Board Makes its Choice for Maui Wind Power Developer
“This is Matt,” Land Division administrator Dierdre Mamiya told the Board of Land and Natural Resources, motioning toward a bespectacled young man to her right. And, she added, contrary to what attorney Gerry Sumida had earlier told the board that day, Matt Myers, a planner in her division, “did not give any verbal approval” for Hawai`i Wind Energy to collect wind data at Ukumehame, Maui, site of a proposed 20-megawatt wind farm.
If he had, Mamiya said, she might have fired him, since verbal approvals can and have put the state into legal trouble.
At the February meeting, Sumida had tried to assuage the board’s concerns about Hawai`i Wind’s lack of site-specific wind data by saying the company had permission from Myers to park a truck with a wind monitor on the site.
Not so, Mamiya said. And to judge by the report to the board from the Department of Land and Natural Resources’ Land Division staff, Sumida’s “miscommunication” was typical of Hawai`i Wind’s camp. Among other things, the staff report states that Hawai`i Wind CEO Brian Hayashida had said he was working with Clipper Windpower to finance his project and meteorologist Richard Simon when, in fact, neither was involved.
When all was said and done, DLNR staff concluded that Hawai`i Wind’s competitor, GE Wind Energy/Hawi Renewable Development (GE/HRD), would “complete the project much more successfully and timely than Hawai`i Wind Energy.”
After thanking the competing entities for their interest in wind energy development and Mamiya for her work, the Land Board authorized the issuance of a 30-year lease to GE/HRD for a wind farm on roughly 10 acres of state conservation land.
Dual Process
On January 24, the Land Board had given Conservation District Use Permits to build wind farms to both GE/HRD and Hawai`i Wind Energy.
For Sam Lemmo, a staff planner at the Department of Land and Natural Resources, the situation was unprecedented. “In my 12 years of experience at the DLNR, we’ve never had a situation where we were processing two [Conservation District Use Applications] simultaneously for the same use at the same site,” Lemmo told the Land Board.
GE Wind and its previous incarnations, Zond Pacific, Inc., and Enron Wind, had spent $1.14 million as of November on planning for the 20-megawatt wind farm at Kaheawa Pastures, Ukumehame, Maui, $215,000 of it on the environmental impact statement and $350,000 on equipment to collect wind data from the site. Hawai`i Wind Energy, which filed its CDUA last year using documents prepared years earlier by Zond, had spent $298,300 by November, and at the time was in the process of setting up wind monitoring equipment.
At the January 24 meeting, board members Tim Johns and Lynn McCrory criticized the process that led two companies to compete for the same permits and leases. Normally, leases for state land are granted through public auctions. But in 2002, the state Legislature enacted a law – responding specifically to the needs of this wind farm – that calls for direct, negotiated leases for renewable energy projects. This forced the competing developers to invest money in their plans with no guarantee of a payoff. It also places the state in the uncomfortable position of having to choose between the two developers.
The law was intended to make sure applicants who spent time and resources developing a renewable energy project could avoid the risk of being outbid at a public auction. But as a November 2002 Land Division report states, “Ironically, now that the Department has successfully modified the statute to allow for direct leasing, a new entity, Hawai`i Wind Energy, has entered the picture desiring to pick up where Zond [now GE Wind] left off and complete the wind farm project in competition with GE Wind Energy.”
Back in April 2000, when the Land Board approved a Conservation District Use Permit to Zond, a condition of approval was that work start within a year. Zond was apparently unaware of the requirement. As its attention was focused on problems relating to the lease of land it sought, the company says, the deadline slipped by, unnoticed.
In May 2002, General Electric Power Systems acquired many of Enron Wind’s assets and many of the staff involved in the Maui wind farm project went with them. But after passage of the direct leasing law, Hawai`i Wind Energy – not incorporated until April 2002 — jumped into the game.
In testimony submitted to the Land Board last December, Henry Curtis, executive director of the group Life of the Land, wrote, “If the first company spends over $1 million for the CDUA, is it right for a second company to save money by copying documents? If both GE’s and HWE’s projects are approved by this board, a huge can of worms will have been opened. Multiple CDUAs for the same property will become the norm. This should not be allowed.”
The Land Division had favored GE/HRD when it recommended last November that the Land Board approve in principle the issuance of a direct lease to the companies. GE/HRD already had more than the minimum amount of wind data financial institutions require (at least one year) to determine the area’s ability to provide power. The group had also made headway on a power purchase agreement and study of the farm’s ability to fit in with its electricity grid (an interconnection study) – both are required by the Public Utilities Commission.
On the other hand, Hawai`i Wind had not yet begun its wind or interconnect studies, was on a waiting list for a power purchase agreement, and was still shopping for an investor to back the project.
Furthermore, Land Division staff indicated it was only fair to favor the company that did the “bulk of the upfront work,” including surveys of plants, bird life, and archaeological sites. At the November meeting, however, after hearing pleas from Hawai`i Wind, the Land Board decided not to pick a favorite and to allow both projects to move forward.
‘No Reason To Do Otherwise’
By January, Hawai`i Wind had a new partner, Global Renewable Energy Partners, a wholly owned subsidiary of Danish wind turbine manufacturer NEG Micon. Sebastian Nola of Global Renewable told the Land Board then that his company did not need a full year’s worth of site-specific wind data, and that their data on “the local general area was sufficient enough to set the stage for the development of the project” and secure financing.
By the February Land Board meeting, NEG Micon’s president had written a letter stating it would finance Hawai`i Wind’s project. As to concerns that the Mitsubishi turbines this partnership proposed to use (MWT-600R turbines) had not been certified, a NEG Micon representative claimed certification would be relatively easy to obtain.
Regarding Hawai`i Wind/Global Renewable’s credibility, attorney Sumida stated that CEO Hayashida had been instrumental in developing a wind farm at South Point on the Big Island. Global Renewable, he said, was “a strong, reputable player.” Addressing the perception that Hawai`i Wind was cheating by piggy-backing on Zond/Enron’s groundwork, Sumida said, “We’re talking about business entities. What happened was Zond’s permit expired… Once it expired, then the site was available to anyone else. That’s when Hawai`i Wind sought to take advantageÉ If a third party came in, it would be the same thing.”
But all of Hawai`i Wind/Global Renewable’s rebuttals to the board’s and staff’s concerns about wind data, equipment, experience, and credibility could not negate the fact that GE/HRD had several years of site-specific wind data, adequate financing, and had “nearly completed” its interconnect study and power purchase agreement with Hawaiian Electric Company, according to a staff report.
“Having no reason to do otherwise,” Maui Land Board member Ted Yamamura moved to give the lease to GE/HRD. His motion was unanimously approved.
A Second Farm?
Back in January, Land Board chair Peter Young had asked Hawai`i Wind if it could build a wind farm at another site in the same area. “The state parcel is 1,987 acres,” he said. “The application is for 8.7. Would you consider evaluating the whole site and seeing if there is an alternative site?”
Nola said his response that would depend on whether an EIS was required, on making sure the two wind farms wouldn’t interfere with each other, and on whether Maui Electric could handle more wind energy.
On Maui, he said, “there is not a lot of load, the demand is not high. You introduce a renewable system like wind energy, which is an intermittent resourceÉ[and] integrating wind into the Maui grid becomes an important aspect of what can be accomplished. You might be able to integrate 20 megawatts of wind. But can they integrate 10 more? Can they integrate 40? 100? That’s something that needs to be worked out.”
Assuming MECO wanted more wind power and that there was enough wind, Johns asked, “If you had to go to a different site, and you had to pay for an EIS, take the time to do an EIS, is the project still viable?”
“Assuming those factors, I believe we can make it a viable project,” Hayashida answered. Nola agreed. In March, Hawai`i Wind announced that it was looking into other development possibilities, including building a wind farm downwind of the GE/Hawi site.
Board Extends Cure Period For Kohala Violations
“It doesn’t appear she takes this too seriously,” Kaua`i Land Board member Lynn McCrory said of Chandi Heffner, whose months-long trip to remote India made her unavailable to address Conservation District violations on her property that date back to 1999.
To resolve the violation that occurred when she bulldozed a jeep road on land in the Conservation District in North Kohala, Hawai`i Island, Heffner was supposed to have obtained an after-the-fact Conservation District Use Permit for the land changes by November 26, 1999. By the end of February, she still had not met this condition.
At the meeting, Heffner’s attorney Lisa Bail asked that the board defer action since Heffner, being abroad and unreachable, did not know the matter was being heard and had left no instructions to Bail before she left.
The DLNR’s Land Division had recommended that the board determine that Heffner had violated its rules by missing the deadline for the permit, that it require payment of $607 for administrative costs, and that it order Heffner to submit an application for a Conservation District permit by the end of May. If she failed this time to meet board demands, the staff recommended the board impose fines of $2,000 a day, with the clock starting on November 26, 1999. And if she failed to file a CDUA by the deadline and failed to pay fines arising from that, staff recommended that the matter be referred to the Attorney General.
“Normally, I would say, ‘Go forward,'” Land Division planner Sam Lemmo told the board. But “I think, at a minimum, she should know what’s going on.”
McCrory suggested that Bail consider flying to India to talk with Heffner, since fines could reach about $2.5 million if the Land Board approved staff’s recommendations and Heffner missed her deadlines.
Not only did Heffner miss the original deadline to cure her violations, she and her attorney have argued that an application Heffner submitted more than three years ago — which the Land Division had rejected because of an incomplete environmental assessment — satisfied her obligation to the DLNR.
The Land Division received Heffner’s first CDUA in January 2000. But after reviewing her final environmental assessment, and finding it incomplete, the division asked her to withdraw the application “in lieu of asking the Board to deny the application,” according to a DLNR letter. (According to a staff report, the environmental assessment did not “identify all historic sites, address issues relating to traditional and customary native Hawaiian rights, address customary and traditional access rights to the property and claims that the applicant blocked access to the shoreline, and properly address all comments raised during the public comment period.”)
And so in June 2000, George Lindsey, Jr., acting on Heffner’s behalf, withdrew the first application and tried to submit a new one. But since the Land Division cannot process any application without a complete EA, the second application was rejected.
Two years passed, during which a group called Malama Na Kahakai (translated as ‘take care of the beaches’) and more than a dozen individuals sued Heffner, claiming she had denied them access to the shore. Their request for an injunction and restraining order were denied in March 2002. Around the same time, the state Office of Hawaiian Affairs complained to the Land Division about the lack of resolution on the issue.
Last April, following up on the OHA complaint, the Land Division reminded Heffner of her obligation to submit a proper CDUA. Later that month, however, Bail wrote the division that Heffner had transferred her property to Keawe`ula, LLC (owned solely by Heffner), that there was ongoing litigation regarding the property and shoreline access, and that Heffner’s two CDUA submittals “had completely complied with DLNR’s requirements.”
The Land Division responded that the mere submitting of applications was insufficient – that Land Board approval was also required. At the February Land Board meeting, planner Sam Lemmo told the board he was “dumbfounded” by Heffner’s idea that submittal of an application alone met the requirements of the Land Board’s order.
When Heffner had not responded to another Land Division request for a CDUA by May 2, 2002, the division referred the matter to the state Attorney General’s office. But the attorney general bounced the ball back into the DLNR’s court, recommending that the Division of Conservation and Resource Enforcement investigate whether the violations still existed.
Last November, a DOCARE investigation found that “two metal containers are still located on the property, one located approximately seventy yards from the shoreline area at a beach called Keawe`ula and the other located further south at a beach called Keawanui,” a staff report states. And the road Heffner made was still there.
At the February meeting, Bail told the Land Board that Heffner cannot be reached when she’s in India, but that she was expected to return in mid-May. Bail asked the board to defer action until some time afterward. Although board member Johns expressed the view that board business should not stop simply because Heffner was out of the country, in the end, the board gave Heffner until July 1 to pay her administrative fine and file a new after-the-fact CDUA for unauthorized road improvements and tree removal.
Extension Granted To Resolve Beach Erosion at Aliomanu
One seawall can wreak havoc far beyond its footprint. That’s been clear to Kaua`i homeowners living downshore of a seawall built at Aliomanu for years.
In 1982, Kaua`i County approved a Special Management Area permit for a 400-foot-long rock revetment along five properties at Aliomanu in Anahola. Permit conditions included a requirement that if the wall harmed resources within the coastal area, the permit holders would have to change the structure. After neighbors argued that the seawall was causing erosion on their properties, the Kaua`i Planning Department and Planning Commission ordered its owners to show why the SMA permit should not be modified or revoked.
Today, litigation over the wall is pending before the Hawai`i Supreme Court. In 1991, neighboring landowner Elsa Holtwick sued the seawall owners and won a settlement of $128,000 on September 17, 1991.
This same seawall is at the root of problems surrounding a beach restoration project down the beach.
Last December, the Land Board gave Josh Simpson 60 days to remove boulders and fill he placed in front of his property, about 200 feet from the Aliomanu seawall. The board also ordered him to apply his $4,000 fine toward a beach restoration project within one year.
But at the Land Board’s February 28 meeting, Simpson’s attorney Jonathan Chun sought a time extension to remove the boulders. Chun told the board that Simpson wants to remove the boulders and install sandbags simultaneously. That, Simpson believed, would be more efficient and environmentally friendly than doing the work consecutively. Chun also sought clarification as to whether Simpson would be required to remove boulders placed on his property before he bought it.
Also, Chun said, because Simpson might need to have a county SMA permit for putting in the sandbags, he would need additional time to allow for processing this permit.
Land Division planner Sam Lemmo had no objection to the request; in fact, he said it was probably better not to remove boulders during the high surf season. But, he added, the idea of replacing boulders with sandbags was “a bitter pill,” since “I don’t feel structures are imminently threatened.”
Wasted Effort?
The sandbag idea also did not sit well with Kaua`i Land Board member Lynn McCrory.
“If they’re looking at sand bags, they’re not really looking into what we asked them to do. [And] leaving boulders in an area where we already have a high degree of erosion doesn’t make sense. They should be looking long-term,” she said.
But Lemmo responded that issues with Simpson’s neighbors and the county complicated matters. “It’s a hornet’s nest of issues. This is going to take some finesse to get something going. It’s really not a difficult problem to solve. We just need cooperation.”
Lemmo continued that the Simpsons are willing to participate in a beach restoration project, but their neighbors, the Lemkes, aren’t. According to Chun, the Simpsons are looking for sand sources at the Anahola River mouth and offshore sand cells. However, Lemmo said if they pay to replenishment sand on the beach fronting their property, and currents push the sand toward the Lemkes property or that of other non-participants, “the Simpsons may be upset because they’re paying for restoration of someone else’s property.”
The Aliomanu seawall has caused severe erosion of two other properties immediately south of the wall, owned by the Lemkes and Lizamas, as well as damaging Simpson’s lot, Lemmo wrote in his report to the board.
“The flanking that is affecting the Lemkes and Lizamas appears to be continuing down the coast and has likely accelerated erosion on the Simpson property as well, causing them to build an illegal structure,” it states.
Chun said, “Unless we have an agreement [with the Lemkes], there will still be flanking erosion from the neighbors property out into our property and it’s not going to work.” He added that the Lemkes, who have had to move their house inland to avoid losing it, want to build a solid rock wall to protect their property.
After some discussion on how to encourage cooperation among the various parties, McCrory moved to extend the boulder removal deadline to August to allow time for developing a plan for a proper restoration project.
“There is momentum to do something at Aliomanu,” Lemmo said. “The county could be a player.” The motion was approved.
— Teresa Dawson
Volume 13, Number 10 April 2003