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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Abercrombie caves on Shawn Smith

SORCE: Hope Kallai (lokahipath2@live.com)
SUBHEAD: There was significant public concern over Smith being nominated to the BLNR because of his favorable ties to development.

By Nathan Eagle on 30 October 2013 for Civil Beat -
(http://hawaii.news.blogs.civilbeat.com/post/65571862830/governors-land-board-appointment-withdraws-over)

[IB Publisher's note:This is another win for Kauai. Perhaps Abercrombie is beginning to hear the voice of Kauai.]


Image above: The Senate Water and Land Committee meets, 30 October 2013. From original article.

Gov. Neil Abercrombie has withdrawn his appointment of Kauai developer Shawn Smith to the state Board of Land and Natural Resources.

Sen. Malama Solomon made the announcement at the beginning of a Senate Water and Land Committee hearing Wednesday.

William Aila, chair of the Department of Land and Natural Resources, said after the meeting that Smith withdrew himself midday Wednesday. When asked why, he said Smith “referred to the process as being challenging.”

Smith is the general manager of the Kauai real estate company Falko Partners. His company is in the process of selling 357 acres in Kilauea for $70 million.

Despite its ag zoning, the property is being developed as a luxury housing subdivision.

It’s common practice in Hawaii to build subdivisions on ag land due to loopholes in state land use laws. People can plant a few mango trees, for instance, and call the home a “farm dwelling.”

Still, there was significant public concern over Smith being nominated to the BLNR because of his favorable ties to development. Abercrombie defended the nomination, which Aila said took a year to come to this point.

The decision to withdraw the nomination restarts the search process, although the governor has the option of appointing an interim board member.

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Shawn Smith nomination criticized

SUBHEAD:  Nominee to Board of Land and Natural Resources draws criticism on development,

By Anita Hofschneifer on 28 October 2013 for Civil beat -
(http://www.civilbeat.com/articles/2013/10/28/20258-governors-nominee-to-board-of-land-and-natural-resources-draws-criticism/)


Image above: Plan of  Kahuaina Plantation Subdivision promoted on Agricultural Land on Kaai by Shawn Smith. From original article.

Neil Abercrombie asks lawmakers to confirm dozens of appointees to state boards and committees during the special session this week, he's facing resistance over a nomination to replace a member of the state Board of Land and Natural Resources, which votes on land leases and new rules governing natural resources.

Some county and state officials worry that appointing Shawn Smith, who is the general manager of the Kauai real estate company Falko Partners, would send the wrong message about land use in Hawaii.

The criticism centers around Kahuaina Plantation, a 357-acre stretch of land on Kauai that Falko Partners is in the process of selling for $70 million. The beachfront property is zoned for agriculture, but the company is marketing it as a luxury housing subdivision.

Marketing materials for the property boast of the potential for 80 exclusive homes along a secluded coastline with a clubhouse and other amenities.

Critics of the project say it’s yet another example of how agricultural land is being depleted in Hawaii in favor of homes for the wealthy.

State law says that land zoned for agriculture may have “farm dwellings” — defined as “a single-family dwelling located on and used in connection with a farm." Clusters of single-family farm dwellings are permitted "within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling.”

Opponents of the project say that the proposed homes don’t quite make the cut.

“[Appointing Smith] is sending such a strong message to the counties that it’s okay for you to be approving luxury home subdivisions on agricultural land,” said Sen. Laura Thielen, a Democrat from Kailua. “And under the law, it’s not okay.”

The governor defended his decision on Monday to nominate Smith.

"The real estate experience and knowledge Mr. Smith has acquired as general manager of Falko Partners will add a practical perspective to the issues that regularly come before the Board," Abercrombie said in a statement. He noted that Smith has been serving as an interim member since June and that large landowners and their employees have served well on the board in the past.

Smith said it took his company from 2004 until 2010 to gain approval for Kahuaina Plantation from the Kauai County Planning Commission.

“Everything was done right to the letter of the law and it took a lot of money to do it right,” Smith said.

He doesn’t expect the development project to come before the state Board of Land and Natural Resources, but said he would recuse himself from any decision if it did.

The Kahuaina Plantation includes a 17-acre organic farm, a nursery and an albatross sanctuary, Smith said. But, he added, the soil on the rest of the property isn’t rated well for farming.

Kauai Councilman Gary Hooser described the property as having only “token agriculture.”

“It’s not really for farms, it’s for luxury homes,” he said. “There’s no question at all that this project violated the spirit, principle and intent of the state constitution.”

Hawaii’s constitution requires the state to “conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands.”

Dee Crowell, Kauai County’s deputy planning director, said it’s not unusual for the county to approve subdivisions on agricultural land, and that the Kahuaina Plantation property followed the law.

“Subdivisions are pretty cut and dry: you meet the requirements, you get the approval,” Crowell explained.

“If they don’t like the law, they should change it," he said. "They're the lawmakers."

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From the Inside Out

SUBHEAD: Resisting bad land use will be even less effective in a crappy economy, where it’s gonna be all about the money.

 By Joan Conrow on 21 September 2011 for Kauai Eclectic - 
  (http://kauaieclectic.blogspot.com/2011/09/musings-from-inside-out.html)

 
Image above: Looking towards the public land at Kaena Point - a possible target of private development on Oahu. From (http://www.thehawaiiindependent.com/story/public-land-development-corp-faces-long-road).

A white moon just a whisker short of half was darting amongst the clouds beneath the steady gaze of Jupiter when Koko, Paele and I went walking this morning. Along toward the end, of both the road and our walk, pink began to creep out and claim first the sky and then the land, infusing it all with rosy color. I’ve been thinking a lot about the land lately, particularly the battles over how to use it, because

I just completed a piece on the state’s Legislature’s thoughtful gift to the people — or at least, the people with connections, the people with investment capital. I’m talking about the Public Land Development Corp, a Honolulu-centric entity with the power to run roughshod over any local development concerns, much less cultural, environmental and historical considerations. The PLDC seems to be aiming the final shot between the eyes at all those who have struggled since statehood to bring some sanity into the land development process; to look out for the interests of poor folks and cultural sites displaced and destroyed, respectively, for some dubious project or another; to level the incredibly uneven playing field that exists between economic growth and cultural-environmental protection.

I’d been thinking about it before I even started the article, while researching a book chapter on Kauai land struggles stemming from the 1970s. The list read like a sad litany of battles lost: Niumalu-Nawiliwili, Nukuolii, the Hyatt, the Westin (now Marriott), Running Waters, and in more recent years, Kealia Kai, Kealanani, Grove Farm’s ugly oozings all around Lihue, the travesty of Kukuiula, the two new Coconut Marketplace resorts — unbuilt, but still alive — and Joe Brescia’s house, built atop the bones of people who once were alive.

Sure, there were small successful skirmishes along the way, little bits of land here and there tucked away in conservation easements, accesses given as others were taken away, costly delays, a Supreme Court ruling on shorelines that the state and county continue to ignore.

But in looking back over the past 40 years, pretty much every developer who came to Kauai has gotten his way. And when they were stymied, ever so briefly and slightly, by the County Council’s moratorium on resorts, they simply turned the entire North Shore into a resort, via vacation rentals, and then bullied the county until it caved in and legalized their illegal minihotels, even those on agricultural land. All the heated public hearings, the contested cases, the lawsuits, the protests, the pickets, the arrests, have pretty much come to naught. Attempts to make changes through the system have hit similar dead-ends. Just look at what the county is trying to do to the citizen’s charter amendment on growth.

We’ve even watched in dismay as former land use activist Jimmy Nishida turned coat and sided with developers once he got appointed to the Planning Commission. (Speaking of which, how many meetings is a commissioner, even a lousy one, allowed to skip? Jimmy has been missing in action for many months now. It’s time for him to resign, so the mayor can appoint another rubber stamp.) My point in all of this is there’s got to be another way, a better way, to influence land use decisions. The current approach has not worked. It will be even less effective in a crappy economy, where it’s gonna be even more all about the money, honey.

And it's going to prove especially ineffective under the PLDC process, which gives citizens just one opportunity, at a Board of Land and Natural Resources hearing, to comment on proposals to transfer public land and development rights to private investors, who in turn are exempted from all zoning and building code restrictions. Yup, the door has been opened really, really wide. It’s time for those of us who care about the Hawaiian culture and the natural world to develop some new strategies for resisting the relentless push to give it all away for mere pennies on the dollar.

From what I've seen, major change cannot be affected within the current narrow, corrupt political system. We need to stop bashing our heads against that hardening concrete wall, stop fighting the battle on their terms, in their arenas. The only thing that will help us now is a complete overhaul of our institutions, starting with our own values, actions, beliefs that, inadvertent or not, still serve to perpetuate the injustices, the wrongs, the destruction and desecration.

 In short, we need to wage a revolution from the inside out. Fortunately, it’s already under way. Wake up, get conscious, and join us. The hour is getting late.

 See also:
Ea O Ka Aina: Abercrombie Land Grab 9/13/11
Ea O Ka Aina: Privitizing Hawaiian Public Land 8/3/11 .

LUC Rescinds Lepeuli decision

SOUCE: Hope Kallai (lokahipath2@live.com) SUBHEAD: Too good to be true. The craziness goes on. Who twisted whose arm on this embarrassment. By Juan Wilson on 5 August 2011 for Island Breath - (http://islandbreath.blogspot.com/2011/08/luc-rescinds-lepeuli-decision.html) Image above: Beach access is under attack throughout Hawaii. From (http://beachaccesshawaii.blogspot.com/). Hope Kallai has been an activist defending access to Lepeuli Beach for years. This morning she forwarded a copy (PDF) of a letter from the Hawaii Land Use Commission Officer Director Orlando Davidson. In effect it rescinds the determination that the recently constructed cattle fence that the traditional access to Lepeuli Beach was inappropriately placed without a permit on Conservation District Land.

August 3, 2011 To All Interested Parties: RE: Boundary Interpretation No. 11 -0 1 Upon a further review of the file, it appears that Boundary Interpretation No. 11-01 was issued without benefit of a "survey map showing the locations of the shoreline as provided for in section 205A-42, HRS." Pursuant to Section 15-15-22 (b) of the Land Use Commission's Administrative Rules, "(a)ll requests for boundary interpretations involving shoreline properties shall be accompanied by a survey map showing the locations of the shoreline as provided for in Section 205A-42, HRS." The party seeking this boundary interpretation did not provide such a map. Based upon this omission, Boundary Interpretation No. I I - 1 should not have been issued. Accordingly, Boundary Interpretation No. 11 -0 1 is hereby rescinded and of no further force and effect. Should any interested party request a boundary interpretation in compliance with Section 15-15-22 of the Commission's Rules, we will undertake to process such a request as expeditiously as possible. Please contact me if you have any questions. Very truly yours, Orlando Davidson - Executive Officer Mail: P.O. Box 2359, Honolulu, Hawaii 96804 Office: 235 South Baretania Street Suite 406 Honolulu Hawaii, 95813 Tel: (808) 587-3822 Fax: (808)587-3827 Email: lucdbedt.hawaii.gov Distribution List: Rayne Regush, Sierra Club Kaua'i Group, Hawai'i Chapter Mr. Donald H. Wilson, Esq., Belles Graham Proudfoot Wilson & Chun LLP William J. Aila, Jr., Chair (BLNR)

This follows the ruling in favor of beach access just four days earlier. See below and previous article(http://islandbreath.blogspot.com/2011/08/lepeuli-beach-fence-in-violation.html).

July 29, 2011 To Donald H. Wilson, Esq. : Belles Graham Proudfoot Wilson & Chun, LLP Watumull Plaza 4334 Rice Street, Suite 202 Lihu’e, Kaua’i 96766-1388 Dear Mr. Wilson: RE: Boundary Interpretation No. 11-01 Thank you for your letter dated July 27, 2011 regarding the above referenced Boundary Interpretation. The goal in every boundary interpretation is to make the determination based upon the best available information. In this instance, I believe that information from the landowner can certainly be relevant and useful as stated in your letter. Accordingly you are encouraged to submit to me all information, including survey maps, topographical maps, historical information and photographs that you believe will be helpful in reexamining the correctlocation of the Agricultural/Conservation boundary. If you elect to provide this information, could you please do so in the next thirty days. In addition, could you please confirm in writing that you intend to submit such information upon your receipt of this letter. Assuming that you elect to provide additional information, I believe that it would be reasonable for the Department of Land and Natural Resources and Kauai County to hold off taking action based upon Boundary Interpretation No. 11-01 while we undertake our review. Please do not hesitate to contact me at 587-3822 if you have any questions. Orlando Davidson - Executive Officer Mail: P.O. Box 2359, Honolulu, Hawaii 96804 Office: 235 South Baretania Street Suite 406 Honolulu Hawaii, 95813 Tel: (808) 587-3822 Fax: (808)587-3827 Email: lucdbedt.hawaii.gov

Oops! Who knew? .