Bill Text: HI HB1079 | 2023 | Regular Session | Amended
Bill Title: Relating To Water Pollution Control.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2023-07-06 - Act 233, 07/06/2023 (Gov. Msg. No. 1336). [HB1079 Detail]
Download: Hawaii-2023-HB1079-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1079 |
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THIRTY-SECOND LEGISLATURE, 2023 |
H.D. 2 |
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STATE OF HAWAII |
S.D. 2 |
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A BILL FOR AN ACT
RELATING TO WATER POLLUTION CONTROL.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to amend sections in chapter 342D, Hawaii Revised Statutes, to:
(1) Conform with federal definitions and civil penalty amounts pursuant to the Clean Water Act;
(2) Consolidate separate water quality certification statutes into one section for clarity;
(3) Clarify the authority of the department of health to conduct water quality certifications; and
(4) Revise civil penalty amounts to ensure consistency within the department.
SECTION 2. Section
342D-1, Hawaii Revised Statutes, is amended as follows:
1. By adding four new
definitions to be appropriately inserted and to read:
""Act" means the Clean Water Act (formally referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972), P.L. 92-500, as amended (33 U.S.C. 1251 et seq).
"Navigable
waters" means the waters of the United States, including the territorial
seas.
"Water
quality certification" or "certification" means a statement that
asserts that a proposed discharge resulting from any activity, including but
not limited to the construction or operation of facilities, will not violate
applicable water quality standards, water quality related state laws, or water
quality related provisions in sections 301, 302, 303, 306, and 307 of the Act.
"Water
quality standards" means provisions of state law that provide for a
designated use or designated uses for state waters and water quality criteria
for the waters based upon these uses.
Water quality standards are to protect the public health or welfare,
enhance the quality of water, and serve the purposes of the Act."
2. By amending the definition of "state waters" to read:
""State waters" means all waters,
fresh, brackish, or salt, around and within the State, including[,] but
not limited to[,] coastal waters, wetlands, streams, rivers,
drainage ditches, ponds, reservoirs, canals, ground waters, and lakes; provided
that drainage ditches, ponds, and reservoirs required as a part of a water
pollution control system are excluded."
SECTION 3. Section 342D-6, Hawaii Revised Statutes, is amended to read as follows:
"§342D-6 Permits; procedures for. (a) An application for any permit required under this chapter shall be in a form prescribed by the director.
(b) The department may require that applications for permits shall be accompanied by plans, specifications, and any other information that it deems necessary to determine whether the proposed installation, alteration, or use will be in accord with applicable rules and standards.
(c) The director
shall issue a permit for any term, not exceeding five years, if the director
determines that it will be in the public interest; provided that the permit may
be subject to any reasonable conditions that the director may prescribe. The director may include conditions in
permits or may issue separate permits for management practices for domestic
sewage, sewage sludge, and recycled water, regardless of whether the practices
cause water pollution. The director, on
application, shall renew a permit from time to time, for a term not exceeding
five years, if the director determines that it will be in the public
interest. The director shall not grant
or deny an application for the issuance or renewal of a permit without
affording the applicant and any person who commented on the proposed permit
during the public comment period an opportunity for a hearing in accordance
with chapter 91. A request for a hearing
and any judicial review of the hearing shall not stay the effect of the
issuance or renewal of a permit unless specifically ordered by the director or
an environmental court.
(d) The director, on the director's own motion or the application of any person, may modify, suspend, revoke, or revoke and reissue any water pollution permit if, after affording the permittee an opportunity for a hearing in accordance with chapter 91, the director determines that:
(1) There is a violation of any condition of the permit;
(2) The permit was obtained by misrepresentation or there was failure to disclose fully all relevant facts;
(3) There is a change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge; or
(4) It is in the public interest.
The public interest excludes any reason less stringent than the causes for permit modification, revocation, and termination, or revocation and reissuance identified in title 40 Code of Federal Regulations section 122.62 or 122.64.
(e) The director, on the director's own motion or the application of any person, may modify, suspend, revoke, or revoke and reissue any sludge permit after affording the permittee an opportunity for a hearing in accordance with chapter 91, and consistent with title 40 Code of Federal Regulations section 501.15(c)(2) and (3) and (d)(2).
(f) The director shall ensure that the public receives notice of each application for a permit to control water pollution. The director may hold a public hearing before ruling on an application for a permit to control water pollution if the director determines the public hearing to be in the public interest. In determining whether a public hearing would be in the public interest, the director shall be guided by title 40 Code of Federal Regulations section 124.12(a).
(g) In determining
the public interest regarding permit issuance or renewal, the director shall
consider the environmental impact of the proposed action, any adverse
environmental effects that cannot be avoided should the action be implemented,
the alternatives to the proposed action, the relationship between local short-term
uses of the environment and the maintenance and enhancement of long-term
productivity, any irreversible and irretrievable commitments of resources that
would be involved in the proposed action should it be implemented, and any
other factors that the director, by rule, may prescribe; provided that any
determination of public interest shall promote the optimum balance between
economic development and environmental quality.
(h) No applicant for a
modification or renewal of a permit shall be held in violation of this chapter
during the pendency of the applicant's application so long as the applicant
acts consistently with the permit previously granted, the application and all
plans, specifications, and other information submitted as part thereof.
[(i) The department
shall not require a water quality certification pursuant to section 401 of the
federal Clean Water Act under this chapter for any applicant of the small-scale
beach restoration program that has received notice of authorization to proceed
from the department of land and natural resources' office of conservation and
coastal lands.]"
SECTION 4. Section 342D-6.5,
Hawaii Revised Statutes, is amended to read as follows:
"§342D-6.5 Hawaiian loko i‘a. [(a)] The
department shall process applications for permits and water quality
certifications for the reconstruction, restoration, repair, or reuse of any
loko i‘a, or Hawaiian fishpond
as defined in section 183B-1, before all other permits and certifications. The director shall render a decision on the
completeness of any application for that permit or water quality certification
within thirty days of receipt.
Applications for loko i‘a reconstruction,
restoration, or repair that are incomplete shall be denied without
prejudice. The director shall render a
decision on any complete application for a permit or water quality
certification for any loko i‘a within one hundred
fifty days.
[(b) The department
shall waive the requirement to obtain water quality certification under this
chapter for any person that has received notice of authorization to proceed
from the department of land and natural resources office of conservation and
coastal lands under the statewide programmatic general permit for the restoration,
repair, maintenance, and operation of loko i`a.
(c) For purposes of
this section:
"Water quality certification" means state
certification pursuant to section 401 of the federal Clean Water Act.]"
SECTION 5. Section 342D-9,
Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read
as follows:
"(a) If the director determines that any person has violated or is violating this chapter, any rule adopted pursuant to this chapter, or any permit, water quality certification, or variance issued pursuant to this chapter, the director:
(1) Shall cause written notice to be served
upon the alleged violator or violators.
The notice shall specify the alleged violation and may contain an order
specifying a reasonable time during which that person shall be required to take
any measures that may be necessary to correct the violation and to give
periodic progress reports; provided that if all attempts of service of process
upon the alleged violator or violators are unsuccessful by personal [delivery]
service and by certified[, registered, or express] mail, notice
may be given via a posting on a searchable government website and a sign
conspicuously posted on the property, if appropriate;
(2) May require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of; and
(3) May impose penalties as provided in section 342D-31 by sending written notice, either by certified mail or by personal service, to the alleged violator or violators describing the violation.
(b) If the director determines that any person is continuing to violate this chapter, any rule adopted pursuant to this chapter, or any permit, water quality certification, or variance issued pursuant to this chapter after having been served notice of violation, the director:
(1) Shall cause written notice to be served
upon the alleged violator or violators.
The notice shall specify the alleged violation and shall contain an
order requiring that person to submit a written schedule within thirty days
specifying the measures to be taken and the time within which [such] the
measures shall be taken to bring that person into compliance with this chapter,
any rule adopted pursuant to this chapter, or any permit, water quality certification,
or variance issued pursuant to this chapter;
(2) Shall accept or modify the submitted schedule within thirty days of receipt of the schedule. Any schedule not acted upon after thirty days of receipt by the director shall be deemed accepted by the director;
(3) Shall issue to the alleged violator or violators a cease and desist order against the activities that violate this chapter, any rule adopted pursuant to this chapter, or any permit, water quality certification, or variance issued pursuant to this chapter if that person does not submit a written schedule to the director within thirty days. This order shall remain in effect until the director accepts the written schedule; and
(4) May impose penalties as provided in section 342D-31 by sending a notice in writing, either by certified mail or by personal service, to the alleged violator or violators describing the violation."
SECTION 6. Section 342D-30, Hawaii Revised Statutes, is amended to read as follows:
"§342D-30 Civil
penalties. (a)
Any person who violates this chapter, any rule, or any term or condition
of a permit, water quality certification, or variance issued pursuant to
this chapter shall be fined not more than [$25,000] $
for each separate offense. Each day of
each violation shall constitute a separate offense. Any action taken in environmental court to
impose or collect the penalty provided for in this section shall be considered
a civil action. In determining the amount
of a civil penalty, the environmental court shall consider the
seriousness of the violation or violations[,]; the economic
benefit, if any, resulting from the violation[,]; any history of
these violations[,]; any good-faith efforts to comply with the applicable
requirements[,]; the economic impact of the penalty on the
violator[,]; and any other matters that justice may require. It shall be presumed that the violator's
economic and financial conditions allow payment of the penalty, and the burden
of proof of the contrary [is] shall be on the violator.
(b) Any person who
denies, obstructs, or hampers the entrance or inspection by any duly authorized
officer or employee of the department of any building, place, or vehicle that
the officer or employee is authorized to enter and inspect shall be fined not
more than [$10,000] $
for each day of denial, obstruction, or hampering. Any action taken in environmental court to
impose or collect the penalty provided for in this subsection shall be
considered a civil action."
SECTION 7. Section 342D-50,
Hawaii Revised Statutes, is amended as follows:
1. By amending subsection
(a) to read:
"(a) No person,
including any public body, shall discharge any water pollutant into state
waters, or cause or allow any water pollutant to enter state waters except in
compliance with this chapter, rules adopted pursuant to this chapter, or a
permit, water quality certification, or variance issued by the director."
2. By amending subsection
(d) to read:
"(d) No person, including any public body, shall violate any rule adopted pursuant to this chapter or any permit, water quality certification, or variance issued or modified pursuant to this chapter."
SECTION 8. Section
342D-53, Hawaii Revised Statutes, is amended to read as follows:
"[[]§342D-53[]] Certifying agency[.] and water quality certification. (a)
Water quality certification shall be required pursuant to section 401 of
the Act for any applicant for a federal license or permit to conduct any
activity, including the construction or operation of facilities that may cause any
discharge into navigable waters.
(b) The director
may act as a certifying agency[, as defined in 40 Code of Federal
Regulations 121.1(e) (1985)].
(c) The director shall adopt and enforce rules,
pursuant to chapter 91, to administer water quality certifications. (d) The term of any water quality certification
issued by the director shall not exceed five years.
(e) The director shall not require a person to
apply for a water quality certification if the person:
(1) Has received notice of authorization
to proceed from the department of land and natural resources' office of
conservation and coastal lands under the statewide programmatic general permit
for the restoration, repair, maintenance, and operation of loko i‘a; or
(2) Has received notice of
authorization to proceed from the department of land and natural resources'
office of conservation and coastal lands under the small-scale beach
restoration program.
(f) As used in this
section, "certifying agency" has the same meaning as
"certifying authority" as defined in title 40 Code of Federal
Regulations 121.1(e)."
SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
Report Title:
Water Pollution Control; State Waters; Water Quality Certifications
Description:
Revises chapter 342D, Hawaii Revised Statutes, to add definitions that are consistent with federal Clean Water Act regulations. Clarifies the Director of Health's role as a certifying agency, including enforcement of water quality certifications, and increases certain statutory civil penalties. Effective 6/30/3000. (SD2)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
