Assessing Hawaii's Environmental Review Process

Final Report on Hawaii's Environmental Review System

2010-11-09T21:32:00.000-08:00

The Study has completed its Final Report on Hawaii's Environmental Review System. It was prepared pursuant to Act 1, Session Laws of Hawaii 2008, which requested that the University of Hawaii conduct this study of the environmental review system and develop legislative recommendations for modernizing Hawaii's system of environmental review.

The first half of the Report includes introductory and background sections, a detailed description of the study process, and a discussion of the events of the 2010 legislative session. The latter half of the report focuses on detailing a set of comprehensive recommendations for improving Hawaii's environmental review system. The report focuses on five areas of concern within the system: (1) applicability, (2) governance, (3) participation, (4) content and, (5) process, and describes identified issues and specific recommendations for addressing them.

We thank you for your past and continued contribution to the study. Input from stakeholders was a key source of information used in determining the recommended changes to the system, and helped to shape and guide our study throughout the process. We look forward to continuing to work with you to improve Hawaii's environmental review system. Please feel free to contact us about the study via email at EISstudy@hawaii.edu or through the project blog at http://hawaiiEISstudy.blogspot.com.

The full report and appendices is displayed below or can be downloaded directly from here. The report or the appendices can be downloaded separately from the sidebar menu.
Final Report on Hawaii's Environmental Review System 2010

Presentation on the Working Group's Recommendations

2010-04-15T14:40:00.001-07:00

On Tuesday, four members of the Working Group, Professor Denise Antolini, Lee Sichter, David Arakawa, and Robert Harris, presented the Working Group's recommendations to the Natural Resources Section of the Hawaii State Bar Association. A power point was prepared, but not shown, in favor of a more discussion-oriented format.

The power point is available online here or for download (6.6 MB) and is designed to be more of a stand-alone document on the UH Study, the Working Group, and the recommendations.

Background Document: Environmental Justice Report

2010-04-12T23:35:00.001-07:00

As the Study prepares its final report, background materials will be posted. These materials are resource documents that the Study has referenced throughout its project.

One of the motivating reasons for the study itself was this Environmental Justice Report.

Working Group Participants' Agreement

2010-04-05T17:02:00.001-07:00

As noted before, Senator Gabbard convened a Working Group for those who testified on the first draft of SB2818 to come together, work out their differences, and develop language to improve the bill. The relevant portion of the Committees on Energy and Environment and Water, Land, Agriculture, and Hawaiian Affairs report on SB2818 addressed the legislative intent behind setting up the group:

Your Committees find that this measure requires additional scrutiny and review, and hope that the stakeholders will continue to work toward the effort of an improved system of environmental review. Your Committees have invited the University of Hawaii study team, the Director of the Office of Environmental Quality Control, the Chair of the Environmental Council, a member of the Environmental Council with a background in planning, and representatives of the Building Industry Association – Hawaii, Sierra Club Hawaii Chapter, the Land Use Research Foundation, Earthjustice, Belt Collins, and the Nature Conservancy to participate in a working group to develop further recommendations. Your Committees recognize that the working group may not achieve consensus on each aspect of the environmental review process, but hope that each member of the group will work in a spirit of compromise to seek a middle ground.

The UH Study Team contracted with Lily Bloom Domingo to serve as the facilitator for the discussions. The Working Group held half-day meetings on Feb. 16, 17, 22, 23, and Mar. 3, 4, 8, 17, and 22, as well as numerous subgroup meetings to work out especially tendentious points. To encourage more candid discussion, Ms. Domingo asked the members of the Working Group to sign a Participants' Agreement effective until the end of the group process.

The Working Group has concluded its work and Sen. Gabbard has since released the Working Group members from the Participants' Agreement. Here is a copy of the Participants' Agreement:

SB2818 Working Group
Senator Mike Gabbard, Host
Lily Bloom Domingo, Facilitator February 16, 2010
PARTICIPANTS’ AGREEMENT

SB2818 Working Group Objectives:
Identify areas of agreement regarding SB2818.
Identify possible improvements to SB2818.
Draft agreed upon improvements to SB2818.
Agree on revised SB2818.
Recommend revised SB2818 to Senate and House committees and leadership.
Ground Rules for Participation:
Come with the intent to find common ground with others to formulate revisions to SB2818.
Show respect for other participants, inside and outside the working group process.
Listen to understand, and avoid interrupting others.
Cell phones and other electronic devices will be turned off or placed on silent mode. Texting and phone conversations will be taken outside.
If you recommend improvements to SB2818, provide specific alternative language.
The content of the group's discussion, while not confidential, will not be disclosed to the media or used for other public advocacy events. While the Working Group is in process, participants agree to show respect for the process by not commenting on or judging other participants in public.
The desire is to reach agreements on revisions that everyone can live with, however, given the tight timeline for discusssions, it may be necessary to make decisions by voting, in which case the recommended changes will be determined by the majority vote.
Participation in the Working Group is a privilege not a right; any member of the Working Group who is unable to commit to a good faith collaborative process should not participate and may be asked to leave the group.
I agree with the objectives of the SB2818 Working Group and will abide by all the ground rules.

Signature
Date

The Working Group recommendations, in the the proposed versions of SB2818 SD2 HD3 and SB2957 SD1 HD2, and letters to Senator Gabbard are available in the Quick Links in the sidebar.

Environmental Review in the News

2010-04-04T19:32:00.000-07:00

Last week on Thursday, April 1, Dan Nakaso had an article in the Honolulu Advertiser on the Working Group that Sen. Gabbard convened.

Today in Sunday's paper, Senator Gabbard has a commentary responding to Nakaso's article.

Working Group Thank You Letters to Senator Gabbard

2010-04-01T20:26:00.001-07:00

At the conclusion of the Working Group, the members wrote two thank you letters to Senator Gabbard.

The first letter describes the unanimous consensus of the Working Group for recommendations to Chapter 341 HRS.*

The second letter describes the points of consensus and disagreement among the Working Group members regarding Chapter 343 HRS.

Update: After the submission of this letter to Sen. Gabbard, one member of the Working Group expressed strong reservations about the final wording in the proposed SB2818 SD2 HD3 regarding the language describing the relationship between the Environmental Council and OEQC.

Update on SB2818 SD2 HD3 - Working Group Recommendations to Chapter 341 HRS

2010-03-31T17:32:00.000-07:00

The House Committee on Finance recommended that SB2818 SD2 HD2 be deferred, thus choosing at this point to not consider the Working Group's recommendations embodied in SB2818 SD2 HD3.

Working Group Recommendations for Ch. 343 - SB2957 SD1 HD2

2010-03-31T17:14:00.000-07:00

Senator Gabbard has released the Working Group recommendations for Chapter 343 HRS in a proposed SB2957 SD1 HD2. The House Committee on Judiciary is supposed to hear the bill next, but the Committee has not yet scheduled a time. Please check back here or the SB2957's profile page at the capitol website for updates.

Working Group Recommendation for Ch. 341 - SB2818 SD2 HD3

2010-03-25T14:47:00.000-07:00

The Working Group presented its recommended amendments to SB2818 today to the House Committee on Finance. The working group, convened by Senator Gabbard, completed its work on Monday and submitted its consensus version of SB2818 SD2 HD3 attached to Professor Antolini's testimony. The testimony and version HD3 should be available on the Legislature website by Monday at the latest.

Until then, the Working Group version of SB2818 SD2 HD3 can be downloaded here.

Upcoming JUD Hearing for SB2818 SD2 HD1

2010-03-14T20:43:00.000-07:00

The House Committee on Judiciary will hear SB2818 SD2 HD1 on Tuesday, March 16, 2010 at 2:15 pm. As the bill moves through the House Committee hearings, the Working Group appointed by Senator Gabbard continues to meet to reach agreement on concerns raised during previous testimony.

House Amends SB2818 SD2 to SB2818 SD2 HD1

2010-03-12T12:47:00.000-08:00

Yesterday, the joint-meeting of the House Committee on Energy and Environmental Protection (EEP), the Committee on Water, Land, & Ocean Resources (WLO), and the Committee on Economic Vitalization, Business, & Military Affairs (EBM) recommended passing SB2818 SD2, and amended it to SB2818 SD2 HD1.

The committees on EEP recommend that the measure be PASSED, WITH AMENDMENTS. The votes were as follows: 12 Ayes: Representative(s) Morita, Coffman, Cabanilla, Chang, Chong, Har, C. Lee, Luke, Ching, Thielen; Ayes with reservations: Representative(s) Herkes, Sagum; Noes: none; and 1 Excused: Representative(s) Ito.

The committees on WLO recommend that the measure be PASSED, WITH AMENDMENTS. The votes were as follows: 12 Ayes: Representative(s) Har, Cabanilla, Chang, Chong, Coffman, C. Lee, Luke, Morita, Ching, Thielen; Ayes with reservations: Representative(s) Herkes, Sagum; Noes: none; and 1 Excused: Representative(s) Ito.

The committees on EBM recommend that the measure be PASSED, WITH AMENDMENTS. The votes were as follows: 6 Ayes: Representative(s) McKelvey, Choy, Evans, Tokioka, Tsuji, Ward; Ayes with reservations: none; 0 Noes: none; and 5 Excused: Representative(s) Berg, Manahan, Takai, Wakai, Wooley.

The amended House version 1 eliminates Sections 2-9 of SB2818 SD2, which all propose amendments to Chapter 343, and retains only Section 1 of SB2818 SD2, which proposes amendments to Chapter 341. HD1 also changes the effective date to July 1, 2010 and makes minor changes for consistency and style.

Update: SB2818 Now SD2; Hearing Today

2010-03-09T08:57:00.000-08:00

After the Feb. 26 meeting of WAM, SB2818 was passed and amended to SD 2. The bill then passed over to the House on March 2 and passed its first reading there March 3.

It will be heard today, March 9, at 11:15 AM by a joint committee hearing of the House Committee on Energy and Environmental Protection (EEP), the Committee on Water, Land, & Ocean Resources (WLO), and the Committee on Economic Vitalization, Business, & Military Affairs (EBM).

SB2818 SD1 Available

2010-02-12T12:27:00.000-08:00

Senate Bill 2818 has been amended to SD1, which is available here.

This amended bill incorporates the recommendations by Senators Gabbard and Hee at their respective committee meetings.

SB2818 Passes Out of WTL Committee

2010-02-12T00:19:00.000-08:00

Wednesday, February 11, 2010, SB2818 passed out of the Senate Committee on Water, Land, Agriculture and Hawaiian Affairs (WTL). The major proposed changes to Chapter 341 include:

Delete the transfer of DLNR
Increase the Environmental Council (EC) to 9 members instead of 7
Continue the terms of the existing EC through July 1, 2012 or until the next Council is confirmed
Change the effective date of Chapter 341 amendments to July 1, 2010 instead of 2012
Delete sections 2-4 regarding departmental transfer because they are no longer needed

The major proposed changes to Chapter 343 include:

Clarify and simplify the proposed applicability and environmental assessment screen by amending 343-5(a) as follows: "a. Except as otherwise provided, an environmental assessment shall be required for actions that involve (i) major use of state or county lands or funds, or (ii) the issuance to a person of a major discretionary approval, such as a zoning approval or a permit by one or more agencies"
Clarify that the mitigation monitoring report is only a disclosure document
Add a definition of "significant adverse environmental effect" for clarity
Change the "shelf life" rule, to be issued by the EC, to "not more than ten years" from a proposed "not more than seven"
Clarify the effective date of 343-6 (rule-making) shall be July 1, 2010, while the rest of the 343 amendments will remain effective July 1, 2012
Other technical amendments are also added

Chairman Hee recommended passing the bill in deference to other committees, noting that more opportunities to testify will be available in the future. Senator Hemmings repeated his appreciation for the effort of the study team and that the working group reexamine the issue of transferring the Environmental Council and OEQC from DOH to DLNR.

The votes in WTL were as follows: 4 Aye(s): Senators Hee, Bunda, Kokubun, Hemmings; Ayes with reservations: none ; Noes: none; and 3 Excused: Senators Tokuda, Fukunaga, Takamine.

SB2818 Passes Out of ENE Committee

2010-02-09T18:17:00.000-08:00

At 2:45 p.m. today, ENE passed SB2818 with amendments after Chairman Gabbard made a few remarks.

After thanking the Study Team for addressing concerns from the February 2 hearing, SB2818 was recommended to pass with the following amendments to Part I:

Delete the transfer of DLNR
Increase the Environmental Council (EC) to 9 members instead of 7
Continue the terms of the existing EC through July 1, 2012 or until the next Council is confirmed
Change the effective date of Chapter 341 amendments to July 1, 2010 instead of 2012
Delete sections 2-4 regarding departmental transfer because they are no longer needed

and to Part II:

Clarify and simplify the proposed applicability and environmental assessment screen by amending 343-5(a) as follows: "a. Except as otherwise provided, an environmental assessment shall be required for actions that involve (i) major use of state or county lands or funds, or (ii) the issuance to a person of a major discretionary approval, such as a zoning approval or a permit by one or more agencies"
Clarify that the mitigation monitoring report is only a disclosure document
Add a definition of "significant adverse environmental effect" for clarity
Change the "shelf life" rule, to be issued by the EC, to "not more than ten years" from a proposed "not more than seven"
Clarify the effective date of 343-6 (rule-making) shall be July 1, 2010, while the rest of the 343 amendments will remain effective July 1, 2012
Other technical amendments are also added

Senator Gabbard stated the the committee is committed to passing legislation, recognizing that the environmental review system is broken, but the bill is still not finished because some issues have not been addressed yet. Therefore, he is convening a working group to be composed of:

the UH Study Team
the Director of OEQC
the Chair of the EC
a member of the EC and a planner
a member of BIA
a member of the Sierra Club
a member of LURF
a member of Earthjustice
a member of BeltCollins
a member of The Nature Conservancy
and a facilitator

Senator Gabbard noted that participation in the working group is a privilege, not a right. He does not expect unanimous consent, though it would be nice, and no one individual would have veto power over the process. He expects everyone to come into the working group in the spirit of compromise and anyone who disrupts the process may be removed, to be replaced or not at the Senator's discretion.

During discussion of the bill, Senator Hemmings commented that he thanked Senator Gabbard for keeping the bill alive. He thanked the Study for the work and research it conducted and lauded its efforts to make the bill more equitable. He hopes the working group will take a second shot at relocating OEQC and the EC from DOH, noting the lack of institutional support from DOH. He still believes DLNR may be the best place to house the two. Also, he desires the working group to look at zoning and permitting for activities that are existing uses in existing zoning, to ensure such activities are not hindered by unnecessary environmental review. Finally, he recommended the inclusion of a member from The Nature Conservancy.

The bill was passed by vote, with Senators Gabbard, English, Green, Hooser, Kokubun, and Hemmings all voting in favor.

Hearing Notice for SB2818

2010-01-29T18:54:00.000-08:00

THE SENATE
THE TWENTY-FIFTH LEGISLATURE
REGULAR SESSION OF 2010

COMMITTEE ON ENERGY AND ENVIRONMENT
Senator Mike Gabbard, Chair
Senator J. Kalani English, Vice Chair

COMMITTEE ON WATER, LAND, AGRICULTURE, AND HAWAIIAN AFFAIRS
Senator Clayton Hee, Chair
Senator Jill N. Tokuda, Vice Chair

AMENDED NOTICE OF HEARING

DATE: Tuesday, February 2, 2010
TIME: 2:45 p.m.
PLACE: Conference Room 225, State Capitol, 415 South Beretania Street

AMENDED AGENDA

SB 2441

Testimony

Status

RELATING TO ENDANGERED SPECIES.

Establishes the intentional or knowing taking of an endangered species as a class C felony; provides a private right of action to enforce conservation of aquatic life, wildlife, and land plants laws.

ENE/WTL, JGO

SB 2818

Testimony

Status

RELATING TO ENVIRONMENTAL PROTECTION.

Transfers the office of environmental quality control and the environmental council from the department of health to the department of land and natural resources; reduces the membership of the environmental council from 15 to 7; establishes the environmental review special fund; revises the environmental assessment and environmental impact statement process to create a more streamlined, transparent, and consistent process.

ENE/WTL, WAM [Measure added on 01-29-10]

Decision Making to follow, if time permits.

FOR AMENDED HEARING NOTICES: If the notice is an amended notice, measures that have been deleted are stricken through and measures that have been added are underscored. If there is a measure that is both underscored and stricken through, that measure has been deleted from the agenda.

Persons wishing to testify should submit testimony in one of the following ways by 4:00 p.m. the day prior to the hearing:

· By Email: Testimony may be emailed if less than 5 pages in length, to the Committee at ENETestimony@Capitol.hawaii.gov . Please indicate the measure, date and time of the hearing. Email sent to individual offices or any other Senate office will not be accepted.

· By Web: Testimony may be submitted online if less than 4MB in size, at http://www.capitol.hawaii.gov/emailtestimony.

· In person: 1 copy of their testimony to the committee clerk, Room 201, State Capitol.

· By fax: Testimony may be faxed if less than 5 pages in length, to the Senate Sergeant-At-Arms Office at 586-6659 or 1-800-586-6659 (toll free for neighbor islands), at least 24 hours prior to the hearing. When faxing, please indicate to which committee the testimony is being submitted and the date and time of the hearing.

Please note: If you submit your written testimony after 4:00 p.m. the day prior to the hearing, please sign-in at the staff table to testify orally. A copy of your testimony may not be available during the hearing but will be posted online for the public after the hearing.

If you require special assistance or auxiliary aids or services to participate in the public hearing process (i.e., sign or foreign language interpreter or wheelchair accessibility), please contact the committee clerk 24 hours prior to the hearing so arrangements can be made.

Please note: All testimony received by the Hawaii Senate will be posted on the Hawaii Legislature's Website. Documents made available through the Testimony hyperlink(s) above may not be posted until the start of the hearing.

Public Folder. A folder labeled “Public Folder” containing the testimonies for the hearing will be available for shared use by members of the public.

FOR FURTHER INFORMATION, PLEASE CALL THE COMMITTEE CLERK AT 586-6830.

Twitter Updates of Environmental Protection Bills

2010-01-27T13:51:00.001-08:00

A twitter page has been set up with automatic updates of any bill relating to environmental protection that has been introduced to the 2010 Hawaii State Legislature. Each update contains a link back to the bill profile page on the Hawaii State Legislature website. An RSS feed of all the updates for the twitter page is also available.

Alternative Proposal: Senate Bill 2830: Relating to Environmental Protection

2010-01-27T02:30:00.000-08:00

An alternative proposal to the Study's omnibus bill has been introduced into the Senate. SB2830 proposes to

Remove the University of Hawaii Environmental Center from the environmental quality control process;

Transfer the Office of Environmental Quality Control (OEQC) from the Department of Health to the Office of the Governor; and

Revise the environmental review process to create an approach that is based primarily on land use decisions rather than individual projects.

Introducer: SAKAMOTO

To monitor the progress of the bill, visit here.

Senate Bill 2818: Relating to Environmental Protection

2010-01-27T02:03:00.000-08:00

The Study's omnibus bill has been introduced to the Senate as SB2818. To monitor the progression of this bill, visit here.

For those new to the legislative process, the Hawaii State Legislature website has great background resources, including a Citizen's Guide to Participation in the Legislative Process, which can be downloaded here.

Introducers: GABBARD, KIDANI, KOKUBUN, Espero, Hee, Nishihara, Sakamoto, Takamine

An RSS feed for SB2818 is provided in the left sidebar below the quick links. Check back often to learn the status of the bill as it moves through the legislature.

House Bill 2398: Relating to Environmental Protection

2010-01-27T01:54:00.000-08:00

Another version of the Study's omnibus bill has been introduced to the House as HB2398. To monitor the progression of the bill, visit here.

For those new to the legislative process, the Hawaii State Legislature website has great background resources, including a Citizen's Guide to Participation in the Legislative Process, which can be downloaded here.

Introducer: SAY (BR)

An RSS feed for HB2398 is provided in the left sidebar below the quick links. Check back often to learn the status of the bill as it moves through the legislature.

Alternative Approach to Chapter 341 - Expand the Role of OEQC

2010-01-23T02:42:00.000-08:00

The Study considered a range of alternatives that were ultimately not preferred. This background document presents one alternative approach to governance.

The purpose of providing this alternative approach as part of the study’s background documents on the study website is to facilitate transparency about the study’s deliberative process and to facilitate further discussion of these important issues.

Instead of elevating the role of the Environmental Council, as proposed in the study’s omnibus bill (attached as Appendix 3 to the Jan. 1, 2010 Report), this alternative approach would amend Chapter 341 to significantly expand the role and authority of OEQC, transform the Environmental Council into a smaller advisory body to advise to OEQC and retain only their “liaison to the public” function, and shift to OEQC the Council’s current duties of rulemaking, exemption lists, and the annual report.

Some of the study team’s recommendations are common to both the omnibus bill and to this alternative approach. In this “full text” version of Chapter 341, the common recommendations are noted in italics. Amendments are underlined; deletions are in strikethrough and brackets. The footnotes provide brief explanations as well as links to the (common) numbered recommendations in the report.

To avoid confusion with the proposed omnibus bill, a bill format is not provided for this alternative approach to governance although the Legislative Reference Bureau did generously assist the study team with preliminary drafting of this alternative in bill format. Furthermore, this document is current with the report submitted to the legislature and will not be updated to reflect any changes to the proposed omnibus bill as it moves through the legislative process.

Alternative Approach to Chapter 343 - Modify the Existing System

2010-01-23T02:23:00.000-08:00

The Study considered a range of alternatives to applicability that were ultimately not preferred. This background document presents one alternative approach.

The purpose of providing this alternative approach as part of the study’s background documents on the study website is to facilitate transparency about the study’s deliberative process and further discussion of these important issues.

Instead of a new “discretionary approval” and “probable, significant, and adverse environmental effects” screen proposed in the omnibus bill, this alternative approach would have made various modifications to the existing trigger system. The primary difference is seen in various amendments to HRS § 343-5(a) below.

Many of the study team’s recommendations are common to both the omnibus bill and to this alternative approach. In this “full text” version of Chapter 343, the common recommendations are noted in italics. Amendments are underlined; deletions are in strikethrough and brackets. The footnotes provide brief explanations as well as links to the (common) numbered recommendations in the report.

To avoid confusion with the proposed omnibus bill, a bill format is not provided for this alternative approach to applicability although the Legislative Reference Bureau did generously assist the study team with preliminary drafting of this alternative in bill format. Furthermore, this document is current with the report submitted to the legislature and will not be updated to reflect any changes to the proposed omnibus bill as it moves through the legislative process.

Statutory Recommendations to the Legislature: Appendix 4

2010-01-23T02:18:00.000-08:00

The Report to the Legislature's Appendix 4 is a full-text version of Chapters 341 and 343 that include footnotes and how the statute would look if the omnibus bill were passed.

Statutory Recommendations to the Legislature: Appendix 3

2010-01-23T02:10:00.000-08:00

The Report to the Legislature's Appendix 3 is the omnibus bill that serves as the basis for the recently introduced SB2185 and HB2322.

Statutory Recommendations to the Legislature: Appendix 2

2010-01-23T02:03:00.000-08:00

In the Report to the Legislature, Appendix 2 provides a list of participants in the review process.

House Bill 2322: Relating to Environmental Protection

2010-01-22T16:18:00.000-08:00

The Study's omnibus bill has been introduced to the House as HB2322. To monitor the progression of the bill, visit here.

For those new to the legislative process, the Hawaii State Legislature website has great background resources, including a Citizen's Guide to Participation in the Legislative Process, which can be downloaded here.

Introducers: MORITA, BELATTI, COFFMAN, HANOHANO, ITO, C. LEE, LUKE, B. OSHIRO, THIELEN, Cabanilla, Carroll, Chong, Evans, Keith-Agaran, M. Lee, McKelvey, Rhoads, Sagum, Say, Souki, Wakai, Yamashita

An RSS feed for HB2322 is provided in the left sidebar below the quick links. Check back often to learn the status of the bill as it moves through the legislature.

Update: Due to many alternatives of the omnibus bill and other bills relating to environmental protection, introducers of each bill will also be included.

Senate Bill 2185: Relating to Environmental Protection

2010-01-21T19:33:00.000-08:00

The Study's omnibus bill has been introduced to the Senate as SB2185. To monitor the progression of this bill, visit here. It is currently referred to a joint meeting of the Energy and Environemnt (ENE) & Judiciary and Government Operations (JGO) Committees, and to the Ways and Means (WAM) Committee. No date has been set yet.

For those new to the legislative process, the Hawaii State Legislature website has great background resources, including a Citizen's Guide to Participation in the Legislative Process, which can be downloaded here.

Update: An RSS feed for SB2185 is provided in the left sidebar below the quick links. Check back often to learn the status of the bill as it moves through the legislature.

Update II: Introducer: HANABUSA (BR)

Statutory Recommendations to the Legislature: Appendix 1

2010-01-18T17:03:00.000-08:00

Act 1 2008 is the authorizing legislation for the Study. The goods are in Section 10.

Basics of Environmental Impact Assessment

2010-01-18T15:14:00.000-08:00

The United Nations University, RMIT University, and the United Nations Environment Programme (UNEP) jointly developed an online course module that provides a critical overview of the theory and practice of environmental impact assessment (EIA), particulary from an international perspective. This is an excellent resource for those new to EIA or wish to review certain aspects of it.

The Module covers the:

purpose and aims of EIA;
EIA administration and practice;
concept of associated assessment processes;
key elements of the EIA process;
undertaking an EIA;
role of public participation;
stages that follow EIA;
the costs and benefits of undertaking EIA; and
understanding of the strengths and limitations of EIA.

Also on the site is an extensive list of definitions for common terms used in EIA and an EIA wiki.

Presentation for the 1.15.10 Legislative Information Briefing

2010-01-17T16:28:00.000-08:00

For the Legislative Information Briefing on Friday, Jan 14, 2010, a powerpoint presentation was presented and a 1-page summary of the report was prepared.

Legislative Information Briefing

2010-01-15T12:00:00.000-08:00

Friday, Jan 15, 2010, at 1:00 pm is a joint-information briefing for the legislature on the statutory recommendations for Hawaii's environmental review system.

Material from the presentation will be posted by Monday, Jan 17, along with other supplementary materials.

Report to the Legislature on Hawaii's Environmental Review System

2010-01-07T09:45:00.000-08:00

After incorporating the feedback to the draft recommendations, the Study has released a report to the Hawaii State Legislature recommending a comprehensive modernization of Chapters 341 and 343 HRS.

To view the report online, click here. To download a PDF version, click here.

Check back next week for appendices to the report.

In summer 2010, the UH EIS Study Team will release a final report of the Study, including recommendations for Chapter 344 HRS and HAR 200 & 201.

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 or email Scott Glenn or Nicole Lowen.

We encourage dialogue between contributors. For the comments, including your name or remaining anonymous are both options, but please be respectful of others' ideas. Any comments deemed offensive or irrelevant may be deleted. When leaving a comment, please choose "Anonymous" from the drop down box. The other options (LiveJournal, WordPress, TypePad, AIM, OpenID, and Name/URL) are available for those with those respective accounts and wish to have their comments linked to them. If you'd like to include your name, please type it into the message, but this is by no means necessary.

Update: Appendix 1, Appendix 2, Appendix 3, and Appendix 4 to the report have been posted in separate posts for direct access.

Draft Recommendations by Outline

2009-10-28T18:52:00.000-07:00

Please click below to comment directly on a particular topic of the draft recommendations.

Overview

Applicability

Process

Draft Recommendations: Preliminary Results

2009-10-15T18:46:00.000-07:00

Please click below to comment directly on a particular topic of the Draft Recommendations.

Triggers and Exemptions

Public Notice and Review

Shelf Life

Governance

EIS Preparation

EA Determinations and Acceptability

Cumulative Impacts

Mitigation Measures

Cultural Impact Assessments

Best Practices

Climate Change

Disaster Management

Big Ideas/Other Issues

UH Hawaii EIS Draft Recommendations

2009-10-12T22:30:00.000-07:00

Based on input from our stakeholder process and literature review, the Study has identified the following five themes for recommendations:

The above links connect to the draft recommendations. Each theme contains subcategories such as triggers and exemptions under Applicability. 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 or email Scott Glenn or Nicole Lowen.

A downloadable and printable PDF is provided below for analog reviewing.

UH EIS Study Draft Recommendations

We encourage dialogue between contributors. For the comments, including your name or remaining anonymous are both options, but please be respectful of others' ideas. Any comments deemed offensive or irrelevant may be deleted. When leaving a comment, please choose "Anonymous" from the drop down box. The other options (LiveJournal, WordPress, TypePad, AIM, OpenID, and Name/URL) are available for those with those respective accounts and wish to have their comments linked to them. If you'd like to include your name, please type it into the message, but this is by no means necessary.

Draft Recommendations: Overview

2009-10-10T20:05:00.000-07:00

The draft recommendations are organized into five themes: Applicability, Governance, Participation, Content, and Process. Applicability refers to the screening process used to determine which projects and actions should be subject to environmental review, and which should be exempted from the process. Governance recommendations discuss how best to allocate management, oversight, and support for the environmental review (ER) system. Participation focuses on recommendations for improving participation by both the public and agencies. Content includes recommendations for improving the substance of environmental review documents. Process addresses issues identified with how the process is implemented, including who should prepare and accept documents and shelf life.

Each theme has a set of recommendations. A particular recommendation may have sub-points, which are components that help explain the recommendation or a possible implementation strategy. The components are considered optional aspects of the recommendation and a combination of the components are possible to achieve the desired outcome. Several recommendations feature a set of alternative implementations to achieve the recommendation. In these cases, the alternatives may be mutually exclusive, but components of one alternative may be applicable to another alternative.

Applicability

Governance

Participation

Content

Process

A downloadable PDF is included below for easy printing and reading in analog.

UH EIS Study Draft Recommendations

We encourage dialogue between contributors. For the comments, including your name or remaining anonymous are both options, but please be respectful of others' ideas. Any comments deemed offensive or irrelevant may be deleted. When leaving a comment, please choose "Anonymous" from the drop down box. The other options (LiveJournal, WordPress, TypePad, AIM, OpenID, and Name/URL) are available for those with those respective accounts and wish to have their comments linked to them. If you'd like to include your name, please type it into the message, but this is by no means necessary.

Draft Recommendations: I. Applicability

2009-10-10T20:04:00.000-07:00

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

Environmental assessment should occur at the earliest practicable time.

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

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.

Alternative A: Modify Existing Trigger System

Triggers to remain as is

General plan (#6)

Reclassification of any land from preservation (#7)

Waste-to-power (#9B)

Landfill (#9C)

Oil refinery (#9D)

Triggers to be clarified

Use of State or County lands or funds (#1)

Any use within a shoreline area as defined in HRS 205A-21

Shoreline setback

Power generation facility (#9E)

Relating to biofuels

Relating to solar/wind power

Triggers to be added

Special Management Areas (SMA) (under shoreline setback (see above) or as own trigger)

Size threshold

Protected/sensitive areas

Rapid development

Use of state waters and ocean resources

Large land use reclassifications

Triggers to be removed

Wastewater (#9A)

Heliport (#8)

Waikiki (#5)

Reorganize existing exemption system (see Exemptions)

Alternative B: Discretionary Approval Screen

Define “action” similar to NEPA

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

HRS 343 should apply to all State/County actions and all private actions that require discretionary approval

Include master plans, programmatic EAs, and tiering (where smaller project-focused EAs reference a master plan or programmatic EISs for general discussions)

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

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

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

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

Incorporate public participation elements of HRS into the discretionary hearing process

Reorganize existing exemption system (see Exemptions)

Alternative C: Categorical Inclusion Screen

“Inclusion” refers to initial premise that actions should be included in ER

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

Two lists

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

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

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

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

Requires public participation in determining which actions belong on which lists

Determine relevant thresholds

Public has right to judicial appeal if a listing is unacceptable

B. Exemptions

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

One list for State agencies and one list for each County

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

Use existing 10 categories to create single categorical exemption list

Allow public comment on proposed new exemptions

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

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

Actions below a to-be-determined size threshold

Small, local power generating projects

Renovation of existing facilities on developed land

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

Include in the OEQC Bulletin

Threshold should be based on size or cost

Provide for a limited period of public notice

Allow for administrative or judicial review of exemption declarations

Allow agencies greater discretion in declaring exemptions.

Draft Recommendations: II. Governance

2009-10-10T19:44:00.000-07:00

Governance is the second of five themes for the draft recommendations. To learn more about the draft recommendations for other themes, please refer to the left sidebar.

Stakeholders in interviews and the Town-Gown workshop recognize that effective governance is necessary for a functioning environmental review system. Concern has been expressed regarding the ineffectiveness of the Environmental Council, the lack of staffing and resources for OEQC to fulfill its statutory duties, and the marginalization of the Environmental Center. The Study recommends the following for improving the effectiveness of Hawaii’s governance system.

Clarify lines of authority and duties for governance agencies (OEQC, Environmental Council, Environmental Center).

Provide more funding, staff, and administrative support for governance agencies.

Reallocate governance duties, responsibilities, and organizational relationships among the three entities.

Alternative A: Clarify roles and responsibilities within the existing system and provide greater institutional support

Alternative B: Adopt a governance model based on the Council for Environmental Quality (CEQ): the Environmental Council advises the Governor directly; OEQC becomes staff for the Environmental Council

Alternative C: Transfer some authority to the Counties
1. County governments designate a county department to oversee County-level ER
2. Create local Environmental Councils for each County
Alternative D: Create a new, independent agency tasked with environmental stewardship and overseeing the environmental review process

Draft Recommendations: III. Participation

2009-10-10T19:39:00.000-07:00

Participation is the third of five themes for the draft recommendations. To learn more about the draft recommendations for other themes, please refer to the left sidebar.

Both public and agency participation are essential to an effective environmental review system. Courts are hesitant to rule on the content of ER documents, tending to focus more on procedural issues. Thus, it is necessary to have well-informed reviewers and robust public participation to ensure that environmental impacts, mitigation proposals, and alternatives analyses are given appropriate consideration. Capacity building through public and agency education and training will help to increase transparency and accountability, while decreasing potential bias in documents. Furthermore, project proponents should seek input from stakeholders as early as possible in order to identify and address potential issues in advance. Electronic communications and internet-based participation should be incorporated in the EIS process to further these goals.

Use the internet / electronic communication to increase accessibility and efficiency. OEQC should provide guidance on integrating electronic communication into the process.

Clarify if documents can be distributed in PDF format rather than as a paper document

Require searchable PDFs

Improve OEQC (or new dept.) website.

Create email lists/RSS feeds for notification of actions based on district or type

Establish online comment and response submission process

Develop a centralized information management system (database) under OEQC

Model website design on successful designs of other states (e.g. WA, NY)

Improve consultation with both agencies and the public through early scoping in EAs.

Amend HRS 343-5(b) to allow flexibility to extend the public comment/agency review period for EAs and EISs.

Allow more flexibility at the lead agency’s discretion to extend the period for public comment

Amend the statute to adopt the NEPA process for responding to public comments.

NEPA 1503.4 – agency response to public comments

CEQ 40 Questions, #29A guidance for responding to comments

Enhance the quality of inter-agency participation in review of documents.

Require regular agency staff training

Develop certification process for staff, including preparers and reviewers

Appoint a lead/dedicated staff member to oversee quality of commenting and facilitate inter-agency/internal processes

Require agencies to develop internet tools for the ER process

Improve OEQC website (see #2)

Develop guidance on more effective public outreach based on NEPA 1506.6.

Recognize central role of the Bulletin and encourage its wider distribution.

Draft Recommendations: IV. Content

2009-10-10T19:38:00.000-07:00

Content is the fourth 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 five subgroups: Cumulative Impacts, Mitigation Measures, Cultural Impact Assessment, Climate Change, and Disaster Management.

While the focus of environmental review often is on procedural issues, the original intent of the law is to disclose objective information for public consideration and to assist government decision making. Standards of quality for content vary within documents and among jurisdictions. The Study recommends the following in order to further fulfill the original intent of Environmental Review and better standardize content requirements and quality.

Improve quality of review and provide better guidance to improve quality of content (see: Participation and Governance).

Link to State, County, and community level plans, policies, and regulations to better situate the EIS process in a meaningful and useful context.

Clarify that the goal of impact assessment is to encourage project and plan designs that results in no net increase in negative impacts.

A. Cumulative Impacts

Strengthen HRS 343 to require cumulative impact assessment for significant actions including plans and programs so as to encourage greater efficiency such as through tiering.

Redefine “action” in the statute and rules to include master plans, statewide or regional programs, development plans, and multi-phase development projects

Continue to exempt feasibility studies

Add to HRS 343 Findings and Purposes, “One of the purposes of this chapter is to better integrate with planning”

Write into the statute the goal of cumulative impacts assessment is to provide sufficient information to the regulatory agency so that the end result is no net increase of negative impacts

Write into rules: “When conducting cumulative impact assessment, refer to the OEQC guidance document on conducting CIA”

Develop guidance on assessing priority environmental indicators for cumulative impacts

Water quantity

Water quality

Traffic

Energy

Solid waste

Sewage

Endemic, threatened, and endangered species

Establish best practices for content and methodology through guidance.

Establish standard methodology for data collection

OEQC, UH, and/or private consultants develop protocols for measurements in certain key areas

Create state and/or regional online database for EIS data to enhance cumulative impacts assessment and track changes in environmental quality over time.

B. Mitigation Measures

Do not allow mitigated FONSIs unless an enforcement system is in place.

Require a summary of impacts, proposed mitigation, feasibility & associated permits in the EIS.

Encourage incorporation by reference for mitigations required by State/County law or regulation

Implement post-EIS reporting and monitoring.

Alternative A: Use a Record of Decision process similar to NEPA to require implementation and require all EISs do annual reports

Alternative B: All EISs have to do annual reports plus random/screen-based auditing of mitigation

Alternative C: No annual reports, random audits

C. Cultural Impact Assessment

Cultural impact assessment is a broadly supported element of the HRS 343 process.

OEQC should provide guidance on clearer definition of “cultural impact” and “traditional cultural practice”.

OEQC must establish a database for cultural impact assessment; allow reports/interviews to be reused in different documents. (See: Cumulative Impacts)

OEQC create checklists for both preparers and reviews; should be general enough to apply to multiple geographic areas and address natural resources as cultural resources.

OEQC re-examine the list of cultural experts and collaborate with OHA, SHPD, and other relevant agencies to clarify to determine who qualifies as a cultural expert and what that expert’s role is.

Encourage more guidance on further defining cultural practices of the State.

D. Climate Change

Alternative A: Incorporate climate change into the current EIS system.

Require analysis by certain projects having known significant contributions to greenhouse gas emissions

Starting with sea level rise, create zones based on identified climate change impacts

Require scenario analysis of likelihood of impacts

Address likely impacts in both mitigation measures and alternatives analysis

Use zones to require resiliency/vulnerability analysis

Alternative B: Do not require addressing climate change in EIS; address through planning and policy.

E. Disaster Management

Disaster management should be addressed in EISs.

Alternative A: Require OEQC to develop guidance for additional environmental review for disaster recovery actions

Alternative B: Do not require addressing more disaster management issues in an EIS than is already addressed

OEQC develop guidance for and encourage conducting a rapid environmental assessment for projects related to state declared emergencies.

A concern identified through the stakeholder interviews was the absence of environmental oversight during emergency declarations; clarification of the length of time and degree of the governor’s authority was desired.

Draft Recommendations: V. Process

2009-10-10T19:37:00.000-07:00

Process is the fifth 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 three subgroups: Preparation, Shelf Life, and Determinations and Acceptability.

Many issues have been identified linked to procedural aspects of the ER process. This study examined “shelf life”, or how long an EIS remains valid, acceptability, EA determinations, and preparation. One clear theme that emerged was a need to reduce potential bias in the ER process. Bias can occur both in document preparation when impacts are not objectively presented and through the acceptance process when an agency can accept their own document or issue their own FONSI. An examination of shelf life revealed a broad agreement that documents cannot remain valid indefinitely. Concern also was expressed about the efficiency of the process, and the perception that it is overly complex and takes considerable time and money to complete. Recommendations focus on trying to strike a balance between these concerns.

A. Preparation

Improve the preparation process by increasing review and minimizing real or perceived conflicts of interest.

Alternative A: Strengthen the EA and EIS content requirements under the rules 11-200-10 and 11-200-17 to require a more comprehensive analysis

Strengthen the role of the Environmental Center as a commenter

Encourage agencies to be stricter of the documents they review by providing clear guidance on reviewing requirements

Alternative B: Create an independent system by either having a third party chosen or an agency that prepares all environmental documents, proponent pays for preparation

B. Shelf Life

EISs should have a review for validity after a period of time or significant change in project or environment.

Alternative A: Adopt NEPA regulation 1502.9c and CEQ Question #32, which leaves the decision to prepare a supplemental document in the discretion of the agencies and documents are presumed stale after 5 years

Alternative B: Require a supplemental EA/EIS focusing on significant changes to the project or impacts every 3 years until the project is completed

Alternative C: Clarify existing law on supplemental EISs

C. Determinations and Acceptability

Improve the quality of agency review of EA determinations and expand oversight role of governance for EIS acceptability.

Random audits of agency determinations of EAs by OEQC

Concurrence on acceptability decisions by OEQC or designated county agency

Establish a pre-judicial administrative review process for challenges to EA determination and EISs acceptance decisions (e.g. hearing officer)

Provide better guidance to agencies on application of significance criteria for making determinations and acceptance decisions.

Adopt a Record of Decision (ROD) requirement similar to NEPA.

Preliminary Findings List of Links

2009-07-20T19:16:00.000-07:00

Following is a list of links to the preliminary findings from the Town-Gown Workshop and stakeholder interviews.

Triggers and Exemptions: Preliminary Findings

2009-07-15T22:12:00.000-07:00

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.

Does the process capture all the major actions that may have an impact on the environment, or are some projects being bypassed?
Are we capturing actions that should not be subject to law?
What constitutes the use of state or county lands or funds?
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.

Have exemptions been appropriately declared under the environmental review process?
Are exemptions being too narrowly or too broadly defined?
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

2009-07-15T22:10:00.000-07:00

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.

Are the agencies, stakeholders, and the public being adequately notified of environmental review opportunities under Chapter 343?
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.

Are agencies actively participating in reviewing draft and final environmental documents produced by other agencies and applicants?
Are there ways to improve the interagency review process?
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:

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.)
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.
Public notice and the review process can both be improved by doing more pre-consultation and scoping.
Public notice and the review process can both be improved by having more public and agency education about the process.
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.
The review process can be improved by creating more incentives to review for agencies and university faculty.
Public involvement in the process could be improved by lengthening the public review period, or by having some leniency toward extending it if necessary.
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

2009-07-15T22:08:00.000-07:00

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.

Should there be a shelf life (time limit) for environmental review documents?
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:

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.
Another suggestion was to resubmit the documents for some kind of public review process, which would reveal any new issues or insufficiencies.
Others felt that this issue is already addressed in the existing rules on supplemental EISs, and that these rules should be clarified.
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

2009-07-15T22:06:00.000-07:00

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.

What is your assessment of the OEQC’s current functioning and whether its effectiveness can be improved?
What is your assessment of the Environmental Council’s current functioning and whether its effectiveness can be improved?
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:

Increase resources and staffing, provide better guidance and training for all three organizations.
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.
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

2009-07-15T22:04:00.000-07:00

Research Questions:
Chapter 343 requires that the proponent of an action prepare the required EIS.

Should someone other than the project proponent prepare an EIS?
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:

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.
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.
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

2009-07-15T22:02:00.000-07:00

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.

Are agencies making a proper finding of no significant impact?
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.

Should the acceptance process be modified to prevent an agency from accepting a document it has prepared?
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:

Increase the role of OEQC to monitor the process, accept documents, make binding recommendations, or be able to veto determinations.
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.
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

2009-07-15T22:00:00.000-07:00

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.

Does current EIS practice in Hawaii effectively address cumulative impacts?
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:

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.
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.
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

2009-07-15T21:58:00.000-07:00

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.

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:

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.
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

2009-07-15T21:56:00.000-07:00

Research Question:
Since 2000, cultural impacts are required to be discussed in EISs.

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:

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

2009-07-15T21:54:00.000-07:00

Research Questions:
Best practices have been developed for many areas of environmental management.

Are you aware of any best practices (industry standards) for preparing environmental review documents?
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:

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.
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.
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.
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.
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

2009-07-15T21:52:00.000-07:00

Research Questions:
Climate change will cause some impacts to Hawaii’s environment. For example, sea level rise may threaten coastal infrastructure.

Are climate changes issues, such as carbon emissions, coastal zone management, and sea level rise, adequately addressed in the current EIS system?
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:

Establish standard indicators, baselines, and metrics to enable measuring impacts. The State should create a database that preparers may use to include in EISs.
Integrate climate change into other tools such as long-range planning or agency guidelines and policies, not the EIS.
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

2009-07-15T21:50:00.000-07:00

Research Questions:
Resiliency and rapid response to disasters are aided by development that is built with disaster management in mind.

Should the EIS process examine whether applicant or agency actions adequately address disaster resiliency?
In particular, should an assessment document discuss its impact on response, recovery, and preparedness?
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:

Continue to have the present agencies responsible for disaster management, but have them provide risk assessments to preparers to include in EISs.
Include response, recovery, and preparedness to the list of significant impacts and to mitigation measures.
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.
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

2009-07-15T21:49:00.000-07:00

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

2009-07-15T21:47:00.000-07:00

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:

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?
Can/should programmatic and strategic EISs be used more frequently in Hawaii? What benefits might this provide?
Are the current content requirements adequately covering impacts? Should more requirements be added/removed?
Can/should the process be made more consistent with NEPA?
What role does judicial review play in the EIS process? How can this role be better defined?
How can baselines and thresholds be better integrated into the EIS process?
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

2009-07-15T10:14:00.000-07:00

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

We encourage dialogue between contributors. For the comments, including your name or remaining anonymous are both options, but please be respectful of others' ideas. Any comments deemed offensive or irrelevant may be deleted. When leaving a comment, please choose "Anonymous" from the drop down box. The other options (LiveJournal, WordPress, TypePad, AIM, OpenID, and Name/URL) are available for those with those respective accounts and wish to have their comments linked to them. If you'd like to include your name, please type it into the message, but this is by no means necessary.

Town-Gown Workshops

2009-06-15T19:06:00.000-07:00

Workshop 1: Triggers and Exemptions Voting Results

Workshop 2: Public Notice, Review, Shelf Life Voting Results

Workshop 3: Governance and Management Voting Results

Workshop 4: Determinations and Acceptability Voting Results

Workshop 5: Mitigation and Cumulative Impacts Voting Results

Workshop 6: Cultural Impacts Voting Results

Workshop: 7 Best Practice, Climate Change, Disaster Management Voting Results

Workshop 8: Big Ideas Voting Results

2009-06-12T12:32:00.001-07:00

Below is a summary of the dots for Workshop 8: Big Ideas.

BIG IDEAS

Intent of the law:

“We need to review the original intent of the law to see if it is still valid. If it is, change the process to reflect this. If not, then change the intent.” (25: 14, 1, 10)
Does the process work / have the intended effect? (6)
Are EISs relevant to decision making, or have they become routine? (6: 1, 1, 4)
Should it be more than a disclosure / information document?
State constitution guarantees rights to a clean and healthful environment. Environmental policy should be enforceable. ()

Business Concerns:

Businesses want more clarity of the law, predictability, consistency and certainty. (10: 2, 1, 7)
The process is prohibitive for small businesses. (5: 3, 2)

Small businesses are scrutinized more because they cannot afford fancy documents. ()
There should not be a one-size-fits-all approach.
Mom-and-pops, small businesses, churches, and those with fewer resources suffer.

Beneficial projects like affordable housing and renewable/alternative energy are discouraged. What are the cumulative impacts of these lost opportunities? (3: 1, 2)
There is confusion surrounding utility hook-ups and right of ways that needs resolution. (5)
Responsible businesses understand the need for the process.
The EIS process is perceived negatively in the business community as a regulatory mechanism. ()
Documents are costly and time-consuming. We should strive for a process that is both protective and efficient. (5: 3, 2)

The process should be more holistic. (8: 1, 6, 1)

It approaches issues in a fragmented, piecemeal way. (3: 1, 2)
The process is too focused on procedural issues.
It is not good at balancing competing disciplines – agencies, non-profits and private groups are all too singularly focused on their own missions and miss the big picture. (3: 1, 2)
It does not strike the right balance between environment and economy. (6: 1, 5)
It is not good at scoping.
Should address sustainability.

Planning should be better integrated into the process. (29: 7, 8, 14)

“The EIS process should be more about getting things right up front."
Should approach issues with the goal of fulfilling state plans.
It is too regulatory. It needs incentives, goals, positive guidelines and a more proactive, long-term approach.
It doesn’t address how communities/the public would like to see things done. It sets up barriers rather than partnerships. (2)
A focus on planning could change the adversarial relationship between developers and the community.

The EIS process is used to stop projects. (18: 3, 15)

The process raises false expectations.
The public does not understand the process well. ()
This is not how the law was intended. ()
If not through this process, then what is the appropriate venue for the public to voice concern about development they don’t want?

The process has become too complicated. (7: 6, 1)

The process has evolved over time to address changing standards and concerns, but this has been done in an overlay fashion that has made it too complicated. (2)
Is the EIS process an appropriate way to address the universe of issues?
Things change and what we think is appropriate changes over time. The law should be flexible to accommodate changes in underlying values.
Documents are too long and cumbersome to publish and read. They are costly and counter-productive. (3: 1, 2)
In trying to accomplish too much, the process loses something, is too onerous, and the original intent is not served. (3)
Sometimes only a focused study should be required, if only certain impacts are of interest.
Adding more requirements negatively impacts research and development opportunities. (2: 1, 1)

There should a better balance of power between State and County.

More consistency between state and county processes. ()
Local authorities know better about local conditions and impacts.
The same projects on different islands have different impacts. ()

There should be more consistency between the state and federal processes. (3)

The two processes can be redundant.
Need more training/guidance from OEQC on integrating processes.
Currently, it is very cumbersome to do a joint state/federal EIS. (3)
343 should be more like NEPA. (this would resolve inconsistency issues of going directly to doing EISs, scoping, comment periods) (28: 6, 22)

The alternatives analysis process could be improved. (9: 1, 8)

It should be more than action/no action.
It should address alternative technologies, etc. and not just alternative sites.
It should go into more depth about why alternatives were not chosen.
Need better guidance about how this should be done.
Proponents are not open to options, the attitude is “take it or leave it” ()
If this analysis does not serve a purpose, it should not be required. (2)

There will always be opportunities for abuse.

Everything cannot be legislated.

Workshop 4: Determinations and Acceptability Voting Results

2009-06-12T11:56:00.000-07:00

Below is a summary of the dots for Workshop 4: Acceptability and Determinations.

EA DETERMINATIONS

Are agencies making a proper finding of no significant impact?

Agencies are making a proper finding of no significant impact. (4: 1, 2, 1)

Agencies are sensitive to controversy and try to err on the side of caution. (2: 1, 1)
Agencies act in good faith; mistakes are unintended. (2)
Usually, except when under political pressure. (2)

Agencies are not making a proper finding.

Incentives are against finding significant impacts. (11: 3, 7, 1)
Agencies attempt to segment projects to get FONSIs.
Agencies “mitigate down” to a FONSI. (3)
Impacts (cumulative, visual) are not properly considered in determinations. (4)

How can the system be improved?

OEQC should play a stronger role. (8: 6, 1, 1)

Define ‘significance.’ (2)
Develop criteria for agencies and train staff. (3: 2, 1)
Publish best practices.
Do 5-year audit of agency determinations.

Allow proponents to go to EISs directly (skip EA). (19: 5, 1, 13)

If there is controversy or obvious significant impacts, an EA wastes time.
Most agencies think they already know if a project requires an EA or EIS.
EAs look more like EISs to avoid re-contracting and save time/money.

Offer alternative dispute resolution instead of court challenge. (8)

If a FONSI is improperly issued, then the burden is on the public to take it to court.
“An army of lawyers” is necessary to resolve these challenges.
Offer more than choices than FONSI or full EIS.

Increase transparency and oversight.

Allow community more time to review documents. (2)
Educate political appointees and stakeholders about the process.
Allow for 3rd party oversight (e.g. OEQC). ()

Comments and Concerns

The burden is on the public to challenge improper actions by government agencies.
“The public thinks an EA is nothing, do not trust FONSIs, and believe an EIS is the only way to address impacts or influence project development.”
Not all significant impacts can be mitigated. People want projects stopped, not mitigated. (4: 1, 2, 1)
Agencies have a double standard for agency actions versus private ones.
Screen out temporary impacts. (2: 1, 1)
The Land Use Commission, agencies, and consultants do not follow the law, only past practice. ()

ACCEPTABILITY DETERMINATIONS

Should an agency accept its own document?

Yes, agencies are responsible and accountable. (19: 6, 2, 11)

The accepting authority is still accountable after making a determination. ()
Acceptability is more about process than content.
Agencies are very aware of a perceived conflict of interest.
It is unlikely a perceived conflict of interest can be removed entirely.
Public challenge and judicial review make the process transparent.

No, agencies should not accept documents they prepare. (18: 3, 13, 2)

The perception of conflict of interest is too great.
There is a real conflict of interest. ()
An agency is not rigorous enough for its own documents.

This is only an issue for EAs.

The Governor or Mayor accepts EISs; it is within their authority to delegate acceptance to whomever he or she deems appropriate.

What are ways to improve the acceptance process?

The system works well as it is.

Increase the role of OEQC to monitor the process, accept documents, make binding recommendations, or be able to veto determinations. (7: 1, 3, 3)

Adopt NEPA or other States practices. (9: 2, 7)

Should there be further administrative oversight?

No, further oversight is not needed.

The process will become more onerous and create confusions.
There is enough transparency and oversight already. ()
It will create perverse incentives.

Yes, more oversight improves agency acceptance practices.

Allow 3rd party review (OEQC, the Auditor’s Office, UH, peer). (6: 3, 3)
Adopt a model similar to California or NEPA. ()
Have a checklist to consult with other agencies beyond the comment/response process.

Comments and Concerns

OEQC doesn’t have enough expertise to review all agencies’ documents. (6: 4, 2)
3rd parties do not have the expertise and will meddle with agency missions. ()
One agency shouldn’t have too much power or it becomes political.
Involve more partnerships between public, private, and community stakeholders. (2)

Workshop: 7 Best Practice, Climate Change, Disaster Management Voting Results

2009-06-11T19:22:00.000-07:00

Below is a summary of the dots for Workshop 7: Best Practices, Climate Change, and Disaster Management

BEST PRACTICES

Does current practice in Hawaii reflect best practices?

Current practice in Hawaii does not reflect best practices. ()

Consultants needlessly bulk up documents “to be thorough.” ()
Agencies, preparers in general, do only what is required.
Documents are recycled for different projects. “Just change the title and you’re good to go.” ()

Current practice has lost some best practices of the past.

Point-by-point comparison of project with various existing plans (development, community). ()

What are best practices for preparing environmental review documents?

Clarify rules, guidelines, process, and content requirements. (3: 1, 2)

The greater the ambiguity, the more likely the process will be manipulated. ()
The general public should understand the process and information.
Consistency in standards for review, determinations, and acceptance by all agencies. (3: 1, 1, 1)
Clarify through case law, much like NEPA and CEQA.

Make OEQC’s Guidebook the best practices standard for Hawaii. (10: 8, 1, 1)

It is already the standard resource for most preparers.
Regularly update the Guidebook to standardize best/latest methods and content. (15: 5, 1, 9)
It should include a standard outline for EAs/EISs and examples of preferred methods. (10: 7, 3)
Checklists for impacts, significance, and environmental justice would be useful. (3)

Consult with the community before starting a project. (11: 1, 9, 1)

Do a thorough process and avoid controversy.

Adopt federal government established best practices and guidance. (3: 1, 2)

The federal level requires “reader friendly” documents.
For NEPA, each federal agency has its own manual, some with good technical guidance. ()
Make a State version of CEQ’s “40 Most Asked Questions.”

Look to other countries and States for examples of good and bad practices. ()

Certify preparers for EIS work. People should lose their license if they misrepresent information in the EIS process. (7: 6, 1)

Comments and Concerns

It is hard to imagine best practices that would fit all circumstances.
Mainland best practices may not be appropriate for Hawaii. ()
Manuals inhibit the evolution of higher and better standards.

CLIMATE CHANGE

Are climate changes issues adequately addressed in the current EIS system?

Uncertainty and lack of methodology prevent addressing climate change. (2: 1, 1)

No agreement exists on what the impacts will be.
Research exists, but decision-makers do not use it.
Standard indicators, baselines, and metrics are necessary to measure impacts. ()
The precautionary principle should guide our actions when knowledge is insufficient.
The State and Counties should establish a database of likely climate change impacts and make this available to EA/EIS preparers. (6: 2, 3, 1)

Climate change is addressed in the current system.

The coastal zone management (CZM) process is effective.
Experienced consultants understand the issue and address it appropriately.

The EIS is not the appropriate tool for addressing climate change. (25: 8, 17)

It will just be another barrier to prevent development.
It would just add cost to the project.
Do not add another layer. If there are no consequences for not doing it, why require it?
The EIS process is too late. It should be addressed in master planning.
Is it fair or practical to ask developers to evaluate these issues?
This should be addressed through strategic environmental assessment (SEA). (2)

How best can climate change impacts to Hawaii be incorporated into the EIS process?

The best way to address climate change is still undetermined.

The science exists, but it is not widely accepted by the public.
Change the rules to be more specific about what should be addressed.
Approach the EIS through the lens of sustainability.
The 2050 plan should be a template for addressing climate change.
Address how a project will affect climate change; and how climate change will affect a project. (10: 2, 8)
California is currently addressing this. Hawaii should look there for guidance. ()

Climate change is a cumulative impact issue, which must be resolved first. ()

Climate change in Hawaii is best addressed another way, not through EIS. (15: 9, 1, 5)

Assess climate change through established agency policies and guidelines.
The State and local levels are too small scale. Leave this to NEPA to address.
It should be addressed at the long-range planning level. (5: 4, 1)

Comments and Concerns

Should secondary and tertiary impacts be considered?
Agencies, developers, and the public do not want to acknowledge it.
Global warming will be a boilerplate statement stuck into the EA/EIS. (2)

DISASTER MANAGEMENT

Should the EIS process examine whether actions adequately address disaster resiliency?
Addressing disaster resiliency in the EIS process is unnecessary. ()

It is a permit issue and should be subject to a strategic environmental assessment (SEA).
This would duplicate Civil Defense, Disaster Management, and Planning responsibilities. (3)
Solutions and mitigation are beyond the scope of the EIS or the project.
It is not the developer’s responsibility to build a new road or hospital.

Addressing disaster resiliency may be necessary sometimes. (3)

To justify the purpose and need for a project.
For projects greater than a certain threshold or in certain areas/zones.
It would be too onerous for every small project to address this.
Guidelines and standards must be developed.
It should only address certain impacts and evacuation procedures.

The EIS should examine this for projects in relation to existing plans. (4)

Including this in EISs creates political continuity and ensures consideration in decision-making.
After Iniki, plans were prepared but put on a shelf and no lessons learned.
Include resiliency in mitigation measures for likely hazards. ()

Should the EIS discuss impacts on response, recovery, and preparedness?
EIS documents should discuss project impacts on these when appropriate (scale, type and significance of impact of project). (4: 1, 2, 1)

Do scenario analysis of certain events (hurricane, tsunami, earthquake).
The discussion should be for information, not regulation.
Fit the project into existing emergency plans.
Government should establish standards and do risk assessments for preparers to use.

Response, recovery, and preparedness should be addressed in other ways. (2)

The consultation process (e.g. with fire and emergency) already gets comments as needed. (1)
Disaster planning changes too rapidly to discuss the relationship to a project in an EIS.
These are not environmental issues.
This is an unnecessary burden (time, cost) on the proponent.

Civil Defense, Planning, and the Counties are responsible for this. (3: 2, 1)

It should be part of a strategic environmental assessment (SEA).

Every large project should contribute to mitigating disaster risk. “We need some truth serum here, not pat phrases to underplay impacts.”

Should the EIS process be modified in the event of a state-declared emergency or disaster?
The governor should be able to suspend it for an emergency. (8: 7, 1)

The system must have flexibility for rapid action when necessary.
Public health and safety must not be delayed or compromised.
Agencies are conscientious of environmental impacts and act appropriately.
An emergency justifies suspension for repair, recovery, and reconstruction.
Disaster management plans should already be in place and subject to a programmatic EA.

Some type of environmental review is necessary so that it is not a free-for -all. (3: 1, 2)

The federal system has an emergency response program permitting restoration of access and roads, but permanent fixes still need NEPA clearance. (3: 1, 2)
After-the-fact review for action during an emergency would be good.
OEQC should have an oversight role during an emergency.
The distinction between emergency response and recovery is blurred in emergencies. Recovery actions should be subject to 343, but not response. ()

The definition of ‘state-declared emergency’ needs more clarity.

Emergency declarations should have a high threshold—only for health and safety.
Limits on the duration or scope of state-declared emergencies are necessary. ()
Declarations have a history of misuse (“disaster capitalism”).
The definition should include economic cycles, not just natural disasters.

Comments and Concerns

Add disaster management aspects to the list of significant effects.
“Today people are allowed to build anything they want anywhere they want and then throw the disaster management problem to the municipality.”
Past attempts at emergency oversight (i.e. the Office of Emergency Permitting) did not work.

Workshop 6: Cultural Impacts Voting Results

2009-06-11T14:24:00.000-07:00

Below is a summary of the dots for Workshop 6: Cultural Impacts.

CULTURAL IMPACTS

Is the cultural impact assessment process working well?

The process is still new, but working relatively well. (2)

The requirement emphasizes the importance of traditional culture. ()
OEQC guidelines are useful.(4: 2, 1, 1)
Best practices have been developed.
Gathering of information good, but analysis can be superficial. (2: 1, 1)

There is a lot of inconsistency. (14: 6, 3, 5)

Cultural impacts and traditional practice are difficult to define. Whose culture is eligible? (5: 3, 2)
Agencies have conflicting roles, process requirements, and comments. (2: 1, 1)
Comments generally only focus on native rights and property/shoreline access.
Cultural impacts are often conflated with archaeology. (4: 2, 2)
It is busy work to employ consultants and “cultural experts.”
Lack of confidentiality inhibits the sharing of some important cultural knowledge and impacts. (2: 1, 1)

The role of cultural experts is unclear. (4: 3, 1)

Cultural experts are few and over-burdened by this requirement. (3: 2, 1)
Provided information can be contradictory or focused on the project rather than culture. ()
“Experts” tend to be people part of the system, not part of the culture; preparers will not pick someone who says, “My ancestors bones are there, don’t do it.” (7: 1, 5, 1)
Are short forms or checklists permissible? Are consultants always required? ()

How can the system be improved?

The State should define ‘cultural impacts’ and ‘traditional cultural practice.’ (2)

The definition should include resources used in subsistence and religious practice. (9: 2, 3, 4)
Emphasize purpose for decision-making, not just information gathering. (3: 2, 1)

Clarify role of ‘cultural expert.’ (8: 4, 1, 3)

Cultural experts should have a certification requirement. (2)
Establish a contact list of cultural experts by area and ahupuaa / have blind reviewers.
Create a mechanism for clarifying conflicting/disputed information from cultural experts. (7: 3, 3, 1)

Establish better guidelines / standardize the process. (11: 2, 3, 6)

Clarify content and process. (12: 4, 3, 5)
The guidelines should be requirements. (2)
Each County should have its own archaeologist to perform the assessment.
Requirements should be relative to the scale or impact of the project. ()

Resolve agency roles in process. (4: 1, 1, 2)

Clarify roles of SHPD, OHA, Burial Councils in commenting, reviewing, and acceptability determinations. (5: 2, 2, 1)
Rename it to “ethnographic assessments” and put under SHPD jurisdiction. ()
Distinguish from archaeology reports. ()

Comments and Concerns

Current OEQC guidelines are onerous. ()
Studies are expensive and not always of clear benefit to the community. (3: 1, 2)
This should not be a requirement. (2: 1, 1)
Integrate into project planning, not just 343. (10: 3, 6, 1)

Workshop 5: Mitigation and Cumulative Impacts Voting Results

2009-06-11T13:19:00.000-07:00

Below is a summary of the dots for Workshop 5: Mitigation and Cumulative Impacts.

MITIGATION MEASURES

Should mitigation measures be required by law?

Mitigation measures are captured in permitting and do not need to be required by law. (16: 2, 14)

Use permitting or another regulatory mechanism. (4: 1, 2, 1)
The current system usually works. It could be modified to ensure that all mitigation measures are written into conditional permits. (10: 7, 1, 2)
Mitigation measures have to be flexible because they can and should change over time. (2: 1, 1)
The process is about disclosure; it should stay that way.

Yes, mitigation measures in the EA/EIS should be required by law. (26: 5, 10, 11)

Model Hawaii’s system on NEPA’s “Record of Decision” process. (7: 3, 4)
If there is no legal requirement, then mitigation should not be used to avoid an EIS/get a FONSI
Yes, but updating to equal or better measures should be allowable.
The document could include a “mitigation monitoring plan”, a spreadsheet written in a way that is enforceable and could become binding in acceptance statement. (16: 3, 11, 2)
Mitigation measures should be given more thoughtful, focused and realistic consideration. ()

Comments and Concerns:

It seems like 99% of the time this is covered in permits. Has a study been done to determine if this is a real problem or just a perceived one? ()
There is no enforcement or overseeing agency. How would this be monitored?
Mitigation is often complaint driven, not agency initiated. (reactive not proactive)
Some things cannot be mitigated. There should be thresholds for impacts. If these are exceeded, the project should not be approved. (5: 4, 1)
What else is the point of mentioning them? Citizens expect these to mean something.

CUMULATIVE IMPACTS

Does current EIS practice in Hawaii effectively address cumulative impacts?

Current practice in Hawaii does not effectively address cumulative impacts. ()

"We are at a loss for what to do.”
It’s lip service/cursory/glossed over.
Impacts are separated and downplayed. (6: 1, 5)
There is not a good framework to consider this. A project-by-project approach doesn’t work. (3: 1, 2)

Cumulative impacts are addressed in some ways, but it could be done better.

It’s thoroughly addressed for traffic, but not anything else. (8: 6, 2)
Its inconsistent; some types of impacts are easier to address than others. ()
Good consultants do this. (4: 3, 1)

Cumulative impacts would be better addressed on a planning level. (14: 9, 5)

Without long-term planning, there is nothing to refer to.
Cumulative impacts should be looked at earlier. Waiting until the EIS is too late. (2: 1, 1)
The process should be more tied to zoning/land use/development plans/community plans/general plan. (24: 9, 2, 13)
A planning agency should oversee this. It shouldn’t fall to individuals. Take the requirement out of the law. (4)

To better address cumulative impacts, we need: more guidance, a checklist, better definition, understanding of expectations, and good examples. (4: 1, 3)

Create a consistent system for measuring/collecting/reporting data. Develop baselines or thresholds that can make cumulative impact analysis meaningful. (13: 7, 4, 2)

Develop baselines for quantifiable impacts; assess how projects affect baseline. (22: 11, 6, 5)
Create database for long term data on measurable impacts (i.e. water quality and air quality). (6: 1, 3, 2)
Standardized methodology/protocols for data collection. ()
Without data, there cannot be any meaningful scientific debate about cumulative impacts.(2: 1, 1)

Comments and Concerns:

It’s a lot to expect the private sector to contribute to a solution for a problem that was ignored by the public agency responsible for it. (2: 1, 1)
This is an important issue but should be kept practical; if you take it too far it becomes ridiculous. (7: 5, 2)
All impacts are cumulative on some level. The process looks at impacts in a piecemeal, fragmented way that doesn’t reflect this, and that leads to impacts being downplayed. (2: 1, 1)
The army does a good job of looking at cumulative impacts, NEPA is stronger on this than 343. (3)
We are about 25 years behind. The state doesn’t understand the magnitude of the problem.
There should be a carrying capacity study for the islands. (3)
Address cumulative impacts with strategic EAs/EISs. ()
Part of the analysis of cumulative impacts should include considering alternative actions.
Cumulative impacts should be a significance criterion.
The planning office is too influenced by political goals.
Large projects are sometimes broken up into smaller ones to avoid having to do an EIS.

Workshop 3: Governance and Management Voting Results

2009-06-10T23:42:00.000-07:00

Below is a summary of the dots for Workshop 3: Governance and Management.

EIS PREPARATION

Should someone other than the project proponent prepare an EIS?

The project proponent should do this. (24: 9, 1, 14)

The proponent is best suited to do this—there is a stake in a speedy process, more accountability, knowledge of the project, and inclusion of mitigation measures. (11: 3, 8)
There are enough checks and transparency already. ()
A 3rd party would not be knowledgeable enough and still have conflicts of interest. ()
Consultants are ethical and do their best; they are a good use of government time and money. (3: 1, 2)

Someone other than the proponent should prepare the EIS. (28: 5, 23)

Incentives are against finding significant impact. (2)
“It is like Dracula guarding the blood bank.” There is a conflict of interest. ()
It is contrary to objective social science. (2.5: .5, 2)

How can the system be improved?

The existing system works. (2)

The proponent pays into a fund that supports a third party preparer. (2: 1, 1)

OEQC should administer the process or pick a preparer/auditor.

Preparers should be certified and independent. (2: 1, 1)

Sometimes proponents override consultants. (2)
Randomly chose consultants from a revolving list. ()
Preparers should cite qualifications in documents.
Establish certification and decertification requirements. (4: 3, 1)

Comments and Concerns

A government agency preparing all EAs/EISs would be overwhelmed by all the projects. (2.5)
The EIS is more like a marketing document, designed to shed a positive light on the project.
The costs of the process are not proportional to the benefits. (3)

ADMINISTRATION OF THE EIS PROCESS

How effective is OEQC?

OEQC is effective.

They are a great consultation resource for agencies and should remain so.
The website and digitizing of documents are very helpful. (6: 3, 3)
The training workshops are excellent.
The green list is good.
They focus more on process than content. ()

OEQC does what it can with what it’s got. (8: 7, 1)

They lack resources and staffing. (34: 14, 6, 14)
They give conflicting information to different agencies. ()
They are too political and not very objective. ()
Reviewing secondary impacts has backlogged the agency. (2)
“They mostly shuffle and process paper.”

NOTE= “Move OEQC out from under DOH’s evil clutches.” ()

What are ways to improve OEQC’s effectiveness?

Increase resources and staffing. (26: 13, 6, 7)

Increase funding for more outreach and digitizing documents and the website. (4)

Provide better guidance and training.

Require legal challenges EAs/EISs to go to OEQC; it then notifies relevant agencies. (2)
Provide guidelines for process and content of EAs/EISs. (5: 4, 1)

Expand/Change OEQC’s role in the EIS process. (8: 6, 1, 1)

Strengthen legal role – make determinations and review legally binding; declare exemptions. (4)
Do EAs/EISs/FONSIs for everyone. (1)
Move OEQC directly beneath the governor or to another agency. (7: 4, 1, 2)
Consolidate with Environmental Council. (4: 2, 1, 1)

How effective is the Environmental Council?

I’m not very familiar with it.

The Environmental Council does not fulfill its role.

They are volunteers. There is not much they can do. (2)
“They are defunct, ineffective, muzzled by the AG, and usurped by OEQC.” (9: 1, 8)
They over-step their role and represent personal interests. (2: 1, 1)

The Environmental Council is useful.

They do a good job reviewing studies. ()

What are ways to improve the Environmental Council’s effectiveness?

Improve funding, staff, and increase existing authority. (12: 11, 1)

Help agencies manage and update exemption lists.
Reviews should carry more weight.

The Environmental Council’s role should be changed.

Move it directly beneath the governor or to another agency.
Create local Councils for neighbor islands. ()
Change to hear appeals and oversee administrative actions. ()
Eliminate them and transfer functions to OEQC. (6: 1, 5)

How effective is the Environmental Center?

I’m not very familiar with it.

They play an important role in the environmental review process. (8: 2, 4, 2)

The need for outside review is essential and the University is a good place for that. ()
They raise awareness of issues that no one else considers. ()
They provide useful advice to OEQC and consultants. (2: 1, 1)

It does not fulfill its role.

Comments are inconsistent, contradictory, impractical, and vary in quality. (6)
Comments often focus on rules and neglect the larger context.
Sometimes they advocate too much. ()

What are ways to improve the Environmental Center’s effectiveness?

Increase resources, training of staff, and clarify role in the review process. (7: 3, 3, 1)

The Center has an unfunded mandate. They should assert their prerogatives more.
Issue opinions to decision-makers and share expertise with the community. ()
Increase awareness of Center’s role through public outreach. (2: 1, 1)

The Environmental Center should better engage the University and faculty. (2: 1, 1)

The University does not appreciate the Center’s role, legal mandate, and independence.
Incentivize faculty to comment on EISs.
Make EIS commenting a public service requirement for faculty. ()
Draw on faculty research to recommend best practices in comments.

Comments and Concerns

OEQC doesn’t have enough expertise or resources to oversee the entire EIS process.
All three entities’ effectiveness is very dependent on the directors and staff at any given time. ()
“Too many chefs spoil the broth.” Consolidate these entities to improve governance. ()
The interplay between these entities could have checks and balances. OEQC=administrative, Environmental Council=legislative, Environmental Center=judicial.
The State should create an Environmental Protection Agency to house these entities. (15: 2, 13)
The Environmental Council should be an independent agency that advises policy-makers without “an axe to grind.”

Workshop 2: Public Notice, Review, Shelf Life Voting Results

2009-06-10T13:12:00.000-07:00

Below is a summary of the dots for Workshop 2: Public Notice, Review, Shelf Life.

PUBLIC NOTICE

Are agencies, stakeholders and the public adequately notified under 343?

Agencies, stakeholders and the public are adequately notified. (5: 1, 4)

People should be proactive and not expect to be spoon-fed information.
There will always be people who say they did not hear about a project. (3: 2, 1)
The current system works well; usually works well; does not need to be changed. ()

Agencies and NGOs are adequately notified, but the public and individuals are not.

The public finds out late and has to scramble to keep up. (2: 1, 1)
Environmental justice is an issue – those with the least resources are the least informed. (2)
People do not know there is a process to participate in; the process mystifies the public. (2: 1, 1)

Budget and staffing constraints limit how much can be done.

The process can be improved by:

Better use of the internet/website. (4: 1, 3)

Use listserve/email; allow sign-up for notification of actions in areas of interest (judicial districts, geographic areas, types of projects). (12: 3, 5, 4)
Include link to online document in email notice. ()

Increased outreach. (2: 1, 1)

Post signs on property. (3)
Notify neighbors (calls, postcards).
Community meetings.
Ads (newspaper, radio).
Circulate the OEQC bulletin more widely; use libraries.

Have more public education about the process. ()

Agencies, organizations, and the public would all benefit from better understanding the process. (13: 3, 4, 6)

Guidance. ()

How much/what kind of notice is “adequate”?
Make the process more consistent across agency, state, county, federal levels.

Do more pre-consultation and scoping. (3)

Figuring out what the issues are in advance makes the process more efficient. (10: 2, 5, 3)

Comments and Concerns:

Notify relevant agencies directly instead of relying on the OEQC Bulletin.
The public is notified by activists, not through the system. (2: 1, 1)
Making the system user-friendly for the public will avoid a lot of frustration and anger. When people have to look too hard to find something they feel excluded. ()
We should be careful about legislating this because people will sue over the manini details.
It would be onerous to requires a meeting by law for every project.
EISs are too lengthy and technical for most people to read; provide plain-language, summary documents that are user-friendly. ()

REVIEW

Are agencies actively participating in reviewing documents?

Amount/quality of participation varies by agency. ()

Comments are cursory, boiler plate.
Comments should represent agency’s agenda/expertise.
Some agencies make unreasonable requests for studies marginally related to project. (11: 3, 8)

Yes, agencies are actively participating.

Agencies are active on relevant documents. ()

There is not enough time.

30 days is too short. (2)
documents are lengthy.
There are many projects, we can’t get to them all; we have to prioritize.

Is the comment and response process working well?
“Comment bombing” is an issue. (9: 2, 7)

Not every comment deserves an individual response. (19: 7, 1, 11)
Comment bombing is an issue, but everyone deserves the right to comment. (2: 1, 1)
Documents become too long when we have to reproduce every letter. ()

Response to comments is sometimes inadequate. (8: 2, 6)

There is no recourse if response to comments is inadequate and concerns are not addressed.
It is not adequate to respond to a comment by referring back to the document section.

Ways to improve the review process: ()

Improve quality of review:

Create incentives for review (for agencies, UH faculty).
A body of paid experts to conduct review. (2: 1, 1)
An independent government agency to conduct review. (2: 1, 1)

More pre-consultation and scoping. (7: 2, 1, 4)

Better quality documents would minimize need for review. (6: 2, 3, 1)

More education about the process for the public and agency staff. ()

Lengthen the public review period or extend it if necessary, be lenient for public comment. (5)

Have a dedicated staff person in each agency; have a single point of contact. (4: 1, 3)

More guidance to determine adequacy of responses. ()

Do not require individual response to comments that do not warrant it. (5: 1, 4)

Comments and Concerns:

The process doesn’t yield meaningful results. (2)
Comments are very technical and miss the big picture the community is concerned with.
Personal attacks and grievances are not about the impacts. (2)
The governor’s office can help understaffed agencies.

SHELF LIFE

Should there be a shelf life for environmental review documents?

Documents should have a shelf life. (10: 3, 6, 1)

After a time deadline there should be a procedure in place to determine if a new or supplemental document is needed (after 3/5/7/10/15 years). (22: 6, 13 3)
A 5/10/20 year document should no longer be valid. ()
There should be a sunset clause; a 20-year old document cannot accurately reflect current impacts. (10: 1, 5, 3)
2 years after final permit is issued.
Only if there are significant change to the project or circumstances. (45: 18, 5, 22)

This is a valid concern but there are reservations because: ()

Projects take a long time to complete, we don’t want them further delayed. (6: 2, 4)
An arbitrary drop-dead date would be punitive. (3: 1, 2)
Zoning or permit should expire; this should not be in 343. (3: 2, 1)
Requiring a new EIS might cause projects to miss funding window, especially for federal matching funds. ()
If there is no finality to the process, financing will suffer and lawsuits will be more difficult to resolve. Things done in the past will always be insufficient. (3: 1, 2)

What should be the standard for review to determine if new or updated document is needed? (7: 2, 5)

Resubmit the document for public review. (3: 1, 1, 1)

If new issues have arisen they will be revealed through this process.

Assess documents on a case-by-case basis. (6: 2, 1, 3)

Review based on significant change in: environment, project, traffic, population, land use, economy, public concern, noise, pollution. (18: 5, 4, 9)
Review based on criteria (might look at NEPA’s “40 questions”). (2: 1, 1)
Review based on certain % change in criteria, allow 10% margin of error.
OEQC or overseeing agency should do review. (2)

Clarify existing rules for supplemental EISs. (2: 1, 1)

Comments and Concerns:

Should be able to do a targeted study that only addresses changes. (5: 1, 3, 1)
The time frame for government should be longer than for private sector.
The time frame for rapidly developing areas should be shorter.
If a project has already begun, it should not be required to update. ()
We need an information system/data base to detect and record changes so we have something to do assessment with. (4: 3, 1)