hawaii environmental law compliance course 08-27.ppt.pdf · hawaii environmental law compliance...

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Speakers 1: Lisa Bail, Esq. and Lisa Woods Munger, Esq. of Goodsill Anderson Quinn & Stifel LLP Page

Law Seminars International | NEPA & Hawai'i EIS Law | 8/27/07 in Honolulu, HI

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HAWAII ENVIRONMENTALLAW COMPLIANCE COURSE

Environmental Impact Statements


• Introduction• Relationship to the Federal NEPA• Actions Subject to Hawaii Law• Exemptions• Preparation of the Environmental Assessment• Determination of Significance• Significance Criteria• Preparation of the Environmental Impact Statement

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• Draft EIS Content Requirements• Final EIS Content Requirements• Supplemental EIS• Public Participation• Role of the Environmental Council• Appeals• Administrative Appeals• Judicial Review

Introduction

• Purpose (H.R.S. § 343-1)– To establish a system of environmental review

which will ensure that environmental concernsare given appropriate consideration in decision-making along with economic and technicalconsiderations.

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Administration

• Office of Environmental Quality Control (OEQC)235 S. Beretania Street #702

Honolulu, HI 96813Phone 586-4185

Fax 586-4186• OEQC Web site

– http://www.state.hi.us/health/oeqc/index.html• “The Environmental Notice”

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Administration

• The SECRET of compliance:– A Guidebook for the Hawaii State

Environmental Review Process.

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Relationship to the Federal NEPA

• NEPA applies to “major Federal actionssignificantly affecting the quality of thehuman environment.”

• The Hawaii EIS Law– Applicability– Scope

Relationship to the Federal NEPA

• Actions subject to both federal NEPA and theHawaii EIS Law– Cooperation between OEQC and federal agencies

mandated to reduce duplication of federal and staterequirements. §HRS 345-5(f)

– Applicant/agency required to notify responsible federalagency.

– Joint environmental impact statements• concurrent public review and processing

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CITIZEN’S SUITS

• Makua Valley

CITIZEN’S SUITS

• Wal-Mart Keeaumoku(filed 12/5/02)

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CITIZEN’S SUITS

• H-3

CITIZEN’S SUITS

• William M. KeckObservatoryOutrigger Telescopes

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CITIZEN’S SUITS

• Hawaii TourismAuthority

Actions Subject to Hawaii Law

• “Action” (HRS §342-2)– Any program or project to be initiated by any agency or

applicant.

• “Applicant” (HRS §342-2)– Any person who, pursuant to statute, ordinance, or rule,

officially requests approval for a proposed action.

• The actions governed by the Hawaii EIS Law,therefore, are those which require approval of anagency prior to proceeding with the action.

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• use of state or county lands- Hawaii homelands are considered “state lands”

• use of state or county funds• uses within

– any land classified as conservation district– shoreline area– designated historic site– Waikiki area of Oahu

• any amendments to existing county general plans where suchamendment would result in designations other than agriculture,conservation, or preservation


• any reclassification of land classified as conservationdistrict

• construction, expansion or modification of new or existinghelicopter facilities.

• Private party’s petition to utilize State land, includingconservation land– State agency may require an EIS from the private party– the State agency may incorporate any or all of that EIS in any EIS

required of the agency itself.

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• Non-county initiated actions which propose amendmentsor changes to a county’s planning documents if thosechanges would result in a land use designation other thanagriculture, conservation or preservation.

• Subdivision proposal• Issuance of a building permit.• Land Use Commission reclassification of conservation

lands for other uses.• Applications for use of areas for development of

geothermal resources.


Additional activities requiring environmentalreview incorporated by the May 2004Amendments to HRS 343-2 and 343-5(a)(9):

• Proposal of a wastewater facility• Proposal of a waste-to-energy facility• Proposal of a landfill• Proposal of an oil refinery• Proposal of a power-generating facility

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Exemptions (HAR §11-200-8)

• Operation, repair or maintenance of existing structures– negligible or no expansion or change of use.

• Replacement or reconstruction of existing structures– if substantially the same purpose, density, height and dimensions

as the structures replaced.

• Construction, location and alteration of single, small newfacilities or structures.

• Minor alterations in the conditions of land, water or vegetation.


• Basic data collection, research, experimentalmanagement and resource evaluation activities.

• Construction of minor structures accessory toexisting facilities.

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• Interior alterations.• Demolition of structures.• Zoning variances, except shoreline setback

variances.• continued administrative activities such as

purchase of supplies and personnel related actions• Hawaiian fishponds• Purchase of Waiahole Ditch

Exemptions

• The exception to the exemptions:– Significant cumulative impact of planned

successive actions in the same place, over time.– Significant impact on a particularly sensitive

environment.

• The definition of “significant effect” issubjective.– McGlone v. Inaba, 64 Haw. 27, 636 P.2d 158 (1981).

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Preparation of the EnvironmentalAssessment

• Will the proposed action require preparation ofan EIS?– Agency proposed actions (HAR §11-200-9(a))– Applicant proposed actions (HAR §11-200-9(b))

• EIS required if the proposed action “may havea significant effect on the environment.”


• Content– the applicant or proposing agency– the approving agency– the agencies, citizen groups, and individuals

consulted in making the assessment– a general description of the action’s technical,

economic, social, and environmentalcharacteristics

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• Content– a summary description of the affected

environment, including site maps– a summary of impacts and alternatives

considered– proposed mitigation measures– agency determination or, for draft EAs, an

anticipated determination


• Content– findings and reasons supporting the agency

determination or anticipated determination– agencies to be consulted in the preparation of an

EIS, if an EIS is to be prepared– a list of all required permits and approvals– written comments and responses to comments

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EA Procedure

• Draft EA is completed• submitted to the OEQC• notice is published in The Environmental

Notice• 30 day public review and comment period

EA Procedure

• The applicant or proposing agency mustrespond in writing to all comments,incorporate comments as appropriate andappend all comments and responses to theFinal EA.

• Final EA is completed

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EA Procedure

• Agency issue either a FONSI or an environmentalimpact statement preparation notice.

• The final determination will require an EIS if theagency finds that the proposed action "may have asignificant effect on the environment.”

• 30 day review and comment period followingFONSI

• determination may be challenged through litigation.• If not challenged, the proposed action may proceed

without preparation of an EIS.

EA Procedure

• Very few of all proposed actions subject tothe Hawaii EIS Law ultimately result inpreparation of an EIS.– Although 137 Draft EAs were submitted to

OEQC in 1999, only 11 Final EISs wereprocessed.

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Determination of Significance

• The agency must consider “the sum of effectson the quality of the environment”– whether the action irrevocably commits any natural

or cultural resource– whether the action curtails the range of beneficial

uses of the environment– whether the action is contrary to the State’s

environmental policies or long-term environmentalgoals and guidelines.

Significance Criteria

– adverse effect on the welfare or cultural practicesof the community or State

– Environmental Council guidelines

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– substantial effect upon the economic or socialwelfare of the community or the State

– substantially effects upon public health– substantial secondary impacts– substantial degradation of environmental

quality– cumulative considerable effect upon the

environment


– substantial effect upon rare, threatened orendangered species or its habitat

– detrimental effect on air or water quality orambient noise level

– effect upon environmentally sensitive area– Substantially affects scenic vistas and

viewplanes– Requires substantial energy consumption

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Preparation of the EnvironmentalImpact Statement

• Identify environmental concerns• Obtain various relevant data• Conduct necessary studies• Receive public and agency input• Evaluate alternatives• Propose measures for minimizing adverse

impacts.

Draft EIS Content Requirements

• Detailed map of the site of the proposed action as well as arelated regional map

• Statement of objectives• General description of the proposed action’s technical,

economic, social and environmental characteristics• Use of public funds or lands for the action• Phasing and timing of the action• Summary technical data, including diagrams• Historical perspective.

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• Known alternatives (regardless of cost).• Environmental setting.• Statement of the relationship of the proposed

action to land use plans, policies and controlsfor the affected area.

• Relationship between short-term uses of theenvironment and the maintenance andenhancement of long-term productivity.


• All irreversible and irretrievable commitments ofresources.

• Probable adverse environmental effects.• Mitigation measures.• Summary of unresolved issues.• Identify the person, firm or agency preparing the EIS,

as well as contain a list identifying all governmentalagencies, other organizations and private individualsconsulted in preparing the statement.

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Public Participation

• Comments on a Draft EIS– received for forty-five days from the date of notice of

availability of the Draft EIS.• The proposing agency or applicant must then

respond to the written comments from the public.

Final EIS Content Requirements

• The Final EIS must contain the responses ofthe applicant or proposing agency tosignificant environmental points raised inthe process.

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Acceptability

• Acceptability of a Final EIS– whether it fulfills all the procedural and

substantive requirements of an EIS– adequately discloses and describes all

identifiable environmental impacts– satisfactorily responds to comments received

during the review period.

Acceptability

• Upon acceptance or nonacceptance of theFinal EIS, the approving authority oragency must file a notice with the OEQCand the proposing agency or applicant.

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Supplemental EIS

• Required whenever the proposed action hasbeen modified to the extent that new ordifferent environmental impacts areanticipated.

• The content requirements of a SupplementalEIS are the same as for the EIS.

Role of the Environmental Council

• Issues rules• Hears appeals from agency determinations

as to the adequacy of an EIS.• Composed of fifteen members appointed by

the Governor.

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Appeals

• Judicial review of contested cases• Appeals may be filed by

– any person aggrieved by a final decision andorder in a contested case or by a preliminaryruling of the nature that deferral of reviewpending entry of a subsequent final decisionwould deprive appellant of adequate relief.

Administrative Appeals

• Applicant may appeal the nonacceptance tothe Council.

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Judicial Review

• Life of the Land v. Ariyoshi, 59 Haw. at164-65, 577 P.2d at 1121 (1978).

• “Rule of reason.”

hawaii environmental law compliance course 08-27.ppt.pdf · hawaii environmental law compliance...

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