Wednesday, October 03, 2007
Did the Superferry need to get an SMA permit for its facility in Nawiliwili?
Writer and long-time Sunshine Law advocate Andy Parx suggests in an email distribution (the article is not yet posted on his web site) that the Superferry may not have obtained a necessary permit to operate in the harbor on Kauai.
Parx said he has tried repeatedly to get an answer from the Kauai Planning Department on the lack of a Special Management Area (SMA) permit, and that the permit is required for all private projects along the shoreline according to the federal Coastal Zone Management Act (CZMA).
While waiting for a reply Parx has reviewed the federal and state laws and feels that:
No waivers for commercial ventures are included in the law...
There are no “laws” on Kauai- no local Ordinance or adopted Department SMA Rules and Regulations- exempting any project from permit requirements.. The State “SMA Law”, HRS section 205, lists no exemptions either.
Andy said that he was promised a reply by Thursday.
If it turns out that the Superferry doesn't have all the permits it needs to operate into Kauai, this raises another question around the US Coast Guard gearing up to defend the entry of a private ship into the harbor. And that's just what they are doing, according to this article in the Garden Island News, Buildup preps for Superferry :
Boxed between a dozen Matson shipping containers at Nawiliwili Harbor sit 10 United States Coast Guard rigid hull inflatable boats.
“The number is not hard and fast. There could be many more or many less,” said Lt. John Titchen, Coast Guard spokesman in Honolulu. “We’ll evaluate and determine how we can best respond to a potential situation like we saw before when Superferry tried to dock in Nawiliwili Harbor.”
There has been community reaction to the buildup. The article goes on:
“It’s like we’re under martial law when we have that kind of military flotilla ready to go after women and children,” Princeville resident Anne Thurston said. “It’s a serious threat to democracy.”
Some community members say they find it “ironic” that state officials can disregard environmental laws as Gov. Linda Lingle flaunts the consequences to breaking the security zone rule.
“I’m angry at the governor for trying to cover up her political blunders by trying to turn our local protectors against us,” Lawai resident Andy Parks said. “Kaua‘i’s police and fire departments, local Coast Guard and even judges shouldn’t be pawns in Lingle’s folly.”
The Hawai‘i Supreme Court on Aug. 23 ruled the state Transportation Department erred in its decision to exempt the Superferry from an environmental assessment.
It's clear that there is still strong opposition to the Superferry, based on the state government's exempting it from an EIS and its subsequent heavy-handed tactics intended to force the operation through despite community resistance.
Thurston pointed to the hundreds of residents who have sent letters, the thousands who have signed petitions and the three Neighbor Island county councils that have produced resolutions calling on the state to conduct an environmental impact statement for the Superferry prior to its operation.
Some residents say the high speed vessel, which can ferry more than 800 passengers and 200 cars, will spread invasive species, endanger marine life, clog traffic and bring Honolulu’s urban issues to Neighbor Island shores.
Superferry officials refute these claims, saying their voluntary measures — such as boot scrubbers at ports, a whale avoidance policy and a plan to meter vehicles into the traffic flow — will mitigate negative impacts.
If it turns out that an Special Management Area permit was indeed required and was not obtained, the Coast Guard should back off, since all federal requirements for the operation would not have been fulfilled.
So in addition to waiting for a court decision on whether the boat can sail while an environmental assessment is conducted, and another challenging the Coast Guard security rule itself:
Big Island attorney Lanny Sinkin has challenged in Honolulu federal court the new rule creating the security zone,
and wondering if the Legislature will choose to hold what could be a very divisive special session, we also need to see if the Superferry should have obtained one of these permits as well.
If only.... if only they had done this differently, if only they had worked with the community and completed their EIS, if only the the Governor hadn't threatened the community, if only our state government paid a little more attention to its citizenry and less to the siren song of big business contributions and political ambition.... if only.... then we could be working on the more important challenges that we face here in middle of the Pacific. For example, education, homelessness, shrinking middle class incomes, global warming, alternative energy, unrestrained growth, transportation, preservation of our very lifestyle, and so forth.
The Lingle Administration (through the Housing Finance Development Corporation) appears to be poised to exempt the acquisition of land and buildings for affordable housing (that is to say, Kukui Gardens) from the requirements of an environmental assessment. I guess she gave big business a break with the Superferry - so now she wants to neutralize her mistake in exempting the Superferry by appearing benevolent to those in the housing crunch. The Environmental Council is schedule to hear HFDC's request to amend its rules to allow such an exemption this Friday, October 12, 2007 at 2:00 P.M. See the link below for more details
Thank you for the tip, Anonymous. Since comments are hard for most people to find, I'll put this in a full-fledged post.