What are the environmental consequences of the boating operations in Hanalei Bay, Hanalei River and more generally along Kaua`i’s North Shore? The North Shore Charter Boat Association has submitted to Kaua`i County a report that is intended to answer those questions. But before looking at either the report or the questions of substance that it would purport to address, it may be helpful to discuss briefly procedures governing environmental impact statements. For rarely in the history of the state have the EIS procedures become as bolloxed as they seem to have become in this case.
Chapter 343 of Hawai`i Revised Statutes requires people who wish to engage in activities that may have environmental effects to submit a list of those impacts as part of their application for permits from regulatory agencies. If the impacts are judged to be significant by the agency issuing the requested permits, the agency is to require the applicant to prepare a full environmental impact statement, whose contents must comply with rules promulgated by the Department of Health through its Office of Environmental Quality Control.
Generally speaking, events follow a pattern. A party proposing an activity makes application to an agency for a permit, submitting with the application a brief analysis (called an environmental assessment) of the environmental effects the activity will likely have. The receiving agency makes a determination as to whether the effects described are significant enough to warrant preparation of a full EIS. If not, the agency publishes what is called a “negative declaration” in the OEQC Bulletin. This puts the public on notice that the agency has received an application for one or another action and that, in the eyes of the agency, the environmental consequences will be minimal. That determination stands unless formally challenged by court action.
If, on the other hand, the permitting agency decides that the environmental consequences may be significant, the applicant is required to prepare a draft environmental impact statement. The agency forwards to the OEQC an EIS preparation notice, for publication in the OEQC Bulletin. A period of public comment ensues, during which time members of the public are to let the agency know what particular areas of concern the draft environmental impact statement should cover. Only after the public comment period has run its course does the applicant prepare a draft environmental impact statement, which is supposed to address, among other things, the points raised by the public. On completion of the draft EIS, there is another public comment period. The draft usually needs to be rewritten; a final EIS is submitted; and the agency makes a determination as to the acceptability of the final EIS. (Acceptance of an EIS is still not tantamount to approval of the proposed action or award of a permit. It is merely an important prerequisite.)
Incomplete, Inadequate
In April 1989, the North Shore Charter Boat Association submitted an application, accompanied by an environmental assessment, for a county SMA permit for operations in the Hanalei River. Several individual boat operators also submitted SMA permit applications at this time. In July, then-county Planning Director Tom Shigemoto rejected the applications on the ground that they were incomplete. He also informed the applicants that the environmental assessment was inadequate.
On May 25, 1990, Wilson Okamoto and Associates concluded an agreement with Martin Wolff, attorney for the NSCBA, to prepare a draft environmental impact statement. In connection with that work, Earl Matsukawa, of Wilson Okamoto, wrote a letter to Wolff (marked to the attention of Clancy Greff) on August 21, 1990. “The EIS shall be prepared pursuant to Chapter 343, Hawai`i Revised Statutes,” Matsukawa wrote, “based on the determination by the county of Kaua`i Planning Department that an EIS is required in conjunction with the filing of an SMA use permit for the boating operation.”
In keeping with that approach, Matsukawa inquired of the county Planning Department in July 1990 whether any EIS preparation notice had been published in the OEQC Bulletin. The current planning director, Peter Nakamura, confirmed in a letter to Matsukawa July 13, 1990, that “this department has not yet submitted” the notice to the OEQC “due to pending litigation.” Nakamura further asked Matsukawa’s assistance “by submitting a written confirmation on your clients’ intent to submit an EIS.” “Further,” he wrote, “we are not certain as to the composition of the North Shore Charter Boat Association, as the membership may have changed since the submittal of the initial application in April 1989.” Matsukawa did not respond with a membership roster. He merely informed Nakamura, on August 28, 1990, that “the EIS will be filed with your office in conjunction with a Special Management Area permit application.”
Not by the Book
The NSCBA permit application was submitted October 22, 1990, accompanied by a document bearing the title “Hanalei Excursion Boat Staging Operations, Draft Environmental Impact Statement.” The preface to the document states that it was prepared “pursuant to Chapter 343, Hawai`i Revised Statutes, and Title 11, Chapter 200, Administrative Rules, Department of Health, State of Hawai`i.” However, in an accompanying letter to Nakamura, Matsukawa stated: “We understand that the EIS is not required based on Chapter 343, Hawai`i Revised Statutes, and therefore does not automatically require processing in compliance with that statute.” Since no EIS preparation notice had been published by the county, Matsukawa said, “we have assumed that the draft EIS will be coordinated by the county in accordance with its SMA rules.”
The county Planning Department files as well as the record on appeal in several court cases do not indicate on what Matsukawa based his statement that the EIS would be handled in a manner other than that set forth in Chapter 343. But evidently Martin Wolff had the same idea that the EIS process could be suspended in this case. In a letter the following day, October 23, to Nakamura, Wolff stated: “The Draft EIS submitted on October 22, 1990 confirms that the activities of the NSCBA members do not have any significant environmental impact. Therefore, a minor SMA permit should issue immediately.” Again, on November 5, Wolff wrote Nakamura: “Based upon the evidence now available you can and should issue a minor SMA permit.”
Nakamura was unmoved. He wrote Matsukawa on December 14: “we need the names of the members” of the NSCBA, he repeated. “We will not process a ‘blanket’ special management area use permit application for unnamed companies, owners, and affiliations… We will, however, process individual SMA use permit applications from individual members of the North Shore Charter Boat Association… While the NSCBA may be willing to waive the procedures outlined in Chapter 343, the public’s right to comment on and critique the draft environmental impact statement cannot be waived.”
In January, Wolff filed 21 applications for individual boating concerns. The document calling itself a draft EIS was to serve for each of these applications, since it had been drawn up to address the cumulative impacts of the permitted levels of boating activity.
‘Procedural Discrepancies’
Following a long and complicated exchange of letters concerning which applications the county was supposed to process, whether the applications were complete, as well as whether and how the Chapter 343 requirements would be met, an EIS preparation notice finally was published in April in the OEQC Bulletin. By the time this occurred, the so-called Draft EIS had already been circulating for more than six months. The letters received during the comment period following publication of the EIS preparation notice, then, were not so much addressed to what a future EIS should cover as they were to deficiencies in the existing document. When the public comment period expired, Wilson Okamoto resubmitted the October 1990 document. The letters received during the public comment period were not included in that, naturally (since it was prepared nearly a year earlier), but were published rather in a second volume, called an addendum to the draft EIS.
The order of things was reversed, with a draft EIS having been prepared before public comment rather than after. Nonetheless, Wilson Okamoto, in its responses to the letters received during the public comment period, evidently wished to retain the fiction that the normal procedures were being observed. For example, when responding to criticisms of the document by Jack Lundgren of the Sierra Club Kaua`i Group, and by James Nishida, president of 1000 Friends of Kaua`i, Earl Matsukawa of Wilson Okamoto accused them of a “procedural discrepancy” for having obtained a copy of the so-called “draft EIS” before it was “distributed for public review.” (Any part of a permit application made to a public agency is a public document, with rare exceptions. Wilson Okamoto’s “draft EIS” is no exception.)
As to the Environment
In both versions of the draft EIS (pre- and post-comment), the environmental consequences of the boaters’ operations, at a level of around 50 boats making 100 trips and carrying more than 1,200 passengers per day, are held to be minimal. To judge by the extensive reviews received in the just-concluded public comment period for the “official” draft EIS, the assessment of environmental consequences is inadequate.
Wai Ola, an environmental organization that submitted comments, challenges the document on procedural grounds as well as its content. It observes that “despite a title change from Environmental Assessment to Draft Environmental Impact Statement, the submitted document remains essentially unchanged from that Environmental Assessment prepared in 1989 … and has not been corrected or revised to accommodate the comments received during [the public comment] periods.” Wai Ola points out further that although the applicants’ names were submitted in January 1991, Martin Wolff wrote the county withdrawing their applications three months later. Thus, “the applicants, if any, remain unknown to the public as of August 5, 1991. The applicant has not been identified” — in contravention of disclosure requirements of Chapter 343 and OEQC rules. Wai Ola states that the document fails to discuss “petroleum product management” and does not include “a rigorous exploration and objective evaluation of … reasonable alternative actions,” as OEQC rules require.
Bruce Anderson, deputy director of the Department of Health, also commented unfavorably on the project. “The lower portion of Hanalei River is included in the Class AA Embayment of Hanalei Bay,” he noted. Because of this, “to completely evaluate this proposed project, a water pollution control plan is required to be submitted for approval by the director of health. The WPCP shall address all control methods to be used to ensure an absolute minimum of pollution or alteration of water quality from any human-caused sources or actions due to the proposed activity.”
Details of wastewater treatment and disposal systems were not adequately addressed in the draft EIS, Anderson stated. “Due to the sensitive nature of the area and the conflicting information between our wastewater files and the draft EIS,” Anderson wrote, “the Department cannot concur with the EIS’s recommendations or support the project.”
‘Project Advocacy’
The University of Hawai`i Environmental Center submitted lengthy criticisms of the draft EIS. It found that “the socio-economic impact section … was limited to an economic description of the existing tour boat industry,” while it should have discussed the anticipated impacts on the “Hanalei community as a whole, including their rural character, recreational facilities and resources, and neighborhoods.”
The discussion of the project’s impact on fish, especially the `o`opu, was found wanting: “The fish in their larval stage move passively downstream and therefore are incapable of avoiding boating activities. Additionally, far more larval forms are found in the Hanalei River Estuary than full-grown fish. Thus, an accidental fuel spill may endanger the native fauna during one of the most sensitive life stages.” A study by Kelly M. Archer appended to the draft EIS was found by the Environmental Center’s reviewers to be “poorly written” and “confusing.” The language and style of the draft EIS resembled “project advocacy,” the center found, and this, it noted, was in violation of Section 11-200-14 of OEQC rules. The Environmental Center’s final judgment on the document: “that it be withdrawn, rewritten, and reissued as a revised Draft EIS.”
Harold Masumoto, director of the Office of State Planning (the lead state agency for the Coastal Zone Management Program), criticized the draft EIS for its failure to include “a study detailing the aquatic environment.” Omission of this “appears to leave a significant gap of information that is needed to render a decision and/or the imposition of mitigating conditions on the SMA permit.”
Land Board Chairman William W. Paty recited the concerns of various agencies within the Department of Land and Natural Resources. Cumulative impacts of commercial boat tours should be considered, he wrote — not just for Hanalei River and Hanalei Bay, but for Na Pali Coast and the entire North Shore of Kaua`i. “A more comprehensive inventory and analytical study of the affected environment must be performed to satisfy departmental concerns,” he wrote. The impact of boat operations “on the Hawaiian monk seal, green sea turtle, humpback whale and other endangered species needs to be assessed and mitigated… Outboard engine noise and petro-chemical discharges coupled with daily mooring and landing activities … along the North Shore could disturb the activities and habitats of endangered pelagic and reef fish.”
‘Not a Shred of Data’
Paty also raised the point that “the submitted DEIS does not include provisions to reduce commercial boat tours from the Hanalei River area… According to the submitted DEIS, the maximum number of passengers the tour boat operators can accommodate per day is 1,225 persons. This is more than 200 higher than that permitted under the DOT’s previous SMA permit. We would like to know how this number relates to the carrying capacity of the Hanalei River and associated areas of operation, but are unable to determine this from information and analysis presented in the submitted DEIS.”
In conclusion, Paty listed 10 additional tasks that the applicant should undertake to address his department’s concerns.
Mike Kido, a biologist, commented as a private citizen. He had previously studied the effects of gasoline on `o`opu and had determined that they may well be harmed by boating operations in the Hanalei River. “The draft EIS does not provide one shred of biological data compromising my preliminary results,” he wrote. In addition, he noted that “the consultants did not even do a general search of the literature on the effects of outboard emissions on aquatic ecosystems.”
Dr. Carl Berg, a zoologist, described the draft EIS as “totally inadequate in responding to and alleviating concerns that the boating activity will have a negative impact on the biota of the Hanalei River.” Referring to consultants’ studies appended to the draft EIS, Berg stated: “It cannot be stressed enough that the studies by AECOS and Mr. Archer were woefully incomplete, that the artificial protocol [employed by AECOS] was definitely not a conservative ‘worst-case’ simulation, and that no conclusions about boating impact on the environment can be made from the limited data that were presented.”
Volume 2, Number 3 September 1991
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