HOUSE OF REPRESENTATIVES	H.C.R. NO.	102
TWENTY-NINTH LEGISLATURE, 2017
STATE OF HAWAII

HOUSE CONCURRENT

RESOLUTION

requesting the Legislative Reference Bureau to conduct a study regarding state statutes that may be enhanced or strengthened to protect waters in the state if the federal clean water rule is revised to be less stringent or is rescinded.

     WHEREAS, the Clean Water Act provides the federal government with broad authority to limit pollution in major bodies of water that are considered waters of the United States; and

     WHEREAS, the definition of "waters of the United States" and the scope of federal regulatory jurisdiction applicable to those waters have long been disputed; and

     WHEREAS, the disputes have centered largely on whether "waters of the United States" include only navigable bodies of water or also include certain types of swamps, wetlands, and non-navigable lakes, streams, and tributaries; and

     WHEREAS, the United States Supreme Court, in deciding Rapanos v. United States in 2006, split on how to define the federal government's jurisdiction over certain bodies of water under the federal Clean Water Act; and

     WHEREAS, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) in 2015 issued the federal Clean Water Rule, which defined the waters of the United States to include those waters that have a "significant nexus" to navigable rivers and the sea to qualify as protected under the federal Clean Water Act; and

     WHEREAS, industries opposed to the revised federal Clean Water Rule, and thirty-one states, have filed legal challenges to the rule, and the United States Supreme Court has agreed to resolve whether federal appellate or district courts have jurisdiction to review the rule; and

     WHEREAS, President Trump has issued an executive order directing the EPA and USACE to review the federal Clean Water Rule and publish for notice and comment a proposed rule rescinding or revising the rule; and

     WHEREAS, the executive order directed the EPA and USACE to consider interpreting the Clean Water Act to apply strictly to navigable waters, and to non-navigable waters only if those waters are relatively permanent, standing, or flowing bodies of water such as streams, rivers, lakes, and bodies of water forming geographic features; and

     WHEREAS, rescinding or revising the federal Clean Water Rule is expected to take several years to complete and would require compliance with the Administrative Procedures Act, which necessitates public notice and comment periods; and

     WHEREAS, changes to the federal Clean Water Rule could impact waters in the State and their regulation under federal and state laws; and

     WHEREAS, it may become necessary to amend state laws to further protect waters in the State if the federal Clean Water Rule is amended or rescinded; now, therefore,

     BE IT RESOLVED by the House of Representatives of the Twenty-ninth Legislature of the State of Hawaii, Regular Session of 2017, the Senate concurring, that the Legislative Reference Bureau is requested to review state statutes that rely on, or are applied in conjunction with, the Clean Water Act; and

     BE IT FURTHER RESOLVED that the Legislative Reference Bureau is requested to consider how state statutes may be amended to protect waters in the State if the federal Clean Water Rule is amended to be less stringent than the current rule or is rescinded; and

     BE IT FURTHER RESOLVED that the Department of Health assist the Legislative Reference Bureau as may be necessary with regard to environmental protection laws and rules under its jurisdiction; and

     BE IT FURTHER RESOLVED that the Legislative Reference Bureau is requested to submit a report, including any findings and recommendations, and proposed legislation if any, to the Legislature no later than twenty days prior to the convening of the 2018 Regular Session; and

     BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Director of the Legislative Reference Bureau and the Director of Health.

OFFERED BY:

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Report Title: 

Clean Water Rule study.