§343-5 - Applicability and requirements.

§343-5  Applicability and requirements. (a)  Except as otherwise provided, an environmental assessment shall berequired for actions that:

(1)  Propose the use of state or county lands or theuse of state or county funds, other than funds to be used for feasibility orplanning studies for possible future programs or projects that the agency hasnot approved, adopted, or funded, or funds to be used for the acquisition ofunimproved real property; provided that the agency shall consider environmentalfactors and available alternatives in its feasibility or planning studies;provided further that an environmental assessment for proposed uses undersection 205-2(d)(11) or 205-4.5(a)(13) shall only be required pursuant tosection 205-5(b);

(2)  Propose any use within any land classified as aconservation district by the state land use commission under chapter 205;

(3)  Propose any use within a shoreline area asdefined in section 205A-41;

(4)  Propose any use within any historic site asdesignated in the National Register or Hawaii Register, as provided for in theHistoric Preservation Act of 1966, Public Law 89-665, or chapter 6E;

(5)  Propose any use within the Waikiki area of Oahu,the boundaries of which are delineated in the land use ordinance as amended, establishingthe "Waikiki Special District";

(6)  Propose any amendments to existing county generalplans where the amendment would result in designations other than agriculture,conservation, or preservation, except actions proposing any new county general planor amendments to any existing county general plan initiated by a county;

(7)  Propose any reclassification of any landclassified as a conservation district by the state land use commission underchapter 205;

(8)  Propose the construction of new or the expansionor modification of existing helicopter facilities within the State, that by wayof their activities, may affect:

(A)  Any land classified as a conservationdistrict by the state land use commission under chapter 205;

(B)  A shoreline area as defined in section205A-41; or

(C)  Any historic site as designated in theNational Register or Hawaii Register, as provided for in the HistoricPreservation Act of 1966, Public Law 89-665, or chapter 6E; or until thestatewide historic places inventory is completed, any historic site that isfound by a field reconnaissance of the area affected by the helicopter facilityand is under consideration for placement on the National Register or the HawaiiRegister of Historic Places; and

(9)  Propose any:

(A)  Wastewater treatment unit, except anindividual wastewater system or a wastewater treatment unit serving fewer thanfifty single-family dwellings or the equivalent;

(B)  Waste-to-energy facility;

(C)  Landfill;

(D)  Oil refinery; or

(E)  Power-generating facility.

(b)  Whenever an agency proposes an action insubsection (a), other than feasibility or planning studies for possible futureprograms or projects that the agency has not approved, adopted, or funded, orother than the use of state or county funds for the acquisition of unimprovedreal property that is not a specific type of action declared exempt undersection 343-6, the agency shall prepare an environmental assessment for suchaction at the earliest practicable time to determine whether an environmentalimpact statement shall be required.

(1)  For environmental assessments for which a findingof no significant impact is anticipated:

(A)  A draft environmental assessment shall bemade available for public review and comment for a period of thirty days;

(B)  The office shall inform the public of theavailability of the draft environmental assessment for public review andcomment pursuant to section 343-3;

(C)  The agency shall respond in writing tocomments received during the review and prepare a final environmentalassessment to determine whether an environmental impact statement shall berequired;

(D)  A statement shall be required if theagency finds that the proposed action may have a significant effect on theenvironment; and

(E)  The agency shall file notice of suchdetermination with the office.  When a conflict of interest may exist becausethe proposing agency and the agency making the determination are the same, theoffice may review the agency's determination, consult the agency, and advisethe agency of potential conflicts, to comply with this section.  The officeshall publish the final determination for the public's information pursuant tosection 343-3.

The draft and final statements, if required,shall be prepared by the agency and submitted to the office.  The draftstatement shall be made available for public review and comment through theoffice for a period of forty-five days.  The office shall inform the public ofthe availability of the draft statement for public review and comment pursuantto section 343-3.  The agency shall respond in writing to comments receivedduring the review and prepare a final statement.

The office, when requested by the agency, maymake a recommendation as to the acceptability of the final statement.

(2)  The final authority to accept a final statementshall rest with:

(A)  The governor, or the governor's authorizedrepresentative, whenever an action proposes the use of state lands or the useof state funds, or whenever a state agency proposes an action within thecategories in subsection (a); or

(B)  The mayor, or the mayor's authorizedrepresentative, of the respective county whenever an action proposes only theuse of county lands or county funds.

Acceptance of a required final statement shallbe a condition precedent to implementation of the proposed action. Uponacceptance or nonacceptance of the final statement, the governor or mayor, orthe governor's or mayor's authorized representative, shall file notice of suchdetermination with the office.  The office, in turn, shall publish thedetermination of acceptance or nonacceptance pursuant to section 343-3.

(c)  Whenever an applicant proposes an actionspecified by subsection (a) that requires approval of an agency and that is nota specific type of action declared exempt under section 343-6, the agencyinitially receiving and agreeing to process the request for approval shallprepare an environmental assessment of the proposed action at the earliestpracticable time to determine whether an environmental impact statement shallbe required; provided that, for an action that proposes the establishment of arenewable energy facility, a draft environmental impact statement shall beprepared at the earliest practicable time.  The final approving agency for therequest for approval is not required to be the accepting authority.

For environmental assessments for which afinding of no significant impact is anticipated:

(1)  A draft environmental assessment shall be madeavailable for public review and comment for a period of thirty days;

(2)  The office shall inform the public of theavailability of the draft environmental assessment for public review andcomment pursuant to section 343-3; and

(3)  The applicant shall respond in writing tocomments received during the review, and the agency shall prepare a finalenvironmental assessment to determine whether an environmental impact statementshall be required.  A statement shall be required if the agency finds that theproposed action may have a significant effect on the environment.  The agencyshall file notice of the agency's determination with the office, which, inturn, shall publish the agency's determination for the public's informationpursuant to section 343-3.

The draft and final statements, if required,shall be prepared by the applicant, who shall file these statements with theoffice.

The draft statement shall be made available forpublic review and comment through the office for a period of forty-five days. The office shall inform the public of the availability of the draft statementfor public review and comment pursuant to section 343-3.

The applicant shall respond in writing tocomments received during the review and prepare a final statement.  The office,when requested by the applicant or agency, may make a recommendation as to theacceptability of the final statement.

The authority to accept a final statement shallrest with the agency initially receiving and agreeing to process the requestfor approval.  The final decision-making body or approving agency for therequest for approval is not required to be the accepting authority.  Theplanning department for the county in which the proposed action will occurshall be a permissible accepting authority for the final statement.

Acceptance of a required final statement shallbe a condition precedent to approval of the request and commencement of theproposed action.  Upon acceptance or nonacceptance of the final statement, theagency shall file notice of such determination with the office.  The office, inturn, shall publish the determination of acceptance or nonacceptance of thefinal statement pursuant to section 343-3.

The agency receiving the request, within thirtydays of receipt of the final statement, shall notify the applicant and theoffice of the acceptance or nonacceptance of the final statement.  The finalstatement shall be deemed to be accepted if the agency fails to accept or notaccept the final statement within thirty days after receipt of the finalstatement; provided that the thirty-day period may be extended at the requestof the applicant for a period not to exceed fifteen days.

In any acceptance or nonacceptance, the agencyshall provide the applicant with the specific findings and reasons for itsdetermination.  An applicant, within sixty days after nonacceptance of a finalstatement by an agency, may appeal the nonacceptance to the environmentalcouncil, which, within thirty days of receipt of the appeal, shall notify theapplicant of the council's determination.  In any affirmation or reversal of anappealed nonacceptance, the council shall provide the applicant and agency withspecific findings and reasons for its determination.  The agency shall abide bythe council's decision.

(d)  Whenever an applicant requests approvalfor a proposed action and there is a question as to which of two or more stateor county agencies with jurisdiction has the responsibility of preparing theenvironmental assessment, the office, after consultation with and assistancefrom the affected state or county agencies, shall determine which agency shallprepare the assessment.

(e)  In preparing an environmental assessment,an agency may consider and, where applicable and appropriate, incorporate byreference, in whole or in part, previous determinations of whether a statementis required and previously accepted statements.  The council, by rule, shallestablish criteria and procedures for the use of previous determinations andstatements.

(f)  Whenever an action is subject to both theNational Environmental Policy Act of 1969 (Public Law 91-190) and therequirements of this chapter, the office and agencies shall cooperate withfederal agencies to the fullest extent possible to reduce duplication betweenfederal and state requirements.  Such cooperation, to the fullest extentpossible, shall include joint environmental impact statements with concurrentpublic review and processing at both levels of government.  Where federal lawhas environmental impact statement requirements in addition to but not inconflict with this chapter, the office and agencies shall cooperate infulfilling these requirements so that one document shall comply with allapplicable laws.

(g)  A statement that is accepted with respectto a particular action shall satisfy the requirements of this chapter, and noother statement for the proposed action shall be required. [L 1974, c 246, ptof §1; am and ren L 1979, c 197, §1(5) and (6); am L 1980, c 22, §1; am L 1983,c 140, §8; gen ch 1985; am L 1987, c 187, §2, c 195, §1, c 283, §23, and c 325,§1; am L 1992, c 241, §2; am L 1996, c 61, §2; am L 2004, c 55, §3; am L 2005,c 130, §3; am L 2006, c 250, §4; am L 2008, c 110, §2 and c 207, §5; am L 2009,c 11, §4]

Attorney General Opinions

  Amendments to county development plans; when environmentalassessments required.  Att. Gen. Op. 85-30.

  Applicable to housing developed under chapter 359G.  Att.Gen. Op. 86-13.

Case Notes

  Law contemplates consideration of secondary and nonphysicalaspects of proposal, including socio-economic consequences.  63 H. 453, 629P.2d 1134.

  Requirements not applicable to project pending when law tookeffect unless agency requested statement.  63 H. 453, 629 P.2d 1134.

  Construction and use of home and underground utilities nearPaiko Lagoon wildlife sanctuary.  64 H. 27, 636 P.2d 158.

  Environmental assessment required before land use commissioncan reclassify conservation land to other uses.  65 H. 133, 648 P.2d 702.

  Participation by plaintiffs at contested case hearing did notexcuse preparation of environmental assessment.  86 H. 66, 947 P.2d 378.

  For Hawaiian home lands, the department of Hawaiian homelands is the accepting authority for applicant proposals under subsection (c);because the governor is not involved, there is no conflict with Hawaiian homescommission act.  87 H. 91, 952 P.2d 379.

  "State lands" in subsection (a)(1) includesHawaiian home lands.  87 H. 91, 952 P.2d 379.

  In order to achieve the salutary objectives of the Hawaiienvironmental policy act, and because developer's proposed underpasses hadbeen, from the start, an integral part of the project, developer's proposedconstruction of two underpasses under highway constituted "use of statelands" within the meaning of subsection (a)(1).  91 H. 94, 979 P.2d 1120.

  The proper inquiry for determining the necessity of anenvironmental impact statement (EIS) based on the language of subsection (c) iswhether the proposed action will "likely" have a significant effecton the environment; as defined in §343-2, "significant effect"includes irrevocable commitment of natural resources; where the burning ofthousands of gallons of fuel and the withdrawal of millions of gallons ofgroundwater on a daily basis would "likely" cause such irrevocablecommitment, an EIS was required pursuant to both the common meaning of"may" and the statutory definition of "significanteffect".  106 H. 270, 103 P.3d 939.

  Where department of Hawaiian home lands lease was executed incontravention of subsection (c) inasmuch as the condition precedent--acceptanceof a required final environmental impact statement--was not satisfied, thelease was void.  106 H. 270, 103 P.3d 939.

  Where all three elements under subsection (c) were present: (1) an applicant proposed an action specified by subsection (a), (2) the actionrequired the approval of an agency, and (3) the action was not exempt under§343-6, the land use commission, as the agency that received the request forapproval of the boundary amendment petition, was required by statute to preparean environmental assessment of the proposed action at the earliest practicaltime.  109 H. 411, 126 P.3d 1098.

  Where the record showed that the department of transportationdid not consider whether its facilitation of the Hawaii superferry project wouldprobably have minimal or no significant impacts, both primary and secondary, onthe environment, its determination that the improvements to Kahului harbor wereexempt from the requirements of this chapter was erroneous as a matter of law;the exemption thus being invalid, the environmental assessment of this sectionwas applicable.  115 H. 299, 167 P.3d 292.

  Trial court did not err in determining that there was no"use" of state or county land under subsection (a)(1) wheredeveloper's detention basins and drainage line was merely connected and routedthrough the existing street drainage system and developer's sewage lines wereconnected to the county's existing sewage lines as neither line would requiretunneling or construction beneath state or county lands. 

119 H. 90, 194 P.3d 531.

  While chapter 150A and the board's microorganism import rulesmay have vested the board with exclusive authority to approve marinebiotechnology firm's proposal to import and grow genetically engineered algaeat the State's research and technology park, as the demonstration projectconstituted an action that proposed the use of state land, this section plainlyand unambiguously required the preparation of an environmental assessmentbefore the board could approve firm's application.  118 H. 247 (App.), 188 P.3d761.

Hawaii Legal Reporter Citations

  Decision on preparation of EIS.  79 HLR 790667.