Tuesday, June 2, 2009

Workshop 1: Triggers and Exemptions Voting Results

The Town-Gown Stakeholder Workshop was divided into two sessions. In the first session, stakeholders walked around and placed dots (Red dot= Red, Green dot= Green, Blue dot= Blue) next to the Study findings they believed to be important. Below is a summary of the dots for Workshop 1, Triggers and Exemptions.


Does the process capture what it should?

Some projects are bypassed. ()

  • Private projects. (7: 6Red dot, 1Green dot)
  • Projects in developed urban areas. (i.e. WalMart , Kapahulu Safeway) (4: 3Red dot, 1Green dot)
  • Private development of Ag land. (4: 3Red dot, 1Green dot)
The process captures what it should. (Blue dot)

No actions are captured that should not be subject to the law.
  • There is a misdirected focus on the triggers; use exemption lists to let things out.
  • We should have more oversight, not less.
Actions are captured that should not be subject to the law or should be exempt. (34: 10Red dot, 1Green dot, 23Blue dot)
  • Connection to roads (right of ways) and utility hook-ups. (21: 6Red dot, 2Green dot, 13Blue dot)
  • “Use of state or county lands or funds” trigger is too broad. (10: 8Red dot, 1Green dot, 1Blue dot)
  • Beneficial projects: conservation, small schools. (4: 3Green dot, 1Blue dot)
  • Small projects; there should be a size threshold. (2: 1Green dot, 1Blue dot)
  • Organisms imported for research. (3: 1Red dot, 2Green dot)
  • Projects that are captured in permitting: helicopters, wastewater. (2Blue dot)
Ways to improve the process: (2: 1Red dot, 1Green dot)

Triggers should be very broad and capture everything. (4: 1Red dot, 3Green dot)
  • Exemptions should be the mechanism for letting things out. (14: 4Red dot, 4Green dot, 6Blue dot)
  • Narrow, specific triggers won’t capture future actions we haven’t thought of. (Red dot)
  • There could be a broad trigger at the discretionary permit level and a few more to close any loopholes. (14: 4Red dot, 10Green dot)
  • All major projects should do a review. Adding a trigger that captures this at the earliest practicable time would be better. (15: 10Red dot, 5Green dot)

Other triggers should be included:
  • Any project over a certain size threshold (5Red dot)
  • Any major project that requires upgrades to infrastructure (Red dot)
  • Controversy (Red dot)
  • Obvious environmental impacts
  • Any large land use reclassification (10: 6Red dot, 4Green dot)
  • Development of Agricultural land (30: 5Red dot, 24Green dot, 1Blue dot)
  • Historic and cultural sites or “any site eligible for such designation”/cultural landscapes (7: 1Red dot, 6Green dot)
  • SMAs (23: 4Red dot, 18Green dot, 1Blue dot)
  • Ceded lands (9Blue dot)
  • Suggestions in the 1991 study (marine life conservation districts, special streams, sanctuaries, wetlands, etc.) (4: 1Red dot, 2Green dot, 1Blue dot)
  • Areas of rapid development (“hot spots”)
  • Development in disaster-prone areas (Red dot)
  • DLNR game management plans (4: 3Green dot, 1Blue dot)
  • Desalinization plants (Green dot)
  • Steep slopes (2: 1Red dot, 1Green dot)
  • Human issues/social impacts (Green dot)
  • Traffic (6: 1Red dot, 5Green dot)
  • Fundamental alterations of land form (Green dot)
  • Any evidence of rockwork or terracing
  • Use of state waters / ocean resources (2Red dot)
  • Rule-making (like NEPA)
No new triggers should be added. (Blue dot)
  • The existing system works well.
  • The process is already too onerous.

What constitutes the use of state or county lands or funds?

The definition should be broad.
  • Coverage for government actions should be expansive.
  • It may not always seem like a sensible definition of use, but this captures projects that should be subject to the law but would not be captured otherwise. (i.e. Koa Ridge) (2Red dot)
The definition needs clarification. (Red dot)
  • Need clear threshold of “use.” Currently this is a moving target. (24: 6Red dot, 3Green dot, 15Blue dot)
  • Clarify if tax credits trigger the law.
  • Clarify if federal funds passed through the state trigger the law. (4Red dot)
Comments and Concerns:
  • We should not have to do an EA for every little thing. It is a waste of taxpayer money. (10: 6Red dot, 1Green dot, 3Blue dot)
  • Should do more programmatic and strategic EAs/EISs. (6: 2Red dot, 3Green dot, 1Blue dot)
  • What is really needed is guidance and a way to look at things more qualitatively. (3: 1Red dot, 2Green dot)


Have exemptions been appropriately declared?

It varies by agency.

There is not much documentation of exemptions, so it’s hard to know. (3: 2Red dot, 1Blue dot)
  • “If an exemption happens in the forest, does anybody hear it?” (2: 1Red dot, 1Green dot)
Exemptions have not been appropriately declared. (6: 4Red dot, 1Green dot, 1Blue dot)
  • Connecting to roads and utilities should be exempt. (20: 7Red dot, 1Green dot, 12Blue dot)
  • Some agencies are under pressure to implement projects; exemptions are misused to escape the system. (4Red dot)
  • Agencies are scared to use exemptions; they don’t want to get sued. (9: 1Red dot, 1Green dot, 7Blue dot)
Exemptions are usually appropriately declared.
  • To my knowledge yes, but there is opportunity for abuse. (Red dot)
  • Mistakes are made, but there is no malfeasance.
  • It’s a judgment call.
Are exemptions too narrowly or too broadly defined? (Red dot)

It depends on the interpretation of the law; it varies.
  • “Just because a project is on the exemption list does not mean it is exempt.” (4Red dot)
  • There is no way to resolve questions without going to court. (5Red dot)
  • Some exemptions are too broad; some are too narrow. (5Red dot)
  • There should be some common sense and reasonableness in deciding what is exempt. (9: 6Red dot, 3Blue dot)
Too broadly. (Blue dot)
  • Utility hook-ups and connection to right of ways should be exempt. (5: 3Red dot, 2Blue dot)
  • Broad exemptions are too open to interpretation; narrower is clearer.

Too narrowly. (7: 2Red dot, 5Blue dot)
  • We feel we can only exempt the specific projects listed.
  • Exemptions need some flexibility. (5: 3Red dot, 2Blue dot)
  • Agency-based exemption lists should be abolished. (3Blue dot)
  • Exemption lists should be standardized with categories that apply to all agencies. (3Blue dot)
Ways to improve the process: (Green dot)

More guidance and clarification on how to apply the existing law. (2: 1Red dot, 1Blue dot)
  • The problem is not with the law but with how it is being interpreted. (6: 3Red dot, 2Green dot, 1Blue dot)
  • Have a standard/consistent way to record exemptions. (10: 9Red dot, 1Green dot)
  • Clarify if agencies can use each others’ exemption lists. (4Red dot)
  • Clarify if agencies can declare exemptions not specifically on lists. (16: 3Red dot, 13Green dot)
  • Clarify who makes the final determination between state and county. (3: 2Red dot, 1Blue dot)
More transparency and oversight. (Green dot)
  • The process is political so there should be public oversight. (Green dot)
  • Use OEQC website to post exemption declarations and exemption lists; be a clearinghouse. (2: 1Red dot, 1Blue dot)
  • Have a window for public notice/objection of exemptions.
  • Have a quick administrative or judicial review of declarations. (3Red dot)
  • A hidden exemption is the use of functional equivalence.
Require that exemption lists be updated periodically. (13: 5Red dot, 3Green dot, 5Blue dot)
  • Concerns change over time; some things exempted in the past shouldn’t be now.
  • The process for doing this should be clear and reasonable.
  • Lists should expire/have sunset dates.
Follow the NEPA or CEQA approach of statutory or regulatory categorical exemptions. (17: 1Green dot, 16Blue dot)

OEQC would be better-suited to help update lists.
  • The Environmental council is not good at administering exemption lists. (2: 1Red dot, 1Blue dot)
  • Exemption lists are subject to different levels of specificity based on who is on the Council. (Red dot)
  • It is too hard to get 15 people to agree. (2Red dot)
  • Council members should know their role and not micro-manage lists. (3Red dot)
  • The perception is that its very difficult to get lists approved/updated. (3Red dot)
Comments and Concerns:
  • The law could be amended to provide for more agency discretion for projects “commonly considered exempt.” (2: 1Red dot, 1Green dot)
  • Agencies need more self-determination, not more clarity. (5: 1Red dot, 4Green dot)
  • Having an outside agency decide on exemption declarations would take too long. There should not be another level of review. (8: 3Red dot, 1Green dot, 4Blue dot)
  • There should be a threshold for requiring written declaration (i.e. not for changing a light bulb). (8: 7Red dot, 1Blue dot)
  • Conservation projects should be exempt. (11: 4Red dot, 7Green dot)
  • We should not have site/location specific exemptions.
  • Make state and county processes more consistent. The same actions should be exempt. (2: 1Red dot, 1Blue dot)


  1. I would be happy to discuss the rationale and implications of the following questions. You also might want to consult Alan Chock, Don Kitaoka, and Isaac Moriwake. (It's more "entertaining" when they are in the same room.)

    - When Chapter 343 is "triggered" for an applicant action which needs a discretionary consent for private land development, what scale of proposed private development potentially may qualify for an EA Exemption? (For example, given the explicit wording of Section 11-200-8(A)(3), Hawaii Administrative Rules, could the proposed development of 2 single family houses or a 5 unit apartment building or a commercial building designed for 21 occupants qualify for an EA exemption?)

    - Which proposed applicant actions within a public highway right-of-way are a "use" under Chapter 343? (For example, given the Supreme Court ruling about a Nuuanu subdivision, is trenching within the highway right-of-way for a utility hookup a "use"?)

    - When an applicant has requested a discretionary consent for private land development, and proposed development requires some "use" of a public highway right-of-way, does it matter whether a "discretionary consent" is needed for the proposed "use" of a public highway right-of-way? (For example, is it appropriate for county planning departments to take the position that Chapter 343 does not apply to special management area use permit applications for development which needs new utility lines on county highways?)

    - Which applications involve a "discretionary consent" as defined under Chapter 343? (For example, is a required discretionary agency recommendation a "discretionary consent" for applications when a county council makes the final decision? When an agency has discretion to impose permit conditions to mitigate impacts identified in comments by other agencies, does the permit involve a "discretionary consent"? When an agency has discretion whether to impose specified kinds of permit conditions based on the facts, does the permit involve a "discretionary consent"? When an applicant requests an agency to defer or modify enforcement proceedings, does this involve a "discretionary consent"? When an agency has discretion to impose conditions, does approval of loans involve a "discretionary consent"? When an applicant requests an agency to amend rules, can rule making involve a "discretionary consent"?)
    - Doug Meller

  2. As currently drafted, State EIS Rules about EA Exemptions need to be literally interpreted. At this time, only trivial private development can legally qualify for an EA exemption.

    (See: Section 11-200-8, HAR (Environmental Council rules on EA Exemptions).doc)

    An application for trenching within a public highway right-of-way (ROW), even trenching for a trivial utility lateral or a single utility pole, is a "use". An application for placing an overhead utility line or an overhead utility lateral within a public highway ROW is a "use". An application for construction of acceleration, deceleration, or turning lanes within a public highway ROW is a "use". However, for reasons known only to the "Supremes", paving a simple driveway or roadway connection is not a "use".

    The Supreme Court's first "superferry" ruling arguably may imply that if an applicant is proposing to do "something" which does not require a "discretionary consent", then the proposed "something" should be treated as a "secondary impact" rather than as part of a multi-phase applicant action. Under this interpretation, Section 11-200-7, Hawaii Administrative Rules, would only apply to phases of applicant actions which need a "discretionary consent". If this interpretation were correct, then the Supreme Court's Koa Ridge and Kahana Sunset rulings arguably would not apply to discretionary county permits for development which only needs new utilities or a utility hookup within a county highway ROW. Regardless of of this interpretation, the county planning departments routinely ignore the Supreme Court's Koa Ridge and Kahana Sunset rulings when granting discretionary permits for development which needs to "use" the State highway ROW. (See: Sec. 11-200-7, HAR (phased actions).doc)

    Discretionary agency recommendations to county councils concerning private applications are a "discretionary consent". Any application which allows anything other than a quasi-judicial "yes" or "no" agency decision arguably involves a "discretionary consent". To avoid the work involved with complying with Section 343-5(c), HRS, many agencies have been pretending that their permits/approvals do not involve any "discretionary consent". Many other agencies are simply clueless.
    - Doug Meller