Kauai Activist called it right in letter more than a year ago

Have been looking at the PUC work on this...which led me to the work of the State 'Consumer Advocate'...which mentions the market report relied upon by the PUC/CA done by Market Scope, Inc. commissioned by HSF...and also led me to the market report by Enterprise Honolulu commissioned by DBEDT and the Governor used to lobby the Legislature. Since the copy of the study done by Market Scope on the PUC and CA sites is heavily redacted (presumably it must contain matters on business 'viability' too sensitive for the financing public to see), I went looking for more information on it. One of the few things I found that mentions the Market Scope study is a GREAT testimony letter written to the Legislature more than a year ago by Kauai's own, Hope Kallai. I will be writing more in my formal post on this soon, but I just wanted to share Hope's letter now as it is the best I have seen on this and as she brings up a number of good points that I have not seen from anyone else:

From: http://www.capitol.hawaii.gov/splSession2007b/Testimony/house
From: Hope Kallai
Sent: Wed 10/24/2007 8:26 AM
To: House Record

Subject Kauai House testimony Hawaii Superferry Committee on Transportation
DATE: Thursday, October 25, 2007
HOUSE OF REPRESENTATIVES
THE TWENTY-FOURTH LEGISLATURE
SECOND SPECIAL SESSION OF 2007
COMMITTEE ON TRANSPORTATION
Rep. Joseph M. Souki, Chair
Rep. Scott Y. Nishimoto, Vice Chair

Please distribute copies to the House members. Mahalo.

Re: HB 1 Relating to Transportation,
Hawaii Superferry,
Environmental Impact Statement,
Oversight Task Force

Hope Kallai
Malama Moloa'a

Aloha Representatives:

Mahalo for the opportunity to address the proposed bill concerning a large capacity ferry vessel. I feel there is inadequate environmental information available to make any decisions on potential impacts of the Hawaii Superferry, Inc. (HSF) to endangered species of Hawai'i, and I am very concerned about the proposed bill.

Hawai' i, the hotspot of extinctions [in the world], has more endangered species per square mile, than any other place on the planet. I am concerned about the impact to our harbors and the ability to deliver large bulk containers like gasoline, propane, aviation and helicopter fuels. I would like for you to consider if this ferry is really in the public interest.

In the Public Utilities Commission Permit Decision and Order No. 21524 ... it is stated that the: "Applicant expects its ferry service to cost about fifty (50) per cent of the price of flying," Proposed one way rates of $60 per person for a Kauai-Oahu are not 50% of existing airfares. Competitive airfares are often much less than $60. Is the PUC's assessment dependent upon correct [information]?

I have problem with a fee structure designed for 14-day old babies. Is it really in the public interest to charge children from 14-days old to 2 years old $15 for a one way Kauai-Oahu trip? PUC fee of this fare is only $0.04, GET fees of $0.60 harbor fees of 0.30, making the HSF fare $ 14.06. I don't remember being charged any airfare for a child under 2.

The Consumer Advocate had concerns over the results of a market study by Market Scope, Inc., which was commissioned by Applicant (the "Market Study"), and which results were designated confidential pursuant to Protective Order No. 21190...

In the PUC Permit Decision and Order No. 21524:

"The commission recognizes that issues were raised by some at the public hearings about the impact of the proposed ferry system on the environment and suggesting that an environmental assessment be done on the proposed ferry services.

We find it necessary, however, to condition our authorization in this docket upon Applicant's showing, to the satisfaction of the commission, that Applicant has complied with all applicable federal and state laws, rules and regulations, including, without limitation, matters relating to the Environmental Impact Statement Law ("EIS"), under Chapter 343, HRS, to the extent applicable to ensure that all such requirements are appropriately addressed.

Applicant shall provide evidence that it is in full compliance with all applicable EIS, NOAA, and the U.S. Coast Guard laws, rules, regulations and requirements, and any and all other applicable federal and state laws, rules and regulations and requirements that are necessary to operate its proposed ferry service within the State..." [Done at Honolulu, Hawaii, December 30, 2004, PUBLIC UTILITIES COMMISSION OF THE STATE OF HAWAII]

Applicant (Hawaii Superferry, Inc.) is not in full compliance with NEPA regulations. Is the PUC Decision dependent upon the Applicant being in full compliance with all federal laws, like NEPA?

No initiation of service should be made without National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) considerations, including Habitat Conservation Plans (HCP) and Incidental Take Procedures (ITP) for every potentially impacted endangered and threatened species; low income and cultural impacts; cumulative impacts; and project alternatives and potential impacts to critical habitat areas and environmentally sensitive areas. [Authority: NEPA, the Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.), Sec. 309 of the Clean Air Act, as amended (42 U.S.C. 7609), and E.O. 11514 (Mar. 5, 1970, as amended by E.O. 11991, May 24, 1977).]

No matter what actions the state of Hawai'i takes overturning Hawai'i Revised Statutes 343, the Hawai'i Environmental Policy Act (HEPA), the National Environmental Policy Ad (NEPA) prevails and NEPA regulations must be adhered to. NEPA takes precedence over 'little NEPA' (HEPA), as has been established by case law for over thirty years. No initiation of service can be made without National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) considerations...Section 102(2) of the NEPA contains "action-forcing" provisions that ensure that federal agencies act according to the letter and the spirit of the law prior to any impacting action. The HSF is a major federal project due the federal [assistance] received by the HSF through the United Stated Department of Transportation Maritime Administration (MARAD) Title XI loan [guarantee for] $139,731,000.00 to Hawaii Superferry, Inc., and NEPA must be considered in regards to all the endangered species of Hawai' i and it's waters.

MARAD had reservations about the lack of environmental scrutiny; on March 28, 2005, MARAD, in granting their Categorical Exclusion stated:

Based on the information available at that time, there appeared to have been very little, if any, NEPA or state environmental work performed related to the proposed ferry service that would be adequate for MARAD's responsibilities under NEPA.

But, [MARAD] based their Categorical Exclusion on the [illegal] Hawaii state Categorical Exemption issued by Hawaii Department of Transportation (HDOT), qualifying that:

MAR-820 recommends that the loan guarantee contract contain the requirement that Hawaiian High Speed Ferry (HSF) Corporation comply with all applicable environmental laws and regulations.

Serious consideration needs to be given to the validity of the MARAD Categorical Exclusion that was based on the Hawaii State Department of Transportation Categorical Exemption, since the ruling No. 27407 of the Hawaii Supreme Court on August 31, 2007, invalidates the state DOT Categorical Exemption. Shouldn't the MARAD Categorical Exclusion [also be reversed]?:

Sec. 1502.3 Statutory requirements for (EIS) statements.
As required by Sec. 102(2)(C) of N 8). Significantly (Sec. 1508.27). Affecting (Secs. 1508.3, 1508.8). The quality of the human environment (Sec. 1508.14)...
(d) Environmental impact statements shall state how alternatives considered in it and decisions based on it will or will not achieve the requirements of sections 101 and 102(1) of the Act and other environmental laws and policies.
(e) The range of alternatives discussed in environmental impact statements shall encompass those to be considered by the ultimate agency decision maker.
(f) Agencies shall not commit resources prejudicing selection of alternatives before making a final decision (Sec. 1506.1).

In Hawaii Superferry: Commitments and Actions to Address Environmental Concerns, prepared for Hawaii Superferry, Inc., February 2007 by CH2M Hill, there are no comments included by any wildlife agencies. It is stated that the DAR of DLNR was contacted in 2006, but no comments were specified. I'm not sure why Aquatic Resources, not Marine Resources, was contacted, but Kauai Aquatic Resources was not asked for input to potential impact to Huleia River (per D. Heacock, pers.comm.). Page 24 of Hawaii Superferry: Commitments and Actions to Address Environmental Concerns, includes:

3.10 Agency Consultation
As mentioned throughout this document, agencies were consulted by HSF for applicable
functions.

That's all. This is horribly inadequate and does not satisfy NEPA requirements.

The only wildlife species mentioned in the document are migratory humpbacked whales, Hawaiian monk seals and green sea turtles, but no contributing agency input. There are many other whale species afforded endangered species protection and other listed sea turtles. There is no mention of potential impacts to endangered and migratory birds. Potential impacts to all federally listed threatened and endangered plant and animal species must be given full consideration under the National Environmental Policy Act (NEPA) before any potentially impacting action is taken. Section 7 consultation must begin with federal wildlife agencies.

Potential impacts to federally-listed threatened and endangered plant and algae species by introduction of invasive species of plants and animals is monumental and must be considered on an island-by-island basis due to the unique biological diversity of each island and cumulatively, to the entire state. Introduction of mongoose to sensitive habitats for ground nesting birds could have population extinction potential.

NEPA consideration of potential impacts to threatened and endangered Hawaiian species must include: 'Alae'ula, Hawaiian moorhen, (Gallinula chloropus sanvicensis); 'Alae ke 'oke '0, Hawaiian coot, (Fulica alai); 'Ae'0, Hawaiian stilt, (Himantopus mexicanus knudseni); Koloa maoli, Hawaiian duck, (Anas wyvilliana); Nene, Hawaiian goose, (Branta sandvicensis); 'Ua'u, Dark rumped petrel, (Pterodroma phaeopygia sandwichensis); 'A'0, Newell's shearwater, (Pufinus auricularis newelii); 'alala, Hawaiian Crow, (Corvus hawaiiensis); Band-rumped storm petrel, (Oceanodroma castro); Manu o ku, White tern, (Gygis alba rothschildi); 'io, Hawaiian hawk, (Buteo solitarius); Short-tailed albatross, (Phoebastria albastrus); 'akohekohe, Crested Honeycreeper, (Palmeria dolei); Nihoa Millerbird, (Acrocephalus familiaris kinqi); Kauai Nukupu'u, Kauai nukupu'u, (Hemignathus lucidus hanapepe); Maui Nukupu'u, Maui nukupu'u, (Hemignathus lucidus affinis); '0'o 'a'a, Kauai '0'o, (Moho braccatus); '0'u o'u (Psittirostra psittacea); Palila, palila, (Loxioides bailleui); Maui Parrotbill, (Pseudonestor xanthophrys); Po'ouli, po'ouli, (Melamprosops phaeosoma); Oloma'o, Molokai Thrush, (Myadestes lanaiensis rutha); Kama'o, Large Kauai Thrush, (Myadestes myadestinus), Puaiohi, Small Kauai Thrush, (Myadestes palmeri); ilio holo i ka uaua, Hawaiian monk seal, (Monachus schauinslandi); Kohola Humpback whale, (Megaptera novaeangliae); Sperm whale, (Physeter macrocephalus); Blue whale, (Balaenoptera musculus); Fin whale, (Balaenoptera physalus); Sei whale, (Balaenoptera borealis); North Pacific right whale, (Eubalaena japonica); Olive ridley turtle, (Lepidochelys olivacea); Leatherback turtle, (Dermochelys coriacea); Loggerhead turtle, (Caretta caretta); Honu 'ea, Hawksbill turtle, (Eretmochelys imbricate); Honu, Green sea turtle, (Chelonia mydas); and the 'Ope'ape'a, Hawaiian Hoary bat, (Lasiurus cinereus semotus).

The following birds are offered protection under the Migratory Bird Treaty Act: Eurasian Skylark, (Alauda arvensis); House Finch, (Carpodacus mexicanus); Northern Cardinal, (Cardinalis cardinalis); Kolea, Pacific Golden Plove, (Pluvialis fulva); Band-rumped Storm-Petrel, (Oceanodroma castro); White-tailed Tropicbird, (Phaethon lepturus); Wandering Tattler, (Heteroscelus incanus); Bristle-thighed Curlew, (Numenius tahitiensis); Pueo, Hawaiian Shorteared Owl, (Asio flammeus sandwichensis).

The Hawaiian archipelago is home to 22 species of breeding seabirds, three of which are endemic to the islands. Presently 75 % of known Hawaiian seabirds are extinct or threatened with extinction and listed on the Federal Endangered Species List (USFWS 1985). Island seabird populations have been declining worldwide. Seabirds within the Hawaiian archipelago are vital to a well-balanced marine ecosystem.

The following sea birds are found in Hawaiian waters: Moli; Laysan albatross, (Phoebastria immutabilis); Black footed albatross, (Phoebastria nigripes); 'A, Brown booby, (Sula leucogaster); 'A, Masked booby, (Sula dactylatra); 'A or Mahi, Red-footed booby, (Sula sula), 'Iwa, Great frigate, (Fregata minor); Black noody, (Anous stolidus pileatus); Noio koha, Brown noddy, (Anous minutus); Blue noddy, (Procelsterna cerulean); 'Ou, Bulwer's petrel, (Bulweria bulwerii); Bonin petrel, (Pterodroma hypoleuca); Christmas shearwater, (Puffinus nativitatis); 'Ua'u kani, Wedge-tailed shearwater, (Puffinus pacificus), 'Ewa 'ewa, Sooty tern, (Sterna fuscata); Koae 'ula, Red-tailed Tropicbird, (Phaethon rubricauda); and Koa e ke'o, White tailed Tropicbird, (Phaethon lepturus dorotheae) should also be considered [for protection].

In Act 2 SECTION 3 (4) it is stated that "operation of large capacity ferry vessels is declared to be a required public convenience and necessity." It is not a required public convenience and necessity. Hawai'i has never before used a large capacity ferry vessel. It cannot be a required public necessity, never having been in existence [or needed] here before.

SECTION 3 (6) states that "construction, use or operation of any facilities shall not be subject to or require any county permits or approvals." Why is construction being allowed without following county building codes and permit processes?

SECTION 4 (a) As a condition precedent to the rights conferred by section 3 of this Act, the governor shall impose, by means of an executive order, and without regard to Chapter 91, Hawaii Revised Statutes, or any other provision of law, conditions and protocols on a large capacity ferry vessel company's inter-island operations to mitigate significant environmental effects that the governor determines...

Downright scary. Nothing the governor does can absolve her or the state of NEPA requirements and obligations.

The HSF has daily trips planned between Oahu and Kauai, with a second daily trip expected to be added. Cruise ships have been making daily calls at Nawiliwili Harbor, sometimes two at a time. Kaua'i is dependent upon shipments of gasoline, propane, aviation and helicopter fuels and many other bulk containers flammable and hazardous. If a large vessel of propane or gasoline cannot be in port at the same time as a large passenger vessel, when can Kauai get bulk deliveries of fuels? Have we created an exclusive [gated] economic zone [for the benefit of one company] in our harbors?

In Act 2 Part IV, SECTION 12 (a), the department of transportation is authorized to establish a temporary large capacity ferry vessel oversight task force. Suggested makeup of the taskforce does not include any wildlife official (the BLNR member is not necessarily a wildlife appointee). Qualified state and federal wildlife endangered species agencies should be included, like the U.S. Fish and Wildlife Service, National Marine Fisheries, National Oceanic Atmospheric Administration, Pacific Marine Fisheries and Hawai'i Department of Land and Natural Resources endangered species specialists and the invasive species committees of each island.

The temporary oversight taskforce shall meet monthly, commencing with December 2007. With service attempted to begin in late October 2007, that would mean a 60-day gap in impact reporting or invasive species transfer. That is unacceptable. Where is the monitoring mandated? The temporary oversight task force is scheduled to submit a final report of its findings and recommendations to the legislature and governor no later than 20 days prior to the convening of the regular session of 2009. 2009! ! ! Entirely unacceptable.

The Hawaii Superferry, Inc. has operated as an errant vendor of our ports, and has not followed all environmental procedures. Improvements to our port facilities are not wasted and can perhaps be better used by a vendor that would be environmentally more respectful of state and federal laws and not cause so much trouble and litigation encumbrances. Perhaps an inter-island passenger ferry system would be a more environmentally sensitive start. If the speed of the proposed HSF and the invasive species transfer by vehicle transport are the most critical issues, has any compromise been considered by HSF? Is this the kind of privatization of our port services that we, as a state, really need? Do we really need a superfast, superferry?

Many companies operate with consideration to HEPA and NEPA; those that do not should not be offered special consideration. The Hawaii Speedferry, Inc. should not be allowed to begin operation without NEPA considerations. HEPA must not be overturned or compromised...Please follow the letter and intent of HEPA and NEPA and protect the endangered species of Hawai'i.

I also have concerns about the sustainability of the Hawaii Superferry project. The Superferry claims it is more environmentally friendly than air travel, but is burning an expected 5,600 gallons of diesel fuel per trip really sustainable? The Superferry gets only 0.02 miles per gallon, so, even with 800 passengers that is still only 16 passenger-miles per gallon or at the average projected 400 passengers per trip 8 passenger miles per gallon. Hawaiian Airlines flies 115 people on its Boeing 717s. They operate with a fuel efficiency of 0.44 miles per gallon. That comes to 50 passenger miles per gallon, or three times the people moving efficiency of a full Superferry, 6 times the people moving efficiency of a half-full Superferry.

Australia has just begun a real alternative ferry system of hybrid powered ferry vessels with solar panels (www.solarsailor.com) and a state-of-the-art 600 passenger solar and wind powered hybrid electric ferry named Miss Statue of Liberty in New York Harbor is being constructed in partnership with Australia's Solar Sailor Holdings Ltd. This ship is like a hybrid car; it determines the most efficient combination of energy sources for the moment: wind, solar, electric battery, or fossil fuels (diesel). It is designed to emit zero emissions at slow speeds. This ferry's maximum speed of 13 knots would be more whale friendly, and not carrying cars would be more environmentally acceptable [to the Neighbor Islands].

In Summary:

-NEPA consultation must begin immediately with qualified state and federal agencies on all the endangered species of Hawai'i potentially impacted with this new mode of high speed travel, as mandated by law. HSF must adhere to NEPA.

-Qualified federal and state agency endangered species and wildlilfe biologists must be included on the temporary large capacity ferry vessel oversight taskforce committee.

-Agency monitoring and more rapid reporting/response time must be mandated as part of this new law. The Governor [and Legislature] should not wait until 2009 to be informed of the status of impacts.

-The status of the MARAD Categorical Exclusion must be reevaluated since the revocation of the Hawai'i DOT Categorical Exemption.

-Please reevaluate the Public Utilities Commission Permit Decision and Order No. 21524 and reconsider if the Hawai'i Superferry, Inc. is truly in the public interest, need and necessity and if [that was based on accurate economic and market analysis].

-Please reconsider a fee structure charging 14-day old babies.

Thank you very much for your time and consideration. These decisions you are making will affect many generations of our grandchildren and their quality of life in these islands.

Sincerely,
Hope Kallai
Kauai, HI


Now I know where the idea for the Rapid Risk Assessment came from, among the many good points in this letter,
Aloha, Brad