Water Pollution; Clean Water; Citizen Suits
Increases, from $25,000 to $40,000, the fine for each violation of the water pollution law, or any rule, permit, or variance issued under that law. Enacts provisions relating to muddy water, underground injection, and nutrients. Allows citizen suits.
HOUSE OF REPRESENTATIVES
TWENTY-SECOND LEGISLATURE, 2003
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO CLEAN WATER.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that Hawaii's coastal waters, beaches, coral reefs, and marine life are threatened. The third circuit court recently ruled that the State has an affirmative duty pursuant to the public trust doctrine to protect coastal waters. The court specifically held that the State and the county of Hawaii violated "their duties as public trustees by not protecting the adjacent coastal waters from pollution."
Six years ago, rivers of mud filled Ma`alaea Harbor on Maui -- causing hundreds of thousands of dollars in damages. In the year 2000, a torrent of mud flowed off acres of land graded for a golf course just north of Kealakekua Bay on the Big Island. The mud turned the class AA waters chocolate brown and smothered corals, irreparably damaging them. In 2001, illegal grubbing at Pila`a on Kaua`i led to huge quantities of mud flowing on to the beach and smothering the reef. Pila`a had one of the most pristine reefs and clearest ocean waters on the island. Diversion of mud onto the beach has caused irreparable damage. Similar incidents took place off Palauea on Maui and off Hulopo`e on Lana`i in 2002. The legislature finds that as a pollutant, mud destroys the recreational quality of coastal waters, jeopardizes coral reefs and interferes with native Hawaiian practices.
The land use commission has found other threats to coastal waters. In In re: TSA Corporation, the land use commission found: "While the West Hawaii reefs remain pristine, the majority of coral reef experts worldwide consider human effects such as terrestrial runoff, sewage and nutrient enrichment to be one of the most significant threats facing coral reefs today...No state wastewater system regulations protect significant natural resources and the rules do not address the removal of nutrients, such as nitrogen and phosphorous, that may disrupt natural systems....There are no State laws or County codes currently in place to ensure that pollutants carried with surface runoff do not get into the environment through groundwater. This lack of protection puts water quality and natural resources at risk where drainage wells are used."
The legislature further finds that streams, beaches, coral reefs, and marine life are part of our heritage and as public trust resources deserve heightened protection. Filling our coastal waters with mud or excessive nutrients threatens to irreparably damage corals and other marine life.
The legislature further finds in an era of declining government, it is important to foster public-private partnerships. Community groups and other members of the public can assist the State in protecting Hawaii's environmental quality. Given limited resources, private parties can help the State enforce clean water requirements, just as they do for over a dozen federal statutes. Moreover, simply having such a provision in the law serves as a deterrent for noncompliance.
The legislature further finds that Hawaii's courts have provided an open forum for allowing citizen redress. Providing a state citizen suit provision ensures both that citizens will have access to the courts and that Hawaii's higher environmental standards will be enforced. The legislature further finds that no frivolous lawsuits have been filed under the citizen suit provision of Hawaii's clean air law.
SECTION 2. Chapter 342D, Hawaii Revised Statutes, is amended by adding four new sections to be appropriately designated and to read as follows:
"§342D- Muddy water. Any person using, or paying someone who uses, mechanized equipment to move soil, grade, or grub shall take all necessary precautions to ensure that sediment does not enter state waters. This requirement is in addition to existing requirements under this chapter, rules, and permits issued pursuant to this chapter, and shall not be interpreted to limit the fines to which violators are subject.
§342D- Underground injection. The department shall not approve the construction of any underground injection well, as defined in the department's rules, or the disposal of any waste into an underground injection well if doing so will degrade the quality of coastal water.
§342D- Nutrients. By January 1, 2004, the department shall not approve any individual wastewater system, as defined in the department's rules, within one mile of the shoreline unless the system removes at least ninety-three per cent of the nitrogen from wastewater before release into the environment. The department may adopt rules pursuant to chapter 91 that are more stringent than this section.
§342D- Citizen suits. (a) Any person may commence a civil action on that person's own behalf against any person, including the State and the director, who is alleged to have violated this chapter, including pursuant to it any rule, any term or condition of a permit, variance or agreement, or any order issued by the director.
(b) The circuit court shall have jurisdiction to:
(1) Enforce a statutory provision, rule, condition, or order;
(2) Order the director to perform an act or duty; and
(3) Apply any appropriate civil penalties.
(c) No action may be commenced:
(1) Prior to thirty days after the plaintiff has given notice of the violation to:
(A) The director; and
(B) Any alleged violator; or
(2) If the director or the department has commenced and is diligently prosecuting a civil action to require compliance, but in any such action any person may intervene as a matter of right.
(d) In any action under this section, the director, if not a party, may intervene as a matter of right at any time in the proceeding.
(e) The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation, including reasonable attorney and expert witness fees, to any party, whenever the court determines such an award is appropriate. The court, if a temporary restraining order or preliminary injunction is sought, may require the filing of a bond or equivalent security in accordance with the Hawaii rules of civil procedure.
(f) Nothing in this section shall restrict any right which any person may have under any constitutional provision, statute, or common law to seek enforcement of any provision or to seek any other relief.
(g) Penalties received under subsection (b) shall be deposited into the environmental response revolving fund established by section 128D-2. The court shall have discretion to order that such civil penalties, in lieu of being deposited in the fund, be used in beneficial mitigation, education, or protection projects which enhance public health or the environment."
SECTION 3. Section 342D-30, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Any person who violates this chapter, any rule, or any term or condition of a permit or variance issued pursuant to this chapter shall be fined not more than [
$25,000] $40,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken in 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 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 on the violator."
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.