Thursday, November 13, 2008

When a Trigger is Not a Trigger Under Hawaii's Environmental Impact Statement Law (HRS Chapter 343)

Under Hawaii's environmental review law, commonly referred to as the Hawaii Environmental Policy Act ("HEPA"), an applicant or agency must comply with HEPA if its proposed action is one of the triggers enumerated under HRS §343-5. The most common trigger is the proposed "use of state or county lands." If an action does trigger HEPA compliance then the process starts with the preparation of an environmental assessment, unless an exemption can be found pursuant to HRS §343-6.

But a trigger may not be a trigger if its "merely" a trigger according to the Hawaii Supreme Court's opinion in Nuuanu Valley Association v. City & County of Honolulu, No. 28599, Oct. 24, 2008 ("NVA"). In NVA, the question before the court was whether connecting a privately-owned drainage and sewage line to a state or county-owned drainage and sewage system was a use of state or county land (i.e., a HEPA trigger). Under a strict reading of the law, triggers are enumerated under the statute, which provides no exception for "mere" uses. However, the court reasoned as follows:

[W]e decline to extend the meaning of the word "use" to the circumstances of this case, where the evidence indicates that [private] drainage and sewer lines merely connect to the "Puu Paka Drive drainage system" and existing county lines without requiring construction or tunneling beneath state or county lands.
Judge Acoba's concurring opinion attempts to narrow the mere use doctrine by opining as follows:
[I]n my view there was a lack of evidence as to whether the subdivision hookup to the sewer system would be constructed under state or county land. The proposed Puu Paka Drive roadway extension under which the hookup would apparently be constructed has not yet been dedicated to the state or county as a public street.

Therefore, the linchpin of the NVA decision is whether the proposed action would disturb state or county soil. This trigger analysis occurs before the HEPA process starts, so it would not be analyzed under HEPA's exemption process. This new mere use doctrine might extend to other state and county facilities like roads and water lines.

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