Hawaii Bar Journal
February 2008 #1.
Hawaii's Environmental Impact Statement Law: Procedure And Practice
Hawaii State Bar JournalFebruary 2008Hawaii's Environmental Impact Statement Law: Procedure And Practiceby Lisa A. Bail and Lisa W. Mungerby Lisa A. Bail
and Lisa W. Munger
The purpose of the Hawaii Environmental Impact Statement ("EIS") Law is "to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision-making along with economic and technical considerations."1
The requirements of the Hawaii EIS law are found in Chapters 343 and 344 of Hawaii Revised Statutes and Title 11, Chapters 200 and 201 of the Hawaii Administrative Rules, Department of Health. The Office of Environmental Quality Control ("OEQC") administers the Hawaii EIS law and publishes a twice monthly bulletin, The Environmental Notice, which contains information regarding proposed actions, the availability of Environmental Assessments ("EAs") and EISs for public review, and agency determinations.2 The OEQC also publishes a comprehensive guide regarding its environmental review process entitled A Guidebook for the Hawaii State Environmental Review Process.3 The Environmental Council ("Council") is the rulemaking body.4
Actions Subject to Hawaii Law
The Hawaii EIS Law applies to certain types of actions. "Action" is defined as "any program or project to be initiated by any agency or applicant."5 Section 343-5(a)(1) requires an Environmental Assessment for actions which "propose the use of state or county lands or the use of state or county funds" with limited exceptions.6 The use of such lands or funds triggers the majority of actions requiring an Environmental Assessment. Other categories of actions which require an Environmental Assessment are actions which (a) propose any use within the conservation district, the shoreline area, a designated historic site, or the Waikiki Special District, (b) propose any amendments to existing county general plans where such amendment would result in designations other than agriculture, conservation, or preservation, (c) propose any reclassification of land classified as conservation district, and (d) propose the construction, expansion or modification of new or existing helicopter facilities which by way of their activities may affect any land in the conservation district, shoreline area or historic site as defined in the statute.7 In 2005, the statute was amended to include proposed wastewater treatment units, waste-to-energy facilities, landfills, oil refineries, and power-generating facilities as actions requiring an Environmental Assessment.
Certain classes of actions are generally exempted from the EIS process because they are likely to have minimal or no significant effect on the environment.8 The Hawaii Administrative Rules define several exempt categories of actions.9 Any agency may request that new exemptions be added to the list, or that existing exemptions be deleted.10 In addition, each agency may develop its own list of actions which fall within the exemptions.11 These lists must be consistent with the letter and intent of the Hawaii Administrative Rules and Chapter 343, and are to be submitted to the Council for review and concurrence. The Governor also may exempt any affected action or program from compliance with the Hawaii EIS Law in the event that the Governor declares a state of emergency.12 All exemptions are inapplicable, however, when the cumulative impact of planned successive actions of the same type, in the same place, over time, is significant.13 Additionally, an action which normally has an insignificant impact on the environment may be significant if it is in a particularly sensitive environment and therefore subject to the EIS process.
An agency must determine that the action will probably have minimal or no significant effects on the environment when it considers an exemption. Its consideration must include not only the direct site of impact, but also other impacts that are "incident to and a consequence of the primary impact," including secondary impacts.14
Preparation of the Environmental Assessment
The first step in the EIS process is the preparation of an Environmental Assessment ("EA") to determine whether the proposed action will require the preparation of an EIS. When an agency proposes any action subject to the Hawaii EIS law, the agency prepares an EA at the earliest practicable time to determine whether an EIS is required.15 When a nonagency applicant proposes an action requiring agency approval, the agency receiving the request for approval is required to prepare the EA based upon information provided by the nonagency applicant.16
An important step in the preparation of the EA is consultation with agencies having jurisdiction or expertise in the area of the proposed action, as well as consultation with citizen groups and individuals.17 The applicant provides the agency whatever information the agency deems necessary to facilitate the assessment process.18 For all agency or applicant actions, the proposing or approving agency must analyze alternatives in the EA.19
The contents of an EA produced for either an agency or applicant-initiated action are similar. The assessment identifies and sets forth (1) the applicant or proposing agency; (2) the approving agency; (3) the agencies, citizen groups, and individuals consulted in making the assessment; (4) a general description of the action's technical, economic, social, and environmental characteristics; (5) a summary description of the affected environment, including site maps; (6) a summary of impacts and alternatives considered; (7) proposed mitigation measures; (8) the agency's determination or, for draft EAs, an anticipated determination; (9) findings and reasons supporting the agency's determination or anticipated determination; (10) agencies to be consulted in the preparation of an EIS, if an EIS is to be prepared; (11) a list of all required permits and approvals; and (12) written comments and responses to comments.20 An EA produced for agency actions must also include an identification of potential environmental impacts, an evaluation of the potential significance of each impact, and provision for the detailed study of significant impacts.21
After the Draft EA is complete, it is submitted to the OEQC and notice is published in The Environmental Notice bulletin. The public review and comment period runs for thirty days from the date of publication. The applicant or proposing agency must respond in writing to all comments, incorporate comments as appropriate and append all comments and responses to the Final EA. The applicant or agency need not consider or respond to comments not received or postmarked within thirty days of publication by OEQC.22
Once the Final EA is complete, the agency must then issue either a "finding of no significant impact" determination ("FONSI")23 or an environmental impact statement preparation notice. An EIS will be required if the agency finds that the proposed action "may have a significant effect on the environment."24 If an EIS is required, the agency prescribes the information necessary in the EIS to ensure adequate discussion and disclosure of environmental impacts.
If the determination is that an EIS is not required, a FONSI is issued by the agency. Publication of a FONSI initiates a thirty-day review and comment period during which that determination may be challenged through litigation.25 If the determination is not challenged within this period, the proposed action may proceed without preparation of an EIS. Very few of all proposed actions subject to the Hawaii EIS Law ultimately result in preparation of an EIS.
Determination of Significance