Hawaii-2016-SB2126-Introduced

SECTION 1. The legislature finds that public review and participation are a key and indispensable part of achieving the goal of Hawaii's environmental review law, which is to ensure that environmental concerns are identified and accorded appropriate consideration in government actions and decision making. Given the limited resources and institutional knowledge of government agencies and decision makers, public review and input can provide critical information on the full range and extent of potential environmental impacts and help to ensure that decisions are fully transparent and informed. Public input at an early stage may also serve to minimize any unnecessary adverse impacts of planned actions, thus avoiding waste, conflict, and the degradation of the State's natural and cultural sites and resources.

However, while the environmental review process outlined in chapter 343, Hawaii Revised Statutes, clearly contemplates public review and input, current statutory notice requirements do not ensure that the full benefits of the public's participation are realized. For example, members of the public may not be provided with review or input opportunities prior to the drafting of an environmental assessment or environmental impact statement preparation notice, when proposed actions may already be well-developed, and when substantial adjustments to environmental review and other planning documents may be difficult and costly to make. In addition, notice requirements do not necessarily inform or target members of the local community surrounding a proposed action site, although those community members may be particularly knowledgeable about, and disproportionately affected by, the wide range of potential environmental impacts of the proposed project. Unfortunately, the lack of more meaningful notice mechanisms may have resulted in past failures to adequately consider the full range and extent of the environmental impacts of particular actions, and may have led to project delays as well as distrust by the public.

The purpose of this Act is to require a proposing or approving agency to ensure that a "notice of preparation" is posted in a conspicuous place and manner at any particular site or sites that may be directly impacted by an action, at an early planning stage prior to the drafting of an environmental assessment or impact statement preparation notice.

SECTION 2. Section 343-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Notice of preparation" means a notice posted at the location of a site-specific proposed action by the initiating agency or applicant, informing members of the public of the proposed action."

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

"(b) The office shall inform the public of notices of preparation posted at project sites, and 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."

SECTION 4. Section 343-5, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (b) to read:

"(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, the agency shall post a notice of preparation, in a conspicuous place and manner clearly visible to the public, at any particular site or sites that will be directly impacted by the action. The notice of preparation shall be posted at the earliest practicable time prior to the preparation of an environmental assessment or environmental impact statement preparation notice for the action, and shall include information about the proposed action, the preparation of an environmental assessment or environmental impact statement, and how members of the public may provide comments relating to the proposed action. A copy of the notice or notices and information regarding the location or locations of the notice or notices shall be filed with the office. No earlier than thirty days after the posting of any notice or preparation, the agency shall then 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."

2. By amending subsection (e) to read:

"(e) 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 post a notice of preparation, in a conspicuous place and manner clearly visible to the public, at any particular site or sites that will be impacted by the action. The notice of preparation shall be posted at the earliest practicable time prior to the preparation of an environmental assessment or environmental impact statement preparation notice for the action, and shall include information about the proposed action, the preparation of an environmental assessment or environmental impact statement, and how members of the public may provide comments relating to the proposed action. A copy of the notice or notices and information regarding the location or locations of the notice or notices shall be filed with the office. The agency shall then require the applicant to prepare an environmental assessment of the proposed action at the earliest practicable time, but no earlier than thirty days after the posting of any notice or notices of preparation, 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. 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 applicant 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 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. 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 5. Section 343-6, Hawaii Revised Statutes, is amended to read as follows:

"§343-6 Rules. (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;

(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) Prescribe procedures to appeal the nonacceptance of an environmental impact statement to the environmental council.

(b) After consultation with the affected agencies, the council may adopt, amend, or repeal rules that prescribe procedures for the posting and content of a notice or notices of preparation, and procedures for the receipt of comments in response to the notice or notices, in accordance with chapter 91.

(c) At least one public hearing shall be held in each county prior to the final adoption, amendment, or repeal of any rule."

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on July 1, 2019.

INTRODUCED BY:	_____________________________
	BY REQUEST

THE SENATE	S.B. NO.	2126
TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII