KIUC Special Meeting on FERC

SUBHEAD: KIUC standing by Free Flow Power agreement and Federal Energy Regulatory Commission participation.

 By Vanessa Van Voorhis on 28 May 2011 for Garden Island News -  
(http://thegardenisland.com/news/local/article_93a6c4a6-89cb-11e0-bc1d-001cc4c03286.html)

 
Image above: Deliverance. The Feds get involved with managing local Kauai streams. From (http://www.wallpaper.net.au/wallpapers-aviation1.php). Mashup by Juan Wilson
 
KIUC member meeting

When:
8:30 a.m., Saturday, June 4th 2011

Where:
Kaua‘i Veterans Center, 3125 Kapule Hwy., Lihu‘e

Who:
KIUC management, board members and representatives of Free Flow Power

Why:
To answer questions about the co-op’s contract with Free Flow Power and the FERC process prior to member ballot dissemination on June 13

Concerns over a federal agency dictating water rights have prompted some residents to question a recent agreement between the island’s primary power provider and a private renewable energy company.

Kaua‘i Island Utility Cooperative members will have an opportunity Saturday morning to pose questions to co-op representatives regarding a contract with Free Flow Power to design small-scale hydroelectric facilities throughout the island.

The special member meeting starts at 8:30 a.m. at Kaua‘i Veterans Center in Lihu‘e. Free Flow representatives will also attend.

The meeting is in response to a petition generated by Adam Asquith, a local taro farmer and extension specialist for the University of Hawai‘i’s Sea Grant program.

Asquith has spoken out against Free Flow’s use of the Federal Energy Regulatory Commission’s permitting process as a method of developing hydroelectricity. He has argued that FERC, as a federal regulatory agency, could assert authority over and supersede state water-rights laws.

KIUC has argued that the FERC permitting process will protect the utility’s investment in exploring the feasibility of hydroelectricity on six Kaua‘i waterways.

The meeting will allow each member three minutes to ask questions and make comments. KIUC will in turn have three minutes to respond, KIUC spokeswoman Anne Barnes said. The format will be similar to its regular board meetings.

“It is our intention to keep responses as concise as possible,” she said.

“In the best of all worlds, we wouldn’t be so constrained,” Asquith said when asked if three minutes was enough to adequately address such numerous and complex issues surrounding the potential ramifications of FERC.

“We did a video tape that will come out on Ho‘ike and we’ll probably do a full-page ad in the paper at some point,” said Asquith, adding that he also plans to hand out a sheet of questions to members at the meeting. He said he is also working with KKCR to get a live stream broadcast of the meeting because he believes there are a lot of off-island people that will be interested in watching how things unfold.

As requested in the petition, KIUC must also distribute a ballot to co-op members asking them to vote on whether the utility should continue its contract with Free Flow.

“We are looking to drop ballots on June 13 and count on July 8 at noon,” Barnes said. “This is all pending until after the (Board of Directors) regular meeting on May 31.”

Asquith has repeatedly stated that it is not a question of whether the co-op should develop hydroelectricity. He said they should, but not in a way that jeopardizes farmers and wildlife.
Barnes said KIUC was attracted to Free Flow because it is the only proven developer of small hydropower in the U.S. It is a one-stop shop of a vast mix of consultants, she said, adding that the company is experienced in and committed to a deeply inclusive, thorough stakeholder engagement process.

Free Flow, a Massachusetts startup company created in 2007, has yet to develop a hydroelectric project; however, it has been successful at obtaining FERC preliminary permits for exclusive rights to explore hydro development at select locations for a period of three years.

To date, FERC has granted Free Flow three of its six preliminary permit requests for Kaua‘i. It has also granted Free Flow permits at dozens of sites along the lower Mississippi River.

KIUC has not yet fully explained whether Free Flow applied for permits for exclusive rights to some Kaua‘i waterways before contracting with the co-op.

“KIUC’s longtime investment banker, Bill Collet, introduced KIUC and FFP in late 2010,” Barnes said Friday. “The two organizations were already in talks about working together when FFP demonstrated its experience, capability and willingness to invest by doing the engineering and legwork to file for preliminary permits with FERC.”

She said Free Flow was attracted to KIUC because of its access to low-cost capital, its co-op culture and “its role in the legacy of hydropower developed in the last century.”

To date, KIUC has not developed hydroelectric power. It has tapped into the resources of existing hydropower facilities created before the co-op’s existence.

Water laws

Under the Federal Power Act, Congress gave a broad delegation of power to FERC, including jurisdiction over licensing, but reserved jurisdiction over water rights to states through a “savings clause,” according to a 2006 Foothills Water Network report.

However, the FPA does not require FERC applicants to submit evidence of compliance with state law regarding water use, the report said, and the FPA therefore divides jurisdiction between federal and state agencies.

A 1990 water-rights case — California vs. FERC, heard before the U.S. Supreme Court — ruled in favor of FERC. California argued a hydroelectric project did not allow for enough stream flow for trout. The court said trout do not have vested rights to the water, so FERC trumped the state’s law.
Honolulu attorney William Tam, co-author of Hawai‘i’s Water Code and recently appointed by Gov. Neil Abercrombie as deputy director of water at the Department of Land and Natural Resources, has said that Hawai‘i has some of America’s most stringent public-trust water laws, but they are badly understood and essentially ignored. He blames it partly on official mismanagement and conflicts of interest.

Recent History of FFP and FERC preliminary permit applications on Kauai:

Wailua River Hydroelectric Project
Filed: October 22, 2010
Issuance: March 2, 2011
Hanalei River Hydroelectric Project, 3.5 mgh
Filed: Nov. 11, 2010
Issuance: April 8, 2011
Makaweli River Hydroelectric Project
Filed: Nov. 15, 2010
Issuance: May 20, 2011
Kitano Water Power Project, 7.7 mgh
Filed: Oct. 22, 2010
Issuance: Pending
Wailua Reservoir Water Power Project
Filed: Feb. 28, 2011
Issuance: Pending

Kekaha Waimea Water Power Project
Filed: Feb. 28, 2011
Issuance: Pending
COMMENTS selected from TGI article:

mrb said on: May 29, 2011, 5:44 am

For KIUC to have entered into an MOA with FFP (which includes the FERC approach) is what the problem is all about. Hydroelectric delivery systems have existed here on Kauai for decades. What prior assessments were made about harnessing what there is and/or having additional privately-owned systems providing KIUC what it needs in its portfolio to provide a comparative cost analysis which could have been reviewed PRIOR to the MOA? With FFP being a company formed as recently as 2007 which has NO track record except to gather permits for studies, how is that advantageous to us, the rate-payers, who will have to pick up the tab for the 3 years of anticipated "study" which is now going to be an additional cost added to our monthly bills? How does the MOA reflect the membership's will if we have already expressed our concerns and disdain about this process at public meetings held in Waimea, Lihue, and Kilauea and through the petition which as been submitted? Hydro-yes! FERC - no!

AnonyMouse said on: May 29, 2011, 9:29 am

It's interesting to note that FERC only has jurisdiction over “navigable waters” which the Federal Power Act defines as "those parts of streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, and which either in their natural or improved condition notwithstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids compelling land carriage, are used or suitable for use for the transportation of persons or property in interstate or foreign commerce, including therein all such interrupting falls, shallows, or rapids, together with such other parts of streams as shall have been authorized by Congress for improvement by the United States or shall have been recommended to Congress for such improvement after investigation under its authority." http://www.law.cornell.edu/uscode/usc_sec_16_00000796----000-.html

truthislaw said on: May 29, 2011, 9:29 am

Check that recent sugar coated message that KIUC recently sent out; a lot of words that lull you into death by boredom BUT there is something revealed: Portfolio Investment Strategy...they don't need to follow through with the project when they can trade on the company at Kauai's expense but they still leave the damage behind such as FERC and NO other HYDRO project will be allowed on Kauai because they own the rights. It's like another mortgage scam. Check out their site where 2-3 weeks ago they had 3 people employed by the company, now they have over 2 dozen: http://www.free-flow-power.com/OurTeam.html

dakine said on: May 29, 2011, 11:46 am

We need hydropower...and PV, and biomass, and wind...if we're to achieve any semblance of self-sustainability. Of course, one can turn off the lights in the brain closet and not give a frak about self-sustainability, but that's another (and seemingly continuing) issue. What bothers me most about this situation is that KIUC is basically giving the store to a four-year old company that has yet to successfully build a project, but is top-heavy with "experts." The connection came from KIUC's investment banker, and that also has a sort of week-old fish aroma to it. Sorry...I support hydro and other alternative power development, but this has too many red flags flying.

truthislaw said on: May 29, 2011, 12:30 pm

Yes, investment and government "experts" not to mention FFP are former employees of the scandalized and corrupt UBS. Guess this really isn't about HYDRO but more about a new product to go public with. That new product would be Kauai's resources and Kauai's "Member owned Co-op". I notice KIUC's PR publications really downplay SOLAR. Who is David Bissel? He came here a few years ago and locked in.

.