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HomeMy WebLinkAboutCOM 0665.000 2006-2008 NtV Or M~ Brenda J. Ford bVi;~; Phone No.: (808) 326-5684 Council Member Fax No.: (808) 329-4786 District 7-Central Kona E-Mail: bford@co.hawaii.hi.us ?~T~ Ol~N~~' HAWAII COUNTY COUNCIL County of Hawad `i Kailua Trade Center 75-5706 Hanama Place, Surte 109 ` Knilua-Kona, Hawaii 96740 DATE: September 4, 2007 ' TO: Pete Hoffmann, Chairman, and Members of the Hawaii County Council 1 FROM: Brenda J. Ford, Council Member ~~O`G~" , RE: Discussion on the State's Requirement for Environmental Assessment (HRS 343- 5) for any application that requests access to a State Highway and the requirement's impact for access to County roads. Aloha Chairman Hoffmann, I would like to schedule a discussion by the Council Committee on the State's Requirement for Environmental Assessment (HRS 343-5) for any application that requests access to a State Highway and the requirement's impact on proposed access to County roads. To assist with the discussion, I am attaching a copy of HRS 343-5, and a letter from the State Department of Transportation to Mr. Chris Yuen, dated May 16, 2007. I anticipate about one hour for the discussion that will include Corporation Counsel. Please agendize this discussion for the Public Works and Intergovernmental Relations Committee on September 18, 2007. Comm. No. ~o~ Ref. To: W 'RC- Ref. Date SEP 0 7 Serving the Interests of the People of Our Island Hawai `i County /s An Equal Opportunity Provider And Employer Underlining provided by B. Ford §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 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)(9) 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-91; (9) 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; (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; (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. (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 prepare an environmental assessment for such action at the earliest practicable time to determine whether an environmental impact statement shall be required. (1) Eor 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 393- 6, 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. 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; (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. (d) Whenever an applicant simultaneously requests approval for a proposed action from two or more agencies and there is a question as to which agency has the responsibility of preparing the environmental assessment, the office, after consultation with the agencies involved, 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 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. [L 1974, c 246, pt of §1; am and ren L 1979, c 197, §1(5) and (6); am L 1980, c 22, §1; am L 1983, c 140, §8; gen ch 1985; am L 1987, c 187, §2, c 195, §1, c 283, §23, and c 325, ~1; am L 1992, c 241, ~2; am L 1996, c 61, ~2; am L 2004, c 55, ~3; am L 2005, c 130, ~3; am L 2006, c 250, ~4] Attorney General Opinions Amendments to county development plans; when environmental assessments required. Att. Gen. Op. 85-30. Applicable to housing developed under chapter 359G. Att. Gen. Op. 86-13. Case Notes Law contemplates consideration of secondary and nonphysical aspects of proposal, including socio-economic consequences. 63 H. 953, 629 P.2d 1134. Requirements not applicable to project pending when law took effect unless agency requested statement. 63 H. 453, 629 P.2d 1134. Construction and use of home and underground utilities near Paiko Lagoon wildlife sanctuary. 64 H. 27, 636 P.2d 158. Environmental assessment required before land use commission can reclassify conservation land to other uses. 65 H. 133, 698 P.2d 702. Participation by plaintiffs at contested case hearing did not excuse preparation of environmental assessment. 86 H. 66, 997 P.2d 378. For Hawaiian home lands, the department of Hawaiian home lands is the accepting authority for applicant proposals under subsection (c); because the governor is not involved, there is no conflict with Hawaiian homes commission act. 87 H. 91, 952 P.2d 379. "State lands" in subsection (a)(1) includes Hawaiian home lands. 87 H. 91, 952 P.2d 379. In order to achieve the salutary objectives of the Hawaii environmental policy act, and because developer's proposed underpasses had been, from the start, an integral part of the project, developer's proposed construction of two underpasses under highway constituted "use of state lands" within the meaning of subsection (a)(1). 91 H. 94, 979 P.2d 1120. The proper inquiry for determining the necessity of an environmental impact statement (EIS) based on the language of subsection (c) is whether the proposed action will "likely" have a significant effect on the environment; as defined in X343-2, "significant effect" includes irrevocable commitment of natural resources; where the burning of thousands of gallons of fuel and the withdrawal of millions of gallons of groundwater on a daily basis would "likely" cause such irrevocable commitment, an EIS was required pursuant to both the common meaning of "may" and the statutory definition of "significant effect". 106 H. 270, 103 P.3d 939. Where department of Hawaiian home lands lease was executed in contravention of subsection (c) inasmuch as the condition precedent--acceptance of a required final environmental impact statement--was not satisfied, the lease was void. 106 H. 270, 103 P.3d 939. Where all three elements under subsection (c) were present: (1) an applicant proposed an action specified by subsection (a), (2) the action required the approval of an agency, and (3) the action was not exempt under X343-6, the land use commission, as the agency that received the request for approval of the boundary amendment petition, was required by statute to prepare an environmental assessment of the proposed action at the earliest practical time. 109 H. 911, 126 P.3d 1098. Hawaii Legal Reporter Citations Decision on preparation of EIS. 79 HLR 790667. HRS, Volune 06, Chapter 0321-0344 LINDA LINGLE „r, o-r,M1 ~i BARRY rUKUNAGA GOVERNOR qa~`i', ,n ea ~ INTERIM DIRECTOR Depuly DireGOrn (q~ p FRANCIS PAUL KEENO A' BRENNON T. MORIOKA x~~'~9s~~m ~a BRIAN H. SEKIGUCHI STATE OF HAWAII IN REPLY REFER TD: DEPARTMENT OF TRANSPORTATION HWY-PS 869 PUNCHBOWL STREET 2.4355 HONOLULU, HAWAII 96813-5097 MAY 4 6 2007 Mr. Chris Yuen, Director Planning Depaztment County of Hawaii 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Dear Mr. Yuen: Subject: Compliance with Section 343-5, Hawaii Revised Statutes, When Private Development Needs Access along or Utilities within the State Highway Right-of--Way Section 343-5, Hawaii Revised Statutes, provides in part that: §343-5 Applicability and requirements. (a) Except as otherwise provided, an environmental assessment shall be required for actions that Propose the use of state or county (ands.... (b).... (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 declazed exempt under section 343-6, the agency initially receiving and agreeing to process the request for approval shall prepare an environmental assessment of the proposed action at the eazliest practicable time to determine whether an environmental impact statement shall be required.... When an applicant requests to "use" the State highway ROW (State ROW), and can demonstrate to our satisfaction that their request is not related to any specific proposal for development outside the State ROW, the State Department of Transportation (DOT) will continue to follow our existing procedures for determining whether a State Environmental Assessment (EA) is required. Please be advised that whenever an applicant requests that the DOT approve modification or disposal of highway access rights along or use, occupancy, or work within the State ROW to serve proposed development outside the State ROW, we will not be processing the request until the applicant provides written documentation that another State or County agency, with authority to regulate land use outside our State ROW, has already: Mr. Chris Yuen HWY-PS Page 2 2.4355 • Determined that no State EA is required; • Approved a Final State EA and published a Finding ofNo Significant Impact; or • Approved a Final State Environmental Impact Statement (EIS). "Use" of the State ROW for a driveway or utilities, per se, has trivial environmental impacts. However, the Attorney General's Office has advised that when a proposed action involves development both within and outside the State ROW, the scale of development outside the State ROW is relevant to whether an EA is required under Section 343-5, Hawaii Revised Statutes. The DOT has requested the State Environmental Council to amend their rules to clarify that private urban land uses usually do not require an EA for the construction of a driveway or the installation of utilities within a public highway ROW. Unfortunately, the State Environmental Council has rejected our request. Subsequently, further discussion on this matter is ongoing that will hopefully bring resolution to this issue soon. A copy of relevant correspondence is attached for your information. If you have questions, please contact Ronald Tsuzuki, Head Planning Engineer, Highways Divis n at ) 587-1830. Very ly urs, BARRYF AGA Interim Dire or of Transportation Attachment c: Michael Faye. Sonia Faust, Alan Chock, Laura Thielen (all with attachments)