REPORT TITLE:
Cultural Impact Statements


DESCRIPTION:
Amends the environmental impact statement law to require the
preparation of native Hawaiian cultural impact statements.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           455
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO NATIVE HAWAIIAN CULTURAL IMPACT STATEMENTS.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 343-1, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "343-1 Findings and purpose.  The legislature finds that
 
 4 the quality of humanity's environment is critical to humanity's
 
 5 well being, that humanity's activities have broad and profound
 
 6 effects upon the interrelations of all components of the
 
 7 environment, and that an environmental review process will
 
 8 integrate the review of environmental concerns with existing
 
 9 planning processes of the State and counties and alert decision
 
10 makers to significant environmental effects which may result from
 
11 the implementation of certain actions.
 
12      The legislature also finds that:
 
13      (1)  Native Hawaiian culture, including Hawaiian values of
 
14           aloha `aina (love of the land) and malama `aina (to
 
15           care for the land), play a vital role in preserving and
 
16           advancing the unique quality of life and aloha spirit
 
17           in Hawaii;
 
18      (2)  The state constitution and other laws of the State
 
19           impose on agencies a duty to promote and protect native
 

 
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 1           Hawaiian culture and the exercise thereof, and native
 
 2           Hawaiian religious beliefs and practices, and to
 
 3           maintain native Hawaiian traditional subsistence and
 
 4           native Hawaiian traditional cultural properties;
 
 5      (3)  The past failure to require native Hawaiian cultural
 
 6           impact assessments has resulted in the loss and
 
 7           destruction of many important cultural resources and
 
 8           has interfered with the exercise of native Hawaiian
 
 9           culture; and
 
10      (4)  Serious consideration of the effects of humanity's
 
11           activities on native Hawaiian culture and the exercise
 
12           thereof, native Hawaiian traditional subsistence,
 
13           native Hawaiian religious beliefs and practices, and
 
14           native Hawaiian traditional cultural properties is
 
15           necessary to ensure the continued existence and
 
16           development of native Hawaiian culture and the exercise
 
17           thereof, native Hawaiian religious beliefs and
 
18           practices, the maintenance of native Hawaiian
 
19           traditional subsistence and native Hawaiian traditional
 
20           cultural properties.
 
21      The legislature further finds that the process of reviewing
 
22 environmental and cultural effects is desirable because
 
23 environmental and cultural consciousness is enhanced, cooperation
 

 
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 1 and coordination are encouraged, and public participation during
 
 2 the review process benefits all parties involved and society as a
 
 3 whole.
 
 4      It is the purpose of this chapter to establish a system of
 
 5 environmental and cultural review which will ensure that
 
 6 environmental and cultural concerns are given appropriate
 
 7 consideration in decision making along with economic and
 
 8 technical considerations."
 
 9      SECTION 2.  Section 343-2, Hawaii Revised Statutes, is
 
10 amended as follows:
 
11      1.  By adding four new definitions to be appropriately
 
12 inserted and to read:
 
13      ""Development activity" means any activity which involves
 
14 the use of land, including the secondary impacts arising out of
 
15 the use of land on adjacent lands and natural resources such as
 
16 air, groundwater, the ocean, and submerged lands, for which a
 
17 permit or other approval is required by law to be obtained from a
 
18 state agency.
 
19      "Native Hawaiian culture" means the rights, traditions,
 
20 customs, usages, beliefs, practices, lifeways, arts, crafts, and
 
21 social institutions of native Hawaiians, including those rights,
 
22 traditions, customs, usages, beliefs, practices, lifeways, arts,
 
23 crafts, and social institutions protected under articles XII and
 

 
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 1 XVI of the state constitution, section 5 of the Admission Act of
 
 2 1959, and sections 1-1, 7-1, and 174C-101, and such other rights,
 
 3 traditions, customs, and usages which may be hereafter confirmed
 
 4 by the courts of this State concerning native Hawaiians.
 
 5      "Native Hawaiian traditional cultural properties" means
 
 6 beliefs, customs, and practices of the living Hawaiian community
 
 7 that are associated with natural resources and prehistoric or
 
 8 historic sites, which have been passed down through the
 
 9 generations, usually orally or through practices.  Properties to
 
10 which traditional cultural value is ascribed often take on a
 
11 vital significance, so that any damage to, or infringement upon
 
12 them is perceived to be deeply offensive to, and even destructive
 
13 of, the group that values them.
 
14      "Native Hawaiian traditional subsistence" means the
 
15 customary and traditional uses by native Hawaiians, including
 
16 members of Hawaiian `ohana, of wild and cultivated renewable
 
17 resources for direct personal or family consumption as food,
 
18 shelter, fuel, clothing, tools, transportation, culture,
 
19 religion, and medicine; for barter or sharing; for personal or
 
20 family consumption; and for customary trade."
 
21      2.  By amending the definition of "acceptance" to read:
 
22      ""Acceptance" means a formal determination that the document
 
23 required to be filed pursuant to section 343-5 fulfills the
 

 
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 1 definition of an environmental impact statement, adequately
 
 2 describes identifiable [environmental] direct and indirect
 
 3 impacts[,] on the environment, native Hawaiian culture and the
 
 4 exercise thereof, native Hawaiian religious beliefs and
 
 5 practices, native Hawaiian traditional subsistence activities,
 
 6 and native Hawaiian traditional cultural properties, and
 
 7 satisfactorily responds to comments received during the review of
 
 8 the statement."
 
 9      3.  By amending the definitions of "environmental impact
 
10 statement" or "statement" and "finding of no significant impact"
 
11 to read:
 
12      ""Environmental impact statement" or "statement" means an
 
13 informational document prepared in compliance with the rules
 
14 adopted under section 343-6 and which discloses [the]:
 
15      (1)  The environmental effects of a proposed action[,
 
16           effects];
 
17      (2)  Effects of a proposed action on the economic and social
 
18           welfare of the community and State[, effects];
 
19      (3)  Effects of a proposed action on:
 
20           (A)  Native Hawaiian culture and the exercise thereof;
 
21           (B)  Native Hawaiian religious beliefs and practices;
 
22           (C)  Native Hawaiian traditional subsistence; and
 
23           (D)  Native Hawaiian traditional cultural properties;
 

 
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 1      (4)  Effects of the economic activities arising out of the
 
 2           proposed action[, measures];
 
 3      (5)  Measures proposed to minimize adverse effects[,]; and
 
 4           [alternatives]
 
 5      (6)  Alternatives to the action and their [environmental]
 
 6           effects[.] on the environment, native Hawaiian culture
 
 7           and the exercise thereof, native Hawaiian religious
 
 8           beliefs and practices, native Hawaiian traditional
 
 9           subsistence, and native Hawaiian traditional cultural
 
10           properties.
 
11      The initial statement filed for public review shall be
 
12 referred to as the draft statement and shall be distinguished
 
13 from the final statement which is the document that has
 
14 incorporated the public's comments and the responses to those
 
15 comments.  The final statement is the document that shall be
 
16 evaluated for acceptability by the respective accepting
 
17 authority.
 
18      "Finding of no significant impact" means a determination
 
19 based on an environmental assessment that the subject action will
 
20 not have a significant effect on the environment, native Hawaiian
 
21 culture and the exercise thereof, native Hawaiian religious
 
22 beliefs and practices, native Hawaiian traditional subsistence,
 
23 and native Hawaiian traditional cultural properties and,
 

 
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 1 therefore, will not require the preparation of an environmental
 
 2 impact statement."
 
 3      4.  By amending the definition of "significant effect" to
 
 4 read:
 
 5      ""Significant effect" means the sum of effects on the
 
 6 quality of the environment, including actions that irrevocably
 
 7 commit a natural resource, curtail the range of beneficial uses
 
 8 of the environment, are contrary to the State's environmental
 
 9 policies or long-term environmental goals as established by law,
 
10 affect native Hawaiian culture and the exercise thereof, native
 
11 Hawaiian religious beliefs and practices, native Hawaiian
 
12 traditional subsistence, and native Hawaiian traditional cultural
 
13 properties, or [adversely] affect the economic or social
 
14 welfare."
 
15      SECTION 3.  Section 343-5, Hawaii Revised Statutes, is
 
16 amended by amending subsections (a), (b), and (c) to read as
 
17 follows:
 
18      "(a)  Except as otherwise provided, an environmental
 
19 assessment shall be required for actions which:
 
20      (1)  Propose the use of state or county lands or the use of
 
21           state or county funds, other than funds to be used for
 
22           feasibility or planning studies for possible future
 
23           programs or projects which the agency has not approved,
 

 
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 1           adopted, or funded, or funds to be used for the
 
 2           acquisition of unimproved real property; provided that
 
 3           the agency shall consider environmental and cultural
 
 4           factors and available alternatives in its feasibility
 
 5           or planning studies;
 
 6      (2)  Propose any use within any land classified as
 
 7           conservation district by the state land use commission
 
 8           under chapter 205;
 
 9      (3)  Propose any use within the shoreline area as defined in
 
10           section 205A-41;
 
11      (4)  Propose any use within any historic site as designated
 
12           in the National Register or Hawaii Register as provided
 
13           for in the Historic Preservation Act of 1966, Public
 
14           Law 89-665, or chapter 6E;
 
15      (5)  Propose any use within the Waikiki area of Oahu, the
 
16           boundaries of which are delineated in the land use
 
17           ordinance as amended, establishing the "Waikiki Special
 
18           District";
 
19      (6)  Propose any amendments to existing county general plans
 
20           where such amendment would result in designations other
 
21           than agriculture, conservation, or preservation, except
 
22           actions proposing any new county general plan or
 
23           amendments to any existing county general plan
 

 
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 1           initiated by a county;
 
 2      (7)  Propose any reclassification of any land classified as
 
 3           conservation district by the state land use commission
 
 4           under chapter 205; [and]
 
 5 [[](8)[]] Propose the construction of new, or the expansion or
 
 6           modification of existing helicopter facilities within
 
 7           the State which by way of their activities may affect
 
 8           any land classified as conservation district by the
 
 9           state land use commission under chapter 205; the
 
10           shoreline area as defined in section 205A-41; [or,] any
 
11           site of significance to native Hawaiian culture or the
 
12           exercise thereof, native Hawaiian religious beliefs and
 
13           practices, native Hawaiian traditional subsistence, and
 
14           native Hawaiian traditional cultural properties; any
 
15           historic site as designated in the National Register or
 
16           Hawaii Register as provided for in the Historic
 
17           Preservation Act of 1966, Public Law 89-665, or chapter
 
18           6E; or, until the statewide historic places inventory
 
19           is completed, any historic site found by a field
 
20           reconnaissance of the area affected by the helicopter
 
21           facility and which is under consideration for placement
 
22           on the National Register or the Hawaii Register of
 
23           Historic Places[.]; and
 

 
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 1      (9)  Propose any use that may have a direct or indirect
 
 2           effect on native Hawaiian culture or the exercise
 
 3           thereof, native Hawaiian religious beliefs and
 
 4           practices, native Hawaiian traditional subsistence, or
 
 5           native Hawaiian traditional cultural properties.
 
 6      (b)  Whenever an agency proposes an action in subsection
 
 7 (a), other than feasibility or planning studies for possible
 
 8 future programs or projects which the agency has not approved,
 
 9 adopted, or funded, or other than the use of state or county
 
10 funds for the acquisition of unimproved real property, which is
 
11 not a specific type of action declared exempt under section
 
12 343-6, that agency shall prepare an environmental assessment for
 
13 such action at the earliest practicable time to determine whether
 
14 an environmental impact statement shall be required.  For
 
15 environmental assessments for which a finding of no significant
 
16 impact is anticipated, a draft environmental assessment shall be
 
17 made available for public review and comment for a period of
 
18 thirty days.  The office shall inform the public of the
 
19 availability of the draft environmental assessment for public
 
20 review and comments pursuant to section 343-3.  The agency shall
 
21 respond in writing to comments received during the review and
 
22 prepare a final environmental assessment to determine whether an
 
23 environmental impact statement shall be required.  A statement
 

 
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 1 shall be required if the agency finds that the proposed action
 
 2 may have a significant effect on the environment[.] or native
 
 3 Hawaiian culture or the exercise thereof.  The agency shall file
 
 4 notice of such determination with the office which, in turn,
 
 5 shall publish the agency's determination for the public's
 
 6 information pursuant to section 343-3.  The draft and final
 
 7 statements, if required, shall be prepared by the agency and
 
 8 submitted to the office.  The draft statement shall be made
 
 9 available for public review and comment through the office for a
 
10 period of forty-five days.  The office shall inform the public of
 
11 the availability of the draft statement for public review and
 
12 comments pursuant to section 343-3.  The agency shall respond in
 
13 writing to comments received during the review and prepare a
 
14 final statement.  The office, when requested by the agency, may
 
15 make a recommendation as to the acceptability of the final
 
16 statement.  The final authority to accept a final statement shall
 
17 rest with:
 
18      (1)  The governor, or the governor's authorized
 
19           representative, whenever an action proposes the use of
 
20           state lands or the use of state funds or whenever a
 
21           state agency proposes an action within the categories
 
22           in subsection (a); or
 
23      (2)  The mayor, or the mayor's authorized representative, of
 

 
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 1           the respective county whenever an action proposes only
 
 2           the use of county lands or county funds.
 
 3      Acceptance of a required final statement shall be a
 
 4 condition precedent to implementation of the proposed action.
 
 5 Upon acceptance or nonacceptance of the final statement, the
 
 6 governor or mayor, or the governor's or mayor's authorized
 
 7 representative, shall file notice of such determination with the
 
 8 office.  The office, in turn, shall publish the determination of
 
 9 acceptance or nonacceptance pursuant to section 343-3.
 
10      (c)  Whenever an applicant proposes an action specified by
 
11 subsection (a) which requires approval of an agency, and which is
 
12 not a specific type of action declared exempt under section
 
13 343-6, the agency receiving the request for approval shall
 
14 prepare an environmental assessment of such proposed action at
 
15 the earliest practicable time to determine whether an
 
16 environmental impact statement shall be required.  For
 
17 environmental assessments for which a finding of no significant
 
18 impact is anticipated, a draft environmental assessment shall be
 
19 made available for public review and comment for a period of
 
20 thirty days.  The office shall inform the public of the
 
21 availability of the draft environmental assessment for public
 
22 review and comments pursuant to section 343-3.  The applicant
 
23 shall respond in writing to comments received during the review
 

 
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 1 and the agency shall prepare a final environmental assessment to
 
 2 determine whether an environmental impact statement shall be
 
 3 required.  A statement shall be required if the agency finds that
 
 4 the proposed action may have a significant effect on the
 
 5 environment[.] or native Hawaiian culture or the exercise
 
 6 thereof.  The agency shall file notice of such determination with
 
 7 the office which, in turn, shall publish the agency's
 
 8 determination for the public's information pursuant to section
 
 9 343-3.  The draft and final statements, if required, shall be
 
10 prepared by the applicant, who shall file these statements with
 
11 the office.  The draft statement shall be made available for
 
12 public review and comments through the office for a period of
 
13 forty-five days.  The office shall inform the public of the
 
14 availability of the draft statement for public review and
 
15 comments pursuant to section 343-3.  The applicant shall respond
 
16 in writing to comments received during the review and prepare a
 
17 final statement.  The office, when requested by the applicant or
 
18 agency, may make a recommendation as to the acceptability of the
 
19 final statement.  The authority to accept a final statement shall
 
20 rest with the agency receiving the request for approval.
 
21 Acceptance of a required final statement shall be a condition
 
22 precedent to approval of the request and commencement of proposed
 
23 action.  Upon acceptance or nonacceptance of the final statement,
 

 
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 1 the agency shall file notice of such determination with the
 
 2 office.  The office, in turn, shall publish the determination of
 
 3 acceptance or nonacceptance of the final statement pursuant to
 
 4 section 343-3.  The agency receiving the request, within thirty
 
 5 days of receipt of the final statement, shall notify the
 
 6 applicant and the office of the acceptance or nonacceptance of
 
 7 the final statement.  The final statement shall be deemed to be
 
 8 accepted if the agency fails to accept or not accept the final
 
 9 statement within thirty days after receipt of the final
 
10 statement; provided that the thirty-day period may be extended at
 
11 the request of the applicant for a period not to exceed fifteen
 
12 days.
 
13      In any acceptance or nonacceptance, the agency shall provide
 
14 the applicant with the specific findings and reasons for its
 
15 determination.  An applicant, within sixty days after
 
16 nonacceptance of a final statement by an agency, may appeal the
 
17 nonacceptance to the environmental council, which, within thirty
 
18 days of receipt of the appeal, shall notify the applicant of the
 
19 council's determination.  In any affirmation or reversal of an
 
20 appealed nonacceptance, the council shall provide the applicant
 
21 and agency with specific findings and reasons for its
 
22 determination.  The agency shall abide by the council's
 
23 decision."
 

 
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 1      SECTION 4.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 5.  This Act shall take effect on July 1, 1999.
 
 4 
 
 5                              INTRODUCED BY:______________________