly granted the 2021 and 2022 permits under HRS § 171-58. Id. at *4. We accepted both the…”
Kia'i Wai O Wai'Ale'Ale v. Bd. of Land & Nat. Resources, 550 P.3d 1265 (Haw. App. 2024). · cites it 4× “7 HRS § 171-58 (2011) didn't apply to continuation of the Permit; HRS § 171-55 did.”
Sierra Club v. Bd. of Land & Nat. Resources. Dissenting Opinion by Nakasone, J. Consol. with CAAP-22-0000519. (Haw. App. 2024). · cites it 2× “]" That includes conditions that ensure a clean and healthful environment by controlling pollution 15 Sierra Club also cites HRS § 171-58, but that statute doesn't apply to BLNR's decisions to continue the Permits.”
— Haw. Rev. Stat. § 171-58(c) — 4 cases
Hui Kako'o Aina Ho'opulapula v. Bd. of Land & Nat. Resources, 143 P.3d 1230 (Haw. 2006). “HELCO’s lease request was granted pursuant to HRS § 171-58. That statute does not require or suggest that a contested case hearing is required before the BLNR may exercise its custodial function to grant water rights by lease at public auction.”
Maui Tomorrow v. State, Bd. of Land & Nat. Resources, 131 P.3d 517 (Haw. 2006). “3) W/hether the Board of Land and Natural Resources has complied with the requirements set forth in HRS § 171-58(c). 4) W/hether the Department of Land and Natural Resources has complied with the requirements set forth in HRS § 171—58(g).”
Kia'i Wai o Wai'ale'ale v. Bd. of Land & Nat. Resources (Haw. 2025). “The ICA further held the Environmental Court 4 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** exceeded its jurisdiction by reviewing whether the Board correctly granted the 2021 and 2022 permits under HRS § 171-58. Id. at *4. We accepted both the…”
Carmichael v. Bd. of Land & Nat. Resources. (Haw. 2022). “4 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** stated that they were issued pursuant to HRS § 171-58 (1993).5 The BLNR added, as a condition to the issuance of the revocable permits, that the Department of the Attorney General issue an opinion regarding…”
— Haw. Rev. Stat. § 171-58(e) — 1 case
Hui Kako'o Aina Ho'opulapula v. Bd. of Land & Nat. Resources, 143 P.3d 1230 (Haw. 2006). “HELCO’s lease request was granted pursuant to HRS § 171-58. That statute does not require or suggest that a contested case hearing is required before the BLNR may exercise its custodial function to grant water rights by lease at public auction.”
— Haw. Rev. Stat. § 171-58(g) — 1 case
Hawaii Elec. Light Co. v. Dep't of Land & Nat. Resources, 75 P.3d 160 (Haw. 2003). “’s original position; 16 2) failing to compel a recusing Board member to vote on HELCO’s application; 17 3) omitting the requirement that HELCO obtain the signa *265 tures of both the Board and DHHL to confirm the rights of both agencies to groundwater, and the Board’s right to…”
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