Environmental Council Proposes New Affordable Housing Exemption

The Environmental Council, which is the body authorized by the legislature to make rules implementing Hawaii’s EIS law, is considering adding another exempt activity to its growing list of exemptions. If approved, acquisition of land and existing structures for affordable housing projects will be exempt from environmental review.

The proposed language that will be added to Hawaii Administrative Rules ("HAR") § 11-200-8(a) is as follows:

11. Acquisition of land and existing structures, including single or multi-unit dwelling units, for the provision of affordable housing, involving no material change of use beyond that previously existing, and for which the legislature has appropriated or otherwise authorized funding.

Three observations:

1. The Council is granted authority to “[e]stablish procedures whereby specific types of actions, because they will probably have minimal or no significant effects on the environment, are declared exempt from the preparation of an assessment.” HRS § 343-6(7). Accordingly, while certain actions may fit under the proposed exemption, each action must have minimal or no significant effect on the environment. Recent Hawaii jurisprudence instructs that exemptions must also survive a cumulative impact and secondary effects analysis.
2. The term "affordable housing" has many definitions. Could the definition used change the environmental impact of a project?
3. HRS §§ 343-5(1) and (b) only allows the "acquisition of unimproved real property" without triggering environmental review under HRS § 343-5. Is this proposed exemption beyond OEQC's statutory authority?

A notice for public hearings on the proposed rule amendment is posted here.

[UPDATE: The "Acquisition of land and existing structures for the provision of affordable housing" was added to the exempt classes of actions under HAR § 11-200-8(a). The new exemption was signed by the governor on December 6, 2007.]