THE SENATE	S.B. NO.	2830
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII

A BILL FOR AN ACT

relating to environmental protection.

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

     SECTION 1.  The purpose of this Act is to revise the environmental review process to create an approach that is based primarily on land use decisions rather than individual projects.

     SECTION 2.  Section 304A-1551, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  There is created within the university an environmental center.  [The center shall assist the director of environmental quality control as provided for under section 341‑4.]"

     SECTION 3.  Section 341-2, Hawaii Revised Statutes, is amended to read as follows:

"§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).] 341-3(b).

     "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.]"

     SECTION 4.  Section 341-3, Hawaii Revised Statutes, is amended to read as follows:

"§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] office of the governor for administrative purposes.  The office shall perform its duties 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 members.  Except for the director, members of the environmental council shall be appointed by the governor as provided in section 26-34.  The council shall be attached to the [department of health] office of the governor for administrative purposes.  Except for the director, the term of each member shall be four years; provided that, of the members initially appointed, five members shall serve for four years, five members shall serve for three years, and the remaining four 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 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."

     SECTION 5.  Section 341-4, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

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

     (1)  Direct the attention of the [university community and the] residents of the State in general to ecological and environmental problems through [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] state, county, and federal agencies, or other persons with competence in the field of ecology and environmental quality;

     (3)  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 programs for long-range implementation of environmental quality control;

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

     (6)  Conduct public educational programs; and

     (7)  Offer advice and assistance to private industry, governmental agencies, or other persons upon request."

     SECTION 6.  Chapter 343, Hawaii Revised Statutes, is amended as follows:

      1.  By amending section 343-1 to read:

"§343-1  Findings and purpose.  The legislature finds that the quality of humanity’s environment is critical to humanity’s well being, that humanity’s activities have broad and profound effects upon the interrelations of all components of the environment, and that an environmental review process will integrate the review of environmental concerns with existing planning processes of the State and counties and alert decision makers to significant environmental effects which may result from the implementation of certain actions.  The legislature further finds that the process of reviewing environmental effects is desirable because environmental consciousness is enhanced, cooperation and coordination are encouraged, and public participation during the review process benefits all parties involved and society as a whole.

     It is the purpose of this chapter to establish a non-regulatory, public disclosure system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations."

      2.  By amending section 343-2 to read:

"§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[,] as a public disclosure document which 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.]

     ["Agency"] "Agency action" means any program or project to be initiated by any department, office, board, or commission of the state or county government which is a part of the executive branch of that government.

     ["Applicant"] "Applicant action" means any program or project to be initiated by any person who, pursuant to statute, ordinance, or rule, officially requests discretionary 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.

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

     "Discretionary [consent"] approval" means a land use related 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 discloses the environmental effects of a proposed action, effects of a proposed action on the economic welfare, social welfare, and cultural practices of the community and State, effects of the economic activities arising out of the proposed action, measures proposed to minimize adverse effects, and 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.

"Exempt" means any specific type of agency or applicant action, that due to the probable finding of minimal or no significant effects on the environment, is declared exempt from the preparation of an environmental assessment, including any action that is consistent with existing zoning, county general or development plans.

     "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.]

     "Office" means the office of environmental quality control.

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

     ["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.

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

     "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.

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

      3.  By amending section 343-5 to read:

     "§343-5  Applicability and requirements.  (a)  Except as otherwise provided, an environmental assessment shall be required for actions that:

     (1)  Propose the use of state or county lands or the use of state or county funds, other than funds to be used for feasibility or planning studies for possible future programs or projects that the agency has not approved, adopted, or funded, or funds to be used for the acquisition of unimproved real property; provided that the use of government owned road rights-of-way solely for utility and access connections shall not require an environmental assessment or a statement; provided further 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 National 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; and

     (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.] Propose any reclassification of any land classified as agricultural to urban district by the state land use commission under chapter 205.

     (b)  Agency action.  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 [such] the action at the earliest practicable time to determine whether an environmental impact statement shall be required.

     (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] the determination with the office.  The office, in turn, shall publish the determination of acceptance or nonacceptance pursuant to section 343-3.

     (c)  Applicant action.  Whenever an applicant proposes an action specified by subsection (a) that requires discretionary 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 prepare, or 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, 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.  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] the determination with the office.  The office, in turn, shall publish the determination of acceptance or nonacceptance of the final statement pursuant to section 343-3.

     The agency receiving the request, within thirty days of receipt of the final statement, shall notify the applicant and the office of the acceptance or nonacceptance of the final statement.  The final statement shall be deemed to be accepted if the agency fails to accept or not accept the final statement within thirty days after receipt of the final statement; provided that the thirty-day period may be extended at the request of the applicant for a period not to exceed fifteen days.

     In any acceptance or nonacceptance, the agency shall provide the applicant with the specific findings and reasons for its determination.  In making its determination, the accepting authority shall provide an explanation on how the document met the requirements of this chapter as a public disclosure document.  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)  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)  In preparing an environmental assessment, an agency may consider and, where applicable and appropriate, incorporate by reference, in whole or in part, previous determinations of whether a statement is required and previously accepted statements.  The council, by rule, shall establish criteria and procedures for the use of previous determinations and statements.

     (f)  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] The 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.

     (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 shall be required.

(h)  Whenever any agency or applicant action is determined to be significant by an agency or applicant prior to the preparation of an environmental assessment, the agency or applicant may proceed directly to the preparation of an environmental impact statement, with the approval of the director."

      4.  By amending subsection 343-6(a) to read:

"(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:

     (1)  Prescribe the procedures whereby a group of proposed actions may be treated by a single environmental assessment or statement[;], including the consolidation of actions into 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;

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

     (4)  Prescribe the contents of 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 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) Establish procedures for the acceptance of electronic comments and responses for environmental assessments and statements; and

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

     SECTION 7.  All rights, powers, functions, and duties of the department of health relating to the office of environmental quality control and the environmental council are transferred to the office of the governor.

     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 such 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 such 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.

     SECTION 8.  All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of health relating to the functions transferred to the office of the governor shall be transferred with the functions to which they relate.

     SECTION 9.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 10.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 11.  This Act shall take effect on July 1, 2010.

INTRODUCED BY:

_____________________________

Report Title:

Environmental Protection

Description:

Removes the university of Hawaii environmental center from the environmental quality control process; transfers the office of environmental quality control from the department of health to the office of the governor; revises the environmental review process to create an approach that is based primarily on land use decisions rather than individual projects.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.