Mr. Axe does a good job explaining the Superferry venture and how John Lehman made use of it with Austal, Atlantic Marine, and BAE Systems in the years since the Superferry's failure. Lehman only ended up doing well with it because of his perseverance. If it had been just the Superferry, it would have been a miserable failure. In comments below, Mr. Lehman is too hard on the Hawaii Supreme Court, the problem was in the construction of Act. 2 by the Hawaii Legislature. Maybe he has some purpose in blaming the Court rather than a Legislature he might need to deal with again in the future. Agree with Mr. Axe's closing point that "campaign talk of a massive naval buildup may fade as budget realities set in." Lastly, it's a little off topic for the article, but Lehman's position on the 9/11 Commission was a noteworthy responsibility that went unfinished and determining details unattended to as with the Superferry's business plan...
Source: http://www.wired.com/dangerroom/2012/10/big-business-romneys-navy/all/
Romney’s Big Navy Guru Made Millions From Building Ships
By David Axe October 23, 2012
...one of Romney’s most important advisers on Navy issues, a man who oversaw a massive naval expansion for Pres. Ronald Reagan, there’s more at stake than U.S. national security. John Lehman, an investment banker and former secretary of the Navy, has strong and complex personal financial ties to the naval shipbuilding industry...
Lehman invested in a government-backed “Superferry” in Hawaii — a business that ultimately failed, but not before boosting the standing of Austal USA, an Alabama shipbuilder that constructed the ferry service’s ships. Austal USA’s rising fortunes in turn benefited international defense giant BAE Systems, which then bought up shipyards owned by Lehman in order to work more closely with Austal USA.
...But Ryan Sibley — an editor at the Washington, D.C.-based watchdog Sunlight Foundation who has closely tracked the former Navy Secretary’s investments — says that ”Lehman’s involvement with the Superferry shows that he is no stranger to using personal connections to influence costly decisions.”
...Lehman was the chairman of Hawaii Superferry, a transportation startup based in Honolulu that briefly provided passenger service between the Hawaiian islands of Oahu and Maui. It relied on a new type of fast catamaran ferry built by Austal USA, a shipbuilder in Alabama specializing in speedy aluminum vessels.
Founded in 2003, Hawaii Superferry secured a $136-million loan from the Maritime Administration, a federal agency that oversees sea transportation. Lehman’s own equity firm, the controlling private investor, put $85 million into company. Hawaii Superferry also benefited from $40 million in port enhancements paid for by the state of Hawaii.
The ferry company bought two ships from Austal USA, each more than 300 feet in length and capable of carrying hundreds of passengers plus their cars at speeds in excess of 30 knots. The vessels cost $105 million apiece.
The first ferry entered service in mid-2007. But with low ticket prices and soft demand, the service was a money-loser. The company was also mired in controversy over the environmental impact of its facilities. In 2009 Hawaii Superferry declared bankruptcy. Lehman reportedly lost his entire $85 million investment, and says his total losses were much, much greater than that.
“The two Hawaii Superferrys that we built — on time, and on budget — were operated in commercial service, with no government customers,” Lehman tells Danger Room. “We were put out of service by the chicanery of the State Supreme Court and we lost over $300 million.”
But in another regard, the ferry was a smashing success. Austal USA, which builds aluminum warships for the Navy, was angling to build military versions of the Hawaii ferries to meet a new Pentagon requirement for fast transports called Joint High-Speed Vessels, or JHSVs. “Building the Superferry was very helpful in demonstrating that we can build these ships,” said Bill Pfister, Austal USA’s vice president for external affairs.
Out of direct public view, Superferry officials touted their ship’s military potential. Superferry’s pitch to the Hawaiian Public Utilities Commission included a slide claiming the ferry could haul the Stryker vehicles belonging to a Hawaii-based brigade. The company paid a lobbying firm $70,000 to try to convince the Navy to add the ferry to a program that assigns military transportation jobs to civilian vessels.
In late 2008, the Navy tapped Austal USA to build 10 military versions of the Hawaii ferry for $1.6 billion. Some critics have questioned whether Superferry was intended all along to serve as a proof-of-concept — admittedly, a money-losing one — for a much more valuable military program. “The fact that the Superferry was already in the water, proving its seaworthiness while the JHSV contract was being considered, suggests that it may have always been intended as a prototype or demo model for the larger deal,” Koohan Paik and Jerry Mander, who penned a book about the ferry controversy, wrote in The Nation.
Superferry president Thomas Fargo, also a J.F. Lehman & Co. board member, denied the claim. “We always get the question, ‘Was this designed as a military operation?’” he told The New York Times. “That’s absolutely not true.”
Regardless, the Hawaii ferries themselves did become military assets. In 2010 the Maritime Administration sued to take over the two ships in order to recoup some of its $150 million investment. The administration later sold both ferries to the U.S. Navy for a total of $70 million.
At first glance it’s not clear how Lehman could have benefited from his money-losing investment in Hawaii Superferry. The answer lies in another of the former Navy secretary’s investments: the Atlantic Marine family of shipyards. In 2006, Lehman purchased the shipyards in Alabama, Mississippi, Florida, Boston and Philadelphia for a reported $170 million. In 2009, the federal government awarded three of the yards $2.7 million in stimulus grants for improvements.
In 2010 international defense giant BAE Systems, which handles ship repairs among other specialties, acquired the Florida, Mississippi and Alabama yards for $352 million — ringing up an estimated $180 million profit for Lehman that more than makes up for his “failed” investment in Hawaii Superferry. Lehman held onto the remaining two yards in Philadelphia and Boston. Recently both have received lucrative ship-repair contracts from the Navy. They could receive even more such contracts if the sailing branch were to grow at a faster pace, as Lehman intends.
Today the Alabama yard, which is adjacent to Austal USA’s own facilities, plays a critical role in military programs on which Austal USA and BAE Systems collaborate. “We launch both their JHSV and [Littoral Combat Ship] vessels with our dry docks; we also support Austal with warranty repairs, if requested,” BAE Systems spokesperson Stephanie Moncada tells Danger Room. Austal USA did not respond to an e-mail requesting comment on the company’s relationship with BAE.
In addition, Austal USA does work on aluminum structures as part of BAE Systems’ ship-repair contracts with the Navy. Being in such close proximity to each other makes BAE Systems and Austal USA’s collaboration possible, or at least more efficient.
Even before the acquisition of the Alabama yard, BAE Systems enjoyed close ties with Austal USA, namely in providing guns and radios for the Littoral Combat Ships Austal USA builds for the Navy. That made BAE Systems an obvious prospective buyer for Lehman’s yards — the Alabama one in particular.
But Lehman’s investments in the partially taxpayer-funded Hawaii Superferry reportedly helped Austal score the military transport deal, thus improving the business case for a closer partnership between Austal USA and BAE Systems. That partnership is being facilitated by BAE Systems’ Alabama shipyard, purchased at a 100-percent markup from Lehman.
To put it plainly, Lehman’s investment in the failed, government-backed Superferry boosted Austal USA, whose rising fortunes also benefited BAE Systems, which in turn bought up Lehman’s shipyards — improved by stimulus funds — in order to work more closely with Austal USA. That roundtrip deal helped earn Lehman’s firm a reported $180 million profit. In that sense, Lehman in fact more than doubled his $85 million investment in Hawaii Superferry, with a big assist from the taxpayers.
“While I don’t know how typical Lehman’s conduct is, his involvement with the Hawaii Superferry suggests his expertise lays in the strategic deployment of taxpayer resources for personal gain,” Sibley, the watchdog, tells Danger Room.
Lehman calls the allegation “kind of amusing. We have never owned a shipyard that builds Navy ships. We have owned four shipyards that repair, not build commercial ships and Navy ships. The Navy business made up about 15 to 20% of the repairs. We still own two of those four, having sold the other two to BAE.”
Ultimately BAE Systems, whose shipyard purchases added significantly to Lehman’s already substantial personal worth, stands to earn potentially tens if not hundreds of millions from the ships specified in Lehman’s naval buildup scheme. Each LCS costs around $500 million; the Navy plans to acquire at least 55 of the ships. As Romney’s naval adviser, Lehman specifically promised to continue the program, and mentioned possibly adding more combat gear to the vessels — gear that could be built by BAE Systems.
...Perhaps none of this will have an influence on a Romney Pentagon. Perhaps the campaign’s talk of a massive naval buildup will fade as budget realities set in. But if a Romney administration does embark in such an enormous increase in military shipbuilding, it’s worth noting that one of the brains behind the expansion has profited rather handsomely by encouraging the Navy to build.
Showing posts with label Act 2. Show all posts
Showing posts with label Act 2. Show all posts
Saturday, October 27, 2012
Wednesday, May 13, 2009
"IT IS HEREBY ORDERED that the motion for reconsideration is DENIED"
Here is the Decision on the Motion for Reconsideration:
http://www.state.hi.us/jud/opinions/sct/2009/29035recond.pdf
Here is the Order of Amendment on the original Opinion of March 16, 2009: http://www.state.hi.us/jud/opinions/sct/2009/29035am.pdf
Here is the Amended Opinion of the Majority of the Court from March 16, 2009: http://www.state.hi.us/jud/opinions/sct/2009/29035opam.pdf
Here is the Concurring and Dissenting Opinion of the minority from March 16, 2009:
http://www.state.hi.us/jud/opinions/sct/2009/29035conam.pdf
You can read them all or just read the title here to get the point. This is done...for now.
http://www.state.hi.us/jud/opinions/sct/2009/29035recond.pdf
Here is the Order of Amendment on the original Opinion of March 16, 2009: http://www.state.hi.us/jud/opinions/sct/2009/29035am.pdf
Here is the Amended Opinion of the Majority of the Court from March 16, 2009: http://www.state.hi.us/jud/opinions/sct/2009/29035opam.pdf
Here is the Concurring and Dissenting Opinion of the minority from March 16, 2009:
http://www.state.hi.us/jud/opinions/sct/2009/29035conam.pdf
You can read them all or just read the title here to get the point. This is done...for now.
Responses to the Motion for Reconsideration
Haven't read them yet, here they are:
05/13/2009 | S.Ct. | 29035 [pdf] | The Sierra Club v. The Department of Transportation of the State of |
| 05/13/2009 | S.Ct. | 29035 [pdf] | The Sierra Club v. The Department of Transportation of the State of |
| 05/13/2009 | S.Ct. | 29035 [pdf] | The Sierra Club v. The Department of Transportation of the State of |
Thursday, April 16, 2009
Motion for Reconsideration: Act 2's "Large Capacity Ferry Vessel" is in fact an illusory closed class of one in context
Well, the thing looks rehashed, rushed and hastily written. Of lesser importance they misspell Bulgo as Bugo on page 8.
But of mention here. On page 11 they try to contest that "large capacity ferry vessel" under Act 2 is not an illusory closed class of one. They say "there are already dozens of large capacity ferry vessels that have been built, acquired, and put into active service worldwide."
On pages 19-20 in Footnote 4 they list a number of foreign ferries that transport at least 500 hundred people and 200 cars, but none of them would be legally allowed to operate between 2 U.S. ports. None of the ferry vessels they list in their Motion for Reconsideration of Act 2 would qualify as an Act 2 large capacity ferry vessel to operate in the U.S. other than the two intended ferry vessels under the one company covered here.
I'll state it again, there are 3 ferry vessels owned by the State of Washington that would qualify, but none of them are available for redeployment to Hawaii and they are not open ocean designs anyway. In fact, Act 2 should have referenced general classes of Coast Guard approved open ocean ferry designs. The Cat ferry vessel operating between Maine and Nova Scotia was made outside the U.S. and so cannot operate between 2 Hawaiian ports. That only leaves 2 large capacity ferry vessels able to operate in Hawaii during the life of Act 2, the Alakai and Huakai. Of these five vessels listed here, all of them took 2 years or more to build. If a new vessel had been started to be built as soon as Act 2 was passed, the new vessel would not have been finished in time before Act 2 would have sunset. "Large capacity ferry vessel" is in fact an illusory closed class of one and a part of special legislation that attempted to unconstitutionally reauthorize the funding and use of improvements to state land.
Imua! Hawaii Supreme Court!
Atty. Charley Foster of Kaua'i put the following links up to the Motion for Reconsideration and the Legislative leadership's amicus brief to that:
...Motion for Reconsideration of the Superferry II decision, and Derrick DePledge was nice enough to respond with a copy. For those interested, I've posted it here (pdf). (It's a free hosting service and downloads can be slow)...
But of mention here. On page 11 they try to contest that "large capacity ferry vessel" under Act 2 is not an illusory closed class of one. They say "there are already dozens of large capacity ferry vessels that have been built, acquired, and put into active service worldwide."
On pages 19-20 in Footnote 4 they list a number of foreign ferries that transport at least 500 hundred people and 200 cars, but none of them would be legally allowed to operate between 2 U.S. ports. None of the ferry vessels they list in their Motion for Reconsideration of Act 2 would qualify as an Act 2 large capacity ferry vessel to operate in the U.S. other than the two intended ferry vessels under the one company covered here.
I'll state it again, there are 3 ferry vessels owned by the State of Washington that would qualify, but none of them are available for redeployment to Hawaii and they are not open ocean designs anyway. In fact, Act 2 should have referenced general classes of Coast Guard approved open ocean ferry designs. The Cat ferry vessel operating between Maine and Nova Scotia was made outside the U.S. and so cannot operate between 2 Hawaiian ports. That only leaves 2 large capacity ferry vessels able to operate in Hawaii during the life of Act 2, the Alakai and Huakai. Of these five vessels listed here, all of them took 2 years or more to build. If a new vessel had been started to be built as soon as Act 2 was passed, the new vessel would not have been finished in time before Act 2 would have sunset. "Large capacity ferry vessel" is in fact an illusory closed class of one and a part of special legislation that attempted to unconstitutionally reauthorize the funding and use of improvements to state land.
Imua! Hawaii Supreme Court!
Atty. Charley Foster of Kaua'i put the following links up to the Motion for Reconsideration and the Legislative leadership's amicus brief to that:
Thursday, April 16, 2009
...Motion for Reconsideration of the Superferry II decision, and Derrick DePledge was nice enough to respond with a copy. For those interested, I've posted it here (pdf). (It's a free hosting service and downloads can be slow)...
The Senate Majority Caucus Tweeted:
Hawaii State Legislature today (4/16) filed an Amicus brief in the Superferry Reconsideration. Here's the brief http://tinyurl.com/cftoef
Thursday, March 26, 2009
Good Legal Review of Court's Act 2 Decision
Even though there is more significant detail in the actual decision, Attorney Robert Thomas does a good job reviewing the recent Act 2 decision by the Hawaii State Supreme Court in the following excerpts:
From: http://www.inversecondemnation.com/inversecondemnation/2009/03/hawaii-superferry-part-ii-judicial-supremacy.html
March 26, 2009
Hawaii Superferry II: Rooting Out Pretext In Legislative Actions
"Unlike Bulgo, in this case there is no evidence in the record that any company, other than Superferry, met the definition provided by section 2 when Act 2 was enacted."
Sierra Club v. Dep't of Transportation, No. 29035 slip op. at 36 (March 16, 2009) (emphasis added)
If you take away nothing else from the 124 pages of majority and concurring and dissenting opinions in the second "Hawaii Superferry" case, remember that sentence. It's the key to the case and understanding the Hawaii Supreme Court's recent willingness to put teeth into judicial review of legislation. In Superferry II, the court faced an interesting jurisprudential issue: whether Act 2, a statute most everyone who was paying attention just knew was designed to cover a single private entity was nonetheless a "general" law under the provision which requires that legislative power over state and county lands be exercised only by general laws, and therefore entitled to constitutional and judicial respect. Haw. Const. art. XI, § 5. In other words, whether Act 2's provisions providing benefits to all "large capacity ferry vessels" was merely a pretext to hide special benefit to the Superferry.
Superferry I Leads To Act 2
In Superferry I the court held the State DOT's exemption of the Superferry from the EA/EIS procedures in Hawaii Revised Statutes chapter 343 was erroneous, and that the ship could not continue sailing until the State completed at least an EA. Act 2 was a reaction by the other two branches of state government to that decision, exempting any "large capacity interisland ferry" from chapter 343, and creating an alternate review process which allowed the ferry to continue to operate while its environmental impacts were evaluated.
All five Justices joined the majority opinion authored by Justice Duffy, and held that Act 2 was not a general law, but one specifically designed to aid the Superferry. In doing so, the court pushed aside the usual deference courts pay to legislative judgments -- including the legislature's judgment about what it is doing and more importantly why -- and held that the legislature's intent in Act 2 was to benefit a single private entity. Justice Nakayama, joined by Chief Justice Moon, concurred in part and dissented in part on the limited issue of the state's liability for attorneys' fees...
Legislative Power, State Lands
The court held that Act 2 was the exercise of "legislative power over the lands owned by or under the control of the State and its political subdivisions" under article XI, § 5 because Act 2 purported to unwind the trial court's finding that the state-Superferry agreement by which the ferry used the harbor:
[s]ection 15 of Act 2 reauthorized Superferry to use the [state owned] lands at Kahului Harbor. The legal authority provided by DOT's exercise of executive power was removed by the circuit court's October 9, 2007 order rendering the operating agreement void as it related to the Kahului Harbor lands. Without the legal authority provided by Act 2 through an exercise of legislative power, the operating agreement would have remained void and unenforceable. Therefore, we hold that Act 2 was an exercise of legislative power over State lands.
Slip op. at 29-30.
Special Laws Measured by "Substance and Practical Operation"
Having determined article XI applied, the court next addressed what standard of review governed its analysis of whether Act 2 was a general or a special law:
Sierra Club contends that whether a law is special or general should be determined by its "substance and practical operation, rather than on its title, form or phraseology."
In contrast, DOT and Superferry argue that Act 2 is a general law that does not violate any provision of the Hawaii Constitution. They argue that the correct test for a general law is whether it creates a rationally based classification and whether the law applies to all members of the class created. For the following reasons, we agree with Sierra Club.Slip op. at 30-31. In other words, the court rejected traditional "rational basis" review under which a court will uphold a law if there is any conceivable basis to support it.
Substance of a Statute is Found "In the Record"
Even thought Act 2 was facially neutral and did not expressly single out the Superferry for special treatment the Superferry II court held it was a special law. The critical holding is that courts should not defer to the legislature's assertion about what it was doing in Act 2 (providing a separate environmental review process for any "large capacity ferry vessel") but must examine the record in the case. The court rejected rational basis review, instead requiring an examination of facts before the court:
Unlike Bulgo, in this case there is no evidence in the record that any company, other than Superferry, met the definition provided by section 2 when Act 2 was enacted.
Slip op. at 36...
The Superferry II court did not discuss rational basis review, even though Act 2 surely can be classified as economic legislation which usually is subject to only cursory judicial review in which the facts of the case really are not all that relevant. Under rational basis review, what is important is whether the government's attorneys and the courts could "conceive" of any plausible rationale on which the legislature might have based the statute, not whether the legislature actually did so, or whether the legislation might actually fulfill its stated goals. Instead, the Superferry II court determined that the class of "large capacity ferry vessels" to which Act 2 purported to apply was "illusory" and could only apply to the Superferry.
After Superferry II and the cases noted above, governments defending challenges under the Hawaii Constitution no longer can rely upon creative lawyers to brainstorm after-the-fact rationales to support a statute. Instead, the facts of the case as developed in the record, and the court applying its own logic, resulted in the court holding that "[t]he benefits provided by Act 2 to a large capacity ferry vessel company were clearly intended to benefit only Superferry." Slip op. 63 (emphasis added).
The Achilles' Heel of Act 2 was the short time frame in which it applied; the court held that the "actual probability that the law will apply in the future" (slip op. at 45) must be considered, and it rejected the state's claim the record did not show that other ferries besides the Superferry might benefit from Act 2. Slip op. at 49-62. The court deconstructed the state's claim, and held that no other company but the Superferry could build or acquire a qualifying vessel, enter into an operating agreement with the state, and comply with all federal and state regulations within the 21 months of Act 2's life.
[Might add that the Achilles' Heel was not only the short timeframe. It was also more fundamentally in the narrow definition of a "large capacity ferry vessel" arbitrarily created in Act 2.--Ed.]
The briefs in the Superferry II appeal are posted here, and the archive of our live blog of the December 18, 2008 oral arguments is posted here. Our Superferry case page here.
Wednesday, March 18, 2009
Who's to Blame?
From Save Kahului Harbor: http://savekahuluiharbor.blogspot.com/2009/03/who-to-blame.html
Tuesday, March 17, 2009
Who to Blame?
Who got us into this mess? According to memos released to the Honolulu Advertiser under FOI, Hawai'i DOT was telling both Gov Lingle and the Superferry company they must do an EIS.
But then Gov. Lingle stepped in and directed DOT to find a way around environmental law.
That's when DOT came up with the poorly conceived, unworkable, expensive, Chinese-made barge. That barge cost us $38 million dollars of tax-payer money. I was in the room when the pilots told DOT administrators that it physically wouldn't work. But Lingle forced DOT to go ahead anyway, thinking this would circumvent the law.
Since them we've spent almost another $Million repairing the dock and paying for tugs to hold it still. Another half a million dollars is slated to be spent on another probably fruitless attempt to anchor the barge so it doesn't dash itself into Pier 2 during high surf conditions.
Meanwhile the Superferry has been operating at about 25% capacity -- only half of what they need to break even. Had they done the EIS, it would have shown these things:
1. The ship they chose was too big for the passenger loads reasonably expected
2. The ship they chose used too much fuel to be economical
3. The ship they chose was the wrong design to sail comfortably in the extreme conditions of our interisland channels.
4. They should have included onboard ramps (as their second ship has) so as not to need any barges thus saving us about $41,000,000 that Lingle has wasted.
But Superferry feared an EIS. We can only speculate that they were set on the current ship design for reasons that have little to do with their ferry business. Investigating the many tangled relationships, we find that the major shareholder, Lehman, is involved in ship building for the military and the Superferry was perhaps the "proof of design" prototype for a very lucrative Joint Highspeed Vessel contract the military was going to award.
So what got us into this mess? Lingle deliberately flouting the law to do favors for a very highly placed neocon, Lehman (slated to be McCain's chief of staff had McCain been elected) and a greedy company with ulterior motives not in the best interests of the people of Hawai'i.
Many supporters of the ferry are crying out against the Supreme Court decision, little realizing that because the EIS was not done, we got a plan that was doomed to failure. Too big, too fuel-hungry, wrong design for comfort. As we pointed out for the last 4 years - the business plan simply didn't add up to a profit.
The Court decision may have hastened the end of the Superferry but its days were numbered anyway.
Mayor Tavares of Maui said it the best:
Maui County Spokesperson Mahina Martin released this statement about the Supreme Court Decision.
"The ruling is not unexpected. If an Environmental Impact Statement was first done as required by laws that exist to protect our environment, then DOT and the Superferry owners would have been able to assess the impacts and take necessary steps years ago to address any concerns.
"Early compliance would have benefited both the environment and today's small businesses that utilize the Superferry. Having a variety of transportation options is important. It is equally important to follow laws meant to safeguard our communities."
Monday, March 16, 2009
ACT 2 STRUCK DOWN AS UNCONSTITUTIONAL
I am reading it now, it starts getting really good at about page 35. Here is the link:
http://www.state.hi.us/jud/opinions/sct/2009/29035.pdf
Aloha, Brad
http://www.state.hi.us/jud/opinions/sct/2009/29035.pdf
Aloha, Brad
Friday, March 6, 2009
HB 1171...with audio of midnight hearing testimony
The House Finance Committee today at first did not post the new version and committee report of HB 1171 to the Legislative website, but has now. The bill is a different bill now. It is also intentionally incomplete and will require dates being added later. Legislative sausage is exactly what this thing is. Interestingly enough, there are still unconstitutional aspects of Act 2 left intact and even strengthened with this revised bill.
Re: Testimony audio on HB1171. I'll leave it up for [only] about a week because it's a pretty big file to store:
--Larry
For the person who argued Act 2 before the State Supreme Court, this testimony either misrepresented or is shockingly ill-informed on Act 2's content:
The Deputy AG Ginoza misstated herself at least three times in this testimony. One, she started to say that the EIS comment period began on Feb. 23, and that we are in the 45 day comment period, which Formby corrected. Two, she implied that the Governor does not have the authority from Act 2 to add further EO mitigation conditions beyond EO 07-10, when Act 2 actually says that the Governor or Legislature can add further mitigation conditions, even though the Governor has not added anything from the RRA and OTF reports, which she could do at any time. Three, at the end of the tape Ginoza incorrectly said:
1) "Session ends in mid-July", wrong, Session ends the first week of May, Act 2 sunsets in mid-July.
2) Said "say the EIS is not accepted until August 1st," that cannot happen because Act 2 will have already sunset and if the EIS is not accepted by the sunset in mid-July, then the Act 2 EIS is a moot document.
3) Said "Act 2 contemplates that once the EIS is done, the large capacity ferries can operate," wrong, Act 2 clearly states that the EIS has to be accepted by the OEQC (and not just done) to be legally effective.
4) Said "It doesn't mean that just because the EIS wasn't completed before the end of mid-July that that's the end of the story," wrong, the Act 2 EIS has to be ACCEPTED OR NOT BY OEQC by the mid-July Act 2 sunset date.
In listening again to the audio of this testimony, I find further omissions and misstatements by the Deputy AG. In particular, in referring to Act 2, Section 18, regarding the repeal of Act 2, the Deputy AG verbally leaves out that the repeal is "on the earlier of" 45 days following sine die or acceptance of the final environmental impact statement. This is significant in that Act 2 can sunset before the EIS is completed or accepted, if it's preparers are behind schedule, as they have been for many months now. By the Deputy AG's above 4 point closing statement, she seems to be assuming that the sunset could be "on the latter of" the two requirements.
In listening to the many misstatements in this audio and also thinking back on the arguments before the Supreme Court, I have my doubts as to whether the Deputy AG has actually read and completely assimilated Act 2 in its entirety. This testimony would have been better given by just Formby who clearly has read and assimilated all of Act 2, or AG Bennett who drafted it. I find it interesting that AG Bennett did not formally defend before the SC nor is he testifying on his own work.
SECTION 18. This Act shall take effect upon its approval; provided that this Act shall be repealed on the earlier of:
I now look for the Supreme Court to wait until mid-May to rule on Act 2. Let all of these shenanigans clear out before they make their ruling.
Aloha, Brad
Re: Testimony audio on HB1171. I'll leave it up for [only] about a week because it's a pretty big file to store:
--Larry
For the person who argued Act 2 before the State Supreme Court, this testimony either misrepresented or is shockingly ill-informed on Act 2's content:
The Deputy AG Ginoza misstated herself at least three times in this testimony. One, she started to say that the EIS comment period began on Feb. 23, and that we are in the 45 day comment period, which Formby corrected. Two, she implied that the Governor does not have the authority from Act 2 to add further EO mitigation conditions beyond EO 07-10, when Act 2 actually says that the Governor or Legislature can add further mitigation conditions, even though the Governor has not added anything from the RRA and OTF reports, which she could do at any time. Three, at the end of the tape Ginoza incorrectly said:
1) "Session ends in mid-July", wrong, Session ends the first week of May, Act 2 sunsets in mid-July.
2) Said "say the EIS is not accepted until August 1st," that cannot happen because Act 2 will have already sunset and if the EIS is not accepted by the sunset in mid-July, then the Act 2 EIS is a moot document.
3) Said "Act 2 contemplates that once the EIS is done, the large capacity ferries can operate," wrong, Act 2 clearly states that the EIS has to be accepted by the OEQC (and not just done) to be legally effective.
4) Said "It doesn't mean that just because the EIS wasn't completed before the end of mid-July that that's the end of the story," wrong, the Act 2 EIS has to be ACCEPTED OR NOT BY OEQC by the mid-July Act 2 sunset date.
In listening again to the audio of this testimony, I find further omissions and misstatements by the Deputy AG. In particular, in referring to Act 2, Section 18, regarding the repeal of Act 2, the Deputy AG verbally leaves out that the repeal is "on the earlier of" 45 days following sine die or acceptance of the final environmental impact statement. This is significant in that Act 2 can sunset before the EIS is completed or accepted, if it's preparers are behind schedule, as they have been for many months now. By the Deputy AG's above 4 point closing statement, she seems to be assuming that the sunset could be "on the latter of" the two requirements.
In listening to the many misstatements in this audio and also thinking back on the arguments before the Supreme Court, I have my doubts as to whether the Deputy AG has actually read and completely assimilated Act 2 in its entirety. This testimony would have been better given by just Formby who clearly has read and assimilated all of Act 2, or AG Bennett who drafted it. I find it interesting that AG Bennett did not formally defend before the SC nor is he testifying on his own work.
SECTION 18. This Act shall take effect upon its approval; provided that this Act shall be repealed on the earlier of:
(1) The forty-fifth day, excluding Saturdays, Sundays, and holidays, following adjournment sine die of the regular session of 2009; or
(2) Upon acceptance of the final environmental impact statement as provided in this Act;
and
provided further that:
(1) The final environmental impact statement by the department of transportation that is accepted by the office of environmental quality control under this Act shall be and remain effective for all purposes under the laws of this state, notwithstanding the repeal of this Act; and
(2) Section 16 of this Act shall not be repealed when this Act is repealed.
I now look for the Supreme Court to wait until mid-May to rule on Act 2. Let all of these shenanigans clear out before they make their ruling.
Aloha, Brad
Thursday, March 5, 2009
Update on SB989 and HB1171...and more
Last reported here, SB989 to extend the sunset date of Act 2 by a year was to be heard by the Hawaii Senate ENE and TIA committees. That was done on Feb. 19, 2009, and the measure was deferred (not acted upon). Believe written testimony helped on that. On Feb. 25th, the measure was re-referred to a combined Senate committee of ENE/TIA/JGO, meaning on a tight schedule nothing was happening on SB989 in the Senate.
Later that same day, Feb. 25th, the companion bill HB1171, was pulled out of the House TRN/EEP, FIN committees (by Speaker Say who has a close connection to HSF) that it had been referred to from the beginning of the session and re-referred the bill to only the FIN committee. TRN/EEP have chairs unsympathetic to the bill.
The hearings on HB1171 were held in the FIN committee on March 3rd and a committee decision was deferred and voted on March 4th, actually the morning of March 5th. The FIN hearing started at 10:00 am on the 4th and lasted until at least 5:00 am on Mar. 5th. The committee had to deal with a lot of bills, this one actually being one of the lesser important ones. After a long night the exhausted Reps passed HB1171 unanimously. There was good written testimony submitted for both the March 3rd and 4th/5th hearings.
Larry Geller has a good report on this all-nighter FIN committee hearing. Makes me think of the image of a sausage factory...sausage factory of laws. Also reminded me of college students cramming overnight because they got behind on their studies in hopes that they will actually retain something good out of the incident. It is amazing that Legislators actually make laws on extreme sleep deprivation. I got nothing against sleep deprivation, but making laws with it?
Anyway, apparently HB1171 can now go to the House floor for a vote and then pass over to the Senate for further consideration. My two letters of testimony on HB1171 are below.
One of the guys on Maui asked for some feedback on an article he is writing. Here was my feedback and it applies to Act 2, SB989, and HB1171, and the arbitrary standard of a "large capacity ferry vessel":
A couple of things I'll point out. After reading a proforma income statement that Dick did on public information from HSF, in the Fall of 2007, I looked at that same information and did some sensitivity analysis varying the number of people, and cars, and fuel price. The results of that were in a series of posts I did on HSF's expected Break Even Analysis. The most significant thing I found is that mainly depending upon the fuel price, HSF's breakeven point is at about half their capacity (for people and vehicles) or higher. But, and this is the key point, HSF needs to be running at half capacity every day, and if they are a true viable going concern, they cannot afford to be down for any more than about 2 weeks a year, if even that. So far they have not been able to do that. If they continue as they have been, they will always be an annual money loser, in the summer only have they made money. Even if they add a second vessel, they will still be a money loser based on the average of less than half capacity and too many down days. This assumes no government service contracts.
The second point is that the reason for the above is HSF's powerplant of 4 diesel engines onboard powering the 4 waterjets. The fuel that these 4 diesel engines burn are the key variable that give HSF less operational/financial flexibility (higher loads needed) to cover their daily costs. When I did the survey of all ferries in the United States that meet the "large capacity ferry vessel" definition, the vast majority of ferries in the U.S. utilize half the engine power or less of HSF. Half the engine power would also mean half the fuel, half the greenhouse gas emissions, slower speed and greater financial flexibility for a commercial ferry. As it stands, per passenger HSF at a minimum burns twice the fuel and puts out twice the emissions of an interisland passenger jet (per passenger). The difference is because of the excessive engine power.
One last point. Invariably HSF will continue to be unviable as I believe in the end even the state and federal government won't be able to pay indefinitely for it's discretionary services. If there is to be a viable interisland ferry service in Hawaii, it would have to be utilizing at least half the engine power of the Alakai, probably not carrying personal use cars, operate at slower speeds, and people would have to be satisfied with a 4+ hour ride rather than a 3 hour ride interisland. There is a reason statewide interisland ferries have been attempted and failed in Hawaii many times in the past (as with Seaflight, et.al.).
Believe the above is too much to properly evaluate for a lawmaker fighting back exhaustion and sleep deprivation, but here were my two letters on HB1171.
Testimony for FIN 3/4/2009 4:15:00 PM HB1171:
Honorable Committee Members:
"Sometimes ya just gotta know when to cut your losses."
Respectfully request no referral for HB 1171 out of committee, no arbitrary extension of Act 2, and no further action on HB 1171.
Do any of you really believe HSF is a viable interisland going concern? Just check out the average loads it's had for the past 6 months. They have been pathetic. At the same time Hawaiian, Go!, and Young Brothers have been doing good steady business over the past 6 months and beyond.
There will be other opportunities for viable interisland ferry service here in Hawaii, but HSF and Act 2 will not be what fosters it.
Respectfully request no referral, no vote out of committee for HB 1171.
Testimony for FIN 3/3/2009 6:00:00 PM HB1171:
Honorable Committee Members:
This proposal to extend the sunset date of Act 2 by a year is not entirely unexpected as it was mentioned in the final report of the Lingle-DOT controlled Oversight Taskforce Committee. But, why are not any of the other recommendations of the OTF Final Report included in this bill for which the Lingle Administration is again lobbying the Legislature?
Consistent with the 'closed class of one' nature of Act 2 and DOT's exclusive operating agreement with HSF, this measure changes the playing field in mid-course to benefit one company to the detriment of any other potential 'large capacity ferry vessel' company, just so DOT can have the convenience of more time to finish the Act 2 'EIS.' Contrary to DOT's testimony, this bill does NOT add to the public's time to comment on the Act 2 'EIS.'
The saga and tangled web that they weave continues to develop. Meanwhile the unfunded expenses of this total project are quickly approaching $10 million dollars overbudget, at the same time that Hawaii schoolkids are asked to do with less in the schools. By the way, where are the rest of the Lingle Administration's budget cut proposals that the Legislature asked of her more than a month ago?
HSF has actually already proven itself unviable and will continue to be so because the vessel's operational design is not properly matched to the distances and conditions between the Hawaiian Islands.
Enough is enough. The Legislature should stop assisting the Lingle Administration with this private concession boondoggle. The Lingle Administration has already been given everything they need for this project to succeed or not on it's own.
We call upon the Representatives to make a statement of righteousness and reject this unnecessary bill HB 1171. We respectfully request that you take no further action on HB 1171.
Aloha, Brad
Later that same day, Feb. 25th, the companion bill HB1171, was pulled out of the House TRN/EEP, FIN committees (by Speaker Say who has a close connection to HSF) that it had been referred to from the beginning of the session and re-referred the bill to only the FIN committee. TRN/EEP have chairs unsympathetic to the bill.
The hearings on HB1171 were held in the FIN committee on March 3rd and a committee decision was deferred and voted on March 4th, actually the morning of March 5th. The FIN hearing started at 10:00 am on the 4th and lasted until at least 5:00 am on Mar. 5th. The committee had to deal with a lot of bills, this one actually being one of the lesser important ones. After a long night the exhausted Reps passed HB1171 unanimously. There was good written testimony submitted for both the March 3rd and 4th/5th hearings.
Larry Geller has a good report on this all-nighter FIN committee hearing. Makes me think of the image of a sausage factory...sausage factory of laws. Also reminded me of college students cramming overnight because they got behind on their studies in hopes that they will actually retain something good out of the incident. It is amazing that Legislators actually make laws on extreme sleep deprivation. I got nothing against sleep deprivation, but making laws with it?
Anyway, apparently HB1171 can now go to the House floor for a vote and then pass over to the Senate for further consideration. My two letters of testimony on HB1171 are below.
One of the guys on Maui asked for some feedback on an article he is writing. Here was my feedback and it applies to Act 2, SB989, and HB1171, and the arbitrary standard of a "large capacity ferry vessel":
A couple of things I'll point out. After reading a proforma income statement that Dick did on public information from HSF, in the Fall of 2007, I looked at that same information and did some sensitivity analysis varying the number of people, and cars, and fuel price. The results of that were in a series of posts I did on HSF's expected Break Even Analysis. The most significant thing I found is that mainly depending upon the fuel price, HSF's breakeven point is at about half their capacity (for people and vehicles) or higher. But, and this is the key point, HSF needs to be running at half capacity every day, and if they are a true viable going concern, they cannot afford to be down for any more than about 2 weeks a year, if even that. So far they have not been able to do that. If they continue as they have been, they will always be an annual money loser, in the summer only have they made money. Even if they add a second vessel, they will still be a money loser based on the average of less than half capacity and too many down days. This assumes no government service contracts.
The second point is that the reason for the above is HSF's powerplant of 4 diesel engines onboard powering the 4 waterjets. The fuel that these 4 diesel engines burn are the key variable that give HSF less operational/financial flexibility (higher loads needed) to cover their daily costs. When I did the survey of all ferries in the United States that meet the "large capacity ferry vessel" definition, the vast majority of ferries in the U.S. utilize half the engine power or less of HSF. Half the engine power would also mean half the fuel, half the greenhouse gas emissions, slower speed and greater financial flexibility for a commercial ferry. As it stands, per passenger HSF at a minimum burns twice the fuel and puts out twice the emissions of an interisland passenger jet (per passenger). The difference is because of the excessive engine power.
One last point. Invariably HSF will continue to be unviable as I believe in the end even the state and federal government won't be able to pay indefinitely for it's discretionary services. If there is to be a viable interisland ferry service in Hawaii, it would have to be utilizing at least half the engine power of the Alakai, probably not carrying personal use cars, operate at slower speeds, and people would have to be satisfied with a 4+ hour ride rather than a 3 hour ride interisland. There is a reason statewide interisland ferries have been attempted and failed in Hawaii many times in the past (as with Seaflight, et.al.).
Believe the above is too much to properly evaluate for a lawmaker fighting back exhaustion and sleep deprivation, but here were my two letters on HB1171.
Testimony for FIN 3/4/2009 4:15:00 PM HB1171:
Honorable Committee Members:
"Sometimes ya just gotta know when to cut your losses."
Respectfully request no referral for HB 1171 out of committee, no arbitrary extension of Act 2, and no further action on HB 1171.
Do any of you really believe HSF is a viable interisland going concern? Just check out the average loads it's had for the past 6 months. They have been pathetic. At the same time Hawaiian, Go!, and Young Brothers have been doing good steady business over the past 6 months and beyond.
There will be other opportunities for viable interisland ferry service here in Hawaii, but HSF and Act 2 will not be what fosters it.
Respectfully request no referral, no vote out of committee for HB 1171.
Testimony for FIN 3/3/2009 6:00:00 PM HB1171:
Honorable Committee Members:
This proposal to extend the sunset date of Act 2 by a year is not entirely unexpected as it was mentioned in the final report of the Lingle-DOT controlled Oversight Taskforce Committee. But, why are not any of the other recommendations of the OTF Final Report included in this bill for which the Lingle Administration is again lobbying the Legislature?
Consistent with the 'closed class of one' nature of Act 2 and DOT's exclusive operating agreement with HSF, this measure changes the playing field in mid-course to benefit one company to the detriment of any other potential 'large capacity ferry vessel' company, just so DOT can have the convenience of more time to finish the Act 2 'EIS.' Contrary to DOT's testimony, this bill does NOT add to the public's time to comment on the Act 2 'EIS.'
The saga and tangled web that they weave continues to develop. Meanwhile the unfunded expenses of this total project are quickly approaching $10 million dollars overbudget, at the same time that Hawaii schoolkids are asked to do with less in the schools. By the way, where are the rest of the Lingle Administration's budget cut proposals that the Legislature asked of her more than a month ago?
HSF has actually already proven itself unviable and will continue to be so because the vessel's operational design is not properly matched to the distances and conditions between the Hawaiian Islands.
Enough is enough. The Legislature should stop assisting the Lingle Administration with this private concession boondoggle. The Lingle Administration has already been given everything they need for this project to succeed or not on it's own.
We call upon the Representatives to make a statement of righteousness and reject this unnecessary bill HB 1171. We respectfully request that you take no further action on HB 1171.
Aloha, Brad
Friday, February 27, 2009
Peter Rappa's of UH-Manoa comments on the Act 2 'EIS'
The following are Peter Rappa's comments on the Act 2 'EIS'. Peter Rappa is the Environmental Review Coordinator of the UH-Manoa Water Resources Research Center, Environmental Center:
February 23, 2009
RE: 0786
Brennon Morioka, Director
State Department of Transportation
869 Punchbowl Street, Room 509
Honolulu, HI 96813
Dear Mr. Morioka:
Draft Environmental Impact Statement
Statewide Large-Capacity Inter-Island Ferry
Honolulu, Wailuku, Lihue, and South Kohala
The Statewide Large-Capacity Inter-Island Ferry Draft Environmental Impact Statement (DEIS) evaluates harbor improvements proposed by the State of Hawaii Department of Transportation (DOT) to support a large-capacity ferry vessel company. The harbors affected by these actions are Honolulu Harbor (City and County of Honolulu), Kahului Harbor (County of Maui), Nawiliwili Harbor (County of Kauai), and Kawaihae Harbor (County of Hawaii). Significant probable direct, indirect, and cumulative impacts are discussed in the DEIS. Direct impacts include displaced cultural activities and visual impacts to Pu`ukohola Heiau. Indirect impacts are defined as those occurring as a result of a large-capacity ferry vessel company’s operations and include impacts to traffic, traditional cultural practices and the loss of natural resources and activities. Significant cumulative impacts may include takes of Humpback whales, traffic in the vicinity of all four harbors, dispersal of invasive species, and impacts upon traditional cultural practices within Kahului Harbor.
This review was conducted with the assistance of Curt Daehler, UHM Botany; Richard Mayer, Maui Community College; Marshall Mock, Kauai Community College; and Ryan Riddle, Environmental Center.
General Comments
The use of the term “Statewide Large-Capacity Inter-Island Ferry” throughout the document is not necessary except we surmise for legal purposes. It should be noted however, that throughout the document the large-capacity inter-island ferry is identified as the Hawaii Superferry or HSF. We see little reason to distinguish between the large-capacity inter-island ferry and the Hawaii Superferry or HSF. It would make for easier reading if the authors could just call the HSF the HSF.
The examination of alternatives is incomplete. According to Act 2 of the Second Special Session of 2007, the environmental impact statement process shall include evaluating alternatives (Section 9(b)(5)) and that those alternatives include “alternative locations for the proposed project, as appropriate” (Section 10(a)(5)(E)). Only the four harbors where the HSF is currently operating in or plan to operate in the near future are considered in the DEIS while three other harbors, Barbers Point, Hilo and Port Allen that the HSF could conceivably use are ignored. Granted the ferry may not be planning to ever use those harbors but the DEIS should not be limited to destinations that the Department of Transportation has permitted the ferry to use. In an emergency, the HSF may have to divert to other ports to land its passengers safely. Future large-capacity inter-island ferry companies may wish to use other commercial harbors in the State and the DOT should be obligated to review the use of these alternate locations.
In addition to our general comments we also have several specific comments.
Information to be Incorporated by Reference – Rapid Risk Assessment (p. 1-4)
Since the ferry’s inception, how often have the ferry’s services been cancelled due to high seas and maintenance? What are the maximum wave conditions that the vessel can operate under?
Comprehensive List of Potential Resources and Issues (pp. 1-7 – 1-15)
We disagree with the contention on page 1-8 that the impacts to surface water quality are not potentially significant. In the event of a catastrophic accident to the HSF, it may in fact leak a substantial amount of fuel. A spill of more than 10,000 gallons of fuel is considered a medium sized oil-spill that could have significant impacts on the water quality in the vicinity of the spill. The potential of a spill and the response to the spill should be discussed in the DEIS.
In regards to sidewalks (mentioned on page. 1-9), a listed concern is the lack of sidewalks at Kawaihae Harbor. The DEIS states that foot traffic from large-capacity ferry vessel passengers outside of the ferry terminal area is expected to be minimal. How many passengers does the DOT estimate will be pedestrians on the ferry and at what point will passenger levels warrant the construction of sidewalks?
The DEIS mentions on page 1-9 that underground utility corridors are being considered for new Kawaihae Harbor projects to reduce visual impacts to the national park and viewshed. While this issue is indeed a management issue for all of Kawaihae Harbor, we would like to see a more in-depth discussion on the scope of the electrical infrastructure needed for upcoming Kawaihae Harbor projects. Is the ferry’s landing at Kawaihae Harbor the catalyst for undergrounding the utilities there?
Kahului Harbor (p. 2-8)
The DEIS states that the barge and ramp system for Kahului is similar to that illustrated (Figure 2-5) for Honolulu. In what ways does it differ?
Action Alternative (pp. 2-8 – 2-12)
On pages 2-8 through 2-12 harbor improvements for each of the four harbors are described. While these improvements are discussed in detail, it is difficult to discern which of the actions are underway or finished and which will be initiated in the near future. Perhaps, a chart in this section would be helpful in distinguishing the sequence of each of the projects listed.
Ferry Routes (p. 2-12)
The DEIS states that Kauai service is expected to be operated as the afternoon/evening roundtrip voyage on alternate days with the second Honolulu and Kahului round trip voyage as listed in Table 2-2. The times for the service to Kauai are not listed in Table 2-2. Is there an estimate of the departure times for the Honolulu-Nawiliwili service once it is reinstated?
In regards to weekly frequency, the DEIS reads, “When both vessels are operating, round trip voyages between Oahu and Maui, Kauai, and Hawaii Island are planned on a schedule frequency ranging from 3 days per week to daily plus four additional voyages per week.” These estimations vary greatly – what factors would influence these decisions?
Ferry Vessel (p. 2-14)
In regard to bilge water the DEIS states, “any water that could be contaminated with petroleum products is contained within its own disposal system and is designed to flow into a 500-liter holding tank to be emptied periodically in Honolulu by a commercial vendor.” How often does HSF or DOT estimate the holding tank will be emptied? The size of the holding tank is approximately 132 gallons - is that large enough to hold bilge water spills?
Potable Water System (p. 2-15)
In Section 2.1.5.3 the DEIS states “Each HSF vessel has on board a 2,000 gallon potable water tank, refilled daily through a shore-side connection located at the pier.” On average, how many gallons of potable water are consumed per voyage?
Table 3-8: Distribution Status of Invasive Terrestrial and Freshwater Species of Concern by Island (p. 3-29)
With the exception of Bush beardgrass (Schizachyrium condensatum) all of the invasive species of concern mentioned have not established themselves on Kauai. As a result, perhaps procedures should be more stringent on Kauai in order to prevent establishment of these species of concern.
Cultures Resources (pp. 3-32-3-33)
In the fourth paragraph in the section on cultural resources, the Office of Environmental Quality Control (OEQC) is erroneously identified as being part of the Department of Health (DOH). The OEQC is advisory to the Governor and placed in the DOH for administrative purposes.
Population and Housing (p. 3-54)
In Section 3.6.1 the DEIS states, “Residents of neighbor islands often speak of Honolulu as a busy metropolis and contrast life on Oahu to their more rural lifestyle. While they can point to Honolulu’s population density and congested highways as an example to be avoided in local planning, the image of Hawaii as a single city and a rural hinterland on all other islands is misleading.” Did you mean “the image of Oahu as a single city . . .”?
Potential Impacts and Mitigation (pp. 4-1 – 4-129)
To what extent do current and proposed harbor improvements accommodate global sea-level rise predictions? While this is an issue primarily for the harbors’ long-range plans, this issue merits serious consideration in the DEIS.
Invasive Species (pp. 4-62 – 4-71)
On page 4-62 the DEIS states, “Large-capacity ferry operations would add to the existing risk of inter-island transport of invasive species.” This statement is entirely accurate. Unfortunately, these risks are difficult to quantify. Of primary concern is that this mode of inter-island transport - passengers with their vehicles - provides new opportunities for deliberate or inadvertent transport of invasive species. As might be expected in such a case, policies more stringent than those used for other modes of transport have been put into place by HSF. In principle, the guidelines set out in Executive Order 07-10 provide a reasonable strategy for minimizing risk.
In the current arrangement employees of HSF mainly carry out inspections. This arrangement creates a conflict of interest. In order to remain a viable business, HSF must strive to please its customers and maximize profits. In contrast, useful inspections generally displease customers. Customers are even more displeased if violations are recorded and actions are taken against them. It is in the interest of HSF to minimize such negative interactions with customers, rather than to run an effective biosecurity program. Therefore, a more effect system would use inspectors who are independent of HSF and who also have law enforcement authority. The Department of Land and Natural Resources (DLNR) has both the mission to protect the islands from invasive species becoming established and the police power to enforce state conservation laws. The task of conducting inspections might reasonably fall to DLNR, although they would probably require compensation in order to be involved.
Procedures that are in place to prevent the spread of pests on produce and agricultural products are unclear. Agricultural pests have the potential to cause major economic damage to crops. HSF employees are unlikely to detect these pests, including emerging pests (recent arrivals to the State), which are commonly found several times per year. The Department of Agriculture (DOA) has employees that have the expertise needed to spot pests on sight. Perhaps the DOA could administer this inspection.
Procedures for screening the interior of vehicles are not described. The interior of vehicles are likely to be a major mode of transport for the prohibited items outlined in Executive Order 07-10.
Agricultural Screening and Vehicle Inspection (p. 4-69)
Why are baggage inspections random? All passengers and baggage are inspected on airline flights and a maximum effort to intercept invasive plants and animals would require the inspection of all ferry baggage as well.
Archaeological and Historic Sites (p. 4-81)
On page 4-81 the DEIS states “No impact on archaeological and historic sites would occur from ferry related operations.” This may be true, but impacts on archeological and historic sites are likely to come from the passengers. These potential impacts as not discussed in the document.
Fiscal (pp. 4-93 – 4-95)
Numerous aspects of the State’s revenues and expenditures have been omitted from or misrepresented in the fiscal analysis in Section 4.2.6.2.3 and Appendix G. These extra expenses include: legislative operating costs; costs to operate the six month Oversight Task Force and the Rapid Risk Assessment; costs associated with the State auditor’s investigation and report; the Special Traffic Study (Kahului); as well as the additional cost (above $1.6 million) for the preparation of this DEIS. Other State expenditures include those associated with citizen’s court cases over the last four years, and the interest payments of approximately $2 million per year on the $40 million State issued general obligation reimbursable bonds (the ferry being asked to pay only the $40 million principal). Additionally, the DEIS fails to include the dollar amount of the land that the State purchased at Kahului Harbor (the Kahului Railroad location).
Many infrastructure expenditures are also omitted. These include costs associated with preparing Honolulu’s Pier 19 for future use; the new mooring system for Kahului Harbor; estimates of long-term costs pertaining to the maintenance of barges and harbor facilities; and the large potential costs of constructing a new ferry pier or docking facility on the West Breakwater at Kahului Harbor.
The State Revenue figures in Section 4.2.6.2.3 are derived from the more detailed estimates in Appendix G. On page G-56, footnotes 5, 6, and 7 are based on the ferry company’s “gross receipts”. Given the number of estimated passengers (p. 4-97) and vehicles (p. 4-98), $86 million seems to be a substantial overstatement.
A large portion of the expected net state revenues (supposedly $5 to $10 million per year) is derived from high visitor expenditures by ferry passengers. This is misleading since many of the passengers are residents who will be merely shifting their spending from one island to another, resulting in no increase in State revenues. As for mainland tourists who use the ferry, they would be using an airplane instead and would be spending roughly the same amounts on any island visited, again resulting in no increase in State revenues.
The fiscal impacts section needs to have a thorough discussion of the losses that the State would incur if no ferry uses the barges and the company does not make the expected repayments on the $40 million spent on harbor improvements.
Projected Impact of Ferry on Inter-Island Cargo, 2010 (p. 4-98)
Ignored in the revenue calculations is the loss of revenue due to ferry passengers taking their car instead of renting a vehicle? The State will lose $3 per day for each of the 3.8 days that the average passenger will spend on the other island. That is a loss to the State of $3*3.8 = $11.40 for each person who takes a vehicle instead of renting.
According to page 4-98, there will be about 206,000 vehicles shipped. At $11.40 per vehicle, that is $2.35 million dollars per year in lost rental-car State revenue. This is not an insignificant amount.
Harbor Uses, Including Recreational Users (pp. 4-100 – 4-106)
Given that State funds were provided for the harbor improvements, should any restrictions be placed upon their use by recreational users? Will the determination of potential recreational users be made on a case-by-case basis?
Table 5.11: State Revenues Associated with Ferry Operations (p. G-55)
Given that the ferry company cannot reach a “break-even” passenger load with its reduced fares, it cannot be assumed that the company will have a profit and that the State will receive any “Corporate Income Tax” payment as is assumed on page G-55.
Thank you for the opportunity to review this Draft EIS.
Sincerely,
Peter Rappa
Environmental Review Coordinator
cc: OEQC
Lesley Matsumoto, Belt Collins
Richard Mayer
et.al.
February 23, 2009
RE: 0786
Brennon Morioka, Director
State Department of Transportation
869 Punchbowl Street, Room 509
Honolulu, HI 96813
Dear Mr. Morioka:
Draft Environmental Impact Statement
Statewide Large-Capacity Inter-Island Ferry
Honolulu, Wailuku, Lihue, and South Kohala
The Statewide Large-Capacity Inter-Island Ferry Draft Environmental Impact Statement (DEIS) evaluates harbor improvements proposed by the State of Hawaii Department of Transportation (DOT) to support a large-capacity ferry vessel company. The harbors affected by these actions are Honolulu Harbor (City and County of Honolulu), Kahului Harbor (County of Maui), Nawiliwili Harbor (County of Kauai), and Kawaihae Harbor (County of Hawaii). Significant probable direct, indirect, and cumulative impacts are discussed in the DEIS. Direct impacts include displaced cultural activities and visual impacts to Pu`ukohola Heiau. Indirect impacts are defined as those occurring as a result of a large-capacity ferry vessel company’s operations and include impacts to traffic, traditional cultural practices and the loss of natural resources and activities. Significant cumulative impacts may include takes of Humpback whales, traffic in the vicinity of all four harbors, dispersal of invasive species, and impacts upon traditional cultural practices within Kahului Harbor.
This review was conducted with the assistance of Curt Daehler, UHM Botany; Richard Mayer, Maui Community College; Marshall Mock, Kauai Community College; and Ryan Riddle, Environmental Center.
General Comments
The use of the term “Statewide Large-Capacity Inter-Island Ferry” throughout the document is not necessary except we surmise for legal purposes. It should be noted however, that throughout the document the large-capacity inter-island ferry is identified as the Hawaii Superferry or HSF. We see little reason to distinguish between the large-capacity inter-island ferry and the Hawaii Superferry or HSF. It would make for easier reading if the authors could just call the HSF the HSF.
The examination of alternatives is incomplete. According to Act 2 of the Second Special Session of 2007, the environmental impact statement process shall include evaluating alternatives (Section 9(b)(5)) and that those alternatives include “alternative locations for the proposed project, as appropriate” (Section 10(a)(5)(E)). Only the four harbors where the HSF is currently operating in or plan to operate in the near future are considered in the DEIS while three other harbors, Barbers Point, Hilo and Port Allen that the HSF could conceivably use are ignored. Granted the ferry may not be planning to ever use those harbors but the DEIS should not be limited to destinations that the Department of Transportation has permitted the ferry to use. In an emergency, the HSF may have to divert to other ports to land its passengers safely. Future large-capacity inter-island ferry companies may wish to use other commercial harbors in the State and the DOT should be obligated to review the use of these alternate locations.
In addition to our general comments we also have several specific comments.
Information to be Incorporated by Reference – Rapid Risk Assessment (p. 1-4)
Since the ferry’s inception, how often have the ferry’s services been cancelled due to high seas and maintenance? What are the maximum wave conditions that the vessel can operate under?
Comprehensive List of Potential Resources and Issues (pp. 1-7 – 1-15)
We disagree with the contention on page 1-8 that the impacts to surface water quality are not potentially significant. In the event of a catastrophic accident to the HSF, it may in fact leak a substantial amount of fuel. A spill of more than 10,000 gallons of fuel is considered a medium sized oil-spill that could have significant impacts on the water quality in the vicinity of the spill. The potential of a spill and the response to the spill should be discussed in the DEIS.
In regards to sidewalks (mentioned on page. 1-9), a listed concern is the lack of sidewalks at Kawaihae Harbor. The DEIS states that foot traffic from large-capacity ferry vessel passengers outside of the ferry terminal area is expected to be minimal. How many passengers does the DOT estimate will be pedestrians on the ferry and at what point will passenger levels warrant the construction of sidewalks?
The DEIS mentions on page 1-9 that underground utility corridors are being considered for new Kawaihae Harbor projects to reduce visual impacts to the national park and viewshed. While this issue is indeed a management issue for all of Kawaihae Harbor, we would like to see a more in-depth discussion on the scope of the electrical infrastructure needed for upcoming Kawaihae Harbor projects. Is the ferry’s landing at Kawaihae Harbor the catalyst for undergrounding the utilities there?
Kahului Harbor (p. 2-8)
The DEIS states that the barge and ramp system for Kahului is similar to that illustrated (Figure 2-5) for Honolulu. In what ways does it differ?
Action Alternative (pp. 2-8 – 2-12)
On pages 2-8 through 2-12 harbor improvements for each of the four harbors are described. While these improvements are discussed in detail, it is difficult to discern which of the actions are underway or finished and which will be initiated in the near future. Perhaps, a chart in this section would be helpful in distinguishing the sequence of each of the projects listed.
Ferry Routes (p. 2-12)
The DEIS states that Kauai service is expected to be operated as the afternoon/evening roundtrip voyage on alternate days with the second Honolulu and Kahului round trip voyage as listed in Table 2-2. The times for the service to Kauai are not listed in Table 2-2. Is there an estimate of the departure times for the Honolulu-Nawiliwili service once it is reinstated?
In regards to weekly frequency, the DEIS reads, “When both vessels are operating, round trip voyages between Oahu and Maui, Kauai, and Hawaii Island are planned on a schedule frequency ranging from 3 days per week to daily plus four additional voyages per week.” These estimations vary greatly – what factors would influence these decisions?
Ferry Vessel (p. 2-14)
In regard to bilge water the DEIS states, “any water that could be contaminated with petroleum products is contained within its own disposal system and is designed to flow into a 500-liter holding tank to be emptied periodically in Honolulu by a commercial vendor.” How often does HSF or DOT estimate the holding tank will be emptied? The size of the holding tank is approximately 132 gallons - is that large enough to hold bilge water spills?
Potable Water System (p. 2-15)
In Section 2.1.5.3 the DEIS states “Each HSF vessel has on board a 2,000 gallon potable water tank, refilled daily through a shore-side connection located at the pier.” On average, how many gallons of potable water are consumed per voyage?
Table 3-8: Distribution Status of Invasive Terrestrial and Freshwater Species of Concern by Island (p. 3-29)
With the exception of Bush beardgrass (Schizachyrium condensatum) all of the invasive species of concern mentioned have not established themselves on Kauai. As a result, perhaps procedures should be more stringent on Kauai in order to prevent establishment of these species of concern.
Cultures Resources (pp. 3-32-3-33)
In the fourth paragraph in the section on cultural resources, the Office of Environmental Quality Control (OEQC) is erroneously identified as being part of the Department of Health (DOH). The OEQC is advisory to the Governor and placed in the DOH for administrative purposes.
Population and Housing (p. 3-54)
In Section 3.6.1 the DEIS states, “Residents of neighbor islands often speak of Honolulu as a busy metropolis and contrast life on Oahu to their more rural lifestyle. While they can point to Honolulu’s population density and congested highways as an example to be avoided in local planning, the image of Hawaii as a single city and a rural hinterland on all other islands is misleading.” Did you mean “the image of Oahu as a single city . . .”?
Potential Impacts and Mitigation (pp. 4-1 – 4-129)
To what extent do current and proposed harbor improvements accommodate global sea-level rise predictions? While this is an issue primarily for the harbors’ long-range plans, this issue merits serious consideration in the DEIS.
Invasive Species (pp. 4-62 – 4-71)
On page 4-62 the DEIS states, “Large-capacity ferry operations would add to the existing risk of inter-island transport of invasive species.” This statement is entirely accurate. Unfortunately, these risks are difficult to quantify. Of primary concern is that this mode of inter-island transport - passengers with their vehicles - provides new opportunities for deliberate or inadvertent transport of invasive species. As might be expected in such a case, policies more stringent than those used for other modes of transport have been put into place by HSF. In principle, the guidelines set out in Executive Order 07-10 provide a reasonable strategy for minimizing risk.
In the current arrangement employees of HSF mainly carry out inspections. This arrangement creates a conflict of interest. In order to remain a viable business, HSF must strive to please its customers and maximize profits. In contrast, useful inspections generally displease customers. Customers are even more displeased if violations are recorded and actions are taken against them. It is in the interest of HSF to minimize such negative interactions with customers, rather than to run an effective biosecurity program. Therefore, a more effect system would use inspectors who are independent of HSF and who also have law enforcement authority. The Department of Land and Natural Resources (DLNR) has both the mission to protect the islands from invasive species becoming established and the police power to enforce state conservation laws. The task of conducting inspections might reasonably fall to DLNR, although they would probably require compensation in order to be involved.
Procedures that are in place to prevent the spread of pests on produce and agricultural products are unclear. Agricultural pests have the potential to cause major economic damage to crops. HSF employees are unlikely to detect these pests, including emerging pests (recent arrivals to the State), which are commonly found several times per year. The Department of Agriculture (DOA) has employees that have the expertise needed to spot pests on sight. Perhaps the DOA could administer this inspection.
Procedures for screening the interior of vehicles are not described. The interior of vehicles are likely to be a major mode of transport for the prohibited items outlined in Executive Order 07-10.
Agricultural Screening and Vehicle Inspection (p. 4-69)
Why are baggage inspections random? All passengers and baggage are inspected on airline flights and a maximum effort to intercept invasive plants and animals would require the inspection of all ferry baggage as well.
Archaeological and Historic Sites (p. 4-81)
On page 4-81 the DEIS states “No impact on archaeological and historic sites would occur from ferry related operations.” This may be true, but impacts on archeological and historic sites are likely to come from the passengers. These potential impacts as not discussed in the document.
Fiscal (pp. 4-93 – 4-95)
Numerous aspects of the State’s revenues and expenditures have been omitted from or misrepresented in the fiscal analysis in Section 4.2.6.2.3 and Appendix G. These extra expenses include: legislative operating costs; costs to operate the six month Oversight Task Force and the Rapid Risk Assessment; costs associated with the State auditor’s investigation and report; the Special Traffic Study (Kahului); as well as the additional cost (above $1.6 million) for the preparation of this DEIS. Other State expenditures include those associated with citizen’s court cases over the last four years, and the interest payments of approximately $2 million per year on the $40 million State issued general obligation reimbursable bonds (the ferry being asked to pay only the $40 million principal). Additionally, the DEIS fails to include the dollar amount of the land that the State purchased at Kahului Harbor (the Kahului Railroad location).
Many infrastructure expenditures are also omitted. These include costs associated with preparing Honolulu’s Pier 19 for future use; the new mooring system for Kahului Harbor; estimates of long-term costs pertaining to the maintenance of barges and harbor facilities; and the large potential costs of constructing a new ferry pier or docking facility on the West Breakwater at Kahului Harbor.
The State Revenue figures in Section 4.2.6.2.3 are derived from the more detailed estimates in Appendix G. On page G-56, footnotes 5, 6, and 7 are based on the ferry company’s “gross receipts”. Given the number of estimated passengers (p. 4-97) and vehicles (p. 4-98), $86 million seems to be a substantial overstatement.
A large portion of the expected net state revenues (supposedly $5 to $10 million per year) is derived from high visitor expenditures by ferry passengers. This is misleading since many of the passengers are residents who will be merely shifting their spending from one island to another, resulting in no increase in State revenues. As for mainland tourists who use the ferry, they would be using an airplane instead and would be spending roughly the same amounts on any island visited, again resulting in no increase in State revenues.
The fiscal impacts section needs to have a thorough discussion of the losses that the State would incur if no ferry uses the barges and the company does not make the expected repayments on the $40 million spent on harbor improvements.
Projected Impact of Ferry on Inter-Island Cargo, 2010 (p. 4-98)
Ignored in the revenue calculations is the loss of revenue due to ferry passengers taking their car instead of renting a vehicle? The State will lose $3 per day for each of the 3.8 days that the average passenger will spend on the other island. That is a loss to the State of $3*3.8 = $11.40 for each person who takes a vehicle instead of renting.
According to page 4-98, there will be about 206,000 vehicles shipped. At $11.40 per vehicle, that is $2.35 million dollars per year in lost rental-car State revenue. This is not an insignificant amount.
Harbor Uses, Including Recreational Users (pp. 4-100 – 4-106)
Given that State funds were provided for the harbor improvements, should any restrictions be placed upon their use by recreational users? Will the determination of potential recreational users be made on a case-by-case basis?
Table 5.11: State Revenues Associated with Ferry Operations (p. G-55)
Given that the ferry company cannot reach a “break-even” passenger load with its reduced fares, it cannot be assumed that the company will have a profit and that the State will receive any “Corporate Income Tax” payment as is assumed on page G-55.
Thank you for the opportunity to review this Draft EIS.
Sincerely,
Peter Rappa
Environmental Review Coordinator
cc: OEQC
Lesley Matsumoto, Belt Collins
Richard Mayer
et.al.
Jeffrey Parker's comments on the Act 2 Pseudo-'EIS'
The following are Jeffrey Parker's comments of the Kahului Harbor Coalition on the Act 2 Pseudo-'EIS':
Kahului Harbor Coalition
P.O. Box 170
Haiku, HI
96708
2-20-09
To: Ms. Katherine P. Kealoha, Director
Office of Environmental Quality Control
235 South Beretania Street, Suite 702
Honolulu, HI 96813-2419
Fax: 808 586-4186
Cc: Mr. Michael D. Formby, Deputy Director – Harbors
State Dept. of Transportation
79 South Nimitz Highway
Honolulu, HI 96813-4898
Fax: 808 587-3652
From: Jeffrey Parker
Director, Kahului Harbor Coalition
P.O. Box 170
Haiku. HI 96708
Subject: Comments on the Act 2 Pseudo-DEIS
Dear Ms. Kealoha and Mr. Formby,
As you know, our organization believes that the Act 2 is unconstitutional, and its pseudo-EIS does not protect the public trust, and falls far short of a real Chapter 343 EIS under HEPA. Our comments in this letter are made without prejudice to our claim that Act 2 is unconstitutional and that a new EIS compliant with Chapter 343 still must be prepared. The Kahului Harbor Coalition opposes acceptance of this fake EIS.
I. The Act 2 EIS does not comply with HEPA, does not accomplish the recognized purposes of environmental review, and weakens environmental protection in Hawaii.
Our initial comments and the initial comments of other organizations pointed out the many failings of Act 2 and its pseudo-EIS. Both Masako Cordray of KHC and Irene Bowie of Maui Tomorrow told Belt Collins representatives that the EIS would lack legitimacy and would fail to protect the public interest, at a consultation held on March 18 2008. Many others, including myself, made the same points in recorded statements made at the public consultation on March 17, 2008. Yet, nowhere in the DEIS can these comments be found. If unwilling to take this primary issue on, the preparers of the DEIS should have at least included our entire comments and not just a “summary” of our comments. According to the OEQC, the Draft will include “Reproductions of substantive comments received from the consulted parties and the responses to said comments made during the consultation process.” Apparently this was not done. (It is interesting to note that in the summary of the comments of the Maui County Corporation Counsel “challenge constitutionality of Act 2” IS listed as a concern, although the DEIS makes no attempt to answer that concern either.) Future researchers will not be able to know that many people were questioning the very legitimacy of this EIS project from the outset.
a. “No Action Alternative” is meaningless.
The strong foundation upon which Chapter 343 and HEPA are built is non-implementation. The whole point of the environmental review process is to prepare environmental disclosure studies to alert decision-makers to the impacts of a proposed action prior to the implementation of that action. Chapter 343 prohibits the implementation of the project while the environmental studies are being prepared, HRS § 343-5(b),(c). In this pseudo Act 2 DEIS, the action is already implemented, therefore there can be no objective analysis of the No Action Alternative, i.e., what will be the result of not building a large-capacity inters island ferry system. The environmental review process required by HEPA involves among other things, incorporating environmental review “at the earliest practicable time” and a prohibition against implementing the project until the environmental review process has been completed. HAR 11-200-1.
b. Act 2 EIS attempts to restrict challenges.
The Legislature tries to restrict challenges to the acceptance of the bogus EIS by not setting out procedures for challenges such as the 125 day provision for challenges in Chapter 343. Act 2 does not discuss the public’s right to challenge the adequacy of the “EIS”, depriving the public of their ability to assure compliance with the “mandates” of Act 2. In normal environmental review, members of the public have vested rights to the judicial review of the adequacy of any EIS. It is this right to judicial review that assures the integrity of the environmental process. Because Superferry is permitted to operate during the preparation of the “EIS”, all of the procedural harms, including the likely tolerance of actual environmental harm, will occur. If the public cannot challenge the findings of a State environmental document, the outcome is a document which might protect vested interests, cronyism, and at its worst might serve to conceal political corruption. The Legislature and the Governor tried to prevent the possibility of injunctive relief, causing further damage to Hawaii’s environmental law. OEQC cannot possibly join in this charade. This bogus “EIS” must not be accepted.
c. Mitigation Measures in Act 2 EIS are meaningless.
Through Act 2 the Legislature imposes “mitigation” measures in an arbitrary and capricious fashion without the benefit of the EA or EIS whose purpose it is to fashion mitigation measures before a project is implemented. In the DEIS, much of the proposed “mitigation” is simply a recitation of the Governor’s Executive Order (EO). The “mitigation” in the EO was arrived at in some fashion other than the careful and painstaking manner in which mitigation measures are proposed in a real EIS. Because the Superferry is allowed to go ahead and operate, there is no incentive for the DOT or HSF to actually implement any mitigation measures. In a real EIS, with non-implementation and the possibility of injunctive relief, agencies and the developer have real incentive to come up with meaningful mitigation. We can not find any legal requirement in Act 2 for mitigation to actually be implemented. The current situation is further exacerbated by the ongoing economic crises. Even if additional mitigation is identified in this ACT 2 “EIS”, where would the funds for implementation come from?
d. Performance Audit of Act 2 is omitted
The Audit states:
“We also found that the legislation on behalf of the Hawaii Superferry compromised the State’s environmental laws and set a worrisome precedent for future government accommodation that puts the interest of a single business before the State’s environmental, fiduciary, and public safety responsibilities.”
Why are the Performance Audit and its conclusions not incorporated in the “DEIS”? DOT and Belt Collins have failed to take the “hard look” required by Hawaii environmental law.
e. Evidence and expert opinions obtained during 4-week long evidentiary hearing in 2nd Circuit Court on Maui are omitted.
The information obtained during this intense legal proceeding offer the best insight into the risks posed by the Hawaii Superferry if allowed to operate without a valid EIS. Yet, DOT and Belt Collins chose to not utilize this wealth of information. Yet more proof that DOT and Belt Collins failed to take the “hard look” required by Hawaii environmental law. Once again, where is the “hard look”?
II. Consulting Parties Section of DEIS raises questions
Why were the letters of some commenters published in their entirety and others were not? Since it is all done electronically and by the use of pdf files, all of the comment letters could have easily been included in their entirety. What is the process by which organizations were labeled “consulting parties”? What is the purpose of labeling respondents as “consulting parties” when the consulting parties provision of Chapter 343 was deleted by Act 2? One can only conclude that the consulting party designations in this pseudo-EIS are meaningless.
III. PDF format of “DEIS” is cumbersome and difficult to use, making the job of concerned parties reviewing the document unnecessarily difficult.
While we applaud the distribution of the DEIS by compact disk, the pdf format is maddening to use. Cannot perform keyword searches and we cannot copy and paste the DEIS conclusions into our response letters. Most of us commenting are ordinary working people not on salary to review this DEIS. One cannot help but wonder if the format was chosen specifically to make our job more difficult and time-consuming.
IV. Increased risk of alien species transport
The public record is full of rational testimony concerning the increased risk of alien species transport by the Hawaii Superferry (LCIF). Yet neither the DEIS or the “Biological Assessment” makes use of this information. The concern of increased introductions of alien and invasive species through the Harbor was one of the chief reasons the Kahului Harbor Coalition was formed. From the very beginning of the Superferry issue, we have participated at every opportunity for public participation. The very first opportunity to comment was the PUC Hearing regarding the CPCN Permit for the Hawaii Superferry held at Kahului Maui in November of 2004. At that Hearing I said
“The Ferry System will ratchet up the whole alien species issue to dangerous new levels (because now, any new pest species which is established on any island may rapidly be spread to the other islands - but equally important is that the cars, pickup trucks, and vans will potentially travel on every back road, possibly dropping off seeds and eggs wherever they go. Rapid and efficient dispersal to every remote corner of every island is the issue.”
After explaining how HEPA was triggered by 4 different “triggers”, I asked that an EA be required by the PUC, a completely reasonable request since they have the power to require an EA and have done so in other projects in the past.
“This PUC Commission has required environmental review in the past, notably in the East Oahu Transmission Project. The purpose of environmental review is to help you, the decision makers, make a more informed decision. And if there ever were a case for you to require an EA, this is the one.”
The PUC declined to require the EA, despite what they said was “compelling testimony”. (50 out of 51 testifiers asked for an EA or EIS). Later we learned that the Chairman of the PUC, Caldito Calaboso, many months prior to this hearing on Maui, had actually gone to the Legislature and advocated for fast-tracking of the Superferry project. Apparently, the decision to avoid the normal environmental review had already been made.
Representing the Kahului Harbor Coalition, I gave testimony, all of which revolved around the increased alien species risk and the need for environmental analysis that complies with Chapter 343, at these venues:
1. 11-17-2004 - Testimony to the Public Utilities Commission Regarding the Application for a CPCN for Hawaii Superferry, Inc.
2. 2-28-2005 - Senate Bill 1785 Relating to the Superferry - Environmental Impact Statement
3. 3-11-2005 - Maui County Council Resolution Requesting EIS. Here a point I made was:
“Interestingly, the voluminous Superferry PUC Application did not contain a single comment letter from the Dept. of Agriculture, the agency charged with preventing the movement of alien species from island to island.”
4. 3-17-2005 - Testimony to the Humpback Whale Sanctuary Advisory Commission (SAC)
5. 9-05-2004 – Written Comments on the Draft Environmental Assessment for the Kahului Harbor Improvements (with emphasis on the Superferry Proposal)
6. 1-30-07 – Support for HB702, Superferry EIS Bill.
7. 2-27-07 – Support for SB1276, Superferry EIS Bill. Here I said:
“The Hawaii Superferry has the potential to bring rapid changes to each island. And because large amounts of Federal and State money are involved, and because State land is involved, we are entitled to a full Environmental Impact Statement.
As a full-time farmer, I spend much of my time battling new agricultural pest species. There are several devastating pests present in Hawaii which exist on a single island and not on other islands. Examples are the Stinging Nettle Caterpillar on the Big Island, and the Tiny Fire Ant, also on the Big Island. Likewise, there is a new papaya mealy bug which exists only on Maui, and only Oahu has the Glassy-winged Sharpshooter, an insect which, in other parts of the world, transmits a disease that weakens or kills many species of plants and trees.
Agricultural officials in California speak enviously of the protection our deep ocean channels provide each of Hawaii’s counties and islands – as they themselves struggle to stop the spread of newly-introduced dangerous pests over California county lines.
The Superferry may likely ruin our natural barrier to the rapid spread of alien pests throughout our state – unless an E.I.S. proposes meaningful mitigation. The magnitude of this risk must be assessed, and mitigation measures must be proposed BEFORE the Superferry can begin operations. An Environmental Impact Statement and a Risk Assessment will do exactly that.
As the operator of a State-Certified Nursery, I am in frequent contact with DOA Ag Inspectors and officials. Everyone I’ve spoken with agrees that the unmitigated Superferry operation will increase the transfer of pests from island to island, and all share my belief that the “self-inspections” being proposed by the Superferry management will likely not be adequate to minimize these risks.
In addition to our BN/RN Nursery Certification, our nursery is under a “Coqui Frog-Free Certification.” We have been warned that if the Frog shows up on our property, a quarantine will be put in place and we will be banned from shipping our products out of State. This would quickly put us out of business. Each automobile traveling on the Superferry may potentially carry the Frogs or eggs – and these vehicles may quickly transport the eggs to every remote corner of every island. It has already been proven that Coqui eggs can be transported in mud underneath automobiles
There are thousands of workers in Hawaii whose livelihoods depend on agriculture – nursery workers, vegetable and fruit and flower growers, landscapers, horticultural supply houses and farm equipment suppliers. Their jobs could be at risk if the Superferry is allowed to go into operation without an E.I.S. and resulting mitigation measures.”
7. 3-30-06 – Panelist for Superferry Forum sponsored by Pacific Whale Foundation. One of my points here was:
“Any informal cooperation to date between the state Department of Agriculture and Hawaii Superferry regarding inspections and alien species introductions is no substitute, as a matter of fact or law, for an EIS prepared pursuant to Hawaii Environmental Policy Act."
We have also attended all Maui meetings of the Superferry Task Force (OTF) and presented testimony
I have also written to, or discussed the need for an EIS by telephone with:
(Partial list)
Sen. J. Kalani English
Sen. Brian Kanno
Sen. Lorraine Inouye
Representative Hermina Morita
Maui County Councilwoman Michelle Anderson
Maui County Councilwoman Charmaine Tavares
Maui County Environmental Coordinator Rob Parsons
Haleakala National Park Supervisor Don Reeser
The Maui Invasive Species Committee (MISC)
The Maui News
V. Alien Species issue in Act 2 DEIS
1. Firstly, the EIS should point out that the current level of inspections of the SF is the direct result of citizen action.
Whatever precautions are in place to help prevent the inter-island spread of invasive alien species on the Superferry exist solely as a result of tireless advocacy of citizen groups such as the Kahului Harbor Coalition, Maui Tomorrow, Sierra Club, the Maui Invasive Species Committee, Friends of Haleakala National Park and other concerned citizens. Hawaii Superferry and HDOA initially did not even acknowledge the need for mitigation.
So it is somewhat gratifying now to see that Dr. Howarth in the Alien Species Biological Assessment agrees with what KHC and others have been saying all along:
“Operation of the LCIF provides significant new pathways for the inter-island transport of invasive species by facilitating efficient rapid high-volume transportation of passengers, their cars, and personal effects.”
“The ability to drive contaminated vehicles and material directly from infested habitats on one island to the LCF and within a few hours drive directly to similar un-invaded habitats on another island poses a special risk.”
“By making interisland transport of plant material quicker and more convenient, the LCIF will significantly add to the risk of moving plant pests inter-island.”
“Smuggling, or the illegal transporting of alien species inter-island, is a special concern, since the convenience, speed of transport, and volume and type of cargo, may facilitate the illegal transport of alien species”
“Such a service (LCIF) adds to the existing risk of movement of harmful invasive species to new islands. Currently, airlines move passengers and cargo and inter-island barge service carries a high volume of commodities and personal effects between the same and additional islands. However, the high transportation costs, security checks, and for barge service, delays limit the type of material shipped between the islands. The LCIF fills a niche in providing more convenient inter-island to individuals and families wishing to travel with their vehicles and personal effects. It is also anticipated that the LCIF will encourage greater volume of diversified agricultural production, resulting in a greater volume of fresh, unprocessed produce that will be shipped inter-island, especially from the outer islands to markets on Oahu. IT is anticipated that fresh produce might suffer less damage from heat during transit (relative to existing barge and airline modes of transportation), which would result in greater chances for survival of any hitchhiking pest species. In addition, military use of the LCIF has not been ruled out for movement of personnel and training equipment between islands. The principle changes in transport involve the higher volume and more rapid movement of personal vehicles, household goods, and agricultural products. As described in the next section, this increase in the flow of certain materials significantly increases the risk of movement and establishment of alien species on new islands.”
2. Draft EIS Section 4.3.2 “However, cumulative risks of invasive species introduction and dispersal would be mitigated by implementation of the DOA’s Biosecurity Program, including planned transitional inspection facilities located at the harbors.” DOT refuses to take responsibility for the impacts that result from its projects and instead passes the buck to HDOA. HDOA will now say that funds are lacking for these facilities.
3. HDOA has known that State-of-the-art Invasive Species Interdiction Facilities are needed at the harbors since at least 1998. Why are these facilities not completed and in use today? The cost of these facilities is estimated at between $2 million and $3 million each.
a. The Biological Opinion issued for the Kahului Airport Expansion by the US Fish and Wildlife Service identifies Kahului Harbor as the second main portal (or pathway) for the entry of invasive species into Maui. (The first being Kahului Airport) One of the outcomes of the Kahului Airport case was that we now have a State-of-the-art Invasive Species Interdiction Facility – not only a model for the State but a model for the entire country. Since HDOA learned that the Harbor is the number 2 pathway for the entry of invasive pests, HDOA also realized the need for a similar facility at the Harbor.
b. The recommendations in the Alien Species Biological Assessment (Howarth, et al) concur: “Collaborate with HDOA and HDOT to improve quarantine protocols and develop improved quarantine facilities at each harbor in accordance with State laws and rules” However, no hint is given as to how this collaboration will be facilitated, or how these improvements might be funded, etc.
4. DOT monies may be used to fund increased alien species efforts at the Harbor
One of the outcomes of the Kahului Airport controversy and settlements was that DOT CAN use Airport Special Funds to build Alien Species Interdiction Facility and hire additional Inspectors and Dog Teams for the Airport. This sets a precedent whereby DOT may indeed fund the Interdiction Facility and additional inspectors and dog teams for the Harbor. This is only fair, since it is the projects backed by DOT, such as the Hawaii Superferry, that will exacerbate the problem (of increased alien species introductions through the Harbor).
5. Instead, DOT squandered $40 million on unnecessary barges
In 2006 and 2007, KHC spent a lot of time on the shipbuilder Austal’s
website – looking over the specifications of virtually every large capacity ferry they had built. We were struck by the fact that most of these vessels were constructed with telescoping variable-height stern ramps for the unloading of vehicles. And because of the contract the State had put out for the construction of the barges, and other research we did, we learned that the Alakai was being built without the stern ramps.
At a public meeting on Feb. 21, 2007, SF’s Terry O’halloran refused to answer why the Alakai did not have the stern ramps that most other Austal ferries have. CEO Garibaldi was also present and could have answered.
Now we learn from the audit conducted by State Auditor Marion Higa, which was required by Act 2, that Staff in the department's harbors division had thought before the meeting between Bob Awana and Superferry executives that the department's recommendations were to require a statewide environmental assessment of the project and to get Superferry to install a quarter stern ramp on the vessel to give it more flexibility at Kahului Harbor on Maui.
But Superferry executives, according to an account by a department staffer, told the state that anything but an exemption was a deal-breaker and that they would not be installing any ramps. The department staffer explained what happened to her colleagues in an e-mail following the afternoon meeting at the governor's offices: "Decisions made: We need to pursue EIS EXEMPTION; and HSF will NOT provide any ramps on vessel." E-mail between department staff, obtained by The Advertiser through the state's open-records law, shows that staff believed a significant decision had been made at that meeting with Superferry executives and Awana.
Staff in the department's harbors division had thought before the meeting that the department's recommendations were to require a statewide environmental assessment of the project and to get Superferry to install a quarter stern ramp on the vessel to give it more flexibility at Kahului Harbor on Maui. But Superferry executives, according to an account by a department staffer, told the state that anything but an exemption was a deal-breaker and that they would not be installing any ramps. The department staffer explained what happened to her colleagues in an e-mail following the afternoon meeting at the governor's offices: "Decisions made: We need to pursue EXEMPTION; and HSF will not provide any ramps on vessel."
And finally from the State Auditor Report: “We found that with the impending arrival of Hawai'i Superferry, Inc., the Department of Transportation (DOT) in 2004 and 2005 reversed a long-standing policy of not providing additional pier-side equipment for harbor users. State officials ignored the recommendations of their technical staff, setting off a chain of events that culminated in the selection of inadequate harbor improvement systems. Moreover, the DOT’s passive approach to the issue of addressing secondary or cumulative
effects was made possible by a combination of flawed or unclear EIS laws and rules.”
The public has the right to know, why did the SF refuse to install the ramps and why did the State cave in so quickly. It is our $40 million that was unnecessarily spent. All this should be covered in the Act 2 EIS. The public has a right to know.
6. A proper and lawful EIS would have publicized the need for Interdiction Facilities and increased harbor inspections prior to implementation of the project.
Irreparable harm is likely occurring at this very moment, because project is allowed to run without mitigation in place. There is now no incentive for a reluctant HDOA and HDOT to move quickly on the Interdiction Facilities or any additional mitigation such as increased personnel and dogs at the harbors. This is a prime example of why HEPA and Chapter 343 provide such good environmental protection for the public, and an after-the-fact “EIS” like the Act 2 “EIS” does not.
7. Non-expert administrators of HDOA are in conflict with experts.
Non-expert administrators of Hawaii Department of Agriculture hold a conviction, and are on the record all over the place, that “if a pest species gets to one island, then it is inevitable that it will get to all the islands.” This conviction is in conflict with your very own experts (i.e. Dr. Howarth) and virtually every commenter on Alien Species in the DEIS. If it is “inevitable” that pest species will get to all other islands, why does Dr. Howarth go to great links to study and elucidate the transport of alien invasive species and make several recommendations to prevent the spread of alien species inter-island? If it is “inevitable” that pest species will get to all other islands, why do the Field Supervisor of the U.S. Fish and Wildlife Service, the Superintendent of Volcanoes National Park, the Pacific Area Director of the National Park Service, the Kauai Invasive Species Committee, the Oahu Invasive Species Committee, the Maui Invasive Species Committee, the Project Leader of the USGS Pacific Island Research Center, all elucidate the unique threat posed by the LCIF operation and offer many recommendations to prevent the spread of alien species inter-island?
The DEIS should include a section discussing how the non-expert administrators of HDOA position on the transport of invasive species is at conflict with virtually every expert in the field.
8. Section 7 consultation pursuant to the Endangered Species Act should occur for all threatened and endangered species which may be affected by the proposal.
Alien invasive species may harm threatened and endangered species within Hawaii’s national parks and elsewhere. The Superintendent of Volcanoes National Parks, and many others, have requested a Section 7 Consultation. Conspicuously missing from the pseudo-EIS is a discussion of the Section 7 Consultation process. DOT and Hawaii Superferry have gone out of their way to NOT consult with Federal agencies. Moreover, Act 2 attempts to prevent Federal/State cooperation, by bringing the review process to an early artificial end, and prohibiting Supplementation.
9. Offers of assistance to manage the alien species problem are apparently ignored.
The field supervisor of the United States Fish and Wildlife Service in Honolulu wrote to Belt Collins and said “The Service considers the spread of non-native invasive species to be a major threat to threatened and endangered species and other trust resources because of their potential to become established and alter the existing terrestrial or aquatic ecosystem.” “A more significant vector for spread of invasive species that should be addressed in the DEIS is the Hawaii Superferry.” “Management actions to prevent and control the introduction and spread of invasive species, need to be incorporated in your proposed action. These management activities should emphasize reducing the risk associated with pathways (e.g. construction equipment, personal protective equipment, delivery services, foot traffic, vehicles/vessels, shipping materials, and the transport of plant materials. We can assist you in providing procedures for disinfection, pest-free storage, monitoring methods, evaluation techniques, and general guidelines for structural integrated pest management.”
Did Belt Collins, DOT, or the preparers of the “Biological Assessment” seek assistance from USFW?
10. Belt Collins and DOT ignore important information presented at OTF meetings.
While the number of dangerous new pests that might be transported on the Superferry is large (Coqui Frogs, Stinging Nettle Caterpillar, Light Brown Apple Moth, Orchid Midge, Varroa Mite, Aquarium Snail, etc.), none is more terrifying than the Tiny Fire Ant (Wasmannia auropunctata). This ant is already established on the Big Island and a population has been found on Kauai. The Tiny Fire Ant, if allowed to spread, will destroy agriculture in Hawaii and will likely alter the quality of life for every resident and visitor.
Representatives of Belt Collins and HDOA were present at the Maui Superferry OTF meeting held in August of 2008, when farmer Masako Cordray Westcott made the following presentation:
“We now need to look at the danger posed by the Little Fire Ant (Wasmannia auropunctata). This tiny ant, native to central and south America is now established in west Africa, Florida and many places in the Pacific including Tuvalu, Vanuatu, New Caledonia, Papua, Solomon Islands, Cook Islands, Tahiti, Galapagos and now Hawai’i. Its spectacular success – developing quickly into massive colonies and displacing native species – is so striking it has been termed by biologists the Pan Pacific explosion.
First found in Puna in 1999, it has spread to Mt View, Kalapana, Hilo and Hamakua. There are now more than 50 infestations covering several hundred acres on Hawaii island as well as populations on Kaua’i at Kalihiwai and Kilauea.
The Little Fire Ant (LFA) is a voracious omnivore and nests both on the ground and in trees. Its painful bite leaves welts that last for days and in rare cases causes anaphylactic shock. Its bite has caused permanent blindness in cats, dogs and cattle. In Africa it has blinded lions and elephants. In the Galapagos, adult tortoises have been blinded and fledglings killed. In Hawaii, nene chicks have been killed by the LFA. People are being bitten in their homes in Hilo. In New Caledonia there are places where people will not put babies down on the ground. In Papua entire villages have been abandoned because infestations were so severe. In Brazil there are extremely high densities in sugar cane plantations. There are forest areas in the Solomons where people cannot walk because the ants rain down on them.
This habit of dropping from trees when disturbed is one of the horrors of farming in LFA infested areas. Coffee industries were destroyed in the Galapagos and New Caledonia where it was a major part of the economy. It was impossible to get people to pick the coffee because of the biting ants. Clearly Hawaii’s coffee industry is in jeopardy. Already in Hamakua, two fruit farms have shut down because of the LFA.
Geneticists have established that the original colony in Puna in 1999 consisted of one queen and one male. Only nine years later the population is massive and its range is extensive. This highlights how easily the LFA can be moved between the islands and new colonies inadvertently established. We must be alert to plants and soil but must also consider the vehicle itself and almost anything put into it. The list of possibilities is long.
I am here today to ask you to pass a recommendation establishing a study group of quarantine and invasive species experts that would include HDOA and Invasive Species committee representatives from each county and LFA researchers and experts like Glenn Taniguchi, Tommy Thompson and Pat Conant. This group will establish protocols for the HSF to prevent the movement of the LFA between the islands. These protocols must be in place before the commencement of service to Hawai’i Island or Kaua’i. Additionally, this study group will establish a rapid response team responsible for the eradication of incipient populations.
By coincidence today in Honolulu, the USDA, HDOA and various invasive species agencies are conducting a simulation of a Red Imported Fire Ant infestation to develop protocols for a rapid response. These very people and this experience should be involved in developing the procedures I am calling for.
The LFA is the catastrophic introduction we all feared. We are facing a crisis of extinction, economic disaster and a transformation of our way of life.
HSF is certainly not the only way for the LFA to move between the islands. But an honest evaluation will acknowledge that HSF increases and accelerates the risks.”
Ms. Westcott was contacted by officials of HDOA and told that they would indeed be acting on her recommendations. Yet, not a word of this most important aspect of the alien species impacts of the Superferry was mentioned in the “DEIS” (Once again, Belt Collins was aware of all of this). And not a subsequent word has been heard from HDOA about the formation of the “study group” requested by Ms. Westcott. The “DEIS” should have included an in-depth analysis of the Tiny Fire Ant threat, Ms. Westcott’s testimony, and a response from HDOA with proposed mitigation. If the Superferry had been prevented from operating until a lawful EIS was completed, there would have been incentive for fast action by HDOT,HDOA and Hawaii Superferry to set up the Tiny Fire Ant Study Group. Description of Tiny Fire Ant threat in 4.2.2.5 of the “DEIS” is woefully inadequate.
11. The description of the Coqui Frog threat in 4.2.2.5 omits main relative point.
This paragraph neglects to mention that it has already been proven that Coqui Frogs and their eggs can be transported on the undercarriages of automobiles.
12. Cleaning apparatus at terminal facilities.
In initial comments and in public comments at the many meetings held throughout the State over the past 4 years, the need for an undercarriage pressure wash system at terminal facilities was pointed out repeatedly. Maui Invasive Species Committee, Oahu Invasive Species Committee, Kauai Invasive Species Committee, US Fish and Wildlife Service, the National Park Service all recommended versions of this idea. Yet in Section 4.2.2.5. the “DEIS” says “While an undercarriage pressure wash system, a vacuum cleaner, and a pressure wash hose at each terminal facility may improve cleaning procedures, they are not recommended because of constraints on space and water, the management of environmental concerns at the harbors, and the implications it would represent on other operators. Additional studies would be needed to recommend these cleaning procedures…..”
Firstly, if a proper EIS with non-implementation had been done, it would have been easy to include, and there would have been incentive to include, these wash facilities into the harbor layouts and Superferry Operational Plan. Secondly, the passage in the “DEIS”; “Additional studies would be needed to recommend these cleaning procedures” is puzzling to us, since Act 2 attempts to prohibit Supplementation (Supplemental EIS’s).
The undercarriage pressure wash system would probably have been the single most effective measure to help mitigate the new and unique risks of alien species transport (with which everyone agrees) posed by the Hawaii Superferry operation.
VI. “Unresolved Issues” and Conclusion of Alien Species Comments
In a real EIS, “unresolved issues” cannot be left unresolved unless there is an explanation of how these issues will be resolved or what overriding reasons there are for commencing the project without resolving the issues. Belt Collins has not done this, and no “overriding reasons” exist why the unresolved issues remain unresolved
By leaving the issue of the transport of alien species inter-island as an “unresolved issue”, it means that DOT and DOA are not going to do anything and they are going to allow the Superferry to spread alien species all over the State.
VI. Socio-economics: State costs of the Hawaii Superferry operation.
Discussion of costs passed on to tax payers, harbor users, and consumers is conspicuously missing from the DEIS. DOT is fond of saying that the costs of harbor improvements to facilitate the Hawaii Superferry will be covered by increased harbor fees to other harbor users. The obvious conclusion of those paying attention is that if harbor costs are increased for say, Young Brothers barge service and Matson shipping, then those increased costs will be passed along to the consumers. The price of every consumer item arriving through the harbor will naturally increase. The public has been kept from knowing that they themselves are subsidizing the Hawaii Superferry operation – a privately owned, out-of-state corporation. Everyone knows about the ill-spent $40 million on the completely unnecessary loading barges. (See V., #5 above). However there are many other costs which are steadily rising with no end in sight. These include at least another $5 million for items such as environmental studies, unanticipated tug-boat services, the “rapid risk assessment”, security, etc.
Still to come or hush hush, are the millions for the new mooring system, the costs of the four-year legal battle, the cost of convening a special legislative session, public meetings and a state auditor’s investigation. And there are many more costs, one of which is the State's interest payments of about $2,000,000/year on the $40,000,000 state issued general obligation reimbursable bonds. Governor Lingle recently issued emergency orders to control and reduce State government expenditures. The state budget director is forecasting a billion-dollar shortfall in revenues through 2011 and we’re told the 2009 Legislature will need to make tough decisions. Already depleted resources for the state library system have been trimmed by another $1.2 million and community clinics that provide basic health care services to low-income and uninsured residents are under-funded. Leaving these important issues out of the Socio-economic section of the DEIS is unacceptable.
VII. Incorporation of other comments by reference
The Kahului Harbor Coalition hereby incorporates by reference all other comments submitted on this DEIS.
VIII. Conclusion of Kahului Harbor Coalition comments on “DEIS”
Act 2 itself states that the EIS “shall not be merely self serving”, shall “take into account all critiques”, and “fulfills the definition of an EIS”. The “DEIS” is self-serving, has not yet taken into account all critiques, and in no way fulfills the definition of an EIS.
Ms. Kealoha, you and your agency OEQC have a constitutional duty to “conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals, and energy sources.” OEQC, like other State agencies, has public trust responsibilities to members of the public, including our organization, to “conserve and protect” Hawaii’s unique environment.
Through ill-advised actions of the Legislature and the Governor (Act 2), great damage has been done to Chapter 343 and Hawaii’s environmental protection laws. The only way to restore what has been lost is to withdraw this “DEIS” (through non-acceptance) and begin a new proper EIS subject to Chapter 343. If OEQC accepts this fake “EIS”, OEQC will violate Article XI, Section 1 of the Hawaii Constitution. We are optimistic that OEQC will not go along with this travesty.
Sincerely,
Jeffrey Parker
Director
Kahului Harbor Coalition
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