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. Allows citizen suits. (HB737 HD1)
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 Hawaii 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 Maalaea 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 Pilaa on Kauai led to huge quantities of mud flowing on to the beach and smothering the reef. Pilaa 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 Hulopoe on Lanai 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 legislature finds that streams, beaches, coral reefs, and marine life are part of our heritage and, as public trust resources, deserve heightened protection and quick action to minimize damage when illegal work is occurring or inadequate safeguards are in place.
The legislature believes that 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 can act 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 that citizens will have access to the courts to ensure quick action to minimize damage.
SECTION 2. Chapter 342D, Hawaii Revised Statutes, is amended by adding two 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. Any income-producing farm smaller than twenty acres violating this section while engaged in bona fide agricultural activity shall not be fined more than $100 per violation.
§342D- Citizen suits. (a) Any person may commence a civil action on that person's own behalf against any person, including the State, counties, any agencies, and the director, who is alleged to have violated this chapter, including any rule adopted pursuant to this chapter, 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 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) In issuing any final order in any action brought pursuant to this section, the court shall award costs of litigation, including reasonable attorney and expert witness fees, to the prevailing or substantially prevailing party. If a temporary restraining order or preliminary injunction is sought, the court 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 that 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) Moneys received as a result of any penalties imposed 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.