The Hawaii Supreme Court’s ruling requiring the owners of the Turtle Bay Resort to conduct a supplemental environmental impact statement before proceeding with a decades-old expansion plan could have far-reaching effects on other Hawaii projects.

The high court last week reversed an appeals court ruling in the case, saying the owners of the 858-acre resort on Oahu’s North Shore must file a supplement to a 25-year-old environmental impact statement because circumstances such as traffic have changed since then.
The decision could affect any project in Hawaii that has been delayed for one reason or another by requiring government agencies and private developers to conduct a supplemental EIS, said David Arakawa, executive director of the Land Use Research Foundation.
He noted that many government infrastructure projects such as sewer work or the Honolulu rail project can take 10 or more years to complete, while Mililani, Castle & Cooke’s master-planned community, took more than 40 years to finish.

A supplemental EIS could add up to a year to the process and $500,000 or more to the cost of a project. It also would have to follow the same process as a full EIS, which means a preparation notice followed by 30 days of comments; a draft EIS, followed by 45 days of comments; and a final EIS.

Very few supplemental EIS documents have been done in Hawaii over the years, said Lee Sichter, principal planner for Belt Collins, who has been doing EIS work for 30 years.
“They’re not often done,” he said. “There’s a reason for that — the existing law is rather vague on how to do a supplemental; it doesn’t define supplemental in the law, just in the rules.”
It would be up to the Legislature to change the law to clarify the rules for supplementals, he said.
Sichter was part of a working group appointed by Sen. Mike Gabbard, D-Kapolei-Waikele, to develop recommendations for a bill that sought to update the law governing Hawaii environmental impact statements. The bill, which originally sought to put a seven-year shelf life on EIS documents, eventually was deferred.

Turtle Bay’s previous owners, Kuilima Resort Co., had prepared an environmental impact statement back in 1985 when it first sought approvals to expand the resort by adding thousands of additional hotel and condominium units. The City and County of Honolulu approved the EIS on Oct. 30, 1985, and the resort reached a unilateral agreement with the city in 1986.
In 2005, then-owner Oaktree Capital Management announced plans to proceed with the plan, drawing opposition from community groups that sued to force a supplemental EIS. A consortium of lenders recently took back the property — home to the 443-room oceanfront Turtle Bay Resort hotel, 425 condominium units and two championship golf courses — from Oaktree in lieu of foreclosure.

The majority opinion by Chief Justice Ronald Moon said the original EIS approved in 1985 was based on data available in 1985 and projected to 2000.
Because more than 20 years have passed since the EIS was approved and since the environmental impacts were projected through 2000, and because the project is not yet complete, “we conclude that the project, although unchanged in terms of size, scope, location, intensity and use, is — due to a change in timing — an ‘essentially different action,’” the court wrote.

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