At the Hawaii Land Use blog (hilanduse.blogspot.com) Jesse Souki discusses the serious negative consequences of the new “Superferry Bailout Strategy” — that of removing from EIS consideration secondary impacts.

According to Jesse Souki, the EIS law does not mention “secondary impacts”. What it says is this:

[T]he 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.

The legislature directed the Environmental Council to make rules to implement this. That’s where the term secondary impacts comes from:

The EIS Rules define “impacts”/“effects” as including “primary, secondary, or cumulative” effects. “Secondary impacts” are defined as follows:

“Secondary impact” or “secondary effect” or “indirect impact” or “indirect effect” means effects which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. HAR § 11-200-2.

Mr. Souki then cautions that Hawai’i should keep its laws consistent with other states and with the national laws rather than narrowly defining impacts.

Now here is where things get interesting (but Mr. Souki doesn’t discuss this). The Office of Environmental Council (“OEQC”) is an administration controlled by Gov. Lingle. Just recently their chairman,Robert King, resigned, claiming the Lingle administration is not interested in the council’s recommendations.

King said the Lingle administration has not supported the council or backed its proposals to update administrative rules. The council is under the OEQC in the state Department of Health.

“We just haven’t been able to function as a council for quite awhile now. We’re getting no support from the state. I didn’t feel like I could fulfill my duties as the chair and as a member of the council in these conditions, so I resigned.”

In his resignation letter to Gov. Linda Lingle, King wrote that during the past two years the council has been “marginalized to the point of irrelevance.”

So while Lingle, Hanabusa and Hemmings are claiming that rules need updating and guidelines aren’t clear, they are ignoring the body that wants to clarify and update the rules.

Is that because Lingle, Hanabusa, and Hemmings want the rules “clarified” into nothingness?

As Hanabusa teams up with an unlikely ally, Fred Hemings, to gut environmental law in order to “bring back the Superferry”, it appears that the Superferry will be quite happy doing military contracting.

From the “Armchair Admiral” comes this:

“The Navy will also lease four joint high speed vessels next year, instead of two, until DoD takes delivery of its own ships in 2011, Gates said. The Navy leases high-speed catamarans, such as the Swift, now on a humanitarian deployment in the Caribbean, but has ordered its own purpose-built JHSVs from the Austal shipyard in Mobile, Ala.”

Gee, I wonder where the DoD will find 2 spare high speed vessels to lease?

From Alabama come this news:

Gates also said Monday he wants to charter two additional Joint High Speed Vessels, which are used for transporting troops and equipment.

Gates’ recommendations “affirm the Navy’s position regarding both the LCS and JHSV programs,” said Joe Rella, Austal’s president and chief operating officer. “Austal, the city, and the state will all benefit from the continuance and growth associated with this plan.”…

…Austal in November was awarded a potential $1.6 billion contract to build up to 10 of the Joint High Speed Vessels, but the first is not scheduled for delivery until 2011. That could mean a new mission for two commercial ferries, both built at Austal USA, that are out of work after Hawaii Superferry Inc. canceled its inter-island service last month.

Industry analyst Tim Colton said the military is a natural fit for the ferries, now adorned with colorful swimming manta rays. “Any day now, they’ll be painted gray,” Colton said.

Are our Legislators in denial or are they calculatedly playing to their public?

Fred Hemmings is a known anti-environmentalist – which is ironic since he made his fortune as a surfer. Hanabusa is scrambling to do anything to court voters for her upcoming state-wide candidacy. Unfortunately she is showing herself to be fairly unsophisticated in understanding the laws on the books and willing to throw away longterm protections for a little short term publicity.

I believe Hanabusa radically underestimates how much she is angering the neighbor islands. We certainly aren’t looking to elect another politician who blows in whatever direction corporate PR is pushing.

5 April 2009
Hope Kallai
POB 655
Kilauea, HI 96754

Aloha e Admiral Fargo:

Being a second-generation, 30-year Navy man, it would probably be safe to assume you to be a man with a deep understanding of protocol and procedure and appreciation for honor and accountability.

I am aware that you have been CEO of the Hawai`i Superferry, Inc. (HSF) for only about a year and that as Commander In Chief of the U.S. Pacific Fleet from Oct 99 – May 2002, then as Commander of U.S. Pacific Command (PACOM) from May 2002-Feb 2005, you oversaw the preparation of many Federal Environmental Impact Statements for Hawai`i and the waters of the Pacific Ocean including:

1. Rim of the Pacific (RIMPAC) 2000 EA, May 2000
3. Mountaintop Surveillance Sensor Test Integration Center (MSSTIC) Facility Kauai, Hawaii EA, May 2000
4. North Pacific Targets Program EA, April 2001
5. 2002 RIMPAC PEA
6. Theater High Altitude Area Defense (THAAD) Pacific Test Flights Environmental Assessment, December 2002
7. Development and Demonstration of the Long Range Air Launch Target System EA, October 2002
8. USWEX EA/OEA FONSI
9. USWEX EA/OEA Vol. 1
10. USWEX EA/OEA Vol. 2
11. Hickam Air Force Base C-17 Globemaster III Beddown EAt, September 2003
12. Ground-Based Midcourse Defense (GMD) Extended Test Range (ETR) EIS, July 2003
13. 2004 Supplement to the RIMPAC 2002 PEA
14. Final Environmental Assessment: For Construction and Operation of a C-17 Short Austere Airfield (SAAF) Within the State of Hawaii, November 2004
15. Mobile Sensors EA, October 2004
16. Ballistic Missile Defense System Programmatic Draft EIS, September 2004 Mobile Launch Platform EA, June 2004
17. Final EIS Transformation of the 2nd Brigade, 25th Infantry Division (L) to a Stryker Brigade Combat Team in Hawaii, May 2004

Over a dozen federal EIS have been prepared by the Navy in Hawai`i since your retirement and since the initiation of the Superferry:

1. RIMPAC 2006 FONSI
2. 2006 Supplement to the RIMPAC 2002 PEA
3. Flexible Target Family EA, December 2007
4. Permanent Stationing of the 2/25th Stryker Brigade Combat Team Draft EIS, June 2007
5. EA for MK-48 Mod 6 Torpedo Exercises in Hawaiian Waters, June 2007
6. Supplemental OEIS and EIS for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar, April 2007
7. Composite Training Unit Exercises and Joint Task Force Training Exercises EA/OEA, February 2007
8. Ballistic Missile Defense System Programmatic Final EIS, February, 2007
9. Final Environmental Assessment: For Construction and Operation of a C-17 Short Austere Airfield (SAAF)
10. RIMPAC 08 Biological Opinion (NMFS)
11. Barking Sands Underwater Range Expansion (BSURE) Refurbishment Overseas EA, March 2008

It would seem you have great experience with EIS preparation. Perhaps you were not given a copy of the last EIS performed by the State of Hawai`i for the last proposed ferry service, a fast PAX-only ferry servicing the southern shore of Oahu – the 1989 Oahu Intraisland Ferry System available in the OEQC library http://oeqc.doh.hawaii.gov/Shared%20Documents/EA_and_EIS_Online_Library/Oahu/ 1980s/1989-01-OA-FEIS-OAHU-INTERISLAND-FERRY-SYSTEM.pdf.

Potential ship strikes to wintering humpback whales and green sea turtles outside of the harbor areas were a prime concern even though there were only about 2,000 wintering humpback whales in Hawai`i at that time. Discussions were held with National Marine Fisheries Service about routes and timings and abut open ocean impacts, not just harbor impact. The State of Hawai`i, during Gov. Waihe`e’s term, knew that any major Federal action triggers NEPA. As you are well aware, any dredging of ocean waters to deepen or widen the channel or turning basin or the constructing of a pier for the ferry vessel triggers permitting review of the U.S. Army Corps of Engineers, including NEPA, Rivers and Harbors Act and the Clean Water Act. The state knew that 20 years ago. Any federal study of harbor hydrology and bathymetry triggers the environmental review process. The EIS procedures were followed during Gov. Waihe`e’s tenure and for this intraisland ferry proposal with minimal potential impacts.

The process of the Hawai`i Superferry has been severely flawed. With your expertise in overseeing EIS preparation, hopefully we can correct these procedures. The Superferry is not above the law; the Superferry must follow the same procedures that the Navy follows and the same procedures that previous ferry EIS followed 20 years ago.

As a submariner, you may be interested in the 1987 Final Impact Statement prepared by Atlantis Submarines for the Operation of Submersibles as a Public Attraction in the waters off Waikiki, Oahu, Hawai`i, now doing business as Atlantis Adventures (http://atlantisadventures.com/index.cfm). The tours would be at two dive sites in waters of -85’ to -250’ deep, 4,500 feet off Waikiki shore, between the Natatorium and Diamond Head. This project included “habitat enhancement”: sinking ships as artificial reefs for viewing because Atlantis thought the benthic environment somewhat boring.

Significant consideration was given to the exclusivity of the usage, impacts to cultural and recreational boating, surfing and fishing – with plans to cease tour operations during races. The area was a high vessel traffic area and the project was not projected to have significant impacts to whales because they usually do not frequent the project area, but impacts to humpback whales were considered. Recommendations were made to curb nighttime operations until after a trial period and to not do anything to “disturb the peace and safety of the whales.” NOAA required a Section 7 consultation under the Endangered Species Act. The Atlantis operation was required to consider impacts to whales by both the submarine and escort boat operations. The EIS process did not prohibit Atlantis Adventures from operation.

Tim Dick, one of the co-founders of the HSF, said last week that the ship design was selected after consulting 20 year wave studies by UH School of Ocean Science.

From this, we developed a design specifically for Hawai’i including electric power plugs for refrigerator trucks, higher car decks to accommodate canoe racks for paddlers, comfortable leather sofas and coffee tables for families, and a design that would squeeze into Hawai’i's dry docks. Many environmental “firsts” were designed into the ferry, including zero wastewater discharge, nontoxic bottom paint and next-generation ultra-clean and efficient diesel engines.

In November 2007, the School of Ocean and Earth Science and Technology, University of Hawai‘i at Mānoa, using 25 years of buoy data, found the average annual significant wave height in Hawai`i to be 7 meters. The ship design Mr. Dick chose, the Alakai, is only certified to carry passengers in 6 meter seas. Perhaps with your expertise, HSF would have focused more on engineering and less on power plugs and paint. I understand that the paint job and branding is important, but community safety and the suitability of this ship design to the waters of Hawai`i are more important than paint.

Millions was spent on embedded technology but the Alakai has no life boats or marine evacuation systems. How can we, as a community, be asked to bring our kūpuna in wheelchairs on a ship with no way for them to exit in an emergency? Life jackets are just not sufficient to survive in our ocean conditions during emergency situations. Safety concerns, as you well know, would have been addressed during a proper EIS process. Maybe this community would rather have an evacuation slide rather than a ship than can carry 50 ton vehicles.

The Alakai that cannot have a scuppers because of the vehicle loading. With such a large exposed vehicle deck, given the intensity of Hawai`i precipitation events and waves breaking over the bow, how can the bilge design only accommodate 500 liters? These questions would have been addressed during a proper EIS process.

The Atlantis EIS included consideration of weather conditions and wave – knew they would not be able run when “Waves or sea swells which make the transfer of passengers from the barge to the vessel hazardous.” HSF operational plans only considered downtime for annual maintenance. There was no consideration of downtime for ocean and weather conditions, with significant financial impacts. As an experienced mariner, please adjust operational ability to weather conditions in financial projections.

Before your tenure with the Superferry, decisions were made which have cost the state greatly. The State of Hawai`i spent $40 Million on barges to be built exclusively for Hawai`i Superferry vessels and caused them to be built in China, sending concrete and steel jobs overseas, in an economic time when our residents could certainly have used the jobs. This is a serious Jones Act violation – in the state with the second highest union membership in the US! How many jobs did this decision cost our local construction and union workers? Again, a proper EIS could have avoided this.

Now, since HSF has installed stern-quarter mounted, folding ramps, the loading barges will not be necessary. Due to the artificial time restraints imposed by HSF, the decisions the state made have severely under-estimated the waves and surges of the harbors. The Manaiakalani loading barge in Kahului Harbor is only certified for a 1.43 meter (17 inch) wave! Average wave heights are 3-8 feet in Kahului. This error has cost over $5 million in continuing repair costs. If proper EIS procedure had been followed, this problem would have been avoided and saved almost $50 million. Hopefully with your expertise, these mistakes will not be made again. Please notify the people of Hawai`i about your company’s plans for using the Huaka`i and re-fitting the Alakai with stern mount ramps. Please notify the HAR/DOT that dredging the harbor at Kahului to accommodate the setting of the mooring of the loading barge Manaiakalani will not be necessary.

Many times it has been mistakenly repeated that no other ship has had to comply with or perform an EIS. As you can see, many EIS have been compiled by the military and by private enterprises, including ferries. The previous ferry design was selected through the state bidding process. The sooner these studies are honored, the more expeditious the current process will be. In 2006, the U.S. Coast Guard prepared a Draft Environmental Assessment for Patrol Boat Support Facilities USCG Station Maui to add a new boat to their fleet (which required dredging of 140 cubic yards of ocean floor). Because the high-speed ferry is a new mode of interisland transport, the EIS procedure, the ESA, NEPA and HEPA must be honored to the full intent and spirit of the law, as you well know and have spent so much of your career supporting. Mahalo for your expertise in fixing this flawed EIS process and honoring and learning from the EIS of the past and near present and holding the HSF accountable to the same standards as the Navy, the Coast Guard and private enterprise. I apologize for having to appeal to you in such a public forum, but since the Alakai has left the state and the HSF website was reduced to ticket refund status, there’s no other contact listed. Thank you sincerely for addressing my concerns quickly and taking command of the EIS process.

Hope Kallai

According to NOAA & State officials, HSF incidental take permit was NEVER filed. They submitted a short ‘submittal’ which was deemed inadequate as a proper ‘application’. A denial letter was never sent to HSF, instead a phone call was placed to them informing them their ‘submittal’ was woefully insufficient, and would not qualify as a proper “application”. They were told the ‘real’ application would resemble something similar to a mini-EIS and would involve real analysis, not a simple statement “we plan to have no impact” — they needed to prove/support such a claim.

To date, HSF has never submitted such an application. One government official (involved in reviewing the application) told me yesterday that this is a case of the “intent of the law verses the spirit of the law”. NOAA believes the intent of the law was for HSF to have lodged a proper application prior to operation, however, the spirit of the law (i.e. The law’s vagueness) allowed for simple ‘application’ but did not deem that such application ever had to be complete or accepted by NOAA prior to onset of operations. The individual stated, “clearly the law should have been more specific.”

When asked if the ITP application process has been terminated, “In all likelihood yes, since they (HSF) have withdrawn from the Hawaii market. However, since they never really submitted a proper application, the process never officially began”.