Hawaii-2010-SB2185-Introduced

PART I.

SECTION 1. Chapter 341, Hawaii Revised Statutes, is amended to read as follows:

"[[]CHAPTER 341[]]

ENVIRONMENTAL QUALITY CONTROL

[[]§341-1[]] Findings and purpose. The legislature finds that the quality of the environment is as important to the welfare of the people of Hawaii as is the economy of the State. The legislature further finds that the determination of an optimum balance between economic development and environmental quality deserves the most thoughtful consideration, and that the maintenance of the optimum quality of the environment deserves the most intensive care.

The purpose of this chapter is to stimulate, expand, and coordinate efforts to determine and maintain the optimum quality of the environment of the State.

§341-2 Definitions. As used in this chapter, unless the context otherwise requires:

"Center" means the University of Hawaii environmental center established in section [[]304A-1551[]].

"Council" means the environmental council established in section 341-3(c).

"Director" means the director of the office of environmental quality control.

"Office" means the office of environmental quality control established in section 341-3(a).

"University" means the University of Hawaii.

§341-3 Office of environmental quality control; environmental center; environmental council. (a) There is created an office of environmental quality control that shall be headed by a single executive to be known as the director of the office of environmental quality control who shall be appointed by the governor as provided in section 26-34. This office shall implement this chapter and shall be placed within the department of [~~health~~] land and natural resources for administrative purposes. The office shall perform [~~its~~] the duties prescribed to it under chapter 343 [~~and shall serve the governor in an advisory capacity on all matters relating to environmental quality control~~].

(b) The environmental center within the University of Hawaii shall be as established under section [[]304A-1551[]].

(c) There is created an environmental council not to exceed [~~fifteen~~] seven members. [~~Except for the director, members~~] The council shall include one member from each county and no more than three at-large members. The director may not serve as a member of the council. Members of the environmental council shall be appointed by the governor as provided in section 26-34; provided that two of the seven members shall be appointed from a list of persons nominated by the speaker of the house of representatives and two members shall be appointed from a list of persons nominated by the senate president. The council shall be attached to the [~~department of health~~] office for administrative purposes. [~~Except for the director, the~~] The term of each member shall be four years; provided that, of the members initially appointed, [~~five~~] three members shall serve for four years, [~~five~~] two members shall serve for three years, and the remaining [~~four~~] two members shall serve for two years. Vacancies shall be filled for the remainder of any unexpired term in the same manner as original appointments. [~~The director shall be an ex officio voting member of the council.~~] The council chairperson shall be elected by the council from among the [~~appointed~~] members of the council.

Members shall be appointed to [~~assure~~] ensure a broad and balanced representation of educational, business, and environmentally pertinent disciplines and professions[, such as the natural and social sciences, the humanities, architecture, engineering, environmental consulting, public health, and planning; educational and research institutions with environmental competence; agriculture, real estate, visitor industry, construction, media, and voluntary community and environmental groups]. The members of the council shall serve without compensation but shall be reimbursed for expenses, including travel expenses, incurred in the discharge of their duties.

§341-4 Powers and duties of the director. (a) The director shall have [~~such~~] powers delegated by the governor as are necessary to coordinate and, when requested by the governor, to direct, pursuant to chapter 91, all state governmental agencies in matters concerning environmental quality.

(b) To further the objective of subsection (a), the director shall:

(1) [~~Direct~~] Through the council, direct the attention of [~~the university community~~] state agencies and the residents of the State [~~in general~~] to [~~ecological and~~] environmental problems [~~through~~], in cooperation with the center [~~and the council, respectively, and through public education programs~~];

(2) Conduct research or arrange for [~~the conduct of~~] research through contractual relations with the center, state agencies, or other persons with competence in [~~the field of ecology and~~] environmental quality;

(3) [~~Encourage~~] Through the council, encourage public acceptance of proposed legislative and administrative actions concerning [~~ecology and~~] environmental quality, and receive notice of any private or public complaints concerning [~~ecology and~~] environmental quality [~~through the council~~];

(4) Recommend to the council programs for long-range implementation of environmental quality control;

(5) Submit [~~direct~~] to the council for its review and recommendation to the governor [~~and to the legislature such~~] legislative bills and administrative policies, objectives, and actions, as are necessary to preserve and enhance the environmental quality of the State;

(6) Conduct regular outreach and training for state and county agencies on the environmental review process and conduct other public educational programs; [~~and~~]

(7) Offer advice and assistance to private industry, governmental agencies, non-governmental organizations, state residents, or other persons upon request[.];

(8) Obtain advice from the environmental council on any matters concerning environmental quality;

(9) Perform budgeting and hiring in a manner that ensures adequate funding and staff support for the council to carry out its duties under this chapter and chapter 343; and

(10) With the cooperation of private industry, governmental agencies, non-governmental organizations, state residents, and other interested persons in fulfilling the requirements of this subsection, conduct annual statewide workshops and publish an annual state environmental review guidebook or supplement to assist persons in complying with this chapter, chapter 343, and administrative rules adopted thereunder; provided that workshops, guidebooks, and supplements shall include:

(A) Assistance for the preparation, processing, and review of environmental review documents;

(B) Review of relevant court decisions affecting this chapter, chapter 343, and administrative rules adopted thereunder;

(C) Review of amendments to this chapter, chapter 343, other relevant laws, and administrative rules adopted thereunder; and

(D) Any other information that may facilitate the efficient implementation of this chapter, chapter 343, and administrative rules adopted thereunder.

(c) [~~The director shall adopt rules pursuant to chapter 91 necessary for the purposes of implementing this chapter.~~] To facilitate agency and public participation in the review process, the office shall create and maintain an electronic communication system, such as a website, to meet best practices of environmental review, as determined by the director.

§341-A Annual report. No later than January 31 of each year, at the direction of the council, the director shall prepare a report that analyzes the effectiveness of the State's environmental review system during the prior year. The report shall include an assessment of a sample of environmental assessments and environmental impact statements for completed projects.

At the request of the director or the council, state and county agencies shall provide information to assist in the preparation of the annual report.

§341-6 [~~Functions~~] Duties of the environmental council. (a) The council shall [~~serve~~]:

(1) Serve the governor in an advisory capacity on all matters relating to environmental quality;

(2) Serve as a liaison between the [~~director~~] governor and the general public by soliciting information, opinions, complaints, recommendations, and advice concerning [~~ecology and~~] environmental quality through public hearings or any other means and by publicizing [~~such~~] these matters as requested by the [~~director pursuant to section 341-4(b)(3).~~] governor; and

(3) Meet at the call of the council chairperson or the governor upon notice to the council chairperson.

(b) The council may make recommendations concerning [~~ecology and~~] environmental quality to the [~~director and shall meet at the call of the council chairperson or the director upon notifying the council chairperson.~~] governor.

(c) The council shall monitor the progress of state, county, and federal agencies in achieving the State's environmental goals and policies [~~and~~]. No later than January 31 of each year, the council, with the assistance of the director, shall make an annual report with recommendations for improvement to the governor, the legislature, and the public [~~no later than January 31 of each year~~]. [~~All~~] At the request of the council, state and county agencies shall [~~cooperate with the council and~~] provide information to assist in the preparation of [~~such a~~] the report [~~by responding to requests for information made by the council~~]. The council may combine its annual report with the annual report prepared by the director pursuant to section 341-A.

(d) The council may delegate to any person [~~such~~] the power or authority vested in the council as it deems reasonable and proper for the effective administration of this section and chapter 343, except the power to make, amend, or repeal rules.

(e) The council shall adopt rules, pursuant to chapter 91, necessary for the purposes of implementing this chapter and chapter 343.

§341-B Environmental review special fund; use of funds. (a) There is established in the state treasury the environmental review special fund, into which shall be deposited:

(1) All filing fees and other administrative fees collected by the office;

(2) All accrued interest from the special fund; and

(3) Moneys appropriated to the special fund by the legislature.

(b) Moneys in the environmental review special fund shall be supplemental to, and not a replacement for, the office budget base and be used to:

(1) Fund the activities of the office and the council in fulfillment of their duties pursuant to this chapter and chapter 343, including administrative and office expenses; and

(2) Support outreach, training, education, and research programs pursuant to section 341-4.

§341-C Fees. The director shall adopt rules, pursuant to chapter 91, that establish reasonable fees for filing, publication, and other administrative services of the office or council pursuant to this chapter and chapter 343."

SECTION 2. All rules, policies, procedures, orders, guidelines, and other material adopted, issued, or developed by the office of environmental quality control or the environmental council within the department of health to implement provisions of the Hawaii Revised Statutes shall remain in full force and effect until amended or repealed by the office of environmental quality control or the environmental council within the department of land and natural resources.

SECTION 3. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the office of environmental quality control or the environmental council within the department of health relating to the functions transferred to the department of land and natural resources shall be transferred with the functions to which they relate.

SECTION 4. All rights, powers, functions, and duties of the office of environmental quality control or the environmental council within the department of health are transferred to the office of environmental quality control or the environmental council within the department of land and natural resources.

All officers and employees whose functions are transferred by this Act shall be transferred with their functions and shall continue to perform their regular duties upon their transfer, subject to the state personnel laws and this Act.

No officer or employee of the State having tenure shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and the officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

An officer or employee of the State who does not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act shall become a civil service employee without the loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits or privileges and without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed.

If an office or position held by an officer or employee having tenure is abolished, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position for which the officer or employee is eligible under the personnel laws of the State as determined by the head of the department or the governor.

PART II.

SECTION 5. Chapter 343, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:

"§343-A Significance criteria. (a) In determining whether a proposed action may have a significant adverse effect on the environment, an agency shall consider:

(1) Every phase of the proposed action;

(2) Expected primary and secondary effects of the proposed action; and

(3) The overall and cumulative effects of the proposed action, including short-term and long-term effects.

(b) A proposed action shall be determined to have a significant effect on the environment if it:

(1) Involves an irrevocable commitment to loss or destruction of any natural or cultural resource;

(2) Curtails the range of beneficial uses of the environment;

(3) Conflicts with the State's long-term environmental policies, guidelines, or goals, as expressed in chapter 344, and any revisions thereof and amendments thereto, court decisions, or executive orders;

(4) Substantially adversely affects the economic welfare, social welfare, or cultural practices of the community or State;

(5) Substantially adversely affects public health;

(6) Involves substantial adverse secondary impacts, such as population changes or effects on public facilities;

(7) Involves a substantial degradation of environmental quality;

(8) Is individually limited but cumulatively has considerable adverse effect upon the environment or involves a commitment to related or future actions;

(9) Substantially adversely affects a rare, threatened, or endangered species or its habitat;

(10) Detrimentally affects air or water quality or ambient noise levels;

(11) Affects or is likely to suffer present or future damage by being located in an environmentally sensitive area, such as a flood plain, tsunami zone, beach, erosion-prone area, geologically hazardous land, estuary, fresh water, or coastal waters;

(12) Substantially adversely affects scenic vistas and viewplanes identified in county or state plans or studies;

(13) Requires substantial energy consumption or emits substantial quantities of greenhouse gases; or

(14) Increases the scope or intensity of hazards to the public, such as increased coastal inundation, flooding, or erosion that may occur as a result of climate change anticipated during the lifetime of the project.

(c) The director of the office of environmental quality control shall provide guidance to agencies on the application of this section.

§343-B Applicability. Except as otherwise provided, an environmental assessment shall be required for actions that require discretionary approval from an agency and that may have a probable, significant, and adverse environmental effect, including:

(1) Any new county general or development plans or amendments to existing county general or development plans; or

(2) Any reclassification of any land classified as a conservation district or important agricultural lands.

(b) Notwithstanding any other provision, the use of land solely for connection to utilities or rights-of-way shall not require an environmental assessment or an environmental impact statement.

§343-C Record of decision; mitigation. (a) At the time of the acceptance or nonacceptance of a final statement, the accepting authority or agency shall prepare a concise public record of decision that:

(1) States its decision;

(2) Identifies all alternatives considered by the accepting authority or agency in reaching its decision, including:

(A) Alternatives that were considered to be environmentally preferable; and

(B) Preferences among those alternatives based upon relevant factors, including economic and technical considerations and agency statutory mission; and

(3) States whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted and, if not, why they were not adopted.

(b) Agencies shall provide for monitoring to ensure that their decisions are carried out and that any other conditions established in the environmental impact statement or during its review and committed to as part of the accepting authority or agency's decision are implemented by the lead agency or other appropriate agency. Where applicable, a lead agency shall:

(1) Include conditions on grants, permits, or other approvals to ensure mitigation;

(2) Condition the funding of actions on mitigation; and

(3) Upon request, inform cooperating or commenting agencies on progress in carrying out mitigation measures that they proposed during the environmental review process and that were adopted by the accepting authority or agency in making its decision.

(c) Results of monitoring pursuant to this section shall be made available periodically to the public through the bulletin."

SECTION 6. Section 183-44, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) For the purposes of this section:

(1) "Emergency repairs" means that work necessary to repair damages to fishponds arising from natural forces or events of human creation not due to the wilful neglect of the owner, of such a character that the efficiency, esthetic character or health of the fishpond, neighboring activities of persons, or existing flora or fauna will be endangered in the absence of correction of existing conditions by repair, strengthening, reinforcement, or maintenance.

(2) "Repairs and maintenance" of fishponds means any work performed relative to the walls, floor, or other traditional natural feature of the fishpond and its appurtenances, the purposes of which are to maintain the fishpond in its natural state and safeguard it from damage from environmental and natural forces.

Repairs, strengthening, reinforcement, and maintenance and emergency repair of fishponds shall not be construed as actions [~~"proposing any use"~~] requiring an environmental assessment or an environmental impact statement within the context of section [~~343-5.~~] 343-B."

SECTION 7. Section 343-2, Hawaii Revised Statutes, is amended to read as follows:

"§343-2 Definitions. As used in this chapter unless the context otherwise requires:

"Acceptance" means a formal determination that the document required to be filed pursuant to section 343-5 fulfills the definition of an environmental impact statement, adequately describes identifiable environmental impacts, and satisfactorily responds to comments received during the review of the statement.

"Action" means any program or project to be initiated by any agency or applicant[.] that:

(1) Is directly undertaken by any agency;

(2) Is supported in whole or in part by contracts, grants, subsidies, or loans from one or more agencies; or

(3) Involves the issuance to a person of a discretionary approval, such as a permit by one or more agencies.

The term "action" shall not include official acts of a ministerial nature that involve no exercise of discretion.

"Agency" means any department, office, board, or commission of the state or county government [~~which~~] that is a part of the executive branch of that government.

"Applicant" means any person who, pursuant to statute, ordinance, or rule, officially requests approval for a proposed action.

"Approval" means a discretionary [~~consent~~] approval required from an agency prior to actual implementation of an action.

"Council" means the environmental council.

"Cumulative effects" means the impact on the environment that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency, whether county, state, or federal, or person undertakes those actions; cumulative effects can result from individually minor but collectively significant actions taking place over a period of time.

"Discretionary [~~consent~~] approval" means [a] an approval, consent, sanction, or recommendation from an agency for which judgment and free will may be exercised by the issuing agency, as distinguished from a ministerial [~~consent.~~] approval.

"Environmental assessment" means a written evaluation to determine whether an action may have a significant effect.

"Environmental impact statement" or "statement" means an informational document prepared in compliance with the rules adopted under section 343-6 and [~~which~~] that discloses the [~~environmental~~]:

(1) Environmental effects of a proposed action[~~, effects~~];

(2) Effects of a proposed action on the economic welfare, social welfare, and cultural practices of the community and State[~~, effects~~];

(3) Effects of the economic activities arising out of the proposed action[~~, measures~~];

(4) Measures proposed to minimize adverse effects[,]; and [~~alternatives~~]

(5) Alternatives to the action and their environmental effects.

The initial statement filed for public review shall be referred to as the draft statement and shall be distinguished from the final statement, which is the document that has incorporated the public's comments and the responses to those comments. The final statement is the document that shall be evaluated for acceptability by the respective accepting authority.

"Environmental review" refers broadly to the entire process prescribed by chapter 341 and this chapter, applicable to applicants, agencies, and the public, of scoping, reviewing, publishing, commenting on, finalizing, accepting, and appealing required documents such as environmental assessments and environmental impact statements; any variations of these documents such as preparation notices, findings of no significant impact, programmatic reviews, and supplemental documents; any exemptions thereto; and any decisions not to prepare these documents.

"Finding of no significant impact" means a determination based on an environmental assessment that the subject action will not have a significant effect and, therefore, will not require the preparation of an environmental impact statement.

["Helicopter facility" means any area of land or water which is used, or intended for use for the landing or takeoff of helicopters; and any appurtenant areas which are used, or intended for use for helicopter related activities or rights-of-way.]

"Ministerial approval" means a governmental decision involving little or no personal judgment by the public official and involving only the use of fixed standards or objective measurements.

"Office" means the office of environmental quality control.

"Permit" means a determination, order, or other documentation of approval, including the issuance of a lease, license, certificate, variance, approval, or other entitlement for use or permission to act, granted to any person by an agency for an action.

"Person" includes any individual, partnership, firm, association, trust, estate, private corporation, or other legal entity other than an agency.

"Primary effect" or "direct effect" means effects that are caused by the action and occur at the same time and place.

[~~"Power-generating facility" means:~~

~~(1)~~ ~~A new, fossil-fueled, electricity-generating facility, where the electrical output rating of the new equipment exceeds 5.0 megawatts; or~~

~~(2)~~ ~~An expansion in generating capacity of an existing, fossil-fueled, electricity-generating facility, where the incremental electrical output rating of the new equipment exceeds 5.0 megawatts.~~]

"Program" means a systemic, connected, or concerted applicant or discretionary agency action to implement a specific policy, plan, or master plan.

"Programmatic" means a comprehensive environmental review of a program, policy, plan, or master plan.

"Project" means an activity that may cause either a direct or indirect physical effect on the environment, such as construction or management activities located in a defined geographic area.

[~~"Renewable energy facility" has the same meaning as defined in section 201N-1.~~]

"Secondary effects" or "indirect effect" means effects that are caused by an action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density, or growth rate, and related effects on air, water, and other natural systems including ecosystems.

"Significant effect" means the sum of effects on the quality of the environment[, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State].

"Tiering" means the incorporation by reference in a project-specific environmental assessment or environmental impact statement to a previously conducted programmatic environmental assessment or environmental impact statement for the purposes of showing the connections between the project-specific document and the earlier programmatic review, avoiding unnecessary duplication, and concentrating the analysis on the project-specific issues that were not previously reviewed in detail at the programmatic level.

[~~"Wastewater treatment unit" means any plant or facility used in the treatment of wastewater.~~]"

SECTION 8. Section 343-3, Hawaii Revised Statutes is amended to read as follows:

"§343-3 Public participation, records, and notice. (a) All statements, environmental assessments, and other documents prepared under this chapter shall be made available for inspection by the public [~~during established office hours~~.] at minimum through the electronic communication system maintained by the office and, if specifically requested due to lack of electronic access, also through printed copies available through the office.

(b) The office shall inform the public of notices filed by agencies of the availability of environmental assessments for review and comments, of determinations that statements are required or not required, of the availability of statements for review and comments, and of the acceptance or nonacceptance of statements.

(1) A public comment process or public hearing if a state or federal agency provides for the public comment process or public hearing to process a habitat conservation plan, safe harbor agreement, or incidental take license pursuant to the state or federal Endangered Species Act;

(2) A proposed habitat conservation plan or proposed safe harbor agreement, and availability for inspection of the proposed agreement, plan, and application to enter into a planning process for the preparation and implementation of the habitat conservation plan for public review and comment;

(3) A proposed incidental take license as part of a habitat conservation plan or safe harbor agreement; and

(4) An application for the registration of land by accretion pursuant to section 501-33 or 669-1(e) for any land accreted along the ocean.

(d) The office shall inform the public by the publication of a periodic bulletin to be available to persons requesting this information. The bulletin shall be available through the office, [~~and~~] public libraries[.], and in electronic format.

(e) At the earliest practicable time, applicants and the relevant agencies shall:

(1) Provide notice to the public and to state and county agencies that an action is subject to review under to this chapter; and

(2) Encourage and facilitate public involvement throughout the environmental review process, as provided for in this chapter, chapter 341, and the relevant administrative rules."

SECTION 9. Section 343-5, Hawaii Revised Statutes, is amended to read as follows:

"§343-5 [~~Applicability and~~] Agency and applicant 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)~~] (a) 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,] section 343-B, the agency shall prepare an environmental assessment, or based upon its discretion, may choose to prepare, for a program, a programmatic environmental assessment, for [~~such~~] 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, following adequate notice to the public and all interested parties.

(1) For environmental assessments for which a finding of no significant impact is anticipated:

(A) A draft environmental assessment shall be made available for public review and comment for a period of thirty days;

(B) The office shall inform the public of the availability of the draft environmental assessment for public review and comment pursuant to section 343-3;

(C) 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;

(D) A statement shall be required if the agency finds that the proposed action may have a significant effect on the environment; and

(E) The agency shall file notice of [~~such~~] 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.

(2) The final authority to accept a final statement shall rest with:

(A) 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

(B) 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)~~] (b) Whenever an applicant proposes an action specified by [~~subsection (a)~~] section 343-B that requires approval of an agency and that is not a specific type of action declared exempt under that section or section 343-6, the agency initially receiving and agreeing to process the request for approval shall prepare an environmental assessment, or based upon its discretion, may choose to prepare, for a program, a programmatic environmental assessment, of the proposed action at the earliest practicable time to determine whether an environmental impact statement shall be required; [~~provided that, for an action that proposes the establishment of a renewable energy facility, a draft environmental impact statement shall be prepared at the earliest practicable time.~~] 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, following adequate notice to the public and all interested parties. 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 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 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 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.

[~~(d)~~] (c) 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 preparing the environmental assessment, the office, after consultation with and assistance from the affected state or county agencies, shall determine which agency shall prepare the assessment.

[~~(e)~~] (d) In preparing an environmental [~~assessment,~~] review document, an agency or applicant 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.~~] review documents. The council, by rule, shall establish criteria and procedures for the use of previous determinations and statements.

[~~(f)~~] (e) 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.

(f) Upon receipt of a timely written request and good cause shown, a lead agency, approving agency, or accepting authority may extend, one time only, a public review and comment period required under this section. The extension shall not exceed fifteen days. To be considered a timely request, the request for an extension shall be made before the end of the public review and comment period. An extension of a public review and comment period shall be communicated by the lead agency in a timely manner to all interested parties.

(g) 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, other than a supplement to that statement, shall be required."

SECTION 10. Section 343-6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) After consultation with the affected agencies, the council shall adopt, amend, or repeal necessary rules for the purposes of this chapter [~~in accordance with chapter 91 including, but not limited to, rules that shall:~~]. Any such rules may be issued as interim rules by adoption and filing with the lieutenant governor and by posting the interim rules on the lieutenant governor's website. Interim rules adopted pursuant to this section shall be exempt from the public notice, public hearing, and gubernatorial approval requirements of chapter 91 and the requirements of chapter 201M and shall take effect upon filing with the lieutenant governor. All interim rules adopted pursuant to this section shall be effective only through June 30, 2014. For any new or expanded programs, services, or benefits that have been implemented under interim rules to continue in effect beyond June 30, 2014, the environmental council shall adopt rules in conformance with all the requirements of chapter 91 and chapter 201M. Rules adopted pursuant to this section shall include but not be limited to rules that shall:

(1) Prescribe the procedures whereby a group of proposed actions may be treated by a single environmental assessment or statement;

(2) Establish procedures whereby specific types of actions, because they will probably have minimal or no significant effects on the environment, are declared exempt from the preparation of an environmental assessment; provided that the procedures shall ensure that the declaration is simultaneously transmitted electronically to the office and is readily available as a public record in a searchable electronic database;

(3) Prescribe procedures for the preparation of an environmental assessment;

(4) Prescribe the contents of, and page limits for, an environmental assessment;

(5) Prescribe procedures for informing the public of determinations that a statement is either required or not required, for informing the public of the availability of draft environmental impact statements for review and comments, and for informing the public of the acceptance or nonacceptance of the final environmental statement;

(6) Prescribe the contents of, and page limits for, an environmental impact statement;

(7) Prescribe procedures for the submission, distribution, review, acceptance or nonacceptance, and withdrawal of an environmental impact statement;

(8) Establish criteria to determine whether an environmental impact statement is acceptable or not; [~~and~~]

(9) Prescribe procedures to appeal the nonacceptance of an environmental impact statement to the environmental council[.];

(10) Prescribe procedures, including use of electronic technology for the comment and response process, including procedures for issuing one comprehensive response to multiple or repetitious comments that are substantially similar in content;

(11) Prescribe procedures for implementing the requirement for records of decision, monitoring, and mitigation;

(12) Develop guidance for the application and interpretation of the significance criteria under chapter 343-A;

(13) Prescribe procedures and guidance for the preparation of programmatic environmental assessments or impact statements and the tiering of project-specific environmental assessments or impact statements;

(14) Prescribe:

(A) Procedures for the applicability, preparation, acceptance, and publication of supplemental environmental assessments and supplemental environmental impact statements when there are substantial changes in the proposed action or significant new circumstances or information relevant to environment effects and bearing on the proposed action and its impacts;

(B) Procedures for limiting the duration of the validity of environmental assessments and environmental impact statements, or if an environmental assessment led to the preparation of an environmental impact statement, then of the later-prepared statement, to not more than seven years from the date of acceptance of the document until all state and county discretionary approvals are fully completed for the action; and

(C) Procedures for an agency or applicant to seek a timely determination from the council that a prior environmental assessment or environmental impact statement contains sufficiently current information such that a supplemental document is not warranted despite the passage of the prescribed time period; and

(15) To provide guidance to agencies and applicants about the applicability of the environmental review system, establish procedures whereby each state and county agency shall maintain lists of:

(A) Specific types of discretionary approvals that may have probable, significant, and adverse environmental effects;

(B) Ministerial actions that do not require environmental review; and

(b) Except for the adoption of interim rules pursuant to subsection (a), at least one public hearing shall be held in each county prior to the final adoption, amendment, or repeal of any rule."

SECTION 11. Section 343-7, Hawaii Revised Statutes, is amended to read as follows:

"§343-7 Limitation of actions. (a) Any judicial proceeding, the subject of which is the lack of an environmental assessment required under section 343-B or 343‑5, or the lack of a supplemental environmental assessment or supplemental impact statement, shall be initiated within one hundred twenty days of the agency's decision to carry out or approve the action, or, if a proposed action is undertaken without a formal determination by the agency that [a] an assessment, supplement, or statement is or is not required, a judicial proceeding shall be instituted within one hundred twenty days after the proposed action is started. The council or office, any agency responsible for approval of the action, or the applicant shall be adjudged an aggrieved party for the purposes of bringing judicial action under this subsection. Others, by court action, may be adjudged aggrieved.

(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~~] the 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~~] the determination pursuant to section 343-3. The council or the applicant shall be adjudged an aggrieved party for the purposes of bringing judicial action under this subsection. Others, by court action, may be adjudged aggrieved. Affected agencies and persons that provided written comment to the assessment during the designated review period shall be judged aggrieved parties for the purpose of bringing judicial action under this subsection; provided that the contestable issues shall be limited to issues identified and discussed in the written comment.

(c) Any judicial proceeding, the subject of which is the acceptance of an environmental impact statement required under section 343-B or 343-5, shall be initiated within sixty days after the public has been informed pursuant to section 343-3 of the acceptance of [~~such~~] the statement. The council shall be adjudged an aggrieved party for the purpose of bringing judicial action under this subsection. Affected agencies and persons [~~who~~] that provided written comment to [~~such~~] the statement during the designated review period shall be adjudged aggrieved parties for the purpose of bringing judicial action under this subsection; provided that the contestable issues shall be limited to issues identified and discussed in the written comment."

SECTION 12. Section 353-16.35, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Notwithstanding any other law to the contrary, the governor, with the assistance of the director, may negotiate with any person for the development or expansion of private in-state correctional facilities or public in-state turnkey correctional facilities to reduce prison overcrowding; provided that if an environmental assessment or environmental impact statement is required for a proposed site or for the expansion of an existing correctional facility under section 343-B or 343-5, then notwithstanding the time periods specified for public review and comments under section 343-5, the governor shall accept public comments for a period of sixty days following public notification of either an environmental assessment or an environmental impact statement."

PART III.

SECTION 13. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date, and does not affect the rights and duties related to any environmental assessment or environmental impact statement for which a draft has been prepared and public notice thereof published by the office of environmental quality control before the effective date of this Act.

SECTION 14. In codifying the new sections added by section 1 and section 5 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 15. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 16. This Act shall take effect on July 1, 2012.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2185
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII