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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
22-JUL-2026
09:10 AM
Dkt. 25 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---MAUI TOMORROW FOUNDATION,
Plaintiff-Appellee,
vs.
MAUI PLANNING COMMISSION, COUNTY OF MAUI;
and COUNTY OF MAUI,
Defendants-Appellants.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CAAP-XX-XXXXXXX; CIVIL NO. 2CCV-XX-XXXXXXX)
JULY 22, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ.,
AND CIRCUIT JUDGE WONG, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY EDDINS, J.
I.
Efficiency is important in government. But it cannot come
at the cost of bedrock duties. And it certainly cannot override
the commitments the State and counties share to conserve and *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
protect Hawaiʻi’s natural resources, in trust, for present and
future generations.
The Coastal Zone Management Act (CZMA) carries that promise
into law. The Maui County Planning Commission (MPC) violated
the CZMA when it recently promulgated amended rules to govern
Maui’s Special Management Area (SMA). It placed administrative
convenience ahead of the public trust.
Hawaiʻi’s shoreline is among the State’s most sensitive
natural resources. The CZMA protects it through the SMA, a
statutory zone extending inland from the coast in every
county. The CZMA directs the counties to administer that
zone. They stand between the shore and harmful development.
This obligation is non-delegable, grounded in statute and
the Hawaiʻi Constitution. It safeguards what cannot be replaced.
MPC’s amended rules, however, stripped oversight and
procedural safeguards from SMA permitting review. In the name
of reducing workload, MPC delegated its duty to assess potential
environmental harm to the regulated parties themselves. Yet the
assessment duty is not MPC’s to give away. Maui County holds
coastal resources in trust under article XI, section 1 of the
Hawaiʻi Constitution, and cannot delegate its trust
responsibilities by rule.
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Circuit Court of the Second Circuit Judge Kirstin Hamman
invalidated key portions of MPC’s amended rules to restore the
assessment process MPC had dismantled.
We affirm.
II.
The Coastal Zone Management Act, Hawaiʻi Revised Statutes
(HRS) chapter 205A, established Special Management Areas along
the coastlines of Hawaiʻi’s counties. Maui County’s SMA is the
one at issue here.
The CZMA created SMAs to protect, preserve, and restore
coastal ecosystems and historic resources. See HRS § 205A-2
(2017 & Supp. 2021).
No “development” in the SMA may proceed without a permit.
HRS § 205A-28 (2017). The CZMA defines “development” as any of
the following “uses, activities, or operations on land or in or
under water within a special management area”:
(A) Placement or erection of any solid material or any
gaseous, liquid, solid, or thermal waste;
(B) Grading, removing, dredging, mining, or extraction of
any materials;
(C) Change in the density or intensity of use of land,
including but not limited to the division or subdivision of
land;
(D) Change in the intensity of use of water, ecology
related thereto, or of access thereto; and
(E) Construction, reconstruction, or alteration of the size
of any structure[.]
HRS § 205A-22 (2017 & Supp. 2023).
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Recent amendments preserve these five “development”
categories for Maui County. See An Act Relating to the Coastal
Zone Management Act, 2026 Haw. Sess. Laws Act 70 (retaining the
categories for “counties with a population between one hundred
fifty thousand and two hundred thousand”).
This definition excludes certain subcategories of
activities (for example, road maintenance and trash removal),
unless the authority finds that an excluded activity may have a
“cumulative impact, or a significant environmental or ecological
effect” on the SMA. Id.; see Act 70 (adding an exclusion for
federal, state, and county-funded projects “exempt from an
environmental assessment or for which a finding of no
significant impact has been issued under [HRS] chapter 343”).
MPC administers the permit application process within Maui
County’s SMA, “consistent with the objectives, policies, and
special management area guidelines” provided in HRS chapter
205A. HRS § 205A-29 (2017 & Supp. 2021).
In August 2024, MPC enacted amended SMA rules in Maui
County (the amended rules).
Three sections of the amended rules matter here.
First, the amended rules created a list of fifteen
activities categorically exempt from the definition of
“development” in the CZMA. Maui County Code (MCC) § 12-202-11.1
(as amended Aug. 25, 2024). These exclusions have some
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similarities to those in the CZMA, though not all categories of
excluded activities overlap (for example, scientific testing
involving excavation is excluded in the amended rules, but not
the CZMA). The amended rules also tag dollar figures to several
exemptions (for example, nonstructural exterior renovation is
exempt if the cost stays under $500,000). MCC § 12-202-11.1(k).
The CZMA contains no such thresholds.
The CZMA’s exemptions all remain conditional on
environmental review. HRS § 205A-22. The legislature kept its
exclusions conditional. The County reversed course. Its
amended rules declared the listed uses to have no “significant
environmental or ecological effect on the special management
area.” MCC § 12-202-11.1. They are definitionally exempt from
any SMA permit requirement. Id.
For some of the fifteen exempt activities, the landowner
must submit a publicly accessible declaration establishing
appropriate use restrictions. Id. (exemptions k, l, and m).
MPC does not review or respond to any filed declarations. Id.
And for any uses outside those carve-outs, no submission is
required. Id.
Second, the amended rules excluded the continuation,
repair, or renovation of any development that fell within “the
same scope” of an already-approved development. MCC § 12-202-11.2 (as amended Aug. 25, 2024). The rules do not define “same
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scope.” Nor do they say who decides that definition. Thus, one
approval exempts everything that follows from it. No further
assessment. Just the landowner’s say-so.
And third, the amended rules eliminated the requirement
that a development application include a final environmental
assessment (EA). MCC § 12-202-12 (as amended Aug. 25, 2024).
III.
After the amended rules took effect, Maui Tomorrow, a
nonprofit environmental advocacy organization, filed a complaint
in the Circuit Court of the Second Circuit challenging the
rules. Maui Tomorrow soon moved for summary judgment.
Maui Tomorrow’s argument turned on a distinction between
the CZMA’s “assessment” and “permitting” processes.
The CZMA mandates a three-step assessment established in
Leslie v. Bd. of Appeals of Cnty. of Hawaiʻi, 109 Hawaiʻi 384,
126 P.3d 1071 (2006), to determine whether a proposed SMA use
qualifies as a “development” requiring a permit. The third step
requires evaluating environmental impact. HRS § 205A-22.
The CZMA authorizes counties to streamline permitting
procedures. See HRS § 205A-29. But nothing in the CZMA allows
them to bypass the assessment that determines whether permitting
is needed in the first place.
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The amended rules, Maui Tomorrow maintained, do not just
streamline permitting. They eliminate MPC’s role in assessment.
And they hand that role to the very parties under review.
MPC countered that the exempted activities were not
“developments” in the first place. Thus, they fall outside the
three-step process entirely. MPC insisted the amended rules
reflected a legitimate exercise of its rulemaking authority.
The legislature intended to give the counties the ability to
create these exemptions, it said. It warned that Maui
Tomorrow’s reading of the CZMA would require the Commission to
assess every activity in the SMA, down to a child’s sandcastle.
The circuit court sided with Maui Tomorrow, granting
summary judgment. It took judicial notice of the SMA rules for
the counties of Honolulu, Kauaʻi, and Hawaiʻi, noting that none
have interpreted the CZMA to allow categorical exemptions from
CZMA assessment, as Maui County’s amended rules do.
The circuit court’s original order invalidated the amended
rules in their entirety. After a motion for clarification from
MPC, the circuit court narrowed its ruling, striking the
categorical exemptions (deleting MCC §§ 12-202-11.1 and 11.2)
and restoring the final EA requirement (revising MCC § 12-202-12(c)).
MPC and Maui County appealed to the Intermediate Court of
Appeals. Then they applied for transfer to this court.
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We granted transfer.
IV.
The circuit court was right.
A. MCC § 12-202-11.1’s Categorical Exemptions
MCC § 12-202-11.1 created fifteen categorical exemptions
from the three-step assessment. These exemptions exceeded MPC’s
statutory authority under the CZMA.
“Administrative rules and regulations which exceed the
scope of the statutory enactment they were devised to implement
are invalid and must be struck down.” Asato v. Procurement
Policy Bd., 132 Hawaiʻi 333, 346, 322 P.3d 228, 241 (2014)
(internal citations omitted); see HRS § 91-7(b) (2012 & Supp.
2015) (“The court shall declare the rule invalid if it finds
that it . . . exceeds the statutory authority of the
agency[.]”). Agencies may exercise implied powers, but only so
long as they are “reasonably necessary to carry out the powers
expressly granted.” Asato, 132 Hawaiʻi at 347, 322 P.3d at 242
(internal citation omitted). An administrative rule cannot
contradict or conflict with the statute it implements. Id.
(quoting Agsalud v. Blalack, 67 Haw. 588, 591, 699 P.2d 17, 19
(1985)).
MCC § 12-202-11.1 contradicts the CZMA. It exempts whole
categories of activity from the three-step assessment. That
process is how the CZMA determines whether an activity needs a
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permit. Taking it away erases the test the CZMA uses to
identify “development.” The rule also shifts the assessment to
private parties. This clashes with the statutory requirement
that the “authority” conduct the review. Either failure alone
would exceed Maui County’s rulemaking power. Together, they
doom the exemptions.
The delegation defect also violates the Hawaiʻi
Constitution. It collides with Maui County’s non-delegable
obligation to protect and conserve Hawaiʻi’s natural resources.
See Haw. Const. art. XI, § 1; Ka Paʻakai O Ka ʻAina v. Land Use
Comm’n, State of Hawaiʻi, 94 Hawaiʻi 31, 52, 7 P.3d 1068, 1089
(2000).
1. MCC § 12-202-11.1 Contradicts the CZMA and Leslie
The CZMA’s purpose includes protecting, preserving, and
restoring natural and manmade historic and prehistoric
resources, valuable coastal ecosystems, coastal scenic and open
space resources, and beaches and coastal dunes. HRS § 205A-2.
Planning commissions must find that any proposed SMA
development is consistent with the CZMA’s policies and
objectives before permitting it. HRS § 205A-26(2)(B) (Supp.
2021); Alaloa v. Planning Comm’n of Maui Cnty., 68 Haw. 135,
136, 705 P.2d 1042, 1043 (1985).
This requirement carries a strict prohibition. No
development in the SMA without a permit. HRS § 205A-28. Nor
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may any agency authorize SMA development until proper procedures
have been followed and approval has been granted. HRS § 205A29.
The CZMA designates the “special management area authority”
as responsible for establishing the permit application process
“consistent with the objectives, policies, and special
management area guidelines” of HRS chapter 205A. HRS §§ 205A22, 205A-29. For Maui County, that authority is the Maui
Planning Commission. So MPC’s role includes establishing rules
for permit application procedures, hearing conditions, and
adequate notice. HRS § 205A-29.
MPC’s authority is to administer permitting, not to lift
activities from the CZMA’s coverage.
In other words, streamlining permitting doesn’t include
sidestepping the assessment function. Assessment determines
whether an activity is a “development.” Permitting governs how
an approved development may proceed. Counties may adopt
procedures for permitting. HRS § 205A-29. They may not skip
the assessment that determines whether permitting is required in
the first place.
Under Leslie, the assessment inquiry proceeds in three
steps: (1) determine whether the activity is included in the
statutory definition of “development”; (2) if it is, determine
whether the activity falls into one of the specifically excluded
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categories of activities; and (3) if it is an excluded use,
determine whether it may still have a “cumulative impact or
significant environmental or ecological effect on a special
management area” – and if so, the activity is a “development”
all the same. 109 Hawaiʻi at 396-97, 126 P.3d at 1083-84.
MPC insists that its excluded uses are not “developments”
and therefore fall outside the three-step assessment. MPC is
wrong.
The CZMA defines “development” broadly. HRS § 205A-22 (set
out above). All but one of the fifteen activities included in
§ 12-202-11.1 of the amended rules fall into at least one of the
five enumerated categories — placement of material, grading and
extraction, changes in land use, changes in water use, or
alteration of any structure. (We address the single outlier,
exemption (j), later on.)
These categories cover wide ground. The legislature
designed them to capture most uses in the SMA. MCC § 12-202-11.1 exempts activities the CZMA never meant to exclude.
Because the CZMA aims to prevent “substantial adverse
environmental or ecological effects” on the SMA, the impact
analysis drives every assessment. See Sandy Beach Def. Fund v.
City Council of City & Cnty. of Honolulu, 70 Haw. 361, 365–66,
773 P.2d 250, 254 (1989). Under the CZMA’s definition of
“development,” most SMA uses run through the three-step
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assessment. Step 3 evaluates environmental impact. Unless the
authority finds no environmental harm, a permit is required.
See id.
MPC protests that requiring assessment of these activities
leads to absurd results. It imagines a world where the
Commission would have to screen every beachgoer, every
sandcastle builder, every tourist on Hawaiʻi’s beaches.
This argument conflates assessment with permitting, and
breadth of coverage with breadth of burden.
Step 1 of the Leslie framework already sifts out the
activities Maui County claims would be swept in. Building a
sandcastle does not involve “[g]rading, removing, dredging,
mining, or extraction of any materials.” HRS § 205A-22. A
beach cleanup is not “[c]onstruction, reconstruction, or
alteration of the size of any structure.” Id. These activities
fail Step 1 on their face. They are non-developments. The
inquiry ends there.
Consider what MPC actually exempted. Agricultural grading,
utility infrastructure installation, exterior building
modifications, site improvements to previously developed land.
See MCC § 12-202-11.1. These activities do fall within the
statutory definition of “development.” They involve the
placement of solid materials, the extraction of materials, or
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the construction and alteration of structures. That’s why they
require assessment.
The Leslie framework does that sorting. Not to subject
sandcastles to permitting, but to ensure that activities with
real environmental consequences do not escape review.
Take two examples. Under the three-step process, a child
building a sandcastle would be screened out at Step 1. A
developer grading a coastal parcel for agriculture would reach
Steps 2 and 3. And properly so.
MPC cannot rewrite the environmental protections the
legislature built into the CZMA. It cannot redefine
“development” in a way that contradicts the statute.
The legislature codified narrow exclusions “to ease the
burden of permit processing without compromising the intent of
the coastal zone management program.” S. Stand. Comm. Rep. No.
174-84, in 1984 Senate Journal, at 1057-58 (emphasis added).
The legislature already did the balancing work. The exclusions
are narrow. The environmental impact override catches what
slips through.
Maui County claims power to create exceptions. It cites
the legislature’s recognition that its own list of exemptions
might prove incomplete. The County noted the legislature said,
“[i]f the exemptions . . . prove to be inadequate, the
Legislature can make the necessary adjustments.” S. Stand. Comm
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Rep. No. 936, in 1979 Senate Journal, at 1435. But Maui County
disregards the operative word. The legislature said the
legislature could make changes. Not the counties.
MPC also overlooks Step 3. Every legislative exemption
remains subject to the CZMA’s cumulative impact review. HRS
§ 205A-22. The CZMA says all excluded activities are
conditional on doing no harm. MPC removed that buffer.
MPC overstates its authority. It may streamline
permitting. It may not rewrite the definition of “development”
that controls permitting.
One exclusion stands apart.
Exemption (j) covers: “[t]raditional native Hawaiian
cultural practices that are conducted or led by native Hawaiian
cultural practitioners and that do not have a detrimental
environmental or ecological effect on the [SMA].” MCC § 12-202-11.1(j) (as amended Aug. 25, 2024).
Unlike the other fourteen exemptions, (j) preserves the
environmental safeguard. The activity must not have a
detrimental ecological effect on the SMA. Read in isolation,
that language would not contradict the CZMA. But the right
standard in the wrong hands fails. As discussed in section A.2
below, this exemption is invalid because it lets private parties
apply the standard. A standard that no agency verifies is no
standard at all.
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Fourteen of the MCC § 12-202-11.1 exemptions are invalid on
the contradiction ground. The fifteenth – exemption (j) – gets
the standard right but the reviewer wrong.
2. MCC § 12-202-11.1 Unlawfully Delegates its Assessment
Role to Private Parties
MCC § 12-202-11.1 also fails on a second ground. It shifts
MPC’s assessment obligations to private parties.
The duty to protect Hawaiʻi’s natural resources does not
bend to administrative convenience. These resources are held in
trust for present and future generations. The trustee cannot
hand the keys to the regulated.
The CZMA puts the “development” assessment on the county
planning commissions. The “authority” must find that a proposed
development (a) will not have any substantial adverse
environmental or ecological effects; (b) is consistent with the
objectives, policies, and guidelines of chapter 205A and (c) is
consistent with the county general plan and zoning. Sandy Beach
Def. Fund, 70 Haw. at 365–66, 773 P.2d at 254 (citing HRS
§ 205A–26(2)). And whenever the authority finds an excluded use
may have cumulative impact, the statute requires that use to be
treated as “development.” HRS § 205A-22.
The CZMA defines “[a]uthority” as the county planning
commission. That commission “may, as appropriate, delegate the
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responsibility for administering this chapter.” HRS § 205A-1
(2017 & Supp. 2021).
But this delegation power has limits.
Alaloa is instructive. The CZMA allows delegation to state
or county agencies. It does not allow delegation to the
regulated parties themselves. See Alaloa, 68 Haw. at 137, 705
P.2d at 1044. MPC may not delegate “its authority to determine
whether a development complie[s] with the policies and
objectives of the CZMA to the applicants for a special
management area permit.” Ka Paʻakai, 94 Hawaiʻi at 50, 7 P.3d at
1087.
In Alaloa, a developer applied for an SMA permit to build a
condo project on Molokaʻi. 68 Haw. at 136, 705 P.2d at 1043.
MPC granted a permit conditioned on the developer completing
further surveys and avoiding impact to significant
archaeological sites. Id. at 136-37, 705 P.2d at 1044.
This court vacated that permit. Id. at 137, 705 P.2d at
1045. The permit left the compliance determination to the
applicants themselves, contrary to the statutory command. Id.
at 137, 705 P.2d at 1044. The CZMA placed that determination
with the planning commission, not the applicant. Id.
The permit was unlawful because it delegated approval to an
interested party. Id.; Kaleikini v. Yoshioka, 128 Hawaiʻi 53,
85, 283 P.3d 60, 92 (2012) (“[R]esolution of [Alaloa] turned on
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the ‘unlawful delegation of duty’ to the developers.”). Alaloa
identified three problems with this delegation. First, the
applicant has a financial interest in the outcome. See Alaloa,
68 Haw. at 137, 705 P.2d at 1044. Second, the applicant lacks
the “expertise and objective criteria for granting or denying
approval of the plans and construction of the development.” Id.
Third, the applicant is not bound to abide by the CZMA’s
objectives and policies – removing what binds the planning
commission and other government decisionmakers. Id.
As in Alaloa, MPC here shifts its assessment to selfinterested applicants. The amended rules exempt categories of
uses, strip any review, and leave discretion to the regulated.
The amended rules go further than the permit in Alaloa. There,
MPC reviewed the permit and imposed conditions on the developer.
Here, there is no MPC involvement for exempted uses.
Beyond the statute, this abandonment of discretion offends
Maui County’s constitutional duty to conserve and protect
natural resources. Article XI, section 1 of the Hawaiʻi
Constitution sets out the commitment:
For the benefit of present and future generations, the
State and its political subdivisions shall conserve and
protect Hawaiʻi’s natural beauty and all natural
resources, . . . and shall promote the development and
utilization of these resources in a manner consistent with
their conservation and in furtherance of the selfsufficiency of the State. All public natural resources are
held in trust by the State for the benefit of the people.
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Few principles in Hawaiʻi law are more central to our
constitutional inheritance than the public trust doctrine. See
Kelly v. 1250 Oceanside Partners, 111 Hawaiʻi 205, 222, 140 P.3d
985, 1002 (2006) (calling it a “fundamental principle of
constitutional law in Hawaiʻi”).
The public trust doctrine binds this generation to honor
what prior generations held, and to preserve Hawaiʻi’s beauty and
natural resources for generations yet to come. What article XI,
section 1 commands stands above statute and rule. Both must
yield to it. So must the legislature and the state and county
agencies that wield delegated power.
The doctrine requires the State act as a “trustee.” It
must “take the initiative in considering, protecting, and
advancing public rights in the resource at every stage of the
planning and decision-making process.” Id. at 231, 140 P.3d at
1011.
Maui County, as a political subdivision of the State of
Hawaiʻi, has that same duty. See id. at 226, 140 P.3d at 1006.
An agency acting as a trustee is “duty bound to demonstrate that
it has properly exercised the discretion vested in it by the
constitution and the statute.” Carmichael v. Bd. of Land & Nat.
Res., 150 Hawaiʻi 547, 566, 506 P.3d 211, 230 (2022) (internal
citations omitted).
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This duty cannot be farmed out. See Ka Paʻakai, 94 Hawaiʻi
at 52, 7 P.3d at 1089. Ka Paʻakai held the State to its public
trust duties in protecting traditional Native Hawaiian cultural
practices. The court warned of what happens when private
parties are left to police themselves. “After all, once a
project begins, the pre-project cultural resources and practices
become a thing of the past.” Id.
The same holds for preserving all natural resources. Once
a shoreline is gone, it’s gone.
By delegating that discretion to others, Maui County fails
its constitutional obligations. It leaves Maui’s most
vulnerable ecosystems subject to “possible arbitrary and selfserving actions.” See id. As Ka Paʻakai reasoned “[t]he power
and responsibility” to determine environmental effects, and the
“means to protect” the SMA “may not validly be delegated . . .
to a private petitioner who, unlike a public body, is not
subject to public accountability.” Id.
Thus, MCC § 12-202-11.1 exceeds the statute. It also
violates the Hawaiʻi Constitution.
Exemption (j) relating to Native Hawaiian cultural
practices is no different. The standard is sound. The activity
must not have a detrimental environmental or ecological effect.
But the process breaks down. Under the amended rules, the
practitioner – not the Commission – decides whether the activity
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has a detrimental effect. This is the structural flaw that
dooms the other fourteen exemptions. The right question gets
asked. The wrong entity answers.
A standard nobody checks is an honor system applied to
environmental regulation. The CZMA requires more.
The delegation also gives shelter to bad faith developers.
Before the amended rules, an SMA landowner who sidestepped
assessment risked civil penalties. They might try to slip
through with an environmentally disruptive use. But if caught,
the consequence was clear. See MCC § 12-202-25.
The amended rules now provide cover. A landowner may claim
a good faith belief that their use falls into one of the
excluded categories. That discretion lets them wave through
environmentally destructive decisions.
Bad actors will always operate within an SMA. But MPC’s
amended rules make oversight and enforcement significantly
harder.
The circuit court properly invalidated MCC § 12-202-11.1 in
full.
B. MCC § 12-202-11.2 Contradicts the CZMA’s “Whenever” Mandate
The CZMA provides that “whenever the authority finds” an
excluded use may have a cumulative impact, that use shall be
defined as a “development.” HRS § 205A-22. “Whenever” signals
a continuing duty.
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But MCC § 12-202-11.2 of the amended rules provides that
any actions in the SMA “previously determined to be exempt”
could be “continued, renovated, or repaired in a manner that
falls within the same scope of the prior exemption or permit.”
Thus this section suffers from a distinct problem. It
eliminates the CZMA’s requirement that the “authority” assess
cumulative environmental impacts as they emerge.
Environmental conditions change. Cumulative effects build
over time. What was safe a decade ago may not be safe today.
MCC § 12-202-11.2 freezes the assessment in place. A
single prior approval becomes permanent permission. Renovations
and expansions count as continued use, so long as they fall
within the “scope” of the original approval. The applicant
decides what “scope” means. The applicant grades its own test.
No agency asks whether cumulative impacts have emerged in the
intervening years. No one verifies whether changed conditions
have altered the environmental picture.
The provision contradicts the CZMA’s “whenever” mandate.
For Maui County, the legislature recently amended this
mandate to “if the authority finds” a cumulative impact or
environmental effect. See Act 70 (emphasis added). The wording
shifted. The duty did not. The county’s public trust
obligations require the same finding.
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The delegation provision sets up an end-run. An interested
party can secure a limited approval, then expand under the rule
into more disruptive activity within the original’s “scope.”
Under the amended rules, the authority will not find cumulative
impact because it does not have to re-examine the existing
approval. That is the conflict, and it is dispositive.
MCC § 12-202-11.2 could not stand. The circuit court
struck it. We affirm.
C. MCC § 12-202-12(c) Substitutes Draft EAs for Final Ones
MCC § 12-202-12(c) sets out what an assessment application
must include. Subsection (11) requires an environmental
assessment. The amended rules ask for only a “draft” EA, not a
final EA. MCC § 12-202-12(c)(11) (as amended Aug. 25, 2024).
The circuit court struck the word “draft” from § 12-202-12(c)(11). It restored the final EA requirement.
MPC’s amended EA rule raises a different concern from the
categorical exemptions. The question is not whether
environmental review occurs, but on what information it relies.
The EA is how MPC completes its environmental review. A draft
EA, by definition, is unfinished. The applicant can change it
at any time before completion. Maui County does not dispute
this.
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MPC would analyze environmental impact on a document the
applicant can redo. That is not assessment. That is hope and
guesswork.
The procedural changes erode environmental protections.
“[T]he procedural and informational requirements” are “at the
heart” of Hawaiʻi’s Environmental Policy Act (HEPA), HRS chapter
343. Kepoʻo v. Watson, 87 Hawaiʻi 91, 100, 952 P.2d 379, 388
(1998). These requirements also serve the CZMA’s objective to
“facilitate public participation in the planning and review
process[.]” HRS § 205A-2(c)(7)(C).
Final EAs require public review and comment periods, and
substantial agency oversight. HRS § 343-5 (2022). Draft EAs
require neither. Worse, the amended rules describe no process
for accepting, rejecting, or reviewing draft EAs. This renders
the requirement meaningless. And it unravels the procedural
safeguards the legislature established.
The HEPA rule does permit agencies to create exemptions
from EAs for “[r]outine activities and ordinary functions[.]”
Hawaiʻi Administrative Rules (HAR) § 11-200.1-16. But an agency
must make these exemptions case-by-case, after determining the
use “do[es] not have the potential to individually or
cumulatively adversely affect the environment more than
negligibly[.]” Id.
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In the amended rules, MPC accepted draft EAs in place of
final EAs for all SMA uses. MCC § 12-202-12(c)(2). HAR § 11-200.1-16 prevents this change. What the HAR allows is narrower:
“ordinary use” exceptions made case-by-case.
The rule also states that “particularly sensitive
environments” may make an “exemption inapplicable.” HAR § 11-200.1-17. If sensitivity makes an “exemption inapplicable”
anywhere, the SMA is the last place to invite blanket
exemptions.
The SMA is where procedural safeguards matter most. SMAs
contain some of Hawaiʻi’s most fragile ecosystems. Hollowing out
those safeguards undermines the CZMA where it should be
strongest.
Process is the heart of environmental review. The CZMA
does not let the SMA go without it.
The circuit court restored the final EA requirement. That
was the right call.
V.
Through the three-step process, the legislature balanced
efficiency against environmental protection. Counties may
streamline permitting. But they may not erase assessment. That
is the line.
MPC’s amended rules washed over it. They created
categorical exemptions that dismantle the mandatory
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environmental review and shift it to the regulated. This defies
the CZMA, the legislature’s design, and the constitutional duty
Maui County holds as trustee.
Maui County’s administrative burden is real. But the
solution is not to surrender. The assessment role is the SMA’s
protection. The legislature wrote that balance into the CZMA.
The circuit court got it right.
We affirm.
Brian A. Bilberry /s/ Vladimir P. Devens for appellants
/s/ Sabrina S. McKenna
Lance D. Collins
(Bianca Isaki on the briefs) /s/ Todd W. Eddins for appellee
/s/ Lisa M. Ginoza
/s/ Paul B.K. Wong
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