Wednesday, October 21, 2020
On Friday, October 16, 2020, I joined a panel at the 2020 Hawaii State Bar Association Virtual Convention on Regulatory Takings After Knick. I was surrounded by takings luminaries, but I held my own with an introduction to the Penn Central Test. Here it is.
Tuesday, May 19, 2020
Hawaii Supreme Court Defines "Potable" and "Brackish" Water -- Resort Allowed to Water its Golf Course
Sunday, May 3, 2020
Thursday, April 23, 2020
Essentially, "[t]he Clean Water Act forbids the 'addition' of any pollutant from a 'point source' to 'navigable waters' without the appropriate permit from the Environmental Protection Agency (EPA)."
In this case, "the County of Maui, operates a wastewater reclamation facility on the island of Maui, Hawaii. The facility collects sewage from the surrounding area, partially treats it, and pumps the treated water through four wells hundreds of feet underground. This effluent, amounting to about 4 million gallons each day, then travels a further half mile or so, through groundwater, to the ocean."
Maui argued that the CWA permit requirement does not apply, because "at least one nonpoint source (e.g., unconfined rainwater runoff or groundwater) lies between the point source and the navigable water." The Court disagreed. Justice Bryer, writing for the majority, opined that this logic would "exclude a pipe that hangs out over the water and adds pollutants to the air, through which the pollutants fall to navigable waters. The absurdity of such an interpretation is obvious enough." Congress did not intend such a loophole when passing the CWA.
After a riveting discussion on Congressional intent and the meaning of words like "to" and "from," the Court held that "a permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge." However, Justice Bryer admits that the functional equivalent test is far from perfect:
Thursday, September 12, 2019
Thursday, June 13, 2019
The new rules will repeal the existing Hawai‘i Administrative Rules (HAR) Chapter 11-200, and adopt a new chapter, HAR Chapter 11-200.1. OEQC provides a Rationale for Final Proposed HAR Chapter 11-200.1.
Here are some things to consider when the new rules take effect:
- These rules do not amend or change the requirements of HRS chapter 343.
- The following terms have not changed:
- EA: environmental assessment
- EIS: environmental impact statement
- EISPN: environmental impact statement preparation notice
- FONSI: finding of no significant impact
- NEPA: National Environmental Policy Act
- Save the trees.
- Materials must be submitted electronically to the OEQC for publication in The Environmental Notice
- Agencies must provide Exemption Notices electronically
- No longer required to mail individual responses to commenters—it will be posted online as part of the HEPA document
- Some EA and EIS documents must be made available in paper, for example:
- EA to the library in the area most affected by the action
- Draft and final EA filed with the State Library’s Hawaii Documents Center
- Clearer guidance for programmatic documents.
- A programmatic (as distinguished from a project-based) environmental review should be "enough to make an informed choice among program-level alternatives and broad mitigation strategies"
- Supplemental documents.
- To determine whether an agency is eligible to prepare a supplemental EIS, apply the following criteria:
- Whether the proposed action was a component of, or is substantially similar to, an action that received an exemption, FONSI, or an accepted EIS;
- Whether 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
- In the case of a final EA or an accepted EIS, whether the proposed action was analyzed within the range of alternatives.
- If the answer is “yes” or “no”, the agency may publish the determination with the OEQC for publication in the periodic bulletin.
- New exemptions process.
- Agencies would have seven years to reorganize and update their exemption lists to comply with the rules
- Climate change added to significance criteria.
- Adaptation. Agencies must consider whether a proposed action is likely to have a substantial adverse effect on or is likely to suffer damage by being located in a sensitive area such as the sea level rise exposure area; SLR maps should be included in EAs and EISs to demonstrate the potential vulnerability
- Greenhouse gas reduction. Agencies must consider whether a proposed project will emit substantial greenhouse gases at any stage or may emit substantial greenhouse gases as an indirect or cumulative impact.
- No EISPN required, but...
- May skip an EISPN and prepare an EIS when there is clear potential for a significant impact
- BUT, a public scoping meeting is required as well as incorporation of public feedback from the scoping meeting into the draft EIS
- Public comment periods may be extended with notice.
- Thirty days for draft EA and EISPN documents
- Forty-five days for draft EIS documents
- Comments received between publication periods do not have legal standing because they are not submitted during a legal window
- Public comments—less paper.
- A written response to be physically mailed to each commenter is no longer required.
- Agencies and applicants may respond to comments based on the “grouping” model allowed under NEPA
- List commenters whose comments are being addressed under each topic heading or section
- All comment letters containing substantive comments must be appended to the final EIS or EA
- Form letters may be responded to in a single response appended to the HEPA document if not using the grouping approach
- Form letters that have additional substantive points be appended in full to the document, and receive a response
- EIS scoping meeting are required on each island affected by a proposed action, but...
- No need to transcribe and respond
- Oral comments may be recorded and a summary provided in the draft EIS
- NEPA-HEPA joint documents.
- A single document and single comment period that satisfies both federal and state requirements can be used to satisfy both NEPA and HEPA
- The agency must make an independent determination, pursuant to chapter 343, HRS, of the necessary level of environmental review
- Do the new rules apply to my proposed action?
- For EAs, if the draft EA was published by the office prior to the adoption of this chapter and has not received a determination within a period of five years from the implementation of this chapter, then the proposing agency or applicant must comply with the requirements of this chapter
- For EISs, if the EISPN was published by the office prior to the adoption of this chapter and the final EIS has not been accepted within five years from the implementation of this chapter, then the proposing agency or applicant must comply with the requirements of this chapter
- Exemption lists that have received concurrence under chapter 11-200 may be used for a period of seven years after the adoption of this chapter