Kahuku wind farm building while legal and regulatory challenges loom

Always Investigating

Despite years of preparation, the Kahuku wind farm project Na Pua Makai faces legal hurdles that are still under review. Always Investigating found several cases are still not resolved, things that could delay or disrupt the wind farm’s legal rights to proceed.

Opponents say all of this should be dealt with before construction starts. Supporters say preparation have been adequate and permissions are proper to proceed.

The Intermediate Court of Appeals is reviewing whether a key component of the windmill project’s environmental review is adequate. The challenge by Keep the North Shore Country is likely to carry on in court well into next year.

“Should we prevail then these guys might not be able to operate,” said Sen. Gil Riviere, who represents the area at the legislature and is part of the Keep the North Shore Country group. “They may not be able to operate until they go back and redo their habitat conservation plan and that will take some time to do.”

Windmills around the world have to deal with risks to birds and bats, and Hawaii is no different. Environmental impact statements for all wind farms statewide estimate at the start how many of a species — especially the native Hawaiian hoary bat — may fall victim to what they call “take,” EIS-speak for when a creature is killed by a wind turbine. Several other Hawaii wind farms have had to go back after operation beings and increase their bat take counts because far more are dying than initially thought.

“These new turbines are going to be massively bigger, and what we’ve seen with larger turbines such as the Kawailoa wind farm, they’ve exceeded their take by great numbers,” Riviere said.

Na Pua Makani’s parent company AES did not respond to multiple interview requests. The company put out a general statement late Friday stating: “We respect people’s right to voice their opinions about the project and we continue working closely with Kahuku and the surrounding communities to answer their questions, address their concerns and find the most meaningful way to give back to the community.”

Na Pua Makani as FAQ’s posted on their website on environmental and other topics at https://www.napuamakanihawaii.org/FAQ/ and the environmental impact statement and habitat conservation plan, including species-take estimates, can be found at https://dlnr.hawaii.gov/ld/na-pua-makani-wind-project-final-eis/

Opponents point out that Na Pua Makani will have the tallest winged turbines in the nation.

“They have said that they will have less or minimal impact on their take of the endangered opeapea (native Hawaiian hoary bats),” Riviere said. “We believe they haven’t properly studied that and believe the court will appropriately send it back for additional work and more measures to protect the animal.”

DLNR, which is a defendant in the appealed case along with Na Pua Makani, declined to comment citing pending litigation. A spokesperson for the state Attorney General’s office told Always Investigating in a statement: “Our position is that Judge Crabtree’s decision is correct,” referring to the lower court judge’s ruling upholding the habitat conservation plan and the permit issued as a result.

Separately, there’s a challenge pending at the Public Utilities Commission. Life of the Land petitioned the agency to declare that the windmill company should not have been granted a power purchase agreement years ago, on the basis that Na Pua Makani did not obtain an incidental take permit within the timeframe allowed by the agreement.

“They are deeply concerned that some energy developers are making representations to the commission to get approval and then once approval is gotten do something else,” Lance Collins, attorney for Life of the Land, told Always Investigating.

“The Hawaii Public Utilities Commission is in receipt of the briefings of the parties and intends to hold a hearing on Life of the Land’s motion,” PUC Chair James Griffin told Always Investigating.

In yet another potential issue, recent video of developers using explosive at the site has been brought to the attention of the State Historic Preservation Division.

“They’re not aware that the archaeological monitoring plan envisioned explosives,” Riviere said. “Obviously if you’re using dynamite you might disturb iwi kupuna or archaeological sites, so there’s a very real concern that they might have skipped this important permitting process.”

DLNR told Always Investigating in a statement Friday evening: “Sen. Gil Riviere, District 23, inquired on Oct. 14, 2019, whether the State Historic Preservation Division (SHPD) office was aware that dynamite had been used. SHPD has not pursued the issue further yet, as it focused this week on two other issues related to the project:

  1. A report of a possible artifact theft – location not yet known, including whether in project area or if reliable report.
  2. Transportation of turbine equipment – SHPD accepted an Addendum archaeological monitoring plan last evening for the transportation routes.”

Opponents also allege historic bridges are at risk from the heavy loads being transported to the site, something that has been brought to the attention of the Department of Transportation and the DLNR.

Collins, who is also Keep the North Shore Country’s attorney, said, “The Land Board has also not adopted a process by which they review and approve of special, risky uses of the bridges. The lack of BLNR approval to use the historic bridges for these massive loads may result in litigation.”

The Department of Transportation told KHON2: “HDOT reviewed and issued the permits for the Na Pua Makani transports per our processes that take vehicle load over axles into account. These processes are used for all structures along proposed routes for overweight/oversized vehicles. The bridges along the route have been checked prior to approval of the permit and HDOT employees have monitored during the first transport.”

PROJECT BACKGROUND

According to energy company AES, the Na Pua Makani project calls for 8 wind turbines, each of them about 568 feet tall, that will produce enough power for 16,000 homes each year.

The company says the initial plan called for 13 to 15 smaller wind turbines, but based on public input, it reduced the number to 8 by increasing the height.

The project’s timeline goes back to 2013, starting with presentations to community associations and neighborhood boards.

That was followed by more public meetings in 2015 for preparation of an environmental impact statement, along with site visits for community associations.

Over the next two years, there were more public meetings and the project gained approval of conditional use permits and of their historic preservation plan.

Construction began this January. and the project is supposed to be operational by next summer.

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