SB 2002: DLNR; CWRM; Working Group
- Session Year: 2025-2026
- House: Senate
- Latest Version Date: 2026-03-19
Current Status:
Failed
(2026-03-20: Passed Second Reading as amended in HD 1 and referred to the committee(s) on JHA with none voting aye with reservations; none voting no (0) and Representative(s) Quinlan excused (1).)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Final Decking
Enacted
Establishes within the Department of Land and Natural Resources a working group to evaluate and make recommendations regarding the governance and structure of the Commission on Water Resource Management to ensure that it effectively fulfills its constitutional public trust responsibilities while maintaining operational efficiency and implementation capacity. Sunsets the working group on 1/1/2028. Effective 7/1/3000. (HD1)
Allows the Commission on Water Resource Management to retain independent counsel. Repeals the First Deputy to the Chairperson of CWRM. Establishes the Executive Director of the CWRM. Administratively attaches the CWRM to the Department of Land and Natural Resources. Authorizes members of CWRM to be eligible to serve as chairperson. Requires the Chairperson of the Board of Land and Natural Resources and Director of Health to serve as ex officio voting members who are ineligible to serve as chairperson. Adds one member to the nominating committee for CWRM, to be appointed by the Chief Executive Officer of the Office of Hawaiian Affairs. Authorizes entities to whom an emergency order is directed to challenge the order under certain conditions. Clarifies the notification requirements of declarations of water shortages. Establishes fines. Makes conforming amendments. Effective 3/22/2075. (SD2)
Allows the Commission on Water Resource Management to retain independent counsel. Repeals the First Deputy to the Chairperson of CWRM. Establishes the Executive Director of the CWRM. Administratively attaches the CWRM to the Department of Land and Natural Resources. Authorizes members of CWRM to be eligible to serve as chairperson. Requires the Chairperson of the Board of Land and Natural Resources and Director of Health to serve as ex officio voting members who are ineligible to serve as chairperson. Adds one member to the nominating committee for CWRM, to be appointed by the Chief Executive Officer of the Office of Hawaiian Affairs. Authorizes entities to whom an emergency order is directed to challenge the order under certain conditions. Clarifies the notification requirements and contents of declarations of water shortages. Establishes fines. Makes conforming amendments. (SD1)
Allows the Commission on Water Resource Management to retain independent counsel. Repeals the First Deputy to the Chairperson of CWRM. Establishes the Executive Director of the CWRM. Administratively attaches the CWRM to the Department of Land and Natural Resources. Authorizes members of CWRM to be eligible to serve as chairperson. Requires the Chairperson of the Board of Land and Natural Resources and Director of Health to serve as ex officio voting members ineligible to serve as chairperson. Adds one member to the nominating committee for CWRM, to be appointed by the Chief Executive Officer of the Office of Hawaiian Affairs. Authorizes entities to whom an emergency order is directed to challenge the order under certain conditions. Clarifies the notification requirements and contents of declarations of water shortages. Establishes fines. Makes conforming amendments.
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THE SENATE |
S.B. NO. |
2002 |
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THIRTY-THIRD LEGISLATURE, 2026 |
S.D. 2 |
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STATE OF HAWAII |
H.D. 1 |
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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 effective and efficient water resource management requires consistent, experienced, and independent leadership, especially considering the climate crisis. Proper stewardship of the State's water resources will benefit present and future generations by perpetuating the natural lifeblood and cultural lifeways of these islands and providing for essential uses such as the affordable housing needs of local residents. In 1978, the people of the State established article XI, section 7, of the Hawaii State Constitution, mandating the legislature to "provide for a water resources agency" to uphold the State's "obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people". Pursuant to this mandate, in 1987, the legislature promulgated the comprehensive state water code, chapter 174C, Hawaii Revised Statutes, which established the commission on water resource management (commission) to administer and implement the state water code.
The legislature is concerned that impediments and threats to the independence of the commission have undermined its ability to fulfill its constitutional and statutory duties. Based on historical and recent experiences, the legislature finds that certain administrative structures of the commission create inherent conflicts and dependencies that impair its critical function of comprehensive water planning and management.
In In re Waiahole Ditch Contested Case Hearing, 94 Haw. 97, 9 P.3 409 (2000) (Waiahole case), for example, the Hawaii supreme court expressed "serious misgivings" about the conflicts and political pressures influencing the commission which "did nothing to improve public confidence in government and the administration of justice in this state". These problems include the inherent conflict of interest that stems from the chairperson of the board and land and natural resources (chairperson), who serves as both the head of the department of land and natural resources and chairperson of the commission. The commission also lacks the ability to employ its own legal staff and consequently was left without the assistance of legal counsel in the momentous, precedent-setting Waiahole case when the department of the attorney general terminated its representation of the commission and opposed the commission's recommendations.
More recently, in the aftermath of the August 2023 Maui wildfires, the commission has undergone further challenges that have undermined its effectiveness and eroded public confidence in the agency. These include controversies that arose due to the chairperson's exercise of unilateral authority over the commission in response to external political influences. In one highly publicized example, the chairperson summarily suspended legal protections of instream flows and removed the commission's deputy director, until community objections forced the administration to rescind those actions.
The legislature further finds that the basic governance and administrative structures of the commission do not adequately protect or ensure the commission's independence. For many years, these concerns have been acknowledged, but no action has been taken. While reform measures have been recommended as solutions, none have been adopted.
In 1994, the review commission tasked with comprehensively reviewing the state water code recognized the potential for significant conflicts in the chairperson also being designated by law as the chairperson of the commission. To provide the commission with "greater autonomy" and "accountability" and increase "administrative distance" from the department of land and natural resources, the review commission's final report recommended various amendments to the state water code. These recommendations included removing the commission from the department of land and natural resources and "attaching the commission to the [department] for administrative purposes only"; specifying that the chairperson of the board of land and natural resources shall "be ineligible to serve as chairperson of the [commission]"; and providing that the chief executive officer of the commission shall not be a deputy director of the department of land and natural resources, but an "executive director of the [commission], appointed by and answerable to the [commission]".
The legislature also finds that in a similar fashion, the Model Water Code, which guided the legislature's development of the state water code, recognizes the need to establish a water commission as "an independent board" and recommends model governance and administrative provisions to support that independence. These include provisions that members of the board "shall elect" their own chairperson, and that the board "shall employ an executive director as chief administrative officer" and "may employ a legal staff" to provide legal counsel, represent it in proceedings, and otherwise assist it in the administration of the water code.
The legislature additionally finds that as the fortieth anniversary of the establishment of the state water code and commission approaches, and the State confronts escalating challenges in the management of its freshwater resources, there is an urgent and overdue need to update the provisions for the leadership, governance, and administration of the commission so that it may be best positioned to fulfill its constitutionally and statutorily mandated responsibilities for the people of the State going forward in the twenty-first century.
Therefore, the legislature believes that clarification of these provisions, as well as other updates to provisions regarding penalties and emergency orders in the state water code, are necessary to provide greater accountability and protection for the State's public trust water resources.
Accordingly, the purpose of this Act is to establish a working group within the department of land and natural resources to evaluate and make recommendations regarding the governance and structure of the commission on water resource management to ensure that it effectively fulfills its constitutional public trust responsibilities while maintaining operational efficiency and implementation capacity.
SECTION 2. (a) There is established within the department of land and natural resources a working group to evaluate and make recommendations regarding the governance and structure of the commission on water resource management to ensure that it effectively fulfills its constitutional public trust responsibilities while maintaining operational efficiency and implementation capacity.
(b) The working group shall consist of the following voting members:
(1) The chairperson of the board of land and natural resources, or the chairperson's designee, who shall convene the working group;
(2) The first deputy to the chairperson of the commission on water resource management, or the first deputy's designee;
(3) The attorney general, or the attorney general's designee;
(4) The director of health, or the director's designee;
(5) Two members of the commission on water resource management; provided that the members do not constitute a quorum of the commission;
(6) A representative of the office of Hawaiian affairs;
(7) A representative of the department of Hawaiian home lands;
(8) A staff-level representative of the commission on water resource management;
(9) Two representatives from county water supply agencies; provided that one representative shall represent the Honolulu board of water supply and one representative shall represent a water supply agency from a neighbor island;
(10) A representative of a large landowner or agricultural water user;
(11) A representative from the development or housing sector; and
(12) A member of a community organization with a background in environmental advocacy.
(c) The working group may invite additional participants to serve in an advisory capacity, including:
(1) County planning and permitting agencies;
(2) Experts in engineering and hydrology;
(3) Cultural practitioners; and
(4) Labor representatives.
Participants who serve in an advisory capacity may provide input to the working group but shall not be eligible to vote.
(d) The working group shall:
(1) Evaluate whether the existing leadership structure of the commission on water resource management supports effective governance and implementation, including:
(A) Whether the chairperson of the board of land and natural resources should serve as chairperson of the commission on water resource management;
(B) The expectations, workload, and support necessary for the chairperson and members of the commission on water resource management to perform their duties effectively; and
(C) Whether compensation or other structural supports for members of the commission on water resource management are necessary to enable them to perform their duties effectively;
(2) Assess the appropriate administrative relationship between the commission on water resource management and department of land and natural resources;
(3) Evaluate the need for:
(A) The commission on water resource management to be able to retain independent legal counsel; and
(B) Dedicated executive leadership for the commission on water resource management, such as the hiring of an executive director;
(4) Identify targeted statutory amendments to improve the accountability, efficiency, and clarity of authority of the commission of water resource management; and
(5) Develop recommendations for implementation of any changes, including any necessary transition plans, to ensure the continuity of operations of the commission on water resource management.
The working group shall focus on governance and structural issues and shall not duplicate or replace existing permitting or regulatory processes of the commission on water resource management.
(e) The working group shall submit to the legislature:
(1) An interim report no later than twenty days prior to the convening of the regular session of 2027; and
(2) A final report no later than two years after the convening of the working group, including any findings, recommendations, and proposed legislation.
(f) The working group shall cease to exist on January 1, 2028.
SECTION 3. This Act shall take effect on July 1, 3000.
Report Title:
DLNR; CWRM; Working Group
Description:
Establishes within the Department of Land and Natural Resources a working group to evaluate and make recommendations regarding the governance and structure of the Commission on Water Resource Management to ensure that it effectively fulfills its constitutional public trust responsibilities while maintaining operational efficiency and implementation capacity. Sunsets the working group on 1/1/2028. Effective 7/1/3000. (HD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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THE SENATE |
S.B. NO. |
2002 |
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THIRTY-THIRD LEGISLATURE, 2026 |
S.D. 2 |
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STATE OF HAWAII |
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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 effective and efficient water resource management requires consistent, experienced, and independent leadership, especially considering the climate crisis. Proper stewardship of the State's water resources will benefit present and future generations by perpetuating the natural lifeblood and cultural lifeways of these islands and providing for essential uses such as the affordable housing needs of local residents. In 1978, the people of the State established article XI, section 7, of the Hawaii State Constitution, mandating the legislature to "provide for a water resources agency" to uphold the State's "obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people". Pursuant to this mandate, in 1987, the legislature promulgated the comprehensive state water code, chapter 174C, Hawaii Revised Statutes, which established the commission on water resource management (commission) to administer and implement the state water code.
The legislature is concerned that impediments and threats to the independence of the commission have undermined its ability to fulfill its constitutional and statutory duties. Based on historical and recent experiences, the legislature finds that certain administrative structures of the commission create inherent conflicts and dependencies that impair its critical function of comprehensive water planning and management.
In In re Waiahole Ditch Contested Case Hearing, 94 Haw. 97, 9 P.3 409 (2000) (Waiahole case), for example, the Hawaii supreme court expressed "serious misgivings" about the conflicts and political pressures influencing the commission which "did nothing to improve public confidence in government and the administration of justice in this state". These problems include the inherent conflict of interest that stems from the chairperson of the board and land and natural resources (chairperson), who also serves as head of the department of land and natural resources, also presiding as the chairperson of the commission. The commission also lacks the ability to employ its own legal staff and consequently was left without the assistance of legal counsel in the momentous, precedent-setting Waiahole case when the department of the attorney general terminated its representation of the commission and opposed the commission's recommendations.
More recently, in the aftermath of the 2023 Maui wildfires, the commission has undergone further challenges that have undermined its effectiveness and eroded public confidence in the agency. These include controversies that arose due to the chairperson's exercise of unilateral authority over the commission in response to external political influences. In one highly publicized example, the chairperson summarily suspended legal protections of instream flows and removed the commission's deputy director, until community objections forced the administration to rescind those actions.
The legislature further finds that the basic governance and administrative structures of the commission do not adequately protect or ensure the commission's independence. For many years, these concerns have been acknowledged but no action has been taken. While identified reform measures have been recommended as solutions, none have been adopted.
In 1994, the review commission tasked with comprehensively reviewing the state water code recognized the potential for significant conflicts in the chairperson also being designated by law as the chairperson of the commission. To provide the commission with "greater autonomy" and "accountability" and increase "administrative distance" from the department of land and natural resources, the review commission's final report recommended various amendments to the state water code. These recommendations included removing the commission from the department of land and natural resources and "attaching the commission to the [department] for administrative purposes only"; specifying that the chairperson of the board of land and natural resources shall "be ineligible to serve as chairperson of the [commission]"; and providing that the chief executive officer of the commission shall not be a deputy director of the department of land and natural resources, but an "executive director of the [commission], appointed by and answerable to the [commission]".
The legislature also finds that in a similar fashion, the Model Water Code, which guided the legislature's development of the state water code, recognizes the need to establish a water commission as "an independent board" and recommends model governance and administrative provisions to support that independence. These include provisions that members of the board "shall elect" their own chairperson, and that the board "shall employ an executive director as chief administrative officer" and "may employ a legal staff" to provide legal counsel, represent it in proceedings, and otherwise assist it in the administration of the water code.
The legislature additionally finds that as the fortieth anniversary of the establishment of the state water code and commission approaches, and the State confronts escalating challenges in the management of its freshwater resources, there is an urgent and overdue need to update the provisions for the leadership, governance, and administration of the commission so that it may be best positioned to fulfill its constitutionally and statutorily mandated responsibilities for the people of the State going forward in the twenty-first century.
Therefore, the legislature believes that clarification of these provisions, as well as other updates to provisions regarding penalties and emergency orders in the state water code are necessary to provide greater accountability and protection for the State's public trust water resources.
Accordingly, the purpose of this Act is to:
(1) Allow the commission on water resource management to retain independent legal counsel;
(2) 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;
(3) Amend the composition and administrative structures of the commission on water resource management to provide for its separation from the department of land and natural resources;
(4) Add one member to the nominating committee for the commission on water resource management to be appointed by the chief executive officer of the office of Hawaiian affairs;
(5) Authorize entities to challenge an emergency order of the commission on water resource management under certain conditions; and
(6) Establish fines for certain water use offenses.
SECTION 2. 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] 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] 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 3. 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 and biosecurity;
(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] university
of Hawaii;
(23) The executive administrator of the
board of regents of the [University]
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 4. 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 a 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]
provided that the department of health shall continue to exercise the
powers vested in it with respect to water quality[, and except];
provided further 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."
SECTION 5. 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] executive
director for water resource management shall be to administer and
implement, under the direction of the commission, the state water code [and
all], 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] executive
director for water resource management [is not] shall not be
subject to chapter 76.
(d) The salary of the [deputy] executive
director for 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 6. 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 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] including 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 not be eligible to serve as the
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 7. 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 8. 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 not be less than $250 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 factors, including but not limited to the following:
(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 potential or actual harm to water resources, other water users, or the environment;
(4) The violator's good faith efforts to comply;
(5) The violator's degree of culpability; and
(6) Any 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' fees and costs; [or] and
may bring legal action to recover administrative fines, fees, and costs,
including attorneys' fees and costs, or payment for damages resulting from a
violation of this chapter or any rule adopted pursuant to this chapter."
SECTION 9. 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 water 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] that 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] the 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] the challenge over all other
pending matters."
SECTION 10. 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 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 12. This Act shall take effect on March 22, 2075.
Report Title:
DLNR; CWRM; BLNR; OHA; Responsibilities; Commission Membership; Executive Director; Independent Legal Counsel; Emergency Order; Water Emergencies
Description:
Allows the Commission on Water Resource Management to retain independent counsel. Repeals the First Deputy to the Chairperson of CWRM. Establishes the Executive Director of the CWRM. Administratively attaches the CWRM to the Department of Land and Natural Resources. Authorizes members of CWRM to be eligible to serve as chairperson. Requires the Chairperson of the Board of Land and Natural Resources and Director of Health to serve as ex officio voting members who are ineligible to serve as chairperson. Adds one member to the nominating committee for CWRM, to be appointed by the Chief Executive Officer of the Office of Hawaiian Affairs. Authorizes entities to whom an emergency order is directed to challenge the order under certain conditions. Clarifies the notification requirements of declarations of water shortages. Establishes fines. Makes conforming amendments. Effective 3/22/2075. (SD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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THE SENATE |
S.B. NO. |
2002 |
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THIRTY-THIRD LEGISLATURE, 2026 |
S.D. 1 |
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STATE OF HAWAII |
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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 effective and efficient water resource management requires consistent, experienced, and independent leadership, especially considering the climate crisis. Proper stewardship of the State's water resources will benefit present and future generations by perpetuating the natural lifeblood and cultural lifeways of these islands and providing for essential uses such as the affordable housing needs of local residents. In 1978, the people of the State established article XI, section 7, of the Hawaii State Constitution, mandating the legislature to "provide for a water resources agency" to uphold the State's "obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people". Pursuant to this mandate, in 1987, the legislature promulgated the comprehensive state water code, Chapter 174C, Hawaii Revised Statutes, which established the commission on water resources management (commission) to administer and implement the state water code.
The legislature is concerned that impediments and threats to the independence of the commission has undermined its ability to fulfill its constitutional and statutory duties. Based on historical and recent experiences, the legislature finds that certain administrative structures of the commission create inherent conflicts and dependencies that impair its critical function of comprehensive water planning and management.
In the Waiahole water case, for example, the Hawaii supreme court expressed "serious misgivings" about the conflicts and political pressures influencing the commission which "did nothing to improve public confidence in government and the administration of justice in this state". These problems include the inherent conflict of interest that stems from the chairperson of the department of land and natural resources also presiding as the chairperson of the commission. The commission also lacks the ability to employ its own legal staff and consequently was left without the assistance of legal counsel in the momentous, precedent-setting Waiahole case when the department of the attorney general terminated its representation of the commission and opposed the commission's recommendations.
More recently, in the aftermath of the 2023 Maui wildfires, the commission has undergone further challenges that have undermined its effectiveness and eroded public confidence in the agency. These include controversies that arose due to the chairperson's exercise of unilateral authority over the commission in response to external political influences. In one highly publicized example, the chairperson summarily suspended legal protections of instream flows and removed the commission's deputy director, until community objections forced the administration to rescind those actions.
The legislature further finds that the basic governance and administrative structures of the commission do not adequately protect or ensure the commission's independence. For many years, these concerns have been acknowledged but no action has been taken. While identified reform measures have been recommended as solutions, none have been adopted.
In 1994, the review commission tasked with comprehensively reviewing the state water code recognized the "potential for significant conflicts" in the chairperson of the department of land natural resources also being designated by law as the chairperson of the commission. To provide the commission with "greater autonomy" and "accountability" and increase "administrative distance" from the department of land and natural resources, the review commission's final report recommended various amendments to the state water code. These recommendations included removing the commission from the department of land and natural resources and "attaching the commission to the [department] for administrative purposes only"; specifying that the chairperson of the board of land and natural resources shall "be ineligible to serve as chairperson of the [commission]"; and providing that the chief executive officer of the commission shall not be a deputy director of the department of land and natural resources, but an "executive director of the [commission], appointed by and answerable to the [commission]".
The legislature also finds that in a similar fashion, the Model Water Code, which guided the legislature's development of the state water code, recognizes the need to establish a water commission as "an independent board" and recommends model governance and administrative provisions to support such independence. These include provisions that members of the board "shall elect" their own chairperson, and that the board "shall employ an executive director as chief administrative officer" and "may employ a legal staff" to provide legal counsel, represent it in proceedings, and otherwise assist it in the administration of the water code.
The legislature additionally finds that as the fortieth anniversary of the establishment of the state water code and commission approaches, and the State confronts escalating challenges in the management of its freshwater resources, there is an urgent and overdue need to update the provisions for the leadership, governance, and administration of the commission so that it may be best positioned to fulfill its constitutionally and statutorily mandated responsibilities for the people of the State going forward in the twenty-first century.
Therefore, the legislature believes that clarification of these provisions, as well as other updates to provisions regarding penalties and emergency orders in the state water code are necessary to provide greater accountability and protection for the State's public trust water resources.
Accordingly, the purpose of this Act is to:
(1) Allow the commission on water resource management to retain independent legal counsel;
(2) 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;
(3) Amend the composition and administrative structures of the commission on water resource management to provide for its separation from the department of land and natural resources;
(4) Add one member to the nominating committee for the commission on water resource management to be appointed by the chief executive officer of the Office of Hawaiian Affairs;
(5) Authorize entities to challenge an emergency order of the commission on water resource management under certain conditions; and
(6) Establish fines for certain water use offenses.
SECTION 2. 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] 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] 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 3. 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 and biosecurity;
(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] university
of Hawaii;
(23) The executive administrator of the
board of regents of the [University]
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 4. 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 a 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]
provided that the department of health shall continue to exercise the
powers vested in it with respect to water quality[, and except];
provided further 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."
SECTION 5. 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] executive
director for 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] executive
director for water resource management [is not] shall not be
subject to chapter 76.
(d) The salary of the [deputy] executive
director for 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 6. 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] including 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 not be eligible to serve as the 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 7. 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 8. 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 not be less than $250 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 factors, including but not limited to the following:
(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 potential or actual harm to water resources, other water users, or the environment;
(4) The violator's good faith efforts to comply;
(5) The violator's degree of culpability; and
(6) Any 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' fees and costs; [or] and
may bring legal action to recover administrative fines, fees, and costs,
including attorneys' fees and costs, or payment for damages resulting from a
violation of this chapter or any rule adopted pursuant to this chapter."
SECTION 9. 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] that 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] the 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] the challenge over all other
pending matters."
SECTION 10. 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 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 12. This Act shall take effect upon its approval.
Report Title:
CWRM; BLNR; OHA; Responsibilities; Commission Membership; Executive Director; Independent Legal Counsel; Emergency Order; Water Emergencies
Description:
Allows the Commission on Water Resource Management to retain independent counsel. Repeals the First Deputy to the Chairperson of CWRM. Establishes the Executive Director of the CWRM. Administratively attaches the CWRM to the Department of Land and Natural Resources. Authorizes members of CWRM to be eligible to serve as chairperson. Requires the Chairperson of the Board of Land and Natural Resources and Director of Health to serve as ex officio voting members who are ineligible to serve as chairperson. Adds one member to the nominating committee for CWRM, to be appointed by the Chief Executive Officer of the Office of Hawaiian Affairs. Authorizes entities to whom an emergency order is directed to challenge the order under certain conditions. Clarifies the notification requirements and contents of declarations of water shortages. Establishes fines. Makes conforming amendments. (SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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THE SENATE |
S.B. NO. |
2002 |
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THIRTY-THIRD LEGISLATURE, 2026 |
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STATE OF HAWAII |
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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 effective and efficient water resource management requires consistent, experienced, and independent leadership, especially considering the climate crisis. Proper stewardship of the State's water resources will benefit present and future generations by perpetuating the natural lifeblood and cultural lifeways of these islands and providing for essential uses such as the affordable housing needs of local residents. In 1978 the people of Hawaii established article XI, section 7, of the Hawaii State Constitution, mandating the legislature to "provide for a water resources agency" to uphold the State's "obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people". Pursuant to this mandate, in 1987, the legislature promulgated the comprehensive state water code, Chapter 174C, Hawaii Revised Statutes, which established the commission on water resources management (commission) to administer and implement the state water code.
The legislature is concerned that impediments and threats to the independence of the commission has undermined its ability to fulfill its constitutional and statutory duties. Based on historical and recent experiences, the legislature finds that certain administrative structures of the commission create inherent conflicts and dependencies that impair its critical function of comprehensive water planning and management.
In the Waiahole water case, for example, the Hawaii Supreme Court expressed "serious misgivings" about the conflicts and political pressures influencing the commission which "did nothing to improve public confidence in government and the administration of justice in this state". These problems include the inherent conflict of interest that stems from the chairperson of the department of land and natural resources also presiding as the chairperson of the commission. The commission also lacks the ability to employ its own legal staff and, consequently, was left without the assistance of legal counsel in the momentous, precedent-setting Waiahole case when the department of the attorney general terminated its representation of the commission and opposed the commission's recommendations.
More recently, in the aftermath of the 2023 Maui wildfires, the commission has undergone further challenges that have undermined its effectiveness and eroded public confidence in the agency. These include controversies that arose due to the chairperson's exercise of unilateral authority over the commission in response to external political influences. In one highly publicized example, the chairperson summarily suspended legal protections of instream flows and removed the commission's deputy director, until community objects forced the administration to rescind those actions.
The legislature further finds that the basic governance and administrative structures of the commission do not adequately protect or ensure the commission's independence. For many years, these concerns have been acknowledged but no action has been taken. While identified reform measure have been recommended as solutions, none have been adopted.
In 1994, the review commission tasked with comprehensively reviewing the state water code recognized the "potential for significant conflicts" in the chairperson of the department of land natural resources also being designated by law as the chairperson of the commission. To provide the commission with "greater autonomy" and "accountability" and increase "administrative distance" from the department of land and natural resources, the review commission's final report recommended various amendments to the state water code. These recommendations included removing the commission from the department of land and natural resources and "attaching the commission to the [department] for administrative purposes only"; specifying that the chairperson of the board of land and natural resources shall "be ineligible to serve as chairperson of the [commission]"; and providing that the chief executive officer of the commission shall not be a deputy director of the department of land and natural resources, but an "executive director of the [commission], appointed by and answerable to the [commission]".
The legislature also finds that in a similar fashion, the Model Water Code, which guided the legislature's development of the state water code, recognizes the need to establish a water commission as "an independent board" and recommends model governance and administrative provisions to support such independence. These include provisions that members of the board "shall elect" their own chairperson, and that the board "shall employ an executive director as chief administrative officer" and "may employ a legal staff" to provide legal counsel, represent it in proceedings, and otherwise assist it in the administration of the water code.
The legislature additionally finds that as the fortieth anniversary of the establishment of the state water code and commission approaches, and the State confronts escalating challenges in the management of its freshwater resources, there is an urgent and overdue need to update the provisions for the leadership, governance, and administration of the commission so that it may be best positioned to fulfill its constitutionally and statutorily mandated responsibilities for the people of the State going forward in the twenty-first century.
Therefore, the legislature believes that clarification of these provisions, as well as other updates to provisions regarding penalties and emergency orders in the state water code are necessary to provide greater accountability and protection for the State's public trust water resources.
Accordingly, the purpose of this Act is to:
(1) Allow the commission on water resource management to retain independent legal counsel;
(2) 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;
(3) Amend the composition and administrative structures of the commission on water resource management to provide for its separation from the department of land and natural resources;
(4) Add one member to the nominating committee for the commission on water resource management to be appointed by the chief executive officer of the Office of Hawaiian Affairs;
(5) Authorize entities to challenge an emergency order of the commission on water resource management under certain conditions; and
(6) Establish fines for certain water use offenses.
SECTION 2. 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] 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] 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 3. 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 and biosecurity;
(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] university
of Hawaii;
(23) The executive administrator of the
board of regents of the [University]
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 4. 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."
SECTION 5. 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] executive
director for 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] executive
director for water resource management [is not] shall not be
subject to chapter 76.
(d) The salary of the [deputy] executive
director for 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 6. 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] including 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 not be eligible 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 7. 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 8. 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 not be less than $250 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 factors, including but not limited to the following:
(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 potential or actual harm to water resources, other water users, or the environment;
(4) The violator's good faith efforts to comply;
(5) The violator's degree of culpability; and
(6) Any 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' fees and costs; [or] and
may bring legal action to recover administrative fines, fees, and costs,
including attorneys' fees and costs, or payment for damages resulting from a
violation of this chapter or any rule adopted pursuant to this chapter."
SECTION 9. 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] the 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] the challenge over all other
pending matters."
SECTION 10. 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 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 12. This Act shall take effect upon its approval.
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INTRODUCED BY: |
_____________________________ |
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Report Title:
CWRM; BLNR; OHA; Responsibilities; Commission Membership; Executive Director; Independent Legal Counsel; Emergency Order; Water Emergencies
Description:
Allows the Commission on Water Resource Management to retain independent counsel. Repeals the First Deputy to the Chairperson of CWRM. Establishes the Executive Director of the CWRM. Administratively attaches the CWRM to the Department of Land and Natural Resources. Authorizes members of CWRM to be eligible to serve as chairperson. Requires the Chairperson of the Board of Land and Natural Resources and Director of Health to serve as ex officio voting members ineligible to serve as chairperson. Adds one member to the nominating committee for CWRM, to be appointed by the Chief Executive Officer of the Office of Hawaiian Affairs. Authorizes entities to whom an emergency order is directed to challenge the order under certain conditions. Clarifies the notification requirements and contents of declarations of water shortages. Establishes fines. Makes conforming amendments.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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Date
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Status
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| Mar 20, 2026 | Passed Second Reading as amended in HD 1 and referred to the committee(s) on JHA with none voting aye with reservations; none voting no (0) and Representative(s) Quinlan excused (1). |
| Mar 20, 2026 | Reported from WAL (Stand. Com. Rep. No. 1301-26) as amended in HD 1, recommending passage on Second Reading and referral to JHA. |
| Mar 19, 2026 | The committee on WAL recommend that the measure be PASSED, WITH AMENDMENTS. The votes were as follows: 8 Ayes: Representative(s) Hashem, Morikawa, Ichiyama, Iwamoto, Poepoe, Woodson, Shimizu, Souza; Ayes with reservations: none; 0 Noes: none; and 1 Excused: Representative(s) Belatti. |
| Mar 17, 2026 | Bill scheduled for decision making on Thursday, 03-19-26 9:00AM in conference room 411 VIA VIDEOCONFERENCE. |
| Mar 17, 2026 | The committee(s) on WAL recommend(s) that the measure be deferred until 03-19-26. |
| Mar 12, 2026 | Bill scheduled to be heard by WAL on Tuesday, 03-17-26 9:00AM in House conference room 411 VIA VIDEOCONFERENCE. |
| Mar 12, 2026 | Referred to WAL, JHA, FIN, referral sheet 17 |
| Mar 12, 2026 | Pass First Reading |
| Mar 10, 2026 | Received from Senate (Sen. Com. No. 145) in amended form (SD 2). |
| Mar 10, 2026 | Report adopted; Passed Third Reading, as amended (SD 2). Ayes, 25; Aye(s) with reservations: none . Noes, 0 (none). Excused, 0 (none). Transmitted to House. |
| Mar 6, 2026 | 48 Hrs. Notice 03-10-26. |
| Mar 6, 2026 | Reported from JDC/WAM (Stand. Com. Rep. No. 3065) with recommendation of passage on Third Reading, as amended (SD 2). |
| Mar 4, 2026 | The committee(s) on WAM recommend(s) that the measure be PASSED, WITH AMENDMENTS. The votes in WAM were as follows: 13 Aye(s): Senator(s) Dela Cruz, Moriwaki, DeCoite, Elefante, Hashimoto, Inouye, Kanuha, Kidani, Kim, Lee, C., Richards, Wakai, Fevella; Aye(s) with reservations: none ; 0 No(es): none; and 0 Excused: none. |
| Mar 4, 2026 | The committee(s) on JDC recommend(s) that the measure be PASSED, WITH AMENDMENTS. The votes in JDC were as follows: 5 Aye(s): Senator(s) Rhoads, Gabbard, Chang, San Buenaventura, Awa; Aye(s) with reservations: none ; 0 No(es): none; and 0 Excused: none. |
| Mar 2, 2026 | The committee(s) on JDC/WAM will hold a public decision making on 03-04-26 10:35AM; Conference Room 211 & Videoconference. |
| Feb 20, 2026 | Report adopted; Passed Second Reading, as amended (SD 1) and referred to JDC/WAM. |
| Feb 20, 2026 | Reported from WLA/PSM (Stand. Com. Rep. No. 2600) with recommendation of passage on Second Reading, as amended (SD 1) and referral to JDC/WAM. |
| Feb 4, 2026 | The committee(s) on PSM recommend(s) that the measure be PASSED, WITH AMENDMENTS. The votes in PSM were as follows: 5 Aye(s): Senator(s) Fukunaga, Lee, C., Hashimoto, Inouye, DeCorte; Aye(s) with reservations: none ; 0 No(es): none; and 0 Excused: none. |
| Feb 4, 2026 | The committee(s) on WLA recommend(s) that the measure be PASSED, WITH AMENDMENTS. The votes in WLA were as follows: 5 Aye(s): Senator(s) Lee, C., Inouye, Chang, Lamosao, DeCorte; Aye(s) with reservations: none ; 0 No(es): none; and 0 Excused: none. |
| Jan 30, 2026 | The committee(s) on WLA/PSM has scheduled a public hearing on 02-04-26 3:01PM; Conference Room 016 & Videoconference. |
| Jan 22, 2026 | Referred to WLA/PSM, JDC/WAM. |
| Jan 21, 2026 | Introduced and passed First Reading. |
| Jan 14, 2026 | Pending Introduction. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Mar 19, 2026 | The committee on WAL recommend that the measure be PASSED, WITH AMENDMENTS | House Standing Committee on Water & Land |
Passed |
|
| Mar 10, 2026 | Third Reading | Senate Floor |
Passed |
|
| Mar 4, 2026 | The committee(s) on WAM recommend(s) that the measure be PASSED, WITH AMENDMENTS | Senate Standing Committee on Ways and Means |
Passed |
|
| Mar 4, 2026 | The committee(s) on JDC recommend(s) that the measure be PASSED, WITH AMENDMENTS | Senate Standing Committee on Judiciary |
Passed |
|
| Feb 4, 2026 | The committee(s) on PSM recommend(s) that the measure be PASSED, WITH AMENDMENTS | Senate Standing Committee on Public Safety and Military Affairs |
Passed |
|
| Feb 4, 2026 | The committee(s) on WLA recommend(s) that the measure be PASSED, WITH AMENDMENTS | Senate Standing Committee on Water, Land, Culture and the Arts |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Aurora (individual) | *** Support | Mar 4, 2026 |
| Board of Water Supply (City and County of Honolulu) | *** Support | Mar 4, 2026 |
| Board of Water Supply, City and County of Honolulu | *** Support | Mar 17, 2026 |
| Chamber of Sustainable Commerce | *** Support | Mar 17, 2026 |
| Department of Hawaiian Home Lands | *** Support | Mar 17, 2026 |
| Department of the Attorney General | ** Against | |
| Department of the Attorney General | *** Against | Mar 17, 2026 |
| Earthjustice | *** Support | Mar 17, 2026 |
| Environmental Caucus of the Democratic Party of Hawaiʻi | *** Support | Mar 17, 2026 |
| Food+ Policy Team | *** Support | Feb 4, 2026 |
| Free Access Coalition | *** Support | Mar 17, 2026 |
| GLSS | *** Support | Mar 4, 2026 |
| Haiku Community Association | ** Support | |
| Hanalei Watershed Hui | ** Support | |
| Hawaiian Homes Commission | *** Support | Mar 17, 2026 |
| Hawai‘i Reef and Ocean Coalition | *** Support | Mar 17, 2026 |
| Hui o Nā Wai ʻEhā | ** Support | |
| Hui o Nā Wai ʻEhā | *** Support | Mar 4, 2026 |
| Kihei Community Association | *** Support | Mar 17, 2026 |
| Ko’olauloa Hawaiian Civic Club | *** Support | Mar 17, 2026 |
| Kuaʻāina Ulu ʻAuamo (KUA) | *** Support | Mar 17, 2026 |
| Kupuna for the Moopuna | *** Support | Mar 17, 2026 |
| Lāhainā Strong | *** Support | Feb 4, 2026 |
| Life of the Land | *** Support | Feb 4, 2026 |
| Nā Alakaʻi o ka ʻAhahui o Hawaiʻi | ** Support | |
| Nā Alakaʻi o ka ʻAhahui o Hawaiʻi (student advocates, William S. Richardson School of Law) | *** Support | Mar 4, 2026 |
| Office of Hawaiian Affairs | *** Support | Mar 17, 2026 |
| Our Hawaiʻi | ** Support | |
| Save Honolua Coalition | *** Support | Feb 4, 2026 |
| Shimanchu Wai Protector | *** Support | Mar 17, 2026 |
| Sierra Club of Hawaiʻi | *** Support | Mar 17, 2026 |
STAND. COM. REP. NO. 3065
Honolulu, Hawaii
RE: S.B. No. 2002
S.D. 2
Honorable Ronald D. Kouchi
President of the Senate
Thirty-Third State Legislature
Regular Session of 2026
State of Hawaii
Sir:
Your Committees on Judiciary and Ways and Means, to which was referred S.B. No. 2002, S.D. 1, entitled:
"A BILL FOR AN ACT RELATING TO WATER,"
beg leave to report as follows:
The purpose and intent of this measure is to:
(1) Allow the Commission on Water Resource Management (CWRM) to retain independent counsel;
(2) Repeal the First Deputy to the Chairperson of CWRM and establish the Executive Director of the CWRM;
(3) Administratively attach CWRM to the Department of Land and Natural Resources;
(4) Authorize members of CWRM to be eligible to serve as chairperson;
(5) Require the Chairperson of the Board of Land and Natural Resources and Director of Health to serve as ex officio voting members who are ineligible to serve as chairperson;
(6) Add one member to the nominating committee for CWRM, to be appointed by the Chief Executive Officer of the Office of Hawaiian Affairs;
(7) Authorize entities to whom an emergency order is directed to challenge the order under certain conditions;
(8) Clarify the notification requirements and contents of declarations of water shortages;
(9) Establish fines; and
(10) Make conforming amendments.
Your Committees received testimony in support of this measure from the Department of Hawaiian Home Lands, Office of Hawaiian Affairs, Honolulu Board of Water Supply, Free Access Coalition, Shimanchu Wai Protectors, Kuaʻāina Ulu ʻAuamo, Kupuna for the Moʻopuna, Nā Alakaʻi o ka ʻAhahui o Hawaiʻi, Earthjustice, Our Hawaiʻi, Hanalei Watershed Hui, Hui o Nā Wai ʻEhā, Environmental Caucus of the Democratic Party of Hawaiʻi, Sierra Club of Hawaiʻi, Haiku Community Association, Hawaii Reef and Ocean Coalition, and sixty-one individuals.
Your Committees received testimony in opposition to this measure from the Department of the Attorney General.
Your Committees received comments on this measure from the Department of Land and Natural Resources and Office of the Mayor of the County of Maui.
Your Committees find that effective and efficient water resource management requires consistent, experienced, and independent leadership. However, basic governance and administrative structures of the Commission on Water Resource Management (Commission) do not adequately protect or ensure the Commission's independence. Consequently, the Commission is subject to external political influences that prevent it from performing its critical function of comprehensive water planning and management. This measure will ensure the independence of the Commission to restore public trust in the Commission and allow it to more effectively and efficiently protect and preserve the State's water supplies.
Your Committees have amended this measure by:
(1) Inserting an effective date of March 22, 2075, to encourage further discussion; and
(2) Making technical, nonsubstantive amendments for the purposes of clarity and consistency.
As affirmed by the records of votes of the members of your Committees on Judiciary and Ways and Means that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 2002, S.D. 1, as amended herein, and recommend that it pass Third Reading in the form attached hereto as S.B. No. 2002, S.D. 2.
Respectfully submitted on behalf of the members of the Committees on Judiciary and Ways and Means,
|
________________________________ DONOVAN M. DELA CRUZ, Chair |
|
________________________________ KARL RHOADS, Chair |
|
|
|
|
STAND. COM. REP. NO. 2600
Honolulu, Hawaii
RE: S.B. No. 2002
S.D. 1
Honorable Ronald D. Kouchi
President of the Senate
Thirty-Third State Legislature
Regular Session of 2026
State of Hawaii
Sir:
Your Committees on Water, Land, Culture and the Arts and Public Safety and Military Affairs, to which was referred S.B. No. 2002 entitled:
"A BILL FOR AN ACT RELATING TO WATER,"
beg leave to report as follows:
The purpose and intent of this measure is to:
(1) Allow the Commission on Water Resources Management (CWRM) to retain independent counsel;
(2) Repeal the First Deputy to the Chairperson of the CWRM;
(3) Establish the Executive Director of the CWRM;
(4) Administratively attach the CWRM to the Department of the Land and Natural Resources;
(5) Authorize members of the CWRM to be eligible to serve as chairperson;
(6) Require the Chairperson of the Board of Land and Natural Resources and the Director of Health to serve as ex officio voting members who are ineligible to serve as chairperson;
(7) Add one member to the nominating committee for the CWRM, to be appointed by the Chief Executive Officer of the Office of Hawaiian Affairs;
(8) Authorize entities to whom an emergency order is directed to challenge the order under certain conditions;
(9) Clarify the notification requirements and contents of declarations of water shortages;
(10) Establish fines; and
(11) Make conforming amendments.
Your Committees received testimony in support of this measure from the Board of Water Supply of the City and County of Honolulu, Sierra Club of Hawaiʻi, Life of the Land, Earthjustice, Hawaiʻi Food+ Policy; Lāhainā Strong, Save Honolua Coalition, and forty-eight individuals.
Your Committees received testimony in opposition to this measure from the Department of the Attorney General.
Your Committees received comments on this measure from the Department of Land and Natural Resources and one individual.
Your Committees find that certain administrative structures of the Commission on Water Resources Management (CWRM) create inherent conflicts and dependencies that impair its critical function of comprehensive water planning and management, underscored recently in the aftermath of the 2023 Maui wildfires. Your Committees further find that recommendations for an autonomous CWRM were submitted to the State over thirty years ago. This measure will ensure the independence of the CWRM and protect it from political interference, as well as update outdated policy in the State Water Code, to best position the CWRM to fulfill its mandated responsibilities for the people of the State.
Your Committees note the concern expressed by Earthjustice that the Commission on Water Resources Management has repeatedly been deprived of effective counsel or denied legal representation altogether at critical times throughout its history. Accordingly, your Committees respectfully request that subsequent Committees to which this measure is referred consider this issue.
Your Committees have amended this measure by making technical, nonsubstantive amendments for the purposes of clarity and consistency.
As affirmed by the records of votes of the members of your Committees on Water, Land, Culture and the Arts and Public Safety and Military Affairs that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 2002, as amended herein, and recommend that it pass Second Reading in the form attached hereto as S.B. No. 2002, S.D. 1, and be referred to your Committees on Judiciary and Ways and Means.
Respectfully submitted on behalf of the members of the Committees on Water, Land, Culture and the Arts and Public Safety and Military Affairs,
|
________________________________ CAROL FUKUNAGA, Chair |
|
________________________________ CHRIS LEE, Chair |
|
|
|
|
|
Date
|
Testimony PDF
|
|---|---|
| Mar 17, 2026 | SB2002_SD2_TESTIMONY_WAL_03-17-26_.PDF |
| Mar 4, 2026 | SB2002_SD1_TESTIMONY_WAM-JDC_03-04-26_.PDF |
| Feb 4, 2026 | SB2002_TESTIMONY_PSM-WLA_02-04-26_.PDF |
Discussed in Hearing
11MIN
House Standing Committee on Water & Land
29MIN
House Standing Committee on Water & Land
50SEC
House Standing Committee on Water & Land
40SEC
Senate Standing Committee on Judiciary
40SEC
Senate Standing Committee on Ways and Means
24MIN
Senate Standing Committee on Public Safety and Military Affairs
24MIN
Senate Standing Committee on Water, Land, Culture and the Arts
2MIN
Senate Standing Committee on Public Safety and Military Affairs
Bill Author
