Protect Waiehu Ahupua'a, Inc. v. Department of Housing and Human Concerns of the County of Maui

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 21-SEP-2026 08:27 AM Dkt. 92 MO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAIʻI PROTECT WAIEHU AHUPUAʻA, INC., a non-profit corporation, Plaintiff-Appellant, v. DEPARTMENT OF HOUSING AND HUMAN CONCERNS of the COUNTY OF MAUI; COUNTY OF MAUI; GENOVA CONSTRUCTION AND DEVELOPMENT, a foreign stock corporation, Defendants-Appellees, and DOES 1-27, Defendants. APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 2CCV-XX-XXXXXXX) MEMORANDUM OPINION (By: Leonard, Presiding Judge, Wadsworth and McCullen, JJ.) Plaintiff-Appellant Protect Waiehu Ahupuaʻa, Inc., appeals from the Circuit Court of the Second Circuit's June 22, 2023 final judgment in favor of Defendants-Appellees Genova Construction and Development (Genova), the County of Maui (the County), and the Department of Housing and Human Concerns of the County of Maui (DHHC), which was based on the circuit court's June 16, 2023 order granting Genova's motions for summary  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER judgment on all counts, granting DHHC and the County's cross- motion for summary judgment, and denying Protect Waiehu's motion for summary judgment. 1 Protect Waiehu's Amended Complaint for Declaratory and Injunctive Relief (Amended Complaint) 2 alleged Genova violated the Hawaiʻi Environmental Policy Act (HEPA), Hawaiʻi Revised Statutes (HRS) chapter 343, and HEPA's implementing rules, Hawaiʻi Administrative Rules (HAR) § 11-200.1, by compiling an inadequate draft environmental assessment (draft EA or DEA) and final environmental assessment (final EA or FEA). Likewise, Protect Waiehu alleged DHHC violated HEPA and HAR § 11-200.1, as well as provisions in the Hawaiʻi Constitution, by accepting Genova's inadequate draft EA and issuing an anticipated finding of no significant impact (AFNSI), and by accepting Genova's inadequate final EA and issuing a finding of no significant impact (FONSI). We vacate in part and affirm in part. An environmental assessment (EA) "serves to provide sufficient evidence and analysis to determine whether an action may have a significant effect." HAR § 11-200.1-2. We hold that the final 1 The Honorable Peter T. Cahill presided. 2 Protect Waiehu filed its complaint on August 7, 2022, but subsequently amended it to reflect a change in its corporate status. 2  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER EA in this case did not "provide sufficient evidence and analysis" and could not support a FONSI. I. BACKGROUND A. Factual Background At the center of this case is a now vacant, 238-acre parcel of land, formerly used for sugar cane agriculture and macadamia nut production, located in the ʻili of Waiehu in the ahupuaʻa of Wailuku on Maui (the Parcel). 3 Throughout the past twenty years, various developers have submitted project proposals to construct residential subdivisions on the Parcel. In 2005, for example, Hale Mua Properties LLC submitted, and the State of Hawaiʻi Land Use Commission (LUC) accepted, an FEA (the 2005 Hale Mua FEA) for the "Proposed Hale Mua Affordable Housing Subdivision" (the Hale Mua Project). The 2005 Hale Mua FEA included an Archaeological Inventory Study and the State Historic Preservation Division's concurrence with that study. The LUC issued a FONSI, which allowed the Hale Mua Project to proceed without conducting further environmental review, but it ultimately did not move forward. Fifteen years later, Genova proposed to develop the Waiehu Residential Community (the Project or Genova's Project) 3 The Tax Map Key (TMK) number for the Parcel is 2-3-3-002:031. 3  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER on the Parcel, "a 100% affordable 752-unit residential community along with associated infrastructure, roadways, amenities such as park space, walking trails, and landscaping," as well as retail space. Genova prepared a draft EA for the Project in December 2021. 4 DHHC transmitted Genova's DEA to the State of Hawaiʻi, Office of Planning and Sustainable Development's Environmental Review Program for publication in the December 23, 2021 edition of The Environmental Notice. The thirty-day comment period commenced on December 23, 2021, with comments due by January 24, 2022. We must briefly mention that, regarding an unrelated development on a neighboring parcel, the Environmental Review Program published on June 8, 2022, an FEA and DHHC's FONSI for the proposed Hale Mahaolu Ke Kahua Affordable Housing Community (Hale Mahaolu). 5 4 Only excerpts of the DEA appear in the record; the entire DEA is incorporated by reference in various filings and is accessible online. Chris Hart & Partners, Inc., Waiehu Residential Community Draft Environmental Assessment (Dec. 16, 2021), https://files.hawaii.gov/dbedt/erp/Doc_Library/ 2021-12-23-MA-DEA-Waiehu-Residential-Community.pdf [https://perma.cc/3G88- DRUQ]. 5 The record contains excerpts of the 2022 Hale Mahaolu FEA's front matter. The full FEA is accessible online. Munekiyo Hiraga, Hale Mahaolu Ke Kahua Affordable Housing Community Final Environmental Assessment (June 8, 2022), https://files.hawaii.gov/dbedt/erp/Doc_Library/2022-06-08-MA-FEA-Hale- Mahaolu-Ke-Kahua-Affordable-Housing-Community.pdf [https://perma.cc/N9UN- EXHY] 4  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER On July 8, 2022, the Environmental Review Program published Genova's final EA and DHHC's FONSI in The Environmental Notice for Genova's Project. B. Procedural Background 1. Protect Waiehu's Amended Complaint Protect Waiehu filed its seven-count Amended Complaint on September 8, 2022, alleging that both the DEA and FEA did not comport with HEPA, HAR § 11-200.1, or the relevant constitutional provisions. As presented, the seven counts were: Count I "Violation of Chapter 343, HRS — Improper Assessment of Environmental Impacts" (or Impacts Not Assessed) Count II "Violation of Chapter 343, Failure to Prepare Statement for Action That May Have Significant Impacts" (or Possible Significant Impacts) Count III "Violation of Chapter 343, HRS — Scope of Action Improperly Defined (or Segmentation)" Count IV "Violation of Chapter 343, HRS Environmental Assessment Preparation Procedures" (or Contents of EA) Count V "Violation of Constitutional Duties" (or Public Trust) Count VI "Violation of Constitutional Duties Under Article XII, Section 7 of the [Hawaiʻi] State Constitution" (or Traditional & Customary Rights) Count VII "Injunction" 5  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER In its prayer for relief, Protect Waiehu sought a declaratory judgment invalidating the FEA and FONSI and an injunction preventing Genova and DHHC from moving forward with the Project until they fully complied with HEPA, HAR § 11-200.1, and the Hawaiʻi Constitution. 2. Motions for Summary Judgment On January 4, 2023, Protect Waiehu moved for summary judgment on all seven counts. On January 6, 2023, Genova filed two motions for summary judgment. Genova first moved for summary judgment on Counts I (Impacts Not Assessed), II (Possible Significant Impacts), V (Public Trust) and VI (Traditional & Customary Rights). Genova next moved for summary judgment on Counts III (Segmentation) and IV (Contents of EA). Genova did not move for summary judgment on Count VII (Injunction). DHHC and the County filed a joinder to Genova's summary judgment motions. DHHC and the County cross-moved for summary judgment on all seven counts and opposed Protect Waiehu's summary judgment motion. The circuit court held a hearing with oral argument on the motions for summary judgment. On June 16, 2023, the circuit court entered its order granting Genova, DHHC, and the County's motions for summary 6  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER judgment and denying Protect Waiehu's motion for summary judgment. On June 22, 2023, the circuit court entered final judgment against Protect Waiehu and in favor of Genova, DHHC, and the County and dismissed with prejudice any unaddressed claims. Protect Waiehu timely appealed. 3. Genova Conveys the Parcel to the Department of Hawaiian Homelands (DHHL) Sometime during the course of the litigation, Genova cancelled the Project and entered discussions with DHHL regarding the Parcel's disposition. DHHL proposed to site its Waiehu Mauka Homestead Project (the DHHL Project), an "updated configuration of" Genova's Project, on the Parcel. On July 27, 2023, five days after Protect Waiehu appealed, DHHC informed the Environmental Review Program of its determination that DHHL was not required to complete an EA for the DHHL Project. DHHC explained that, pursuant to HAR § 11- 200.1-11 (eff. 2019), 6 the DHHL Project (1) was substantially 6 HAR § 11-200.1-11, which sets forth guidelines for when a proposed action may proceed without additional environmental review where, as here, a substantially similar action previously received a FONSI, provides in relevant part: §11-200.1-11 Use of prior exemptions, findings of no significant impact, or accepted environmental impact statements [(EIS)] to satisfy chapter 343, HRS, for proposed actions. (a) When an agency is considering whether a prior exemption, FONSI, or an accepted EIS satisfies chapter 343, HRS, for a proposed action, the agency may determine that additional environmental review is not required because: (continued . . .) 7  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER similar to Genova's Project for which a final EA was submitted and accepted; (2) was "anticipated to have fewer direct, indirect, and cumulative impacts than" Genova's Project; and (3) "fit[] within the range of alternatives analyzed in the Final EA because the [DHHL Project] is on the same site as [Genova's Project] analyzed in the Final EA and has a smaller footprint of development." The Environmental Review Program published DHHC's exemption determination in the August 8, 2023 edition of The Environmental Notice. On December 26, 2023, Genova conveyed the Parcel to DHHL and recorded the deed with the State of Hawaiʻi, Bureau of Conveyances on December 29, 2023. II. DISCUSSION On appeal, Protect Waiehu raises numerous points of error (POE), contending the circuit court erred when it entered (. . . continued) (1) The proposed action was a component of, or is substantially similar to, an action that received an exemption, FONSI, or an accepted EIS (for example, a project that was analyzed in a program EIS); (2) 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 (3) In the case of a final EA or an accepted EIS, the proposed action was analyzed within the range of alternatives. 8  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER summary judgment against Protect Waiehu and in favor of Genova, DHHC, and the County on each of the seven counts in Protect Waiehu's Amended Complaint. 7 Genova moved to dismiss this appeal as moot. We first address Genova's mootness argument. 7 Protect Waiehu's seven POE, excerpted below, contend the circuit court erred by: (1) "Applying the incorrect standards of review, including an arbitrary and capricious standard to DHHC's FONSI determination, clear error review to the procedural violations, and deferring to DHHC's FONSI determination along with applying a clear error and arbitrary and capricious standard to [Protect Waiehu]'s segmentation claims"; (2) Denying Protect Waiehu's motion for summary judgment and granting Genova, DHHC, and the County's motions for summary judgment "despite [Genova, DHHC, and the County's] violations of HEPA procedures, including failing to consider the appropriate factors in making the FONSI determination"; (3) Denying Protect Waiehu's motion for summary judgment and granting Genova, DHHC, and the County's motions for summary judgment "despite segmentation of the Project in violation of HAR § 11-200.1-10"; (4) Denying Protect Waiehu's motion for summary judgment and granting Genova, DHHC, and the County's motions for summary judgment "where the FONSI determination was not supported by substantial evidence"; (5) Denying Protect Waiehu's motion for summary judgment and granting Genova, DHHC, and the County's motions for summary judgment "where the record demonstrated at least one significant impact was likely, rendering the FONSI determination clearly erroneous and requiring preparation of an EIS"; (6) Finding the record did not contain sufficient evidence to determine DHHC breached its public trust duties; and (7) Denying Protect Waiehu injunctive relief. We do not reach POE 6 relating to Count V (Public Trust) of the Amended Complaint. See Kiaʻi Wai v. Dep't of Water, 151 Hawaiʻi 442, 466 n.48, 517 P.3d 725, 749 n.48 (2022) (quoting State v. Lo, 66 Haw. 653, 657, 675 P.2d 754, 757 (1983) ("If a case can be decided on either of two grounds, one (continued . . .) 9  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER A. Appeal Is Not Moot Genova moved to dismiss this appeal as moot because the "Project has been cancelled, the property underlying the Project has been sold to a third party, DHHL, and DHHL intends to use the property for a different project." Under these circumstances, Genova contends DHHC, the County, Protect Waiehu, and itself "no longer have an 'adverse interest'"; "there is no effective relief that can be granted to" Protect Waiehu; and none of the mootness exceptions apply. "Under the mootness doctrine, this court will generally refrain from deciding a case that has 'lost its character as a present, live controversy,' and in which 'the reviewing court can no longer grant effective relief.'" Carmichael v. Bd. of Land & Nat. Res., 150 Hawaiʻi 547, 560, 506 P.3d 211, 224 (2022) (quoting In re Marn Fam., 141 Hawaiʻi 1, 7, 403 P.3d 621, 627 (2016)). However, DHHC's approval of the FEA and issuance of the FONSI remain in effect for other proposals to rely on. See HAR § 11-200.1-11; Nat'l Parks & Conservation Ass'n v. U.S. (. . . continued) involving a constitutional question, the other a question of statutory construction or general law, this court will decide only the latter."). And none of the POE address Count VI (Traditional & Customary Rights), so any challenge to the dismissal of that count is waived. See Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28(b)(4) ("Points not presented in accordance with this section will be disregarded."). 10  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Dep't of Transp., 222 F.3d 677, 679 n.1 (9th Cir. 2000) ("The [agency's] approval of the project, however, remains in effect. Because the extension could still go forward based on the Environmental Impact Statement at issue in this case, National Parks' challenge continues to present a live controversy."); Kiaʻi Wai v. Dep't of Water, 151 Hawaiʻi 442, 458 n.31, 517 P.3d 725, 741 n.31 (2022) ("Hawaiʻi courts consider case law on HEPA's federal counterpart, the National Environmental Policy Act ("NEPA")."). HEPA's administrative rules allow an approving agency (here, DHHC) to approve a proposed action (here, the DHHL Project) without requiring further environmental review where it has previously issued a FONSI for another project (here, Genova's Project), and the proposed action is "substantially similar to" and "is anticipated to have direct, indirect, and cumulative effects similar to those" of that other project, provided "the proposed action was analyzed within the range of alternatives." HAR § 11-200.1-11(a). Once the approving agency determines that a prior FONSI satisfies HEPA's requirements for a proposed action and its determination is published in The Environmental Notice, the proposed action may proceed. HAR § 11-200.1-11(b). Less than one month after Protect Waiehu appealed, the Environmental Review Program published DHHC's determination in 11  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER the August 8, 2023 edition of The Environmental Notice. There, DHHC determined that DHHL need not conduct additional environmental review for the DHHL Project because it "is substantially similar to [Genova's Project], whose Final EA received a FONSI in 2022;" its effects "are anticipated to be fewer than those analyzed in the 2022 EA;" and "the proposed project fits within the range of alternatives analyzed in the 2022 EA." DHHC explained that the DHHL Project would develop "343 single family lots and 55 half-acre rural lots along with associated infrastructure, roadways, and amenities" on the same 238-acre parcel as Genova's Project. Because Genova's FEA and DHHC's FONSI may be relied upon, and because DHHL indicated it would do so, this appeal is not moot. See HAR § 11-200.1-11(a); Nat'l Parks & Conservation Ass'n, 222 F.3d at 679 n.1. B. Regarding Summary Judgment, the Circuit Court Erred in Part Protect Waiehu challenges the denial of its motion for summary judgment and the granting of Genova and DHHC and the County's motions for summary judgment, which resulted in the dismissal of the seven counts raised in its Amended Complaint. In its opening brief, Protect Waiehu raises seven points of error (POE 1-7) and provides eight arguments (Arguments A-H) but does not expressly identify the dismissed count to which each POE and Argument refers. And Protect Waiehu's POE do not always 12  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER directly correlate with the Arguments made. For example, the challenge to the dismissal of Count I appears to be addressed in POE 4 and Argument C, and we say "appears" because Protect Waiehu does not expressly state so. We generally note that poorly organized briefs unnecessarily burden already-strained judicial resources. And where there is non-compliance with the appellate rules, a point may be disregarded and an argument may be deemed waived, or alternatively, a party may be sanctioned, a brief may be struck, or a case may be dismissed. Hawaiʻi Rules of Appellate Procedure (HRAP) Rules 28(b), 30, and 51. Attorneys are deemed aware of, and are required to comply with, the appellate rules. HRAP Rule 1(d). That said, we attempt to address Protect Waiehu's challenge to the dismissal of the Amended Complaint to the extent we can discern. And we address Protect Waiehu's arguments only to the extent necessary to resolve this appeal. We review the grant or denial of summary judgment de novo. Villaver v. Sylva, 145 Hawaiʻi 29, 34, 445 P.3d 701, 706 (2019). The party moving for summary judgment must carry its burden of showing the "absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitles the moving party to judgment as a 13  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER matter of law." Umberger v. Dep't of Land & Nat. Res., 140 Hawaiʻi 500, 528, 403 P.3d 277, 305 (2017) (quoting French v. Hawaii Pizza Hut, 105 Hawaiʻi 462, 470, 99 P.3d 1046, 1054 (2004)). "This burden has two components" that the movant must meet. Ralston v. Yim, 129 Hawaiʻi 46, 56-57, 292 P.3d 1276, 1286-87 (2013) (quoting French, 105 Hawaiʻi at 470, 99 P.3d at 1054). First, the movant must meet its "burden of production — to show there is not a genuine issue of material fact as to the essential elements of the claim and that it is entitled to judgment as a matter of law." Frankel v. Bd. of Land & Nat. Res., 155 Hawaiʻi 358, 378, 564 P.3d 1157, 1177 (App. 2025) (citing Ralston, 129 Hawaiʻi at 56, 292 P.3d at 1286), cert. denied, No. SCWC-XX-XXXXXXX, 2025 WL 1713026 (June 19, 2025). Second, the movant must meet its "burden of persuasion — to convince the court that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Id. (citing Ralston, 129 Hawaiʻi at 57, 292 P.3d at 1287). "If the plaintiff, who has the burden of proof at trial, is the movant, 'the plaintiff must establish, as a matter of law, each element of its claim for relief by the proper evidentiary standard applicable to that claim.'" Id. (quoting Ocwen Fed. Bank, FSB v. Russell, 99 Hawaiʻi 173, 182-83, 53 P.3d 312, 321-22 (App. 2002)). If the plaintiff "movant satisfies 14  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER this burden, the burden then shifts to the nonmoving party defendant to 'demonstrate the existence of a triable, material factual issue on the plaintiff's claims' or adduce 'evidence of material facts which demonstrate the existence of affirmative defenses that would defeat the plaintiff's claim." Id. (quoting Ocwen Fed. Bank, FSB, 99 Hawaiʻi at 183, 53 P.3d at 322). A defendant movant "may satisfy [its] initial burden of production by either (1) presenting evidence negating an element of the non-movant's claim, or (2) demonstrating that the [non-movant] will be unable to carry [its] burden of proof at trial." Ralston, 129 Hawaiʻi at 60, 292 P.3d at 1290. "When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides' summary judgment evidence and determine all questions presented." Frankel, 155 Hawaiʻi at 367, 564 P.3d at 1166 (quoting Ke Kauhulu O Mānā v. Bd. of Land & Nat. Res., 154 Hawaiʻi 158, 547 P.3d 1188, No. CAAP-XX-XXXXXXX, 2024 WL 1886115, at *7 (App. Apr. 30, 2024) (mem. op.), vacated on other ground by 156 Hawaiʻi 356, 575 P.3d 13 (2025)). 1. Count I (Impacts Not Assessed) In Count I, Protect Waiehu claimed violation of HRS chapter 343. Protect Waiehu claimed that Genova's "FEA did not properly assess primary, secondary, and cumulative impacts of 15  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER the Project," and "DHHC's acceptance of the insufficient FEA and issuance of a FONSI for the Project violated Chapter 343, HRS and the Hawaiʻi State Constitution." All parties moved for summary judgment on Count I. On appeal, in POE 4 and Argument C, Protect Waiehu alleges the FEA did not adequately assess the Project's impacts on population, public facilities, agriculture, water resources, or offsite components. Under HAR § 11-200.1-21(6) (eff. 2019), a final EA must identify and analyze the proposed action's impacts. 8 8 HAR § 11-200.1-21 provides in full: §11-200.1-21 Contents of a final environmental assessment. A final EA shall contain, but not be limited to, the following information: (1) Identification of applicant or proposing agency; (2) For applicant actions, identification of the approving agency; (3) Identification of agencies, citizen groups, and individuals consulted in preparing the EA; (4) General description of the action's technical, economic, social, cultural, historical, and environmental characteristics; (5) Summary description of the affected environment, including suitable and adequate regional, location, and site maps such as Flood Insurance Rate Maps, Floodway Boundary Maps, United States Geological Survey topographic maps, or state sea level rise exposure area maps; (6) Identification and analysis of impacts and alternatives considered; (continued . . .) 16  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER "Impacts," synonymous with "effects," 9 include ecological, aesthetic, historic, cultural, economic, social, or health effects, "whether primary,[ 10] secondary,[ 11] or cumulative,[ 12] whether immediate or delayed." HAR § 11-200.1-2 (eff. 2019). ( . . . continued) (7) Proposed mitigation measures; (8) The agency determination and the findings and reasons supporting the determination; (9) List of all required permits and approvals (state, federal, and county) and, for applicants, identification of which approval necessitates chapter 343, HRS, environmental review; and (10) Written comments, if any, and responses to the comments received, if any, pursuant to the early consultation provisions of section 11- 200.l-18(a), and statutorily prescribed public review periods in accordance with section 11- 200.1-20. (Emphases added and formatting altered.) 9 HAR § 11-200.1-2 defines "effects" or "impacts" as follows: "Effects" or "impacts" as used in this chapter are synonymous. Effects may include ecological effects (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic effects, historic effects, cultural effects, economic effects, social effects, or health effects, whether primary, secondary, or cumulative, whether immediate or delayed. Effects may also include those effects resulting from actions that may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial. 10 "Primary" or "direct" impacts are "effects that are caused by the action and occur at the same time and place." HAR § 11-200.1-2. 11 "Secondary" or "indirect" impacts are effects "caused by the action and [are] later in time or father removed in distance, but [are] still reasonably foreseeable." HAR § 11-200.1-2. 12 "Cumulative" impacts are effects "on the environment that result[] from the incremental impact of the action when added to other past, present, (continued . . .) 17  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Although Protect Waiehu challenges the FEA's impacts analysis as to "population, public facilities, and agriculture," its argument on appeal focuses on population. Changes in "population density or growth rate" may produce secondary, "growth-inducing effect[s] and other effects." HAR § 11-200.1-2. Here, the FEA stated the Project was situated within the Waiheʻe-Waiehu Census Designated Place with an April 2020 population of 9,234 residents. 13 It otherwise neglected to analyze the Project's impact on population or attendant "growth- inducing effect[s] and other effects" that may follow changes in population density and growth rate. In turn, the FEA did not explicitly address how population changes would impact the already over-capacity intermediate and high schools servicing the Project area. Thus, Protect Waiehu met its burden of showing it was entitled to a judgment as a matter of law on Count I. (. . . continued) and reasonably foreseeable future actions regardless of what agency or person undertakes the other actions." HAR § 11-200.1-2. "Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." HAR § 11-200.1-2. 13 The FEA further noted the Project was subject to the Maui County Code's (MCC) Residential Workforce Housing Policy and, thus, would exclusively serve existing, full-time Maui residents. However, MCC chapter 2.96 requires only that twenty-five percent (25%) of the total number of units developed be designated for residential workforce housing, meaning the remaining seventy-five percent of units need not be set aside for existing residents. MCC § 2.96.040(A) (2006). 18  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Accordingly, the burden shifted to Genova, DHHC, and the County to "demonstrate specific facts, as opposed to general allegations, that present a genuine issue worthy of trial." See Umberger, 140 Hawaiʻi at 528, 403 P.3d at 305 (quoting French, 105 Hawaiʻi at 470, 99 P.3d at 1054). Neither Genova nor DHHC and the County pointed to which parts of the FEA or its appendices analyzed population density or growth rate in the area surrounding and including the Project. Instead, the portions of the FEA that Genova pointed to addressed population changes on a countywide scale. Because Protect Waiehu demonstrated, as a matter of law, that the final EA did not contain a sufficient impacts analysis regarding at least one reasonably foreseeable secondary impact, the final EA could not support DHHC's FONSI. Thus, the circuit court erred by granting Genova, DHHC, and the County's motions for summary judgment and denying Protect Waiehu's motion for summary judgment on Count I. We do not address Protect Waiehu's remaining arguments as to this count. 2. Count II (Possible Significant Impacts) In Count II, Protect Waiehu claimed the "Project may have significant impacts on the environment, as defined by HAR § 11-200.1-2 and HAR § 11-200.1-13 [(eff. 2019)], requiring preparation of an [environmental impact statement (EIS)]." Protect Waiehu moved for summary judgment on Count II, alleging 19  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER that the Project's likely significant impacts required an EIS, citing to HAR § 11-200.1-13(b). Genova, DHHC, and the County likewise moved for summary judgment. On appeal, in POE 5 and perhaps Arguments E and F, Protect Waiehu argues "the environmental court should have invalidated the FEA-FONSI and required preparation of an EIS on the basis that the Project is likely to have at least one significant impact." (Footnote omitted.) In particular, Protect Waiehu points to Genova having sought "an exemption from compliance with the Maui Countywide Policy Plan"; the Project being an "[im]permissible use in the State Agricultural District"; the removal of "158-acres of highly-rated soil [being] an irrevocable commitment of a natural resource"; the Project having "adverse secondary impacts" on population and public facilities and "significant cumulative and/or secondary impacts on drinking water"; and the FONSI determination being unsupported by substantial evidence. To issue a FONSI, an approving agency must (1) require the applicant to prepare an FEA, (2) review public and agency comments, and (3) apply HAR § 11-200.1-13's significance criteria. HAR § 11-200.1-22(a) (eff. 2019). "In determining whether an action may have a significant effect on the environment, the agency shall consider every phase of the proposed action, the expected impacts, and the proposed 20  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER mitigation measures." HAR § 11-200.1-13(b). "[T]he phrase 'may have a significant effect' as used in HEPA means 'whether the proposed action will "likely" have a significant effect on the environment.'" Unite Here! Loc. 5 v. City & County of Honolulu, 123 Hawaiʻi 150, 178, 231 P.3d 423, 451 (2010) (citing Kepoʻo v. Kane, 106 Hawaiʻi 270, 289, 103 P.3d 939, 958 (2005)). To recap, effects and impacts are synonymous. HAR § 11-200.1-2. Impacts include "effects on natural resources . . . whether primary, secondary, or cumulative, whether immediate or delayed." Id. A cumulative impact is an impact on the environment that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes the other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Id. (emphasis added). "'Environment' means humanity's surroundings, inclusive of all the physical, economic, cultural, and social conditions that exist within the area affected by a proposed action, including land, human and animal communities, health, air, water, minerals, flora, fauna, ambient noise, and objects of historic, cultural, or aesthetic significance." Id. "Plaintiffs need not show that significant effects will in fact occur but instead need only raise substantial questions whether a project may have a significant effect." See 21  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Unite Here! Loc. 5, 123 Hawaiʻi at 178, 231 P.3d at 451 (citation modified). A "significant effect" is: the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State. HRS § 343-2 (2022); see also HAR § 11-200.1-2. In Kia‘i Wai, the supreme court held that the FEA did not properly analyze cumulative impacts because it only considered cumulative impacts within the project site and "not cumulative impacts on water resources." 151 Hawaiʻi at 461, 517 P.3d at 744. The supreme court looked to a Ninth Circuit case, Center for Environmental Law & Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000 (9th Cir. 2011), for guidance in analyzing cumulative impacts in a water diversion case. Kiaʻi Wai, 151 Hawaiʻi at 461-62, 517 P.3d at 744-45. There, as here, the applicant sought to draw water from a source that "was already subject to numerous withdrawals at the time." Kiaʻi Wai, 151 Hawaiʻi at 461, 517 P.3d at 744 (citing Ctr. for Env't L. & Pol'y, 655 F.3d at 1003). The Ninth Circuit held the EA "properly analyzed cumulative impacts because it examined 'both the existing condition of the area and what the effects of the project would be.'" Id. (quoting Ctr. for Env't L. & Pol'y, 655 F.3d at 1008). 22  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Applying that guidance in Kiaʻi Wai, the supreme court determined that HEPA's cumulative impact rules required the FEA to "discuss additional water withdrawals facilitated by the relief line in relation to existing and anticipated withdrawals." Id. at 462, 517 P.3d at 745. While the impacts of diverting water from a source with no existing or anticipated diversions may be minimal, "the same incremental withdrawal leads to a dry streambed" if diversions already exist. Id. Here, the evidence Protect Waiehu appended to its motion for summary judgment demonstrated it was entitled to judgment as a matter of law because the FEA did not adequately consider the Project's water withdrawals in conjunction with the anticipated withdrawals of other proposed projects in the area, such as Hale Mahaolu. See id. at 461-62, 517 P.3d at 744-45. Rather, the FEA stated, "It is anticipated that the proposed action will generate demand that will cause a less than significant impact on the Maui County water system." The FEA then indicated that mitigation of the Project's impact on water resources would include co