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Hawaii Senate Bill SB2650

Hawaii 2022 Regular Session

Hawaii Senate Bill SB2650 Compare Versions

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11 THE SENATE S.B. NO. 2650 THIRTY-FIRST LEGISLATURE, 2022 STATE OF HAWAII A BILL FOR AN ACT relating to water quality. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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4747 SECTION 1. The legislature finds that for Hawaii's people, culture, and resources, ola i ka wai, "water is life." The Hawaii State Constitution recognizes that water is held in trust by the State for the benefit of the people and mandates that the State and its political subdivisions conserve and protect Hawaii's water. The public trust has a duty and the authority to maintain the purity and flow of Hawaii's waters for future generations. The Hawaii Supreme Court has recognized four public trust purposes: (1) The maintenance of water in its natural state; (2) Domestic water uses; (3) Water for the department of Hawaiian home lands; and (4) Water use in the exercise of traditional and customary Native Hawaiian rights. The legislature further finds that to protect and conserve water, water quality and quantity issues must be managed holistically as every public trust purpose and other water uses have water quality considerations before quantity. When enacting the State Water Code, Session Laws of Hawaii 1987 (Act 45),the fourteenth legislature found that the water resources of the State were in need of management and regulation, as there has already been shortages of water, a decline in groundwater levels, and severe pollution by toxic contaminants. Therefore, in acting pursuant to its obligations to implement article XI, section 7, of the Hawaii State Constitution, the fourteenth legislature recognized and this legislature emphasizes again, as did the 1978 constitutional convention, that the State has an obligation to prevent any further harm by protecting, controlling, and regulating the use and quality of Hawaii's water resources for the benefit of its people. Currently, the State Water Code tasks the commission on water resource management with its implementation and administration. The commission on water resource management adopted the motto ke kahuwai pono, "the trustee who oversees the rightful sharing of water." It is with this conviction that the commissioners, deputy director, and staff strive to ensure the availability of freshwater for generations to come. The legislature additionally finds that quantity decisions are also quality decisions. Therefore, managing water under a single agency recognizes the need to protect, conserve, and use water at every step of the water cycle. This integrated management honors the connections between groundwater, surface water, stormwater, wastewater, and coastal water. Consolidation of water quantity and quality decisions to a single agency can effectively carry out the mandate under article XI, section 7, of the Hawaii State Constitution, to: set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources. Integration of water quality and quantity oversight with the commission on water resource management will create greater government efficiency and offer the benefit of simplified permitting procedures. The commission on water resource management as the single lead agency can increase and integrate enforcement and compliance of water quality and quantity provisions. Integrating water quality and quantity will aid the conservation of water resources as the commission on water resource management can oversee the planning and allocation of recycled wastewater and desalinated water. The use of recycled water has become more significant due to the State's growing population, limited potable water resources due to the climate crisis, and wastewater disposal issues. Therefore, to create a wider forum for public participation on issues related to water, the purpose of this Act is to integrate water quality policy within the responsibilities of the commission on water resource management by transferring jurisdiction from the department of health. SECTION 2. Section 174C-3, Hawaii Revised Statutes, is amended as follows: 1. By adding seven new definitions to be appropriately inserted and to read: ""Coastal waters" means all waters surrounding the islands of the state from the coast of any island to a point three miles seaward of the coast and, in the case of streams, rivers, and drainage ditches, to a point three miles seaward from their point of discharge into the sea and includes both brackish waters, fresh waters, and salt waters that are subject to the ebb and flow of the tide. "Reclaimed water" means treated wastewater that by design is intended or used for a beneficial purpose. "Wastewater" means any liquid waste, whether treated or not, and whether animal, mineral, or vegetable including agricultural, industrial, and thermal wastes. "Water pollution" means: (1) Contamination or other alteration of the physical, chemical, or biological properties of any state waters, including change in temperature, taste, color, turbidity, or odor of the waters, or (2) Discharge of any liquid, gaseous, solid, radioactive, or other substances into any state waters, as will or is likely to create a nuisance or render such waters unreasonably harmful, detrimental, or injurious to public health, safety, or welfare, including harm, detriment, or injury to public water supplies, fish and aquatic life and wildlife, traditional and customary Native Hawaiian uses, recreational purposes and agricultural and industrial research and scientific uses of such waters or as will or is likely to violate any water quality standards, effluent standards, treatment and pretreatment standards, or standards of performance for new sources adopted by the commission. "Water quality" means chemical, physical, biological, bacteriological, radiological, and other properties and characteristics of water that affects its use. "Watershed" means those lands that capture and transmit water to streams and that induce percolation to replenish aquifers. "Wetlands" means land that is transitional between terrestrial and aquatic ecosystems where the water table is usually at or near the surface or the land is covered by shallow water. A wetland shall have one or more of the following attributes: (1) At least periodically the land supports predominantly hydrophytic vegetation; (2) The substratum is predominantly undrained hydric soil; or (3) The substratum is nonsoil (gravel or rocks) and is at least periodically saturated with water or covered by shallow water. Wetlands may be fresh, brackish, or saline and generally include swamps, marshes, bogs, and associated ponds and pools, mud flats, isolated seasonal ponds, littoral zones of standing water bodies, and alluvial floodplains." 2. By amending the definition of "water" or "waters of the State" to read: ""Water" or "waters of the State" means any and all water, whether fresh, brackish, or saltwater, or reclaimed wastewater, on or beneath the surface of the ground, including natural or artificial watercourses, estuaries, wetlands, lakes, ponds, or diffused surface water and water percolating, standing, or flowing beneath the surface of the ground[.], and coastal waters." 3. By amending the definition of "water source" to read: ""Water source" means a place within or from which water is or may be developed, including but not limited to: (1) [generally,] an area such as a watershed defined by topographic boundaries[, or a]; (2) a definitive ground water body; [and (2) specifically, a particular] (3) a stream, other surface water body, spring, tunnel, or well or [related] combination thereof[.]; (4) other places from which water may be taken; (5) reclaimed wastewater; and (6) desalinated water." SECTION 3. Section 174C-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) All waters of the State are subject to regulation under the provisions of this chapter unless specifically exempted. [No provision of this chapter shall apply to coastal waters.] Nothing in this chapter to the contrary shall restrict the planning or zoning power of any county under chapter 46." SECTION 4. Section 174C-5, Hawaii Revised Statutes, is amended to read as follows: "§174C‑5 General powers and duties. The general administration of the state water code shall rest with the commission on water resource management. In addition to its other powers and duties, the commission: (1) Shall carry out topographic surveys, research, and investigations into all aspects of water use and water quality; (2) Shall designate water management areas for regulation under this chapter where the commission, after the research and investigations mentioned in paragraph (1), shall consult with the appropriate county council and county water agency, and after public hearing and published notice, finds that the water resources of the areas are being threatened by existing or proposed withdrawals of water; (3) Shall establish an instream use protection program designed to protect, enhance, and reestablish, where practicable, beneficial instream uses of water in the State; (4) May contract and cooperate with the various agencies of the federal government and with state and local administrative and governmental agencies or private persons; (5) May enter, after obtaining the consent of the property owner, at all reasonable times upon any property other than dwelling places for the purposes of conducting investigations and studies or enforcing any of the provisions of this code, being liable, however, for actual damage done. If consent cannot be obtained, reasonable notice shall be given prior to entry; (6) Shall cooperate with federal agencies, other state agencies, county or other local governmental organizations, and all other public and private agencies created for the purpose of utilizing and conserving the waters of the State, and assist these organizations and agencies in coordinating the use of their facilities and participate in the exchange of ideas, knowledge, and data with these organizations and agencies. For this purpose the commission shall maintain an advisory staff of experts; (7) Shall prepare, publish, and issue printed pamphlets and bulletins as the commission deems necessary for the dissemination of information to the public concerning its activities; (8) May appoint and remove agents, including hearings officers and consultants, necessary to carry out the purposes of this chapter, who may be engaged by the commission without regard to the requirements of chapter 76 and section 78-1; (9) May hire employees in accordance with chapter 76; (10) May acquire, lease, and dispose of such real and personal property as may be necessary in the performance of its functions, including the acquisition of real property for the purpose of conserving and protecting water and water related resources as provided in section 174C-14; (11) Shall identify, by continuing study, those areas of the State where salt water intrusion is a threat to fresh water resources and report its findings to the appropriate county mayor and council and the public; (12) Shall provide coordination, cooperation, or approval necessary to the effectuation of any plan or project of the federal government in connection with or concerning the waters of the State. The commission shall approve or disapprove any federal plans or projects on behalf of the State. No other agency or department of the State shall assume the duties delegated to the commission under this paragraph; [except that the department of health shall continue to exercise the powers vested in it with respect to water quality, and] except that the department of business, economic development, and tourism shall continue to carry out its duties and responsibilities under chapter 205A; (13) Shall plan and coordinate programs for the development, conservation, protection, control, and regulation of water resources, based upon the best available information, and in cooperation with federal agencies, other state agencies, county or other local governmental organizations, and other public and private agencies created for the utilization and conservation of water; (14) Shall catalog and maintain an inventory of all water uses and water resources; and (15) Shall determine appurtenant water rights, including quantification of the amount of water entitled to by that right, which determination shall be valid for purposes of this chapter." SECTION 5. Section 174C-6, Hawaii Revised Statutes, is amended to read as follows: "§174C-6 Deputy [to the chairperson of the commission on] for water resource management[.]; deputy for water quality. (a) There shall be [a] two first [deputy] deputies to the chairperson of the commission on water resource management ("deputy for water resource management"[)] and "deputy for quality") who shall be in addition to any other first deputy to the chairperson as the chairperson of the board of land and natural resources. The deputy for water resource management shall have experience in the area of water resources and the deputy for water quality shall have experience in the area of water quality. Both shall be appointed by the chairperson with the approval of a majority of the commission. (b) The duties of the deputy for water resource management shall be to administer and implement, under the direction of the commission, the state water code and all rules, and other directives promulgated in accordance therewith by the commission. Nothing in this provision shall be construed as limiting the authority of the commission as to matters regarding water resources. (c) The duties of the deputy for water quality shall be to administer and implement, under the direction of the commission, the State's water quality control program as provided in chapters 340B, 340E, 340F, 342D, and 342E, and all rules, and other directives promulgated in accordance therewith by the commission. Nothing in this subsection shall be construed as limiting the authority of the commission as to matters regarding water resources. [(c)] (d) The [position] positions of deputy for water resource management [is] and deputy for water quality are not subject to chapter 76. [(d)] (e) The [salary] salaries of the deputy for water resource management, and deputy for water quality shall be as provided in section 26-53 for first deputies or first assistants to the head of any department." SECTION 6. Section 174C-7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows: "(b) [Five] Seven members shall be appointed by the governor subject to confirmation by the senate in the manner prescribed in subsection (d). Each member shall have substantial experience in the area of water resource management; provided that two members shall have substantial experience in the area of water quality; provided that at least one member shall have substantial experience or expertise in traditional Hawaiian water resource management techniques and in traditional Hawaiian riparian usage such as those preserved by section 174C‑101. The chairperson of the board of land and natural resources shall be the chairperson of the commission. [The director of health or the director's] The chairperson of the Hawaiian homes commission or the chairperson's designee shall serve as an ex officio[[],[]] voting member." SECTION 7. Section 174C-31, Hawaii Revised Statutes, is amended as follows: 1. By amending subsections (a) through (d) to read: "(a) The Hawaii water plan shall consist of [four] three parts: (1) A water resource protection plan which shall be prepared by the commission; (2) Water use and development plans for each county which shall be prepared by each separate county and adopted by ordinance, setting forth the allocation of water to land use in that county; and (3) A state water projects plan which shall be prepared by the agency which has jurisdiction over such projects in conjunction with other state agencies[; and (4) A water quality plan which shall be prepared by the department of health]. (b) All water use and development plans shall be prepared in a manner consistent with the following conditions: (1) Each water use and development plan shall be consistent with the water resource protection and [water] quality [plans;] plan; (2) Each water use and development plan and the state water projects plan shall be consistent with the respective county land use plans and policies including general plan and zoning as determined by each respective county; (3) The water use and development plan for each county shall also be consistent with the state land use classification and policies; [(4) The cost to develop the initial water use and development plan for each county shall be funded by the State in an amount not exceeding $150,000 per county; (5)] (4) The cost of maintaining the water use and development plan shall be borne by the counties; state water capital improvement funds appropriated to the counties shall be deemed to satisfy article VIII, section 5 of the state constitution; and [(6)] (5) Each county in order to be eligible for state appropriations for county water projects must have developed an acceptable water use and development plan within the time frame established by this chapter. (c) To prepare the water resource protection and [water] quality [plans,] plan, the commission shall: (1) Study and inventory the existing water resources of the State and the means and methods of conserving and augmenting such water resources; (2) Study and inventory all existing and potential sources of drinking water in the State, consistent with State and federal water quality standards; [(2)] (3) Review existing and contemplated needs and uses of water including state and county land use plans and policies and study their effect on the environment, procreation of fish and wildlife, and water quality; [(3)] (4) Study the quantity and quality of water needed for existing and contemplated uses, including irrigation, power development, geothermal power, and municipal uses; [(4)] (5) Identify rivers or streams, or a portion of a river or stream, which appropriately may be placed within a wild and scenic rivers system, to be preserved and protected as part of the public trust. For the purposes of this paragraph, the term "wild and scenic rivers" means rivers or streams, or a portion of a river or stream of high natural quality or that possess significant scenic value, including but not limited to, rivers or streams which are within the natural area reserves system. The commission shall report its findings to the legislature twenty days prior to the convening of each regular legislative session; and [(5)] (6) Study such other related matters as drainage, reclamation, flood hazards, floodplain zoning, dam safety, and selection of reservoir sites, as they relate to the protection, conservation, quantity, and quality of water. (d) The water resource protection and quality plan shall include but not be limited to: (1) Nature and occurrence of water resources in the State; (2) Hydrologic units and their characteristics, including the quantity and quality of available resource, requirements for beneficial instream uses and environmental protection, desirable uses worthy of preservation by permit, and undesirable uses for which permits may be denied; (3) Existing and contemplated uses of water, as identified in the water use and development plans of the State and the counties, their impact on the resource, and their consistency with objectives and policies established in the water resource protection and [water] quality [plans;] plan; (4) Programs to conserve, augment, and protect the water resource, including plans for storm water management, reuse, reclamation, and remediation; and (5) Other elements necessary or desirable for inclusion in the plan. Thereafter, the commission, in coordination with the counties [and the department of health], shall formulate an integrated coordinated program for the protection, conservation, and management of the waters in each county based on the above studies. This program, with such amendments, supplements, and additions as may be necessary, shall be known as the water resource protection and [water] quality [plans.] plan. Thereafter, each county shall prepare a water use and development plan and the appropriate state agency shall prepare the state water projects plan." 2. By amending subsections (f) and (g) to read: "(f) Each county water use and development plan shall include but not be limited to: (1) Status of water and related land development, including an inventory of existing water uses for domestic, municipal, and industrial users, agriculture, particularly agriculture on lands designated as important agricultural lands under part III of chapter 205, aquaculture, hydropower development, drainage, reuse, reclamation, recharge, and resulting problems and constraints; (2) Future land uses and related water needs; and (3) Regional plans for water developments, including recommended and alternative plans, costs, adequacy of plans, and relationship to the water resource protection and [water] quality [plans.] plan. (g) The Hawaii water plan shall be directed toward the achievement of the following objectives: (1) The attainment of maximum reasonable-beneficial use of water for such purposes as those referred to in subsection (a); (2) The proper conservation and development of the waters of the State; (3) The control of the waters of the State for such public purposes as navigation, drainage, sanitation, and flood control; (4) The attainment of adequate water quality as expressed in the water resource protection and [water] quality [plans;] plan and consistent with state and federal water quality standards; (5) The implementation of the water resources policies expressed in section 174C-2; and (6) The utilization of reclaimed water for uses other than drinking and for potable water needs in one hundred per cent of state and county facilities by December 31, 2045." 3. By amending subsection (q) to read: "(q) In formulating or revising each county's water use and development plan, the state water projects plan, the water resource protection and quality plan [and the water quality plan], each county and the commission shall incorporate the current and foreseeable development and use needs of the department of Hawaiian home lands for water as provided in section 221 of the Hawaiian Homes Commission Act. Each county shall update and modify its water use and development plans as necessary to maintain consistency with its zoning and land use policies." SECTION 8. Section 174C-32, Hawaii Revised Statutes, is amended to read as follows: "§174C-32 Coordination. (a) Respective portions of the water resource protection and [water] quality [plans,] plan, and the water use and development plans of each county, shall be developed together to achieve maximum coordination. (b) The development of the Hawaii water plan or any portion thereof shall proceed in coordination with and with attention to the Hawaii state plan described in chapter 226. (c) The Hawaii water plan and its constituent parts[, except for the water quality plan,] shall be adopted by the commission [not later than three years from July 1, 1987. The commission shall receive the water quality plan from the department of health and incorporate this part in the Hawaii water plan]." SECTION 9. Section 174C-44, Hawaii Revised Statutes, is amended to read as follows: "§174C-44 Ground water criteria for designation. In designating an area for water use regulation, the commission shall consider the following: (1) Whether an increase in water use or authorized planned use may cause the maximum rate of withdrawal from the ground water source to reach ninety per cent of the sustainable yield of the proposed ground water management area; (2) There is an actual or threatened water quality degradation [as determined by the department of health]; (3) Whether regulation is necessary to preserve the diminishing ground water supply for future needs, as evidenced by excessively declining ground water levels; (4) Whether the rates, times, spatial patterns, or depths of existing withdrawals of ground water are endangering the stability or optimum development of the ground water body due to upconing or encroachment of salt water; (5) Whether the chloride contents of existing wells are increasing to levels which materially reduce the value of their existing uses; (6) Whether excessive preventable waste of ground water is occurring; (7) Serious disputes respecting the use of ground water resources are occurring; or (8) Whether water development projects that have received any federal, state, or county approval may result, in the opinion of the commission, in one of the above conditions. Notwithstanding an imminent designation of a ground water management area conditioned on a rise in the rate of ground water withdrawal to a level of ninety per cent of the area's sustainable yield, the commission, when such level reaches the eighty per cent level of the sustainable yield, may invite the participation of water users in the affected area to an informational hearing for the purposes of assessing the ground water situation and devising mitigative measures." SECTION 10. Section 174C-51.5, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows: "(a) The commission, as a condition for issuing permits pursuant to this part, may require the use of dual line water supply systems in new industrial and commercial developments located in designated water management areas. The commission shall not require the use of dual line water supply systems if: (1) There is a threat to existing water quality or to public health and safety[, as determined by the department of health]; (2) A source of nonpotable water will not be reasonably available in the near future as determined by the commission; or (3) There is a serious threat to permitted ground or surface water uses within a designated water management area as determined by the commission. (b) The county boards of water supply, in consultation with the [department of health,] commission on water resource management, shall adopt standards for nonpotable water distributed through dual line water supply systems, and rules regarding the use of nonpotable water. The standards and rules shall be adopted in accordance with chapter 91 and shall protect existing water quality and the health and safety of the public." SECTION 11. Section 174C-66, Hawaii Revised Statutes, is amended to read as follows: "[[]§174C-66[]] Jurisdiction over water quality. The [department of health] commission on water resource management shall exercise the powers and duties vested in it for the administration of the State's water quality control program as provided [by law] in chapters 340B, 340E, 340F, 342D, and 342E, and all rules and policies promulgated in accordance therewith by the commission on water resource management." SECTION 12. Section 174C-71, Hawaii Revised Statutes, is amended to read as follows: "§174C-71 Protection of instream uses. The commission shall establish and administer a statewide instream use protection program. In carrying out this part, the commission shall cooperate with the United States government or any of its agencies, other state agencies, and the county governments and any of their agencies. In the performance of its duties the commission shall: (1) Establish instream flow standards on a stream-by-stream basis whenever necessary to protect the public interest in waters of the State; (A) The commission, on its own motion, may determine that the public interest in the waters of the State requires the establishment of an instream flow standard for streams; (B) In acting upon the establishment of instream flow standards, the commission shall set forth in writing its conclusion that the public interest does or does not require, as is appropriate, an instream flow standard to be set for the stream, the reasons therefor, and the findings supporting the reasons; (C) Each instream flow standard shall describe the flows necessary to protect the public interest in the particular stream. Flows shall be expressed in terms of variable flows of water necessary to protect adequately fishery, wildlife, recreational, aesthetic, scenic, or other beneficial instream uses in the stream in light of existing and potential water developments including the economic impact of restriction of such use; (D) Establishment or modification of an instream flow standard shall be initiated by the commission by providing notice of its intention to set an instream flow standard in a newspaper of general circulation published in the vicinity of the stream in question, to the mayor of the appropriate county, and to persons who have previously requested such notice in writing; (E) After giving notice of its intention to set an instream flow standard, the commission or other agencies in participation with the commission shall investigate the stream. During the process of this investigation, the commission shall consult with and consider the recommendations of the [department of health, the] aquatic biologist of the department of land and natural resources, the natural area reserves system commission, the University of Hawaii cooperative fishery unit, the United States Fish and Wildlife Service, the mayor of the county in which the stream is located, and other agencies having interest in or information on the stream, and may consult with and consider the recommendations of persons having interest in or information on the stream. In formulating the proposed standard, the commission shall weigh the importance of the present or potential instream values with the importance of the present or potential uses of water from the stream for noninstream purposes, including the economic impact of restriction of such uses. In order to avoid or minimize the impact on existing uses of preserving, enhancing, or restoring instream values, the commission shall consider physical solutions, including water exchanges, modifications of project operations, changes in points of diversion, changes in time and rate of diversion, uses of water from alternative sources, or any other solution; (F) Before adoption of an instream flow standard or modification of an established instream flow standard, the commission shall give notice and hold a hearing on its proposed standard or modification; (2) Establish interim instream flow standards; (A) Any person with the proper standing may petition the commission to adopt an interim instream flow standard for streams in order to protect the public interest pending the establishment of a permanent instream flow standard; (B) Any interim instream flow standard adopted under this section shall terminate upon the establishment of a permanent instream flow standard for the stream on which the interim standards were adopted; (C) A petition to adopt an interim instream flow standard under this section shall set forth data and information concerning the need to protect and conserve beneficial instream uses of water and any other relevant and reasonable information required by the commission; (D) In considering a petition to adopt an interim instream flow standard, the commission shall weigh the importance of the present or potential instream values with the importance of the present or potential uses of water for noninstream purposes, including the economic impact of restricting such uses; (E) The commission shall grant or reject a petition to adopt an interim instream flow standard under this section within one hundred eighty days of the date the petition is filed. The one hundred eighty days may be extended a maximum of one hundred eighty days at the request of the petitioner and subject to the approval of the commission; (F) Interim instream flow standards may be adopted on a stream-by-stream basis or may consist of a general instream flow standard applicable to all streams within a specified area; (3) Protect stream channels from alteration whenever practicable to provide for fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses; (A) The commission shall require persons to obtain a permit from the commission prior to undertaking a stream channel alteration; provided that routine streambed and drainageway maintenance activities and maintenance of existing facilities are exempt from obtaining a permit; (B) Projects which have commenced construction or projects reviewed and approved by the appropriate federal, state, or county agency prior to July 1, 1987, shall not be affected by this part; (C) The commission shall establish guidelines for processing and considering applications for stream channel alterations consistent with section 174C-93; (D) The commission shall require filing fees by users to accompany each application for stream channel alteration; (4) Establish an instream flow program to protect, enhance, and reestablish, where practicable, beneficial instream uses of water. The commission shall conduct investigations and collect instream flow data including fishing, wildlife, aesthetic, recreational, water quality, and ecological information and basic streamflow characteristics necessary for determining instream flow requirements. The commission shall implement its instream flow standards when disposing of water from state watersheds, including that removed by wells or tunnels where they may affect stream flow, and when regulating use of lands and waters within the state conservation district, including water development." SECTION 13. Section 174C-84, Hawaii Revised Statutes, is amended as follows: 1. By amending subsection (c) to read: "(c) The commission may issue a permit only if the proposed construction complies with all applicable laws, rules, and standards. Before acting on any application, the commission shall cause the application [to be reviewed by the department of health] for compliance with [their] its rules and standards concerning, among other things, the appropriateness of the well location." 2. By amending subsection (e) to read: "(e) The holder of a permit for well construction, with the approval of the commission, may change the location of the well before construction is completed. An application to change the location shall describe the location, the proposed depth and method of construction, and the size and expected capacity of the new well. It shall also describe the manner of sealing or plugging the incomplete and abandoned well. The commission shall [cause] review all such applications [to be reviewed by the department of health] for compliance with [their] its rules and standards concerning, among other things, the appropriateness of the location of the well. The commission may issue an amended permit if it determines that the proposed new well location will serve the same use as the original well and draw upon the same supply of water and will not be contrary to any applicable law, rule, order, or regulation, and that the incomplete and abandoned well will be sealed or plugged in a manner to prevent waste of water and damage to the water supply and to protect the public from harm." SECTION 14. Section 174C-67, Hawaii Revised Statutes, is repealed. ["§174C-67 Exchange of information. (a) The department of health shall submit to the commission such information as the commission shall require as prescribed in its rules, provided it does not jeopardize any pending or ongoing enforcement action. (b) The commission shall submit to the department of health such information as the department of health shall require, for the performance of its water quality functions."] SECTION 15. Section 174C-68, Hawaii Revised Statutes, is repealed. ["§174C-68 Water quality plan. (a) The department of health shall formulate a state water quality plan for all existing and potential sources of drinking water and that plan shall become part of the Hawaii water plan described in part III. Requirements for the plan shall be governed by chapters 340E and 342. The state water quality plan shall include water quality criteria for the designation of ground water management areas and surface water management areas pursuant to section 174C-44 and 174C-45. (b) The state water quality plan shall be periodically reviewed and revised by the department of health as needed. (c) In formulating or revising the state water quality plan, the department of health shall consult with and carefully evaluate the recommendations of concerned federal, state, and local agencies, particularly county water supply agencies. (d) The department of health may ban the importation into this State of any substances which the department of health reasonably believes may present a danger to the water quality of this State."] SECTION 16. Chapters 340B, 340E, 340F, 342D, and 342E, Hawaii Revised Statutes, are amended by transferring and appropriately designating those chapters as Subtitle 2, Water and Land Development, of Title 12, Conservation and Resources, and by substituting the term "commission on water resource management", or a similar term, wherever the term "department of health" or "director", or similar term, appears as the context requires. SECTION 17. (a) Within ninety days of the effective date of this Act, the governor shall designate a representative who shall facilitate the commission on water resource management's orderly succession to the jurisdiction, powers, functions, rights, benefits, obligations, assets, liabilities, funds, accounts, contracts, and all other things currently held, used, incurred, or performed by the department of health in the regulation of water quality, or its director and staff, in administering and exercising the authority and fulfilling the responsibilities authorized or conferred upon the department of health and the director of health, by the chapters transferred in section 16 of this Act. (b) Within one hundred eighty days of the effective date of this Act, the governor shall appoint two commissioners with substantial experience in the area of water quality. (c) To facilitate the commission on water resource management's timely assumption of the commission's authority and responsibilities, the department of health, department of accounting and general services, department of human resources development, state procurement office, and any other state department or agency shall, if requested by the commission on water resource management, enter into a memorandum of understanding with the commission on water resource management to: (1) Provide administrative support services for the commission pending the transfer of employees to the commission on water resource management pursuant to section 16 of this Act; (2) Develop a policy and set of robust procurement procedures that foster accountability, transparency, and oversight of contracts, including compliance with federal procurement requirements; (3) Assist the commission on water resource management with the organization of its human resources development functions, including establishing: (A) A human resources office; and (B) The commission on water resource management's civil service and civil service positions, and the classification system, merit appeals board, recruitment system, performance appraisal system, and administrative rules, policies, standards, and procedures, including internal complaint procedures, adopted to support its civil service. (4) Assist the commission on water resource management in establishing its accounting, budgeting, fund management, and communication and electronic information systems, and creating appropriate interfaces between the commission's accounting, budgeting, fund management, communication and electronic information systems, and those of the other departments and other state agencies; (5) Assist the commission on water resource management in identifying the plans and reports that the department of health is required to prepare for the governor, legislature, or another state department or agency; determining whether those plans and reports have been prepared and will be transferred to the commission on the transfer completion date; and preparing the same for the commission on water resource management, if they do not exist; and (6) Expeditiously transfer or otherwise facilitate the commission on water resource management's acquisition or assumption of all of the powers, functions, rights, benefits, obligations, assets, funds, accounts, contracts, and all other things held, used, incurred, or performed by the department of health, director of health, and staff of the department of health, in exercising, fulfilling, and administering the responsibilities conferred upon the commission on water resource management by transfer of chapters 340B, 340E, 340F, 342D, and 342E, Hawaii Revised Statutes. (d) As soon as feasible, the commission on water resource management with the concurrence of the director of health, and the governor, shall establish the transfer completion date, which shall be no later than December 31, 2022, and publish notice of the transfer completion date by: (1) Publishing the notice in a daily publication of statewide circulation pursuant to section 1-28.5, Hawaii Revised Statutes; (2) Posting a copy of the notice on an electronic calendar on a website maintained by the State; and (3) Providing a copy of the notice to the head of every state department. SECTION 18. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of health relating to the functions transferred to the commission on water resource management shall be transferred with the functions to which they relate. SECTION 19. All rights, powers, functions, and duties of the department of health relating to the functions transferred by this Act are transferred to the commission on water resource management. All employees who occupy civil service positions and whose functions are transferred to the commission on water resource management by this Act shall retain their civil service status, whether permanent or temporary. Employees shall be transferred without loss of salary, seniority (except as prescribed by applicable collective bargaining agreements), retention points, prior service credit, any vacation and sick leave credits previously earned, and other rights, benefits, and privileges, in accordance with state personnel laws and this Act; provided that the employees possess the minimum qualifications and public employment requirements for the class or position to which transferred or appointed, as applicable; provided further that subsequent changes in status may be made pursuant to applicable civil service and compensation laws. Any employee who, prior to this Act, is exempt from civil service and is transferred as a consequence of this Act may retain the employee's exempt status, but shall not be appointed to a civil service position as a consequence of this Act. An exempt employee who is transferred by this Act shall not suffer any loss of prior service credit, vacation or sick leave credits previously earned, or other employee benefits or privileges as a consequence of this Act; provided that the employees possess legal and public employment requirements for the position to which transferred or appointed, as applicable; provided further that subsequent changes in status may be made pursuant to applicable employment and compensation laws. The chairperson of the commission on water resource management may prescribe the duties and qualifications of these employees and fix their salaries without regard to chapter 76, Hawaii Revised Statutes. SECTION 20. All rules, policies, procedures, guidelines, and other materials adopted or developed by the department of health to implement provisions of the Hawaii Revised Statutes that are reenacted or made applicable to the commission on water resource management by this Act shall remain in full force and effect on and after the transfer completion date established pursuant to section 17 of this Act, until amended or repealed by the commission on water resource management protection pursuant to chapter 91, Hawaii Revised Statutes. In the interim, every reference to the department of health and director of health, in those rules, policies, procedures, guidelines, and other material is amended to refer to the commission on water resource management or chairperson of the commission on water resource management, as appropriate. SECTION 21. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 22. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. SECTION 23. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 24. This Act shall take effect upon its approval. INTRODUCED BY: _____________________________
4848
4949 SECTION 1. The legislature finds that for Hawaii's people, culture, and resources, ola i ka wai, "water is life." The Hawaii State Constitution recognizes that water is held in trust by the State for the benefit of the people and mandates that the State and its political subdivisions conserve and protect Hawaii's water. The public trust has a duty and the authority to maintain the purity and flow of Hawaii's waters for future generations. The Hawaii Supreme Court has recognized four public trust purposes:
5050
5151 (1) The maintenance of water in its natural state;
5252
5353 (2) Domestic water uses;
5454
5555 (3) Water for the department of Hawaiian home lands; and
5656
5757 (4) Water use in the exercise of traditional and customary Native Hawaiian rights.
5858
5959 The legislature further finds that to protect and conserve water, water quality and quantity issues must be managed holistically as every public trust purpose and other water uses have water quality considerations before quantity. When enacting the State Water Code, Session Laws of Hawaii 1987 (Act 45),the fourteenth legislature found that the water resources of the State were in need of management and regulation, as there has already been shortages of water, a decline in groundwater levels, and severe pollution by toxic contaminants. Therefore, in acting pursuant to its obligations to implement article XI, section 7, of the Hawaii State Constitution, the fourteenth legislature recognized and this legislature emphasizes again, as did the 1978 constitutional convention, that the State has an obligation to prevent any further harm by protecting, controlling, and regulating the use and quality of Hawaii's water resources for the benefit of its people.
6060
6161 Currently, the State Water Code tasks the commission on water resource management with its implementation and administration. The commission on water resource management adopted the motto ke kahuwai pono, "the trustee who oversees the rightful sharing of water." It is with this conviction that the commissioners, deputy director, and staff strive to ensure the availability of freshwater for generations to come.
6262
6363 The legislature additionally finds that quantity decisions are also quality decisions. Therefore, managing water under a single agency recognizes the need to protect, conserve, and use water at every step of the water cycle. This integrated management honors the connections between groundwater, surface water, stormwater, wastewater, and coastal water. Consolidation of water quantity and quality decisions to a single agency can effectively carry out the mandate under article XI, section 7, of the Hawaii State Constitution, to: set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources.
6464
6565 Integration of water quality and quantity oversight with the commission on water resource management will create greater government efficiency and offer the benefit of simplified permitting procedures. The commission on water resource management as the single lead agency can increase and integrate enforcement and compliance of water quality and quantity provisions. Integrating water quality and quantity will aid the conservation of water resources as the commission on water resource management can oversee the planning and allocation of recycled wastewater and desalinated water. The use of recycled water has become more significant due to the State's growing population, limited potable water resources due to the climate crisis, and wastewater disposal issues.
6666
6767 Therefore, to create a wider forum for public participation on issues related to water, the purpose of this Act is to integrate water quality policy within the responsibilities of the commission on water resource management by transferring jurisdiction from the department of health.
6868
6969 SECTION 2. Section 174C-3, Hawaii Revised Statutes, is amended as follows:
7070
7171 1. By adding seven new definitions to be appropriately inserted and to read:
7272
7373 ""Coastal waters" means all waters surrounding the islands of the state from the coast of any island to a point three miles seaward of the coast and, in the case of streams, rivers, and drainage ditches, to a point three miles seaward from their point of discharge into the sea and includes both brackish waters, fresh waters, and salt waters that are subject to the ebb and flow of the tide.
7474
7575 "Reclaimed water" means treated wastewater that by design is intended or used for a beneficial purpose.
7676
7777 "Wastewater" means any liquid waste, whether treated or not, and whether animal, mineral, or vegetable including agricultural, industrial, and thermal wastes.
7878
7979 "Water pollution" means:
8080
8181 (1) Contamination or other alteration of the physical, chemical, or biological properties of any state waters, including change in temperature, taste, color, turbidity, or odor of the waters, or
8282
8383 (2) Discharge of any liquid, gaseous, solid, radioactive, or other substances into any state waters,
8484
8585 as will or is likely to create a nuisance or render such waters unreasonably harmful, detrimental, or injurious to public health, safety, or welfare, including harm, detriment, or injury to public water supplies, fish and aquatic life and wildlife, traditional and customary Native Hawaiian uses, recreational purposes and agricultural and industrial research and scientific uses of such waters or as will or is likely to violate any water quality standards, effluent standards, treatment and pretreatment standards, or standards of performance for new sources adopted by the commission.
8686
8787 "Water quality" means chemical, physical, biological, bacteriological, radiological, and other properties and characteristics of water that affects its use.
8888
8989 "Watershed" means those lands that capture and transmit water to streams and that induce percolation to replenish aquifers.
9090
9191 "Wetlands" means land that is transitional between terrestrial and aquatic ecosystems where the water table is usually at or near the surface or the land is covered by shallow water. A wetland shall have one or more of the following attributes:
9292
9393 (1) At least periodically the land supports predominantly hydrophytic vegetation;
9494
9595 (2) The substratum is predominantly undrained hydric soil; or
9696
9797 (3) The substratum is nonsoil (gravel or rocks) and is at least periodically saturated with water or covered by shallow water.
9898
9999 Wetlands may be fresh, brackish, or saline and generally include swamps, marshes, bogs, and associated ponds and pools, mud flats, isolated seasonal ponds, littoral zones of standing water bodies, and alluvial floodplains."
100100
101101 2. By amending the definition of "water" or "waters of the State" to read:
102102
103103 ""Water" or "waters of the State" means any and all water, whether fresh, brackish, or saltwater, or reclaimed wastewater, on or beneath the surface of the ground, including natural or artificial watercourses, estuaries, wetlands, lakes, ponds, or diffused surface water and water percolating, standing, or flowing beneath the surface of the ground[.], and coastal waters."
104104
105105 3. By amending the definition of "water source" to read:
106106
107107 ""Water source" means a place within or from which water is or may be developed, including but not limited to: (1) [generally,] an area such as a watershed defined by topographic boundaries[, or a]; (2) a definitive ground water body; [and (2) specifically, a particular] (3) a stream, other surface water body, spring, tunnel, or well or [related] combination thereof[.]; (4) other places from which water may be taken; (5) reclaimed wastewater; and (6) desalinated water."
108108
109109 SECTION 3. Section 174C-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
110110
111111 "(a) All waters of the State are subject to regulation under the provisions of this chapter unless specifically exempted. [No provision of this chapter shall apply to coastal waters.] Nothing in this chapter to the contrary shall restrict the planning or zoning power of any county under chapter 46."
112112
113113 SECTION 4. Section 174C-5, Hawaii Revised Statutes, is amended to read as follows:
114114
115115 "§174C‑5 General powers and duties. The general administration of the state water code shall rest with the commission on water resource management. In addition to its other powers and duties, the commission:
116116
117117 (1) Shall carry out topographic surveys, research, and investigations into all aspects of water use and water quality;
118118
119119 (2) Shall designate water management areas for regulation under this chapter where the commission, after the research and investigations mentioned in paragraph (1), shall consult with the appropriate county council and county water agency, and after public hearing and published notice, finds that the water resources of the areas are being threatened by existing or proposed withdrawals of water;
120120
121121 (3) Shall establish an instream use protection program designed to protect, enhance, and reestablish, where practicable, beneficial instream uses of water in the State;
122122
123123 (4) May contract and cooperate with the various agencies of the federal government and with state and local administrative and governmental agencies or private persons;
124124
125125 (5) May enter, after obtaining the consent of the property owner, at all reasonable times upon any property other than dwelling places for the purposes of conducting investigations and studies or enforcing any of the provisions of this code, being liable, however, for actual damage done. If consent cannot be obtained, reasonable notice shall be given prior to entry;
126126
127127 (6) Shall cooperate with federal agencies, other state agencies, county or other local governmental organizations, and all other public and private agencies created for the purpose of utilizing and conserving the waters of the State, and assist these organizations and agencies in coordinating the use of their facilities and participate in the exchange of ideas, knowledge, and data with these organizations and agencies. For this purpose the commission shall maintain an advisory staff of experts;
128128
129129 (7) Shall prepare, publish, and issue printed pamphlets and bulletins as the commission deems necessary for the dissemination of information to the public concerning its activities;
130130
131131 (8) May appoint and remove agents, including hearings officers and consultants, necessary to carry out the purposes of this chapter, who may be engaged by the commission without regard to the requirements of chapter 76 and section 78-1;
132132
133133 (9) May hire employees in accordance with chapter 76;
134134
135135 (10) May acquire, lease, and dispose of such real and personal property as may be necessary in the performance of its functions, including the acquisition of real property for the purpose of conserving and protecting water and water related resources as provided in section 174C-14;
136136
137137 (11) Shall identify, by continuing study, those areas of the State where salt water intrusion is a threat to fresh water resources and report its findings to the appropriate county mayor and council and the public;
138138
139139 (12) Shall provide coordination, cooperation, or approval necessary to the effectuation of any plan or project of the federal government in connection with or concerning the waters of the State. The commission shall approve or disapprove any federal plans or projects on behalf of the State. No other agency or department of the State shall assume the duties delegated to the commission under this paragraph; [except that the department of health shall continue to exercise the powers vested in it with respect to water quality, and] except that the department of business, economic development, and tourism shall continue to carry out its duties and responsibilities under chapter 205A;
140140
141141 (13) Shall plan and coordinate programs for the development, conservation, protection, control, and regulation of water resources, based upon the best available information, and in cooperation with federal agencies, other state agencies, county or other local governmental organizations, and other public and private agencies created for the utilization and conservation of water;
142142
143143 (14) Shall catalog and maintain an inventory of all water uses and water resources; and
144144
145145 (15) Shall determine appurtenant water rights, including quantification of the amount of water entitled to by that right, which determination shall be valid for purposes of this chapter."
146146
147147 SECTION 5. Section 174C-6, Hawaii Revised Statutes, is amended to read as follows:
148148
149149 "§174C-6 Deputy [to the chairperson of the commission on] for water resource management[.]; deputy for water quality. (a) There shall be [a] two first [deputy] deputies to the chairperson of the commission on water resource management ("deputy for water resource management"[)] and "deputy for quality") who shall be in addition to any other first deputy to the chairperson as the chairperson of the board of land and natural resources. The deputy for water resource management shall have experience in the area of water resources and the deputy for water quality shall have experience in the area of water quality. Both shall be appointed by the chairperson with the approval of a majority of the commission.
150150
151151 (b) The duties of the deputy for water resource management shall be to administer and implement, under the direction of the commission, the state water code and all rules, and other directives promulgated in accordance therewith by the commission. Nothing in this provision shall be construed as limiting the authority of the commission as to matters regarding water resources.
152152
153153 (c) The duties of the deputy for water quality shall be to administer and implement, under the direction of the commission, the State's water quality control program as provided in chapters 340B, 340E, 340F, 342D, and 342E, and all rules, and other directives promulgated in accordance therewith by the commission. Nothing in this subsection shall be construed as limiting the authority of the commission as to matters regarding water resources.
154154
155155 [(c)] (d) The [position] positions of deputy for water resource management [is] and deputy for water quality are not subject to chapter 76.
156156
157157 [(d)] (e) The [salary] salaries of the deputy for water resource management, and deputy for water quality shall be as provided in section 26-53 for first deputies or first assistants to the head of any department."
158158
159159 SECTION 6. Section 174C-7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
160160
161161 "(b) [Five] Seven members shall be appointed by the governor subject to confirmation by the senate in the manner prescribed in subsection (d). Each member shall have substantial experience in the area of water resource management; provided that two members shall have substantial experience in the area of water quality; provided that at least one member shall have substantial experience or expertise in traditional Hawaiian water resource management techniques and in traditional Hawaiian riparian usage such as those preserved by section 174C‑101. The chairperson of the board of land and natural resources shall be the chairperson of the commission. [The director of health or the director's] The chairperson of the Hawaiian homes commission or the chairperson's designee shall serve as an ex officio[[],[]] voting member."
162162
163163 SECTION 7. Section 174C-31, Hawaii Revised Statutes, is amended as follows:
164164
165165 1. By amending subsections (a) through (d) to read:
166166
167167 "(a) The Hawaii water plan shall consist of [four] three parts:
168168
169169 (1) A water resource protection plan which shall be prepared by the commission;
170170
171171 (2) Water use and development plans for each county which shall be prepared by each separate county and adopted by ordinance, setting forth the allocation of water to land use in that county; and
172172
173173 (3) A state water projects plan which shall be prepared by the agency which has jurisdiction over such projects in conjunction with other state agencies[; and
174174
175175 (4) A water quality plan which shall be prepared by the department of health].
176176
177177 (b) All water use and development plans shall be prepared in a manner consistent with the following conditions:
178178
179179 (1) Each water use and development plan shall be consistent with the water resource protection and [water] quality [plans;] plan;
180180
181181 (2) Each water use and development plan and the state water projects plan shall be consistent with the respective county land use plans and policies including general plan and zoning as determined by each respective county;
182182
183183 (3) The water use and development plan for each county shall also be consistent with the state land use classification and policies;
184184
185185 [(4) The cost to develop the initial water use and development plan for each county shall be funded by the State in an amount not exceeding $150,000 per county;
186186
187187 (5)] (4) The cost of maintaining the water use and development plan shall be borne by the counties; state water capital improvement funds appropriated to the counties shall be deemed to satisfy article VIII, section 5 of the state constitution; and
188188
189189 [(6)] (5) Each county in order to be eligible for state appropriations for county water projects must have developed an acceptable water use and development plan within the time frame established by this chapter.
190190
191191 (c) To prepare the water resource protection and [water] quality [plans,] plan, the commission shall:
192192
193193 (1) Study and inventory the existing water resources of the State and the means and methods of conserving and augmenting such water resources;
194194
195195 (2) Study and inventory all existing and potential sources of drinking water in the State, consistent with State and federal water quality standards;
196196
197197 [(2)] (3) Review existing and contemplated needs and uses of water including state and county land use plans and policies and study their effect on the environment, procreation of fish and wildlife, and water quality;
198198
199199 [(3)] (4) Study the quantity and quality of water needed for existing and contemplated uses, including irrigation, power development, geothermal power, and municipal uses;
200200
201201 [(4)] (5) Identify rivers or streams, or a portion of a river or stream, which appropriately may be placed within a wild and scenic rivers system, to be preserved and protected as part of the public trust. For the purposes of this paragraph, the term "wild and scenic rivers" means rivers or streams, or a portion of a river or stream of high natural quality or that possess significant scenic value, including but not limited to, rivers or streams which are within the natural area reserves system. The commission shall report its findings to the legislature twenty days prior to the convening of each regular legislative session; and
202202
203203 [(5)] (6) Study such other related matters as drainage, reclamation, flood hazards, floodplain zoning, dam safety, and selection of reservoir sites, as they relate to the protection, conservation, quantity, and quality of water.
204204
205205 (d) The water resource protection and quality plan shall include but not be limited to:
206206
207207 (1) Nature and occurrence of water resources in the State;
208208
209209 (2) Hydrologic units and their characteristics, including the quantity and quality of available resource, requirements for beneficial instream uses and environmental protection, desirable uses worthy of preservation by permit, and undesirable uses for which permits may be denied;
210210
211211 (3) Existing and contemplated uses of water, as identified in the water use and development plans of the State and the counties, their impact on the resource, and their consistency with objectives and policies established in the water resource protection and [water] quality [plans;] plan;
212212
213213 (4) Programs to conserve, augment, and protect the water resource, including plans for storm water management, reuse, reclamation, and remediation; and
214214
215215 (5) Other elements necessary or desirable for inclusion in the plan.
216216
217217 Thereafter, the commission, in coordination with the counties [and the department of health], shall formulate an integrated coordinated program for the protection, conservation, and management of the waters in each county based on the above studies. This program, with such amendments, supplements, and additions as may be necessary, shall be known as the water resource protection and [water] quality [plans.] plan.
218218
219219 Thereafter, each county shall prepare a water use and development plan and the appropriate state agency shall prepare the state water projects plan."
220220
221221 2. By amending subsections (f) and (g) to read:
222222
223223 "(f) Each county water use and development plan shall include but not be limited to:
224224
225225 (1) Status of water and related land development, including an inventory of existing water uses for domestic, municipal, and industrial users, agriculture, particularly agriculture on lands designated as important agricultural lands under part III of chapter 205, aquaculture, hydropower development, drainage, reuse, reclamation, recharge, and resulting problems and constraints;
226226
227227 (2) Future land uses and related water needs; and
228228
229229 (3) Regional plans for water developments, including recommended and alternative plans, costs, adequacy of plans, and relationship to the water resource protection and [water] quality [plans.] plan.
230230
231231 (g) The Hawaii water plan shall be directed toward the achievement of the following objectives:
232232
233233 (1) The attainment of maximum reasonable-beneficial use of water for such purposes as those referred to in subsection (a);
234234
235235 (2) The proper conservation and development of the waters of the State;
236236
237237 (3) The control of the waters of the State for such public purposes as navigation, drainage, sanitation, and flood control;
238238
239239 (4) The attainment of adequate water quality as expressed in the water resource protection and [water] quality [plans;] plan and consistent with state and federal water quality standards;
240240
241241 (5) The implementation of the water resources policies expressed in section 174C-2; and
242242
243243 (6) The utilization of reclaimed water for uses other than drinking and for potable water needs in one hundred per cent of state and county facilities by December 31, 2045."
244244
245245 3. By amending subsection (q) to read:
246246
247247 "(q) In formulating or revising each county's water use and development plan, the state water projects plan, the water resource protection and quality plan [and the water quality plan], each county and the commission shall incorporate the current and foreseeable development and use needs of the department of Hawaiian home lands for water as provided in section 221 of the Hawaiian Homes Commission Act.
248248
249249 Each county shall update and modify its water use and development plans as necessary to maintain consistency with its zoning and land use policies."
250250
251251 SECTION 8. Section 174C-32, Hawaii Revised Statutes, is amended to read as follows:
252252
253253 "§174C-32 Coordination. (a) Respective portions of the water resource protection and [water] quality [plans,] plan, and the water use and development plans of each county, shall be developed together to achieve maximum coordination.
254254
255255 (b) The development of the Hawaii water plan or any portion thereof shall proceed in coordination with and with attention to the Hawaii state plan described in chapter 226.
256256
257257 (c) The Hawaii water plan and its constituent parts[, except for the water quality plan,] shall be adopted by the commission [not later than three years from July 1, 1987. The commission shall receive the water quality plan from the department of health and incorporate this part in the Hawaii water plan]."
258258
259259 SECTION 9. Section 174C-44, Hawaii Revised Statutes, is amended to read as follows:
260260
261261 "§174C-44 Ground water criteria for designation. In designating an area for water use regulation, the commission shall consider the following:
262262
263263 (1) Whether an increase in water use or authorized planned use may cause the maximum rate of withdrawal from the ground water source to reach ninety per cent of the sustainable yield of the proposed ground water management area;
264264
265265 (2) There is an actual or threatened water quality degradation [as determined by the department of health];
266266
267267 (3) Whether regulation is necessary to preserve the diminishing ground water supply for future needs, as evidenced by excessively declining ground water levels;
268268
269269 (4) Whether the rates, times, spatial patterns, or depths of existing withdrawals of ground water are endangering the stability or optimum development of the ground water body due to upconing or encroachment of salt water;
270270
271271 (5) Whether the chloride contents of existing wells are increasing to levels which materially reduce the value of their existing uses;
272272
273273 (6) Whether excessive preventable waste of ground water is occurring;
274274
275275 (7) Serious disputes respecting the use of ground water resources are occurring; or
276276
277277 (8) Whether water development projects that have received any federal, state, or county approval may result, in the opinion of the commission, in one of the above conditions.
278278
279279 Notwithstanding an imminent designation of a ground water management area conditioned on a rise in the rate of ground water withdrawal to a level of ninety per cent of the area's sustainable yield, the commission, when such level reaches the eighty per cent level of the sustainable yield, may invite the participation of water users in the affected area to an informational hearing for the purposes of assessing the ground water situation and devising mitigative measures."
280280
281281 SECTION 10. Section 174C-51.5, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
282282
283283 "(a) The commission, as a condition for issuing permits pursuant to this part, may require the use of dual line water supply systems in new industrial and commercial developments located in designated water management areas. The commission shall not require the use of dual line water supply systems if:
284284
285285 (1) There is a threat to existing water quality or to public health and safety[, as determined by the department of health];
286286
287287 (2) A source of nonpotable water will not be reasonably available in the near future as determined by the commission; or
288288
289289 (3) There is a serious threat to permitted ground or surface water uses within a designated water management area as determined by the commission.
290290
291291 (b) The county boards of water supply, in consultation with the [department of health,] commission on water resource management, shall adopt standards for nonpotable water distributed through dual line water supply systems, and rules regarding the use of nonpotable water. The standards and rules shall be adopted in accordance with chapter 91 and shall protect existing water quality and the health and safety of the public."
292292
293293 SECTION 11. Section 174C-66, Hawaii Revised Statutes, is amended to read as follows:
294294
295295 "[[]§174C-66[]] Jurisdiction over water quality. The [department of health] commission on water resource management shall exercise the powers and duties vested in it for the administration of the State's water quality control program as provided [by law] in chapters 340B, 340E, 340F, 342D, and 342E, and all rules and policies promulgated in accordance therewith by the commission on water resource management."
296296
297297 SECTION 12. Section 174C-71, Hawaii Revised Statutes, is amended to read as follows:
298298
299299 "§174C-71 Protection of instream uses. The commission shall establish and administer a statewide instream use protection program. In carrying out this part, the commission shall cooperate with the United States government or any of its agencies, other state agencies, and the county governments and any of their agencies. In the performance of its duties the commission shall:
300300
301301 (1) Establish instream flow standards on a stream-by-stream basis whenever necessary to protect the public interest in waters of the State;
302302
303303 (A) The commission, on its own motion, may determine that the public interest in the waters of the State requires the establishment of an instream flow standard for streams;
304304
305305 (B) In acting upon the establishment of instream flow standards, the commission shall set forth in writing its conclusion that the public interest does or does not require, as is appropriate, an instream flow standard to be set for the stream, the reasons therefor, and the findings supporting the reasons;
306306
307307 (C) Each instream flow standard shall describe the flows necessary to protect the public interest in the particular stream. Flows shall be expressed in terms of variable flows of water necessary to protect adequately fishery, wildlife, recreational, aesthetic, scenic, or other beneficial instream uses in the stream in light of existing and potential water developments including the economic impact of restriction of such use;
308308
309309 (D) Establishment or modification of an instream flow standard shall be initiated by the commission by providing notice of its intention to set an instream flow standard in a newspaper of general circulation published in the vicinity of the stream in question, to the mayor of the appropriate county, and to persons who have previously requested such notice in writing;
310310
311311 (E) After giving notice of its intention to set an instream flow standard, the commission or other agencies in participation with the commission shall investigate the stream. During the process of this investigation, the commission shall consult with and consider the recommendations of the [department of health, the] aquatic biologist of the department of land and natural resources, the natural area reserves system commission, the University of Hawaii cooperative fishery unit, the United States Fish and Wildlife Service, the mayor of the county in which the stream is located, and other agencies having interest in or information on the stream, and may consult with and consider the recommendations of persons having interest in or information on the stream. In formulating the proposed standard, the commission shall weigh the importance of the present or potential instream values with the importance of the present or potential uses of water from the stream for noninstream purposes, including the economic impact of restriction of such uses. In order to avoid or minimize the impact on existing uses of preserving, enhancing, or restoring instream values, the commission shall consider physical solutions, including water exchanges, modifications of project operations, changes in points of diversion, changes in time and rate of diversion, uses of water from alternative sources, or any other solution;
312312
313313 (F) Before adoption of an instream flow standard or modification of an established instream flow standard, the commission shall give notice and hold a hearing on its proposed standard or modification;
314314
315315 (2) Establish interim instream flow standards;
316316
317317 (A) Any person with the proper standing may petition the commission to adopt an interim instream flow standard for streams in order to protect the public interest pending the establishment of a permanent instream flow standard;
318318
319319 (B) Any interim instream flow standard adopted under this section shall terminate upon the establishment of a permanent instream flow standard for the stream on which the interim standards were adopted;
320320
321321 (C) A petition to adopt an interim instream flow standard under this section shall set forth data and information concerning the need to protect and conserve beneficial instream uses of water and any other relevant and reasonable information required by the commission;
322322
323323 (D) In considering a petition to adopt an interim instream flow standard, the commission shall weigh the importance of the present or potential instream values with the importance of the present or potential uses of water for noninstream purposes, including the economic impact of restricting such uses;
324324
325325 (E) The commission shall grant or reject a petition to adopt an interim instream flow standard under this section within one hundred eighty days of the date the petition is filed. The one hundred eighty days may be extended a maximum of one hundred eighty days at the request of the petitioner and subject to the approval of the commission;
326326
327327 (F) Interim instream flow standards may be adopted on a stream-by-stream basis or may consist of a general instream flow standard applicable to all streams within a specified area;
328328
329329 (3) Protect stream channels from alteration whenever practicable to provide for fishery, wildlife, recreational, aesthetic, scenic, and other beneficial instream uses;
330330
331331 (A) The commission shall require persons to obtain a permit from the commission prior to undertaking a stream channel alteration; provided that routine streambed and drainageway maintenance activities and maintenance of existing facilities are exempt from obtaining a permit;
332332
333333 (B) Projects which have commenced construction or projects reviewed and approved by the appropriate federal, state, or county agency prior to July 1, 1987, shall not be affected by this part;
334334
335335 (C) The commission shall establish guidelines for processing and considering applications for stream channel alterations consistent with section 174C-93;
336336
337337 (D) The commission shall require filing fees by users to accompany each application for stream channel alteration;
338338
339339 (4) Establish an instream flow program to protect, enhance, and reestablish, where practicable, beneficial instream uses of water. The commission shall conduct investigations and collect instream flow data including fishing, wildlife, aesthetic, recreational, water quality, and ecological information and basic streamflow characteristics necessary for determining instream flow requirements.
340340
341341 The commission shall implement its instream flow standards when disposing of water from state watersheds, including that removed by wells or tunnels where they may affect stream flow, and when regulating use of lands and waters within the state conservation district, including water development."
342342
343343 SECTION 13. Section 174C-84, Hawaii Revised Statutes, is amended as follows:
344344
345345 1. By amending subsection (c) to read:
346346
347347 "(c) The commission may issue a permit only if the proposed construction complies with all applicable laws, rules, and standards. Before acting on any application, the commission shall cause the application [to be reviewed by the department of health] for compliance with [their] its rules and standards concerning, among other things, the appropriateness of the well location."
348348
349349 2. By amending subsection (e) to read:
350350
351351 "(e) The holder of a permit for well construction, with the approval of the commission, may change the location of the well before construction is completed. An application to change the location shall describe the location, the proposed depth and method of construction, and the size and expected capacity of the new well. It shall also describe the manner of sealing or plugging the incomplete and abandoned well. The commission shall [cause] review all such applications [to be reviewed by the department of health] for compliance with [their] its rules and standards concerning, among other things, the appropriateness of the location of the well. The commission may issue an amended permit if it determines that the proposed new well location will serve the same use as the original well and draw upon the same supply of water and will not be contrary to any applicable law, rule, order, or regulation, and that the incomplete and abandoned well will be sealed or plugged in a manner to prevent waste of water and damage to the water supply and to protect the public from harm."
352352
353353 SECTION 14. Section 174C-67, Hawaii Revised Statutes, is repealed.
354354
355355 ["§174C-67 Exchange of information. (a) The department of health shall submit to the commission such information as the commission shall require as prescribed in its rules, provided it does not jeopardize any pending or ongoing enforcement action.
356356
357357 (b) The commission shall submit to the department of health such information as the department of health shall require, for the performance of its water quality functions."]
358358
359359 SECTION 15. Section 174C-68, Hawaii Revised Statutes, is repealed.
360360
361361 ["§174C-68 Water quality plan. (a) The department of health shall formulate a state water quality plan for all existing and potential sources of drinking water and that plan shall become part of the Hawaii water plan described in part III. Requirements for the plan shall be governed by chapters 340E and 342. The state water quality plan shall include water quality criteria for the designation of ground water management areas and surface water management areas pursuant to section 174C-44 and 174C-45.
362362
363363 (b) The state water quality plan shall be periodically reviewed and revised by the department of health as needed.
364364
365365 (c) In formulating or revising the state water quality plan, the department of health shall consult with and carefully evaluate the recommendations of concerned federal, state, and local agencies, particularly county water supply agencies.
366366
367367 (d) The department of health may ban the importation into this State of any substances which the department of health reasonably believes may present a danger to the water quality of this State."]
368368
369369 SECTION 16. Chapters 340B, 340E, 340F, 342D, and 342E, Hawaii Revised Statutes, are amended by transferring and appropriately designating those chapters as Subtitle 2, Water and Land Development, of Title 12, Conservation and Resources, and by substituting the term "commission on water resource management", or a similar term, wherever the term "department of health" or "director", or similar term, appears as the context requires.
370370
371371 SECTION 17. (a) Within ninety days of the effective date of this Act, the governor shall designate a representative who shall facilitate the commission on water resource management's orderly succession to the jurisdiction, powers, functions, rights, benefits, obligations, assets, liabilities, funds, accounts, contracts, and all other things currently held, used, incurred, or performed by the department of health in the regulation of water quality, or its director and staff, in administering and exercising the authority and fulfilling the responsibilities authorized or conferred upon the department of health and the director of health, by the chapters transferred in section 16 of this Act.
372372
373373 (b) Within one hundred eighty days of the effective date of this Act, the governor shall appoint two commissioners with substantial experience in the area of water quality.
374374
375375 (c) To facilitate the commission on water resource management's timely assumption of the commission's authority and responsibilities, the department of health, department of accounting and general services, department of human resources development, state procurement office, and any other state department or agency shall, if requested by the commission on water resource management, enter into a memorandum of understanding with the commission on water resource management to:
376376
377377 (1) Provide administrative support services for the commission pending the transfer of employees to the commission on water resource management pursuant to section 16 of this Act;
378378
379379 (2) Develop a policy and set of robust procurement procedures that foster accountability, transparency, and oversight of contracts, including compliance with federal procurement requirements;
380380
381381 (3) Assist the commission on water resource management with the organization of its human resources development functions, including establishing:
382382
383383 (A) A human resources office; and
384384
385385 (B) The commission on water resource management's civil service and civil service positions, and the classification system, merit appeals board, recruitment system, performance appraisal system, and administrative rules, policies, standards, and procedures, including internal complaint procedures, adopted to support its civil service.
386386
387387 (4) Assist the commission on water resource management in establishing its accounting, budgeting, fund management, and communication and electronic information systems, and creating appropriate interfaces between the commission's accounting, budgeting, fund management, communication and electronic information systems, and those of the other departments and other state agencies;
388388
389389 (5) Assist the commission on water resource management in identifying the plans and reports that the department of health is required to prepare for the governor, legislature, or another state department or agency; determining whether those plans and reports have been prepared and will be transferred to the commission on the transfer completion date; and preparing the same for the commission on water resource management, if they do not exist; and
390390
391391 (6) Expeditiously transfer or otherwise facilitate the commission on water resource management's acquisition or assumption of all of the powers, functions, rights, benefits, obligations, assets, funds, accounts, contracts, and all other things held, used, incurred, or performed by the department of health, director of health, and staff of the department of health, in exercising, fulfilling, and administering the responsibilities conferred upon the commission on water resource management by transfer of chapters 340B, 340E, 340F, 342D, and 342E, Hawaii Revised Statutes.
392392
393393 (d) As soon as feasible, the commission on water resource management with the concurrence of the director of health, and the governor, shall establish the transfer completion date, which shall be no later than December 31, 2022, and publish notice of the transfer completion date by:
394394
395395 (1) Publishing the notice in a daily publication of statewide circulation pursuant to section 1-28.5, Hawaii Revised Statutes;
396396
397397 (2) Posting a copy of the notice on an electronic calendar on a website maintained by the State; and
398398
399399 (3) Providing a copy of the notice to the head of every state department.
400400
401401 SECTION 18. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of health relating to the functions transferred to the commission on water resource management shall be transferred with the functions to which they relate.
402402
403403 SECTION 19. All rights, powers, functions, and duties of the department of health relating to the functions transferred by this Act are transferred to the commission on water resource management.
404404
405405 All employees who occupy civil service positions and whose functions are transferred to the commission on water resource management by this Act shall retain their civil service status, whether permanent or temporary. Employees shall be transferred without loss of salary, seniority (except as prescribed by applicable collective bargaining agreements), retention points, prior service credit, any vacation and sick leave credits previously earned, and other rights, benefits, and privileges, in accordance with state personnel laws and this Act; provided that the employees possess the minimum qualifications and public employment requirements for the class or position to which transferred or appointed, as applicable; provided further that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.
406406
407407 Any employee who, prior to this Act, is exempt from civil service and is transferred as a consequence of this Act may retain the employee's exempt status, but shall not be appointed to a civil service position as a consequence of this Act. An exempt employee who is transferred by this Act shall not suffer any loss of prior service credit, vacation or sick leave credits previously earned, or other employee benefits or privileges as a consequence of this Act; provided that the employees possess legal and public employment requirements for the position to which transferred or appointed, as applicable; provided further that subsequent changes in status may be made pursuant to applicable employment and compensation laws. The chairperson of the commission on water resource management may prescribe the duties and qualifications of these employees and fix their salaries without regard to chapter 76, Hawaii Revised Statutes.
408408
409409 SECTION 20. All rules, policies, procedures, guidelines, and other materials adopted or developed by the department of health to implement provisions of the Hawaii Revised Statutes that are reenacted or made applicable to the commission on water resource management by this Act shall remain in full force and effect on and after the transfer completion date established pursuant to section 17 of this Act, until amended or repealed by the commission on water resource management protection pursuant to chapter 91, Hawaii Revised Statutes. In the interim, every reference to the department of health and director of health, in those rules, policies, procedures, guidelines, and other material is amended to refer to the commission on water resource management or chairperson of the commission on water resource management, as appropriate.
410410
411411 SECTION 21. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
412412
413413 SECTION 22. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
414414
415415 SECTION 23. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
416416
417417 SECTION 24. This Act shall take effect upon its approval.
418418
419419
420420
421421 INTRODUCED BY: _____________________________
422422
423423 INTRODUCED BY:
424424
425425 _____________________________
426426
427427
428428
429429
430430
431431 Report Title: Commission on Water Resource Management; Department of Health; Jurisdiction; Water Quality and Protection Plan; Definitions; Membership Description: Transfers functions regarding water quality, including water pollution, nonpoint source pollution management and control, drinking water standards, mandatory certification of public water system operates, and wastewater, from the Department of Health to the Commission on Water Resource Management. Increases membership on the Commission on Water Resource Management from five members to seven members. Replaces the Director of Health with the Chairperson of the Department of Hawaiian Homes Commission as an ex-officio voting member on the Commission on Water Resource Management. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
432432
433433
434434
435435
436436
437437 Report Title:
438438
439439 Commission on Water Resource Management; Department of Health; Jurisdiction; Water Quality and Protection Plan; Definitions; Membership
440440
441441
442442
443443 Description:
444444
445445 Transfers functions regarding water quality, including water pollution, nonpoint source pollution management and control, drinking water standards, mandatory certification of public water system operates, and wastewater, from the Department of Health to the Commission on Water Resource Management. Increases membership on the Commission on Water Resource Management from five members to seven members. Replaces the Director of Health with the Chairperson of the Department of Hawaiian Homes Commission as an ex-officio voting member on the Commission on Water Resource Management.
446446
447447
448448
449449
450450
451451
452452
453453 The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.