State traffic assessment fails a test

The Maui News
Friday, June 01, 2007
By HARRY EAGAR, Staff Writer

WAILUKU - Circuit Judge Joel August decided Thursday that the state's finding of no significant impact for the 2025 master plan improvements at Kahului Harbor was not based on sufficient evidence.

He limited his finding to traffic impacts outside the harbor.

August granted partial summary judgment in favor of the plaintiffs, Maui Tomorrow Foundation and the Kahului Harbor Coalition. But the state Department of Transportation won a partial summary judgment in its favor on the objections by the plaintiffs to other parts of the 2025 master plan.

Nothing that happened in 2nd Circuit Court on Thursday will immediately affect harbor operations. August noted that many of the changes in the 2025 plan have been completed and are in operation.

And he said that the Hawaii Superferry is not a "project" of the 2025 plan and that his decision was not based specifically on Superferry traffic impacts.

He set a hearing for 8:15 a.m. Aug. 2 for the plaintiffs to argue remedies for the state's failure to produce an adequate environmental assessment for the 2025 harbor master plan.

August said there might be "several" possible remedies, but he mentioned only a couple of them.

One might be to require the department to do a traffic impact analysis. He noted that Superferry had retained CH2M Hill to produce a study last November on its impact on traffic.

Maui Tomorrow had asked August to take that study into account. The judge said that because it was done after all the determination of no significant impact had been made, it would be a clearly reversible error if he did so.

He said that he was not deciding that traffic will have a significant impact. After a study is completed, state managers might then conclude that there is no significant impact, he said.

But he ruled that the state had come to that conclusion in 2005 - without the required sufficiency of information.

August mentioned several times during his analysis that the growth of the harbor is a continuing process. In fact, a 2030 master plan is undergoing an environmental review.

The Harbors Division is producing a full environmental impact statement - what the plaintiffs contend should have been done for the 2025 plan - although August also noted that the court has not been promised a full environmental impact study.

He also noted that the 2025 finding of no significant impact was based, in part, on a plan for dealing with Superferry traffic that was later abandoned.

The environmental assessment found that ferry traffic would impact Wharf Street and Harbor Road.

Since then, the harbor interior roadway, Ala Luina, has been closed. Superferry traffic, when it begins, will enter and exit the harbor through an extension onto Puunene Avenue, missing Wharf Street altogether.

Another conceivable remedy to the bad finding of no significant impact that the judge mentioned would be a limit on the number of vehicles entering or leaving the public roads from Superferry operations.

However, he said it was not the intention of his court "to give an order preventing the Superferry from sailing in Hawaiian waters."

Doubters of the Superferry have called for a complete environmental impact statement before it sails. Resolutions to that effect, including one from the Maui County Council, failed to get the Legislature to require such a study of environmental impacts.

The Maui Tomorrow lawsuit might have had the effect of forcing the Harbors Division to do what the Legislature would not, but so far August has not reached that point.

"Would that life would be so simple," he said when discussing the question of remedies for the state's finding of no significant impact failure.

Attorney Isaac Hall, representing Maui Tomorrow Foundation, said his clients were happy with August's decision. Maui Tomorrow and Pacific Whale Foundation plan an "experiment" this morning, in which they will try to duplicate the traffic expected when the Superferry makes its daily Kahului port call from 9:30 a.m. to 11 a.m. daily.

Although the lawsuit is not specifically about Superferry, and Superferry is not a defendant, the impact of the Superferry service has preoccupied discussion of harbor congestion.

In several hearings, August has taken pains to make it clear that the case before him is not a Superferry lawsuit.

"Maui Tomorrow and the county have tended (in their pleadings) to see the 'project' (covered by the 2005 environmental assessment) as integral with the Superferry.

"The name has been a lightning rod for confrontational politics."

He speculated that if the promoters had called their ferry something else - "maybe Das Boot, sentiments would not be running so high."

August noted that the state argued that its 2025 improvements would not create more traffic, just channel existing and rapidly expanding traffic. But there was no traffic study included in the environmental assessment for the 2025 harbor plan.

He pointed out that the 2005 environmental assessment said that port calls at Kahului would go up 70 percent by 2025. Not all of the increase in port use will be due to the interisland ferry.

August said "both sides are focusing too narrowly" on the issue, which he several times described as "an ongoing and dynamic process."

Superferry critics do not agree that delivering a ferryload of vehicles every day will not affect local traffic for several hours in the middle of the morning. (Superferry managers estimate that a typical trip will carry 110 vehicles, although the ferry will be capable of carrying more than 200 passenger vehicles and heavy trucks.)

Superferry originally was scheduled to start operations in July. The first of two ferries is still undergoing trials and Coast Guard certifications, and last week Superferry announced it would delay the ferry's launch by at least a month.

August said he understood it would not start in the month of August, either, which would be well after the hearing on remedies for the defective finding of no significant environmental impact.

At bottom, the judge said, the question before him was whether the Harbors Division had "taken a hard look" at potential impacts. The "hard look" and "rule of reason" tests he applied come from Hawaii Supreme Court and federal court challenges of other environmental statements.

He deferred judging whether the state had deliberately divided a big project into little ones, so that it could say each little one had no significant impact, even if there would be cumulative impacts from the whole.

That concept, called segmentation, does not have to be decided at this point, August said, although he said he did not accept Maui Tomorrow's implication that the state had acted in bad faith in declaring the finding of no significant impact.

The declaration was made by Barry Fukunaga, then deputy director of transportation for harbors and now transportation director.

Fukunaga was on Maui Wednesday for a forum on the harbor, when he cited the fact that almost all Hawaii's imports arrive be sea.

August said he believed no one is contesting the critical crowding at the harbor or the harbor's vital position in the island's economy.

Deputy Attorney General William Wynhoff said he was sure Fukunaga would be at the Aug. 2 hearing.