REPORT TITLE: 
OEQC; EIS


DESCRIPTION:
Description: Requires a preparing agency to consult with and
receive concurrence from OEQC before determining whether an EIS
is required.  Requires an accepting agency to consult with and
receive concurrence from OEQC before making an acceptance
determination on an EIS.  Defines "concurrence." (SB2971 HD1)


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2971
THE SENATE                              S.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                     A BILL FOR AN ACT

RELATING TO ENVIRONMENTAL IMPACT STATEMENTS.



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

 1      SECTION 1.  Under chapter 343, Hawaii Revised Statutes, the
 
 2 agency that prepares an environmental assessment (EA) determines
 
 3 whether an environmental impact statement (EIS) is required.
 
 4 Additionally, whenever an applicant proposes an action, the
 
 5 authority to accept a final EIS rests with the agency receiving
 
 6 the request for approval.  
 
 7      Although the office of environmental quality control (OEQC)
 
 8 reviews all EAs and EISs, its involvement in the acceptability of
 
 9 these environmental documents is limited to making a
 
10 recommendation only when requested by the agency or applicant.
 
11      OEQC's reviews indicate that most environmental documents
 
12 are adequate and complete.  However, at least ten per cent of the
 
13 documents contain deficiencies such as: improper analysis of
 
14 significant criteria, noncompliance with content requirements,
 
15 inadvertent mistakes, and missing comment letters.  Improving the
 
16 overall quality of EISs by requiring OEQC's concurrence as to the
 
17 acceptability of these documents would help to prevent legal
 
18 challenges and costly delays based on deficient documents.
 

 
Page 2                                                     2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

 
 1      Frequently, a proposing agency and a determining agency may
 
 2 be the same body, thereby giving the appearance that concurrence
 
 3 on a finding of no significant impact is merely a formality.
 
 4 Requiring OEQC's concurrence prior to these determinations would
 
 5 help to eliminate any perception of conflicts of interest.
 
 6      The purpose of this Act is to require agencies to gain the
 
 7 concurrence of OEQC before:
 
 8      (1)  Making a determination on whether a project requires an
 
 9           EIS; or
 
10      (2)  Accepting an EIS if an EIS is required.
 
11      SECTION 2.  Section 343-5, Hawaii Revised Statutes, is
 
12 amended to read as follows:
 
13      "343-5 Applicability and requirements.(a)  Except as
 
14 otherwise provided, an environmental assessment shall be required
 
15 for actions which:
 
16      (1)  Propose the use of state or county lands or the use of
 
17           state or county funds, other than funds to be used for
 
18           feasibility or planning studies for possible future
 
19           programs or projects which the agency has not approved,
 
20           adopted, or funded, or funds to be used for the
 
21           acquisition of unimproved real property; provided that
 
22           the agency shall consider environmental factors and
 
23           available alternatives in its feasibility or planning
 
24           studies;
 

 
Page 3                                                     2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

 
 1      (2)  Propose any use within any land classified as
 
 2           conservation district by the state land use commission
 
 3           under chapter 205;
 
 4      (3)  Propose any use within the shoreline area as defined in
 
 5           section 205A-41;
 
 6      (4)  Propose any use within any historic site as designated
 
 7           in the National Register or Hawaii Register as provided
 
 8           for in the Historic Preservation Act of 1966, Public
 
 9           Law 89-665, or chapter 6E;
 
10      (5)  Propose any use within the Waikiki area of Oahu, the
 
11           boundaries of which are delineated in the land use
 
12           ordinance as amended, establishing the "Waikiki Special
 
13           District";
 
14      (6)  Propose any amendments to existing county general plans
 
15           where [such] the amendment would result in designations
 
16           other than agriculture, conservation, or preservation,
 
17           except actions proposing any new county general plan or
 
18           amendments to any existing county general plan
 
19           initiated by a county;
 
20      (7)  Propose any reclassification of any land classified as
 
21           conservation district by the state land use commission
 
22           under chapter 205; and
 

 
 
 
Page 4                                                     2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

 
 1    [[](8)[]]   Propose the construction of new, or the expansion
 
 2                or modification of existing helicopter facilities
 
 3                within the State which by way of their activities
 
 4                may affect any land classified as conservation
 
 5                district by the state land use commission under
 
 6                chapter 205; the shoreline area as defined in
 
 7                section 205A-41; or, any historic site as
 
 8                designated in the National Register or Hawaii
 
 9                Register as provided for in the Historic
 
10                Preservation Act of 1966, Public Law 89-665, or
 
11                chapter 6E; or, until the statewide historic
 
12                places inventory is completed, any historic site
 
13                found by a field reconnaissance of the area
 
14                affected by the helicopter facility and which is
 
15                under consideration for placement on the National
 
16                Register or the Hawaii Register of Historic
 
17                Places.
 
18      (b)  Whenever an agency proposes an action in subsection
 
19 (a), other than feasibility or planning studies for possible
 
20 future programs or projects which the agency has not approved,
 
21 adopted, or funded, or other than the use of state or county
 
22 funds for the acquisition of unimproved real property, which is
 
23 not a specific type of action declared exempt under section
 

 
Page 5                                                     2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

 
 1 343-6, that agency shall prepare an environmental assessment for
 
 2 [such] the action at the earliest practicable time to determine
 
 3 whether an environmental impact statement shall be required.  For
 
 4 environmental assessments for which a finding of no significant
 
 5 impact is anticipated, a draft environmental assessment shall be
 
 6 made available for public review and comment for a period of
 
 7 thirty days.  The office shall inform the public of the
 
 8 availability of the draft environmental assessment for public
 
 9 review and comments pursuant to section 343-3.  The agency shall
 
10 respond in writing to comments received during the review and
 
11 prepare a final environmental assessment to determine whether an
 
12 environmental impact statement [shall be] is required.  A
 
13 statement shall be required if the agency finds that the proposed
 
14 action may have a significant effect on the environment.  Before
 
15 determining whether an environmental impact statement shall be
 
16 required, the agency shall consult with and receive concurrence
 
17 from the office.  The office shall respond to the agency's
 
18 request for concurrence within fifteen days of receiving the
 
19 request.  If the office does not respond within fifteen days, the
 
20 agency may proceed without concurrence from the office.  If the
 
21 office does not concur with the agency, the agency shall take
 
22 corrective action or request that the governor make a final
 
23 determination.  The agency shall file notice of [such] this
 

 
Page 6                                                     2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

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

 
 
 
 
 
Page 7                                                     2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

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

 
Page 8                                                     2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

 
 1 determine whether an environmental impact statement [shall be] is
 
 2 required.  A statement shall be required if the agency finds that
 
 3 the proposed action may have a significant effect on the
 
 4 environment.  Before determining whether an environmental impact
 
 5 statement shall be required, the agency shall consult with and
 
 6 receive concurrence from the office.  The office shall respond to
 
 7 the agency's request for concurrence within fifteen days of
 
 8 receiving the request.  If the office does not respond within
 
 9 fifteen days, the agency may proceed without concurrence from the
 
10 office.  If the office does not concur with the agency, the
 
11 agency shall take corrective action or request that the governor
 
12 make a final determination.  The agency shall file notice of
 
13 [such] this determination with the office which, in turn, shall
 
14 publish the agency's determination for the public's information
 
15 pursuant to section 343-3.  The draft and final statements, if
 
16 required, shall be prepared by the applicant, who shall file
 
17 these statements with the office.  The draft statement shall be
 
18 made available for public review and comments through the office
 
19 for a period of forty-five days.  The office shall inform the
 
20 public of the availability of the draft statement for public
 
21 review and comments pursuant to section 343-3.  The applicant
 
22 shall respond in writing to comments received during the review
 
23 and prepare a final statement.  [The office, when requested by
 

 
Page 9                                                     2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

 
 1 the applicant or agency, may make a recommendation as to the
 
 2 acceptability of the final statement.]  The authority to accept a
 
 3 final statement shall rest with the agency receiving the request
 
 4 for approval. Before making an acceptance determination on an
 
 5 environmental impact statement, the agency shall consult with and
 
 6 receive concurrence from the office.  The office shall respond to
 
 7 the agency's request for concurrence within fifteen days of
 
 8 receiving the request.  If the office does not respond within
 
 9 fifteen days, the agency may proceed without concurrence from the
 
10 office.  If the office does not concur with the agency, the
 
11 agency shall take corrective action or request that the governor
 
12 make a final determination.  Acceptance of a required final
 
13 statement shall be a condition precedent to approval of the
 
14 request and commencement of proposed action.  Upon acceptance or
 
15 nonacceptance of the final statement, the agency shall file
 
16 notice of [such] this determination with the office.  The office,
 
17 in turn, shall publish the determination of acceptance or
 
18 nonacceptance of the final statement pursuant to section 343-3.
 
19 The agency receiving the request, within thirty days of receipt
 
20 of the final statement, shall notify the applicant and the office
 
21 of the acceptance or nonacceptance of the final statement.  The
 
22 final statement shall be deemed to be accepted if the agency
 
23 fails to accept or not accept the final statement within thirty
 

 
Page 10                                                    2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

 
 1 days after receipt of the final statement; provided that the
 
 2 thirty-day period may be extended at the request of the applicant
 
 3 for a period not to exceed fifteen days.
 
 4      In any acceptance or nonacceptance, the agency shall provide
 
 5 the applicant with the specific findings and reasons for its
 
 6 determination.  An applicant, within sixty days after
 
 7 nonacceptance of a final statement by an agency, may appeal the
 
 8 nonacceptance to the environmental council, which, within thirty
 
 9 days of receipt of the appeal, shall notify the applicant of the
 
10 council's determination.  In any affirmation or reversal of an
 
11 appealed nonacceptance, the council shall provide the applicant
 
12 and agency with specific findings and reasons for its
 
13 determination.  The agency shall abide by the council's decision.
 
14      (d)  Whenever an applicant simultaneously requests approval
 
15 for a proposed action from two or more agencies and there is a
 
16 question as to which agency has the responsibility of preparing
 
17 the environmental assessment, the office, after consultation with
 
18 the agencies involved, shall determine which agency shall prepare
 
19 the assessment.
 
20      (e)  In preparing an environmental assessment, an agency may
 
21 consider and, where applicable and appropriate, incorporate by
 
22 reference, in whole or in part, previous determinations of
 

 
 
 
Page 11                                                    2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

 
 1 whether a statement is required and previously accepted
 
 2 statements.  The council, by rules, shall establish criteria and
 
 3 procedures for the use of previous determinations and statements.
 
 4      (f)  Whenever an action is subject to both the National
 
 5 Environmental Policy Act of 1969 (Public Law 91-190) and the
 
 6 requirements of this chapter, the office and agencies shall
 
 7 cooperate with federal agencies to the fullest extent possible to
 
 8 reduce duplication between federal and state requirements.
 
 9 [Such] This cooperation, to the fullest extent possible, shall
 
10 include joint environmental impact statements with concurrent
 
11 public review and processing at both levels of government.  Where
 
12 federal law has environmental impact statement requirements in
 
13 addition to but not in conflict with this chapter, the office and
 
14 agencies shall cooperate in fulfilling these requirements so that
 
15 one document shall comply with all applicable laws.
 
16      (g)  A statement that is accepted with respect to a
 
17 particular action shall satisfy the requirements of this chapter
 
18 and no other statement for that proposed action shall be
 
19 required.
 
20      (h)  As used in this section, "concurrence" means consent
 
21 given by the office that all of the following criteria have been
 
22 satisfied:
 

 
 
 
Page 12                                                    2971
                                     S.B. NO.           H.D. 1
                                                        
                                                        

 
 1      (1)  The procedures for the review of the environmental
 
 2           assessment or environmental impact statement have been
 
 3           followed;
 
 4      (2)  The content requirements of the environmental
 
 5           assessment or environmental impact statement have been
 
 6           met;
 
 7      (3)  The comments submitted during the review process have
 
 8           been responded to satisfactorily and incorporated in
 
 9           the environmental assessment or environmental impact
 
10           statement; and
 
11      (4)  The office agrees with the agency's determination."
 
12      SECTION 3. Statutory material to be repealed is bracketed.
 
13 New statutory material is underscored.
 
14      SECTION 4. This Act shall take effect upon its approval.