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 -
(http://islandbreath.blogspot.com/2017/12/update-on-wailua-diversions.html)


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).

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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.

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

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

WHERE:
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.

http://www.thegardenisland.com/2017/12/09/hawaii-news/kiuc-wins-water-fight/

http://www.hawaiinewsnow.com/story/37029649/land-board-approves-permit-to-continue-diverting-waialeale-waters-for-hydropower

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

https://files.acrobat.com/a/preview/15e8a4fc-0d4b-4223-8c90-a96c83b92c04

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
friendsofmahaulepu.org
(808)742-1037

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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Will developers write Kapaa’s future?

SUBHEAD: The General Plan update forsakes  "Keep Kauai Rural"  for major Eastside development.

By Gabriela Taylor on 6 May 2016 in Island Breath -
(http://islandbreath.blogspot.com/2016/05/will-developers-write-kapaas-future.html)


Image above: The developers of HoKua Place proudly showing inclusion of their traffic stopping development near the Kapaa Bypass Road in the Kauai General Plan Update. Also note the solid block of Urban Center (orange) and Resort Area (maroon) along crowded east coast between Wailua and Kapaa. From (http://www.hokuaplace.com/general-plan.html). Click to embiggen.

WHAT:
General Plan Update Meeting on Kauai Traffic

WHEN: 
 Monday, May 9th 2016 from  2:00pm to 4:30pm

WHERE:
Kauai County Building Meeting Room 2A/2B (adjacent to the DMV)
4444 Rice Street in Lihue, Kauai, Hawaii

I’ve been attending the Community Advisory Committee (CAC) General Plan Update Meetings, because it’s vital that we give our input about decisions that will affect us on Kauai for the next 20 years and beyond.

I’m discouraged about the direction that this is going and need your help.  Please read my Garden Island newspaper article below for a more comprehensive explanation of what happened last week the all day GPU meeting for development of  the Eastside, where the developer for Hokua Place resurfaced and was supported by the county as though it were a done deal. And I was the only one there to contest it.

Please remember that in addition to the 780 dwellings  (only 25% affordable),  there are 3 new resorts going up over the next 4 years in the Wailua Corridor. Doing the math, this equates to  at least 3000 additional cars pouring onto Kuhio Highway. And the DOT only has committed to building one more lane from the south end of the Kapaa By-Pass Road to the light at the corner of Coco Palms. We have only seen the tip of the iceberg regarding traffic!

We need to flood the CAC with testimony. It is important to state the problem, but then necessary to come up with solutions. I will ask the CAC for  the following:

1. A moratorium on permits for any new resorts and non-affordable housing developments.
   
2. Go back to the 2000 GPU and delete the proposed up-zoning from Ag to Urban of the 97 acres proposed for Hokua Place development (with more dwellings than the House lots), to be built with a commercial component, behind the Kapaa Middle School. 

I will also support new Bill#2627 proposed by Gary Hooser and Mason Chock to add affordable rentals, in a unique way, to Lihue District. They acknowledged that Kapaa/Wailua District isn’t appropriate for such development:

"There are many challenges not he least of which is the extreme traffic in the Kawaihau District.” (TGI, op-ed column Forum page, May 4).

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Will developers determine our future?

By Gabriela Taylor on 28 April 2016 for the Garden Island 
(http://thegardenisland.com/news/opinion/guest/will-developers-determine-our-future/article_bd36fbc8-dd73-5e79-bbac-fdc4194f7632.html)

The April 28th “Community Place Type and Visioning Workshops” meeting in Kapaa was an all day opportunity for the residents of Kapaa to stand up and speak to what is important for our future. Sadly, few residents were seen among several county employees as well as the CAC, (General Plan Update (GPU) Committee members).

Crippling Kapaa traffic was barely mentioned or the already planned future developments (6 in total), further contributing to the already insurmountable congestion problems, let alone any significant solutions presented for addressing these most pressing issues.

It was disappointing to not hear the DOT speak of solid plans for road expansion, save for the pittance of a third lane added from the south Kapaa By-Pass Rd running in front of Coco Palms to Olehena Rd., to begin construction in 2017.

But the biggest shock was to see that slides, projected on a screen by the county, displayed images of the proposed 97 acres for Urban development beside Kapaa Middle School with the same zoning designation color as urban downtown Kapaa, as though Hokua Place were a done deal.

There have been more  than 160 written testimonies as well as oral comments protesting  this monstrosity in previous public hearings. The developer, Greg Allen, was there defending the up-zoning from agriculture to urban for Hokua Place, as well as were some county employees (conflict of interest?) who thought it would be good for the economy (property taxes?).

Hey county!!  What about the quality of our lives here in the Wailua/Kapaa area?

The final wrap-up presentation, which included recaps of the CAC process, sorely lacked substance and insights on how people on the east side are going to manage with the lack of the most basic quality of life factors being met today as a result of poor planning in the past, and now compounded as we move forward into the future.

Are we willing to learn from past mistakes and make a course correction, or are we only willing to repeat them through complacency?

We need to pause and conduct a comprehensive calibration of where we are and how we got here. That means examining all aspects of what it means to be a remote island state. What about lack of affordable housing and food security on an island with 90% of food imported (boat and plane) and  the challenge of affording to live here when cheap oil disappears?

Up-zoning Ag land or leasing it to seed companies is not in the interest of sustainability for our island. In essence, the band aid approach will not work unless the Herculean challenge of sustainability is faced. We are living on a small island that ships or flies in 90% of it’s food.

Climate Change challenges us, even now, with droughts and unusual weather patterns that threaten agriculture everywhere. Food prices will go up when cheap oil runs out. I haven’t heard the CAC/GPU respond to that, nor to affordable housing.

Besides creating more mayhem to the stressed traffic situation, Hokua Place has categorized only 25% of its nearly 780 proposed housing units as affordable (online: luc.hawaii.gov). The question is what is the threshold for “affordable” and to whom does this apply, and compared to what one is using as the base for “unaffordable”.

Of course, they can sell expensive dwellings to people moving here from the mainland. Imagine nearly 1600 additional cars from Hokua Place and another 1600 guests and employees from the three new Wailua resort developments behind Longs and Coco Palms flooding Kapaa/Wailua, and cry, or pray that road rage and depression don’t do us in with heart attacks! This is not to mention the barely acknowledged additional “entitled residential projects” – Kulana and Pi’ilani Mai He Kai (DHHL Anahola).

Before that happens, I ask you to get involved in this community process by attending the next CAC/GPU meeting on Traffic Monday May 9, 2-4:30 in the Lihue County building, adjacent to the DMV. Public speaking time is limited so make it short, but please either turn in written testimony or email it to to:  (plankkauai@kauai.gov)

Ask the CAC/GPU, to go back to the last GPU of year 2000, and delete the recommendation that 93 agricultural acres behind the Kapaa Middle School Urban be up-zoned to Urban.

Also, how about  considering a moratorium on resort development, no more permits given for resorts and non-affordable housing developments in the Kapaa/Wailua area and put the focus on addressing our most current and pressing issues instead of exasperating them?  See you there!

See also:
Ea O Ka Aina: Wailua self destruction 8/20/15
Ea O Ka Aina: My Hokua Place Testimony 6/20/15
Ea O Ka Aina: Hokua Place comment deadline 6/18/15
Ea O Ka Aina: Coco Palms Good to Go 3/11/15
Ea O Ka Aina: Kapaa Heights Development 1/14/15
Ea O Ka Aina: Lihue loss of vision 9/5/14
Ea O Ka Aina: Annals of pure bullshit - Coco Palms 6/22/14
Ea O Ka Aina: Coco Palms Travesty 8/10/13 
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Private & Public Cynicism in TGI

SUBHEAD: They apply pressure on the compliant media with dishonest public relations supporting their goal.

By Juan Wilson on 1 October 2013 for Island Breath -
(http://islandbreath.blogspot.com/2013/10/private-public-cynicism-in-tgi.html)

Image above: Gatehouse to Caumset State park in New York that is similar in scale to one proposed at Kokee. From (http://www.islandbreath.org/2006Year/11-justice/0611-04kokeebetrayal.html)

Kauai Cynical Ploy #1
DLNR announces koa tree poaching on rise in Kokee.

“Amounts taken vary from scene to scene,” Deborah Ward, the information specialist for the Hawaii Department of Land and Natural Resources (DLNR), wrote in an email. “Thefts appear to be increasing and in areas more visible to DLNR officials and the public.”9/30/13 TGI

Why is his Cynical
DLNR wants gate at the Kokee Park Entrance

Since it first proposed the new master plan for Kokee State Park, in 2004, the DLNR has asserted its intent to put a gate up at the entrance to the park and collect fees for entry. There has been fierce and overwhelming opposition from the public since the Kokee Master Plan was first made public. 

Granted, koa wood poaching has been a problem for some time - as well as other resource abuses and overuses. By pointing this out in a press release they are not producing news but once more trying to get around the fact that the residents of Kauai and the public advisory board the DLNR set up to inform them of community desires rejects the gate as a solution to resource issues. 

The Kokee State Park Advisory Council was put together with community members and stakeholders in Kokee. They have continued to recommend that no gate be erected at the park entrance. They met on 9/25/13 at NTBG headquarters in Kalaheo. The garden Island reported:

The original proposal — drawn up in 2003 by officials of the state Department of Land and Natural Resources and a consultant — included a 40- to 60-room hotel with restaurant, a park entry gate to collect user fees, construction of new overlooks above Waimea Valley and several expanded parking areas.

Had others not carefully read through the proposal back then we would have a master plan that includes a hotel, an entry gate that would charge everyone (both residents and non-residents) and have a souvenir store at Waimea Canyon Lookout.

Instead, the community came out to save the mountain from large-scale development, creating Kauai Community-One Voice for Kokee (better known as Save Kokee), an organization dedicated to preserving the parks. In 2008, the legislature created the Kokee State Park Advisory Council (KSPAC)...

Before diving into specifics, KSPAC Chair Charles Wichman Jr. told about 50 community members gathered Wednesday that they would be “pleasantly surprised” by the revisions recently adopted by the state.

“With the exception of the entry booth, we’re really close,” he said.

The proposed entry station includes a 100-square-foot gated booth for collecting fees from non-residents only, as well as a 500-square-foot roadside support building. It would be at mile marker 7, just above the junction of Waimea Canyon Drive and Kokee Road.

Aside from not wanting the entry station at all, concerns voiced Wednesday included that its location would create a large amount of traffic, as well as an additional stretch of roadway the park would be responsible for maintaining, rather than the Department of Transportation. 6/15/13 TGI

Island Breath: DLNR Plan for Kokee State Park on Kauai 11/14/04
Island Breath: Petition against gate fee takes off 11/22/04
Island Breath: Petition against gate gets 1300 signatures 11/30/04
Island Breath: BLNR has not reviewed public testimony 1/11/05
Island Breath: News from Kokee Coalition 2/7/05
Island Breath: Kokee Park Master Plan 5/17/05
Island Breath: Kokee Reprieve by BLNR 9/12/06 
Island Breath: Destruction of Kokee 9/15/06
Island Breath: Kokee will never be the same 9/24/06
Island Breath: State Betrays Kauai on Kokee 12/29/06


Image above: From GoogleEarth 3D image looking north in Hanamaulu-Wailua area near Route 583 by Juan Wilson. There are GMO fields to the east of 583.

Kauai Cynical Ploy #2
GMO companies offer voluntary moratorium on expansion north of Wailua. 

This week through the corrupted machinations of Governor Neil (PLDC) Abercrombie and the Hawaii Crop Improvement Association (lobbying for the Big Five Chemical Companies - Monansto, Dow, Dupont, Syngenta, BASF) a proposal has been floated promising a voluntary moratorium on new open field GMO experimental field operations north of the Wailua River on the east side of Kauai.

"Addressing the moratorium issue, Yukimura said she spoke with the four biotech seed companies, which have agreed to not expand operations north of the Wailua River, pending the county’s fact-finding study.  9/29/13 TGI

Why is this cynical? 
GMO companies don't want the rich and influential turning on them... Oops! Too late. 

...While it may seem like a welcome offer, Hooser described the proposal as “insulting to the community” as it does not include the island’s Westside. 9/29/13 TGI

As far as  I know there were no plans to develop such experimental fields north of the Wailua and the moratorium they talk about is both temporary and voluntary. In other words, they can go back on it any time they want.

But more insidious, I suspect,  is the GMO chemical coporporations' assumption they might peel off support of anti-GMO efforts by those troublesome rich organic kale eating activists on the North Shore and their pesky radio station KKCR.

I don't think the people on Kauai are that gullible. 

Image above: Massive GMO corn field on land leased from Grove Farms on East side of Route 583. Photo by Juan Wilson. Click to enlarge.

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