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Show HAWAII 255 doctrine for artesian basins may cause a reconsideration of these earlier pronouncements. In any event, it does not appear that the Hawaii Supreme Court has adopted a specific rule of law with re- spect to percolating ground water.83 b. STATUTORY REGULATION OF GROUND WATER The City Mill case, which is discussed above and which resulted in the adoption of the rule of correlative rights for artesian basins in Hawaii, was the result of an attempt by the Hawaii Legislature to regulate artesian wells. The legislation provided, in part, that a per- mit had to be obtained prior to the drilling of a new well. The court found the legislation to be unconstitutional as depriving coowners of their water rights within an artesian basin without due process of law. The court concluded that while the police power of the territory allowed reasonable regulation of private artesian wells in the interest of public health and safety, it did not permit prohibition of drilling new wells while permitting existing wells to operate without any diminution in use.84 The current ground water act in Hawaii relates to all water in the ground, but State regulation only extends to such areas as may be designated for regulation by the State administrative agency, which is the Board of Land and Natural Resources.85 The board is dele- gated authority to conduct studies and investigations concerning the ground water resources of the State and to require reports from owners and operators of wells, and also well drillers. The board may, either on its own motion or on petition of interested users, designate ground water areas for regulation if after study, and following notice and public hearing, the board finds any one of the following: (1) The use of ground water exceeds the rate of recharge; (2) ground water levels are declining or have declined excessively; (3) chloride content is increasing to a level that it reduces the value of the use to which the water is being put; (4) excessive preventable waste is occurring; or (5) any proposed development, if constructed, would lead to one of the above conditions. A procedure is provided whereby the board may release jurisdiction of a designated area if the con- ditions causing its creation no longer exist.86 Interdepartmental cooperation is required, and the board may adopt rules and regulations to accomplish its statutory duties. In- vestigations may be conducted by the board, and injunctive relief may be sought for violation of the act or of any rule or regulation of the board. Detailed procedures are provided to govern hearings by the board. Any person aggrieved by an order of the board may appeal to the circuit court.87 After designation of a ground water area, the withdrawal of water therefrom shall be only by permit issued by the board, except for existing (preserved) uses and new domestic uses.88 83 Hutchins, The Hawaiian System of Water Rights, 172-177, 187-190 (1946) ; Davis v. Afong, 5 Haw. 216 (1884) ; Wong Leong v. Irwin, 10 Haw. 265 (1896). Si Gity Mill Company v. Honolulu Sewer & Water Commission, 30 Haw. 912 (1929). 85 Hawaii Rev. Stat., sec. 177-1 to 177-4. 88 Hawaii Rev. Stat., sec. 177-5. 87 Hawaii Rev. Stat., sec. 177-6 to 177-12. 88 Hawaii Rev. Stat., sec. 177-19. |