photo by Carroll Cox, estudios Hawaii  copyright 2009



Rail Construction To Begin by End of 2009?

In an article about the rail project in the October 23, 2009 Honolulu Advertiser, it was reported, “The next opportunity for the Council to pass the Resolution [pertaining to historic resources and preservation issues] would be November 16.  That would leave the City with just seven weeks to gain all other approvals needed to begin construction by year¹s end.”

EIS Is Not Yet Complete, and Project Is Within the SMA

So Mayor Hannemann wants to start constructing the rail system before the end of this year?  First of all, the required Environmental Impact Statement (“EIS”) is not complete.  

In addition, portions of the transit corridor are within the Special Management Area (“SMA”), and a Major SMA Permit must be processed and approved the City Council before any construction can begin.

Is Concurrent Processing of EIS and SMA Permit Possible?

Chapter 25, Revised Ordinances of Honolulu (“ROH”), there may be concurrent processing of required environmental disclosure documents and the SMA Major Permit.  Section 25-3.3(c)(1), Procedural Guidelines states, “Any development which has been assessed under the National Environmental Policy Act or under HRS Chapter 343, and for which a negative declaration has been filed or a required EIS has been accepted may apply directly for a Special Management Area Use permit pursuant to Section 25-5.1 to waive the assessment procedures in subsection (b) of this section.”  

From our understanding of Chapter 25 and the status of the EIS, a negative declaration has not been filed, and the EIS has not been accepted, so this project cannot be processed concurrently with the SMA Major Permit.  The EIS must be accepted, and then published by the Office of Environmental Quality Control before the City can apply for the SMA Major permit.  So how can Mayor Hannemann think he can start construction before the end of this year?  It simply does not seem possible, if laws are followed.

In addition to the fact that there is no completed Final Environmental Assessment (“FEIS”) and no approved SMA Major Permit, we believe there are other problems associated with the project’s compliance with environmental laws.

Missing Elements in the Draft EIS

The rail project is still in the Draft EIS phase.  We have reviewed the Draft EIS, and we found that there are serious deficiencies with the visual impact study for the project.  Under Chapter 205A, Coastal Zone Management (“CZM”), Section 205A-2, Objectives of the CZM Program, Scenic Resources must be identified in the CZM area.  Remember, this will be an elevated rail system, reaching heights of 60 feet or more, and there is a potential to destroy our beautiful scenic views of the ocean.  

What Viewplanes Must Be Included in the Analysis?

Under Section 205A-26, SMA Guidelines, it states, “The authority shall seek to minimize, where reasonable, any development which would substantially interfere with or detract from the line of sight toward the sea from the state highway nearest the coast.”  That might lead one to think that only the views from the highway should then be studied and included in the EIS.  However, that is not the case.

Chapter 205A requires that new developments are compatible with their visual environment by designing and locating such developments to minimize the alteration of natural landforms and existing public views to and along the shoreline.  It says nothing about limiting the study to views from the highway.  

Moreover, under Hawaii Administrative Rules (“HAR”), Title 11, Department of Health, Chapter 200, EIS Rules, Section 11-200-12, Significance Criteria, it states, “In most instances, an action shall be determined to have a significant effect on the environment if it substantially affects scenic vistas and viewplanes identified in county or state plans or studies.”  One such county study, the Coastal View Study, prepared for the Department of Land Utilization in 1987, was undertaken to address the issue of “preserving, maintaining, and where desirable, improving and restoring shoreline open spaces and scenic resources.”  

Coastal View Study

The scope of the Coasstal View Study included an inventory of significant coastal views and coastal landforms, which together make up the shoreline scenic resources of Oahu.  The study includes views from public viewpoints and coastal roadways within the SMA.  In Section 2.2.1, Summary, the Coastal View Study states, “The interplay between the objectives and guidelines can best be illustrated in the example of evaluating projects which lie between Œthe line of sight toward the sea from the state highway.”  Taken literally, the guideline would suggest that the interest is solely in protecting current views from the highway,  however, the objective for Scenic and Open Space Resources is very broad in its implication and the opportunity to restore and improve is equally as important as protecting and preserving existing views.  Therefore, in examining projects within the SMA, the opportunity to create new view corridors or improve existing views should also be examined.”  It is clear that the visual analysis for the rail project must include studies not only of impacts on views from the state highway, but important scenic vistas and viewplanes identified in the Coastal View Study, and important public views to the shoreline (under Chapter 205A criteria).

Which Lots or Parcels of the Transit Corridor are Within the SMA?

From our review of the Draft EIS, it appears that the transit corridor has 4 or 5 alignments which are partially or fully within the SMA, including the Aloha Stadium area, Pearl Harbor, Keehi Lagoon, and the Waipahu/Waiau areas.  Unless the scenic resources and fully disclosed and impacts are fully analyzed, the EIS is not in compliance with the provisions of Chapter 25, ROH, and Chapter 205A, HRS.  Certainly, no SMA Major Permit application should be processed until the EIS has been completed.    

What About the “Alternatives” Analysis for the Visual Study?

Another requirement of the EIS process is to fully explore and analyze possible alternatives, and we do not believe this has been done.  For example, would a different alignment have less detrimental effect on the environment, on views and scenic resources?  Is a different configuration less likely to intrude on scenic viewplanes?  We know that the American Institute of Architects (“AIA”) has expressed major concerns about the effect of the elevated rail system on our scenic views.  This simply has not been adequately explored.  

Should the “Accepting Authority” for the Rail Project EIS be Mayor Hannemann?

We are also concerned about the entire process itself, because the “Accepting Authority” for the EIS, in other words, the government entity that says the EIS is adequate or not, is the same entity that is proposing the project.  The Guidebook for the State Environmental Review Process, produced by the OEQC, states that a Final EIS must be accepted by a government entity before a project can proceed.  The accepting authority for state agency actions is the Governor.  For county actions, the respective county Mayor or designated department director must accept the EIS.  We believe this law should be changed, because there is room for abuse.  Do you think the Mayor or the DPP Director will reject the rail project EIS or say it is deficient, even if it is?   

Can We Afford Another EIS Fiasco Like the Superferry?

Well, we have already experienced a fiasco with the EIS for the Superferry.  The State government tried to push it through but the courts said “No.”   We were not necessarily opposed to the Superferry, but we are happy that the courts ruled to uphold the environmental assessment process.  Will the courts need to decide the fate of the rail project EIS as well?  

We know that there are people watching the process closely.  Section 205A-33, Injunctions, states, “Any person or agency violating any provision of this chapter may be enjoined by the circuit court of the state by mandatory or restraining order necessary or proper to effectuate the purposes of this chapter in a suit brought by the authority or lead agency.”  

We are tired of court cases just as many of you are.  However, if the laws are not followed, sometimes that is the only course of action.  A very important part of the EIS process is to identify measures to minimize adverse effects of a project, and alternatives to the action and their environmental effects.  A thorough visual study of scenic resources must be included in the Draft and Final EIS.  Such a study will make it clear whether other alignments should be considered.  Once the rail is built, it will have lasting and irreversible effects on the beauty of our island.  It is therefore crucial to identify the alignments or areas which will have the least impact on our scenic viewplanes and other resources.  This is what is referred to in Chapter 343 as an “irrevocable commitment to loss or destruction of any natural resource.”  In order to conserve and protect the quality of our environment, the government must follow the environmental disclosure laws to avoid building structures which degrade it.