Draft EIS for the Hawaii Superferry Available for Public Comments

Act 2 (2007), exempted the Hawaii Superferry from Hawaii’s EIS requirements under HRS chapter 343 so that it could operate without conducting an environmental review.

However, Act 2 required that the State Department of Transportation (“DOT”) prepare an EIS type document for the Office of Environmental Quality Control’s ("OEQC") review and acceptance. The document, Statewide Large-Capacity Ferry Environmental Impact Statement, Draft Environmental Impact Statement, is available for public review. According to the DOT’s Web site:

Written comments to the OEQC, with a copy of the comments to the DOT, should be received or postmarked within 45 days of today’s release of the report. Because the close of the 45-day comment period (February 22, 2009) falls on a Sunday, comments postmarked one day thereafter, on February 23, 2009, will be accepted.

After the 45-day comment period, DOT will prepare a Final EIS that incorporates the public’s comments, DOT responses to those comments, and any amendments to the document. The OEQC must accept or not accept the Final EIS based on the following criteria under Act 2, Section 12:

(c) Acceptability of a statement shall be evaluated on the basis of whether the statement, in its completed form, represents an informational instrument which fulfills the definition of an environmental impact statement and adequately discloses and describes all identifiable environmental impacts and satisfactorily responds to review comments.

(d) A statement shall be deemed to be an acceptable document by the office only if all of the following criteria are satisfied:

(1) The procedures for consultation process, review, and the preparation and submission of the statement, have all been completed satisfactorily as specified in this part;

(2) The content requirements described in this part have been satisfied; and

(3) Comments submitted during the review process have received responses satisfactory to the office, and have been incorporated in the statement.

What happens after OEQC’s acceptance is not clear. Under HRS chapter 343-7(c), “[a]ny judicial proceeding, the subject of which is the acceptance of an environmental impact statement required under section 343-5, shall be initiated within sixty days after the public has been informed pursuant to section 343-3 of the acceptance of such statement.” However, Act 2 provides that the “the environmental review process for state actions in connection with a large capacity ferry vessel company shall be governed by this Act, and not by chapter 343, Hawaii Revised Statutes.” Since Act 2 does not have a judicial challenge mechanism or statute of limitations, challengers may need to satisfy higher standing requirements under common law but with no restriction on when they can bring an action. In the alternative, the court may subject claims to HRS chapter 343 notwithstanding Act 2. Another round of courtroom arguments may be in the near future.

For more on the Hawaii Superferry case, see this blawg's Hawaii Superferry archive.