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HB661
HOUSE OF REPRESENTATIVES
H.B. NO.
661
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII
A BILL FOR AN ACT
relating
to environmental review
.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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SECTION 1.
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The legislature finds that the State's
environmental review process under chapter 343, Hawaii Revised Statutes, was
designed to evaluate new projects having potential environmental impacts.
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However, recent court decisions have
broadened the definition of an environmental "action."
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The new definition inadvertently includes
long-standing, historically permitted activities in state-managed areas like
ocean recreation management areas, marine life conservation districts, and game
management areas.
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The
legislature recognizes that this unintended expansion jeopardizes law-abiding
operations, including commercial boating, and recreational activities that are
already regulated under strict administrative rules that are designed to
protect Hawaii's natural resources.
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The
legislature believes that subjecting these activities to additional review
under chapter 343 creates redundancies and disrupts compliant operations.
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Accordingly,
the purpose of this Act is to minimize disruptions to law-abiding operations by
permitting, except in certain circumstances, a previously authorized activity
challenged as being subject to environmental review to continue while the applicable
agency conducts an environmental assessment, prepares an environmental impact
statement, or determines whether the activity is exempt.
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SECTION
2
.
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Section 343-5,
Hawaii Revised Statutes, is amended to read as follows:
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�343-5
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Applicability and requirements.
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(a)
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Except as otherwise provided,
an environmental assessment shall be required for actions that:
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(1)
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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);
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(2)
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Propose
any use within any land classified as a conservation district by the state land
use commission under chapter 205;
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(3)
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Propose
any use within a shoreline area as defined in section 205A-41;
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(4)
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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;
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(5)
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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";
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(6)
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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;
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(7)
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Propose
any reclassification of any land classified as a conservation district by the
state land use commission under chapter 205;
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(8)
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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:
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(A)
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Any
land classified as a conservation district by the state land use commission
under chapter 205;
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(B)
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A
shoreline area as defined in section 205A-41; or
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(C)
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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
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(9)
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Propose any:
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(A)
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Wastewater
treatment unit, except an individual wastewater system or a wastewater
treatment unit serving fewer than fifty single-family dwellings or the
equivalent;
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(B)
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Waste-to-energy
facility;
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(C)
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Landfill;
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(D)
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Oil
refinery; or
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(E)
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Power-generating
facility.
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(b)
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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.
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(c)
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For environmental assessments for which a finding of no significant
impact is anticipated:
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(1)
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A draft
environmental assessment shall be made available for public review and comment
for a period of thirty days;
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(2)
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The office shall
inform the public of the availability of the draft environmental assessment for
public review and comment pursuant to section 343-3;
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(3)
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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;
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(4)
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A statement shall
be required if the agency finds that the proposed action may have a significant
effect on the environment; and
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(5)
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The agency shall
file notice of the determination with the office.
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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.
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The office shall publish the final
determination for the public's information pursuant to section 343-3.
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The
draft and final statements, if required, shall be prepared by the agency and
submitted to the office.
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The draft
statement shall be made available for public review and comment through the
office for a period of forty-five days.
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The office shall inform the public of the availability of the draft
statement for public review and comment pursuant to section 343‑3.
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The agency shall respond in writing to
comments received during the review and prepare a final statement.
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The
office, when requested by the agency, may make a recommendation as to the
acceptability of the final statement.
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(d)
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The final authority to accept a final statement shall rest with:
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(1)
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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
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(2)
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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.
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Acceptance of a required final statement
shall be a condition precedent to implementation of the proposed action.
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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
]
the
determination
with the office.
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The office, in turn,
shall publish the determination of acceptance or nonacceptance pursuant to
section 343-3.
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(e)
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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.
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The final approving agency for the request for
approval is not required to be the accepting authority.
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For environmental assessments for which a
finding of no significant impact is anticipated:
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(1)
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A
draft environmental assessment shall be made available for public review and
comment for a period of thirty days;
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(2)
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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
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(3)
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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.
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A statement shall be required if the agency
finds that the proposed action may have a significant effect on the
environment.
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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.
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The
draft and final statements, if required, shall be prepared by the applicant,
who shall file these statements with the office.
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The draft statement shall be made available
for public review and comment through the office for a period of forty-five
days.
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The office shall inform the public
of the availability of the draft statement for public review and comment
pursuant to section 343-3.
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The
applicant shall respond in writing to comments received during the review and
prepare a final statement.
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The office,
when requested by the applicant or agency, may make a recommendation as to the acceptability
of the final statement.
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The
authority to accept a final statement shall rest with the agency initially
receiving and agreeing to process the request for approval.
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The final decision-making body or approving
agency for the request for approval is not required to be the accepting
authority.
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The planning department for
the county in which the proposed action will occur shall be a permissible
accepting authority for the final statement.
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Acceptance of a required final statement
shall be a condition precedent to approval of the request and commencement of
the proposed action.
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Upon acceptance or
nonacceptance of the final statement, the agency shall file notice of the
determination with the office.
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The
office, in turn, shall publish the determination of acceptance or nonacceptance
of the final statement pursuant to section 343-3.
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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.
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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.
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In any acceptance or nonacceptance, the
agency shall provide the applicant with the specific findings and reasons for
its determination.
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(f)
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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.
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(g)
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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.
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The council, by
rule, shall establish criteria and procedures for the use of previous
determinations and statements.
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(h)
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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.
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[
Such
]
The
cooperation, to the
fullest extent possible, shall include joint environmental impact statements
with concurrent public review and processing at both levels of government.
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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.
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(i)
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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.
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(j)
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Notwithstanding any provision of this chapter to the contrary, when an
activity that has been previously permitted, authorized, or undertaken by a
state or county agency is
challenged as being subject
to the requirements of this chapter, the activity may continue while the agency
conducts an environmental assessment, prepares an environmental impact
statement, or determines whether the activity is exempt
under this chapter;
provided that this subsection shall not apply to activities involving construction,
grading, dredging, or other structural modifications to land, waterways, or
marine environments.
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SECTION 3.
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This Act does not affect rights and duties
that matured, penalties that were incurred, and proceedings that were begun
before its effective date.
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SECTION 4.
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Statutory material to be repealed is
bracketed and stricken.
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New statutory
material is underscored.
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SECTION 5.
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This Act shall take effect upon its approval.
INTRODUCED BY:
_____________________________
Report Title:
Environmental
Review; Permitted Activities
Description:
Permits, except in certain circumstances, a previously
authorized activity challenged as being subject to environmental review to
continue while the applicable agency conducts an environmental assessment,
prepares an environmental impact statement, or determines whether the activity
is exempt.
The summary description
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not legislation or evidence of legislative intent.