Wednesday, April 01, 2009


Did Hawaii Superferry apply for their incidental take permit? Maybe not

by Larry Geller

This closes another loose end in the Superferry saga. We wrote earlier that the governor didn’t bother to create the quarterly reports she was required to prepare under Act 2. Here’s a report that something else didn’t get done.

HSF permit statement

The above snip is from a document on the Hawaii Superferry Website. On the right is a clear statement that HSF has applied for an incidental take permit (in case they were to hit any whales).

Did they apply for the permit?

From a Neighbor Islander, this report just in:

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

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

When asked if the ITP application process has been terminated, "In all likelihood yes, since they (HSF) have withdrawn from the Hawaii market.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

So did they or didn’t they apply for their permit? If HSF wishes to dispute this report, that would be fine, if not the record will reflect yet another shortcut taken on the ferry’s fast track to, well, nowhere.


My remembrance of the particulars of this is that you don’t have to have an incidental take permit and nothing will happen if you don’t hit a protected species. But then if you do it means massive fines and such. However the state did require that they apply for one, not that they obtain one. But don’t quote me...

I'm not an expert but I would guess that the incidental take permit wasn't submitted because a biological assessment (that would have been prepared as part of the HRS 343 document prep.) wasn't done.

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