KIUC ballot to decide fate of Free Flow contract

LIHU‘E — Free Flow or likely no go for hydroelectric power is the message Kaua‘i Island Utility Cooperative is promoting as it mailed out member ballots this week.

The ballot asks ratepayers to decide whether to overturn the Board of Directors’ decision in May to enter into a contract with Free Flow Power to explore the feasibility of hydroelectric development on six Garden Isle waterways.

Although the first-ever member-generated ballot simply addresses the contract with Free Flow, the issues surrounding the contract are as deep and complex as all the rivers of Kaua‘i combined.

The ballot is the result of a 250-member petition initiated by taro farmer Adam Asquith, who argues against the choice of Free Flow, and by extension KIUC, to use the Federal Energy Regulatory Commission’s permitting processes for hydroelectric projects.

Asquith says it is a mistake to unnecessarily place the sustainability of Kaua‘i’s waterways in the hands of a federal agency rather than in the state’s, which is more sensitive to the needs of Hawai‘i’s farmers, wildlife and cultural water interests.

He also says that by engaging FERC, the co-op is inviting legal intervention by state and private organizations against the use of FERC-related projects. Such actions could delay hydro projects for countless years, says Asquith, who is a proponent of hydroelectricity.

Kingdom of Hawai‘i

In a letter serving “as a legal notice to cease and desist,” Kingdom of Hawai‘i Prime Minister Henry Noa wrote: “This is an objection to the construction of proposed hydropower projects currently under consideration for the island of Kaua‘i.

“If constructed, not only will these projects permanently desecrate the land and waters, these would be built on lands that have been reclaimed by the Hawaiian Government of the reinstated Hawaiian Kingdom nation, without the Kingdom’s consent or authorization,” Noa said.

The letter states that Hawaiians never gave up their right to sovereignty and did not give up their national lands to the United States. Furthermore, plans to reclaim all properties that belong to the Hawaiian Government and the Crown are being processed.

“The lands and waters that these proposed projects would utilize are part of the land of the Hawaiian Government,” he said. “Steps are being taken to reclaim such lands that were wrongfully taken.”

3 FERC permits granted

Starting last October, Free Flow began filing FERC preliminary permit applications for select Kaua‘i waterways, including Wailua, Hanalei and Makaweli rivers and three irrigation ditches.

To date, FERC has granted the permits for the rivers but not the irrigation ditches. Under Free Flow’s agreement with KIUC, the permits, once granted, revert to the co-op.

KIUC CEO David Bissell said only the Wailua River evokes the FERC permitting because it is a navigable waterway. The other waterways do not require FERC involvement.

Nonetheless, he said KIUC likes using FERC’s permitting process because it provides exclusive rights to explore development for a period of three years and a framework for stakeholder outreach.

Ballot and Voters Guide

The KIUC Voters Guide says that if members choose to vote no and overturn the board’s decision to contract with Free Flow, the preliminary permits will revert back to Free Flow and $325,000 in contractual obligations will be due.

Furthermore, it states that “this will make progress on hydro in the near term very difficult and more expensive” and will mean a “likely end to member-owned hydro development on Kaua‘i.”

The petition’s position — opposing the board’s decision — was not provided in the Voter’s Guide.

The member petition also called for a special member meeting to discuss the issues surrounding FERC. KIUC held the meeting June 4 at Kaua‘i Veterans Center in Lihu‘e.

During the meeting, KIUC previewed the ballot and Voters Guide, which was met with ire by some members who described it as a one-sided presentation of KIUC’s position rather than balanced discussion of the issues.

Pat Gegen, a KIUC Board candidate in the last election, said from “the wording of the question to the Voters Guide, it clearly appear as if they are coming from an investor-owned utility versus a cooperative.

“It appears that the dissenting concerns were not involved in any aspect of this process and are not being given a voice in the Voters Guide,” Gegen said. “That does not seem very democratic to me.”

KIUC CEO David Bissell replied, “This is a very prescribed legal process and the wording. All it comes down to is trying to represent in the ballot what the petitioners ask for, which was the employment of Free Flow Power.”

KIUC legal counsel David Proudfoot acknowledged the petition was ultimately about FERC issues, but indicated the co-op was not required to state the position of the opposition.

“There is a difference between the ballot, which needs to be neutral, and which is neutral, and the position of KIUC and its board,” Proudfoot said. “KIUC and its board, who were elected by its members, they obviously believe in the process they are using and they’re entitled to support it. They are not required to help someone else support their decision, that they don’t like, with the members’ money.” 

Gegen asked, “And that’s a democratic process?”

“Yes, it is,” Proudfood said. “Of the 250 members that signed the petition, if they want to be able to PR their case, they can do it as much as they want, but it’s not up to KIUC, who doesn’t believe in their position, to pay their money for it. It’s no different than any political democratic process. If you’re a republican, you don’t pay the democrats for their publicity. They pay their own and that’s why the Voters Guide is very carefully labeled as the KIUC Voters Guide.”

Jonathan Jay of KKCR testified that “what is completely and totally absent in the Voters Guide is why there is even a debate.”

Jay said, “Petition framers were not invited into the discussion with a simple pro and con. It’s the sound of one hand clapping. It’s not legitimate, it’s not appropriate and it’s not fair.”

 “You say there should be equal rights, but a petition is one person signing one thing,” Bissell said. “We throw out that Adam is the one that’s sponsored the petition but Adam is just one vote.”

Jay said, “No one would complain, I think, if Adam wrote the con position in a ballot, but when the board or management writes the con position, it’s a farce. You know, it’s a sham. It’s not reasonable to expect you guys to argue against yourselves. You’ve already taken a public position.”

He said that because it is a co-op, co-op resources should be used for the con position.

“Unfortunately, there has to be a process,” Bissell said. “There has to be some cut off on this, where it’s one individual gets his say and then where does KIUC come back. We specifically set this up where it’s not that we’re touting the merits of what we’re doing. We stayed away from that.

“If we said this is the best and only way and we think Adam is wrong, that would be one thing. We tried to be very balanced recognizing that. It’s not right. It’s not wrong. It’s what has been done. We’ve tried to be fair. Ultimately what this comes down to in a democracy,” Bissell said. “You do have an elected Board of Directors.” 

An estimated 50 speakers took the microphone to testify and ask questions at the special meeting. Go to for a video of the event.

Upcoming meetings

For those who missed the June 4 meeting, there are still opportunities to participate. Community organizations are holding informational gatherings featuring representatives from KIUC. Some have also invited Asquith to attended.

A Hanapepe community meeting will be held at 6 p.m. on June 23 at Hanapepe United Church of Christ. The format will be informal questions and answers.

Wailua-Kapa‘a Neighborhood Association will have a presentation at 2 p.m. on June 25 at Kapa‘a Library.

Princeville Community Association will hold a meeting at 7 p.m. on June 27 at the Community Center.

KIUC representatives and Asquith are making themselves available for community meetings. Email KIUC at or call 246-4300 to request an appearance. Adam Asquith can be reached at or at 635-8290.

KPAA’s poll on hydropower

Kaua‘i Planning and Action Alliance is conducting a quick online poll on hydropower and whether Free Flow Power and FERC should be involved. Go to to participate.

KIUC had a polling firm conduct a 500-member telephone survey prior to the June 4 meeting to gauge support for Free Flow and hydroelectric power.

One member who took the survey described the questions as “assumptive,” meaning they were “designed to lead the respondent a particular answer.” KIUC has refused to release a copy of the questionnaire and tallied results. Bissell said the survey is for KIUC’s internal use only.

KIUC set July 8 as the deadline to return ballots.

Asquith advises, “If you’re not sure how to vote, ask a farmer.”


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