Wednesday, July 15, 2009

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.

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