A. Legal Authority

• Chapter 343, HRS, as amended, Environmental Impact Statements
• Title 11, Chapter 200, HAR, Environmental Impact Statement Administrative Rules

Information: http://hawaii.gov/health/environmental/oeqc/index.html

B. Purpose

The Hawaiʻi Environmental Impact Statement law, Chapter 343, HRS, establishes a system of environmental review at the state and county levels that is intended to ensure that environmental concerns are given appropriate consideration in decision making along with relevant economic and technical issues. The law also assures the public the right to participate in the planning of projects that may affect their community. This is accomplished first by preparing an Environmental Assessment (EA), an information sharing document, to evaluate whether an action may have a significant environmental effect. If the action is determined to have a significant effect, then a more detailed Environmental Impact Statement (EIS) must be prepared.

Both the EA and the EIS provide information which describes the proposed project and discloses the potential environmental effects, as well as the effects of a proposed action on the economic and social welfare of the community and the state. In addition, information is presented to evaluate the effects of the economic activities arising out of the proposed action, any measures proposed to minimize or mitigate adverse effects, and the considered alternatives to the action and their effects. Applicants must also carry out a cultural impact assessment for inclusion in the document.

The state environmental review process is modeled on the federal National Environmental Policy Act. If both federal and state agencies are involved with approving the proposed project, the environmental review must be coordinated.

C. Applicability to Aquaculture

Under the state’s environmental law, all activities fall into one of four categories: 1) do not require a Chapter 343 review; 2) trigger a Chapter 343, but are exempt; 3) trigger Chapter 343 and require the preparation of an EA; or 4) trigger Chapter 343 and require the preparation of an EIS. In general, the environmental review is required under Chapter 343 for any program or project that proposes one or more of nine land uses or 35 administrative acts, six of which relate to aquaculture:

• Use of state and county lands or funds other than for feasibility studies or the purchase of raw land;
• Use of any land classified as Conservation District by state law;
• Use within the Shoreline Setback area;
• Use within an Historic Site or District as designated in the National or Hawaiʻi Register of Historic Sites;
• Any amendment to county general plans that would designate land as other than agriculture, conservation, or preservation except comprehensive plan amendments initiated by the county; and
• Reclassification of state Conservation District Lands.

Once an agency determines that an action triggers the EIS law, it must decide if the action is either: exempt, will require an EA, or will require an EIS.

If a proposed action is not exempt (see below), an EA must be prepared. If the administering agency determines, after reviewing the EA, that the proposed action will not have a significant impact on the environment a “negative declaration” will be issued stating that preparation of an EIS will not be required. If an agency anticipates that a “negative declaration” will be issued, a draft EA must be made available for public review for at least 30 days and in the final EA the agency/applicant must respond in writing to comments received. If, for actions covered by the categories described above, the responsible agency determines that the proposed action may have a significant impact, an EIS must be prepared.

Not every program or project falling within the six categories will need to undergo an environmental review. Certain activities are deemed minor or routine by the state or county agency that has oversight. The agency can declare the activity exempt from environmental review. There are nine classes of exempt action under EIS rules that relate to aquaculture projects (see §11-200-8 HAR for details). However, if the cumulative impacts of actions are significant where the action is normally insignificant, the exemptions listed below are inapplicable. The exempt classes of activities are as follows:

• Operations, repairs or maintenance of existing structures, facilities, equipment, or topographical features, involving negligible or no expansion or change of use beyond that previously existing;
• Replacement or reconstruction of existing structures and facilities where the new structure will be located generally on the same site and will have substantially the same purpose, capacity, density, height, and dimensions as the structure replaced;
• Construction and location of single, new, small facilities or structures and the alteration and modification of these structures and installation of new, small, equipment and facilities and the alteration and modification of same, for example single family residences;
• Minor alterations in the conditions of land, water, or vegetation;
• Basic data collection, research, experimental management, and resource evaluation activities which do not result in a serious or major disturbance to an environmental resource;
• Construction or placement of minor structures accessory to existing facilities;
• Interior alterations involving things such as partitions, plumbing, and electrical conveyances;
• Demolition of structures, except those structures located on any historic site as designated in the National Register of Historic Properties or Hawaiʻi Register of Historic Places; and
• Zoning variances except: use, density, height, parking requirements and shoreline setback variances.

D. Administering Agency

For state environmental review purposes, actions are divided into two groups, Applicant Actions and Agency Actions:

Applicant Actions – The state or county agency to whom the applicant (generally a private individual or company) first applies for any permit connected with an action requires an EA, is responsible for reviewing the EA and determining the need for an EIS. The agency is also responsible for acceptance of the final EIS.

Agency Actions – Government initiated actions (e.g., those projects involving the use of state or county lands or funds) are assessed by the agency proposing the project to determine the need for an EIS. The Governor or the respective county Mayor is responsible for the acceptance of the final EIS for Agency Actions.

Statewide, the Office of Environmental Quality Control (OEQC) is responsible for 37 handling the processing of the EA/EIS for both applicant and agency actions.

Office of Environmental Quality Control
235 S. Beretania Street, Suite 702
Honolulu, Hawaiʻi 96813
Phone: 808-586-4185
Fax: 808-586-4186
E-mail: oeqc@doh.hawaii.gov
Web site: http://hawaii.gov/health/environmental/oeqc/index.html

E. Information Requirements

The state Department of Health (DOH) Administrative Rules, Title 11, Chapter 200, HAR, outlines the information requirements for an EA and a final EIS, under Chapter 343. Both documents must address each of the required information areas, described briefly below, in sufficient detail to allow decision makers to fully anticipate the environmental consequences of a proposed action.

A Draft Environmental Assessment should contain, but not be limited to the following information:

• Identification of the applicant or proposing agency;
• Identification of the approving agency, if applicable;
• Identification of agencies consulted in making the assessment;
• A general description of the action’s technical, economic, social, and environmental characteristics;
• A summary description of the affected environment, including suitable and adequate location and site maps;
• Identification and summary of major impacts and alternatives considered, if any;
• Proposed mitigation measures, if any;
• A determination of the need for an EIS;
• Findings and reasons supporting determination; and •
• Agencies to be consulted in the preparation of the EIS, if applicable;
• List of all permits and approvals (federal, state, and county) required; and
• Written comments and responses to the comments.

A Final Draft Environmental Impact Statement, at a minimum, must contain the following information:

• Summary sheet which concisely discusses the following:
  • brief description of the action;
  • significant beneficial and adverse impacts;
  • proposed mitigation measures;
  • alternatives considered;
  • unresolved issues; and
  • compatibility with land use plans and policies, and listing of permits or approvals;
• Table of contents;
• Statement of purpose and need for action;
• Project description;
• Description of any known alternatives for the action;
• Description of the environmental setting, including a description of the environment in the vicinity of the action, as it exists before commencement of the action, from both a local and regional perspective;
• Statement of the relationship of the proposed action to land use plans, policies, and controls for the affected area;
• Statement of the probable impact of the proposed action on the environment, which shall include consideration of all phases of the action and consideration of all consequences on the environment; direct and indirect effects shall be included;
• Discussion of the relationship between local short term uses of the human environment and the maintenance and enhancement of long-term productivity;
• Discussion addressing all irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented;
• Discussion of all probable adverse environmental effects which cannot be avoided;
• Discussion of mitigation measures proposed to minimize impact;
• Summary of unresolved issues and either a discussion of how such issues will be resolved prior to commencement of the action, or what overriding reasons there are for proceeding without resolving the problems;
• List identifying all governmental agencies, other organizations and private individuals consulted in preparing the statement;
• Reproductions of all substantive comments and responses made during the consultation process;
• Comments and recommendations received on the draft EIS;
• List of all persons, organizations and agencies commenting on the draft EIS; and
• Responses of the applicant to significant environmental points raised during the review process and a list of changes made to the document based on the review.

F. Public Participation

Public participation is a critical aspect of the EA and EIS process. If a negative declaration is anticipated, the agency must make a “draft EA” available for public comment for 30 days. If after reviewing an EA, an agency makes a determination that preparation of an EIS is required, a notice is published in the OEQC Bulletin advising the public of the EIS preparation. The Environmental Impact Statement Preparation Notice – prepared by the agency requiring the E1S – summarizes the proposed action and lists the reasons supporting the determination. The Notice includes the name and address of a person who may be contacted for further project information.

Following the publication of the Notice, the public has 30 days in which to request to be a consulted party during the E1S’s preparation. After a draft EIS has be prepared and submitted for review, the public has an additional 45 days during which to comment in writing. The applicant must respond in writing to any public comments. Both the comments and the applicant’s responses must be included in the final EIS submitted to the administering agency.

For Applicant Actions, a determination as to the acceptability of a final EIS must be made within 30 days of filing the final EIS with the administering agency and the OEQC. 40 The 30-day period may be extended at the request of the applicant for a period not to exceed 15 days. There is no maximum period for determining the acceptability of Agency Actions. No public hearing is required under Chapter 343 HRS, but one or more public hearings are not unusual in the project review and permitting process. It is important to understand that acceptance of an EA or EIS does not mean that a project is approved, it is merely a condition which must precede a permit approval.

G. State-Federal EIS Coordination

§343-5(f), HRS, requires that whenever an action is subject to both federal and state environmental review, the OEQC and state agencies shall cooperate with federal agencies to the fullest extent possible to reduce duplication between federal and state requirements. Such cooperation is required to include such actions as the preparation of 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, Chapter 343, the OEQC and agencies are required to cooperate in fulfilling these requirements so that one document complies with all applicable laws.

H. Process Time

The time requirement to complete the environmental review will vary depending on the complexity of the project, including the scope of the proposed project, the magnitude of the impacts, and the number of federal, state and local permits required. Periods of three to four months for a relatively minor non-controversial project and a year or more for major actions with significant impacts would not be unusual.

I. Sequence of Filing

If required, an EA or an EIS should be prepared very early on in the planning and permitting process to evaluate the significance of a proposed action and ensure the timely processing of all required permits. The earlier in the project planning that agency and public comments can be received, the more time there is available to address those comments that must be taken into account in the design.

J. Cost

There is no specific filing or processing fee associated with the environmental review process. However, the preparation of the environmental review documents, e.g., the EA and EIS, can be expensive depending upon the scope and complexity of the proposed project and the environmental and community sensitivities of the surrounding area.