State warns it will intervene with FERC, FFP

LIHU‘E — A Department of Land and Natural Resources representative said the state attorney general’s office plans intervene in Federal Energy Regulatory Commission proceedings involving hydroelectric development in Hawai‘i.

“The state supports renewable energy and looks forward to hydro projects in appropriate places,” William Tam, deputy director for water at DLNR, said to Pacific Business News. “However, the state does not want Hawai‘i’s in-stream flow standards to be decided by a federal agency in Washington D.C. that does not have any experience with or understand Hawai‘i’s streams. Hawai‘i stream-flow standards should not be decided 5,000 miles away where it’s very hard for the people of Hawai‘i to effectively participate.”

Since last fall, Boston-based Free Flow Power has filed six preliminary permit applications with FERC to explore hydroelectricity development on Kaua‘i rivers and irrigation ditches. Once approved, the permits revert back to KIUC.

The preliminary permits allow its holder exclusive rights to explore project feasibility at the applicant’s specified location for a period of three years.

To date, FERC has approved three of the six applications: Wailua River Hydroelectric Project, Makaweli River Hydroelectric Project and Hanalei River Hydroelectric Project.

The other three applications are still pending: Kitano Water Power Project, Wailua Reservoir Water Power Project and Kekaha Waimea Water Power Project.

“With regard to the 36-month preliminary permits already granted by FERC to study potential projects, the state will seek to intervene as a party in all proceedings in order to participate fully going forward,” Tam told PBN.

KIUC CEO David Bissell has said that KIUC likes the FERC process “because it has a lot of steps that you have to go through, a lot of studies, requirements and outreach.”

Bissell has also said the co-op was concerned that any private energy developer could file for a FERC preliminary permit and potentially tie up energy resources on the island for years and never produce a project.

In the PBN article, Tam — who has yet to return The Garden Island’s phone messages requesting comment — argued that priority status to explore hydro can be obtained through a lease option or development rights from land owners.

Gov. Neil Abercrombie appointed Tam to his position at DLNR late last year. Tam was formerly a deputy attorney general for the Board of DLNR, legal counsel to the Commission on Water Resources Management and co-authored Hawai‘i’s state water code.

Co-op members will soon be asked to vote on whether KIUC should uphold its contract with Free Flow Power, which is using FERC to explore hydro.

The ballot is the result of a petition signed by 250 co-op members and filed last month by Kaua‘i taro farmer Adam Asquith, who warned the Board early on that FERC permits might invite legal action by the state.

The ballot, which will be mailed June 13, states “(KIUC Board of Directors) continue to support both our association with Free Flow Power and the use of the FERC process which, in part, protects the utility’s investment from ‘poaching’ of projects by for-profit competitors.” 

It also says that a vote of “no” on the Board’s decision to use FFP will mean “a likely end to member-owned hydro development on Kaua‘i.”

Asquith has said that by using FERC, “we’re at the end of hydro, not the beginning,” because it will invite legal action that will delay the co-op’s efforts to develop renewable energy.

Bissell could not be reached Wednesday for comment on Tam’s statements.

Though KIUC legal counsel David Proudfoot was reached by phone Wednesday, he refused to comment. 

• Vanessa Van Voorhis, staff writer, can be reached at 245-3681 (ext. 251) or by emailing


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