32 ELR 20823 -- Ka Makani 'O Kohala Ohana Inc. v. Water Supply, Department of, County of Hawaii

Ka Makani 'O Kohala Ohana Inc. v. Water Supply, Department of, County of Hawaii

No. 00-17473 (295 F.3d 955) (UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT July 1, 2002)

ELR Digest

The court affirms a district court decision that the U.S. Geological Survey's (USGS') and U.S. Department of Housing and Urban Development's (HUD's) participation in a Hawaii Department of Water Supply (DWS) transmission project did not constitute a major federal action that triggered the National Environmental Policy Act (NEPA) requirement to prepare an environmental impact statement (EIS). The USGS participated in and partially funded a series of preliminary studies of the DWS' project. HUD provided Hawaii County the application material necessary to apply for a special purpose grant, the funding of which Congress had allocated to the county, in part, to conduct an EIS for a water resource system for the community of Kohala. The court first holds that the project did not constitute a major federal action that triggered NEPA. Although significant federal funding can turn a local project into a major federal action, the sum total of all federal funding offered to the DWS project was $ 1.3 million, which is less than 2% of the estimated total project cost of $ 80 million. The state and DWS have so far spent approximately $ 3.4 million on the project and the remainder will be funded by state and county issued bonds. Moreover, the USGS and HUD also lacked the necessary degree of decisionmaking power, authority, or control over the project to render it a major federal action. Although the USGS played an advisory role in planning the project, it was not placed in a decisionmaking role. Likewise, HUD's provision of advice and information to the DWS regarding the special purpose grant did not constitute discretionary involvement or control over the entire project. In addition, the court holds that HUD's regulations do not currently require the preparation of an EIS for the project. Although the regulations require an environmental assessment or EIS for projects funded with special purpose grants, projects consisting of environmental studies are exempt. An environmental group argued that the HUD requirement applied to the entire DWS project and not just to the project authorized under the special purpose grant. However, the HUD special purpose grant was clearly designated for use in the preparation of an EIS, and the other preliminary activities for the entire project would have no real impact on the environment and are exempt from NEPA.

The full text of this decision is available from ELR (12 pp., ELR Order No. L-541).

Counsel for Plaintiff
John G. Nelson
Brega & Winters
1700 Lincoln St., Ste. 2222, Denver CO 80203
(303) 866-9400

Counsel for Defendants
Susan L. Pacholski
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]