Hydroelectric Projects on Kauai

Residents Express Concerns Over Exclusive Agreement With Free Flow

Kauai is doing its part to reach the goals of the state’s Clean Energy Initiative and become more self-sufficient and less dependent on oil for energy. Many residents support the development of alternative energy sources, but should not have to forfeit their lands, waterways, and rights in the process.

A recent agreement between non-profit, member-owned Kauai Island Utility Cooperative (KIUC) and Massachusetts-based renewable energy company, Free Flow, has some wondering if state rights are indeed at risk.

In January, KIUC signed a memorandum of agreement with Free Flow, initiating a partnership through which hydroelectric energy options for Kauai would be explored. By the end of March, the agreement was finalized and KIUC CEO, David Bissell, assured residents that this partnership ensured that the people of Kauai would have a say in any hydroelectric projects being considered. In a prepared statement, Bissell said, “These agreements are an important step to ensure that any hydroelectric projects developed on Kauai are owned and controlled by the people of Kauai and operated in a way that serves their best interests”. (Source). In his statement, Bissell emphasized the importance of the people’s voice. But under the current agreement with Free Flow, a federal regulatory agency may get the final say.

According to an article in The Garden Island, Free Flow has successfully obtained preliminary permits that give the renewable energy company exclusive rights to explore hydroelectric energy options at specific locations on the island, for a period of three years. The permits were granted by the Federal Energy Regulatory Commission (FERC), an independent agency that - thanks to the Federal Power Act - maintains jurisdiction over licensing. This means that while states individually maintain jurisdiction over water rights, licensing falls under FERC. And FERC doesn’t require applicants (like Free Flow) to prove compliance with state water laws.

If outside developers and renewable energy companies are not required to comply with state laws, there is a risk that FERC’s authority may supplant state water rights. Some Kauai residents, led by local taro farmer, Adam Asquith, have asked that this risk – of FERC’s decisions trumping state water laws that are in place to protect environmental interests - be considered. Asquith explained, “We’re in favor of hydro. But we recognize that it’s an inherently local issue and dangerous to invoke such a prescriptive federal process. It’s inappropriate and entirely unnecessary”. (Source)

Asquith and the Kauai community have valid cause for concern. When California brought a case against FERC in 1990, arguing that a hydroelectric project was prohibitive to the stream flow needed by trout, the Supreme Court insisted the trout, despite living in the water, do not have “vested rights” to the water and consequently ruled in favor of FERC.

Asquith has taken action in the hopes of preventing a similar situation here in Hawaii. He produced a petition, gathered signatures and presented it to KIUC, requesting that a meeting be held to discuss KIUC’s agreement with Free Flow. In response to the community’s concerns, KIUC held a member meeting last week and will be distributing ballots to KIUC co-op members this month, asking for their vote on whether or not KIUC should continue its agreement with Free Flow.