LIHU‘E — At the heart of a petition circulating Kaua‘i is the concern that the federal government could dictate how much water should flow in the island’s waterways. “Water rights is the biggest concern for all involved because we have
LIHU‘E — At the heart of a petition circulating Kaua‘i is the concern that the federal government could dictate how much water should flow in the island’s waterways.
“Water rights is the biggest concern for all involved because we have such specific and protected water rights here in Hawai‘i and we don’t want to let a federal process overrule them,” said Adam Asquith, who started the petition. He supports the co-op’s interest in developing hydroelectric power, but argues the Federal Energy Regulatory Commission’s permitting process is the wrong way to go about it.
Kaua‘i Island Utility Cooperative board of directors in January approved a memorandum of agreement with Massachusetts energy developer Free Flow Power to explore the viability of several hydroelectric projects using FERC permitting process.
Free Flow Power filed preliminary permit applications with FERC late last year to develop hydro power on six Kaua‘i waterways. Once approved, a preliminary permit prevents other developers from initiating projects using the same site and resources for a period of three years. The permit allows its holder time to perform feasibility studies without having the investment undermined by an outside source.
KIUC CEO David Bissell has compared hydroelectric development to a gold rush in which the waterways are the gold and the FERC process is the way to stake a claim.
Free Flow Power began staking claims on Kaua‘i’s waterways last year by filing preliminary permit requests with FERC in its own name. In response, KIUC entered into a contract with Free Flow — or memorandum of agreement — to obtain the permits. KIUC has refused to provide a copy of the contract to member-owners or divulge the cost of the agreement.
A Free Flow employee confirmed the energy developer, established in 2007, has yet to complete a hydroelectric project. To date, its achievements have pertained primarily to successfully navigating the FERC process.
When the six preliminary permits are approved, the co-op will begin project feasibility and design studies, a process Bissell and the board have said will include extensive community outreach and stakeholder input.
Bissell said he likes the FERC process and would not explore energy projects without it because it protects the investment while performing studies and feedback and helps mitigate legal issues.
KIUC did not seek member feedback in the co-op’s decision to engage in a contract with Free Flow to explore hydro power or use the FERC process.
Dissent
Three board members voted against the memorandum of agreement with Free Flow: Jan TenBruggencate, Carol Bain and Ben Sullivan.
TenBruggencate said it was not because he is against hydroelectric development. “In fact, quite the contrary,” he said. “I’m in favor where appropriate. My concern was that when we first heard about Free Flow, I was arguing we immediately needed to begin the public engagement process.
“Lacking a community engagement program, I couldn’t support it. Now what I anticipated would happen has happened in the absence of clear, accurate information so people could understand what we’re doing. Now, they’ve begun a fairly intensive outreach program and I’m hoping we can undo some of the damage.”
Carol Bain said she did not wish to violate the board’s rules against commenting about decisions made by the board, but offered that she is pleased to see the co-op’s members are interested and motivated to come forward and learn more about the hydro process. She said she views the petition as an opportunity to further educate the public about its plans.
“I think members are going to be pleased with the level of attention we’re paying and how open we are planning to be in getting reports and surveys done. I think it will put them at ease. There is no hesitancy as far as I’m concerned in following what the members want.”
Ben Sullivan said when the matter came to vote he “had some reservations about the way we were proceeding,” not in terms of hydro development but in terms of community engagement. He said he is supportive of the co-op’s plans going forward.
Asquith said that while he, too, felt that more education and outreach is necessary — which is why his petition requests a special meeting of members — his greatest concern is over Hawai‘i’s water rights and the ability of FERC to intervene and supersede the water code set in place by the state.
“I can tell you that’s absolutely, positively not true,” Bissell said at a quarterly member meeting last month. “It’s a matter of law. FERC has no jurisdiction over water rights. To get water out of these projects, we have to work with the state process, state agencies and state water commission.”
Bissell and a representative from FERC did not return telephone messages requesting comment prior to press time.
California vs. FERC
The Federal Power Act requires a project license applicant submitting to the FERC process provide satisfactory evidence that the applicant has complied with the requirements of the laws of the state.
Yet, a 1990 water rights case, California v. the Federal Regulatory Commission heard before the U.S. Supreme Court, found in favor of FERC.
The issue in California was about the stream flow for a bypass stream, KIUC legal council David Proudfoot said. “FERC experts said you needed ‘x’ amount of water and the state of California said you need twice that amount,” for the stream’s trout. The court found trout do not have vested rights to the water, so FERC trumped the state’s law.
Asquith said FERC was invoked on the Wailua River 10 years ago and the state came out against it. “That’s still their position,” he said.
Friday was a state furlough day, and no one from state’s Water Commission could be reached for comment.
William Tam, a Honolulu attorney who helped write Hawai‘i’s Water Code and was recently appointed by Gov. Neil Abercrombie to the position of Deputy Director of Water at the Department of Land and Natural Resources, has said that Hawai‘i has some of America’s most stringent public-trust water laws, but they are badly understood and essentially ignored. He blames it partly on official mismanagement and conflicts of interest.
In the meantime, Asquith continues to gather signatures for the KIUC petition, which could allow KIUC members to vote on whether to overturn the board’s agreement with Free Flow.
Although on March 29 Asquith had obtained the 250 signatures necessary to file a petition with KIUC, Proudfoot said the signatures have to be verified. The certification process was still going on Friday and expected to continue into Monday.
Proudfoot said Asquith is short a handful of signatures because those entered via the change.org website could not be adequately verified, but he “fully expects” he will have the necessary signatures submitted by Tuesday’s deadline.
Asquith said he is collecting more on Monday and turning them in. “We’ll definitely be over the top,” he said.
Members who wish to participate in the petition, may download the form from islandbreath.org and mail it to Adam Asquith at 4654 Haua‘ala, Kapa‘a, HI 96746, or call Asquith at 635-8290 and he will pick it up.
• Vanessa Van Voorhis, staff writer, can be reached at 245-3681 (ext. 251) or by emailing vvanvoorhis@thegardenisland.com.
