Hawaii Inter-Island Ferry Redux

The February 11, 2010 edition of Stars and Stripes reports that the Army is considering purchasing up to a dozen high-speed vessels similar to the ones used by the now-defunct Hawaii Superferry interisland ferry service. See Army Mulls High-speed Water Transports.

Unlike the Hawaii Superferry's failed attempt at bringing Hawaii its first, statewide inter-island ferry service, the Army will first complete the required environmental studies that the Hawaii Superferry failed to do. See Hawaii Supreme Court Publishes Superferry Opinion.

The Army currently plans to use its ferry service to support the rapid transport of military troops and equipment in the U.S. and abroad. If successful, the Army's ferry service could reopen the door to a civilian ferry service. An inter-island ferry service for Hawaii would serve a vital role in connecting families and local markets.

Activist groups, like Sierra Club-Hawaii, have noted concerns about the possiblity that the catamarans will transfer invasive species between the islands and collide with humpback whales who winter in Hawaii's waters. These impacts will likely be identified, studied, and mitigated as part of the Army's environmental process.

For more on environmental issues related to ferry service in Hawaii, see Hawaii Superferry.

Hawaii Environmental Reform Bill Passes Second Senate Committee

SB2818, which proposes a major overhaul of Hawaii's environmental impact statement laws, passed its second hurdle as it wends its way through the Hawaii State Legislature. The bill is part of a package of bills resulting from Act 1, passed in 2008, which requested a full examination of Hawaii's environmental review system.  Act 1 culminated in the University of Hawaii Environmental Review Study released at the beginning of the current legislative session.

On February 9, 2010, the Senate Committee on Energy and Environment ("ENE") recommended that SB2818 pass with amendments. On February 10, 2010, the Senate Committee on Water, Land, Agriculture, and Hawaiian Affairs ("WLH") also recomended passage of SB2818.

On February 12, 2010, ENE and WLH filed a joint report (Stand. Com. Rep. No. 2333), which recommends (1) passage of SB2818 on Second Reading, as amended (SB2818 SD 1), and (2) referral to the Senate Committee on Ways and Means ("WAM"). WAM is the last of three Senate committees that SB2818 must be heard in before it crosses over to the House for further consideration.

Stand. Com. Rep. No. 2333 lists the following changes to SB2818:

(1) Removing the transfer provisions for the Office of Environmental Quality Control and the Environmental Council to move to the Department of Land and Natural Resources, and leaving the Office and Council under the Department of Health;

(2) Increasing the membership of the Environmental Council from seven to nine members;

(3) Including a session law to clarify that present members of the Environmental Council shall serve through June 30, 2012, or until new members are appointed and confirmed;

(4) Clarifying when an environmental assessment shall be required;

(5) Clarifying that the mitigation monitoring report is a disclosure document that requires the approving agency to report on permit mitigation monitoring five and ten years after the completion of the record of decision;

(6) Adding a definition of "significant adverse environmental effect" for clarity;

(7) Increasing the number of years that an environmental assessment or environmental impact statement is valid from seven to ten years;

(8) Changing the effective date to July 1, 2010 for the amendments to chapter 341 and section 343-6, Hawaii Revised Statues, and keeping the effective date for the remaining amendments to chapter 343 at July 1, 2012; and

(9) Making technical, nonsubstantive changes for the purposes of style, clarity, and consistency.

In making its recommendations, the joint committee report notes that

[t]he [University of Hawaii Environmental Review Study] proposed that Hawaii update, refocus, and streamline its environmental review system by replacing the current "project trigger" screen, which encourages late review and eleventh hour public participation, with a new "earliest discretionary approval" screen to encourage early review and public participation. Under this measure, environmental review will apply to major government actions and to private actions tied to an agency discretionary approval process. To increase predictability, agencies will maintain public lists of major discretionary actions that require review and those ministerial actions that do not.

According to the joint committee report, one organization supported SB2818, while thirteen organizations including state and county agencies opposed the bill. Excerpts of that testimony are listed in Hawaii Environmental Reform Bill Passes Committee with Amendments.

For more on environmental issues and the legislature, see Legislative Updates and Environmental Law.

Hawaii Environmental Reform Bill Passes Committee with Amendments

On February 9, 2010, the Senate Committee on Energy and Environment ("ENE") recommended that SB2818 pass with amendments.

Summary of Bill Considered by ENE.

SB2818 is part of a package of bills proposing major changes to the Hawaii Environmental Policy Act ("HEPA").  The proposed bill is based on a University of Hawaii study prepared for the legislature entitled, Report to the Legislature on Hawaii's Environmental Review System. Changes proposed in SB2818 include:

• Moving the office of environmental quality control ("OEQC") from the department of health to the department of land and natural resources ("DLNR");
• Reducing the number of members in the environmental council from 15 to 7 members;
• Exempting the rule-making process from public notice, public hearing, and gubernatorial approval requirements for so called, "interim rules";
• Creating an environmental review special fund and additional filing and administrative fees;
• Adding a broad definition of "significant adverse effect on the environment" based on 14 enumerated factors;
• Expanding applicability of HEPA to all "actions that require discretionary approval from an agency and that may have a probable, significant, and adverse environmental effect";
• Requiring a record of decision ("ROD") similar to that required by NEPA (see e.g., FHWA ROD and EPA ROD);
• Requiring environmental monitoring by agencies;
• Defining "action" to not include ministerial actions (e.g., building permits);
• Defining "cumulative impacts", which would include "individually minor but collectively significant actions taking place over a period of time";
• Defining "Secondary effects" and "indirect effect", which would include "effects that are caused by an action and are later in time or farther removed in distance, but are still reasonably foreseeable";
• Allowing "tiering" and "programmatic" environmental documents;
• Providing for electronic documents;
• Prescribing page limits (cf. Price v. Obayashi, opining that length of document "demonstrate[s] . . . good faith efforts to set forth sufficient information to enable the decision‑maker to consider fully the environmental factors involved"); and
• Expanding potential litigants to include, by definition, those who comment on environmental assessments.

Public Testimony Heard by ENE.

Here is a sampling of some of the testimony provided at the ENE hearing (click on the testifier's name for a direct link to the actual testimony submitted to ENE):

• State Attorney General. Opposed. "The bill would adopt a wholly different approach, mandating environmental reviews wherever a proposed action requires 'discretionary approval from an agency' and 'may have a probable, significant, and adverse environmental effect.' While the current system needs reform, this proposal would make things even worse. This set of radical changes could harm both property development and environmental protection in Hawaii."
• Earthjustice. Opposed. "[N]oted several items of concern that suggest this proposal requires further vetting before being taken up by the Legislature." Their concerns include that the bill's "proposed trigger conflicts with the existing definition of, 'environmental assessment'"; the bill establishes a more "demanding trigger for preparation of an EA than for an environmental impact statement"; and the bill proposes "strict page limits".
• Lee Sichter. Opposed. Provides a comprehensive review of the bill including recommendations.
• Land Use Research Foundation. Opposed. "Don't need to fix' something that ain't broken."
• Department of Land and Natural Resources. Opposed. "The Department does not have the staff or resources to support a new mandate created by transferring the program functions of OEQC and the Environmental Council from DOH to the Department of Land and Natural Resources."
• Department of Budget and Finance. Opposed. "[D]oes not support the creation of any special or revolving fund which does not meet the requirements of Sections 37-52.3 and 37-53.4 of the Hawaii Revised Statutes."
• Office of Environmental Quality Control. Opposed. Study is not final, "allow OEQC to submit changes to the proposed amendments, once the final version of the university study has been submitted."
• Environmental Council. Supported. "All of the operational difficulties and challenges currently faced by the Environmental Council would be corrected through the cumulative actions proposed in SB2818."
• Department of Planning and Permitting, City and County of Honolulu. Opposed. "[O]pposes two of the proposals contained in Senate Biil 2818, in particular that lead agencies inciude conditions established in an environmental impact statement (EIS), and that an EIS or environmental assessment (EA) shall have a duration of not more than seven years."
• Chamber of Commerce of Hawaii. Opposed. "While we understand the need for a review of Chapter 343 HRS, we believe that the review should focus on fixing specific problems rather than assuming that the entire statute needs to be revised."
• Alexander & Baldwin, Inc. Opposed. "[R]evision will result in a huge and we believe unnecessary increase in the number of actions requiring environmental review - particularly while the new and greatly expanded exemption lists that will be required are being developed - and may exacerbate one of the perceived "problems" that the bill purports to address."
• Hawaii Farm Bureau Federation. Opposed. "[W]e do not believe that SB 2818 will make the process more streamlined, transparent, consistent, or efficient."
• Building Industry Association of Hawaii. Opposed. "[W]e prefer and support the language in SB 2830 Relating to Environmental Protection as that bill reflects our suggested revisions to SB 2818."
• Nature Conservancy. Supported. "[S]upports the intent of S.B. 2818, particularly the effort to streamline the environmental review process with a discretionary approval screen, and significance and applicability criteria." Proposes more lenient environmental review for so called "conservation work."
• Hawai'i Chapter of the Sierra Club. Opposed. "[M]easure creates tremendous uncertainty as to what projects are subject to environmental review, damages the careful balance struck by Hawaii's current three-decade old environmental protection act, and may expose Hawai'i's fragile environment to irreparable harm."

ENE Amendments.

After hearing the above public testimony and considering the bill as proposed, ENE decided to, among other things, amend SB2818 by deleting the transfer of OEQC and environmental council to the department of land and natural resources, and changing the composition of the environmental council to 9 members. A significant amendment includes requiring an EIS to be revisited if it is 10 years old.

ENE created a working group to to review further changes to SB2818 during the legislative session. The group is comprised of the following: UH Study Team, OEQC, Chair of the environmental council and a member with planning expertise, Building Industry Association of Hawaii, Sierra Club-Hawaii, Land Use Research Foundation, Earth Justice, Belt Collins, and Nature Conservancy.

Next Steps.

A complete ENE committee report describing ENE's above actions will be posted in the coming weeks. SB2818 is scheduled to be heard by the Senate Committee on Water, Land, Agriculture, and Hawaiian Affairs ("WLH") today at 2:45 p.m. in conference room 229; however, it may be deferred.  If the bill is reported out of WLH, it must be heard and reported out of the Senate Committee on Ways and Means before it crosses over to the House for its consideration.

For more on environmental issues and the legislature, see Legislative Updates and Environmental Law.

2010 HEPA Distribution List Available at OEQC Website

Under HAR § 11-200-21,

The [Office of Environmental Quality Control] shall be responsible for the publication of the notice of availability of the EIS in its bulletin. The office shall develop a distribution list of reviewers (i.e., persons and agencies with jurisdiction or expertise in certain areas relevant to various actions) and a list of public depositories, which shall include public libraries, where copies of the statements shall be available, and to the extent possible, the proposing agency or applicant shall make copies of the EIS available to individuals requesting the EIS. The office's distribution list may be developed cooperatively among the applicant or proposing agency, the accepting authority, and the office; provided the office shall be responsible for determining the final list. The applicant or proposing agency shall directly distribute the required copies to those on the distribution list after the office has verified to the applicant or proposing agency the accuracy of the distribution list. For final statements, the agency or applicant shall give the commentor an option of requesting a copy of the final EIS or portions thereof.

In short, here is the 2010 Office of Environmental Quality Control, EA / EIS Distribution List. HEPA preparers should pay particular attention to the mandatory reviewers and persons requiring notice indicated in the table with an "M."

For related articles see Environmental Law.