The Department of the Attorney General issued, on July 24, 1992, a legal opinion as to whether and, if so how, the Department of Health could permit marinas to be constructed in Class AA waters of the state. Here are excerpts:
This is in response to the following three questions:
I. Whether the Department of Health legally may issue a variance to allow the construction of marinas in class AA marine waters;
II. Whether the Department of Health legally may revise the classification of class AA waters to class A; and
III. Whether the state water quality certification process under section 401 of the federal Clean Water Act would allow the Department of Health to limit marina development in class AA waters.
I. Variances
Section 342D-50, Hawai`i Revised Statutes, provides that: “(a) No person, including any public body, shall discharge any water pollutant into state waters, or cause or allow any water pollutant to enter state waters except as in compliance with this chapter, rules adopted pursuant to this chapter, or a permit or variance issued by the director.”
Your inquiry is concerned with the propriety of issuing variances, not permits. Variances allow the discharge of pollutants in excess of applicable standards whereas permits allow discharges that do not exceed those standards. We thus assume that pollution will be created [by marinas] which will exceed applicable standards created by Chapter 342D and rules adopted pursuant thereto, so that a permit could not be issued.
There are three basic categories of requirements that must be met before the DOH may issue a variance. They are: state substantive requirements, federal Clean Water Act requirements, and state public participation requirements.
1. State Requirements
The procedures and requirements for obtaining a variance are set forth in section 342D-7, HRS. Section 342D-7(c) provides: “No variance shall be granted by the department unless the application and the supporting documentation clearly show that: (1) The continuation of the function or operation involved in the discharge of waste occurring or proposed to occur by the granting of the variance is in the public interest as defined in section 342D-6; (2) The discharge … does not substantially endanger human health or safety; and (3) Compliance with the rules or standards from which variance is sought would produce serious hardship without equal or greater benefits to the public.”
Section 342D-6(c), HRS, provides that: “In determining the public interest, the director shall consider the environmental impact of the proposed action … provided that any determination of public interest shall promote the optimum balance between economic development and environmental quality.”
The DOH must evaluate any application for a variance in light of these requirements and may issue a variance only if it determines that the requirements are met.
Section 11-55-15, Hawai`i Administrative Rules, prohibits issuance of a variance for any discharge: “which the Army Corps of Engineers finds would substantially impair anchorage and navigation; to which the Regional Administrator of the U.S. Environmental Protection Agency has objected under section 402(d) of the federal Clean Water Act…; and from a point source which is in conflict with an area-wide management plan approved under section 208(b) of the federal Clean Water Act.”
Finally, section 11-54-03(c)(1), HAR, provides that: “It is the objective of class AA waters that these waters remain in their natural pristine state as nearly as possible with an absolute minimum of pollution or alteration of water quality from any human-caused source or actions. To the extent practicable, the wilderness character of these areas shall be protected. No zones of mixing shall be permitted in this class: (A) within a defined reef area, in waters of a depth less than ten fathoms; or (B) in waters up to a distance of one thousand feet off shore if there is no defined reef area and if the depth is greater than ten fathoms…”
A “Zone of Mixing” is defined to mean “limited areas around outfalls and other facilities to allow for the initial dilution of waste discharges.” Under section 11-54-03(c)(1), HAR, the DOH may not allow for initial dilution of waste discharges from marina construction or operation in class AA waters meeting the above criteria.
2. Compliance with the Clean Water Act
In addition to the above requirements, section 342D-7(h), HRS, provides that: “… no variance shall be granted or renewed pursuant to this chapter with respect to any discharge of water Pollution Control Act and the amendments thereto.”
Marina construction and operation activities require permits or compliance with the following requirements of the federal Water Pollution Control Act (also called the Clean Water Act):
a. The EPA anti-degradation policy.
Hugh Barroll, assistant regional counsel, indicated it was the EPA’s position that the state must comply with the federal policy as set forth in 40 CFR §131.12. This policy essentially prohibits lowering water quality when the water quality exceeds that necessary to protect wildlife and recreation, unless lowering the water quality is necessary to accommodate important economic or social development in that area. Even then, water quality may not be lowered below the highest legal requirements for point sources, and may not be lowered below that quality necessary to protect existing instream uses. Furthermore, where the water constitutes an outstanding national resource, the high quality must be maintained.
b. Dredge and Fill Material.
The discharge of dredged or fill material requires a permit under section 404 of the federal Clean Water Act. The Army Corps of Engineers is authorized to issue permits for the discharge of dredged or fill material into navigable waters in accordance with guidelines issued by EPA. Section 404 also gives EPA the authority to prohibit the use of any defined area as a disposal site if such use would have an unacceptable adverse effect on shellfish beds and fishery areas, wildlife, or recreational areas.
The DOH could not issue a variance for marina construction activities involving the discharge or dredged or fill material into any state waters, regardless of the classification, if the discharge would violate these guidelines, or if the EPA would prohibit the discharge.
3. Public Participation
Finally, section 342D-7(i) requires that, prior to issuing a variance, the DOH must comply with certain public participation requirements.
II. Reclassification of State Waters
Any change in state water quality standards must be submitted to the EPA for approval. States are prohibited from removing designated uses of a particular water if (1) they are existing uses, unless a use requiring more stringent criteria is added, or (2) such uses will be attained by implementing effluent limits required under the Clean Water Act, and by implementing cost-effective and reasonable best management practices for nonpoint source control.
A state may remove a designated use which is not an existing use if it can demonstrate that attaining the designated use is not feasible for specific reasons enumerated in [federal] regulation. Finally, any reclassification would have to comply with the EPA anti-degradation policy.
III. Water Quality Certification Process
An applicant for a federal license or permit to conduct any activity which may result in a discharge into navigable waters must obtain a certification from the state that any such discharge will comply with state water quality standards. The federal license or permit cannot be granted if this certification is denied. Alternatively, the state could impose conditions on the federal license or permit to assure compliance with state water quality standards.
The certification requirement is therefore a useful tool for ensuring that an action which requires a federal license or permit complies with state water quality standards. Whether the development of a particular marina will violate state water quality standards, and whether effluent limits or other conditions can be imposed on the development to assure that water quality standards will not be violated, are in large part factual questions that the Department of Health must answer on a case-by-case basis.
Volume 3, Number 4 October 1992