Saturday, October 10, 2009

Draft Recommendations: I. Applicability

Applicability is the first of five themes for the draft recommendations. To learn more about the draft recommendations for other themes, please refer to the left sidebar. This theme contains two subgroups: Triggers and Exemptions.

One pressing concern for Hawaii’s environmental review system is how best to use resources to focus on projects that should be undergoing environmental assessment, while not wasting resources on small projects that do not warrant the process. Hawaii’s current system of triggers and exemptions too often results in small projects having relatively insignificant impacts undergoing review, while some major private development projects escape the system. Furthermore, the existing system has accreted new triggers to meet evolving public needs without addressing the rationality of the system as a whole. Exemptions are often outdated, inconsistent among agencies, and lack transparency. In response to these identified issues, the Study recommends adopting a new screening system.

A. Triggers
  1. Environmental assessment should occur at the earliest practicable time.

  2. Allow applicants to proceed directly to conducting an Environmental Impact Statement when significant impacts are clearly present.

  3. For determining the eligibility of an action for HRS 343, three alternatives, A, B, and C, are proposed. Click the image next to each alternative to see a general process flow chart.

    1. Alternative A: Modify Existing Trigger System
Alternative A Process Flow Chart
      1. Triggers to remain as is

        1. General plan (#6)

        2. Reclassification of any land from preservation (#7)

        3. Waste-to-power (#9B)

        4. Landfill (#9C)

        5. Oil refinery (#9D)

      2. Triggers to be clarified
        1. Use of State or County lands or funds (#1)

        2. Any use within a shoreline area as defined in HRS 205A-21
          1. Shoreline setback

        1. Power generation facility (#9E)

          1. Relating to biofuels
          1. Relating to solar/wind power

      1. Triggers to be added

        1. Special Management Areas (SMA) (under shoreline setback (see above) or as own trigger)
        1. Size threshold
        1. Protected/sensitive areas

        2. Rapid development

        3. Use of state waters and ocean resources

        4. Large land use reclassifications

      1. Triggers to be removed
        1. Wastewater (#9A)

        2. Heliport (#8)

        3. Waikiki (#5)

      1. Reorganize existing exemption system (see Exemptions)


    1. Alternative B: Discretionary Approval Screen
    2. Alternative B Process Flow Chart
      1. Define “action” similar to NEPA

        1. “Major” federal action – may have a significant affect on the quality of the human environment

      2. HRS 343 should apply to all State/County actions and all private actions that require discretionary approval
      1. Include master plans, programmatic EAs, and tiering (where smaller project-focused EAs reference a master plan or programmatic EISs for general discussions)

      2. Use threshold determinations for non-exempt projects to determine whether to prepare EA or EIS

      3. Move HAR 11-200-12 into the statute as a framework for determining significance

      4. State/County and private actions that require discretionary approval, such as that by the Land Use Commission, the Board of Land and Natural Resources, or other decision-making bodies involving discretionary consent, would enter 343 at earliest discretionary permit hearing

      5. If an EIS is required, it would be submitted at the last discretionary permit hearing

      6. Incorporate public participation elements of HRS into the discretionary hearing process

      7. Reorganize existing exemption system (see Exemptions)


    1. Alternative C: Categorical Inclusion Screen
    2. Alternative C Process Flow Chart
      1. “Inclusion” refers to initial premise that actions should be included in ER

        1. In contrast to current system where focus is on which projects should be excluded from environmental review

      2. Two lists

        1. Type 1 – presumption of projects having significant impacts; proceed directly to preparing EIS document

        2. Type 2 – presumption of projects not having significant impacts (exempt)

      3. Unlisted projects default into the system; use threshold determinations or other criteria to determine whether to prepare EA or go directly to EIS

      4. Each agency is required to create a list through the rule-making process

        1. Requires public participation in determining which actions belong on which lists

        2. Determine relevant thresholds

      5. Public has right to judicial appeal if a listing is unacceptable

B. Exemptions
  1. Consolidate agency lists into one shared list available to all agencies.

    1. One list for State agencies and one list for each County

    2. Require periodic updating of shared exemption list; apply sunset date to exemption lists

    3. Use existing 10 categories to create single categorical exemption list

    4. Allow public comment on proposed new exemptions

  2. Update the exemption lists to reflect existing knowledge of significant environmental impacts, such as exempting

    1. Projects that have a beneficial impact on the ecology of the immediate surrounding environment

    2. Actions below a to-be-determined size threshold

    3. Small, local power generating projects

    4. Renovation of existing facilities on developed land

  3. Require exemptions above a certain threshold to be published on the OEQC website.

    1. Include in the OEQC Bulletin

    2. Threshold should be based on size or cost

    3. Provide for a limited period of public notice

    4. Allow for administrative or judicial review of exemption declarations

  4. Allow agencies greater discretion in declaring exemptions.

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