Board Talk: Wind Farm, Water Holdovers

posted in: December 2016 | 1

Opponents Block Efforts to Allow Wind Farm to Harm Rare Animals

On November 10, multiple requests for a contested case hearing forced the state Board of Land and Natural Resources to defer taking action on a request by the Department of Land and Natural Resources’ Division of Forestry and Wildlife to approve an incidental take license and a habitat conservation plan for Na Pua Makani wind farm on O‘ahu’s North Shore.

(In its ruling late last year on the Conservation District Use Permit for the Thirty Meter Telescope on Mauna Kea, the Hawai‘i Supreme Court made it clear that the Land Board may not issue a final decision on a matter when a contested case hearing has been requested before the vote. As a result, the Land Board has recently started explaining at the start of and throughout its regular meetings the public’s rights to and procedures regarding contested case hearings.)

The incidental take license would have allowed the farm to incidentally injure or kill limited amounts of eight species federally listed as threatened or endangered: the Newell’s shearwater and the Hawaiian black-necked stilt, coot, moorhen, duck, goose, short-eared owl, and hoary bat. Mitigation measures for the waterbirds called for installing fences, predator traps and monitoring supplies, and/or educational signs to reduce fatalities of the birds at managed wetlands in Kailua and Kahuku. Mitigation for takes of shearwaters or owls involved funding related research or management measures. As for the bats, which are the animals most likely to be taken and which had the highest allowable take levels under the proposed license, Na Pua Makani Power Partners would be required to conduct habitat restoration and monitoring at Poamoho Ridge, in addition to funding bat research.

The facility, which received a lease from the Land Board in October, will consist of nine wind turbines capable of producing up to 25 megawatts of electricity. Mike Cutbirth, manager of Na Pua Makani Power Partners, told the Land Board that the project will generate electricity at about half the cost of burning oil.

“This is the lowest cost wind energy project in the history of Hawai‘i,” he said, adding that it will contribute $2 million to a community benefit fund over the life of the project.

Despite its potential benefits, a number of area residents remained skeptical. Sean Quinlan, newly elected state representative from the area, testified that in all of his canvassing of his district, he met no one who supported the project. He also said he found the proposed mitigation measures inadequate.

“I’m not sure we should continue to invest huge sums of money to build centralized distribution models,” he said, noting that residential solar photovoltaic systems have benefitted homeowners the most.

State Sen. Gil Riviere also testified in opposition and went so far as to request a contested case hearing on behalf of himself and the community group Keep the North Shore Country.

Kent Fonoimoana, president of the Kahuku Community Association, also requested a contested case hearing on behalf of himself, the association, and a group called Makani o Kahuku. “You are charged with the protection of our environment,” he told the board. “Solar is far better in not killing critters.”

(Earlier in the meeting, the Land Board denied a request for a contested case hearing he had made in October regarding the state lease for the project. Upon the advice of its deputy attorney general, the board found that Fonoimoana had no standing or property interest to warrant granting him a hearing.)

A representative of Tetra Tech, which prepared the habitat conservation plan for the project, admitted that there is a lot of uncertainty in anticipated take levels, “but we use the best science available … to come up with the plan. We also use really conservative estimates of developing the take estimates.”



Board Grants Holdovers To Nine Water Permittees

In January, 1st Circuit Judge Rhonda Nishimura issued a ruling in a Maui water case that caused panic among those who had been diverting water from state lands under revocable permits. Nishimura found that state law never intended revocable permits held by Alexander & Baldwin and its subsidiary, the East Maui Irrigation Co., Ltd., to be endlessly renewed, thereby closing off any opportunity for others to gain access to that water or to evaluate the environmental impacts of the diversions. She therefore ruled that the four permits those two companies held — which had been regularly renewed by the Land Board for more than a decade — were invalid.

Although Nishimura’s ruling spoke specifically to A&B’s and EMI’s permits, many throughout the state, including the state itself, were convinced that it meant that all of the state’s revocable permits for water were in danger. To ensure that those permittees continued to receive water pending Land Board approval of their applications for a long-term lease, the Legislature passed and the governor signed Act 126. This measure provides for the annual approval of a holdover of water permits for up to three consecutive years, provided that they are consistent with the public trust doctrine.

On November 10, the Land Board finally took advantage of the act and approved holdovers to nine permittees on Kaua‘i and Hawai‘i. Three of them provide domestic water, which is a public trust use, according to Kevin Moore of the DLNR’s Land Division. All of the others, except for two that provide water for hydropower plants, use their water for agriculture. In making its determination that the uses comply with the public trust doctrine, Land Division staff wrote in its report to the board that “making irrigation water available to farmers and ranchers promotes agricultural use of public land and water. It also allows for the local production of food, supporting the goal of food sustainability and food security for Hawai‘i. It may also translate into lower prices for consumers when produce does not have to be shipped to Hawai‘i from outside of the state. Any tension between identified public trust uses of water and the constitutional mandates above will be resolved in the process of issuing water leases, because section 171-58, HRS [Hawai‘i Revised Stat- utes], requires the joint development of a water reservation to support current and future [Department of Hawaiian Home Lands] homestead needs.

“The hydroelectric use of water allows utility companies to provide clean energy to domestic and commercial users. This

method of energy production also supports Hawaii’s Clean Energy Initiative, which sets goals for the state to achieve 100 percent clean energy by 2045 coming from locally generated renewable sources. Further, those hydroelectric projects that return water to the same stream or other body of water from which it was drawn are considered non-consumptive. Although hydroelectric projects are not an identified public trust use of state waters, the public trust concerns will be addressed in the processing of the water lease applications under Section 171- 58, HRS.”

The Land Division recommended that rent during the holdover remain the same, except for those permittees not paying at least $480 a year. With regard to future rent calculations, the division’s report noted that it has met with the Department of Hawaiian Home Lands, Office of Hawaiian Affairs and the Office of Environmental Quality Control to devise a method of “charging for the use of water in a way that will help to sustain the resource. On September 15, 2016, the agencies met with three eco- nomics professors from the University of Hawai‘i to discuss possible methodologies for valuing the water and assessing charges for its use.”

— Teresa Dawson

One Response

  1. Hope Kallai

    KIUC’s North Fork Wailua is listed as a consumptive use, contrary to RP to 65 year lease application, and resolution authorizing non-consumptive use under HRS 171-58(c).

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