Report of the Environmental Council Permitted Interaction Group

Preliminary Draft of Proposed Revisions to Hawaiʻi Administrative Rules Title 11 Department of Health Chapter 200 Environmental Impact Statement Rules

Prepared for the July 27, 2017 Environmental Council Meeting

Prepared by the Environmental Council Permitted Interaction Group established on February 23, 2016, with the support of the Office of Environmental Quality Control. The Permitted Interaction Group members are: Scott Glenn, Onaona Thoene, Ron Terry, and Mahina Tuteur. Deputy Attorney General Diane Agor advised the Permitted Interaction Group.

Background

The current Hawaiʻi Administrative Rules (HAR) Title 11 Department of Health (DOH) Chapter 200 Environmental Impact Statements (“HAR Chapter 11-200”) were promulgated and compiled in 1996. An amendment to add an exemption class for the acquisition of land for affordable housing was added in 2007, although it has not been compiled with the rest of the rules.

In 2011, the public formally petitioned the Environmental Council (Council) to update HAR Chapter 11-200. The Council initiated consultation with state and county agencies for recommendations on issues to address and language revisions. In 2012, the Council released a preliminary draft of revisions to HAR Chapter 11-200 (referred to as “Version 1”) that incorporated proposed revisions from previous Council efforts and issues raised by agencies and the public. The Council also distributed an Excel file called a “comment matrix” to receive feedback on Version 1. Agencies and the public (including applicants, consultants, and nonprofit organizations) submitted comments via the comment matrix. The Council organized the feedback into a master comment matrix and tasked the Rules Committee with addressing the feedback and making revisions to the language. The Rules Committee met regularly over the course of 2012-2014 to revise Version 1. However, due to various administrative challenges, including maintaining quorum, the Council was not able to complete its work.

In February 2016, following Governor Ige’s appointment of seven members to the Council, the Council addressed its challenges and resumed moving forward on revisions to HAR Chapter 11-200. As part of this effort, the Council wanted to recognize the extensive outreach and drafting that the 2012 Council conducted.

At the February 23, 2016 Council meeting, the Council established a Permitted Interaction Group (PIG) to draft revisions to HAR Chapter 11-200. The PIG was to investigate and consider specific language for inclusion in HAR Chapter 11‐200, which would not be for the purpose of decision making, but to be brought to the Rules Committee for its consideration and decision making to make recommendations to the EC.

Permitted Interaction Group Principles

The PIG drafted language within the principles established by the Council:

• Be consistent with the intent and language of Hawaiʻi Revised Statutes Chapter 343.
• Align statute, case law, and practice wherever feasible.
• Increase clarity for the process and requirements.
• Use the National Environmental Policy Act for language and guidance where applicable.

Permitted Interaction Group Process

Following the Council’s establishment of the PIG, the PIG set a monthly or biweekly meeting schedule to review the previous Council work. The PIG reviewed the 2012 draft rules language, public comments in the comment matrix the 2012 Rules Committee produced, and responses to the public comments that the Rules Committee developed over 2012-2014. The PIG categorized the comment matrix into two groups: 1) comments resolved and direction provided and 2) outstanding comments still needing policy direction or draft language. For the former group, the PIG integrated the language the resolved language into a draft it called Version 1.1. For the second group, the PIG developed language in consultation with the Rules Committee and the Office of Environmental Quality Control (OEQC). Further, the PIG developed language in response to requests from the Rules Committee and OEQC for issues that arose since 2012. At the July 11, 2017 meeting, the Council agreed that the PIG could present its report directly to the Council at its next meeting.

Permitted Interaction Group Recommendations

This report synthesizes Version 1.1 with additional revisions the PIG made to address unresolved comments from the 2012 Council, direction the Rules Committee gave on conflicting comments or recent issues, and current topics the OEQC raised.

The following revisions are the recommendations of the PIG to the Council as a baseline starting point for discussion going forward. Among the themes addressed are:

• “Housekeeping” - revisions that modernize grammar and clarify language.
• Clarifying roles and responsibilities at various stages of environmental review.
• Modernizing submittals and deadlines to recognize electronic communication.
• Setting clearer thresholds for exemptions and the role of exemption lists.
• Clarifying when and how to proceed to directly preparing an EIS instead of an EA.
• Clarifying when and how to do programmatic EISs and supplemental EISs.
• Responding to comments in EAs and EISs.
• Conducting joint federal-state environmental review.

Full text PDF: Report of the Environmental Council Permitted Interaction Group (75 pgs)

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