{"id":16711,"date":"2025-09-04T10:19:49","date_gmt":"2025-09-04T20:19:49","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=16711"},"modified":"2025-10-02T16:01:38","modified_gmt":"2025-10-03T02:01:38","slug":"board-talk-utility-hcps-new-members","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=16711","title":{"rendered":"Board Talk: Utility HCPs, New Members"},"content":{"rendered":"\n

Kaheawa Wind Farm Faces Tight Timeline To Mitigate N\u0113n\u0113 Takes Before Holdover Ends<\/strong><\/h3>\n\n\n\n
\"\"<\/a>
Kaheawa Wind Power I project on Maui. Credit: HCP<\/figcaption><\/figure>\n\n\n\n

Kaheawa Wind Power I, Maui\u2019s first wind farm, is facing the possibility of being shut down. That\u2019s the consequence if it fails to comply soon with mitigation requirements for its excessive take of n\u0113n\u0113, the Hawaiian goose that is federally listed as threatened and listed by the state as endangered.<\/p>\n\n\n\n

With its 20-year lease for state Conservation District land set to expire on January 31, 2025, the company came close to losing its authority to continue operating the 20 wind turbines that make up the 30-megawatt project. But at its December 13 meeting last year, the state Board of Land and Natural Resources granted the company\u2019s request for a one-year holdover permit. <\/p>\n\n\n\n

That holdover expires on January 31, 2026. In the meantime, the company must complete an environmental impact statement for a new lease and obtain all required approvals for a new habitat conservation plan (HCP) and incidental take license (ITL).<\/p>\n\n\n\n

Whether it can achieve that remains to be seen. A draft EIS was released on August 8. And based on discussions at meetings last month of the state Endangered Species Recovery Committee and the Land Board, the draft HCP is far from acceptable.<\/p>\n\n\n\n

Under a new ITL, the company seeks to take 69 n\u0113n\u0113, 38 \u2018\u014d\u02bbpe\u02bbape\u02bba (Hawaiian hoary bat), 28 \u2018ua \u2018u (Hawaiian petrel), 10 \u02bba\u02bbo (Newell\u2019s shearwater), and 10 \u02bbak\u0113\u02bbak\u0113 (band-rumped storm-petrel), as well as \u201cimpacts of up to 23.2 acres of suitable habitat for the Assimulans <\/em>yellow-faced bee,\u201d according to a DOFAW report.<\/p>\n\n\n\n

Even if a final EIS and HCP are accepted and approved in time, there is still the matter of non-compliance with the old HCP.<\/p>\n\n\n\n

At the board\u2019s December 13 meeting, the Department of Land and Natural Resources\u2019 Division of Forestry and Wildlife expressed concerns about the facility\u2019s impacts on protected species, especially n\u0113n\u0113.<\/p>\n\n\n

\n
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N\u0113n\u0113. Credit: Tyler R. Stephens<\/figcaption><\/figure>\n<\/div>\n\n\n

The estimated cumulative n\u0113n\u0113 take at the time of the meeting was 55. But as of April 5, 2024, mitigation by KWP had only earned it 22.6 credits, allowing the take of no more than 23 birds.<\/p>\n\n\n\n

\u201cSince April 5, 2024, KWP has diligently worked with DOFAW to raise their mitigation credits through creative solutions and the funding of propagation work. As of October 2024, KWP has approximately 45 credits and needs to complete approximately 10 more credits to mitigate their current cumulative take of 55. Nevertheless, per the HCP, KWP needs a total of 60 mitigation credits prior to the expiration of their HCP and ITL in January 2026 in addition to an additional 5 credits to mitigate lost productivity due to delayed mitigation,\u201d DOFAW\u2019s report to the Land Board stated.<\/p>\n\n\n\n

In written testimony, KWP assured the Land Board, \u201cAny impacts to threatened and endangered species during the holdover term \u2026 have either already been mitigated for or will be mitigated for by ongoing programs.\u201d<\/p>\n\n\n\n

By the end of fiscal year 2025 (June 30), cumulative estimated n\u0113n\u0113 take had increased to 56, according to a DOFAW report last month to the Endangered Species Recovery Committee.<\/p>\n\n\n\n

The report continues that as of December 2024, DOFAW and the U.S. Fish and Wildlife Service had allocated KWP I 45.68 n\u0113n\u0113 mitigation offsets \u201cfrom management that increased adult survival and fledgling production at Haleakal\u0101 and Pi\u02bbiholo Ranch N\u0113n\u0113 Pens.\u201d It was also anticipated that additional offsets from the FY 2025 breeding season would bring the company\u2019s total mitigation offset to \u201c50.3 adult-equivalent n\u0113n\u0113,\u201d the report states.<\/p>\n\n\n\n

Despite the improvement, an August 22 DOFAW submittal to the Land Board states that it is \u201cbiologically infeasible\u201d for the wind farm to fully offset its n\u0113n\u0113 take before the holdover permit expires.<\/p>\n\n\n\n

Even so, at the Land Board meeting that day, members voted unanimously to approve a recommendation by DOFAW to hold a public hearing on a draft HCP for a proposed new 23-year incidental take license.<\/p>\n\n\n\n

Before voting, Land Board members discussed at length what would happen if the wind farm cannot meet its mitigation requirements under the old HCP.<\/p>\n\n\n\n

\u201cLet\u2019s say they don\u2019t make it. They don\u2019t meet the deadline. What happens then?\u201d Maui board member Doreen Canto asked DOFAW administrator David Smith.<\/p>\n\n\n\n

\u201cWe just try to negotiate down to get some kind of mutually acceptable thing that meets the law. So we try to work with them rather than just shutting people down. \u2026 They need to be showing good faith,\u201d he replied.<\/p>\n\n\n\n

To this, Hawai\u02bbi island Land Board member Riley Smith said, \u201cI\u2019m assuming that based on this conversation that there are no consequences for non-compliance.\u201d<\/p>\n\n\n\n

\u201cI wouldn\u2019t say there are no consequences. \u2026 It comes down to prosecutorial discretion. \u2026 We could sue them. We could fine them. We could shut them down,\u201d DOFAW’s Smith said.<\/p>\n\n\n\n

Land Board chair and DLNR director Dawn Chang, a former deputy attorney general, suggested that the state\u2019s options were more limited. Non-compliance with an existing HCP \u201cis a basis upon which we cannot consider a new HCP, which would be traumatic because that would mean they would shut down,\u201d she said.<\/p>\n\n\n\n

\u201cBut you would definitely have their attention. They would understand the consequences of non-compliance,\u201d board member Smith said.<\/p>\n\n\n\n

\u201cAnd that\u2019s what the attorney general\u2019s office did in this case,\u201d DOFAW’s Smith replied. \u201cThey came in. There was very little movement on the applicant\u2019s part. The attorney general\u2019s office came in and got them moving based on reading them various options that we had.\u201d<\/p>\n\n\n\n

While he wanted to avoid having to shut down any wind farm for non-compliance, Smith said that KWP I dug its own hole.<\/p>\n\n\n\n

\u201cI don\u2019t have a lot of sympathy for them. \u2026 If they fail \u2026 it\u2019s on them,\u201d he said, adding, \u201cWe\u2019re bending over backwards to try to work with them.\u201d<\/p>\n\n\n\n

In testifying before the board, Earthjustice attorney David Henkin argued that the wind farm was already in breach of its current HCP. <\/p>\n\n\n\n

Under Hawaii Revised Statutes 195D-21(d)1, he said, \u201cthis board is supposed to suspend their existing HCP unless they have cured the breach in a timely manner, which doesn\u2019t sound like they have. And in any event, they need to cure the breach and be in compliance by the end of the permit term, which we know is biologically infeasible.\u201d<\/p>\n\n\n\n

(HRS 195D-21(d) states, \u201cNotwithstanding any other law to the contrary, the board shall suspend or revoke the approval of any habitat conservation plan approved under this section if the board determines that: (1) Any parties to the plan, or their successors, have breached their obligations under the plan or under any agreement implementing the plan and have failed to cure the breach in a timely manner, and the effect of the breach is to diminish the likelihood that the plan will achieve its goals within the time frames or in the manner set forth in the plan.\u201d)<\/p>\n\n\n\n

With regard to the draft HCP, Henkin noted that the ESRC was meeting that very same day to discuss and make recommendations on it. Earthjustice attorney Harley Broyles was attending the ESRC meeting. In written testimony, she noted, among other things, that the draft HCP proposed implementing low wind speed curtailment \u2014 where turbines do not spin in low wind \u2014 when winds were less than 5.5 meters per second. This, despite ESRC guidance that cut-in speeds be no less than 6.5 m\/s to minimize bat take.<\/p>\n\n\n\n

\u201cKaheawa I\u2019s draft HCP fails to comply with the mandate to minimize take to the maximum extent practicable. The draft HCP proposes implementing LWSC cut-in speeds of 5.5 m\/s annually, from February 15 through December 15, as the facility has done since 2014. It is well established, however, that a 5.5 m\/s cut-in speed results in significant harm to \u2018\u014dpe\u2018ape\u2018a at Kaheawa I, with five documented \u2018\u014dpe\u2018ape\u2018a fatalities at the facility since it implemented LWSC with a cut-in speed of 5.5 m\/s. \u2026 Additional fatalities and other take undoubtedly have occurred but have not been documented,\u201d Broyles wrote.<\/p>\n\n\n\n

Indeed, at the ESRC meeting that day, one of its recommendations for bat take minimization was to \u201cexplore smart curtailment (activity by time of night) and higher wind speed cut off.\u201d<\/p>\n\n\n\n

The committee was scheduled to visit the facility this month.<\/p>\n\n\n\n

In his written testimony to the Land Board, Henkin suggested, \u201cBefore the board commits to a public hearing, with the associated demands on the board\u2019s and the public\u2019s limited resources, it should wait to hear whether the ESRC recommends approval of this draft HCP.\u201d<\/p>\n\n\n\n

Testifying before the board, he added, \u201cMuch as we\u2019d like to have them have a [incidental take] permit, we want to see a legal permit and this draft is going to change a lot, so going forward with a public hearing at this point just seems premature.\u201d <\/p>\n\n\n\n

\u201cWhether this applicant should have permission to harm our native species given their lousy track record \u2026 will ultimately be up to this board to decide,\u201d he said.<\/p>\n\n\n\n

In response to Henkin\u2019s testimony, DOFAW\u2019s Smith said that he couldn\u2019t see the benefit of cancelling the HCP at this point. \u201cThe board can do it if they want. We would rather try to work with them,\u201d he said.<\/p>\n\n\n\n

\u201cIt\u2019s been argued that they aren\u2019t going to be able to make it [n\u0113n\u0113 take credits] up by the end of their permit term and I have been advised that puts them into breach. But I also think that you could argue it\u2019s not a breach until their permit term is up. \u2026I know there\u2019s been very smart people who have argued against me on that. That is where I\u2019m coming from. I think they\u2019re not actually in violation util the end of the permit,\u201d Smith continued.<\/p>\n\n\n\n

Land Board member Riley Smith agreed.<\/p>\n\n\n\n

\u201cYou shouldn\u2019t cite someone for non-compliance until the time runs out. If [Kaheawa] makes a good a faith effort to get there but doesn\u2019t get there, but then there\u2019s some assurance that [it] will be able to comply, whether through a bond or some other obligation that has consequences to it, I think there\u2019s a way the state\u2019s interest can be protected and puts the applicant on a path to being in compliance. <\/p>\n\n\n\n

\u201cAll our meetings are public record. I\u2019m surprised Kaheawa isn\u2019t here, but I\u2019m sure they\u2019re going to watch this, and they\u2019re going to listen to all the comments that we\u2019re making,\u201d he said.<\/p>\n\n\n\n

Ian Hirokawa of the DLNR\u2019s Land Division, which is processing Kaheawa\u2019s request for a long-term lease, said his agency is working to get a new lease to the board for approval before the holdover expires.<\/p>\n\n\n\n

\u201cWe\u2019re potentially looking at how we can address [the HCP] in the lease knowing there is sort of an uncertainty,\u201d he said.<\/p>\n\n\n\n

Chang repeated that if the wind farm is not in compliance with the HCP, “arguably they\u2019re in breach, and, therefore, we may not be able to issue them a lease.\u201d<\/p>\n\n\n\n

To this, Hirokawa said the department could look at including a bond requirement in the lease.<\/p>\n\n\n\n

\u201cOr we could just have them shut it off,\u201d Chang said. \u201cI think what we\u2019ve been trying to do is insure uninterrupted service so that they don\u2019t shut off, but the burden has been back on Kaheawa. They\u2019ve known this as of a year ago when their lease expired and the board took an extraordinary action to issue a holdover to give them that additional time for an EIS and an HCP. It\u2019s not that they\u2019re not aware. The department has done everything that it can.\u201d<\/p>\n\n\n\n

Afsheen Siddiqi, DLNR seabird and waterbird recovery coordinator, noted that HCPs require funding assurances, usually a letter of credit, but \u201cit can be a bond.\u201d<\/p>\n\n\n\n

\u201cThat is for the purpose if they don\u2019t meet the mitigation criteria, we can actually take money from the bond, so there is a mechanism. We have never actually taken that. And I don\u2019t know the details of this specific HCP, what those numbers look like,\u201d she said.<\/p>\n\n\n\n

\u201cIf they\u2019re not going to make the mitigation, then they should be talking about the bond,\u201d Chang said, adding that those kinds of conversations with Kaheawa should start no later than October or November \u201cto make sure that they\u2019re in compliance so Land Division can even consider a new lease.\u201d<\/p>\n\n\n\n

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Public Hearing Approved for <\/strong>KIUC Habitat Conservation Plan<\/strong><\/h3>\n\n\n\n

The Kaua\u02bbi Island Utility Cooperative has been harming or killing protected species with its power lines and street lights for decades without an approved habitat conservation plan and incidental take license from the state. But that may soon change.<\/p>\n\n\n\n

At the Land Board\u2019s August 22 meeting, the DLNR\u2019s Division of Forestry and Wildlife requested that the board approve a public hearing on a second draft HCP that KIUC had prepared in its effort to obtain both a federal incidental take permit and a state ITL.<\/p>\n\n\n\n

DOFAW administrator David Smith explained, \u201cCurrently there\u2019s no permit. Not a federal or a state permit. That\u2019s why we\u2019re trying to rush. We really want to get a permit because, technically, they\u2019re not even liable for their damages at this point unless we take them to court. We just have prosecutorial discretion. We just haven’t done that because we\u2019re working with them.\u201d<\/p>\n\n\n\n

He added that although the HCP has yet to be approved, mitigation work is already being done. \u201cThey have really really<\/em> good people working on it. \u2026 Everybody\u2019s decided to hold fire against going against them because one of the alternatives would be [to] shut down all the power lines on Kaua\u02bbi, or make them take it down. I don\u2019t know what the alternative would be.\u201d<\/p>\n\n\n\n

Earthjustice attorney David Henkin testified, \u201cWe have also been exercising our prosecutorial discretion because citizens can sue them under the Endangered Species Act.\u201d<\/p>\n\n\n\n

He said that while he was also eager for KIUC to obtain a take permit, he thought that the state\u2019s Endangered Species Recovery Committee should at least have a chance to review and make recommendations on the second draft before it is presented at a public hearing.<\/p>\n\n\n\n

\u201cThe ESRC has never met to evaluate the scientific adequacy of the second draft KIUC HCP. The ESRC reviewed an earlier draft of this HCP over two years ago (on February 28 and March 1, 2023) and raised serious questions at that time regarding whether its conclusions about take minimization and mitigation were scientifically justified. Since that time, KIUC has lost access to the Upper Limahuli Preserve at the National Tropical Botanical Garden, which was a key component of KIUC\u2019s mitigation strategy, calling into question whether the current draft HCP satisfies legal requirements. The ESRC should review the adequacy of KIUC\u2019s revised draft HCP at a formal meeting (at which the public, including scientific and other technical experts, can provide input) and make its recommendations before the board makes any decision about whether to proceed with a public hearing,\u201d he stated in written testimony.<\/p>\n\n\n\n

\u201cYou should know before you put this out for public hearing whether the science is good,\u201d he said.<\/p>\n\n\n\n

\u201cOne of the cornerstones of mitigation [in the draft HCP] is the preservation of the upper Limahuli Preserve on National Tropical Botanical Garden property. Some issues have arisen with the contractor that KIUC brought in that started introducing [ants] and weeds. … They currently do not have access to that property,\u201d he said.<\/p>\n\n\n\n

Former NTBG CEO and a current member of its board of trustees Chipper Wichman also expressed concern about the draft plan.<\/p>\n\n\n\n

\u201cWe\u2019ve been in discussion with KIUC since April. \u2026 I\u2019m not sure we’re any closer than we were four months ago. Our property has more Newell\u2019s shearwater nests than all the other sites combined. It\u2019s a critical part of the HCP and I would hope that the public would be able to know whether that property is in or out when they comment on the draft. We want to be part of it, but we need assurances we\u2019ll be treated fairly and the contractor will respect our biosecurity policies,\u201d he said.<\/p>\n\n\n\n

According to KIUC\u2019s Dawn Huff, the public hearing, if approved, would likely be held on September 16.<\/p>\n\n\n\n

Smith also noted that one reason his division is pushing to hold the public hearing without having to wait for the ESRC to weigh in is to keep up with the federal ITP process.<\/p>\n\n\n\n

Afsheen Siddiqi, DLNR seabird and waterbird recovery coordinator, added that the division also doesn\u2019t want to go to a public hearing saying the ESRC has already decided on the plan.<\/p>\n\n\n\n

Should the ESRC ultimately reject the plan, the Land Board would not be able to approve it. It would then need approval from two thirds of the state Legislature. Or, KIUC could present a third draft to the ESRC and the board.<\/p>\n\n\n\n

Henkin informed the board that even if the federal government approved an ITP and the HCP, the permit would not be valid until the state issued its ITL.<\/p>\n\n\n\n

(This article has been amended to remove part of a statement from David Henkin that little fire ants had been introduced into Upper Limahuli. Little fire ants (Wasmannia auropunctata<\/em>) \u201chave not been detected in any part of Limahuli Valley, or in the contractor’s fence construction materials. However, numerous biting ants were found in the material storage area and a NTBG staff inspecting the site was severely bitten while taking samples of the ants, which prompted the biosecurity concern,\u201d according to Uma Nagendra, Conservation Operations Manager for Limahuli Garden and Preserve, National Tropical Botanical Garden.)<\/p>\n\n\n\n

\n\n\n\n

Land Board Gets<\/strong> Two New Members<\/strong><\/h3>\n\n\n\n

The Land Board has two new members replacing former members Vernon Char and Aimee Barnes.<\/p>\n\n\n\n

Denise Iseri-Matsubara is the new member for O\u02bbahu. Calvin Young is the new at-large member.<\/p>\n\n\n\n

Iseri-Matsubara is the executive director of Catholic Charities Housing Development Corporation, which, according to a press release from the governor\u2019s office, is \u201cfocused on developing and managing affordable housing for seniors and disadvantaged communities. She previously led the Mayor\u2019s Office of Housing for Honolulu and served as executive director of the Hawai\u2018i Housing Finance and Development Corporation, where she also sat as a board member.\u201d <\/p>\n\n\n\n

Young is a partner at the lawfirm Goodsill Anderson Quinn & Stifel and a past president of the Hawai\u2018i State Bar Association.<\/p>\n\n\n\n

Both are graduates of Kamehameha Schools.<\/p>\n\n\n\n

\u2014 Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Kaheawa Wind Farm Faces Tight Timeline To Mitigate Nēnē Takes Before Holdover Ends Kaheawa Wind Power I, Maui’s first wind farm, is facing the possibility of being shut down. That’s the consequence if it fails to comply soon with mitigation … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16712,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,11,26,14,541],"tags":[3],"class_list":["post-16711","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-board-talk","category-climate-change","category-endangered-species","category-energy","category-september-2025","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16711","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16711"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16711\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16712"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16711"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16711"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16711"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}