Report Title:

Environmental Impact Statements; Accepting Agency

Description:

Clarifies that the accepting agency or authority for an environmental impact statement is not required to be the approving agency for the permit or approval. Requires an environmental assessment for proposed wastewater facilities except individual wastewater systems, waste-to-energy facilities, landfills, oil refineries, and power generating facilities. (SD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

1294

TWENTY-SECOND LEGISLATURE, 2003

S.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to environmental impact statements.

 

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

SECTION 1. The legislature finds that environmental assessments and impact statements prepared pursuant to chapter 343, Hawaii Revised Statutes, disclose the environmental, social, cultural, and economic effects of future development to the public and decision-makers, and provide an excellent basis for making informed decisions on projects. Accordingly, it is in the public interest to have these informational documents processed and approved by the most qualified agency.

For non-government projects, referred to as "applicant actions", the authority to require and accept a final statement rests with the agency receiving the request for approval. "Acceptance" means a formal determination of acceptability that the document required to be filed pursuant to chapter 343, Hawaii Revised Statutes, fulfills the definitions and requirements of an environmental impact statement. Acceptance does not mean that the action is environmentally sound or unsound, it means only that the document complies with chapter 343, Hawaii Revised Statutes, and the applicable administrative rules of the department of health.

The legislature further finds that these informational documents are highly technical in nature and the planning departments of the various counties often are best suited to oversee and accept these documents since they have the special expertise and access to information to ensure that the documents meet the statutory requirements of chapter 343, Hawaii Revised Statutes, and rules of the department of health.

Under the present environmental impact review process of the State, there is uncertainty whether the respective planning departments can act as the "accepting authority" for an environmental impact statement when they are not the final decision making body for the relevant approval. In many instances the planning department does not issue the final approval, but instead receives and processes the applications, and issues recommendations to the final decision making entity (e.g., county council or planning commission).

While the practice for many years has been to allow the planning department to act as the accepting authority which conforms with the department of health's administrative rules, the lack of clarity in chapter 343, Hawaii Revised Statutes, has led to litigation and created uncertainty in the planning process.

The purpose of this Act is to:

(1) Mitigate problems related to environmental assessments and impact statements by specifically authorizing the respective planning departments to process and accept such informational documents; and

(2) Close loopholes in the review process by including proposals for any:

(A) Wastewater facility, except an individual wastewater system;

(B) Waste-to-energy facility;

(B) Landfill;

(C) Oil refinery; or

(D) Power-generating facility;

in the list of proposals for which an environmental assessment is required.

SECTION 2. Section 343-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Power-generating facility" means a new electricity-generating facility or an expansion in generating capacity of an existing electricity-generating facility where the incremental electrical output rating of the new equipment exceeds 5.0 megawatts."

SECTION 3. Section 343-5, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:

"(a) Except as otherwise provided, an environmental assessment shall be required for actions [which:] 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 [which] 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;

(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 [the] 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 [such] 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; [and]

[[](8)[]] Propose the construction of new[,] or the expansion or modification of existing helicopter facilities within the State, which, by way of their activities, may affect any land classified as a conservation district by the state land use commission under chapter 205; [the] a shoreline area as defined in section 205A-41; or[,] 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 found by a field reconnaissance of the area affected by the helicopter facility and which is under consideration for placement on the National Register or the Hawaii Register of Historic Places[.]; and

(9) Propose any:

(1) Wastewater facility, except an individual wastewater system;

(2) Waste-to-energy facility;

(3) Landfill;

(4) Oil refinery; or

(5) 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 [which] 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, which is not a specific type of action declared exempt under section 343-6, that agency shall prepare an environmental assessment for such action at the earliest practicable time to determine whether an environmental impact statement shall be required. For environmental assessments for which a finding of no significant impact is anticipated, a draft environmental assessment shall be made available for public review and comment for a period of thirty days. The office shall inform the public of the availability of the draft environmental assessment for public review and comments pursuant to section 343-3. 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. 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 such determination with the office [which, in turn, shall publish the agency’s]. 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 make a final determination. 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 comments 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. The final authority to accept a final statement shall rest with:

(1) 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

(2) 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) [which] that requires approval of an agency, and [which] 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 [such] the proposed action at the earliest practicable time to determine whether an environmental impact statement shall be required. The final decision-making body or approving agency for the request for approval is not required to be the accepting agency. For environmental assessments for which a finding of no significant impact is anticipated, a draft environmental assessment shall be made available for public review and comment for a period of thirty days. The office shall inform the public of the availability of the draft environmental assessment for public review and comments pursuant to section 343-3.

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 [such] 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 comments 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 comments 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 action will occur shall be a permissible accepting authority for the final statement. In the event that an agency desires to be the accepting authority and a dispute arises, the office, after consultation with the agencies involved, shall determine which agency shall be authorized to prepare the assessment and accept the final statement. Acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of 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."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.