2008-02-12_Opinion_re_Mud_Lane - Laserfiche WebLink

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Honorable Dominic Yagong February 12, 2008 Page 4 Second, EXEMPTION CLASS 2: Replacement or reconstruction of existing structures and facilities where the new structure will be located generally on the same site and will have substantially the same purpose, capacity, density, height and dimensions as the structure replaced. 1. Replacement or reconstruction of existing . . . paved roads or of existing gravel roads by resurfacing with asphaltic concrete pavement. The completed road will be located within the existing right-of-way and will have substantially the same purpose, capacity and dimensions as the road prior to construction. 2. Modernization of an existing highway for safety purposes by resurfacing, widening less than a single lane width, adding shoulders, adding auxiliary lanes for localized purposes (weaving, climbing, speed changes, etc.) and correcting substandard curves and intersections. This project will replace or reconstruct the gravel roadway, within the existing right-of- way, and will have substantially the same purpose and capacity as the historical jeep or stone paved road use. It should have reduced width(12 feet wide rather than the 13-foot wide stone paved or dirt surface) and may have auxiliary turnouts for safety. Third, EXEMPTION CLASS 4: Minor alteration in the condition of land, water, or vegetation. 2. Maintenance and removal of all vegetation from within the County road rights-of-way that pose a hazard to the health and welfare of the public. This project will maintain and remove some vegetation from the right-of-way, enough to allow safe vehicular and pedestrian traffic. Thus, it appears that the project facially falls within the exemptions stated above, and no EA is required. The recent case of Sierra Club v. Dept. of Transportation, 115 Hawaii 299 (2007) (the "Superferry Case")reminds us that the "secondary effects" of an action must be considered in determining whether an exemption can apply. Exemptions only apply if their primary and secondary effects together will "probably have minimal or no significant impacts" on the environment. In the Superferry Case, the State was faulted for failing to consider the substantial foreseeable new impacts that the Superferry CEO even wrote to the Senate about.