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



(1)  Propose the use of state or county lands or the
use of state or county funds, other than funds to be used for feasibility or
planning studies for possible future programs or projects that the agency has
not approved, adopted, or funded, or funds to be used for the acquisition of
unimproved real property; provided that the agency shall consider environmental
factors and available alternatives in its feasibility or planning studies;
provided further that an environmental assessment for proposed uses under
section 205-2(d)(11) or 205-4.5(a)(13) shall only be required pursuant to
section 205-5(b);



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



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



(4)  Propose any use within any historic site as
designated in the National Register or Hawaii Register, as provided for in the
Historic 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, establishing
the "Waikiki Special District";



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



(7)  Propose any reclassification of any land
classified as a conservation district by the state land use commission under
chapter 205;



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



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



(B)  A shoreline area as defined in section
205A-41; or



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



(9)  Propose any:



(A)  Wastewater treatment unit, except an
individual wastewater system or a wastewater treatment unit serving fewer than
fifty 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 in
subsection (a), other than feasibility or planning studies for possible future
programs or projects that the agency has not approved, adopted, or funded, or
other than the use of state or county funds for the acquisition of unimproved
real property that is not a specific type of action declared exempt under
section 343-6, the agency shall prepare an environmental assessment for such
action at the earliest practicable time to determine whether an environmental
impact statement shall be required.



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



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



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



(C)  The agency shall respond in writing to
comments received during the review and prepare a final environmental
assessment to determine whether an environmental impact statement shall be
required;



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



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



The draft and final statements, if required,
shall be prepared by the agency and submitted to the office.  The draft
statement shall be made available for public 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 statement for public review and comment pursuant
to section 343-3.  The agency shall respond in writing to comments received
during the review and prepare a final statement.



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



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



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



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



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



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



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



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



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



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



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



The draft statement shall be made available for
public 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 statement
for public review and comment pursuant to section 343-3.



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



The authority to accept a final statement shall
rest with the agency initially receiving and agreeing to process the request
for approval.  The final decision-making body or approving agency for the
request for approval is not required to be the accepting authority.  The
planning department for the county in which the proposed action will occur
shall be a permissible accepting authority for the final statement.



Acceptance of a required final statement shall
be a condition precedent to approval of the request and commencement of the
proposed action.  Upon acceptance or nonacceptance of the final statement, the
agency shall file notice of such determination with the office.  The office, in
turn, shall publish the determination of acceptance or nonacceptance of the
final statement pursuant to section 343-3.



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



In any acceptance or nonacceptance, the agency
shall provide the applicant with the specific findings and reasons for its
determination.  An applicant, within sixty days after nonacceptance of a final
statement by an agency, may appeal the nonacceptance to the environmental
council, which, within thirty days of receipt of the appeal, shall notify the
applicant of the council's determination.  In any affirmation or reversal of an
appealed nonacceptance, the council shall provide the applicant and agency with
specific findings and reasons for its determination.  The agency shall abide by
the council's decision.



(d)  Whenever an applicant requests approval
for a proposed action and there is a question as to which of two or more state
or county agencies with jurisdiction has the responsibility of preparing the
environmental assessment, the office, after consultation with and assistance
from the affected state or county agencies, shall determine which agency shall
prepare the assessment.



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



(f)  Whenever an action is subject to both the
National Environmental Policy Act of 1969 (Public Law 91-190) and the
requirements of this chapter, the office and agencies shall cooperate with
federal agencies to the fullest extent possible to reduce duplication between
federal and state requirements.  Such cooperation, to the fullest extent
possible, shall include joint environmental impact statements with concurrent
public review and processing at both levels of government.  Where federal law
has environmental impact statement requirements in addition to but not in
conflict with this chapter, the office and agencies shall cooperate in
fulfilling these requirements so that one document shall comply with all
applicable laws.



(g)  A statement that is accepted with respect
to a particular action shall satisfy the requirements of this chapter, and no
other statement for the proposed action shall be required. [L 1974, c 246, pt
of §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 environmental
assessments 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 nonphysical
aspects of proposal, including socio-economic consequences.  63 H. 453, 629
P.2d 1134.



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



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



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



  Participation by plaintiffs at contested case hearing did not
excuse preparation of environmental assessment.  86 H. 66, 947 P.2d 378.



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



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



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



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



  Where department of Hawaiian home lands lease was executed in
contravention of subsection (c) inasmuch as the condition precedent--acceptance
of a required final environmental impact statement--was not satisfied, the
lease 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 action
required 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 for
approval of the boundary amendment petition, was required by statute to prepare
an environmental assessment of the proposed action at the earliest practical
time.  109 H. 411, 126 P.3d 1098.



  Where the record showed that the department of transportation
did not consider whether its facilitation of the Hawaii superferry project would
probably have minimal or no significant impacts, both primary and secondary, on
the environment, its determination that the improvements to Kahului harbor were
exempt from the requirements of this chapter was erroneous as a matter of law;
the exemption thus being invalid, the environmental assessment of this section
was 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) where
developer's detention basins and drainage line was merely connected and routed
through the existing street drainage system and developer's sewage lines were
connected to the county's existing sewage lines as neither line would require
tunneling or construction beneath state or county lands. 



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



  While chapter 150A and the board's microorganism import rules
may have vested the board with exclusive authority to approve marine
biotechnology firm's proposal to import and grow genetically engineered algae
at the State's research and technology park, as the demonstration project
constituted an action that proposed the use of state land, this section plainly
and unambiguously required the preparation of an environmental assessment
before the board could approve firm's application.  118 H. 247 (App.), 188 P.3d
761.



 



Hawaii Legal Reporter Citations



 



  Decision on preparation of EIS.  79 HLR 790667.