SB2884 SD1

SECTION 1. The legislature finds that Hawaii has the highest rate of drowning in the country. An average of thirty Hawaii residents, or 2.4 victims for every one hundred thousand people, drown each year in the State's oceans, lakes, dams and reservoirs, rainwater retention and detention ponds, flood waters, swimming pools, spas, and in private homes. The rate more than doubles when including visitor statistics, making it the nation's riskiest destination in terms of water safety.

Hawaii's keiki are the most vulnerable to drowning, which in this State and nine others, is the leading cause of death among children aged fourteen and younger. Among children under age five, drowning accidents in swimming pools are the leading cause of injury and death. Hawaii's older keiki are more vulnerable to drowning in the ocean, lakes, ponds, dams and reservoirs, rainwater catchments, as well as detention and retention ponds.

Detention and retention ponds are meant to hold storm water. Similarly, rainwater catchments are used to harvest runoff rainwater. While many catchment systems collect runoff in enclosed tanks, some systems utilize artificial ponds to catch the water.

Unregulated and poorly maintained rainwater detention and retention ponds pose a serious health and safety risk, particularly to Hawaii's children. Since rainwater retention and detention ponds are often mistaken for recreational bodies of water, they should be clearly marked with hazard and warning signs that prohibit swimming and water sports.

The legislature further finds that the department of health has recommended action to reduce Hawaii's drowning rate and has set a goal more than a year ago to reduce that rate by more than half, to less than one resident per one hundred thousand by 2010. A high drowning rate detracts from the State's image as a safe as well as pleasurable visitor destination.

The American Academy of Pediatrics and the Consumer Product Safety Commission have recommended fencing to protect children from circumventing adult supervision. The State's injury prevention panel has recommended four-sided isolation fencing for residential pools to isolate them from the house or yard. Just like pools, rainwater detention and retention ponds should be similarly enclosed with chain-link or see-through fencing at least four feet high and accessed by a single locked gate. An alarm should also be required to sound if the fence is breached or someone enters the water.

The purpose of this Act is to ensure the health, safety, and welfare of the citizens of the State by creating a program for monitoring and enforcing the safety of Hawaii's rainwater retention and detention ponds to prevent drowning by enacting the Charlotte "Sharkey" Schaefer's law in memory of the five-year-old girl who drowned at a Pearl City naval housing complex while trying to save the life of her childhood friend.

SECTION 2. Chapter 321, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . RAINWATER DETENTION AND RETENTION POND SAFETY:

CHARLOTTE "SHARKEY" SCHAEFERS' LAW

§321‑A Definitions. For the purposes of this part, unless the context clearly requires otherwise:

"Catchment area pond" means an area used to harvest rainwater runoff consisting of artificial and natural ponds of sufficient size and depth so as to be potentially hazardous, as determined by rule adopted by the department.

"Detention pond" means a permanent or semi-permanent aquatic system that dries out only under drought conditions. Storm water entering a detention area displaces an equivalent amount of water. The detention pond acts as a trap where pollutants picked up by the initial surge of storm water settle out before leaving the detention pond. A detention pond is alternatively termed a "wet-detention system". A detention pond does not include taro, lotus root, or other agricultural pond fields.

"Retention pond" means an area that is designed to hold storm water until the effects of percolation, evapotranspiration, or controlled release, return the area to its normally dry state. The area is designed so storm water inflow is dissipated within seventy-two hours so that a new volume of water can be accommodated. Since these storm water areas are designed to be dry, they are alternatively termed "dry-retention systems".

§321‑B Retention pond, detention pond, and catchment area pond; safety measures required; inspection; fines. (a) The department shall perform an annual safety inspection of each retention pond, detention pond, and catchment area in the State to ensure that the operation of each retention pond, detention pond, and catchment area pond complies with the maintenance plan adopted pursuant to section 321‑C and the rules of the department. Each retention pond, detention pond, and catchment area pond shall:

(1) Be supplied with:

(A) An emergency flotation device; and

(B) A reaching pole or similar device to pull ashore individuals who may be stranded in the pond;

(2) Be enclosed with chain-link or see-through fencing at least four feet high, with access controlled by a single locked gate;

(3) Have adequate drainage; and

(4) Have an adequate number of hazard signs posted, warning of the danger of drowning and prohibiting entry; provided that this paragraph shall not apply to golf courses.

(b) As part of the annual inspection, the department shall inspect and verify that the developer or person responsible for the retention pond, detention pond, or catchment area pond:

(1) Has on file an ongoing maintenance plan, including design drawings and operational records, adopted pursuant to section 321‑C; and

(2) Is complying with the maintenance plan and standard best practice guidelines.

§321‑C Maintenance plan. (a) Each developer or person responsible for constructing or maintaining a retention pond, detention pond, or catchment area pond in the State shall adopt a maintenance plan to ensure continued safety that includes design drawings, safety features such as warning signs and safety devices, a method to maintain operational records, adequate drainage, and enclosing the area with fencing. Maintenance plans shall comply with standard best practice design and maintenance guidelines and shall include tiered levels for ease of exit.

(b) Existing retention ponds, detention ponds, and catchment area ponds that do not already have a maintenance plan shall adopt such a plan prior to December 31, 2009.

§321‑D Rules; fines. The department shall adopt rules in accordance with chapter 91 to carry out the purposes of this part. Violations of this part shall be subject to administrative fines in amounts as determined by the department in accordance with rules."

SECTION 3. Chapter 46, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§46‑ Retention pond, detention pond, and catchment area pond; requirements; maintenance plan. (a) Beginning January 1, 2009, no retention pond, detention pond, or catchment area pond, as those terms are defined in section 321‑A, shall be permitted to be constructed within a county unless the developer or person responsible for proposing its construction and maintenance:

(1) Certifies that a retention pond, detention pond, or catchment area pond is necessary for rainwater or storm water mitigation and that there is no other alternative;

(2) Includes a -foot wide buffer in the design surrounding the pond to separate it from homes, parks, or housing projects; and

(3) Creates and adopts a maintenance plan pursuant to section 321‑C.

The department of health, under part of chapter 321, shall be responsible for inspecting the plan required under paragraph (3).

(b) Prior to December 31, 2009, a developer or person responsible for the construction or maintenance of any retention pond, detention pond, or catchment area pond that was constructed prior to January 1, 2009, shall submit to the:

(1) Appropriate county permitting agency a certification that the retention pond, detention pond, or catchment area pond is necessary for rainwater or storm water mitigation and that there is no other alternative; and

(2) Department of health a maintenance plan pursuant to section 321‑C."

SECTION 4. Chapter 302A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§302A‑ Water safety education; retention pond, detention pond, and catchment area pond. The department shall incorporate retention pond, detention pond, and catchment area pond safety into the department's water safety curriculum."

SECTION 5. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 6. New statutory material is underscored.

SECTION 7. This Act shall take effect on July 1, 2050.

THE SENATE	S.B. NO.	2884
TWENTY-FOURTH LEGISLATURE, 2008		S.D. 1
STATE OF HAWAII