Bill Text: HI SB1436 | 2024 | Regular Session | Introduced
Bill Title: Relating To Development Projects.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2023-12-11 - Carried over to 2024 Regular Session. [SB1436 Detail]
Download: Hawaii-2024-SB1436-Introduced.html
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THE SENATE |
S.B. NO. |
1436 |
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THIRTY-SECOND LEGISLATURE, 2023 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to Development projects.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
The legislature further finds that projects across the State have been stifled by an expansive interpretation of the Hawaii Environmental Policy Act (HEPA). In 2019, the environmental advisory council amended the implementing rules of HEPA under section 11-200.1, Hawaii Administrative Rules, to address, among other things, the problem of project segmentation, where a developer divides up a project incrementally in order to avoid having to prepare an environmental review. Under the 2019 rule, projects built solely to serve another project (e.g., drainage infrastructure needed for a residential project) or a project that will clearly be developed in multiple phases (e.g., a multi-stage highway or housing project) must be analyzed in a single environmental review as part of a "program." Thus, while this rule was intended to ensure that the impact of broad proposals or planning-level decisions are fully and properly evaluated, courts have interpreted the provision overbroadly and required developers to include, within their own environmental review, other tangential projects that developers have limited information on or no control over, projects that are speculative and not reasonably foreseeable, past actions for which HEPA's statute of limitations period has run, legislative actions, and other zoning or land use classifications that would not otherwise be statutorily triggered under HEPA. This trend will increasingly jeopardize the construction of new housing throughout the State. Amendments to HEPA are necessary to address ambiguities in the law, provide greater certainty for developers, and accelerate the delivery and supply of housing.
Accordingly, the purpose of this Act is to:
(1) Exempt affordable housing and certain qualifying housing development projects from HEPA;
(2) Establish a definition of "program" and "project" to preempt the existing definitions under section 11-200.1-2, Hawaii Administrative Rules, and narrow the existing interpretation that requires analysis of tangentially related projects;
(3) Amends the applicability and requirements section of HEPA to clarify when multiple actions must be considered in the same environmental review document for the purposes of project segmentation;
(4) Require that project opponents exhaust their administrative remedies as a prerequisite to litigation for environmental assessments and environmental impact statements; and
(5) Retroactively apply the new amendments under this Act to projects that received approval for their environmental assessment or environmental impact statement on or after August 9, 2019.
SECTION 2. Chapter 343, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§343- Housing
development projects consistent with environmental policies or long-term
environmental goals established by law; exemption. (a) New construction housing development projects
shall be exempt from the requirements of this chapter if:
(1) The
use of state or county lands or funds or the project's location within the Waikiki
area of Oahu pursuant to section 343-5, is the sole statutory trigger for
compliance with this chapter;
(2) The
project is consistent with the existing county general plan or development plan
classification that allows housing;
(3) The
project is consistent with the existing zoning code; and
(4) The
project does not require a variance for shoreline setbacks or siting in an
environmentally sensitive area, including but not limited to a flood plain,
tsunami zone, sea level rise exposure area, beach, erosion-prone area,
geologically hazardous land, estuary, fresh water, or coastal waters.
(b)
For the purposes of this section, "housing development
project" means a use consisting of:
(1) Residential
units only; or
(2) Mixed-use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use."
SECTION 3. Section 343-2, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:
""Program" means a series
of one or more projects to be carried out concurrently or in phases within a
general timeline, that may include multiple sites or geographic areas, and is undertaken
for the same shared goal or purpose. Projects
proposing similar uses do not create a presumption of having the same shared
goal or purpose where the projects can be independently implemented and one
project is not a critical functioning element of the other projects. A program may include:
(1) A
number of separate projects in a given geographic area which, if considered
singly, may have minor impacts, but if considered together, may have
significant impacts;
(2) Separate
projects having generic or common impacts;
(3) The
implementation of multiple projects over a long timeframe by the same person or
persons acting in concert; or
(4) The
implementation of a single project over a large geographic area.
Common
use, development, or funding of shared infrastructure does not create a
presumption of a program. Shared
responsibility among one or more projects for compliance with conditions of
regulatory approval imposed by the State or a local agency does not create a
presumption of a program.
"Project" means a discrete, planned undertaking that is site and time specific, has a specific goal or purpose, and has potential impact to the environment."
SECTION 4. Section 343-5, Hawaii Revised Statutes, is amended to read as follows:
"§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 the
action at the earliest practicable time to determine whether an environmental
impact statement shall be required; provided that if the agency determines,
through its judgment and experience, that an environmental impact statement is
likely to be required, the agency may choose not to prepare an environmental
assessment and instead shall prepare an environmental impact statement that
begins with the preparation of an environmental impact statement preparation
notice as provided by rules.
(c) 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;
(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;
(4) A statement shall be required if the agency finds that the proposed action may have a significant effect on the environment; and
(5) The agency shall file notice of the 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.
(d) 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.
(e)
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 require the applicant to
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 if the agency determines, through its judgment and
experience, that an environmental impact statement is likely to be required,
the agency may authorize the applicant to choose not to prepare an
environmental assessment and instead prepare an environmental impact statement
that begins with the preparation of an environmental impact statement preparation
notice as provided by rules. 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 applicant 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 the 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.
(f) 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 determining whether
an environmental assessment is required, the office, after consultation with
and assistance from the affected state or county agencies, shall determine
which agency has the responsibility for determining whether an environmental
assessment by the applicant is required, except in situations involving
secondary actions under section 343-5.5; provided that in no case shall the
office be considered the approving agency.
(g) 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.
(h) 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.
(i) 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.
(j) A group of actions shall be treated as a
single action when:
(1) The
component actions are phases or increments of a larger total program; provided
that each component action depends on and cannot be implemented independent of
the other phases or increments;
(2) An
individual action is a necessary precedent to a larger action; provided that
the development or funding of shared infrastructure does not create a
presumption that the actions should be treated as a single action;
(3) An
individual action represents a commitment to a larger action; or
(4) The actions in question are essentially identical and a single environmental assessment or environmental impact statement will adequately address the impacts of each individual action and those of the group of actions as a whole."
SECTION 5. Section 343-7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) Any judicial
proceeding, the subject of which is the determination that a statement is
required for a proposed action, shall be initiated within sixty days after the
public has been informed of such determination pursuant to section 343-3. Any judicial proceeding, the subject of which
is the determination that a statement is not required for a proposed action,
shall be initiated within thirty days after the public has been informed of
such determination pursuant to section 343-3.
The applicant shall be adjudged an aggrieved party for the purposes of
bringing judicial action under this subsection[. Others, by environmental court action, may be
adjudged aggrieved.]; provided that the contestable issues shall be
limited to those issues identified by the accepting authority as the basis for
requiring a statement. Affected agencies
and persons who provided written comments to an accepted statement during the
designated review period shall be adjudged aggrieved parties for the purpose of
bringing judicial action under this subsection; provided that for other
aggrieved parties, the contestable issues shall be limited to issues identified
and discussed in the written comments."
SECTION 6. (a) The amendments to sections 343-2 and 343-5, Hawaii Revised Statutes, made by this Act shall in no way affect the validity of any environmental assessment or environmental impact statement approved on or after August 9, 2019.
(b) Any previous regulations established by the environmental advisory council, to the extent inconsistent with these changes, shall be null and void.
(c) The Hawaii Environmental Policy Act is a procedural and informational statute, and any effects of these provisions shall not be deemed to affect a substantial right of any person.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect upon its approval and shall apply retroactively to projects that received approval for their environmental assessment or environmental impact statement on or after August 9, 2019.
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INTRODUCED BY: |
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Report Title:
Hawaii Environmental Policy Act; Environmental Impact Statements; Environmental Assessments; Affordable Housing; Project Segmentation
Description:
Exempts affordable housing and certain qualifying housing development projects from HEPA. Establishes a definition of "program" and "project" to preempt the existing definitions under section 11-200.1-2, Hawaii Administrative Rules, and narrow the existing interpretation that requires analysis of tangentially related projects. Amends the applicability and requirements section of HEPA to clarify when multiple actions must be considered in the same environmental review document for the purposes of project segmentation. Expands the requirement that project opponents must exhaust their administrative remedies as a prerequisite to litigation to apply to environmental assessments and environmental impact statements. Retroactively applies to projects that received approval for their environmental assessment or environmental impact statement on or after August 9, 2019.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
