SB2957.DOC

SECTION 1. Chapter 343, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§343- Exemption; protection of the environment, land, and natural resources. (a) Notwithstanding section 343-5(a), an environmental assessment shall not be required for any qualified action that protects, preserves, or enhances the environment, land, and natural resources.

(b) Each applicant or agency proposing to qualify for the exemption shall submit an application for the exemption to the council and the office, detailing the action proposed and describing the anticipated impacts on the environment. Within ten days of the receipt of the application, the application shall be made available for public review and comments pursuant to section 343-3. A public hearing on the application, presided over by the council, shall be held within forty-five days of receipt of the application by the council. At the hearing, the council shall take testimony from the public and the applicant or agency, as applicable, regarding whether the action constitutes a qualified action. Additionally, the applicant or agency shall respond orally to all comments received in response to the application.

(c) If, after hearing all relevant evidence and testimony, the council finds that the proposed action constitutes a qualified action eligible for an exemption under this section, then the council shall authorize the commencement of the qualified action. If the council finds that the proposed action does not constitute a qualified action eligible for an exemption, the council shall provide specific findings and reasons in writing for its determination. All decisions by the council shall be made available to the public. Any person aggrieved by a decision under this section may, within thirty days from the date of the council's determination, request reconsideration of the council's decision.

(d) Not less than thirty days after the completion of the qualified action, the applicant or the agency, as applicable, shall prepare and submit to the council and the office a report documenting the implementation of the qualified action. The report shall include detailed observations of the effect of the action on the environment. The report shall be made available to the public for review.

(e) The environmental council may adopt rules pursuant to chapter 91 to implement this section.

(f) For purposes of this section:

"Qualified action" means an action that will have minimal or no significant negative effects on the environment and is intended to protect, preserve, and enhance the environment, land, and natural resources. The determination of a qualified action shall be made by the council on a case-by-case basis."

SECTION 2. Section 343-3, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:

"(a) All statements, environmental assessments, applications for exemptions, and other documents prepared under this chapter shall be made available for inspection by the public during established office hours.

(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[.], and of applications for exemptions determinations of qualified actions under section 343- .

(1) A public comments process or public hearing if an applicant or agency requests an exemption under section 343- ;

[~~(1)~~] (2) A public comment process or public hearing if a 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 federal Endangered Species Act;

[~~(2)~~] (3) 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)~~] (4) A proposed incidental take license as part of a habitat conservation plan or safe harbor agreement; and

[~~(4)~~] (5) 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."

SECTION 3. Section 343-5, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

"(b) Whenever an agency proposes an action in subsection (a), other than feasibility or planning studies for possible future programs or projects that the agency has not approved, adopted, or funded, or other than the use of state or county funds for the acquisition of unimproved real property that is not a specific type of action declared exempt under section 343-6[,] or an action that may constitute a qualified action that would be exempt under section 343- and the applicant or agency obtains an exemption under that section, the agency shall prepare an environmental assessment for such 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 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) 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 343-6343-6[,] or an action that may constitute a qualified action that would be exempt under section 343- and the applicant or agency obtains an exemption under that section, the agency initially receiving and agreeing to process the request for approval shall 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 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."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2957
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII