State Auditor Marion Higa's final report on accommodating the Hawaii Superferry finds problems both with the physical arrangements and with the way environmental regulations are written and interpreted.
The audit finds that the decisions by the Lingle administration and the Legislature "blur the state's environmental obligations."
The auditor found that the system by which agencies can declare that a project is exempt from environmental review is unclear and does not "allow any realistic opportunity for public input."
Not only that, the auditor found the Harbors Division used a "flawed" existing procedure while implementing its environmental review of the proposed ferry improvements.
For example, when soliciting comment from other agencies, it got a comment from the Office of Environmental Quality Control. Later, when the plans were changed, the OEQC was never informed, but its earlier "assent" continued to be used.
Also, although the solicitation for comments was sent only to a limited list of 12 agencies (including the county governments), only three responded. A non-reply was treated as assent.
Interviews with both DOT and OEQC managers "show that there is confusion as to how to address the cumulative and secondary impacts of a water carrier's operations."
The Harbors Division limited its environmental review to the direct impacts of its shore installations. Second Circuit Judge Joel August ruled that it had to also consider the secondary impact of road traffic around Kahului Harbor. The secondary impact of possible collisions with whales was argued in 2nd Circuit Judge Joseph Cardoza's court.
No other maritime operators have had to do an environmental assessment on whales.
Department of Transportation Director Brennon Morioka wrote that the August 2007 Hawaii Supreme Court decision on the Superferry, which overturned the department's waiver of an environmental impact assessment, "established a new standard for exempted environmental reviews. . . . DOT did not analyze the impact of NCLA's (North American Cruise Line) vessels on whales . . . when it renovated Pier 2, Honolulu Harbor, to accommodate NCLA's fleet of three vessels."
The Supreme Court decision could open environmental questions for more than interisland ferries. The audit says, "a consensus also must be reached as to whether water carriers currently conducting business in Hawaii will be subject to such a review (of secondary impacts) or whether such changes will apply prospectively to future water carriers that plan to operate in the islands."
The audit says Act 2, which allows Superferry to operate while an environmental impact statement is prepared, "sets aside Hawaii's environmental safeguards and benefits a single operator." Higa said Thursday that although Act 2 appeared to have been "carefully drafted" to affect just one operation, "if (state administrators) are willing to make an exception in this one instance, in what other instances would they be willing to make exceptions?"
The audit concluded that the way a state agency sets itself up to exempt projects from review has a flaw.
Every agency submits a proposed list of exemption criteria, which has to be approved, after public review, by the state Environmental Council. However, "once the council approves the exemption list, the agency is free to determine on its own whether a particular project or action is exempt from an environmental assessment without the need for further review or concurrence."
Agencies do not even have to publish notice of exemptions granted.
In this case, Higa said Wednesday, the Harbors Division limited itself to a narrow concept of what should be reviewed, expecting Hawaii Superferry to cover other areas.
Even when an outside agency, the Coast Guard, voiced concerns about the safety of the Kahului loading barge, that did not dissuade the division from its plan.
The audit says the Office of Environmental Quality Control should establish guidelines to ensure all steps required by Hawaii administrative rules have been complied with in determining the scope of environmental review, improve training by OEQC for other agencies, clarify which agencies have to be consulted and establish clear definitions of cumulative and secondary impacts.
* Harry Eagar can be reached at firstname.lastname@example.org.