Hawaii Supreme Court Says "Timing of the Action" may be Considered a Significant Effect

The Hawaii Supreme Court recently issued a seminal decision on when a supplemental EIS is required under the Hawaii Environmental Policy Act ("HEPA"). See Unite Here! Local 5 v. City and County of Honolulu, Haw. S. Ct No. 28602, April 8, 2010.

As more fully described in Appellate Court Issues Opinion in Turtle Bay EIS Case, this case involves an EIS that was accepted by the City's Department of Planning and Permitting ("DPP") in 1985. The EIS studied the environmental impacts of the proposed Turtle Bay resort project which included approximately 1,450 hotel rooms, a golf course, 2,060 condominium units, a commercial complex, and other amenities. Much of the proposed project was not completed (for various reasons) and lay dormant until 2005 when Kuilima submitted a subdivision application to DPP.

In 2006, the DPP granted tentative subdivision approval so that Kuilima could proceed with components of the project studied in the 1985 EIS. Upon subdivision approval, the plaintiffs sought declaratory and injunctive relief to stop the project in the trial court. The trial court and Intermediate Court of Appeals ("ICA") decided in favor of Kuilima and concluded that HEPA regulations should be interpreted such that "an agency can require an SEIS only when there is a substantive change in the project itself." (Emphasis added.) Thus, an SEIS was not required as part of tentative subdivision approval, because the plaintiffs had not shown a substantive change in the project.

On writ of certiorari, the Hawaii Supreme Court disagreed with the ICA and reversed the trial court's order. In pertinent part, the Court concluded that:

Inasmuch as: (1) over twenty years have passed since

the approval of the 1985 EIS; (2) the evidence demonstrates that

environmental impacts were examined only through 2000; and

(3) the project is not yet completed, we conclude that the

project, although unchanged in terms of size, scope, location,

intensity, and use, is -- due to the change in timing -- an

“essentially different action,” HAR § 11-200-26, thereby

rendering “the original statement . . . no longer . valid.”

Id. Consequently, contrary to the ICA-majority’s opinion, a SEIS

may be required and, thus, next examine whether a change in

timing “may have a significant effect.” See HAR § 11-200-26.

(Emphasis in original.)

Based on plaintiffs’ letters to DPP which raised issues related to changes in traffic, population density, and the habitats of endangered species and further evidence of these issues provided by plaintiffs in the trial court, the Court held as follows:

. . . we believe the plaintiffs have clearly presented “new” evidence that was not considered at the time the 1985 ElS was prepared and could likely have a significant impact on the environment. Consequently, we hold that the project constitutes an “essentially different action . . . under consideration” and, based on the plain language of HAR § 11-200-26, “a supplemental statement [should have been] prepared and reviewed.”

(Citations omitted.)

Based on the Court's decision, agencies granting approvals based on a previously prepared EIS must "take a 'hard look' at the allegations and evidence presented to it[.]" In taking a hard look the agency must follow the "rule of reason," which the Court articulates as follows:

In making such a determination the court is guided by the “rule of reason,” under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives.

This is the same standard that applies to EIS acceptability determinations in Hawaii and was first cited by Life of the Land v. Ariyoshi, 59 Haw. 156 (1978).

For more on HEPA issues, see the Environmental Law archive.

Forty-Eight Kauai Species Added to the Federal Endangered Species List

The U.S. Fish and Wildlife Service, recently added 48 species found only on the island of Kauai to the federal endangered species list. In addition, 47 critical habitats (26,582 acres in six different ecosystem types) were designated for the newly listed species.

The listed species include 45 Plants, 2 Birds, and 1 Insect. As examples, below are photographs of the Akikiki (endangered spec.) and Waimea Canyon (critical habitat), courtesy of the Pacific Islands Fish and Wildlife Office.

The Fish and Wildlife Service in the Department of the Interior and the National Oceanic and Atmospheric Administration (NOAA)-Fisheries in the Department of Commerce share responsibility for administration of the Endangered Species Act (ESA). The purpose of the ESA is to protect and recover imperiled species and the ecosystems upon which they depend. An “endangered” species is one that is in danger of extinction throughout all or a significant portion of its range. It is unlawful “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect [a listed species] or attempt to engage in any such conduct” without a Federal permit.

In addition, the ESA requires the designation of “critical habitat” for listed species when “prudent and determinable.” Federal agency actions or federally funded or permitted activities are required to avoid “destruction” or “adverse modification” of designated critical habitat. See ESA Basics. Similar restrictions apply under Hawaii's endangered species laws. See HRS Chapter 195D.

For more on the Endangered Species Act, see this site's Endangered Species Act archive.

Rail Transit Project will Connect Honolulu's Colleges and Universities like a Lei

At a March 15, 2010 workshop for the Honolulu Community College (HCC) Long Range Development Plan (LRDP), approximately 60 Students, Staff, Faculty, and Administration discussed future plans for the campus.

Among other things, the group made the following findings and recommendations regarding the incorporation of Honolulu's High-Capacity Transit Corridor Project, a 20-mile elevated rail line that will connect West O`ahu with downtown Honolulu and Ala Moana Center:

• A transit station could become showcase for HCC, include food/retail (income generating) and bring community into campus (function as a hub of civic activity);
• Transit will provide campus with more exposure to the public;
• Adopt planned transit station and make it the “HCC Station”;
• Rail transit will help connect satellite HCC facilities with LCC, UHWO and HCC; and
• Transit access and a new parking garage could fuel the demand for and activities at the Kapālama Canal Park.

HCC is part of the University of Hawaii System of college campuses. As part of the current project, Leeward Community College and UH West Oahu will also incorporate transit stations into their plans. The following are renditions of those stations from the Honolulu Rail Transit website:

Leeward Community College

UH West Oahu

Future extensions of the Transit Project would include a spur to the UH Manoa campus.

For more on transit related items, see Transportation.

Legislature Attempts to Clarify Shoreline Definition

The State Legislature is considering an amendment to the definition of shoreline.

HB1808 HD3 SD1, "clarifies that a shoreline is the edge of natural vegetation growth or the upper limit of debris left by the wash of the waves, whichever is further most mauka, but never lower than the upper limit of debris left by the wash of the waves." See Stand. Com. Rpt No. 2993. The bill passed the house and will be heard for its last reading by the senate. The bill will likely pass the legislature and be transmitted to the governor for her consideration.

The bill is partially in reaction to Diamond v. State, Board of Land and Natural Resources, 112 Haw. 161 (2006). In Diamond, littoral landowners hired a landscaper to plant vegetation, including spider lilies and naupaka, along the "seaward property line" and the public right of way. An irrigation line was also installed to water the newly planted vegetation. The question before the court, inter alia, was how to determine the upper reaches of the wash of the waves for determining the shoreline boundary of a property. In particular, the court addressed the definition of "vegetation growth" that can be evidence of the shoreline. The court concluded that artificial extensions of the vegetation lines shall not be considered in determining a shoreline boundary. Thus, the court held that HRS § 205A-1 clearly defines "shoreline" as:

[T]he upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.

HB1808 HD3 SD1 would amend HRS § 205A-1 as follows:

"Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of natural vegetation growth, or the upper limit of debris left by the wash of the waves[.], whichever is further most mauka, but never lower than the upper limit of debris left by the wash of the waves."

(Underlined text added, bracketed text deleted.)

The amended shoreline definition picks up on Diamond's prohibition on extensions of the vegetation lines by modifying "vegetation" with the adjective "natural." Unfortunately, this may not clarify the court's holding. What is "natural" vegetation? Is irrigated vegetation not natural?

The legislature is also focusing the evaluation of the shoreline boundary on the debris line. The amendment states that the shoreline shall never be "lower than the upper limit of debris"; however, what if there is no debris line? The law, as it is, gives the DLNR (the agency responsible for certifying shoreline boundaries) two methods for determining the shoreline boundary: the debris line or the vegetation line, whichever is higher. Determining the shoreline boundary is not a science, but an art. It is not always apparent where the shoreline is located. DLNR should have the discretion to use the method that best fits a particular situation.  If there is disagreement among interested parties, an administrative appeal process exists.

Given the Diamond decision, the law does not need to be changed. DLNR has the tools it needs to certify a shoreline boundary under current law.

For more on shoreline and littoral landowner issues, see Shoreline.