Update on Wailua Diversion

SUBHEAD: Meeting Thursday 12/14 from 11:00am-1:00pm at the Kapaa Neighborhood Center.

By Bridget Hammerquist on 12 December 2017 in Island Breath -

Image above: Two hikers at the Blue Hole walk across the concrete diversion (at left) of the North Fork of the Wailua Rivere diversion lets only overflow water into the natural channel of the river (at right). From (https://yosemitenews.info/forum/read.php?1,64439,64449).

[IB Publisher's note: The day with article was first published KIUC announced they were changing policy on the North Fork diversion of the Wailua River. See content of email we received.]

KIUC Board's Action on to Wailua River Diversions
Līhu'e, Kaua'i, HI - 12/12/17 - The Kauaʻi Island Utility Cooperative Board today authorized KIUC President and Chief Executive Officer David Bissell to make changes to the ditch system to return water to the North Fork of the Wailuā River at the Blue Hole and Waikoko diversions.
This action will ensure that water is flowing immediately downstream of the diversions.
The board also authorized the commencement of engineering design for permanent diversion modifications to ensure continuous stream flow for aquatic habitat. Construction will take place upon approval from the appropriate regulatory agencies.
Additionally, approval was granted to install additional gauging stations to increase data collection and understanding of the hydrology of the system.
"The hydros have been producing energy on Kauaʻi for more than 100 years and represent an important piece of KIUC's renewable portfolio and will help us reach the State's mandate of 100 percent renewables by 2045," said KIUC Board Chair Allan Smith.
On December 8, the State Board of Land and Natural Resources met and approved the holdover of a revocable permit for water use at the Blue Hole Diversion, which contribute 1.5 megawatts of energy to the island's renewable portfolio.

Image above: Boulders are scattered across the diversion at the head of the North Fork of the Wailua River due to heavy winter rains. Note the diversion channel is all but blocked (at left) and the natural flow of the water is in the original river bed (at right). From (https://www.bizjournals.com/pacific/news/2017/12/11/kiuc-receives-approval-for-holdover-of-hydro.html).

IB Publisher's note: On Friday 7 December 2017 the Hawaii State Board of Land & Natural Resources (BLNR) met on Kauai to consider the  renewal of a revocable water-diversion permit for Kauai Island Utility Cooperative’s (KIUC) hydroelectric plants that utilize water from Mt. Waialeale.

The water diversions have been criticized as illegal.  The Kiai Wai O Waialeale coalition, along with community groups Friends of Mahaulepu, HAPA and the Sierra Club, said KIUC and Grove Farm are illegally using 30 million gallons or more of water per day for the hydroelectric plants, and on days when there’s no rain, the streams are dry.

The BLNR approved the KIUC request.

Their will be a debriefing of the BLNR meeting Thursday 12/14 from 11:00am-1:00pm at the Kapaa Neighborhood Center.

Debriefing on BLNR decision in favor of KIUC and Gloves Farms to continue diverting Wailua River forks.

Thursday December 14th from 11:00am to 1:00pm

Kapaa Neighborhood Center
4491 Kou Street Kapaa, HI 96746

Summary of BLNR Meeting
Friday was an exciting day and I have to say that we did shine a bright light on a big issue that has received little public coverage. For those who may not have seen the news coverage of the Board meeting, here are a couple links to TV and newspaper coverage.



For those who want to listen to the meeting Friday, here is a link to download the audio recording of Friday's BLNR meeting:


My big take away/summary is:
  1. The Board was arbitrary when it denied the request for a contested case hearing.
  2. The denial gives us the right to go directly to the State Environmental Court.
Based on the facts and illuminating power points presented, Kiai Wai O Waialeale may be well positioned now to file a State Court lawsuit against KIUC on the merits of BLNR's renewal of the Waikoko and Blue Hole/North Fork Wailua diversion permits while simultaneously suing Grove Farm for its 4 100% base flow stream diversions (Iliiliula, Iole, Waiaka and Waiahi) in violation of the following water use law.

The testimony offered by KIUC established that Grove Farm is also taking 100% of the base flow from four streams fed by Mt Waialeale which waters are mixed into the waters from Waikoko and Blue Hole, diversions on State land.

Grove Farm has no permits to divert those streams and should have permits because the water is no longer used to grow sugar and pursuant to Hawaii State Supreme Court decisions, when the purpose for the diversion ends, the diversions have to be taken down and stream flow restored as mandated by Hawaii's Constitution.

Most importantly, DLNR staff and KIUC admitted the water use at issue is consumptive, because the waters diverted are never returned to their stream of origin. If you read the statute below, it doesn't appear that BLNR has any authority to approve, permit or lease State waters when the use is consumptive.

§171-58 Minerals and water rights.
(a) Except as provided in this section the right to any mineral or surface or ground water shall not be included in any lease, agreement, or sale, this right being reserved to the State; provided that the board may make provisions in the lease, agreement, or sale, for the payment of just compensation to the surface owner for improvements taken as a condition precedent to the exercise by the State of any reserved rights to enter, sever, and remove minerals or to capture, divert, or impound water.(c)(3)

After a certain land or water use has been authorized by the board subsequent to public hearings and conservation district use application and environmental impact statement approvals, water used in nonpolluting ways, for non-consumptive purposes because it is returned to the same stream or other body of water from which it was drawn, and essentially not affecting the volume and quality of water or biota in the stream or other body of water, may also be leased by the board with the prior approval of the governor and the prior authorization of the legislature by concurrent resolution.

When you read the statute, Grove Farm's diversions are illegal. Grove Farm is directing water through KIUC's hydro plants and in return, KIUC releases that water back to Grove Farm and also adds the water from its State land diversions.

Not only did we have 3 solid votes against RP renewal, with each no vote the voting board member spoke directly to KIUC's CEO, David Bissel, and told KIUC to:
  1. Complete their environmental studies (171.58 call for an EIS... did not understand why attorney's like Chris Yuen were speaking in terms of an EA when the statutory requirement is clear that any authorized use of State water can be permitted only "subsequent to" the acceptance of an EIS),
  2. Restore uninterpreted stream flow as soon as possible and
  3.  Meet with DHHL staff asap to achieve water distribution for its beneficiaries. One of the yes votes, from Chris Yuen, also made it sound like he wouldn't support them if they were not substantially along in the process by this time next year.

The other aspect that I didn't understand was why Suzanne Case did not recuse herself once it was clear that water from four Grove Farm stream diversions (IliIliula, Iole, Waiaka and Waiahi) mixes with the KIUC diversions and all runs through KIUC's power plant before being delivered to Grove Farm's infrastructure: the upper Lihue ditch (which is piped), the lower Lihue ditch and the Wailua South Fork that is 100% diverted by Grove Farm into the Hanamauulu ditch. 

Those four diversions were not part of the RP but the water from them is being used by the permittee and in return the permittee supports distribution back to Grove Farm. If you read 171.58, I can't find anything that exempts Grove Farm from a permit for their use of waters of the State. It is not right that Grove Farm directs this water to their surface water treatment plant before selling it to the County.

They claim they're charging for the delivery of water which is certainly splitting hairs because their charge is a fixed annual fee for 3 mgd.BLNR's arbitrary and capricious denial of the request for a contested case hearing, is a huge gift because we may now advance an Environmental State Court claim, having had our administrative remedy curtailed and having been deprived of due process. So rather than having the cost of an administrative hearing, I think we get to go right to State Court.

Note: Bridget Hammerquist is President of Friends of Maha’ulepu
P.O. Box: 1654
Koloa, HI 96756

See also:
Ea O Ka Aina: Waialeale Water Lease 7/18/17
Ea O Ka Aina: Kauai's Hydro Battle 7/31/11
Ea O Ka Aina: Notice of Objection 6/3/11
Ea O Ka Aina: Special KIUC/FERC Meeting 5/28/11
Island Breath: Kauai Water Diversion - as a way of life 4/9/04


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