Bill Text: HI HB2690 | 2024 | Regular Session | Amended
Bill Title: Relating To Water.
Spectrum: Moderate Partisan Bill (Democrat 30-4)
Status: (Engrossed) 2024-04-26 - Conference Committee Meeting will reconvene on Friday, 04-26-24 at 1:00PM in Conference Room 229. [HB2690 Detail]
Download: Hawaii-2024-HB2690-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2690 |
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THIRTY-SECOND LEGISLATURE, 2024 |
H.D. 2 |
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STATE OF HAWAII |
S.D. 1 |
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Proposed |
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A BILL FOR AN ACT
RELATING TO WATER.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the United States Navy's Red Hill Bulk Fuel Storage Facility consists of twenty steel-lined underground storage tanks that were built from 1940 to 1943. Each tank can store 12.5 million gallons of fuel; in total, the Red Hill Bulk Fuel Storage Facility can store up to two hundred fifty million gallons. The tanks are located only about one hundred feet above the United States Environmental Protection Agency's designated sole-source groundwater aquifer that provides drinking water to approximately four hundred thousand residents of the island of Oahu. Over the past eighty years, numerous spills have occurred at Red Hill. Specifically, on November 20, 2021, about ninety-three thousand individuals served by the Navy's potable water system for Joint Base Pearl Harbor-Hickam were directly affected when the Navy's Red Hill shaft was contaminated by the release of up to nineteen thousand gallons of fuel, including JP-5 jet fuel, older fuels stored at the Red Hill Bulk Fuel Storage Facility, and any additives used. Over six thousand individuals sought medical attention, and one thousand were forced to leave their homes due to the contamination. Much of the fuel released from the Red Hill Bulk Fuel Storage Facility remains in the environment, trapped within the complex geological formations beneath and near the tanks.
The legislature further finds that on May 9, 2023, officials from the State and city and county of Honolulu signed a unified statement on Red Hill, recognizing the stewardship responsibility to ensure that there is clean water on Oahu for future generations. The Red Hill Water Alliance Initiative (WAI), a working group, met regularly in 2023 since the signing of the unified statement. The Red Hill WAI posed questions, conducted research, listened to subject-matter experts, and formulated recommended policies.
The legislature also finds that the Red Hill WAI's approach of total stewardship responsibility required a stance of extending beyond statutory roles, specific responsibilities, tenure in those roles, and even personal lifetimes. Its inquiry included the pursuit of critical questions for which there may currently be no answers. Thus, the pursuit of those answers is part of the ongoing work.
The legislature notes that besides its regulatory functions under federal and state environmental laws, the State also has unique public trust responsibilities set forth in the Hawaii State Constitution, which establishes an affirmative duty of the State to preserve and protect public trust resources, including water resources.
The legislature additionally finds that the focus of the Red Hill WAI's inquiry is the remediation needs after the defueling of the tanks and removal of residual fuel and contaminants from the Red Hill Bulk Fuel Storage Facility. In particular, the Red Hill WAI is concerned with the unknowns posed by fuel contaminants already in the ground, as well as the residuals of the fuel plume in the aquifer as a result of the spill that occurred on November 20, 2021. In fact, there may be as many as 1,940,000 gallons of fuel constituents in the ground that have leaked or spilled over eight decades. Pursuant to a proactive approach, the Red Hill WAI seeks to describe the remediation it believes necessary for the future well-being of the aquifer in which there is a negligible risk to current and future water sources, including the Halawa Shaft, Halawa wells, and Aiea wells; the water distribution system; and the ecosystem, including springs, streams, and nearshore waters.
After much diligent work, the Red Hill WAI issued a public report in November 2023 that set forth its findings and recommendations. Some of the recommendations can only be addressed by the federal government, while other recommendations can be undertaken by the State and city and county of Honolulu. Moreover, the legislature finds that there must be no delay in adopting the recommendations of the Red Hill WAI, especially those that can be implemented at the state and county levels.
Therefore, the purpose of this part is to:
(1) Establish within the office of the chairperson of the board of land and natural resources a policy lead and coordinator for Red Hill WAI initiatives;
(2) Create the Red Hill remediation special fund; and
(3) Appropriate funds for these purposes.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"Chapter
RED HILL WATER ALLIANCE INITIATIVE
§ -1 Definitions. As used in this chapter, unless a different meaning is plainly required by the context:
"Board" means the board of land and natural resources.
"Chairperson" means the chairperson of the board of land and natural resources.
"Department" means the department of land and natural resources.
"Red Hill Water Alliance Initiative" means the group of individuals composed of the governor, speaker of the house of representatives, president of the senate, chairperson of the board of land and natural resources and commission on water resource management, president of the University of Hawaii, mayor of the city and county of Honolulu, chairperson of the Honolulu city council, and manager and chief engineer of the Honolulu board of water supply that issued a public report in November 2023 concerning the remediation of Red Hill following the defueling of the Red Hill Bulk Fuel Storage Facility.
"Special fund" means the Red Hill remediation special fund.
"WAI" means the Red Hill Water Alliance Initiative.
§ -2 Policy lead and coordination. (a) The department shall serve as the State's policy lead on WAI initiatives through the position of the WAI policy coordinator, to be placed in the office of the chairperson. The WAI policy coordinator shall work with respective state and county agencies and other groups.
(b) The WAI policy coordinator shall:
(1) Facilitate implementation and monitoring and interface with federal entities on WAI initiatives outlined in the WAI's November 2023 report;
(2) Periodically and regularly review:
(A) The health status of the ecosystem; and
(B) The state of science and opportunities for remediation and rehabilitation;
(3) Develop and maintain a public-facing test results dashboard describing the significance of results from the State and city and county of Honolulu, as part of a broader public education program; and
(4) Coordinate the implementation of a thirty-six-month public information and education program to describe, inform, and educate the general public and institutions on the post-defueling remediation phases for Red Hill to restore public trust, secure public support, and address health and environmental concerns.
(c) No later than December 1, 2024, the WAI policy coordinator shall submit a report to the legislature regarding the potential organizational structure, responsibilities, duties, and powers of a proposed Red Hill remediation authority, based on the provisions of House Bill No. 2691, introduced during the regular session of 2024, as the starting point.
§ -3 Red Hill remediation special fund. (a) There is established in the state treasury the Red Hill remediation special fund into which shall be deposited the following moneys:
(1) Appropriations by the legislature to the special fund;
(2) Gifts, donations, and grants from public agencies, including the United States government, and private persons; and
(3) All interest earned on or accrued to moneys deposited in the special fund.
(b) The special fund shall be administered by the WAI policy coordinator.
(c) The moneys in the special fund shall be used to address contamination resulting from the Red Hill Bulk Fuel Storage Facility, including monitoring, applied research, public outreach and education, and evaluation; provided that the cost of remediation of the aquifer shall be borne by the federal government.
§ -4 Cooperation by state and county agencies. All state and county agencies shall provide all information and data requested by the WAI policy coordinator within thirty calendar days; provided that the WAI policy coordinator may, in the coordinator's discretion, set a longer deadline.
§ -5 Report. The WAI policy coordinator shall submit a report of the coordinator's activities and expenditures to the legislature, governor, and mayor and city council of the city and county of Honolulu no later than December 1 of each year, beginning in 2024."
SECTION 3. The following positions, which shall be exempt from chapter 76, Hawaii Revised Statutes, are established in the office of the chairperson of the board of land and natural resources for the purposes of Red Hill WAI policy coordination:
(1) full-time equivalent ( FTE) policy coordinator;
(2) full-time equivalent ( FTE) outreach coordinator; and
(3) full-time equivalent ( FTE) administrative assistant.
SECTION 4. In accordance with section 9 of article VII of the Hawaii State Constitution and sections 37‑91 and 37‑93, Hawaii Revised Statutes, the legislature has determined that the appropriations contained in H.B. No. , will cause the state general fund expenditure ceiling for fiscal year 2024‑2025 to be exceeded by $ or per cent. In addition, the appropriations contained in this Act will cause the general fund expenditure ceiling for fiscal year 2024‑2025 to be further exceeded by $ or per cent. The combined total amount of general fund appropriations contained in only these two Acts will cause the state general fund expenditure ceiling for fiscal year 2024‑2025 to be exceeded by $ or per cent. The reasons for exceeding the general fund expenditure ceiling are that:
(1) The appropriations made in this Act are necessary to serve the public interest; and
(2) The appropriations made in this Act meet the needs addressed by this Act.
SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2024-2025 for the positions identified in section 3 of this Act for Red Hill WAI policy coordination.
The sum appropriated shall be expended by the department of land and natural resources for the purposes of this Act.
SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2024-2025 for ecosystem monitoring of the area surrounding the Red Hill Bulk Fuel Storage Facility by the department of land and natural resources.
The sum appropriated shall be expended by the department of land and natural resources for the purposes of this Act.
PART II
SECTION 7. The legislature finds that effective and efficient water resource management requires continuous and experienced leadership, especially given the climate crisis and urgent need to properly steward water resources to meet the affordable housing needs of local residents. On December 28, 1994, the review commission on the state water code submitted its final report to the legislature pursuant to Act 45, Session Laws of Hawaii 1987. The review commission determined that amendments to the state water code were necessary to enable the commission on water resource management to more effectively carry out its mandate pursuant to 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". Therefore, further clarification of the commission on water resource management's purpose, including its leadership structure and the composition of the commission, will provide greater accountability and protection of the State's waters.
The purpose of this part is to:
(1) Repeal the position of deputy to the chairperson of the commission and establish the position of executive director of the commission;
(2) Amend the composition of the commission and administratively attach it to the department of land and natural resources; and
(3) Establish fines for certain water use offenses.
SECTION 8. Section 84-18, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:
"(e) Subject to the restrictions imposed in subsections (a) through (d), the following individuals shall not represent any person or business for a fee or other consideration regarding any legislative action or administrative action, as defined in section 97-1, for twelve months after termination from their respective positions:
(1) The governor;
(2) The lieutenant governor;
(3) The administrative director of the State;
(4) The attorney general;
(5) The comptroller;
(6) The chairperson of the board of agriculture;
(7) The director of corrections and rehabilitation;
(8) The director of finance;
(9) The director of business, economic development, and tourism;
(10) The director of commerce and consumer affairs;
(11) The adjutant general;
(12) The superintendent of education;
(13) The chairperson of the Hawaiian homes commission;
(14) The director of health;
(15) The director of human resources development;
(16) The director of human services;
(17) The director of labor and industrial relations;
(18) The chairperson of the board of land and natural resources;
(19) The director of law enforcement;
(20) The director of taxation;
(21) The director of transportation;
(22) The president of the University of Hawaii;
(23) The executive administrator of the board of regents of the University of Hawaii;
(24) The administrator of the office of Hawaiian affairs;
(25) The chief information officer;
(26) The executive director of the agribusiness development corporation;
(27) The executive director of the campaign spending commission;
(28) The executive director of the Hawaii community development authority;
(29) The executive director of the Hawaii housing finance and development corporation;
(30) The president and chief executive officer of the Hawaii tourism authority;
(31) The executive officer of the public utilities commission;
(32) The state auditor;
(33) The director of the legislative reference bureau;
(34) The ombudsman;
(35) The permanent employees of the legislature, other than persons employed in clerical, secretarial, or similar positions;
(36) The administrative director of the courts;
(37) The executive director of the state ethics commission;
(38) The executive officer of the state land use commission;
(39) The executive director of the natural energy laboratory of Hawaii authority;
(40) The executive director of the Hawaii public housing authority; and
(41) The [first deputy to the chairperson] executive
director of the commission on water resource management;
provided that this subsection shall not apply to any person who has held one of the positions listed above only on an interim or acting basis and for a period of less than one hundred eighty-one days."
SECTION 9. Section 174C-6, Hawaii Revised Statutes, is amended to read as follows:
"§174C-6 [Deputy to the
chairperson] Executive director of the commission on water resource
management. (a) There shall be [a first deputy to the chairperson]
an executive director of the commission on water resource management [("deputy
for water resource management") 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], who shall have experience in the area of
water resources and shall be appointed by [the chairperson with the approval
of a majority of] the commission[.] and serve at the pleasure of
the commission.
(b) The duties of the [deputy for] executive
director of the commission on water resource management shall be to
administer and implement, under the direction of the commission, the state
water code [and all], the rules, and other directives [promulgated
in accordance therewith] adopted by the commission. Nothing in this
[provision] section shall be construed as limiting the authority
of the commission as to matters regarding water resources.
(c) The position of [deputy for] executive
director of the commission on water resource management [is not] shall
not be subject to chapter 76.
(d) The salary of the [deputy for] executive
director of the commission on water resource management shall be [as
provided in section 26-53 for first deputies or first assistants to the head of
any department.] set by the commission, and the executive director shall
be included in any benefit program generally applicable to the officers and
employees of the State.
(e) The commission shall develop and document annual goals and performance measures for the executive director that authorize the commission to annually evaluate the executive director's work to ensure compliance by the commission with statutory and constitutional requirements and achievement of its statutory and constitutional purposes.
(f) The commission shall evaluate and document the evaluation of the executive director's performance annually, or more frequently upon the request of at least four members of the commission, based on annual goals, performance measures, and other relevant criteria."
SECTION 10. Section 174C-7, Hawaii Revised Statutes, is amended to read as follows:
"§174C-7 Commission on water resource management. (a) There is established within the department a commission on water resource management consisting of seven members which shall have exclusive jurisdiction and final authority in all matters relating to implementation and administration of the state water code, except as otherwise specifically provided in this chapter. The commission shall be attached to the department of land and natural resources for administrative purposes only.
(b) Five members shall be appointed by the
governor subject to confirmation by the senate in the manner prescribed in
subsection [(d).] (e). Each member shall have substantial
experience in the area of water resource management; 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. Each of the members shall be
eligible to serve as the chairperson of the commission upon election by a
majority of the commission members.
(c) The chairperson of the board of
land and natural resources [shall be the chairperson of the commission. The]
and the director of health or the director's designee shall serve as [an]
ex officio[[],[]] voting [member.] members but shall be
ineligible to serve as chairperson of the commission.
[(c)] (d) The members of the
commission shall serve without compensation but shall be reimbursed for
expenses, including travel expenses, necessary for the performance of their
duties.
[(d)] (e) In appointing a member
to the commission, the governor shall select from a list submitted by a
nominating committee. The nominating committee shall be composed of four
individuals chosen as follows: two persons appointed by the governor; one
person appointed by the president of the senate; and one person appointed by
the speaker of the house. The committee shall solicit applications and send to
the governor the names of at least three individuals for each open position.
[(e)] (f) Except as otherwise
provided in this chapter, the commission shall be subject to sections 26-34,
26-35, and 26-36."
SECTION 11. Section 174C-9, Hawaii Revised Statutes, is amended to read as follows:
"[[]§174C-9[]]
Proceedings before the commission concerning water resources. (a)
All proceedings before the commission concerning the enforcement or application
of any provision of this chapter or any rule adopted pursuant thereto, or the
issuance, modification, or revocation of any permit or license under this code
by the commission, shall be conducted in accordance with chapter 91. Hearings
regarding particular water resources shall be conducted on the island where
those water resources are located.
(b) Any party to whom an emergency order is directed may challenge that order but shall immediately comply with the order pending disposition of the party's challenge. The commission shall give precedence to a hearing on the challenge over all other pending matters."
SECTION 12. Section 174C-15, Hawaii Revised Statutes, is amended to read as follows:
"§174C-15 Penalties and common law remedies. (a) The commission may enforce its rules and orders adopted pursuant to this chapter by suit for injunction or for damages or both.
(b) Any person who [violates any]:
(1) Violates any provision of this
chapter[, or any];
(2) Violates any rule adopted pursuant
to this chapter[, may];
(3) Violates any order of the commission;
(4) Fails to obtain a permit when a permit is required pursuant to this chapter;
(5) Fails to comply with permit conditions; or
(6) Fails to comply with standardized water audit requirements pursuant to Act 169, Session Laws of Hawaii 2016,
shall be subject to a fine imposed by the
commission. [Such] The fine shall be not less than $50 and
shall not exceed [$5,000. For a continuing offense, each day during which
the offense is committed is a separate violation.] $25,000 per
violation. Each day that a violation exists or continues to exist shall
constitute a separate offense. Penalties for continuing violations shall be
assessed from the earliest known date of the violation. The earliest known
date of a violation shall be determined by the commission by a preponderance of
the evidence; provided that if the earliest known date cannot be determined by
a preponderance of evidence, penalties for continuing violations shall be
assessed from the earliest date that the commission is made aware of the
violation.
(c) When imposing a penalty, the commission shall consider the following factors, which shall include but not be limited to:
(1) The nature, circumstances, extent, gravity, and history of the violation and of any prior violations;
(2) The economic benefit to the violator, or anticipated by the violator, resulting from the violation;
(3) The opportunity, difficulty, and history of corrective action;
(4) Good faith efforts to comply;
(5) Degree of culpability; and
(6) Other matters as justice may require.
[(c)] (d) No provision of this chapter shall
bar the right of any injured person to seek other legal or equitable relief
against a violator of this chapter.
[(d)] (e) Except as otherwise
provided by law, the commission or its authorized representative by proper
delegation [may] shall set, charge, and collect administrative
fines [or]; may bring legal action to recover administrative fees
and costs as documented by receipts or affidavit, including [attorneys']
attorney's fees and costs; [or] and may bring legal action
to recover administrative fines, fees, and costs, including [attorneys']
attorney's fees and costs, or payment for damages resulting from a
violation of this chapter or any rule adopted pursuant to this chapter."
SECTION 13. Section 174C-62, Hawaii Revised Statutes, is amended to read as follows:
"[[]§174C-62[]]
Declaration of water shortage. (a) The commission shall formulate a statewide
plan for implementation during periods of water shortage. As a part of the
plan, the commission shall adopt a reasonable system of permit classification
according to source of water supply, method of extraction or diversion, use of
water, or a combination thereof.
(b) The commission, by rule, may declare that
a water shortage exists within all or part of an area, whether within or
outside of a water management area, when insufficient water is available to
meet the requirements of the permit system or when conditions [are such as
to] require a temporary reduction in total water use within the area to
protect water resources from serious harm. The commission shall publish a set
of criteria for determining when a water shortage exists[.],
including but not limited to impacts and effects of the climate crisis.
(c) In accordance with the plan adopted under
subsection (a), the commission may impose [such] restrictions on one or
more classes of permits and outside of management areas on well and stream
diversion owners and operators as may be necessary to protect the water
resources of the area from serious harm and to restore them to their previous water
quantity or chloride level condition.
(d) A declaration of water shortage and any measures adopted pursuant thereto may be rescinded by rule by the commission.
(e) When a water shortage is declared, the
commission shall cause a notice [thereof] of the water shortage
to be published in a prominent place in a newspaper of general circulation
throughout the area[.] and on the commission's website. The
notice shall be published each day for the first week of the shortage and once
a week [thereafter] for four months, followed by monthly publications
until the declaration is rescinded. Publication of [such] the
notice shall serve as notice to all water users in the area of the condition of
water shortage.
(f) The commission shall cause each permittee
in the area to be notified by regular and electronic mail of any change
in the conditions of the permittee's permit, any suspension [thereof,] of
the permittee's permit, or of any other restriction on the use of water for
the duration of the water shortage.
(g) If an emergency condition arises due to a water shortage within any area, whether within or outside of a water management area, and if the commission finds that the restrictions imposed under subsection (c) are not sufficient to protect the public health, safety, or welfare, or the health of animals, fish, or aquatic life, or a public water supply, or recreational, municipal, agricultural, or other reasonable uses, the commission may issue orders reciting the existence of such an emergency and requiring that such actions as the commission deems necessary to meet the emergency be taken, including but not limited to apportioning, rotating, limiting, or prohibiting the use of the water resources of the area. Any party to whom an emergency order is directed may challenge such an order but shall immediately comply with the order, pending disposition of the party's challenge. The commission shall give precedence to a hearing on such challenge over all other pending matters."
PART III
SECTION 14. 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 15. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 16. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 17. This Act shall take effect on July 1, 2050; provided that sections 3, 5, and 6 of this Act shall take effect on July 1, 2024.
Report Title:
DLNR; CWRM; Red Hill WAI; Policy Lead and Coordination; Red Hill Remediation Special Fund; Public Trust Purpose; Responsibilities; Commission Membership; Executive Director; Independent Legal Counsel; Emergency Order; Water Emergencies; Water Shortage Declarations; Fines; Appropriation; Expenditure Ceiling
Description:
Part I: Establishes a WAI Policy Coordinator and other positions within the Department of Land and Natural Resources for coordination of Red Hill WAI initiatives. Creates the Red Hill Remediation Special Fund. Declares that the general fund expenditure ceiling is exceeded. Appropriates funds. Part II: Repeals the position of deputy to the chairperson of the Commission and establishes the position of executive director of the Commission. Amends the composition of the Commission and administratively attaches it to DLNR. Establishes fines for certain water use offenses. Takes effect 7/1/2050. (Proposed SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
