As a way to boost Kaua`i\u2019s capacity to incorporate more solar power onto the electrical grid, the Kaua`i Island Utility Cooperative\u2019s proposed pumped storage hydropower project using old sugar plantation infrastructure seems like a no-brainer.<\/p>\n
But with an independent power producer closely allied with the irrigation system\u2019s manager competing for some of the same resources, a strong desire by the Department of Hawaiian Homelands to fund and build its homestead in the area, and a petition from local residents calling for an end to water waste and the return of stream flows, support for KIUC\u2019s West Kaua`i Storage Project has been far from unanimous.<\/p>\n
On November 14, the state Department of Land and Natural Resources\u2019 Land Division recommended to the Board of Land and Natural Resources that it approve in principle KIUC\u2019s request for a direct 65-year lease for the state\u2019s Pu`u Lua reservoir, a pipeline easement, and a direct lease for water rights. It also recommended the issuance of a right-of-entry to allow KIUC to assess the site.<\/p>\n
The project would use lands controlled by the DLNR and the Agribusiness Development Corporation, both state agencies, and draw water from the Koke`e Ditch. KIUC plans to restore Pu`u Lua reservoir, located on DLNR land above the Mana plain, to its original 250 million gallon capacity and to construct a new 30 million gallon reservoir at a lower elevation and a substation capable of generating 20 megawatts on ADC lands.<\/p>\n
The ADC granted permission to KIUC consultant Joule, LLC, earlier this year to conduct site assessments and studies to aid in configuring the project. The approvals requested from the Land Board last month would allow the co-op to do the same on DLNR land and provide sufficient assurance to justify proceeding with the preparation of an environmental impact statement and a Conservation District Use Application.<\/p>\n
The Land Division recommended approval, in part, because of KIUC\u2019s plan to improve the Pu`u Lua reservoir so that it meets dam safety standards, a feat that would require the state to expend millions of dollars otherwise.<\/p>\n
Land agent Ian Hirokawa told the Land Board that his division would present its recommendation on the land and water leases only after the board approved the EIS and CDUA. All of those approvals would provide opportunities for public comment, he said.<\/p>\n
KIUC CEO David Bissell said the closed-loop hydro project, which would recirculate water between high and lower elevations, was relatively innovative for Kaua`i.<\/p>\n
He said the island was nearing its saturation rate for solar electricity, but with pumped storage, \u201cwe\u2019ll be the first in the country using PV [photovoltaics] during the day to make electricity at night.\u201d<\/p>\n
Joule\u2019s Dawn Huff added that she has been working with the ADC and its tenant farmers to try to tailor the project to meet their irrigation needs.<\/p>\n
Not So Fast<\/i><\/b>
\nDespite the project\u2019s purported benefits, the Department of Hawaiian Home Lands argued in its testimony that the Land Division\u2019s recommendation on the water lease failed to \u201cacknowledge, address, analyze, ensure or protect DHHL\u2019s right to water under Section 221 of the [Hawaiian Homes Commission Act] and the state\u2019s Water Code.\u201d<\/p>\n
The DHHL owns 15,061 acres of homestead lands directly adjacent to the project area and the HHCA and Water Code provide the agency with clear legal rights to take water from the Koke`e Ditch, said Hawaiian Homes Commission chair Jobie Masagatani.<\/p>\n
She and her department\u2019s private attorney, Bill Meheula, expressed their concern that KIUC\u2019s project could adversely affect the amount of water available to DHHL for its homesteads and reduce the potential for the agency to develop its own hydropower project.<\/p>\n
The DHHL had \u201cengaged in several preliminary exploratory discussions with KIUC regarding the feasibility of a hydro project on these lands and the related financial and infrastructure benefits such a project could bring to expedite the opportunity to homestead these lands,\u201d she said.<\/p>\n
She estimated that the DHHL\u2019s hydro project, which would use the existing Pu`u `Opae reservior, would require an average stream flow of 15.2 million gallons a day.<\/p>\n
Not only did the Land Division\u2019s recommendation to the board fail to acknowledge the DHHL\u2019s water rights, the DLNR violated state law when it also failed to notify the DHHL about the proposed water lease, Masagatani said. Chapter 171-58 of Hawai`i Revised Statutes requires the DLNR to inform the DHHL of its intent to execute a new lease or renew an existing lease of water rights.<\/p>\n
The law, she continued, also states that after the DHHL consults with its beneficiaries, the two departments must \u201cjointly develop a reservation of water rights sufficient to support current and future homestead needs.\u201d<\/p>\n
She went on to warn against approvals-in-principle and suggested that a contested case hearing, a court-like fact-finding proceeding, would be the more appropriate way to deal with a project that might affect DHHL\u2019s rights. She also argued that state law requires the Land Board to inform the public about any proposed renewable energy project on state land with at least two meetings on the island where the project is to be located.<\/p>\n
Finally, she testified, the Land Division\u2019s report fails to acknowledge an outstanding petition to the state Commission on Water Resource Management calling for an end to water waste by the ADC and its tenants and to amend the interim instream flow standards for Waimea River and its tributaries.<\/p>\n
With regard to the DHHL\u2019s proposed hydro project, she told the Land Board that it would provide water to the Waimea lands, which are currently cut off from the system.<\/p>\n
To Land Board member Chris Yuen, it seemed possible to physically achieve both projects. Because KIUC is only planning to shuffle a fixed amount of water in a closed system up and down a hill, \u201cif Hawaiian Homes wants water from the system, the water goes back up to where it was before and is still available,\u201d he said.<\/p>\n
Masagatani admitted that her department had only received the proposal two days earlier.<\/p>\n
\u201cWe haven\u2019t had a chance to fully analyze the impacts on our water rights,\u201d she said.<\/p>\n
Competition<\/i><\/b>
\nYuen argued that the way KIUC planned to operate its hydro, with an improved Pu`u Lua reservoir, more water may actually be available available to the DHHL if and when the department makes its request for a water reservation.<\/p>\n
Masagatani then admitted that part of her problem with the project, apart from how it came to the board, was that it competed with the DHHL\u2019s project.<\/p>\n
\u201cIf the facility is on DLNR lands, it will not be on DHHL lands [and] we do not get the benefit from opening up those lands,\u201d she said.<\/p>\n
When asked by Kaua`i Land Board member Tommy Oi how far along the DHHL was in developing a hydro plant, Masagatani said the department had had some preliminary discussions and that it was ready a few months ago to draft a water reservation request to the Water Commission. The commission, however, felt that the request needed improving, she said.<\/p>\n
She asked that the Land Board defer the matter to allow the DHHL to understand the KIUC project\u2019s implications.<\/p>\n
Meheula, the DHHL\u2019s private counsel, added that the department was concerned that there might only be capacity for one hydro facility in the area and that granting an approval-in-principle would directly or indirectly harm the DHHL\u2019s ability to get financing.<\/p>\n
\u201cIf there is only capacity for one hydro \u2026 that could doom our project,\u201d he said.<\/p>\n
To this, deputy attorney general Myra Kaichi noted that the ADC has been approached with several hydro projects in the area and has not approved any of them so far, although they have been given rights of entry.<\/p>\n
\u201cADC did not do any type of approval-in-principle. They are sitting and waiting for definite plans to come in to analyze. There are competing plans in the area,\u201d she said.<\/p>\n
Land Board chair William Aila asked KIUC\u2019s Bissel whether there was enough electricity demand on the island to support more than one hydro project in West Kaua`i.<\/p>\n
Bissell hedged, \u201cThat\u2019s a difficult question to answer. \u2026 It would totally depend on the size and characteristics of that project.\u201d<\/p>\n
Aila then said that his department was remiss in not fully discussing the proposal with the DHHL.<\/p>\n
In addition to the DHHL, Konohiki Hydropower also wants to develop a facility using the state\u2019s lands and irrigation system to provide pressurized irrigation water and power to the ADC tenants, and to sell excess power to KIUC. But it\u2019s been stymied so far by KIUC\u2019s repeated refusals to enter into a power purchase agreement.<\/p>\n
Konohiki director Palo Luckett said that for the past five years, his company has developed significant irrigation system improvements in partnership with the Kekaha Agriculture Association (KAA), which represents the ADC tenants and manages the irrigation infrastructure for the agency.<\/p>\n
Luckett stressed how important \u2013 and expensive \u2013 it was to maintain the century-old system, adding that his company already has a lease from ADC for its hyrdo project, which would require about 13 million gallons a day. He also asked that the Land Board defer deciding on KIUC\u2019s request.<\/p>\n
In partnership with KAA, Konohiki has designed its pressurized irrigation system to direct flows precisely where they\u2019re needed, he said.<\/p>\n
\u201cWhile I applaud the local utility\u2019s efforts to incorporate more renewable energy \u2026 it cannot be done at the expense of agriculture,\u201d he said. \u201cAn approval-in-principle to lease Pu`u Lua reservoir puts the irrigation water in the electric utility\u2019s hands and out of the hands of farmers. We respectfully request this item be deferred so discussions with the current manager of the system can be conducted.\u201d<\/p>\n
Yuen raised the same point he made to Masagatani about the fact that KIUC\u2019s project takes a discrete amount of water.<\/p>\n
\u201cSo what is the problem?\u201d he asked.<\/p>\n
\u201cThis is an irrigation system that was constructed for ag. \u2026 An electric utility will control what happens to that system,\u201d Luckett replied.<\/p>\n
Even if that were the case, Land Board chair Aila pointed out that there appeared to be more than enough water for everyone even if the Pu`u Lua reservoir was restored to hold only 150 million gallons.<\/p>\n
\u201cIf the reservoir is repaired, everyone gets what they want in terms of water, maybe not income from electricity generation,\u201d Aila said.<\/p>\n
Water Complaint<\/i><\/b>
\nTo Luckett\u2019s statement that the ditches and reservoirs were part of an irrigation system, Earthjustice attorney David Henkin pointed out, \u201cBefore it was an irrigation system, it was a river.\u201d<\/p>\n
In July 2013, Earthjustice, on behalf of Po`ai Wai Ola\/West Kauai Watershed Alliance, filed the petition with the Water Commission seeking to end what the organization\u2019s members saw as the waste of diverted stream flows by the ADC and its tenants and to amend the interim instream flow standards for the Waimea River and its tributaries, which feed the Koke`e Ditch and Pu`u Lua reservoir.<\/p>\n
Henkin argued that before the Land Board made any decision to provide water to hydro plants, it needs to know what the public trust is.<\/p>\n
\u201cThe board has simply no information right now to make that assessment,\u201d he said.<\/p>\n
He added that even though the KIUC project would be a closed-loop system, it will require \u201cmake-up water\u201d from the ditch as a result of evaporation and system losses.<\/p>\n
The courts have ruled that when deciding on a water lease, the Land Board could either choose to make determinations on its own about how to protect the public trust, or wait until the Water Commission decides the same and independently review its findings, Henkin said.<\/p>\n
\u201cYou can go it alone or you can wait for CWRM to make a decision and effectively tie the two [cases] together. Everyone should have a common interest in resolving that as quickly as possible,\u201d he said.<\/p>\n
As of press time, the Water Commission\u2019s appointed investigator of the waste complaint had not fully inspected the irrigation system or taken flow measurements in both dry and wet seasons, according to Henkin.<\/p>\n
Rebuttal<\/i><\/b>
\nGiven the strong push for a deferral from the potential developers of two hydro projects, Bissell said he was concerned that there was a \u201cco-mingling of issues today.\u201d<\/p>\n
KIUC\u2019s pumped storage hydro project differs from the DHHL\u2019s and Konokihi\u2019s proposed run-of-the ditch hydro projects where water simply flows in one direction through a facility, he said.<\/p>\n
\u201cOur project is essentially filling a water bucket, one time. It\u2019s not taking water away from DHHL [or] agriculture,\u201d he said. \u201cI think it\u2019s very important we keep that straight.\u201d<\/p>\n
According to Joule\u2019s Jason Hines, once that \u201cbucket\u201d is filled, the project wouldn\u2019t require any more water, except for about 100,000 gallons of make-up water.<\/p>\n
As to whether the utility would consider supporting those other projects, they would have to make sense, Bissell said.<\/p>\n
He said the utility needed an agreement-in-principle because it will take years to develop the project and with all the conflicting interests, the co-op has a fiduciary duty to \u201chave some assurance we\u2019re in line on this.\u201d<\/p>\n
He added that he knows the project may fail for various reasons and there are a ton of studies that need to be done before KIUC knows whether its project is feasible.<\/p>\n
With regard to Konohiki\u2019s project, Bissell said that although KIUC has so far rejected a PPA based on the project\u2019s merits, \u201cthey can come back. [If they] make a compelling project that works for us \u2026 we\u2019ll sign it.\u201d<\/p>\n
He added that KIUC would be happy to work with the DHHL, but that it wants to support only the best projects.<\/p>\n
\u201cThe projects have to stand on their own. \u2026 This [approval] doesn\u2019t stop those projects. The merits of those projects stop those projects,\u201d he said.<\/p>\n
Finally, Bissell argued that KIUC\u2019s project would, indeed, help agriculture in the area because it would install a pipeline in the Mana plain.<\/p>\n
KIUC board member Jan TenBruggencate added that the project pays to repair the reservoir and \u201conce it\u2019s repaired, that\u2019s pure benefit to the folks downstream.\u201d<\/p>\n
Meheula did not seem comforted by Bissell\u2019s comments.<\/p>\n
\u201cThere is clearly a competitive problem,\u201d Meheula said.<\/p>\n
Yuen conceded that there is competition of who would get a power contract, but not who would get the water.<\/p>\n
\u201cDHHL has rights to water. Not to a power contract,\u201d he said.<\/p>\n
Even so, Meheula argued that if the Land Board gave KIUC the assurances it sought, \u201cyou\u2019re going to be giving a nod, assurance, and comfort that is going to prohibit DHHL from doing a project, prohibit DHHL from homesteading.\u201d<\/p>\n
Approved as Amended<\/i><\/b>
\nAfter the Land Board held an executive session to discuss some of the legal issues the DHHL had raised, Yuen made a motion to approve the Land Division\u2019s recommendations, except for the proposed lease for water. That matter would be deferred until the Land Board fulfilled its requirements under HRS Chapter 171-58, he said.<\/p>\n
\u201cI would like to emphasize approval-in-principle allows the applicant to go forward with various studies and does not in any way commit the board to an action,\u201d he said.<\/p>\n
The board unanimously approved Yuen\u2019s motion.<\/p>\n
Volume 25, Number 6 December 2014<\/p>\n","protected":false},"excerpt":{"rendered":"
As a way to boost Kaua`i’s capacity to incorporate more solar power onto the electrical grid, the Kaua`i Island Utility Cooperative’s proposed pumped storage hydropower project using old sugar plantation infrastructure seems like a no-brainer. But with an independent power … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[322],"tags":[3],"class_list":["post-6109","post","type-post","status-publish","format-standard","hentry","category-december-2014","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/6109","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=6109"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/6109\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6109"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6109"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6109"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}