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by Lisa A. Bail and Alana T. Song
Changes to the Hawai'i Environmental Impact Statement Rules took effect as of August 9, 2019. The previous Hawai'i Administrative Rules Title 11 chapter 200 was repealed (the "1996 Rules") and Hawai'i Administrative Rules Title 11 chapter 200.1 was adopted in its place (the "Final Rules"). The language and intent of the Hawai'i Environmental Policy Act ("HEPA"),1 however, remain unchanged: "to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations."2
This article reviews the phasing in of the Final Rules, and highlights certain changes to the rules.3 The Final Rules describe a new category of de minimis actions exempt from environmental review, impose new requirements on agencies proposing exemption lists, and enact new requirements for content related to climate change. The Final Rules also set forth several new procedural requirements, including a new method to determine whether a proposed action is covered under a previous environmental review document or exemption, and a new process aUowing a proposed action to skip the interim Environmental Assessment ("EA') and instead prepare an Environmental Impact Statement ("EIS"). Moreover, the Final Rules impose new EIS scoping requirements, and allow responses to similar public comments to be grouped, following an analogous federal process under the National Environmental Policy Act ("NEPA'). Finally, the new rules allow the public comment period for environmental review documents to be voluntarily extended.
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Five-Year Grandfathering of Ongoing Review
Although the Final Rules took effect several months ago, the Final Rules also provide that the 1996 Rules continue to apply to environmental reviews that began prior to adoption of the Final Rules.4 This means that proposed actions that began prior to the adoption of the Final Rules are required to continue following the 1996 Rules. After five years, unless an environmental review has reached its conclusion, ongoing actions must follow the Final Rules.
Draft EAs that were published prior to the adoption of the Final Rules must follow the 1996 Rules until they receive a determination. If the determination is not received within five years from the implementation of the Final Rules, then the proposed action must comply with the Final Rules.5 Similarly, if an EIS Preparation Notice ("EISPN") was published by the Office of Environmental Quality Control ("OEQC") prior to the implementation of the Final Rules, the EIS process continues under the 1996 Rules, but if the final EIS has not been accepted within five years of the implementation of the Final Rules, the proposed action must comply with the Final Rules.6 The OEQC also intends that if an EIS was accepted before the enactment of the Final Rules, it will remain under the 1996 Rules "for purposes of supplemental EISs."7
Furthermore, agencies' existing exemption lists may be used for seven years after the adoption of the Final Rules. After that time, the agencies must revise their lists and present them to the Environmental Council for concurrence.8
Across-the-Board Changes
Clarity and Consultation
Under the Final Rules, exemption notices, EAs and EISs must succinctly convey information in an easily understood and self-contained format. The substance of the information conveyed is given priority over the particular form or length of the document. Additionally, consultation must be "mutual, open and direct, two-way communication, in good faith" involving the meaningful participation of agencies and the public.9
Filing Requirements
The Final Rules contain new and detailed filing requirements for publication and withdrawal of environmental review documents. The OEQC may not accept untimely submittals or revisions after the publication deadline. Anything filed with the OEQC may be withdrawn by submitting a written letter regarding the withdrawal. Notices of the withdrawal of an anticipated FONSI or EISPN must include a rationale and specify the documents to be withdrawn.10
Reorganization
The 1996 Rules were reorganized in the Final Rules to consolidate similar rules and to reflect the sequence of the environmental review process: consultation prior to preparing a draft EIS, content requirements for a draft EIS, public review of a draft EIS, comment responses for a draft EIS, content requirements for a final EIS, and the acceptability of a final EIS.11 This reorganization of the rules necessitated an entirely new chapter, rather than a revision of the 1996 Rules.
Clarifications
One of the changes of note is the clarification between "approving agency" and "accepting authority." The Final Rules have removed any reference to an "approving agency" and the term is instead replaced with "accepting authority" or removed when the two terms are referenced together. This change was made to reduce the confusion between the two terms that was created by HEPA's use of both terms without a clear distinction.12 The Final Rules also clarify that the OEQC will never serve as the accepting authority.13 Other clarification changes include changing vague words with consistent abbreviations (e.g., "assessment" is changed to "EA" and "statement" is changed to "EIS") and clarifying whether the EA or EIS being discussed is a "draft" or "final."14
Additionally, definitions for "program" and "project" were added to distinguish between program-level review and project-based review that is site and time specific.15 A "program" is a series of projects that may include multiple locations and is undertaken for a broad goal or purpose.16 In contrast, a "project" is a discrete undertaking at a specific location and time that has a specific goal or pur-pose.17 The Final Rules allow programmatic review for analysis of the interactions of a number of planned projects or phases in a program. As further discussed below, if a "program EA" or a "program EIS" is prepared, the Final Rules allow an agency to determine that further review is not required if the proposed action was analyzed in a program EIS. This process is similar to the "tiering" to programmatic EISs allowed under NEPA.18
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Emergency Actions
During a governor-declared state of emergency, agencies proposing an action must document that the emergency action was undertaken pursuant to a specific emergency proclamation. Emergency actions that have not substantially commenced within sixty days of the emergency proclamation are subject to HEPA. Agencies must similarly document emergency actions taken when no emergency declaration is made, and also include those emergency actions on the list of exemption notices published by the agency in The Environmental Notice.19
Digital Transition
The Final Rules have digitized most mailing and print-copy requirements. For example, agencies and applicants must submit their materials electronically to the OEQC for publication in The Environmental Notice. Likewise, the OEQC is required to distribute The Environmental Notice electronically. The Final Rules only require paper copies in limited circumstances. One paper copy of the draft EA, final EA, EISPN or Draft EIS must be given to the "nearest state library in each county in which the proposed action is to occur," and one paper copy of the draft EA, final EA, EISPN or Draft EIS must be provided to the Hawai'i Documents Center.20
Topical Changes
Use of Prior Review Documents Section 11-200.1-11 was introduced to provide agencies with guidance on whether a proposed action is covered under a prior existing exemption, EA, or EIS. If the below criteria apply, the proposed action could be covered under the existing HEPA process. If the below criteria do not apply, the agency must determine if an exemption, EA, or EIS is appropriate by conducting a separate HEPA analysis.21 According to this section, the agency may determine that an additional environmental review is not required because:
1. The proposed action was a component of, or is substantially similar to, an action that received an exemption, FONSI, or an accepted EIS (for example, a project that was analyzed in a program EIS);
2. The proposed action is anticipated to have direct, indirect, and cumulative effects similar to those analyzed in a prior exemption, final EA, or accepted EIS; and
3. In the case of a final EA or an accepted EIS, the proposed action was analyzed within the range of alterna-tives.22
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This section of the Final Rules was added to address situations where a program EIS analyzes a component of the program, and later in time that component is ready to be implemented.23 Under Rule 11-200.1-11, an agency may determine that additional environmental review is not required if the proposed action is a component of an accepted EIS, it has similar direct, indirect, and cumulative effects as those analyzed in the program EIS, and the proposed action was analyzed as an alternative in the program EIS. The OEQC's rationale is that the proposed activity cannot be considered similar if there have been significant changes to the environmental conditions and information from what was analyzed in the accepted EIS.24 If an agency makes the determination that a prior exemption, final EA, or accepted EIS does not satisfy the environmental review for a proposed action, the proposing agency must comply with the determination of significance requirements in subchapter 7 of the Final Rules to define the necessary level of environmental review for the proposed action.25
If an agency determines that the proposed action is covered by a prior exemption, FONSI or accepted EIS, the agency will publish a brief written rationale, and the proposed action may pro-ceed.26 The Final Rules accentuate the...
