Wednesday, July 15, 2009

Triggers and Exemptions: Preliminary Findings

Research Questions:
Applicability of the Law: Chapter 343 outlines the conditions under which the state EIS process is “triggered.” This study is analyzing if the criteria for including or excluding actions are too narrow or too broad.
  1. Does the process capture all the major actions that may have an impact on the environment, or are some projects being bypassed?
  2. Are we capturing actions that should not be subject to law?
  3. What constitutes the use of state or county lands or funds?
  4. Are there other triggers that should be included?
Exemptions: Some actions because of their nature do not require impact assessment. Chapter 343 deals with these cases by allowing for exemption.
  1. Have exemptions been appropriately declared under the environmental review process?
  2. Are exemptions being too narrowly or too broadly defined?
  3. How should exemption lists and exemption declarations best be administered by the Environmental Council and OEQC respectively?
Stakeholder Interview Comments
Stakeholders reported that most projects that should be subject to the law are captured, but that some projects do escape. In particular, some private projects may escape environmental review. Private projects involving development of agricultural land or in urban areas were frequently identified as example of projects that may escape. Many suggested adding specific new triggers to bring more projects into the system. (See the workshop booklet for a list of suggested triggers.)

Many stakeholders also reported that actions that should not be subject to the law, or that should be exempt are being required to undergo environmental review. Specifically, this is a problem recently due to connections to roads and utility hook-ups triggering the law and not being subsequently exempted as they have been in the past. There is currently much uncertainty regarding this aspect of the law and it has resulted in creating a bottleneck in the system that has been problematic for both agencies and businesses.

The first suggested approach to improve the system was that triggers should be broad (less specific) and capture everything. It was suggested that adding a trigger at the discretionary permit level would be beneficial by capturing most projects early on. This should be accompanied by a clear, transparent and reasonable exemption process to let projects back out of the system out that do not need to undergo environmental review. Furthermore, there should be more clarity as to which permits are ministerial and which are discretionary. The other suggested approach was to add more triggers to capture projects currently being missed. The most commonly suggested new triggers included development of Ag land, any major project over a certain size threshold, cultural landscapes, and SMAs. Many other specific triggers were mentioned. Also commonly suggested was that the definition of “use” of state or county land or funds should be clarified, and that thresholds should be established to clearly determine what constitutes “use.”

Interviewees commonly cited a lack of clarity surrounding the exemption process. Application of the exemption process varies based on interpretation of the law. Many felt that exemptions have been both inappropriately declared (e.g. Superferry) and not declared when they should be (e.g. connections to roads and utility hook-ups). Agencies are currently apprehensive of litigation and the resulting overly cautious interpretation of the law has yielded results that are at times unreasonable and lack common sense. Other issues that frequently arose include a lack of transparency in the exemption system, a lack of clarity as to how the existing law should be best interpreted, a need for guidance as to whether or not agencies can use other agencies' exemption lists, and a broken process for updating exemption lists.

Suggestions for improving the exemption process included: (1) having more guidance and clarification on how to apply the existing law, (2) more transparency and oversight of exemption declarations, (3) adding a requirement that agencies periodically update exemption lists, (4) changing the process to include categorical exemptions (similar to NEPA and CEQA), and (5) clarifying the role of OEQC and the Environmental Council in updating exemption lists.

Stakeholder Workshop Results
Session 1: Review of Results
The review of results session of the workshop confirmed the importance of many of the issues identified above. The problem of projects that should be exempt being forced through the system was identified as an issue that needs to be addressed immediately. Opinion was split between adding more triggers to capture projects that currently escape the law, and having a process that broadly sweeps everything in with a focus on the exemption process to let projects back out. Very few people felt that the process did not need to be changed in any way. The review of results session also confirmed that the “use of state or county land or funds” trigger needs clarification.

The workshop confirmed the sentiment that “exemptions have not been appropriately declared.” This was mostly identified in regard to the utility/ROW connection issues. There was agreement that the current use of exemptions depends largely upon interpretation. The suggestion for improvement that received the most support was to provide more guidance and clarification of the existing law. There was some support for having a system of categorical exemptions similar to the NEPA or CEQA approach, and support requiring that exemption lists be periodically updated (including fixing the process for updating exemption lists).

Session 2: Discussion Groups and Report Back
The workshop discussion did not reach a consensus on how to best fix the system, but there was some agreement over core issues. The group agreed that there is a need for the triggers and exemptions process to be comprehensively reworked, and that perhaps a task force should be established to do this. In this examination of the system, the use of categorical exemptions should be considered.

There was agreement that all major projects with major impacts should be brought into the process, and that the system should be modified to ensure that this happens. While existing triggers generally work well for government, they are somewhat irrational when applied to private projects. At the same time, many small projects are drawn in that do not need to be, especially small public projects. The group agreed that there should be a categorical trigger for major projects: some suggestions were to use a size threshold or a request for rezoning as a trigger.

There was a suggestion that the “use” of state funds should be redefined to involve some kind of construction and/or land use. Other points that the group agreed on were that overly specific triggers (e.g. wastewater) are sometimes perverse, and that conservation projects should be exempted.

Other suggestions that arose in this discussion group were to require publishing exemptions in the OEQC bulletin, to bundle agency exemption lists, to add triggers for land use reclassification, SMAs, and private projects over a certain size. There was also a suggestion to remove some triggers, including those for wastewater and heliports which can be too specific and are already regulated in other ways.

Public Notice and Review: Preliminary Findings

Research Questions:
Public Notice: An important part of the EIS process is agency, stakeholders, and public participation. The study is reviewing the present notification process.
  1. Are the agencies, stakeholders, and the public being adequately notified of environmental review opportunities under Chapter 343?
  2. Are there other actions that can be taken to improve the notification process?
Review of Draft Documents: An important feature of Chapter 343 is that documents are made available for comment and review by agencies and the public.
  1. Are agencies actively participating in reviewing draft and final environmental documents produced by other agencies and applicants?
  2. Are there ways to improve the interagency review process?
  3. Can the present system for comment and response be improved?
Stakeholder Interview Comments
Although opinions varied, the most common observation regarding public notice was that agencies and groups are adequately notified, but the general public is not. The public tends to find out about opportunities to participate too late in the process. Another common sentiment was that because of staffing and budget constraints, there are limits on how much public outreach agencies are able to do. Finally, many interviewees felt that notification is already sufficient for agencies, stakeholders, and the public, and that the current system generally works well.

For the interagency review processes, the favored response was that participation tends to vary by agency, and that budget and staffing constraints are factors that limit how much can be done. Often, there is not enough time to get through so many lengthy documents with short-staffed agencies and the limitation of the 30-day comment period. There are problems with some agencies' comments and responses lacking depth, where comments are boilerplate and responses inadequate.

Another problem that was frequently identified was “comment bombing.” This is when a project is controversial and the public and/or special interest groups send in hundreds or thousands of similar comments. According to the current system, each comment must be responded to individually and must also be published in the final document. For project proponents, these requirements seem unreasonable and burdensome.

To address concerns about public notice and review, the following actions were most commonly suggested:
  1. Public notice can be improved by better use of the internet and the OEQC website. In particular, it would be useful the create an email notification system whereby users can opt for notification of projects in areas of interest (by region or by type of project.)
  2. Public notice can be improved by increasing outreach. Some actions that might be taken include: posting signs on property, notifying neighbors via postcards or phone calls, holding community meeting, placing ads in the newspaper or on the radio, and more widely circulating the OEQC bulletin, including distributing it to public libraries.
  3. Public notice and the review process can both be improved by doing more pre-consultation and scoping.
  4. Public notice and the review process can both be improved by having more public and agency education about the process.
  5. Public notice can be improved by clearer guidance as to what is required. Better guidance could also help to make public notice processes more consistent.
  6. The review process can be improved by creating more incentives to review for agencies and university faculty.
  7. Public involvement in the process could be improved by lengthening the public review period, or by having some leniency toward extending it if necessary.
  8. The quality of comments might be improved by: better guidance as to the adequacy of responses, having a dedicated staff person in each agency to deal with comment and response, and creating an independent body of experts or government agency to conduct reviews.
Stakeholder Workshop Results
Session 1: Review of Results
The Stakeholder workshop helped to further clarify the information that came from the interviews. Workshop attendees agreed that there is room for improvement in the public notice and review processes. For public notice, the favored solutions were (1) better use of the Internet and website, (2) Having more public education about the process, and (3) more thorough pre-consultation and scoping. (This option – an improved scoping process - was also the most favored solution for improving review.) The workshop feedback for the review issue confirmed a general consensus that the quality of interagency review varies by agency and is somewhat inconsistent. The workshop feedback also confirmed that the incidence of “comment bombing,” is currently an issue. There was support for the idea that using the public comment period to try to delay or stop projects is a misuse of the system. (It is worth noting that the majority of support for this idea came from government agencies, consultants, and business groups and not from uh faculty, public interest groups or environmental groups.)

Session 2: Discussion Groups and Report Back
Discussion supported the findings of the stakeholder interviews and the first workshop session. The public is not involved enough. More public education would help the public to better understand the process and thus to be more involved. Better use of the Internet could help to provide public notice. In particular, groups and individuals should be able to sign up to receive notice for projects in areas of interest. Use of the Internet could also help to make the comment and response process more efficient. Accordingly, updated guidance is needed as to how to use electronic communications in the process. The discussion group also agreed that a more thorough scoping process (both with the public and agencies) would help to identify potential problems and issues in advance, thus reducing the need for the public, agencies and other reviewers to comment extensively. A suggestion was made that the scoping process should be more like NEPA, and that required scoping should be part of the state law. Finally, more flexibility in extending the review period is needed. 30 days should be a minimum, but there should be flexibility built in to the process to extend the date if needed. This will benefit both public involvement and agency ability to comment and respond to comments.

To address the “comment bombing” issue, the discussion group came to the conclusion that the requirement to respond individually to each comment should be changed. It should be allowable to clump together similar comments and respond to them together (as in NEPA). Although the group did not arrive at an ultimate solution, there was consensus that this issue is important and should be dealt with.

Shelf Life: Preliminary Findings

Research Questions:
There is no expiration date on accepted EAs and EISs. In some cases an action for which a document has been prepared and accepted is not immediately implemented.
  1. Should there be a shelf life (time limit) for environmental review documents?
  2. What should be the standard for reviewing the adequacy of information contained in an environmental document when a project is postponed or delayed?
Stakeholder Interview Comments
Stakeholders generally agreed that environmental review documents should not be valid indefinitely. A majority of interviewees preferred having a time deadline after which a review is triggered (if project implementation has not begun) rather than a “drop-dead” date after which the document expires. This review would determine if a new or supplemental study is needed. Many were concerned that a shelf life for environmental review documents would be detrimental for projects that take a long time to implement, and might negatively affect opportunities for funding. Some suggested that if a time deadline is to be implemented, the standard for government projects should be different (longer time frame) than for private projects. Another common concern was that, if a shelf life is to become part of the process, it should be possible to do targeted studies that address only the relevant changes.

To address concerns about shelf life, the following actions were most commonly suggested:
  1. A review to determine adequacy of documents should be required after a set number of years. (Most common suggestion was 5-10 years, maybe differing for areas changing more rapidly.) This review should be done on a case-by-case basis, based on a set of criteria and a new or supplemental document should only be required based on this review finding that there have been significant changes in terms of these criteria. Some of the suggested criteria include change in environment, project, traffic, population, land use, economy, public concern, noise and pollution.
  2. Another suggestion was to resubmit the documents for some kind of public review process, which would reveal any new issues or insufficiencies.
  3. Others felt that this issue is already addressed in the existing rules on supplemental EISs, and that these rules should be clarified.
  4. If changes are to be assessed, there is a need for data with which to do this. There should be a database and standardized methodology for data collection. (see: cumulative impacts)
Stakeholder Workshop Results
Session 1: Review of Results
The Stakeholder workshop further clarified the information from the interviews. Workshop attendees strongly favored having a review of the document after a time deadline, and also favored the statement that a new document should only be required if there are significant changes to the project, environment, and/or circumstances. The most common concerns identified by workshop attendees was that this might serve to further delay projects that already take a long time to complete. Assessing documents on a case-by-case basis to determine if changes in criteria warrant a new or supplemental document was the most commonly identified solution.

Session 2: Discussion Group and Report Back
Discussion confirmed the recommended actions that emerged from the interviews and workshop “votes”. The discussion group agreed that documents should have a time deadline for review, and that this review should be case-by case and criteria based. However, it should be taken into consideration that if the rules are too stringent regarding shelf life that it might result in projects not being implemented (including ones in the public interest). New or supplemental documents should only be required if there are significant changes in the project or surrounding circumstances. It also remained undetermined as to what exact number of years would be appropriate for document shelf life. It was suggested that this time deadline might vary depending on the area and its rates of change and growth.

Governance: Preliminary Findings

Research Questions:
By law, the Office of Environmental Quality Control administers the environmental impact assessment process, the Environmental Council issues the rules, and the Environmental Center offers expertise from the University of Hawaii.
  1. What is your assessment of the OEQC’s current functioning and whether its effectiveness can be improved?
  2. What is your assessment of the Environmental Council’s current functioning and whether its effectiveness can be improved?
  3. What is your assessment of Environmental Center’s current functioning and whether its effectiveness can be improved?
Stakeholder Interview Comments
Stakeholders largely responded that the governance process needs improvement or change and better presence in the EIS community and public at large. Most stakeholders were only familiar with one or two of the three entities, but did offer some general comments about the overall arrangement and interplay of the three. All three entities lack funding, staff, and administrative support. OEQC should have more authority to make legally binding decisions. The Environmental Council is unable to fulfill its role of managing exemption lists due to the shortage of resources and support. The Environmental Center’s comments are useful, but it should play a larger role within the University and the environmental review process, given its legislated mandate. Finally, some suggested reorganizing, consolidating, or eliminating some or all of these three entities. In particular, many remarked that having OEQC or the Environmental Council in DOH is not suitable.

Suggestions for improving environmental review governance include:
  1. Increase resources and staffing, provide better guidance and training for all three organizations.
  2. Strengthen the legal powers of the three entities. OEQC should be able to review, reject inadequate documents, and declare exemptions that are legally binding. The Environmental Council should be able to make declaratory rulings, hear appeals, and oversee administrative actions. The Environmental Center should issue opinions to decision-makers, share expertise with the community, and perform 5-year reviews of the EIS system.
  3. Consolidate environmental review governance under OEQC so that the agency oversees the entire process. Make the Environmental Council like the Board of Land and Natural Resources (BLNR).
Stakeholder Workshop Results
Session 1: Review of Results
The review of findings workshop results indicated participants primarily supported the increase of resources and staffing for all three entities. In addition, many participants supported creating a State Environmental Protection Agency to house them. Most agreed that OEQC lacks funding and staffing, but does the best it can. Besides increasing funding and staff, participants supported expanding/changing OEQC’s role in the process by expanding its legal authority or consolidating it with the Environmental Council. For the Environmental Council, many indicated that it does not currently fulfill its role, agreeing with the statement that the Council has been undermined in various ways. Besides the option of increasing staff and funding, some support was expressed for eliminating the Council or changing its role in some way. For the Environmental Center, participants recognized that it plays an important role in the environmental review process, but that its comments vary in quality at times. Of those supporting increasing its effectiveness, most were for increasing resources and training staff.
Other comments received during the review of findings include to expand DOH’s role to one similar to the EPA for reviewing EISs, to integrate projects more closely to planning to lessen the burden on these entities, and for OEQC to offer mediation/conflict resolution alternatives to lawsuits.

Session 2: Discussion Group and Report Back
In the discussion workshop, participants sought recommendations for all three entities. OEQC should be seen as a guardian of the 343 process. It should have a bigger budget and more staff, a stronger role in reviewing EISs, and develop more guidance such as for best practices. To offset the increased duties, require project proponents to pay a fee based on a sliding scale. Also, OEQC should be moved from the Department of Health. The Environmental Council should have the ability to issue declaratory orders, made explicit by inserting language into Chapter 343. The Environmental Center should continue its current activity, but receive more staff. The University should provide more staff and faculty participation through incentives or requirements. Also, allow more lead time for notifying professors to comment. Finally, the group suggested creating an environmental protection agency.

EIS Preparation: Preliminary Findings

Research Questions:
Chapter 343 requires that the proponent of an action prepare the required EIS.
  1. Should someone other than the project proponent prepare an EIS?
  2. If yes, who should be responsible for the EIS?
Stakeholder Interview Comments
Overwhelmingly, stakeholders responded that the project proponent is best suited to preparing an EIS, though many did acknowledge that conflicts of interest can and do occur. Even the perception of such a conflict can be problematic, but more often than not agencies do their best to act appropriately. Project proponents have a stake in a speedy process, more accountability, and knowledge of the project. They are best suited to know appropriate mitigation measures and hire professional consultants. Others stated that a third party should prepare an EIS in order to maintain actual or perceived neutrality in the EIS.

To address the concerns of actual or perceived conflicts of interest, the following actions were most commonly suggested:
  1. Improve the existing system. Conflicts of interest will always exist and these are manageable. Establish best practices and guidelines, train preparers, and enhance agency capacity to make the existing system work better.
  2. Use third party preparers. Require the proponent to pay a fee for filing the document. This fee would pay for a consultant or unrelated agency staff to prepare the EIS. Alternatively, OEQC could prepare the documents.
  3. Certify preparers by establishing qualifications and verifying independence. Preparers should cite their qualifications in documents and could be randomly chosen from a list. Preparers that provide false or misleading information will be decertified.
Stakeholder Workshop Results
Session 1: Review of Results
Responses were divided between continuing to have the project proponent prepare the EIS and having someone other than the proponent prepare it. Certifying preparers to ensure professionalism and independence also received some support.

Session 2: Discussion Group and Report Back
In discussion, participants acknowledged that the issue of who prepares an EIS is controversial, but ultimately agreed that the proponent should continue to prepare the EIS. The discussion group also explored why this is an issue, citing the desire for fairness, balance, and professionalism. Suggestions for supporting these principles focused on transparent and clearer guidelines to reduce the real or perceived conflicts of interest. For more transparency, include more and better public education about the EIS process. For better quality and neutrality, reviewers should have clear guidelines to hold preparers more accountable. Therefore, OEQC should prepare guidelines and more actively review EISs, though this would require a larger budget and staff. To offset this increased cost, proponents could be required to pay a fee to OEQC to supplement these greater duties.

EA Determinations and Acceptability

Research Questions:
EA Determinations: An important decision for each action that is subject to Chapter 343 is whether it may have significant effects. Based on the judgment of the lead agency, an action’s proponent may conduct only an environmental assessment instead of an environmental impact statement.
  1. Are agencies making a proper finding of no significant impact?
  2. Are agencies properly applying the term “significant effect” to determine whether an EIS should be prepared?
Acceptability Determinations: At the end of the EA and EIS process agencies usually make the determination whether the document(s) adequately conform to Chapter 343. Sometimes an agency is in the position to accept a document that it has prepared.
  1. Should the acceptance process be modified to prevent an agency from accepting a document it has prepared?
  2. Should there be further administrative oversight over the acceptability determination by an agency’s environmental review process?
Stakeholder Interview Comments
Generally, interviewees agreed that agencies are making proper findings of no significant impact (FONSI) and that they should accept their own documents, citing that agencies are still held accountable for the decision. Some however suggested that the conflict of interest, real or perceived, is such that the present system should be changed.

To address the concerns of actual or perceived conflicts of interest, the following actions were most commonly suggested:
  1. Increase the role of OEQC to monitor the process, accept documents, make binding recommendations, or be able to veto determinations.
  2. Allow applicants to chose to directly do an EISs and skip the EA, particularly if significant impacts are clearly present. When in doubt, err on the side of caution by doing an EIS.
  3. Look to other states and NEPA for best practices to selectively adopt in managing significance findings and acceptance procedures.
Stakeholder Workshop Results
Session 1: Review of Results
In the review of findings, more participants found agencies to not be making a proper finding, and were evenly split on whether agencies should or should not accept their own documents. Most agreed OEQC should have stronger role to not only monitor the process, but also be able to develop criteria, accept documents, make binding recommendations, and veto determinations. Many also agreed that proponents should be allowed to directly produce an EIS.

Session 2: Discussion Group and Report Back
In discussion, participants agreed that agencies are not always making proper determinations, though believed that much of this debate is driven by recent events. More education of the public and agency staff on the process and reviewing documents is needed. OEQC should continue its educational role and receive more funding to support this. Also, proponents should be allowed to go directly to doing an EIS. If there is doubt, an EIS should be done. Many of the suggested solutions would require a “super agency.” However, for the most part, participants agreed that the present system is acceptable.

Cumulative Impacts: Preliminary Findings

Research Questions:
Chapter 343 requires that cumulative impacts be addressed in EISs. The review is researching the best way to assess cumulative impacts, their significance, and how to mitigate them.
  1. Does current EIS practice in Hawaii effectively address cumulative impacts?
  2. How can the EIS system be improved to effectively assess cumulative impacts, their significance, and how to mitigate them?
Stakeholder Interview Comments
Overwhelmingly, stakeholders responded that cumulative impacts are not currently adequately addressed through Hawaii’s EIS process. Although in some cases and for some impacts this is done better than in other cases, overall cumulative impact analysis is inconsistent and lacking. This is due to a lack of data, oversight, and clear guidance. Many stated that cumulative impacts would be better addressed on a planning level by more active state and county planning agencies. Attempting to address cumulative impacts on a project-by-project basis without tying this analysis into an overseeing planning framework does not seem to be a good way to realistically assess cumulative impacts.

To address these concerns, the following actions were most commonly suggested:
  1. Link cumulative impact assessment to general plans and planning policy. This will provide a framework to look at these impacts more holistically and to tie the EIS process to zoning, land use, and established state/county/community plans.
  2. Establish baselines or thresholds for quantifiable cumulative impacts so that the EIS process can be better used to assess how projects affect the baseline and whether or not impacts are within or exceed allowable thresholds.
  3. Establish standardized methodology and protocols for measuring, collecting and reporting data, and create state or regional databases to store this data in a central location. (data is needed in order to establish baselines/thresholds.)
Stakeholder Workshop Results
Session 1: Review of Results
The Results Review session of the workshop helped to further clarify the information that came from the interviews. There was general agreement that cumulative impacts are important and should remain part of the EIS process. (Some had suggested that if this could not be adequately addressed, it should not be required). There was also agreement that Hawaii is currently lacking a consistent, universal approach to data collection that is needed to adequately address cumulative impacts.

Session 2: Discussion Group and Report Back
Discussion confirmed that the recommended actions that emerged from the interviews were sound. Government planning should address cumulative impact issues in planning documents that can be referred to when preparing EISs. Agencies should create baseline data and there should be standard methodology for handling data in the EIS process. Proponents should address how their projects affect the baselines. Discussion confirmed the need for stronger, more proactive higher-level planning that can be linked to the EIS process, and a need for this planning effort to include establishing baselines or thresholds for cumulative impacts (at least for impacts that are quantifiable). Some questioned whether the responsibility for cumulative impact analysis should rest with individual project proponents, or if it would be more suitable for an accepting or overseeing agency to address this.

Some other interesting points that arose from this discussion include the following: (1) Some impacts are more qualitative than quantitative and thus more difficult to measure, or to establish baselines/thresholds for. There should be further research into what these impacts are and how to best address them. (2) Guidance is important to help define the boundaries of how cumulative impacts are addressed in the EIS. Without clear limits, this requirement can be taken too far and become unreasonable. (3) It might be more appropriate for the accepting agency for cumulative impacts to be the county (i.e. not an agency like DOH simply because wastewater was the trigger for the project) (4) Having unbiased documents is necessary to ensure that impacts are not downplayed or unrealistically mitigated. A 3rd party preparer system might better achieve this.

Mitigation Measures: Preliminary Findings

Research Question:
Chapter 343 requires identification of mitigation measures in the preparation of EAs and EISs, yet there is no requirement that the mitigation measures be actually implemented.
  1. Should mitigation measures discussed in the environmental impact assessment document be required by law?
Stakeholder Interview Comments
Two main responses emerged from the stakeholder interviews:
  1. That mitigation measures are already captured in the permitting process, and thus should not be required by law. The argument was made that the current system usually functions well, and that the idea that there is a lack of follow through on mitigation measures may be more of a perceived rather than an actual problem. As a disclosure document with the purpose of providing information, it would be inappropriate to use the EIS as the mechanism by which to require/enforce mitigation measures.
  2. That mitigation measures should be required by law. Some of the suggested ways to accomplish this included looking to NEPAs “record of decision” process and making mitigation measure binding upon acceptance of the document. Another suggestion was for the documents to include a section summarizing the projects’ impacts and suggested mitigations for these impacts. For any measure not tied to a permitting authority, these could be required with a unilateral agreement.
A few other common concerns that arose include: (1) that there should be set thresholds for some impacts after which they cannot be “mitigated down” to avoid doing a full EIS, or after which a project cannot move forward, (2) that there is an issue with enforcement, which is currently lacking. If there is to be more/better enforcement, what agency will be responsible for this? Finally, (3) there was a concern that because mitigation measures are not currently required, they are not given thoughtful and realistic consideration.

Stakeholder Workshop Results
Session1: Review of Results
Opinion was split over the two responses listed above, although the latter, requiring mitigation measures by law, did receive more support. Overwhelmingly, there was agreement that there should be some follow-up and enforcement of mitigation measures.

Session 2: Discussion Group and Report Back
The workshop discussion group came to the conclusion that mitigation measures are best dealt with by regulatory/permitting agencies, not through the EIS process. Mitigation measures should be recorded in the discretionary permitting process. The group felt it was worth considering a system similar to NEPA , where the agency proposing the project is responsible for mitigation. (Although this would work only for agency EAs and EISs) To aid follow-up and enforcement, documents should be required to include a section in the beginning summarizing impacts and mitigation measures, including a table. This will be helpful for reviewing agencies and the public. This group also noted the importance of having unbiased documents, so that impacts are not downplayed and unrealistically mitigated.

Although no suggested solution for enforcement was arrived at, this group noted that there is a lack of a formal enforcement mechanism and agreed that some kind of mechanism is needed. Finally, there was some agreement that it should not be necessary to devote so much space in documents discussing mitigation measures that are already regulated in permitting. (e.g. construction-related impacts).

Cultural Impact Assessments: Preliminary Findings

Research Question:
Since 2000, cultural impacts are required to be discussed in EISs.
  1. Is the cultural impact assessment process working well or could it be improved?
Stakeholder Interview Comments
Overwhelmingly, stakeholders responded that the cultural impact assessments need more consistency and clarity, though some considered it to be working well as it is presently. Many stated uncertainty over the scope of the CIA—whom to include (Hawaiian only?), what and who are experts, and how to effectively address non-physical cultural impacts (lifestyle, traditional uses of space). Others added that some cultural information can be private and may not be included in a public document like an EIS, but may still suffer significant impacts.

To improve CIAs, the following actions were most commonly suggested:
  1. The State should define ‘cultural impacts’ and ‘traditional cultural practice’, clarify the role of cultural experts, and establish better guidelines/rules to clarify and make the assessment more consistent.
Stakeholder Workshop Results
Session 1: Review of Results
The participants in the review of finding identified the lack of consistency as very important. To address this issue, most respondents supported having better guidelines and standardizing the process. Others supported fixes that include clarifying the roles of SHPD, OHA, and the Burial Councils, as well as other agencies; and the role of ‘cultural experts’.

Session 2: Discussion Group and Report Back
In discussion, participants agreed that a lack of consistency in the rules exists. More guidance would be helpful, but clarifying rules must come before guidelines. One solution would be to establish a review body to assess the CIA section of EIAs and recommend changes to the rules. For guidance, checklists that are general enough to be relevant for different geographic areas, should be provided to preparers and reviewers. Also, a database at either the State or county level for the reports is needed. Participants objected to adopting 6E completely, since it provides for little public consultation or privacy for sensitive cultural issues, but supported looking into the federal 106 process more. Furthermore, the group agreed that preparers should be neutral, certified, and have existing local knowledge or experience of Hawaii. Also, the group declared that natural resources are cultural resources to native people.

Best Practices: Preliminary Findings

Research Questions:
Best practices have been developed for many areas of environmental management.
  1. Are you aware of any best practices (industry standards) for preparing environmental review documents?
  2. Does current practice for preparing environmental review documents in Hawaii reflect those best practices?
Stakeholder Interview Comments
Generally, stakeholders responded that best practices exist, though not always applied in Hawaii. Interviewees recommended adopting proven practices from other States, NEPA, or other countries, though some cautioned that such practices might need to be adapted to Hawaii’s unique environment. Some even noted that best practices of the past have been lost.

To develop and encourage best practices, the following actions were most commonly suggested:
  1. Clarify existing rules, guidelines, process, and content requirements. Hawaii has decades of experience with EISs. This experience should serve as a foundation. OEQC should select past documents as models.
  2. Make OEQC’s Guidebook the best practices standard for Hawai. The Guidebook is already the standard that many preparers use. OEQC should continuously update the Guidebook with the latest best practices. Also, include a standard outline for EAs/EISs and example checklists, matrices, etc.
  3. Adopt federal established best practices and guidance. Examples include requiring documents to be “reader friendly,” providing a State version of CEQ’s “40 Most Asked Questions,” or having each State agency develop its own manual and good technical guidance standard.
  4. Certify preparers for EIS work. People should lose their license if they misrepresent information in the EIS document or during the process. This will ensure preparers do their best.
  5. A specific practice often mentioned was to consult the community well before starting a project. By the time a project reaches the environmental review stage, many aspects of the project are already set. By consulting the community well ahead of time, the likelihood of community support and minimal environmental impacts increases.
Stakeholder Workshop Results
Session 1: Review of Results
The review of findings workshop overwhelmingly supported making OEQC’s Guidebook the best practices standard. Reviewers also supported the specific practice of consulting the community before starting a project. Clarifying rules, guidelines, process, and content requirements received some support as well and certifying preparers for EIS work received similar levels of support.

Session 2: Discussion Group and Report Back
In discussion, participants recommended updating the Guidebook and standards. Furthermore, they recommended clarifying the intent of the EIS system, with greater integration and coordination among agencies. A central agency to coordinate the process is needed.

Climate Change: Preliminary Findings

Research Questions:
Climate change will cause some impacts to Hawaii’s environment. For example, sea level rise may threaten coastal infrastructure.
  1. Are climate changes issues, such as carbon emissions, coastal zone management, and sea level rise, adequately addressed in the current EIS system?
  2. How best can climate change impacts to Hawaii’s environment be incorporated into the environmental impact statement process?
Stakeholder Interview Comments
Overwhelmingly, interviewees responded that climate change is not addressed well, if at all. Primarily, this is due to a lack of methodology and a high degree of uncertainty. Moreover, many responded that the EIS is not the appropriate tool for addressing climate change. Some did suggest that the EIS is appropriate to address climate change in very specific, narrow terms.

The most common suggestions for addressing climate change were to:
  1. Establish standard indicators, baselines, and metrics to enable measuring impacts. The State should create a database that preparers may use to include in EISs.
  2. Integrate climate change into other tools such as long-range planning or agency guidelines and policies, not the EIS.
  3. Leave to national and State legislation to resolve. Impacts are too small at the local level to effectively address climate change.
Stakeholder Workshop Results
Session 1: Review of Results
The review of findings workshop generally regarded the EIS as not the best means to address climate change, though many considered the best way to address climate change to still be undetermined. A few considered climate change as best addressed at the long-range planning level. If one were to address it in an EIS, it should at least discuss how a project contributes to climate change in terms of greenhouse gas emissions and how climate change will affect a project.

Session 2: Discussion Group and Report Back
In contrast to the interviews and review of results, discussion participants supported integrating climate change into EIS documents. In particular, they recommended distinguishing between GHG emissions and long-range planning/policy issues. Climate change should be one of many issues examined in an EIS, but it should not be boilerplate or rubber-stamped.

Disaster Management: Preliminary Findings

Research Questions:
Resiliency and rapid response to disasters are aided by development that is built with disaster management in mind.
  1. Should the EIS process examine whether applicant or agency actions adequately address disaster resiliency?
  2. In particular, should an assessment document discuss its impact on response, recovery, and preparedness?
  3. Should the EIS process be modified in the event of a state-declared emergency or disaster?
Stakeholder Interview Comments
Overwhelmingly, interviewees responded that the EIS should not addressing disaster resiliency or response, recovery, preparedness and that the environmental review system should be suspended during state-declared emergencies. These are the responsibility of Civil Defense, Planning, and the Counties, and are sufficiently covered through existing mechanisms such as long-range planning. Some acknowledged that addressing these issues in the EIS might be appropriate in certain contexts such as justifying a project, outlining evacuation procedures, or mitigation proposals. Similarly, many suggested some type of environmental review is necessary even during emergencies.

The following include most common suggestions for addressing disaster management in relation to EISs:
  1. Continue to have the present agencies responsible for disaster management, but have them provide risk assessments to preparers to include in EISs.
  2. Include response, recovery, and preparedness to the list of significant impacts and to mitigation measures.
  3. Better define “disaster” and “emergency” to have clear applicability, scope, and scale. Restrict these terms to only the response phase, not the recovery or rebuilding phases.
  4. Create some type of environmental review during emergencies to provide more oversight.
Stakeholder Workshop Results
Session 1: Review of Results
The review of findings workshop generally supported the interview responses, though more support was present in the review of findings for including disaster response in EISs where appropriate. The majority of responses for modifying the environment review system during emergencies supported keeping the present system, though some did support some type of review, or even adopting NEPA-like requirements for permanent post-disaster fixes.

Session 2: Discussion Group and Report Back
In discussion, participants considered the issue to be too big. If one were to include emergency response information, one should consider a “shelf-life” for any preparedness information included in an EIS. A better definition of a “state-declared emergency,” its scale, and scope is needed. Also, how long a “state-declared emergency” is in effect should be reviewed and clarified.

Big Ideas/Other Issues: Preliminary Findings

Research Questions:
We would like to give you the opportunity to discuss concerns with the environmental impact assessment process that we have not covered. Are there any further comments you would like to add?

From the perspective of affected industries and businesses, are there other issues and concerns that should be addressed by this study?

Stakeholder Interview Comments
A few big-picture concerns became clear during the interview process. Many interviewees suggested that the process as it is currently functioning is not in alignment with the original intent of the law. Instead of being focused on disclosure of information for the purpose of informing decision making, the EIS system has become overly process-oriented. It was suggested that the intent of the law and the way the process functions should be brought into alignment, either by changing the law or by changing the intent. This is linked to another concern that was frequently expressed: that the process has become too complicated as it has been changed and added to over the years. In trying to do too much, it has become less effective and more bureaucratic.

Another big picture idea that frequently arose was that the process should be more holistic, and better integrated with planning and the concept of sustainability. Long-term planning would obviate the need to take a strong regulatory approach towards development by having clear goals in place ahead of time. A focus on planning might also help to change the currently adversarial relationship between developers and the community. Linked to all the points mentioned above is the issue of the process being used to stop projects, which does not reflect the original intent of the law.

Businesses concerns include the need for more clarity and predictability and consistency in the law. A common concern that arose was that the process is prohibitive for small business, and also for projects that have clearly positive impacts such as affordable housing and renewable energy. The business community also reported finding the process over costly and time consuming, and recommended striving for a process that is both protective and efficient.

Making the process more consistent at different levels was another concern that was expressed in the interviews. More consistency is needed across agencies, between the state and county levels and between the state and federal levels.

A final suggestion that arose, and that was not covered under any of the other topics was that the analysis of alternatives process could use improvement. Analysis could go in to more depth, and there could be more guidance as to what is required. Alternatively, some suggested that the alternatives analysis does not really serves a purpose, as proponents already know what they want to do, and thus this requirement should be removed.

Stakeholder Workshop Results
Session 1: Review of Results
The review of results workshop session showed many were interested in the idea of reviewing the intent of the law. There was also much support for the suggestion that the process be made more holistic and be better integrated with planning. Business concerns, particularly that businesses would benefit from more predictability and clarity in the law, were also ranked as very important. Finally, the idea that there should be more consistency between the state and federal processes was favored by many workshop participants, with the suggestion to make 343 more like NEPA receiving many "votes". Finally, another point that arose was that it is important to remember that a lot of good comes out of the 343 process, and that perhaps this study’s focus on identifying problems and finding solutions is overlooking the ways in which the process works well.

Session 2: Discussion Group and Report Back
The workshop discussion group spent some time discussing the intent of the law. They came to the conclusion that the original intent of the EIS being a disclosure document remains valid. This discussion group reported that perhaps the law is currently functioning in regulatory ways that are not in alignment with the original intent. In particular, the way in which the public uses the process to stop projects does not reflect the intent of the law. This group recommended more public education about the process (possibly by OEQC).

Another problem identified by this discussion group was that there is not a consistent hierarchical structure within the EIS system. It is unclear where one might go to get an answer to a question. Furthermore, when questions are answered by different agencies or authorities, it is unclear what kind of authority those answers have. This discussion group recommended creating a clear hierarchy for the EIS process. Along with increased public outreach, the OEQC could provide clearer guidelines by updating the general guidebook. Additionally, each accepting authority could have it own guidebook for implementation. This discussion group agreed that it is not the law that is broken, but the process.

Some of the other issues included in this workshop were not covered by the discussion group, but still may warrant further consideration. Some of these questions include how to better incorporate planning into the process, making the process more holistic, integrating state/county and state/federal processes, and improving the alternatives analysis.

Additional Research Questions

Other potential research questions arose from the stakeholder process. Although these were not directly addressed in interviews or in the workshop, they have come to our attention as important topics that warrant further inquiry. These topics include:
  1. The EIS system should be re-engineered to account for ne communication technology. How can new communication technology best be used in the EIS system?
  2. Can/should programmatic and strategic EISs be used more frequently in Hawaii? What benefits might this provide?
  3. Are the current content requirements adequately covering impacts? Should more requirements be added/removed?
  4. Can/should the process be made more consistent with NEPA?
  5. What role does judicial review play in the EIS process? How can this role be better defined?
  6. How can baselines and thresholds be better integrated into the EIS process?
  7. Much past development has been on undeveloped lands. However, in the future we may be seeing more urban infill projects. How can the system best function to address these two different kinds of development at the same time?

Town-Gown Follow-Up

The UH EIS Study conducted a series of stakeholder interviews followed by a "Town-Gown" Stakeholder Workshop held on June 3. At the workshop the following issues were discussed:
The above links connect to the preliminary findings of the Study based on results from stakeholder interviews and the two sessions of the day-long workshop. If you would like to share your thoughts on any of these or review other people's comments, please click on any of the links above to leave a comment.

Participants in the workshop also received the below workbook.
Town-Gown Stakeholder Workshop Workbook

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