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HB405
HOUSE OF REPRESENTATIVES
H.B. NO.
405
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII
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 effective and
efficient water resource management requires continuous and experienced
leadership, especially given the climate crisis and the urgent necessity 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 composition of the
commission's board, will provide greater accountability and protection of the
State's waters.
����
The
purpose of this Act is to:
����
(1)
�
Define the public trust
responsibilities of the commission on water resource management and require the
commission, in acting upon water use permit applications, to prioritize
applications for public trust purposes;
����
(2)
�
Allow the commission to retain
independent legal counsel;
����
(3)
�
Amend the scope of the commission on
water resource management to include declarations of emergencies;
����
(4)
�
Repeal the position of deputy to the
chairperson of the commission on water resource management and establish the
position of executive director of the commission on water resource management;
����
(5)
�
Amend the composition of the commission
on water resource management;
����
(6)
�
Authorize entities to challenge an
emergency order of the commission on water resource management under certain
conditions; and
����
(7)
�
Establish fines for certain water use
offenses.
����
SECTION
2.
�
Chapter 174C, Hawaii Revised
Statutes, is amended by adding a new section to part IV to be appropriately
designated and to read as follows:
����
"
�174C-
��
��
Public trust purpose.
�
The
commission shall act upon water use permit applications, filed in accordance
with sections 174C-51, 174C-52, and 174C-53, for both existing and new public
trust purposes before acting upon water use permit applications for other
existing or new uses, or both, filed in accordance with sections 174C-51,
174C-52, and 174C-53.
�
Proceedings for
applications for public trust purposes shall be held first and separate from
proceedings for all other applications filed in accordance with sections
174C-51, 174C-52, and 174C-53.
"
����
SECTION
3
.
�
Section 28-8.3,
Hawaii Revised Statutes, is amended as follows:
����
1.
�
By amending subsection (a) to read:
����
"
(a)
�
No department of the State other than the
attorney general may employ or retain any attorney, by contract or otherwise,
for the purpose of representing the State or the department in any litigation,
rendering legal counsel to the department, or drafting legal documents for the
department; provided that the foregoing provision shall not apply to the
employment or retention of attorneys:
����
(1)
�
By
the public utilities commission, the labor and industrial relations appeals
board, and the Hawaii labor relations board;
����
(2)
�
By
any court or judicial or legislative office of the State; provided that if the
attorney general is requested to provide representation to a court or judicial
office by the chief justice or the chief justice's designee, or to a
legislative office by the speaker of the house of representatives and the
president of the senate jointly, and the attorney general declines to provide
such representation on the grounds of conflict of interest, the attorney
general shall retain an attorney for the court, judicial, or legislative
office, subject to approval by the court, judicial, or legislative office;
����
(3)
�
By
the legislative reference bureau;
����
(4)
�
By
any compilation commission that may be constituted from time to time;
����
(5)
�
By
the real estate commission for any action involving the real estate recovery
fund;
����
(6)
�
By
the contractors license board for any action involving the contractors recovery
fund;
����
(7)
�
By
the office of Hawaiian affairs;
����
(8)
�
By
the department of commerce and consumer affairs for the enforcement of
violations of chapters 480 and 485A;
����
(9)
�
As
grand jury counsel;
���
(10)
�
By
the Hawaii health systems corporation, or its regional system boards, or any of
their facilities;
���
(11)
�
By
the auditor;
���
(12)
�
By
the office of ombudsman;
���
(13)
�
By
the insurance division;
���
(14)
�
By
the University of Hawaii;
���
(15)
�
By
the Kahoolawe island reserve commission;
���
(16)
�
By
the division of consumer advocacy;
���
(17)
�
By
the office of elections;
���
(18)
�
By
the campaign spending commission;
���
(19)
�
By
the Hawaii tourism authority, as provided in section 201B-2.5;
���
(20)
�
By
the division of financial institutions;
���
(21)
�
By
the office of information practices;
���
(22)
�
By
the school facilities authority;
���
(23)
�
By
the Mauna Kea stewardship and oversight authority
; [
or
]
���
(24)
�
By
the commission on water resource management; or
��
[
(24)
]
(25)
�
By a department, if the attorney general, for reasons deemed by
the attorney general to be good and sufficient, declines to employ or retain an
attorney for a department; provided that the governor waives the provision of
this section."
����
2.
�
By amending subsection (c) to read:
����
"
(c)
�
Every
attorney employed by any department on a full‑time basis, except an
attorney employed by the public utilities commission, the labor and industrial
relations appeals board, the Hawaii labor relations board, the office of
Hawaiian affairs, the Hawaii health systems corporation or its regional system
boards, the department of commerce and consumer affairs in prosecution of
consumer complaints, insurance division, the division of consumer advocacy, the
University of Hawaii, the Hawaii tourism authority as provided in section
201B-2.5, the Mauna Kea stewardship and oversight authority,
the commission
on water resource management,
the office of information practices, or as
grand jury counsel, shall be a deputy attorney general.
"
����
SECTION
4
.
�
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
5
.
�
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 appoint and dismiss attorneys as
may be necessary, who shall be exempt from chapter 76;
��
[
(10)
]
(11)
�
May acquire, lease, and dispose of 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)
]
(12)
�
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)
]
(13)
�
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)
]
(14)
�
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)
]
(15)
�
Shall catalog and maintain an inventory of
all water uses and water resources; [
and
���
(15)
]
(16)
�
Shall
determine
appurtenant water rights, including but not limited to the quantification of
the amount of water and the specification of the water course or the means of
access and delivery entitled to by that right,
which determination shall be
valid for purposes of this chapter[
.
]
; and
���
(17)
�
May declare an emergency if the
commission determines, in consultation with the governor, the appropriate
county, and the department of health, that there is an absence of sufficient
quantity and quality of water in any area, whether within or outside of a water
management area, that immediately threatens the public health, safety, and
welfare. The commission may issue orders reciting the existence of
the emergency and requiring those actions as the commission deems necessary to
address the emergency be taken, including but not limited to apportioning,
rotating, limiting, or prohibiting the use of the water resources of the area;
provided that an emergency order shall expire no later than one year after
issuance by the commission; provided further that the order may be extended by
a separate or supplementary order.
"
����
SECTION
6
.
�
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
]
, and serve at the
pleasure of,
the commission.
����
(b)
�
The duties of the [
deputy for water
resource management
]
executive director
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 water resource
management is not
]
executive director shall not be
subject to
chapter 76.
����
(d)
�
The salary of the [
deputy for water
resource management
]
executive director
shall be [
as provided in
section 26-53 for first deputies or first assistants to the head of any
department.
]
set by the board, 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 allow 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
7
.
�
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
]
five
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[
.
]
; and one person
appointed by the chief executive officer of the office of Hawaiian affairs.
�
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
8
.
�
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
9
.
�
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.
]
$60,000
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 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
10
.
�
Section 174C-62, Hawaii Revised Statutes, is
amended as follows:
����
1.
�
By amending subsections (a) through (c) to read:
����
"(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."
����
2.
�
By amending subsections (e) and (f) to read:
����
"(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."
����
SECTION 11.
�
This Act does not affect rights and duties that matured, penalties that
were incurred, and proceedings that were begun before its effective date.
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SECTION 12.
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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.
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SECTION 13.
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Statutory material to be repealed is bracketed and stricken.
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New statutory material is underscored.
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SECTION 14.
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This Act shall take effect on July 1, 2025.
INTRODUCED BY:
_____________________________
By
Request
Report Title:
Maui County Council Package; Water; CWRM; Emergency
Orders; Water Shortages; Fines
Description:
Defines the public trust responsibilities of the
Commission on Water Resource Management.
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Allows the Commission to retain independent legal counsel.
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Amends the scope of the Commission to include
declaration of emergencies.
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Repeals the
position of Deputy to the Chairperson of the Commission on Water Resource
Management and establishes the position of Executive Director.
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Amends the composition of the Commission.
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Authorizes entities to challenge an emergency
order of the Commission under certain conditions.
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Establishes fines for certain water use
offenses.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.