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.

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