High Court Upholds Board Permit For Na Pua Makani Wind Farm
After years of strife, the feud over the Na Pua Makani wind farm’s habitat conservation plan and incidental take permit is finally over.
In May 2018, the state Board of Land and Natural Resources approved a habitat conservation plan and incidental take license for Na Pua Makani Power Partners, LLC, which had planned to construct a 25-megawatt wind farm in Kahuku, Oʻahu consisting of eight to ten turbines.
The plan allowed the wind farm to injure or kill up to 51 endangered Hawaiian hoary bats, or ’ōpe’ape‘a, over 21 years.
The board’s decision came after a contested case hearing initiated by the community group Keep the North Shore Country and Kahuku resident Elizabeth Rago, and went against the hearing officer’s recommendations to deny the plan.
Keep the North Shore Country (KNSC) appealed the board’s decision in 1st Circuit Court. The group alleged that Na Pua Makani’s plan had failed to prove it would minimize bat take to the maximum extent practicable. It also failed to provide evidence that the bats will survive and recover as a species, and to adequately address cumulative impacts of wind farm take in the island’s bat population, the group alleged.
The group argued that the Endangered Species Recovery Committee that advises the Land Board did not base its recommendation to approve the plan on the best scientific information available. It also argued that the Land Board should have required former committee member Sam Gon, who later became a board member, to recuse himself from the May 2018 vote. Finally, the group argued that the Land Board should have provided an ex parte
letter to members from state Sen. Lorraine Inouye regarding the wind farm, even though none of the board members had read it.
In May 2019, the court rejected all of the group’s arguments. The court found that the ESRC did, indeed, rely on the best scientific information in making its decision, particularly the committee’s own bat guidance document.
The court also stated that it could find no legal authority that would have required Gon to recuse himself, and that KNSC effectively waived its right to challenge Inouye’s letter when it failed to raise any objections to the Land Board.
The group appealed to the state Supreme Court.
On February 22, the high court unanimously ruled in favor of the Land Board.
“Contrary to KNSC’s implied argument that either KNSC or the courts can and should identify the best scientific and other reliable data available, the Legislature delegated that responsibility to the Board and the Committee,” the court wrote. “[W]e note that the Committee and the Board are in the best position to determine what constitutes the best scientific and other reliable data available.”
KNSC, and even the contested case hearing officer, had faulted Na Pua Makani for proposing a cut-in speed of 5.0 meters per second (m/s), when studies suggested that 6.5 m/s would provide greater protection to the bats. (Cut-in speed is the wind speed at which a wind farm allows its turbine blades to start spinning. Because bats are known to forage in low wind, find farms practice low wind speed curtailment to avoid any harmful interaction.)
The Supreme Court noted that the Land Board had acknowledged the study that the higher cut-in speed was more protective. But the board also cited in its decision two studies showing that there was no significant difference between the 5 m/s and 6.5 m/s with regard to bat fatalities. The board had also considered a study of another wind farm on Oʻahu’s North Shore, which found that about 80 percent of bat observations occurred at mean wind speeds of less than 5 m/s, the court noted.
The court debunked KNSC’s suggestions that the Land Board had not properly considered bat fatality data from the Kawailoa wind farm, or the possibility that Na Pua Makani’s taller-than-normal turbines would pose a greater danger to the bats.
The Kawailoa facility is also located on Oʻahu’s North Shore, but the Land Board believed the Kahuku wind farm, which is closer to the Na Pua Makani site, was more comparable. The Kawailoa wind farm is estimated to have killed many more bats than the Kahuku facility.
In its decision, the Land Board noted that Kawailoa had far more bat activity in general than the Kahuku or Na Pua Makani sites — two to twenty times more — and that the latter two sites were adjacent to each other and had similar levels of bat activity.
“Considering the Board’s detailed rationale for excluding the Kawailoa Wind Farm data, we cannot say that the Board’s treatment of the data was unreasonable,” the court wrote.
The court also highlighted the Land Board’s consideration of the wind farm’s potential to eliminate about a million tons of carbon dioxide over the course of the license term. Given that global warming will be disastrous for wildlife, the board found, “[w]hile the [wind farm] will have only a small effect in the struggle against global warming . . . ‘[w]e cannot afford to ignore even modest contributions to global warming.’”
“In other words,” the court stated, “while the wind farm would not completely prevent the harms global warming would visit upon ‘ōpe‘ape‘a, it is one small step to reducing such harms.”
The high court agreed with the circuit court’s assessment that Gon did not need to recuse himself and that KNSC had waived its right to challenge the ex parte letter from Sen. Inouye. KNSC has asked for a copy of that letter, but had been denied.
The court suggested that the Land Board could do more to “remove doubts of impropriety and build confidence in its permit approval process.”
“KNSC contends the Board should have at least retained a copy of the letter, even if it was prohibited from considering the letter’s contents during the proceedings. We agree,” it stated.
During the court challenges to Na Pua Makani’s conservation plan and take license, the facility was completed. According to a Department of Land and Natural Resources press release issued after the ruling, as of the last annual reports at the end of June 2021, “the Na Pua Makani wind farm had not had any known takes of bats, the Kahuku wind farm had had only one in the last 7 years, and the Kawailoa wind farm had not had any since it installed deterrents in June 2019.”
The U.S. Fish and Wildlife Service also announced recently that it is considering down-listing the bat from endangered to threatened.
(For more background on this, see, “North Oʻahu Wind Farm Wins License To Incidentally Kill Protected Bats, Birds,” from our June 2018 issue, available at www.environment-hawaii.org.)
East Maui Permits Require Environmental Review
About a week after the Hawaiʻi Supreme Court issued its ruling in the Na Pua Makani case, it published a decision in another case that had long been awaiting a final resolution.
On December 12, 2014, the Land Board approved the continuation of four revocable permits to Alexander & Baldwin, Inc., and its subsidiary, East Maui Irrigation Co., Ltd., allowing for the diversion of water from East Maui streams on 33,000 acres of state land.
The approval was part of the Department of Land and Natural Resources Land Division’s annual renewal of revocable permits set to expire at the end of the year.
Despite the fact that those permits are supposed to be temporary, many of them had been annually renewed or continued for more than a decade. Such was the case with the A&B and EMI permits.
On April 10, 2015, East Maui residents Healoha Carmichael, Lesley Jacintho, and the group Na Moku Aupuni O Koʻolau Hui filed a complaint in 1st Circuit Court, alleging that the renewal of A&B/EMI’s longstanding permits required the preparation of an environmental assessment under the Hawaiʻi Environmental Policy Act (HEPA, Chapter 343 of Hawaiʻi Revised Statutes, or HRS).
“By authorizing the use of this environmentally and culturally significant area of Maui without complying with Hawaiʻi Revised Statutes Chapter 343, the BLNR violated the law. By their continued diversion of East Maui water without undertaking environmental review, so did Alexander & Baldwin and East Maui Irrigation,” the complaint stated. It added that as a result of the companies’ diversions, the plaintiffs’ “traditions and customs of growing kalo, gathering from East Maui streams, and fishing along the coastline have suffered.”
They asked that the permits be voided, but that 8.4 million gallons a day still be allowed to be diverted to Maui County to serve upcountry needs.
In 2016, the court found that the permits were not an action subject to HEPA. However, it still invalidated the permits because HRS §§ 171-40 and 171-55 “speak to the ‘temporary’ nature of the permits, notwithstanding affording the board discretion to continue the permit on a month-to-month basis for additional one-year periods.”
The revocable permits had expired on June 30, 2001, but were annually continued in a “holdover” status afterward.
“The December 2014 revocable permits which were either continued or renewed on a holdover status (uninterrupted for the last 13 years through December 2014) are not ‘temporary’ as envisioned under Chapter 171,” the Circuit Court found.
The plaintiffs, the state, Maui County, the companies (as well as A&B subsidiary Hawaiian Commercial and Sugar Co.) all appealed the decision. On June 18, 2019, the Intermediate Court of Appeals overturned the Circuit Court’s decision, finding that HRS § 171-55 authorized the Land Board to extend revocable permits beyond one year, so long as they were temporary and served the best interests of the state.
A&B had for years been seeking a long-term lease or license to continue diverting the water and needed the permits to keep the water flowing to its Central Maui sugarcane fields in the meantime. The companies also provided some of the diverted water to the county Department of Water supply.
The ICA also ruled that a clause in HRS § 171-55 (“notwithstanding any other law to the contrary”) also exempted the permits from HEPA.
The plaintiffs appealed the decision. The state Supreme Court heard oral arguments in May 2020. Nearly two years later, on March 3, it issued its ruling.
Moot Or Not?
In their filings to the court, both the state and the companies diverting and using the water argued that the petitioners’ claims were moot.
At the end of 2016, HC&S stopped cultivating sugar and closed its plantation. The companies noted that as a result, EMI diverted much less water from the permit areas. They added that the state Commission on Water Resource Management had set interim instream flow standards for most of the diverted streams, “ensuring that Petitioners have sufficient water to support their customary and traditional practices.”
The company had also completed a draft environmental impact statement for its proposed long-term lease, and the Land Board had more recently capped the diversions under the permits to 45 million gallons of water a day, they argued.
The Supreme Court, however, ruled that the questions in this case were not moot.
“Because the BLNR’s continuation decisions for revocable permits apply for only one calendar year at a time, those decisions ‘evade full review’ and no plaintiff would be able to complete a lawsuit seeking to void the continuation of a permit before the continuation itself expired. Thus, this case satisfies the requirements for the ‘capable of repetition’ exception to the mootness doctrine,” the court wrote.
Cases affecting the public interest are also exempt from the mootness doctrine.
In this case, “[t]he record indicates that the BLNR continues hundreds of revocable permits yearly. Given this practice, clarification of the BLNR’s authority to issue revocable permits under HRS § 171-58 (which governs the issuance of revocable permits for water) and to continue such permits under HRS § 171- 55 would be of significant value to the BLNR and DLNR officials who oversee the administration of the revocable-permit system. Clarifying whether the BLNR is or is not required to conduct (or order applicants like the A&B Defendants to conduct) EAs and/or EISs under HEPA when continuing revocable permits would also be of value to these officials,” the court wrote.
‘Best Interests’
HRS § 171-55 allows the board to continue temporary permits that “serve the best interests of the state” beyond one year “on a month-to-month basis for additional one year periods.”
With regard to the A&B/EMI permits, however, the court found, “the BLNR continued the revocable permits for more than ten years—using a sweeping process that applied to hundreds of other permits— without scrutiny and without an adequate explanation as to why a continuance served the best interests of the State.”
The high court stated that it was particularly troubled by the Land Board’s failure to make “best interest” findings given the magnitude of the water diversions and the board’s trustee obligations. At a minimum, the Land Board must make findings “sufficient to enable an appellate court to track the steps that the agency took in reaching its decision,” it continued.
It added in a footnote that A&B’s and EMI’s role in delivering water to the county “‘for residential domestic use, businesses, government institutions, schools, churches, farms, non-profits, fire prevention, and Hawaiian Homelands homesteads in Upcountry Maui’ is worth noting.”
In another footnote, the court stated that it found no merit in the argument put forward by A&B/EMI and the state that the permits were issued in accordance with the public trust doctrine.
“As this court has held … ‘private commercial use’ is not a protected ‘trust purpose.’ … [T]he fact that some of the water would be used for public purposes does not necessarily justify the continued use of the remaining water for commercial purposes,” it stated.
Environmental Review
The court also found that the “notwithstanding” clause in HRS § 171-55 did not exempt A&B/EMI’s permits from environmental review under HEPA.
“Because it is possible to integrate HRS § 343-5(a)’s EA requirement into the revocable- permitting process authorized by HRS § 171-55, HEPA contains no ‘law to the contrary’ of HRS § 171-55,” the court wrote.
It also pointed out that the legislative history of HRS § 171-55 indicates that the notwithstanding language was added in 1990 “to clarify that the BLNR has authority to issue temporary permits without public auction, [not to] create an exemption from HEPA or any other regulatory scheme.”
And contrary to the Circuit Court’s finding, the Supreme Court determined that the Land Board’s 2014 continuation of the four permits constituted an action subject to HEPA review.
“As demonstrated by our opinion in Umberger [a case involving aquarium collecting permits issued by the DLNR], it is the applicant’s permitted activity – i.e., the activity for which the A&B Defendants initially sought permit approval – that constitutes ‘action’ within the meaning of HEPA,” the court stated. The permits gave the companies the right to occupy and use state lands in Honomanū, Huelo, Keʻanae, and Nāhiku to collect and divert stream water.
Last September, the Land Board accepted a final environmental impact statement A&B had prepared for its proposed long-term water lease. In light of the fact that a final EIS on the effects of the water diversions has been completed, the Supreme Court remanded the case back to the Circuit Court, ordering it to determine whether permits are now exempt from environmental review.
The court noted that while the permits were continued in 2014 along with hundreds of others, “we do not opine on the validity of other permits not before the court. Given the duration, magnitude, and nature of the uses authorized by the revocable permits here, they may be distinguishable from other, smaller-scale uses similarly authorized by the BLNR. “
The Circuit Court should continue to “exercise its equitable power as it pertains to the municipal-and residential-water needs of the upcountry Maui community,” it added.
— Teresa Dawson
For more background, see, “Decades-Long Dispute Over Maui Water Finally Reaches State Supreme Court,” from our June 2020 issue, available at www.environment-hawaii.org.
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