HomeMy WebLinkAbout#2 OPSD Cumulative Impact GuidanceCUMULATIVE EFFECTS/IMPACTS ASSESSMENT GUIDANCE
IN SPECIAL MANAGEMENT AREA PERMITTING
Hawaii Coastal Zone Management Program
State of Hawaii Office of Planning and Sustainable Development
(808) 587-2846
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April 2022
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Cumulative Effects/Impacts Assessment Guidance
in Special Management Area Permitting
Special Management Area (SMA) permit is a discretionary permit, which requires a
decision -making body to exercise judgment prior to its approval. Considering potential
cumulative effects in SMA permitting is required by the Hawaii Coastal Zone
Management (CZM) Law, Hawaii Revised Statutes (HRS) Chapter 205A. Pursuant to
HRS §205A-22, the determination of whether an action may have a substantial adverse
environmental or ecological effect and therefore require a SMA Use Permit, must take into
account potential cumulative effects as one of the key elements. Further, whenever the
county authority finds that any excluded use, activity, or operation may have a cumulative
impact, or a significant environmental or ecological effect on a SMA, that use, activity, or
operation shall be defined as a "development" for the purpose of SMA permitting. For
example, as the result of cumulative effects/impacts, repeated improvements to an existing
single-family residence on a shoreline parcel could be defined as a "development" and
trigger a SMA permit.
The National Oceanic and Atmospheric Administration's (NOAA) Office for Coastal
Management (OCM) periodically conducts Section 312 evaluations on the performance of
federally approved coastal zone management programs of the states and territories.
According to the NOAA OCM Evaluation Findings — Hawaii Coastal Zone Management
Program August 2008 to August 2018, both stakeholders and county partners in the State
of Hawaii expressed that "[I]t has been extremely hard to determine cumulative impacts in
the special management area permitting process, and community members are frustrated,
and that refined guidance would be helpful in making decisions."
In response to OCM's evaluation findings and recommendations, the State of Hawaii
Office of Planning and Sustainable Development' (OPSD), the lead agency for the Hawaii
CZM Program, has worked with the County Planning Departments to study cumulative
impact assessments for better decisions in SMA permitting. The OPSD has applied the
following approaches and procedures to conduct this study:
o Review the requirements of cumulative impact assessments and available guidance
from the National Environmental Policy Act (NEPA) and Hawaii Environmental
Policy Act (HEPA)
o Request for guidance references for cumulative impact assessments from other
coastal management programs via the Coastal States Organization
The name of the Office of Planning was changed to the Office of Planning and Sustainable Development,
enacted by Act 153, Session Laws of Hawaii (SLH) 2021.
a Research the Final Environmental Assessments (EAs) and Final Environmental
Impact Statements (EISs) under the NEPA to review cumulative impact
assessments in environmental documents
o Discuss cumulative impact assessments in SMA permitting with the county
planning departments for their input
o Recommend the parameters and criteria of cumulative impact assessments for
SMA permitting
Based on the subject study, the OPSD is issuing this cumulative effects/impacts assessment
guidance for use by the County Planning Departments, which includes:
o Cumulative effects/impacts'
o Principles of cumulative effects/impacts assessment and analysis
o Spatial and temporal parameters of cumulative effects/impacts assessment in SMA
permitting
o SMA criteria in cumulative effects/impacts assessment (emphasis added)
o Determining significance of cumulative effects/impacts, and the checklist
The purpose of this guidance is to provide policy and implementation support to assist the
counties to better assess and determine cumulative effects/impacts in their SMA
permitting. Following this guidance is not mandatory, and this guidance does not have the
force and effect of law and shall not supersede state or county laws and rules relating to the
CZM. The counties are responsible for defending their consideration of cumulative
effects/impacts in SMA permitting.
2. Cumulative effects/impacts
The Council on Environmental Quality's (CEQ) regulations for implementing the NEPA
defined cumulative impact as "the impact on the environment that results from the
incremental impact of an action when added to other past, present, and reasonably
foreseeable future actions regardless of what agency or person undertakes such other
actions." (40 CFR § 1508.7). On July 16, 2020, CEQ issued its new rule updating the
regulations for federal agencies to implement the NEPA in the first comprehensive update
since 1978. "Cumulative impact" defined in 40 CFR § 1508.7 was repealed 3, and an
agency's analysis of effects shall be consistent with CFR § 1508.1 paragraph (g) as follows:
(g) Effects or impacts means changes to the human environment from the proposed
action or alternatives that are reasonably foreseeable and have a reasonably close
causal relationship to the proposed action or alternatives, including those effects
that occur at the same time and place as the proposed action or alternatives and may
s "Effects" or "impacts" used in this guidance are synonymous, as stated in Hawaii Administrative Rules
Chapter 11-200.1.
s Cumulative effects analysis is no longer required as part of a NEPA review under CEQ's final rule, issued
July 16, 2020. However, as posted by Federal Register on October 7, 2021, CEQ proposes to revise
§ 1508.1(g)(3) by restoring, with minor modifications, the definition of "cumulative impacts" from the 1978
NEPA Regulations and striking the current provision that repealed that definition.
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include effects that are later in time or farther removed in distance from the
proposed action or alternatives. (40 CFR §1508.1)
Hawaii Administrative Rules (HAR) Chapter 11-200.1 under the HEPA, HRS Chapter
343, continues the requirement of cumulative effects/impacts assessment, and defines
Cumulative impact as "the impact on the environment that results from the incremental
impact of the action when added to other past, present, and reasonably foreseeable future
actions regardless of what agency or person undertakes other actions. " All EAs/EISs are
supposed to provide cumulative impact assessments for their proposed actions.
According to the CEQ handbook on Considering Cumulative Effects under the National
Environmental Policy Act (CEQ, 1997), the primary purpose of cumulative effects/impacts
analysis is to determine the magnitude and significance of the environmental consequences
of a proposed action in the context of cumulative effects of other past, present, and future
actions. Significance of cumulative effects/impacts depends on how they compare with the
environmental baseline and relevant resource threshold such as regulatory standards.
Cumulative effects are usually categorized into eight scenarios for assessment as follows
(CEQ, 1997):
1) time crowding — effects of frequent and repetitive actions on the environment;
2) time lags — delayed effects of a proposed action;
3) space crowding — effects of spatial density on the environment;
4) cross -boundary — effects occurring away from the source;
5) fragmentation — effects or changes in landscape pattern;
b) compounding effects — effects arising from multiple pathways;
7) indirect effects — secondary effects; and
8) triggers or thresholds — effects defined by agency laws, policies or regulations.
3. Principles of cumulative effects/impacts assessment
Analyzing cumulative effects/impacts is challenging, primarily because of the difficulty of
defining the geographic (spatial) and time (temporal) boundaries. No single formula is
available for determining an appropriate scope and extent of a cumulative impact analysis.
However, Guidance for Preparers of Cumulative Impact Analysis — Approach and
Guidance (Caltrans, 2005) states that the following principles have gained a general
acceptance:
1) Cumulative effects are caused by the aggregate of past, present, and reasonably
foreseeable future actions.
2) Cumulative effects are the total effect, including both direct and indirect effects, on
a given resource, ecosystem, and human community of all actions taken, no matter
who has taken the actions.
3) Cumulative effects need to be analyzed in terms of the specific resource,
ecosystem, and human community being affected.
4) It is not practical to analyze the cumulative effects of an action on the universe, and
the list of environmental effects must focus on those that are truly meaningful.
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5) Cumulative effects analysis on natural systems must use natural ecological
boundaries and analysis of human communities must use the actual sociocultural
boundaries to ensure including all effects.
6) Cumulative effects may result from the accumulation of similar effects or the
synergistic interaction of different effects.
7) Cumulative effects may last for many years beyond the life of the action that
caused the effects.
8) Each affected resource, ecosystem, and human community must be analyzed in
terms of its capacity to accommodate additional effects, based on its own time and
space parameters.
As required by HAR § 11-200.1-10, a group of actions proposed by an agency or an
applicant shall be treated as a single action when:
1) The component actions are phases or increments of a larger total program;
2) An individual action is a necessary precedent to a larger action;
3) An individual action represents a commitment to a larger action; or
4) The actions in question are essentially identical and a single EA or EIS will
adequately address the impacts of each individual action and those of the group of
actions as a whole.
The Hawaii Environmental Policy Act Citizen's Guide (2014) recommends that when
considering the significance of potential environmental effects, the proposing or approving
agency should consider the sum of the effects on the quality of the environment. A
proposed action must be described in its entirety, and shall not be broken up into
component parts, which if each is taken separately, may have minimal impact on the
environment. An action shall be determined to have a significant effect on the
environment if it may be individually limited but cumulatively have substantial adverse
effect upon the environment or involves a commitment for larger actions. For example,
pools or septic tanks or other ancillary or accessory structures/uses to a residence structure
should be included in a larger development as a single action.
According to Stormwater impact Assessments: connecting primary, secondary and
cumulative impacts to Hawaii's Environmental Review process, May 2013, the
methodology of cumulative impact assessments should address the following issues:
1) Cumulative effects need to be analyzed in terms of the specific resource,
ecosystem, or human community being affected.
2) Cumulative effects on natural systems must use natural ecological boundaries.
3) Cumulative effects are caused by the aggregate of past, present, and reasonably
foreseeable future actions.
4) Each affected resource, ecosystem, and human community must be analyzed in
terms of its capacity to accommodate additional effects, based on its own time and
space parameters.
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4. Spatial and temporal parameters to scope past, present and future actions in SMA
permitting
In accordance with the definition of "cumulative impact " previously defined in CEQ's rule
or in HAR Chapter I 1-200.1, and the research on the Final EAs/EISs available from Office
of Environmental Quality Contro14 (OEQC) online library, spatial and temporal boundaries
are two critical parameters to scope past, present, and reasonably foreseeable future actions
that need to be taken into account in cumulative impact assessments. Principally, spatial
and temporal scopes for assessments depend on the scale of a proposed action, and on
target resources and/or environment. Each affected resource, ecosystem, and human
community should be analyzed in terms of its capacity to accommodate additional effects,
based on its own time and space parameters. Ideally, spatial and temporal scopes for
cumulative effect/impact assessments should be expanded to the point at which a specific
coastal resource is no longer significantly affected, or the impacts are no longer of interest
to affected parties. However, categorizing and determining the geographic and temporal
scope of cumulative effects/impacts in the SMA permitting process can significantly divert
the county planning departments from focusing their time and resources on the most
significant effects. Given that existing cumulative effects/impacts analysis guidance from
CEQ and HEPA is not provided in the context of the SMA, there remains ambiguity in its
application and implementation. This SMA-oriented guidance seeks to narrow down the
spatial and temporal scopes of the cumulative effect/impact assessments.
With respect to spatial scope, setting the consideration at an existing defined boundary
such as the SMA boundary within the county jurisdiction would reduce uncertainty in
assessing an appropriate scope. The SMAs designated by the counties generally begin at
the shoreline and extend to the nearest highway or several miles inland. Other factors,
such as salinity and tidal influences on bodies of surface water, also affect a SMA
boundary. Pursuant to HRS §205A-23, as amended, the SMA in each county shall be as
shown on such maps filed with the county authority as of June 8, 1977. To narrow down
the scoping to a meaningful assessment and include what counts for cumulative
effect/impact assessments in SMA permitting, it would be appropriate and feasible to apply
the SMA boundary as a spatial parameter if no critical issues on coastal resources or
environment are raised beyond the SMA. The OPSD recommends a geographic radius up
to the SMA inland boundary from the shoreline as the minimum spatial scope to assess the
incremental impacts of a proposed action on the SMA when added to other past, present,
and reasonably foreseeable future actions.
Besides geographic scope, temporal scale is another crucial parameter to scope past and
future actions to assess cumulative effects/impacts resulting from a proposed action.
"Reasonably foreseeable" actions are those that are likely to occur, rather than those that
are merely possible or subject to speculation. Reasonably foreseeable future actions are
those that have the potential to overlap spatially or temporally with a proposed project. It
is recognized that a SMA Use Permit is usually granted to complete a proposed
4 The Office of Environmental Quality Control has been renamed as `Environmental Review Program"
within the OPSD, enacted by Act 152, SLH 2021.
development within 5 years from the issued date with potential time extension. In addition
to including the effects/impacts that occur at the same time and place as the proposed
action, the OPSD suggests that a minimum of 5 years or more as practicable before the
application of a proposed action serve as a basic temporal parameter to scope past actions
within a SMA for the purpose of cumulative effects/impacts assessment in SMA
permitting.
The timeframe of a long-range plan such as the county general plan and/or community
plan, or the expected lifespan of a proposed project, whichever is longer, could be utilized
as a maximum temporal scale to scope foreseeable future actions. To assess cumulative
effects/impacts in a feasible way, the OPSD recommends a range as the temporal scale to
scope foreseeable future actions in the SMA permitting process. The range would be from
5 years or more as practicable from the application of a proposed project as the minimum,
and up to the lifespan of a structure or the operational life of a proposed project as the
maximum.
5. SMA criteria in cumulative effects/impacts assessment
With spatial and temporal scopes, cumulative effect/impact assessments in the SMA
permitting process must be conducted under the provisions of the Hawaii CZM Law. The
objectives and policies in the CZM law provide overarching guidance to the counties in
their administration of the SMA permit system. These CZM objectives and policies cover:
Recreational resources
Historic resources
— Scenic and open space resources
Coastal ecosystems
— Economic uses
— Coastal hazards
Managing development
Public participation
Beach and coastal dune
protection
Marine and Coastal resources
Under the CZM objectives and policies, the SMA guidelines, articulated in HRS §205A-
26, apply specifically to the SMA permitting process. The SMA guidelines must all be
factored into the assessment of any development proposed within the SMA. Compliance
with the SMA guidelines must be achieved before an SMA permit can be approved.
Therefore, the OPSD recommends that the counties apply temporal and spatial parameters
with SMA criteria, as presented in Table 16, to account for cumulative effects/impacts of a
proposed action on a SMA as follows:
o Minimum 5 years or more as practicable before the application to scope past
actions
5 Coastal resource means any coastal wetland, beach, dune, (shoreline), barrier island, reef, estuary, or fish
and wildlife habitat, pursuant to the National CZM Act of 1972, as amended.
s Each county may further develop its own cumulative effects/impacts assessment template.
no
o Minimum 5 years or more as practicable from the application, and up to the
lifespan of a proposed project to scope foreseeable future actions
o Extension to SMA inland boundary as a geographic radius to scope other actions
o Extension beyond the SMA boundary for a specific coastal resource, if necessary
o Effects on coastal resources/SMA under the CZM objectives and SMA. guidelines
Using the minimum spatial and temporal scales recommended by this document as
guidance, the counties may identify and/or apply their own temporal and spatial scales for
a specific project, based on available geographic information system (GIS) data layers, site
visits, and a history of site. Please keep in mind that a cumulative impact, or a significant
environmental or ecological effect on a special management area (emphasis added) is
required for a SMA assessment pursuant to HRS §205A-22.
This cumulative effect/impact assessment guidance is limited to SMA permitting within
the county jurisdiction under the CZM provisions and SMA guidelines. Effects/impacts
should not be considered if they are remote in time, geographically remote, or the product
of a lengthy causal chain.
Table 1. Criteria of Cumulative Effects/Impacts Assessment in SMA Permitting
Temporal Scope2
Spatial
Past actions
Future actions
Scope
Effects/
- minimum
- minimum 5
- minimum 5 years
Impacts
CZM Criteria'
radius to
years past or
Present
or more as
from the
SMA
more as
actions
practicable from the
Proposed
inland
practicable
application, and up
Action
boundary
from the
to the lifespan of
application
the project
Coastal
1
recreational
resources
2
Historic
resources
Scenic and
3
open sace
Coastal
4
ecosystems
Economic
5
uses
Exposure to
6
coastal
hazards
Beach/dune
7
protection
Marine
8
resources
Bay, estuary,
salt marsh,
9
river mouth,
slough or
lagoon
Fishing
ground,
wildlife
10
habitats, or
agricultural
uses of land
1Criteria from the CZM objectives HRS Chapter §205A-2 and SMA guidelines HRS §205A-26, as amended.
2a) Identify past, present, or foreseeable future actions in the vicinity of a proposed project from the
EAs/EISs OEQC's online library by searching for the keyword "island" and "year"; b) Search for available
information for past, present and planned actions within the SMA in the vicinity of a proposed project from
the respective county planning department, with available GIS data layers; and c) Scope foreseeable future
actions from community plans, capital improvement projects, and land use designations as applicable.
N.
6. Determining "Significant effect" and "Cumulative impact"
Although not defined under HRS Chapter 205A, "Significant effect" and "Cumulative
impact" are defined under the Hawaii Environmental Impact Statement law, HRS Chapter
343, and HAR Chapter 11-200.1, Environmental Impact Statement Rules, as follows:
"Significant effect" means the sum of effects on the quality of the environment,
including actions that irrevocably commit a natural resource, curtail the range of
beneficial uses of the environment, are contrary to the State's environmental policies or
long-term environmental goals as established by law, or adversely affect the economic
welfare, social welfare, or cultural practices of the community and State (HRS, §343-2).
"Cumulative impact" means the impact on the environment that results from the
incremental impact of the action when added to other past, present, and reasonably
foreseeable future actions regardless of what agency or person undertakes other
actions. Cumulative impacts can result from individually minor but collectively
significant actions taking place over a period of time (HAR §11-200.1-2).
Furthermore, HAR §11-200.1-13 has established significance criteria, including qualitative
and quantitative thresholds, for determining whether an action may have a significant
effect on the environment. The significance criteria include:
— Irrevocably commit a natural, cultural, or historic resource;
— Curtail the range of beneficial uses of the environment;
— Conflict with the state's environmental policies or long-term environmental goals;
— Have a substantial adverse effect on the economic welfare, social welfare, or
cultural practices of the community and state;
— Have a substantial adverse effect on public health;
— Involve adverse secondary impacts, such as population changes or effects on public
facilities;
— Involve a substantial degradation of environmental quality;
— Be individually limited but cumulatively have substantial adverse effect upon the
environment or involves a commitment for larger actions;
— Have a substantial adverse effect on a rare, threatened, or endangered species, or its
habitat;
— Have a substantial adverse effect on air or water quality or ambient noise levels;
— Have a substantial adverse effect on or be likely to suffer damage by being located
in an environmentally sensitive area such as a flood plain, tsunami zone, sea level
rise exposure area, beach, erosion -prone area, geologically hazardous land, estuary,
fresh water, or coastal waters;
— Have a substantial adverse effect on scenic vistas and viewplanes, during day or
night, identified in county or state plans or studies; or
— Require substantial energy consumption or emit substantial greenhouse gases.
The definitions and criteria for determining "significant effect" and "cumulative impact"
set forth above are applicable in SMA permitting. The county authorities and county
planning departments may apply these definitions and criteria to assess potential
effects/impacts resulting from any uses, activities, or operations within a SMA in making
determinations relative to SMA use permits, minor permits, and SMA permit exemptions.
However, for the purpose of SMA permit decision -making, application of the significance
criteria should be constrained to the CZM objectives and policies and SMA guidelines.
Eligible actions for SMA exemption, or developments that are eligible for the SMA minor
permit, based on a valuation of less than $500,000, should be subject to some form of
assessment to show that the proposed action has no substantial adverse environmental or
ecological effect, taking into account potential cumulative effects on a SMA. County -
specific review and assessment protocols are encouraged to support a standardized
assessment and reporting process.
If significant cumulative effects/impacts on a SMA resulting from a proposed development
are reasonably foreseeable, site -specific mitigation measures in the planning phase, design
phase, construction phase, and/or operational phase should be proposed and implemented
to mitigate potential incremental impacts added by the proposed development in response
to the CZM criteria illustrated in Table 1. For example, site -specific mitigation measures
in SMA permitting to achieve consistency with the CZM objectives and policies and SMA
guidelines may include:
— Provision and maintenance of public shoreline access
— Preservation/protection of archaeological sites, wetlands, and other sensitive areas
— Protection of life and property from coastal hazards as defined in HRS Chapter
205A
— Protection of beach and coastal dunes
— Boundary setbacks and building height restrictions to preserve coastal views
— Drainage improvements to control siltation in coastal waters
— Prohibition of artificial lighting from directly illuminating the shoreline and ocean
waters
— Restriction, including frequency and intensity, on the improvements to an existing
structure such as a single-family residence, on a shoreline parcel.
Cumulative effects/impacts assessment has been required by the NEPA and NEPA for
several decades. In accordance with CEQ's new rule issued in 2020 and OPSD's research
on EAs/EISs, however, it is noted that both NEPA and HEPA have faced difficulty in
providing guidance as to how to conduct cumulative effect/impact assessments to meet the
requirement. The lack of feasible spatial and temporal parameters has made assessing
cumulative effects/impacts extremely challenging not only in SMA permitting, but also in
evaluating EAs and EISs. In response to OCM's evaluation, the OPSD has conducted
research on all Final EAs/EISs (1,103 total) from August 2008 to April 2020 via the online
EAs/EISs library at hops://planning.hawaii. og v/erp/. In very few cases, these Final EAs
and EISs specifically discussed or applied spatial and temporal parameters to scope the
past, present and foreseeable future actions in cumulative effect/impact assessments.
Approximately 96% of Final EAs and EISs simply referred to the definition of cumulative
impact, and then made a statement of no adverse cumulative effects/impacts for their
proposed projects.
EA/EIS review crosses jurisdictional bounds, and studies all environmental effects/impacts
associated with the action. If an EA or EIS serves as a supporting document for a SMA
use permit application, the OPSD suggests that the subject EA or EIS specifically include
cumulative effects/impacts assessment on the coastal resources/environment under HRS
Chapter 205A, and discuss site -specific mitigation measures in design, construction, and
operation to mitigate any adverse cumulative effects/impacts from a proposed
development.
7. Recommendation
This guidance is for the counties to consider potential cumulative effects/impacts from a
proposed action which may or may not be "development" as defined in HRS §205A-22.
To ensure and/or defend a consideration of cumulative effects/impacts in SMA permitting,
the OPSD recommends that a SMA use assessment provide:
1. A checklist about the incremental impacts on coastal resources/environment
resulting from a proposed action under the SMA criteria as illustrated in Table 1
provided by this guidance. Counties are encouraged to develop their own
implementation policies and tools to further standardize cumulative effects/impacts
assessment in SMA permitting.
2. A location map of past, present, and reasonably foreseeable future actions that have
been identified under appropriate and feasible spatial and temporal parameters for
the purpose of cumulative effects/impacts assessment. Within a spatial and
temporal scopes, the location map should also include all repeated repairs and
component actions that are phases or increments of a larger action.
References
Update to the Regulations Implementing the Procedural Provisions of the National
Environmental Policy Act. Council on Environmental Quality. Final rule. Federal
Register / Vol. 85, No. 137 / Thursday, July 16, 2020 / Rules and Regulations,
available at info.gov/content/pkg/FR-2020-07-16/pdf/2020-15179.pdf
Considering Cumulative Effects under the National Environmental Policy Act, Council on
Environmental Quality, January 1997
Guidance for Preparers of Cumulative Impact Analysis — Approach and Guidance,
Environmental Management Office, California Department of Transportation
(Caltrans), June 30, 2005
Stormwater Impact Assessments: connecting primary, mary, secondary and cumulative impacts
to Hawaii's Environmental Review process, Hawaii Coastal Zone Management
Program, May 2013
Hawaii Environmental Policy Act Citizen's Guide, State of Hawaii Office of
Environmental Quality Control, October 2014
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