Post by ferryfast admin on Oct 27, 2007 12:18:44 GMT -5
Report Title:
Environmental Law; Transportation; Ferry Operations
Description:
Requires the Department of Transportation to perform an environmental impact statement (EIS) for certain improvements made to commercial harbors. Permits operation of large capacity ferry vessel company prior to completion of EIS upon meeting certain minimum conditions. Establishes a temporary Hawaii Inter-island Ferry Oversight Task Force. (SD1)
THE SENATE
S.B. NO.
1
TWENTY-FOURTH LEGISLATURE, 2007
S.D. 1
SECOND SPECIAL SESSION
STATE OF HAWAII
A BILL FOR AN ACT
relating to transportation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I
SECTION 1. (a) The Hawaii supreme court has determined that chapter 343, Hawaii Revised Statutes, requires that an environmental assessment be performed with respect to certain improvements at Kahului harbor intended for and to be used by a large capacity ferry vessel company to provide inter-island ferry service between the islands of Oahu, Maui, Kauai, and Hawaii, using harbor facilities on each island, and that the environmental assessment must take into account secondary effects of the Kahului harbor improvements.
The legislature finds that the existing circumstances, specifically the construction and completion of harbor improvements and the subsequent operation of a large capacity ferry vessel company for a limited period of time, present a unique situation. Seldom, if ever, has a judicial determination overturned harbor improvements and business operations that were previously authorized by the government and approved by the lower court approximately two years earlier. Such an occurrence is not explicitly contemplated in chapter 343, Hawaii Revised Statutes, and is not consistent with the intent of the legislature. As such, the policy that applies under law should be amended and clarified.
The legislature further finds that the operation of a large capacity ferry vessel company, specifically, using a new class of large capacity ferry vessels capable of transporting large numbers of people, motor vehicles, and cargo with ease, is in the public interest in that it provides a real and innovative alternative to existing modes of transporting people, motor vehicles, and cargo between the islands of the state. With its ability to transport large quantities of cargo between islands in a very short period of time, agricultural produce would suffer less heat damage in transit, resulting in higher quality produce and fresh food products at a lower cost for all residents of the state. By encouraging the growing of products on the islands of Kauai, Maui, and Hawaii for the Oahu market, the operations of a large capacity ferry vessel company would foster diversified agriculture, helping the State of Hawaii to meet one of its constitutional mandates. Further, in times of natural or other disasters, a large capacity ferry vessel company could provide the means to rapidly deploy disaster relief personnel, equipment, and supplies.
The legislature also finds that it is clearly in the public interest that a large capacity ferry vessel service should commence as soon as possible, and that harbor improvements continue to be constructed and be allowed to be used, while any environmental studies, including any environmental assessments or environmental impact statements, are conducted.
The legislature also finds that it would be desirable and appropriate for the department of transportation to prepare or contract to prepare an environmental impact statement regarding commercial harbor improvements undertaken to accommodate a large capacity ferry vessel company and its operations, even if such an environmental impact statement may not yet be legally required. Such an environmental impact statement should include secondary impacts of such commercial harbor improvements, including impacts of a large capacity ferry vessel company and its operations.
The legislature further finds that it would be appropriate for:
(1) An oversight task force to study the State's actions regarding the establishment of the operations of any large capacity ferry vessel company as a whole, and the impact of any existing or proposed large capacity ferry vessel operations, and to report its findings to the legislature and governor; and
(2) The auditor to conduct a performance audit on, among other things, how the State conducted its proceedings and determined that harbor improvements related to the operation of a certain large capacity ferry vessel company should receive an exemption from the need to conduct either an environmental assessment or environmental impact statement under chapter 343, Hawaii Revised Statutes, including why secondary impacts were not considered.
(b) This Act adopts a new policy, and further clarifies and amends existing law, with respect to this new type of inter-island ferry service to provide that, during the period in which any required environmental review and studies, including environmental assessments or environmental impact statements, are prepared, and also following their completion:
(1) A large capacity ferry vessel company and large capacity ferry vessels may operate subject to the employment of measures to mitigate significant environmental effects;
(2) Agreements with respect to the operations of a large capacity ferry vessel company, including a large capacity ferry vessel company operating agreement, entered into between the State and a large capacity ferry vessel company, may be enforced as written or as executed or re-executed; and
(3) Related harbor improvements may be constructed and used by the State, by a large capacity ferry vessel company, and by others,
notwithstanding the fact that the non-preparation or non-completion of environmental assessments or environmental impact statements, the lack of acceptance of an environmental impact statement, or the lack of a finding of no significant impact, would otherwise have barred, delayed, been a condition precedent to, or interfered with paragraphs (1) through (3).
(c) This Act further clarifies and amends existing law to provide that:
(1) Due to the unique nature and critical importance of the inter-island ferry service industry to the people of our state, the construction and use of harbor improvements to facilitate this new type of inter-island ferry service is to be governed by this Act, and not by chapter 343, Hawaii Revised Statutes; and
(2) Such construction and use shall continue, while any environmental review and studies, including environmental assessments or environmental impact statements, are prepared and following their completion, notwithstanding the fact that the non-preparation or non-completion of environmental assessments or environmental impact statements, the lack of acceptance of an environmental impact statement, or the lack of a finding of no significant impact, would otherwise have barred, delayed, been a condition precedent to, or interfered with such construction and use.
(d) The purpose of this Act is to facilitate the establishment of inter-island ferry service and, at the same time, protect Hawaii's fragile environment by clarifying that neither the preparation of an environmental assessment, nor a finding of no significant impact, nor acceptance of an environmental impact statement shall be a condition precedent to, or otherwise be required prior to:
(1) The operation of a large capacity ferry vessel company pursuant to any certificate of public convenience and necessity approved by the public utilities commission;
(2) The operation of a large capacity ferry vessel company and large capacity ferry vessel between any port or harbor in Hawaii pursuant to any written operating agreement;
(3) The construction, use, or operation of any improvements at Kahului harbor and any other harbor in the state relating to the operation of a large capacity ferry vessel company or large capacity ferry vessel;
(4) The appropriation or expenditure of any funds, the use of state lands, the issuance of any permits, or the entering into of any agreements; or
(5) The taking of any other necessary or appropriate actions for the purpose of facilitating any matter covered by paragraphs (1) to (4), notwithstanding the fact that the non-preparation or non-completion of environmental assessments or environmental impact statements, the lack of acceptance of an environmental impact statement, or the lack of a finding of no significant impact, would otherwise have barred, delayed, been a condition precedent to, or interfered with the same; provided that upon commencement of inter-island ferry service, the large capacity ferry vessel company shall comply with the conditions and protocols established under this Act, and with any additional conditions and protocols set by the governor by executive order, or subsequently established by the legislature by law.
(e) The purpose of this Act is also to amend all relevant existing laws to provide that, while any environmental review and studies, including environmental assessments or environmental impact statements, are prepared and following their completion:
(1) A large capacity ferry vessel company and large capacity ferry vessels may operate;
(2) Agreements with respect to such operation, including the operating agreements, entered into between the State and a large capacity ferry vessel company may be enforced, executed, or re-executed; and
(3) Related harbor improvements may be constructed and used by the State, by a large capacity ferry vessel company, and by others.
PART II
SECTION 2. As used in this Act, unless the context otherwise requires:
"Large capacity ferry vessel" means any inter-island ferry vessel that transports, is designed to transport, or is intended to transport per voyage at least five hundred passengers, two hundred motor vehicles, and cargo between the islands of the state.
"Large capacity ferry vessel company" means any company that owns or operates a large capacity ferry vessel.
"State entity" means any state or county department, board, commission, and any other agency of the state or county.
"State marine waters" means all waters of the state, including the water column, water surface, and state submerged lands, extending from the upper reaches of the wash of the waves on shore seaward to the limit of the State's police power and management authority, including the United States territorial sea, notwithstanding any law to the contrary, and including state harbors where appropriate, notwithstanding the depth of the harbor.
SECTION 3. Notwithstanding chapters 205A, 269, 271G, and 343, Hawaii Revised Statutes, or their state or county implementing rules or ordinances, including but not limited to provisions relating to special management area permits, certificates of public convenience and necessity, common carriers by water, environmental assessments, and environmental impact statements, and further notwithstanding that environmental assessments and environmental impact statements have not been prepared or completed, or have been completed and an environmental impact statement is not accepted, is found unacceptable, or a finding of no significant impact has not been made:
(1) A large capacity ferry vessel company shall have the right to operate and the right to utilize Kahului harbor improvements and other improvements and facilities on any island, pursuant to and subject to any and all agreements and contracts with state entities, relating to the operation of a large capacity ferry vessel and the use of state harbor facilities;
(2) All state harbor improvements, projects, and facilities available for or to be utilized by the large capacity ferry vessel company may be completed and utilized for any purpose agreed to and authorized by appropriate state entities;
(3) A large capacity ferry vessel company and the appropriate state entities may proceed pursuant to and subject to all executed tariffs, agreements, and contracts between the company and the state entities, whether the tariffs, agreements, and contracts may have previously been found to be in violation of chapter 343, Hawaii Revised Statutes, or any other law and may re-execute the same, including an operating agreement, in the same general form as previously executed;
(4) The operation of large capacity ferry vessels between the islands of Oahu, Maui, Kauai, and Hawaii, including the use of harbor facilities on each island and improvements at Kahului harbor, is declared to be a required public convenience and necessity;
(5) A certificate of public convenience and necessity issued to a large capacity ferry vessel company shall not be revoked or modified on the basis that environmental assessments or environmental impact statements have not been prepared or completed; and
(6) The construction, use, or operation of any facilities or improvements authorized by any agreement between a large capacity ferry vessel company and a state department, board, commission, or agency shall not be subject to or require any county permits or approvals,
notwithstanding the fact that the non-preparation or non-completion of environmental assessments or environmental impact statements, the lack of acceptance of an environmental impact statement, or the lack of a finding of no significant impact, would otherwise have barred, delayed, been a condition precedent to, or interfered with the same.
SECTION 4. (a) As a condition precedent to the rights conferred by section 3 of this Act, any large capacity ferry vessel company seeking to operate pursuant to this Act shall comply with the following conditions:
(1) Regarding whale encounters:
(A) Apply with the National Oceanic and Atmospheric Administration for an incidental-take permit; and
(B) Request an observer from the National Marine Fisheries Service, a division of the National Oceanic and Atmospheric Administration, be onboard its vessels at all times when traveling through the Hawaiian Islands Humpback Whale National Marine Sanctuary;
(2) Regarding invasive species:
(A) Post signage and notify passengers beforehand of all bans, inspections, and check-in procedures and deadlines;
(B) Post signage and notify passengers beforehand of all bans such as the ban on the transport of fishing gill nets and fishing nets for commercial use, or rocks, soil, or dirt or sand without a permit from the appropriate government agency. For the purposes of this paragraph, "soil or dirt" shall exclude soil or dirt in potted plants inspected and cleared for transport by the department of agriculture;
(C) Require passengers to declare all plants, fruits, seeds, and any other biological medium and confiscate any pests for control or eradication purposes or invasive species;
(D) Inspect or cause to be inspected all vehicles prior to boarding, including the trunks of all cars, the beds of all pickup trucks and the undercarriage and interiors of all vehicles; and
(E) Promptly notify the appropriate governmental agency regarding any violation or potential violation of invasive species, agricultural, conservation or other law; and
(3) Any other conditions or protocols the governor deems necessary and appropriate to protect the State's environment; provided that any such conditions or protocols established under this paragraph shall be executed by the governor, by means of an executive order, and without regard to chapter 91, Hawaii Revised Statutes, or any other provision of law.
Prior to the commencement of operations by a large capacity ferry vessel company pursuant to the right to operate conferred by section 3 of this Act, the governor shall notify the legislature of all the conditions or protocols established pursuant to this subsection, including the entities consulted in establishing the conditions or protocols.
(b) Any large capacity ferry vessel company authorized to operate pursuant to this Act shall execute an agreement with the State, in a form acceptable to the attorney general, by which the large capacity ferry vessel company shall expressly agree to abide by any conditions or protocols established pursuant to this section.
(c) The governor, by means of an executive order, and without regard to chapter 91, Hawaii Revised Statutes, or any other provision of law, may amend the conditions and protocols established under this section on a large capacity ferry vessel company's inter-island operations to ensure the reasonable, efficient, and expedient application of environmental protection measures set forth in this section.
In addition, the governor, by means of an executive order, and without regard to chapter 91, Hawaii Revised Statutes, or any other provision of law, shall also impose additional conditions and protocols on a large capacity ferry vessel company's inter-island operations to mitigate significant environmental effects that the governor determines, in the governor's judgment, are likely to be caused by such inter-island operations.
In making such determinations, the governor shall consider the effects such operations may have on:
(1) Ocean life and marine animals and plants, including a whale avoidance policy and procedures;
(2) Water resources and quality;
(3) Harbor infrastructure;
(4) Vehicular traffic;
(5) Public safety and security;
(6) Controlling the spread of invasive species;
(7) Cultural resources, including hunting, fishing, and native Hawaiian resources;
(8) Economic consequences and impact; and
(9) Any other natural resource or community concern the governor deems appropriate.
The governor shall also consider establishing conditions and protocols such as requiring department of agriculture inspectors and department of land and natural resources conservation and resources enforcement personnel on each inter-island voyage conducted by a large capacity ferry vessel company, as the governor deems necessary and appropriate. If the governor establishes such agriculture inspector and conservation and resources enforcement personnel conditions and protocols, the governor shall do so by means of an executive order, and without regard to chapter 91, Hawaii Revised Statutes, or any other provision of law. The governor shall notify the legislature of any conditions or protocols established pursuant to this subsection, including the entities consulted, within ten days of establishing the condition or protocol.
The governor shall also review and determine the efficacy and appropriateness of all conditions or protocols established pursuant to this section and report to the legislature at the end of each fiscal quarter of the State on the efficacy and appropriateness of all conditions or protocols established pursuant to this section and the costs incurred by the State in establishing and maintaining the enforcement activities required under this section.
(d) The legislature reserves the sole right to:
(1) Review the adequacy of any conditions or protocols imposed or amended by the governor under this Act; and
(2) Impose, by law, any other conditions or protocols it deems necessary and appropriate to further protect the state's environment or communities, or both, in addition to any conditions or protocols imposed or amended by the governor under this Act,
provided that this subsection shall not be construed as a condition precedent to the rights conferred by section 3.
SECTION 5. Any large capacity ferry vessel operating in state marine waters pursuant to section 3 shall comply with all laws of general applicability, except as otherwise provided in this Act. 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.
PART III
SECTION 6. Nothing in this part shall be deemed or construed to impose a condition precedent to any activity authorized under parts I, II, or IV of this Act.
SECTION 7. As used in this part, unless the context otherwise requires:
"Acceptance" means a formal determination of acceptability that the document required to be filed pursuant to this part, fulfills the definitions and requirements of an environmental impact statement, adequately describes identifiable environmental impacts, and satisfactorily responds to comments received during the review of the statement. Acceptance does not mean that the action is environmentally sound or unsound, but only that the document complies with this part.
"Action" means any program or project that is proposed or completed by the department and covered by this part.
"Addendum" means an attachment to a draft environmental impact statement, prepared at the discretion of the department, and distinct from a supplemental statement, for the purpose of disclosing and addressing clerical errors such as inadvertent omissions, corrections, or clarifications to information already contained in the draft environmental impact statement already filed with the office.
"Agency" means any department, office, board, or commission of the state or county government which is a part of the executive branch of that government.
"Approval" means a discretionary consent required from an agency. Discretionary consent means a consent, sanction, or recommendation from an agency for which judgment and free will may be exercised by the issuing agency, as distinguished from a ministerial consent. Ministerial consent means a consent, sanction, or recommendation from an agency upon a given set of facts, as prescribed by law or rule without the use of judgment or discretion.
"Cumulative impact" means the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
"Department" means the department of transportation.
"Effects" or "impacts" as used in this part are synonymous. Effects may include ecological effects (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic effects, historic effects, cultural effects, economic effects, social effects, or health effects, whether primary, secondary, or cumulative. Effects may also include those effects resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.
"Environment" means humanity's surroundings, inclusive of all the physical, economic, cultural, and social conditions that exist within the area affected by an action, including land, human and animal communities, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.
"Environmental impact" means an effect of any kind, whether immediate or delayed, on any component of the environment.
"Environmental impact statement" or "statement" means an informational document prepared in compliance with this part and which discloses the environmental effects of an action, effects of an action on the economic welfare, social welfare, and cultural practices of the community and state, effects of the economic activities arising out of the action, measures proposed to minimize adverse effects, and alternatives to the action and their environmental effects.
The initial statement filed for public review shall be referred to as the draft statement and shall be distinguished from the final statement which is the document that has incorporated the public's comments and the responses to those comments. The final statement is the document that shall be evaluated for acceptability by the office.
"Office" means the office of environmental quality control.
"Person" includes any individual, partnership, firm, association, trust, estate, private corporation, or other legal entity other than an agency.
"Primary impact" or "primary effect" or "direct impact" or "direct effect" means effects which are caused by the action and occur at the same time and place.
"Secondary impact" or "secondary effect" or "indirect impact" or "indirect effect" means effects which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air, water, and other natural systems, including ecosystems.