Spurred by Kuilima, Environmental Council Considers Shelf Live of Disclosure Documents

posted in: June 2006 | 0

Whether or not environmental assessments or impact statements should have a shelf life is an old question, but it has gained traction lately with the recent resurrection of a 20-year-old project: The expansion of Turtle Bay resort, on the North Shore of O`ahu, from 487 units to 4,000.

Last November, Kuilima Resort Company, a subsidiary of California’s Oaktree Capital Management, LLC, applied for a subdivision permit for the project, which is currently being reviewed by the City and County of Honolulu’s Department of Planning and Permitting. Earlier this year, to cure a city violation for grading approximately 11 acres without a permit, Kuilima submitted documents supporting an after-the-fact grubbing permit as well.

The developer’s efforts have ignited controversy island-wide among local residents wanting to “keep the country country.” At recent public hearings on the proposed development, many have called on KRC to update the project’s October 1985 environmental impact statement.

In March, concerned citizens pleaded their case before the state Environmental Council, which writes and tweaks the state’s environmental review rules. Because out-of-date environmental documents seemed to the council to be a growing problem statewide, the council discussed the need to investigate whether its rules sufficiently address potentially outdated environmental impact statements, and how supplemental environmental impact statements are dealt with under the National Environmental Policy Act.

At the council’s April 14 meeting, Genevieve Salmonson, executive director of the Office of Environmental Quality Control, which provides staff support to the council, said that while there are no expiration dates for EISs, “documents should be updated after ten years. The documents and developments from Kona are coming in 20 years later. And 20 years ago, traffic and all the impacts are not the same… We’re seeing more and more of this.”

Leslie Segundo, an environmental health specialist with the OEQC, noted that if the council wants environmental impact statements to have a shelf life of ten years, state law and its implementing rules need to be amended to establish an EIS review process.

Some members of the public who attended the council’s April meeting stated that a SEIS trigger should be more sophisticated than the mere passage of time.

“The rate of change of conditions is highly variable,” said David Atkin, a planner, adding that when a project includes a federal nexus, the reevaluation of environmental impact statements is much more rigorous. The extent or nature of changed conditions is analyzed, and if a changed condition passes a certain threshold, a supplemental EIS is required, he said.

In his experience working with the U.S. Department of Transportation, Atkin said, three years after the acceptance of a final EIS, “the question is automatically asked, ‘Do you need a supplemental EIS or not?’” The applicant is then responsible for investigating. If there is a suspicion that a replicated analysis under current conditions would produce a different outcome, an SIES would be required, he said.

“When there is no federal nexus, developers often – because Chapter 343 [Hawai`i’s environmental review law] doesn’t speak to this issue – try to bank old environmental documents,” he said.

With regard to the Turtle Bay issue, at the request of the North Shore community, the council wrote a letter to the city on March 22 requesting clarification as to why the DPP wasn’t requiring a supplemental EIS for the proposed Turtle Bay development given “changes in timing since 1985, especially with respect to cumulative impacts and mitigative measures articulated in the original accepted environmental impact statement,” the letter states.

Don Kitaoka, corporation counsel for the City and County of Honolulu, replied on April 4 that because the county was in litigation with the resort workers’ union, UNITE HERE! Local 5, over the expansion, it would not discuss the matter with outside parties. Kitaoka did, however, urge the council to review the county’s court filing in the case, which he said explained the county’s position on supplemental environmental impact statements and which he attached to his letter.

In its March 31 memorandum opposing Local 5’s requested injunction, the city writes that the union “failed to present any new evidence establishing the existence of significant new information relevant to environmental concerns establishing that the project has changed to such a degree as to warrant the preparation of a supplemental EIS…

“Plaintiffs’ claim that the mere passage of time is sufficient to require a supplemental EIS is without any merit. Courts in other jurisdictions that have considered this issue have recognized that indiscriminately requiring a supplemental EIS in response to a mere claim of the existence of new information ‘could unleash a procedural plague repeatedly impairing worthwhile projects’ notwithstanding the fact that an agency has determined that the EIS is sufficient.”

The city cites the case Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., where the court ruled, “The passage of time alone is not ‘significant new information’ which requires a new or amended EIS… Furthermore, it is not enough simply to claim the existence of ‘new information’…The lead agency must determine whether the ‘new information’ is ‘significant’.”

Opponents to the project have argued that in addition to the passage of time, laws have changed since 1985. Specifically, in 2000, the state Legislature passed Act 50, which requires projects to undergo a cultural impact assessment. Against this, however, the city claims that a change in law cannot be applied retroactively to invalidate the EIS.

Despite these arguments, the Environmental Council decided to seek even further clarification from the city. At its May meeting, the council voted to write another letter acknowledging that the DPP is the accepting authority for subdivision applications, but adding that the city’s response was insufficient in that it did not address state rules regarding a change in circumstances and the timing of a project. The council also agreed to recommend that, given its current knowledge of the situation, the DPP should require a supplemental EIS to conform to the Environmental Council’s rules.

(Council rules require supplemental environmental impact statements to be done when the project has changed substantively in “size, scope, intensity, use, location, or timing, among other things.” Also, a supplemental EIS is required “when the scope of an action has been substantially increased, when the intensity of environmental impacts will be increased, when the mitigating measures originally planned are not to be implemented, or where new circumstances or evidence have brought to light different or likely increased impacts not previously dealt with.”)

Because some council members were still not absolutely sure that a supplemental EIS is, indeed, required, the council also voted to create a fact-finding committee to investigate the matter and to recommend appropriate action to the council.

With regard to investigating the general problem of outdated documents, the council decided to hold off referring the matter to its rules committee until the fact-finding committee reports back to the council on the Turtle Bay EIS this month.

In the Meantime…

On April 5, 1st Circuit Judge Sabrina McKenna denied the hotel workers’ request for an injunction without prejudice, in part because the union had failed to present any expert witnesses to back up its claims that the project had substantively changed. Local 5 and KRC continue to fight in court over what Local 5 calls an illegal SLAPP suit by KRC. (SLAPP stands for Strategic Lawsuits Against Public Participation.)

On May 19, a newly formed non-profit organization called Keep the North Shore Country filed a complaint in 1st Circuit Court seeking a declaratory judgment that a supplemental EIS is required for this project under the Hawai`i Environmental Policy Act, and an injunction against ground work or construction by KRC until the SEIS is completed.

— Teresa Dawson

Volume 16, Number 12 June 2006

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