THIMK

THIMK: There was an expression when we were growing up: "Don't confuse me with the facts." In the age of information, as the gap between belief and veracity widens, it's understandable that the expression has evolved. Nowadays we say, "You're entitled to your own opinion but not entitled to your own facts."

The perfect example of course are the misguided and often downright delusional efforts to spread pseudo-scientific fear and trepidation about so called "smart meters," especially here on Kaua`i where the campaign has reached a disinformational zenith approaching the "Big Lie" on steroids.

The campaign has taken on a life of it's own and there are many who now believe that there is an international conspiracy to use killer radio waves to annihilate us all. And it is being led by those diabolical mad geniuses at Kaua`i Island Utilities Cooperative (KIUC).

"Holy Mindf*ck Batman- It's Commissioner Gordon on the phone... Photovoltaic Man has escaped from jail... again!"

So how did this happen. How did an apparently innocuous device using technology that came in with AM radio grow fearsome tentacles to envelop us all with their evil invisible rays?

News Flash- it didn't... it's a freakin' comic book.

We could blame our educational system. Science curricula in primary school has all but disappeared and students who think science is "toooo haaaard" seemingly having carried the day. In addition while Biology, Chemistry and Physics at least appear on the list of secondary school classes, the Principles of Electricity go generally untaught at the high school level. We admit having had to brush up on on the fundamentals of electro-magnetism, radio frequency and radio waves ourselves when this whole nonsense started- it's probably the least commonly known science out there, probably because it's invisible.

If you ask the average Keone on the street how the sound got into his radio he'd probably look at you like you're crazy... before admitting he'd always assumed something along the lines of "it's magic."

Combine that with the much bemoaned lack of skills involving critical thinking- the act of questioning assumptions- among students today, and it's no wonder that anything that is repeated often enough- especially "on-line"- must be true.

Which is why, although you might hold the people who have been led astray over "smart meters" responsible for their own delusions, we really have to point to KIUC as the source of their own problems.

The powers that be have created KIUC to be a bastion of misinformation and outright lies since it's inception. The very history of the initial pricing scandal convinced people that there were kickbacks and other shenanigans, and the lack of documentation have fanned the flames of mistrust every since. The promise by the original board to operate under the state's open meetings (sunshine) and records (UIPA) laws was thrown under the bus when the original bylaws were drawn up.

The commitment had been elicited by the county council at the time in order to get them to drop efforts to set up a municipal power authority, something which had been approved by voters and is now still a part of the county charter. The promise to maintain a truly democratic co-operative were similarly discarded and substituted for with vague standards of membership participation, all subject to secretive manipulation by the board of directors.

The bylaws- the document that is supposed to give the "members" of a co-op the power over major decision making- allowed the board to institute their own policies that stood the often vague bylaws on its head. One example is the "gag rule" that stopped board members from disagreeing publicly with the policies passed by the majority of the board.

Even now when we brought this up with the new PR guy Jim Kelly we were told that the rule had been eliminated only to find out it had not been ditched but changed, so that now a board member had to clear any public statements he or she planned to make with either the chair or the general manager- giving staff decision-making power over board members in a bass ackward example of who has the power and how KIUC operates.

Through the years the board and the "company" in general has operated with a for-profit business model- "we sell you electricity"- and evolved into bastions of secrecy and manipulation.

The debacle of the membership vote on the federal oversight of local hydro-power epitomized KIUC's methodology of "dealing" with members. Instead of having a fair vote with a straightforward question and legitimate pros and cons sent out to voters, they offer a set of admittedly manipulative and disingenuous "pros" and with exactly zero legitimate "cons. " Also, a massive, expensive PR campaign with full page ads in the local newspaper was purchased turning the vote into the type of thing you'd see in a third world country. People were suggesting we bring in Jimmy Carter to investigate.

These example show why it's been so easy to justifiably demonize KIUC and allow people to use their lack of science training and lack of critical thinking skills to set up false solecisms like:

A) KIUC lies
B) KIUC says "smart meters are safe"
Therefore
C) KIUC is lying about smart meters and smart meters are not safe.

But any student of logic will tell you that part of critical thinking lies in making sure that the assumptions are not misapplied. This example would be like saying in B) that "KIUC says 2 + 2 = 4." Just because KIUC says something is true, doesn't automatically make it lie.

If only life were that easy.

What we've seen is that every time someone tries to bust the myths over health, privacy. cost-benefit and a dozen other supposed "issues" with smart meter opponents they are tagged as being "part of the conspiracy."

One recent attempt to set the record straight comes from the Blue Planet Foundation (BPF) a local non-profit "committed to ending the use of fossil fuels on Earth, starting in Hawai`i."

It's Executive Director is Jeff Mikulina who "served for ten years as the director of the state's largest environmental advocacy organization, the Sierra Club, Hawaii Chapter."

In a piece called "Understanding Smart Meters," BPF shreds much of the misinformation spread by smart meter opponents.

For example, it discredits one of the well-publicized claims that "smart meters cause cancer because RF is classified as a “Class 2-B Carcinogen” by the World Health Organization."

It's a half truth- a misrepresentation that leaves out vital information at best. In actuality:

The World Health Organization (WHO) has worked to identify environmental factors that can increase the risk of human cancer. With that goal, WHO has researched hundreds of possible carcinogenic agents, and categorized them into groups:

Group 1 Carcinogenic to humans 107 agents

Group 2A Probably carcinogenic to humans 63 agents

Group 2B Possibly carcinogenic to humans 271 agents

Group 4 Probably not carcinogenic to humans 1 agents

Group 3 refers to agents that are “not classifiable.”]

To date, only one agent is classified as “probably not carcinogenic.” RF is classified in the next lowest group (2B), “possibly carcinogenic to humans.” Many other common agents are also listed in group 2B, including examples like caffeine, carpentry, and coconut oil DEA (an ingredient frequently found in lotions and shampoos). WHO defines “possibly” carcinogenic to mean that there is: (i) “limited evidence of carcinogenicity in humans” and “less than sufficient” evidence of carcinogenicity in experimental animals”; or (ii) “inadequate evidence of carcinogenicity in humans” but “sufficient evidence of carcinogenicity in experimental animals.”

According to the U.S. National Institute of Health, “there is currently no consistent evidence that non-ionizing radiation increases cancer risk.”

Another recently stressed issue- especially among those who, while not opponents, have questioned the need and wisdom of purchasing smart meters- is whether a cost-benefit analysis has been done and if so, does it show smart meters to be a good investment. The answer is a resounding "yes" according to BPF.

In answer to the question "Will smart meters be cost-effective?" the essay states:

The numbers show that smart meters are a good investment. For approximately 33,000 households on Kaua`i, KIUC plans to invest about 11 million dollars in the smart meter project (with 5.5 million dollars of that coming from federal funding). So, KIUC can expect that updating the meter on each household will cost approximately $333. Each meter is expected to last 20 years or more, so the cost per year is about $16 per smart meter. That small investment is easy to recover from the benefits of smart meters.

For example, at current electricity prices, $16 translates into 46 kWh of energy per year, or about 4 kWh per month. In 2010, the average Kaua`i household used over 400 kWh per month. In other words, if in-home displays or other advantages of smart meters allow Kaua`i households to become just 1% more efficient, then from the consumer’s perspective, the smart meters will more than pay for themselves. And this calculation assumes that energy prices don’t rise at all for the next 20 years. More likely, as the price of energy rises, the smart meter investment will get better and better.

We can also see this smart investment by looking at the ability of smart meters to help us integrate more renewable energy resources onto a smarter grid. In 2010, KIUC imported over 675,000 barrels of diesel, at a cost of approximately $70 million. Meanwhile, only 1.4% of KIUC’s fuel mix was photovoltaic power produced from the sun. Even if smart meters only enable us to increase that photovoltaic contribution by a modest 2%, Kauai would save on nearly 15,000 barrels of diesel. At today’s oil prices, that would stop more than $2 million dollars per year from leaving the island each year. In five years, the smart meter investment would pay for itself. And again, as the price of oil rises in the future, this investment only gets better.

Other analyses have reached the same conclusion looking at the various ways that smart meters will save money. For example, a 2011 report on the Costs and Benefits of Smart Meters for Residential Consumers tallied up the smart meter savings and concluded that “even with conservative assumptions regarding consumer engagement in technologies, programs, and rate plans, utilities and their customers can expect positive net benefits from [smart meter] investments over the next 20 years.”

The piece also explains how "grid modernization starts with smart meters" and addresses all the other supposed horrors of smart meters.

Here are some of the questions and somewhat truncated answers (read the entire essay for full answers and links to definitions of scientific terms as well as background studies and articles on the subject)

Do smart meters emit hazardous levels of “RF,” “EMF,” and “radiation”?

“RF” (radio frequencies), “EMF” (electromagnetic fields) and “radiation” (energy traveling in waves) are scientific terms referring to electromagnetic energy. “Radiation” does not mean the same thing as “radioactive.”

Electromagnetic radiation surrounds us all the time; the most familiar example is ordinary visible light. Many common devices emit or receive electromagnetic energy. These include things like light bulbs, hot plates, remote controls, computer screens, cordless telephones, cellular telephones, metal detectors, wireless computer networks, and baby monitors. Wireless communication devices, from AM radios, to cell phones, to satellites, all use low-energy electromagnetic radio waves to transfer information. Smart meters also use the same “non-ionizing” low-energy radio waves to transmit information about the electricity grid.

Are smart meters hazardous to health?

According to the World Health Organization, a “number of studies have investigated the effects of radiofrequency fields on brain electrical activity, cognitive function, sleep, heart rate and blood pressure in volunteers. To date, research does not suggest any consistent evidence of adverse health effects from exposure to radiofrequency fields at levels below those that cause tissue heating. Further, research has not been able to provide support for a causal relationship between exposure to electromagnetic fields and self-reported symptoms, or “electromagnetic hypersensitivity.”

Also answered are the questions

Do smart meters pose a security threat?

Do smart meters cause fires?

Is it true that smart Meters don’t emit radio waves, they emit dangerous microwaves?

Will smart meters give accurate readings?

Are smart meters a violation of privacy?

It hard to blame misguided people who have been whipped into a frenzy by a handful of people who don't have a good understanding of the underlying science and/or. in many cases. aren't commonly engaged in the critical thinking scientific examination requires.

Many tell people to " just Google it" and yes, if you Google it you will find dozens of anti-smart meter posts from blogs and other sources. And yes, you have to go pretty far down the list for find anything supporting their use. But all that shows is the echo chamber of the claims and the fact that if you keep repeating them and forwarding them and reporting them people are going to start believing them no matter what the truth is.

Many have warned that the ubiquitous nature of the internet and the fact that just anyone can post whatever they want to (whether it is true or not) will lead- or some say has already led- to chaos. They usually end up using this to advocate for what amounts to some form censorship so that "trustworthy" sources are what people will read.

But other like us have advocated for a more informed readership- one that is educated in the sciences and has the ability to use critical thinking to examine the underlying principles involved.

To do this each and every reader must ask themselves some questions.

Is there just a single person or a couple of people making claims, maybe even with one claiming a title before their name such as "Doctor?"... doctor of what? and what is their reputation in the field?

Or is the information peer-reviewed and published in a well established and generally trusted science based publication. Is the article based on an actual scientific study?

Is it not just replicable but has it been replicated? Or is it a series of anecdotes and unverifiable claims based on testimonials?

Are those who are trying to convince you trying to tar information by saying that some disreputable person or organization also said it? Is it using "guilt by association" or an ad hominem attack- one that attacks the person, not the idea or claims?

And finally when people start to claim vast worldwide conspiracies involving all the universities, the government and even organization like Blue Planet Foundation (not to mention Parx News Net) ask yourself if this makes sense.

We could "blame" KIUC for being so consistently disreputable that people are willing to believe that anything they say must be a lie. But even so, each of us is responsible for our own actions and just because your cousin got an email saying the sky is falling doesn't mean it's time to sign up for the Chicken Little Newsletter.

DELIRIOUS

DELIRIOUS: We're convinced that somewhere in the bowels of the offices of Kaua`i Island Utilities Coop (KIUC) there exists a manual detailing how to make sure that every single action they take will be done in the most arrogant, nose-thumbing way possible.

Either that or CEO David Bissell has some diabolical plan based on reversing the public's long held beliefs regarding flies, honey and vinegar.

We suspect it must be the former because it's not easy to get people to rise up in opposition to innocuous and even beneficial actions and go against their own self-interest.

Yesterday's KIUC press release on the heels of a federal lawsuit against so-called "smart meters" filed by North Shore taro farmer Adam Asquith- the one who led the effort to put the kibosh on federal control over hydroelectric projects- is nothing if not designed to piss off even those of us who can find no validity to the claims of long-term, cumulative health effects of smart meters' use of low-level "radio frequency" signals.


Apparently Asquith is avoiding the health issue though, with the suit citing only "serious security and privacy concerns."

But Bissell, ever tone deaf and oblivious to controversies of his own creation, flipping off the community at every juncture so far, continues on his merry way in the release. He starts by saying he is:

"disappointed that a local smart meter opponent felt the need to resort to the filing of a complaint with the federal court in Honolulu on Friday requesting an injunction to prevent KIUC from moving forward with its rollout of smart meters."

Disappointed? What did he expect after- as has been the case with KIUC since inception- telling opponents to shut up and go away, using incremental changes in policy and claiming that the new policy was always the policy.

While the battle over "opting out" of smart meter programs is not new- with California recently implementing a program where consumers can pay to do so- Bissell's original position was essentially that "we're going to install the meters so shut up and sit down."

Then it was approximately "well if you're home when we come to do it and you can catch us doing it, and you insist,we won't install it that day. But we will come back when you're not there and do it anyway."

Now all of a sudden the release says that:

Under the deferred installation plan, each member will receive two weeks' notice prior to installation, and will be given clear instructions for notifying KIUC if they would like to defer. KIUC will take time to assess the situation with the few who defer and determine the most appropriate long-term solution without delaying the efficiency and cost control benefits of this technology to the majority of members

In other words, more "screw you- we're going to do it anyway," but we have developed this fake "deferred installation program"and we're counting on you being too stupid to read critically.

But the sheer arrogance veritably reeks off the page with this statement:

While KIUC is committed to the smart meter technology, the cooperative has said it will indefinitely defer installation of smart meters for the small number of members who are opposed to the technology and submit a formal request," Bissell said. "We hoped this deferral program and our many conversations with the community about smart meters would relieve the concerns raised by the plaintiff and prevent this issue from ending up in the courts.

The "small number" contention is galling enough since the number is growing, mostly based on the thought that ""if KIUC is for it, it must be bad- so I'm against it." But the claim that there were "many conversations with the community about smart meters" is yet another of KIUC's signature whole-cloth-fabrications... apparently part of the aforementioned manual.

But wait- there's more.

KIUC understands the importance of protecting our members' privacy and security," said Bissell. "It is important for our members to remember that KIUC has been responsible for protecting critical information and systems for years. Smart meters are new, but the duty to protect member privacy and ensure the integrity of our electrical grid is not. The storage, protection and sharing of members' private information is strictly governed by co-op bylaws and policies.

Are you serious? Bissell is actually saying "trust us." And to mention the "co-op by-laws and policies"- which violate the very core principles of co-ops by stripping members of their right to democratically decide all major issues- has to be a joke.

The current election for the board of director has been held out as a chance for a "new majority" to take control, although, as we said earlier this month, we haven't heard anything from candidates about returning control of co-op decision making to the members- or expanding membership to every user on the island- and don't expect a total reorganization to meet the standards of a consumer cop-op, even if the miraculous occurs and that majority come to be.


In the "song" Alice's Restaurant, the sheriff has prepared "twenty seven eight-by-ten color glossy photographs with circles and arrows and a paragraph on the back of each one explaining what each one was to be used as evidence against us."

But to the lawman's chagrin, the judge is blind and isn't going to look at the twenty-seven photos.

And like that judge the people of Kaua`i are simply not going to look at the science behind the safety of smart meters or, for that matter, take any claims of adequate security and privacy seriously.

It's too late for Bissell's bluster. We don't want a new board- we want membership control of major decision-making. And nothing less is likely to do.

IT'S BEN DOVER TIME

IT'S BEN DOVER TIME: Our "extra" post yesterday- a news item on Ben Sullivan's hiring by the county to be the new Energy Coordinator- was confirmed in a county press release today.

But apparently others weren't as caught off guard as we were. We heard from quite a few readers saying that they were Casablanca-style "shocked-shocked" that Sullivan parlayed his short stints as founder and head of Apollo Kaua`i and election to the Kaua`i Island Utilities Coop (KIUC) Board of Directors into a well-paid job in the administration of Mayor Bernard Carvalho, Jr.

But looking back on Sullivan's rise from FOB malahini to appointment to Carvalho's crony-filled staff shouldn't come as a surprise to anyone who watches the administration's hiring practices and has interacted with Sullivan since his election to the KIUC board.

We began getting them soon after Sullivan's election- emails, comments and phone calls increasingly expressing disillusionment and dissatisfaction with Sullivan's apparent unwavering shift from perceived dissident to KIUC defender of the realm.

It came to a head with his support for the whole FERC-FFP deal followed by the propaganda- some say misinformation- driven vote that allowed the co-op to go ahead with federal involvement in hydropower projects rather than rejecting FERC in favor of strictly state oversight... especially given the potential for federal "trumping" of the more environmentally-protective local regulations and approval process.

But that alone wouldn't be enough to be a "good fit" for the yes-men and women that kow-tow to Carvalho, in an administration where "never is heard a discouraging word" from appointees... or at least not if they expect to serve in their "at-the-pleasure-of" positions for long.

Sullivan didn't just support board decisions as is required under KIUC rules- he firecely defended them. Board Rule 27 mandates lock-step public adherence to board-determined positions and policies and requires all public statements by board members to be cleared by either the chair or (get this) the CEO. The latter creates a potentially unethical if not illegal situation whereby employees of the not-for-profit are directing members of the board.

He has seemingly relished engaging members of the public in support of those positions and dove in head-first in a rare-for-Kaua`i trait of personal engagement with dissidents... of which there are many when it comes to the electricity coop.

And that is what has made Sullivan a perfect fit for the Carvalho administration. It seems to matter not that he is an architect by education and, although his non-profit work has dealt with electrical power issues, one would think that a highly paid, highly skilled position like this would be filled by someone with training and/or experience in the field... although that hasn't stopped most of Carvalho's appointees from landing jobs with a notable lack of credentials.

Sullivan has proved his worth to Carvalho simply through his ability to stick to the guns of his higher-ups, as evidenced by his stick-to-it-ive-ness in taking on all comers in defending the KIUC realm.

It matters not that he is a relative newcomer to the island or that he is a not "local"- usually a negative for patronage hires under Carvalho. It matters only that he is ready, willing and able to act as a human shield for arrows directed at his boss.

We like Ben. He's the nicest of guys and actually we're sure he actually believes in what he says and what he does. It's likely he will bristle at this analysis of why he got his "dream job."

But given the history of the hiring practices since Carvalho took office just over three years ago, it's hard to come to any other conclusion.

(Saturday Special) THE LUNATIC IS IN MY HEAD

THE LUNATIC IS IN MY HEAD: Ever since Thursday we've had a nagging feeling we were missing something after reading the article in the local newspaper about Tuesday's Kaua‘i Island Utility Cooperative (KIUC) board meeting where it was announced that they were going to essentially ignore the Federal Energy Regulatory Commission's (FERC) ruling dismissing of two of KIUC's eight preliminary hydropower permits and throwing the rest into question.

So on Thursday, when we couldn't quite put our finger on it, we decided to rehash the story of the apparently sleazy way KIUC's deal with Free Flow Power (FFP) went down.

But last night it all became clear after we read a Facebook posting by board member Ben Sullivan.

Sullivan for some reason has taken it upon himself to be the spokesperson for the board's insistence that they are not going to abandon the FERC permits or process in favor of what the FERC called the state's "long history of authorizing and regulating hydropower projects."

Last night, in a seemingly tone-deaf statement accompanying a notice for this week's three meetings regarding KIUC's remaining FERC hydroelectric projects, he wrote "I think our approach is a good one, we just have to make sure there is ample communication and that we work together during the evaluation."

"What approach?" we thought. "What communication? The insistence that the FERC process is the right one no matter what anyone says?"

All of a sudden it hit us. Part of the FERC ruling said essentially that they would no longer issue any more permits for the state of Hawai`i. And that makes KIUC's whole stated reason for using FERC in the first place no longer valid.

KIUC has repeatedly said that they had to use FERC because they were afraid someone else would take out preliminary permits and by doing so, under FERC rules, obtain sole rights to develop those projects. That, they said, would have put KIUC over a barrel of having to negotiate with whomever got the permit and buy the power- possibly at an inflated price- denying the coop actual ownership of the facilities.

But now that no one can get one of those preliminary (or final for that matter) permits, nobody can do that anymore so there's no reason that KIUC even needs a FERC permit anymore.

It's that simple.

But there was also one more claim made by Sullivan that flies in the face of KIUC's previous statements regarding the state regulatory process.

It has been a matter of some ambiguity as to whether there is or is not a state "process for approval" of hydropower in Hawai`i. But according to the FERC ruling “Hawai‘i has a long history of authorizing and regulating hydropower projects at the state level,” and has approved 13 projects throughout the state citing a recent one in Wailuku, Maui.

The whole problem with the FERC process, according to Don Heacock and Adam Asqueth- the two aquatic biologists who have been challenging the use of FERC's federal oversight- is that, due to a US Supreme Court (SCOTUS) ruling, the feds apparently have the power to usurp the state's excellent water use laws which protect whole watersheds and ecosystems, regulating stream flow, water distribution and use as well as other essential matters.

KIUC has maintained over and over that they will follow all state regulation and standards in using the FERC process for public participation and decision making, even pointing to a different SCOTUS ruling that they claim may rule out the usurping of state law.

But seemingly contradicting this is another statement made by Sullivan in Thursday’s article.

Sullivan said there are certain advantages to using FERC for permitting.

“One of the them is the cumbersome nature of the state process —and perhaps even the non-existence of a state process — and that’s an important issue we’ve discussed,” he said. “There’s high cost involved in a process that has no timeline for ending, and it’s difficult to know whether it’s in the members’ interest to even engage in such a process. The FERC avenue offers an alternate to that, potentially. It also lays out a process that we can limit, as you have suggested, and I think that it’s something that the staff is constantly working with the state to do.”

So in other words KIUC does NOT necessarily intend to honor all of the state's water laws as they pledged when state water authorities came out against the use of the FERC permitting.

There is apparently some honest- to-god, double-talking bullcrap going on with KIUC (what else is new). If you care, show up for one or all of this week's meetings and tell them to stop the prevarications and misrepresentations, abandon the FERC process and follow the state law... as they pledged they would.

The meetings are scheduled for Tuesday at Waimea Theater, Wednesday at Hanalei School cafeteria and Thursday at Kapa‘a Middle School cafeteria all from 6 to 7:30 p.m.

WATCHING THE RIVER FLOW

WATCHING THE RIVER FLOW: Our old J-school prof's blue pencil used to wear thin on students' submissions in writing "sez who?" in the margins when their articles contained fully unattributed "facts." It's become one of our pet peeves too- at least add a "reportedly" or the all-inclusive "according to critics."

So it should be too much of a surprise that steam came shooting out of our ears once again this morning when another "according to who?" bit of bull-dinky appeared in a local newspaper article about KIUC's reaction to the FERC decision to "dismiss" two of their preliminary permits and ban future ones in the islands.

In the second paragraph of an article penned by Business Editor Vanessa Van Voorhis, apropos of nothing she writes:

Free Flow Power (FFP) of Massachusetts filed preliminary permit applications with the federal agency earlier this year for projects located on Koke‘e and Kekaha Ditch Irrigation systems. The permits, once issued, were to be turned over to KIUC, under a paid contract agreement with the co-op for an undisclosed amount (emphasis added).

Of course our readers know that that timeline is straight from the Kaua`i Island Utilities Coop's party line and has never been substantiated. As a matter of fact it appears that KIUC was presented with a "deal they couldn't refuse" after FFP obtained preliminary permits from the Federal Energy Regulatory Commission (FERC).

No one really knows for sure whether in fact KIUC actually approached FFP or the other way around because the Memorandum of Agreement (MOA)- the contract between FFP and KIUC- has been declared "proprietary information" by the supposedly member owned and run co-op.

But, as we wrote last July 6 just before the "vote" to invalidate the MOA was closed:

According to documents uncovered by reporter Joan Conrow and information that has been dragged out of KIUC CEO David Bissell and their attorney David Proudfoot, the MOAs came about after FFP filed for six- and already received at least three- FERC preliminary permits that allow the holder to exclusively investigate the possibility of constructing hydroelectric systems for the named areas, potentially leading to FERC licensing of the projects.

But those permits are non-transferable so FFP set up shell corporation to file for the permits and after they were granted they "sold" the shell corporations to KIUC under those MOAs.

There's a reason why we put sold in quotes. Because, according to the information repeated over and over by Bissell and Proudfoot, should the members vote no, the MOAs say that the permits would have to be turned over to FFP- AND we would have to pay them $325,000 to take them back to boot.

We also noted that:

People might be interested to know that the person who approached KIUC for FFP to set up the "offer they couldn't refuse" is said to be investment banker Bill Collett, the same person who set up the whole purchase of Kaua`i Electric from Citizen's Electric for an exorbitant amount of money that was still way more than the book value even after it was decreased by $50 million by the PUC.

But the local newspaper hasn't exactly been in the forefront of investigating the claims of its biggest advertiser, KIUC.
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And it seems they're not about to start now.

The article also again raises the question of whether there is indeed a Hawai`i state process for permitting hydroelectric systems. As we first reported last week, in the FERC's dismissal of two of the permits they cited an established state process, one that had been used in developing 13 other hydroelectric projects in the state.

But while, according to the article, KIUC board member Ben Sullivan still questions whether there is an actual state process State Aquatic Biologist Don Heacock explained to us last week that the state process is the same one used for any other stream diversions.

He told us that, as he and Adam Asqueth- who led the effort to get KIUC to abandon federal oversight- said over and over during the membership vote in July, any hydropower effort must use the state standards for water flow and deal with them in light of the effects on the whole watershed and include effects on water use and diversion on the watershed as a whole.

According to the article Sullivan cited problems with the state process in the same breath as questioning whether there is one. But KIUC CEO David Bissell and Sullivan himself had claimed during the voting process that using FERC would never usurp any state regulations.

The article quotes Sullivan as saying:

“One of the (the problems) is the cumbersome nature of the state process —and perhaps even the non-existence of a state process — and that’s an important issue we’ve discussed... There’s high cost involved in a process that has no timeline for ending, and it’s difficult to know whether it’s in the members’ interest to even engage in such a process. The FERC avenue offers an alternate to that, potentially. It also lays out a process that we can limit, as you have suggested, and I think that it’s something that the staff is constantly working with the state to do.”

So which is it? Are they going to follow the state process or claim there isn't one and do a little as they can get away with?

The article also quotes Sullivan as saying "I do believe that we made some mistakes in the early going, but I do believe we’re doing our best in the interest of the community and continue on with an open mind and open options is the way to go,"

If that's at all true it's about time for him and the board to come clean about all the alleged FFP/FERC shenanigans, release the MOA, abandon the other permits and follow the state processes, as they promised during the vote.

(PNN) FERC DISMISSES PERMITS FOR TWO KAUA`I HYDRO PROJECTS IN FAVOR OF STATE REGULATION; CASTS DOUBT ON STATUS OF OTHERS

FERC DISMISSES PERMITS FOR TWO KAUA`I HYDRO PROJECTS IN FAVOR OF STATE REGULATION; CASTS DOUBT ON STATUS OF OTHERS

(PNN) -- The Federal Energy Regulatory Commission (FERC) has dismissed Free Flow Power's (FFP) and Kaua`i Island Utility Coop's (KIUC) preliminary permits for "Kahawai Power 4, LLC (Kahawai Power) and Kekaha Ditch Hydro, LLC (Kekaha Ditch Hydro)... to study the feasibility of a hydropower project on the Kekaha Ditch Irrigation System near the town of Waimea, Kauai County, Hawaii," according to an order issued today (Oct. 20).

The order is based on the fact that "another developer, Kekaha Ditch Hydro, was already pursuing (the project) through Hawaii’s state hydropower authorization process" calling KIUC's preliminary FERC permit "claim-jumping."

The order also casts doubt as to whether the rest of KIUC's preliminary permits will be allowed stand if the "potential for a preliminary permit issued by the Commission to interfere with existing development activities at the state level is significant."

"While we cannot let a state process interfere with our exclusive mandatory jurisdiction" the order states, "we do not want our preliminary permit program with respect to projects subject to permissive licensing to chill the development efforts of entities pursuing a legitimate state authorization process."

It is unclear what specific state process FERC is referring to. Previous reports and statements from KIUC, opponents of the FERC process and, in fact, state officials themselves have indicated there is no official written state process for developing and approving hydroelectric projects.

In an email today Adam Asquith who has led the opposition to using the FERC process for hydroelectric development on Kaua`i said

This ruling by FERC is significant and fully supports the arguments of the petitioners against the KIUC Board decision to use the FERC process on Kauai...KIUC should voluntarily withdraw all its preliminary permit applications and give up the ones that have been granted. This action would be consistent with the FERC ruling and KIUC's acknowledgment of its wrongful use of the FERC process.

The order indicated that all other FERC permits in Hawai`i- such as the one that, according to FFP's application, would dam the Wailua River- are in trouble too. In further explaining their decision FERC's order states that:

(FERC) has agreed, in a Memorandum of Understanding with the Department of the Interior, to not issue preliminary permits for hydrokinetic projects located on the Outer Continental Shelf. Such decisions are within our authority, so long as we provide adequate justification for them. Examining the facts in the cases before us leads us to conclude that, while the Commission cannot envision every set of facts that may be presented to it, as a general matter we will decline to issue preliminary permits for projects in Hawaii that would be subject to permissive section 4(e) licensing, unless the facts of the particular case present extenuating circumstances that would require the Commission to consider such an application.

The FERC order cited 13 other hydroelectric plants in Hawai`i that had undergone state permitting specifically referring to the example of the Wailuku River Hydroelectric Power Company plant which began producing electricity in May of 1993.

In allowing a state process to supersede the FERC permitting process- as opponents had demanded- the commission wrote that

(w)e note that filing a complete preliminary permit application with the Commission is significantly less demanding than the substantial efforts that appear to have taken place here under the state development process. Thus, the potential for a preliminary permit issued by the Commission to interfere with existing development activities at the state level is significant. While we cannot let a state process interfere with our exclusive mandatory jurisdiction, we do not want our preliminary permit program with respect to projects subject to permissive licensing to chill the development efforts of entities pursuing a legitimate state authorization process...

Nor do we want to force developers of projects not subject to mandatory licensing to engage in the federal authorization process when they have been successfully pursuing authorization from the state, simply because another entity has filed a preliminary permit application with the Commission for the same hydropower site.

The operative paragraph that indicates that KIUC's other hydroelectric projects that have received preliminary permits from FERC will be allowed to undergo state oversight without FERC involvement states that:

in order to avoid similar situations in the future, we will, as a general matter, decline to issue preliminary permits for projects in Hawaii that would be subject to permissive section 4(e) licensing. This proceeding demonstrates the potential for the Commission’s preliminary permitting process to interfere with hydropower development that is proceeding in accordance with a legitimate state authorization process.

STOP MAKING SENSE

STOP MAKING SENSE: With Friday's high noon deadline for the ballots to be received in Kaua`i Island Utilities Co-op (KIUC) "Hydro Vote"- as they insist on calling it, with the words Federal Energy Regulatory Commission (FERC) being entirely absent on the the ballot- looming, the lack of full disclosure, straight talk and transparency in the process are what stand out to those voters who have done their own "due diligence."

In examining the ballot one question that hasn't received much attention is, what exactly are co-op members being asked to vote upon?

In asking "As a KIUC member do you approve of the Board action set out above?" the "above" part says, in main:

This ballot allows KIUC members to approve or reject a KIUC Board action that authorized contracting services for hydroelectric development and acquiring those hydroelectric assets...

A valid petition... requests a member vote on the KIUC Board’s action taken at its Regular Board Meeting on March 29, 2011, approving a Development Services Agreement and an LLC Assignment Agreement that had been negotiated by KIUC Staff with Free Flow Power Corporation.(emphasis added)

So in essence members are being asked whether they approve of the "Development Services Agreement and an LLC Assignment Agreement."

We aren't just being asked to approve or disapprove of a board decision. It's not the decision that's central to the vote. Instead members are being asked to approve or disapprove the contracts the board approved.

The problem is that, as we all know, those agreements- referred to as a Memoranda of Agreement or MOAs- are not being made available to the voters making the decision on whether they are in the best interest of members effectively impossible.

How exactly are members to decide if they approve of the "contracts" if they have no idea what exactly they say?

Well, that "Star Chamber" aspect of this whole affair will certainly be central to any legal action by "no" vote proponents should the co-op members approve of the contracts- that and KIUC's costly, "vote yes," disinformation campaign and suppressing the claims of the petitioners

That alone should be enough for a judge to grant an injunction to enjoin a suit to invalidate the vote, giving the shareholders- the co-op members- derivative injunctive relief, according to a legal expert we spoke to who asked not to be identified.

In other words, we were told, "the guy in the robe would, most likely, tell Proudfoot 'no way'" can you ask voters to approve or disapprove of a document they're not allowed to see.

But let's examine the central claims that we do know concerning the whole deal.

According to documents uncovered by reporter Joan Conrow and information that has been dragged out of KIUC CEO David Bissell and their attorney David Proudfoot, the MOAs came about after FFP filed for six- and already received at least three- FERC preliminary permits that allow the holder to exclusively investigate the possibility of constructing hydroelectric systems for the named areas, potentially leading to FERC licensing of the projects.

But those permits are non-transferable so FFP set up shell corporation to file for the permits and after they were granted they "sold" the shell corporations to KIUC under those MOAs.

There's a reason why we put sold in quotes. Because, according to the information repeated over and over by Bissell and Proudfoot, should the members vote no, the MOAs say that the permits would have to be turned over to FFP- AND we would have to pay them $325,000 to take them back to boot.

Of course we have no way to know how much of this is the truth because no one can see the MOAs. But one thing rises to the top.

If the preliminary permits were part of the deal to "purchase" the shell corporations- which KIUC apparently now "owns"- how can the "non-transferable" permits be transferred back to FFP? And why would we have to pay them almost a third of a million dollars for taking them off our hands?

Especially if the MOA has been invalidated by the vote- something that all involved knew was a possibility when they were signed.

Another note before we take a long weekend and await the vote...

People might be interested to know that the person who approached KIUC for FFP to set up the "offer they couldn't refuse" is said to be investment banker Bill Collett, the same person who set up the whole purchase of Kaua`i Electric from Citizen's Electric for an exorbitant amount of money that was still way more than the book value even after it was decreased by $50 million by the PUC.

We've heard from many of the opponents of the FERC process that they are waiting to see the outcome before filing suit, saying that they would be satisfied if the contract is rejected.

But frankly as someone who smells corruption behind the whole deal, at this point we care less about the outcome of the vote than the contents of the two contracts that are likely so explosive that KIUC would go to these extraordinary measures suppress contents.

Regardless of what happens at 12:00 noon on Friday we hope members will still be demanding to see those MOAs at 12:01 pm. Because if we don't you can be assured that we'll be right back here again after the board and executive staff of KIUC gets the message that they can get away with withholding vital information from its members.

FOLLOWING THE MONEY

FOLLOWING THE MONEY: In addition to our wholesale advocacy of a "no" vote on this FERCin' mess KIUC has gotten us into with their capitulation to Free Flow Partners' (FFP) extortion, we've been doing quite a bit of retail, taking a slew of phone calls from people for whom computers are anathema- all essentially asking "WTF?".

Many just want an answer as to whether to vote "no" or "yes." But far more have read both the newspaper articles and the ballot itself along with KIUC's unbelievably slanted voters' guide.

Under "your no vote means" the guide makes the claim that:

The contracts with FFP will be terminated, and all preliminary permits will revert back to FFP. This will make progress on hydro in the near term very difficult and more expensive, and more than $325,000 in contractual obligations will be due to FFP.

Even those that have read both our coverage and Joan Conrow's awesome Honolulu Weekly article and meticulously researched and presented Gold Diggers (parts 1 and 2) blog posts have asked an important question.

Basically they ask "well, yes- the whole deal stinks and we should never have entered into any deal with FFP. But now that we have we stand to lose $325,000 (some reports claim it's as high as $400,000) which will inevitably show up on our bill. And we will have paid that money and not be any closer to hydroelectric power project development. Shouldn't I vote 'yes?'"

The answer to the first part is that while yes, it will cost hundreds of thousands to cancel the deal with FFP, many have not heard or glossed over a quote from Conrow's Honolulu Weekly piece which says that:

Bissell said no specific price was placed on the applications, which were purchased as part of a larger consulting contract. The utility has refused to disclose the full value of the contract, which includes an incentive for delivering completed projects, but KIUC attorney David Proudfoot said FFP will be paid “several million dollars if none go past the first stage."

Given the opposition to FERC and the likelihood that, with the state's long-standing opposition and threats to sue, we will never proceed to full FERC licensing. What a yes vote means is that, although we'll have to forfeit the $325K we'd potentially be throwing away a lot more.

As Conrow concluded in her second Gold Digger post:

In its permitted applications, FFP states, “The studies will be financed by the applicant.” No mention is made of KIUC. For each project, FFP estimates the cost of doing all the first-year studies — the feasibility stuff — at $100,000. The rest of the work — consultations, developing a notice of intent and pre-application document, and beginning scoping activities — is estimated to “not exceed $500,000."

So even if FFP were to take all six projects all the way up to the license application, it would cost no more than $3.6 million. KIUC won’t tell us exactly what we’re paying, but KIUC attorney David Proudfoot told us at the June 4 community meeting that FFP will be paid “several million dollars if none go past the first stage.”

Several is defined as “more than or three but not many.” So it sounds like we’re paying close to, if not more than, the full estimated price for bringing all six projects through the first stage, even though KIUC CEO David Bissell and some Board members have acknowledged that some of the projects will never get off the ground.

On top of that, FFP will get an incentive for delivering completed projects.

The second question is a bit trickier but perhaps more revealing.

The reason why KIUC says it is going through the FERC is that there is no state process for developing hydro. But we must remember a couple of things.

What many including petition initiator Adam Asquith have said, is that what we should have done- and should do- is to go to the state and say "we want to do hydroelectric projects and want to work with the state to establish a system for development and introduce and pass enabling legislation and eventually administrative rules so that we can develop environmentally and culturally sensitive and water-wise projects into the future.

And, as a matter of fact, a good place to start is the KIUC ballyhooed flow chart that FERC has already developed for public participation and alter it for our unique water laws.

Certainly we're not the only ones in the state who want to develop hydropower. HELCO has the same renewable energy portfolio requirements as KIUC for the other islands. If and when they wake up to the insanity of their "Big Wind" project and the fact that it is doomed to failure, hydroelectric is probably the next best technology in terms of cost of both development and future rates.

But whether through pure laziness, corruption or pure stupidity the KIUC board of directors and administrative staff seems hell bent on committing us to a costly and widely-opposed way of going about it- one that, even if it were to succeed, would still leave us without a simpler, less costly statewide system for the next round of hydroelectric development.

The $325-400,000 we stand to lose in a "no" vote is peanuts compared to the cost of a "yes" vote down the road. Whether as a way to say no to FERC or to, in fact, SAVE us money, a "no" vote is the best option to get us out of this mess that the board of KIUC has gotten us into.

That and remembering this fiasco during the next KIUC board of directors election.

STRIKE THREE?

STRIKE THREE?: What's really unfortunate about the underhanded, secretive and sleazy way Kaua`i Island Utilities Co-op (KIUC) and their partners in corruption Free Flow Partners (FFP) have gone about hydroelectric development is that it will inevitably delay- if not kill- immanent development of the cheapest, most dependable of carbon-free energy systems.

Add to that the fact that, because of the unique position of Kaua`i as the world capitol of various endangered bird species, there will never be large scale wind farms on the island and even backyard windmills may eventually be banned, once the county catches on to the fact that our "probation" with the feds- as a result of a settlement federal suit- probably requires us to severely restrict, if not ban, them too without prohibitively costly "take permits."

And with home windmills gone that leaves roof-top solar as the last, best bet to reverse the "we sell you electricity" business model KIUC seems to be hell-bent on perpetuating as if it were an investor based utility.

But today any hope for making it easy to put photovoltaic systems on people's homes took a kick in the nuts when Governor Neil Abercrombie put HB 1520 on the "Intent to Veto" list.

In April, as the bill went to conference committee, we detailed a decade long fight, first with the solar installation firms and currently with the utility companies to pass a bill requiring on-bill financing for home solar electric systems.

And even though the bill was watered down further in committee- changing the wording from directing the Public Utilities Commission (PUC) to "consider implementing an on-bill financing program for residential electric utility customers" to "investigate an On-bill Financing Program (Program),"- and passed the legislature it appears on today's list.

Strangely it is one of a very few bills on the potential veto list for which a reason hasn't been given, as yet.

But a veto isn’t certain and you can call Abercrombie at 808-586-0034 or write him him using a handy-dandy form (http://hawaii.gov/gov/contact/contact-gov) and urge him to get the ball rolling on home solar generation with on-bill financing.

WHILE WE'RE ON THE SUBJECT

WHILE WE'RE ON THE SUBJECT: Oh there was fear. Oh there was loathing.

But the when KIUC CEO David Bissell "debated" anti-FERC petition originator Adam Asquith at a packed Kapa`a Library conference room on Saturday there was mostly misdirection and stonewalling on Bissell's part- especially when we asked about the origins of KIUC's dealing with Free Flow Partners (FFP).

We decided to confront Bissell as to how exactly the deal came about, quoting a Honolulu Weekly article by Joan Conrow that made pretty clear that FFP had gotten the preliminary Federal Energy Regulatory Commission (FERC) permits, set up shell corporations and then held a gun to KIUC's head forcing them to either deal with FFP to get dibs on the exclusive right to develop six water runs on Kaua`i for hydroelectric or FFP would tie up the rights indefinitely.

Bissell at first denied that the permits were issued before KIUC's initial involvement (which Bissell said was last October) something documentation reveals to be a lie. But then, when we were allowed a followup question, he refused to say who exactly approached whom and how the deal was struck other than saying an unidentified intermediary brought the parties together, saying "what difference does it make?".

We approached Bissell after the meeting seeking to get some answers to that matter as well as a couple of others. But Bissell as soon as we approached him as he spoke to others, quickly scurried to his car, saying he would not answer any more questions and leaving us, note pad in hand, chasing him through the library parking lot.

So what is the truth? Well, according to Conrow's blog post today, the truth is that "FFP had already done the “poaching” by filing its applications for hydro projects on Kauai waterways prior to entering into a contract with KIUC."

Not only does she clarify and reiterate what we suspected she was saying on Friday but she details how "it appears the circumstances that led to their union were more akin to a shotgun wedding than a love match. What’s more, it seems that “grab 'em with both hands” is FFP’s standard MO."

Seems that, although FFP hasn't developed a single project as opponents have reiterated, they have scooped up hundreds of these "preliminary permits" across the country including "141 project sites covering all but a few miles of (an) 850-mile reach of the (Mississippi) river" causing FREC "to decline to issue additional permits on this stretch of river, and instead allow potential developers to advance their projects through the commission's licensing process."

Another part of their scam seems to be to find existing dams without any hydro projects and get permits for exploring exclusive development.

While we suggest you read Conrow's post today for all the gory details of that and other FFP mainland scams, what remains is yet another reason to distrust Bissell himself and everything that comes out of his mouth.

The other questions we didn't get answered included one as to why the "members" of the co-op aren't entitled to examine full Memorandum of Agreement (MOA) between KIUC and FFP which, as far as we have been able to determine by asking board members, is "confidential" for no particular reason other than it's confidential.

One thing that Bissell refused to say was whether KIUC would commit to abandon the seeking of full FERC licensing, in light of the contention of late that KIUC/FFP has only obtained "preliminary permits" to look into hydroelectric projects on Kaua`i and not full "FERC licensing"- the latter of which is opposed by the state DLNR's water division chief and attorney general's office.

It's particularity irksome that Bissell has claimed that, because there is no state process for hydro development, we need to follow the "FERC process" contained in a flow chart that was waved about at the dais. But he avoided commenting on why that process couldn’t be followed without FERC.

Could it be that the reason why KIUC never approached the state to set up a state-based process for developing hydro was because FFP had already gotten the preliminary permits and was holding a gun to KIUC's head saying that they would hold up any hydro development indefinitely unless KIUC signed on the dotted line?

That would sure explain a lot of things such as why all of a sudden without any advance notice KIUC was suddenly gung ho for hydroelectric development. It would also explain why they signed an MOA that "purchases" the permits and shell corporations but allows both to revert to FFP should KIUC change its mind, as will happen should the ballots be returned with more "no" than "yes" votes.

We had prepared a question for Bissell on the off-chance that we would get a second round at the meeting along the lines of "given that almost everyone- including some board members- agrees that your communications with the public have so far been severely bungled with a lack of transparency, the 'no FERC, no hydro' threat and the refusal to release the MOA, is there anything you'd personally do differently if you had it to do over?".

But after the a couple of hours of misinformation, threats, misdirection and, when necessary, stonewalling in reiterating all the past bunk we've been fed, the question seemed to have answered itself.

ASK ALICE

ASK ALICE: It didn't take long for our phone to start ringing yesterday and, as is usual when we describe someone- in this case people with Kaua`i Island Utilities Co-op (KIUC) - grasping at straws, trying to overcome past stupid foibles by spewing additional half-truths and outright lies, as things get clearer and clearer they also get curiouser and curiouser.

KIUC's latest "claim,"- as we called it yesterday even though we know how charged that word is as opposed to simply "said" that essentially KIUC has only thus far received "preliminary permits" through the Federal Energy Regulatory Commission (FERC) process and that the state doesn't oppose that, has a few people confused.

Because for it to mean anything at all it would mean that those urging a "no" vote on the ballot question co-op members are currently being asked to decide, have won and KIUC is stopping the FERC "process" with these "preliminary permits."

The question that we came away from those calls with is "so what." Because unless KIUC has decided to reverse course and end their involvement with Free Flow Partners (FFP) and abandon the actual development of the hydroelectric projects, it's an absolutely meaningless red herring.

Because, although we can't be sure what in the heck KIUC has agreed to in their super-secret Memorandum of Agreement (MOA) with FFP because they won't let anyone see it. It's quite obvious that the "FERC process" they speak of includes the actual development of the projects and the granting of full FREC "licenses" to do so.

That bit of obfuscation and some other things were made a bit clearer with the on-line availability of Joan Conrow's Honolulu Weekly article on the subject.

But one thing, if we're reading it right, just adds another layer to the original sins of KIUC in secretly signing up with FFP.

Joan writes that:

The utility actually followed the lead of Free Flow Power (FFP), a Massachusetts-based consortium of consultants and investors that filed the permit applications that created a community uproar. The utility became embroiled when it bought Free Flow’s permits and hired the firm (emphasis added) to guide it through a hydro development process administered by the Federal Energy Regulatory Commission (FERC) in Washington, DC...

To stake its own claim, KIUC purchased the shell companies that FFP formed to file six applications on waterways (emphasis added) from Hanalei to Kekaha. FERC has already approved three, giving KIUC preliminary permits that carry the exclusive right to study hydroelectric development for three years.

Now those following the the issue down the rabbit hole will remember the original claim by KIUC CEO David Bissell and their attorney David Proudfoot was that the reason they went to FFP and engaged in the FREC process was so that they could make sure that someone else didn't apply for a permit, which grants the exclusive rights to a three-year period to consider development.

But if we're reading Conrow's contention right it sounds like that "someone else" might just have been... drum roll... FFP.

That would certainly explain why, as opponents have said, KIUC chose a company with no hydroelectric track record that sounds more like a venture capital firm- with shady connections- than an energy developer.

While as KIUC has indicated there may have been others who they were afraid of it makes you wonder who is extorting whom.

As we said in our "editorial" Monday- and as Conrow makes abundantly clear- "nothing but a pack of cards" KIUC has created a situation where anyone who didn't, as they say, think that "a sign that they're lying is that their lips are moving" before this episode, is certainly convinced of it now.

Yet unbelievably, Bissell is quoted as bizarrely having said:

“I encourage everyone to have trust in KIUC, have trust in your elected board, have trust in me and, most importantly, have trust in yourself. The only way these projects will go forward is through overwhelming community support.”

All we can say to that is "eat me."

JUST FERCIN' WITH YA

JUST FERCIN' WITH YA: Although our editorial Monday concentrated on the incredible arrogance and stupidity regarding the way Kaua`i Island Utilities Co-op (KIUC)- notably via CEO David Bissell and attorney David Proudfoot- has acted in the whole Federal Energy Regulatory Commission (FERC) hydroelectric project debacle, we did mention at least two glaring issues that have underlined efforts to reverse the board's decision to engage with Free Flow Partners (FFP) to go through the FERC process- issues that KIUC has refused to respond to, choosing instead to obfuscate the issues and overwhelm us with costly PR.

The first was the state's opposition to the project, specifically through statements by William Tam, deputy director for water at DLNR. The second was regarding the Supreme Court of the US (SCOTUS) case California vs FERC in which the court rules that FERC rules preempt state laws and regulations regarding water use.

But although KIUC has generally ignored the real issues and has attempted subterfuge and extortion in trying to win the ballot vote to reverse the decision, they are finally fighting back in the person of board members (and, full disclosure, our long time friend) Jan TenBruggencate, with whom we spoke on Monday.

Apparently TenBruggencate has also been speaking to the local newspaper and today they published an article in which TenBruggencate essentially claims that KIUC has only received "preliminary permits" and that the state only opposes actual final FERC permits.

They also said they couldn't reach Tam for the article but state that TenBruggencate met with Tam last week.

However in a piece by Joan Conrow in her Kaua`i Eclectic blog today she says that

I was able to get some clarification from Tam for my Honolulu Weekly article, which comes out today...

I asked Tam, who previously told me he’d taken no stand on the FERC permits, if that was a correct statement of his position and got this email in response:

"Hypothetical situations have been considered under certain assumptions, but no resolution has been reached."

And I can’t help but wonder, if the state supposedly doesn't oppose the use of preliminary permits to scope hydro projects, why have two state agencies — the Agribusiness Development Corp. and Department of Hawaiian Home Lands — already filed formal motions to intervene?

Clearly, they're alarmed about something.

Clearly.

But TenBruggencate's other contention- one made earlier to attorney-blogger Charley Foster- was that another SCOTUS case could mean that, as Foster headlined "FERC supremacy over Kauai water regs overstated?"

Seems a case called Jefferson County Et Al. V. Washington Department Of Ecology Et Al. (1994), which came after the 1990 California case, apparently held that some state regs could actually trump federal law as TenBruggencate claimed to us on Monday

Foster said in a comment on our Monday editorial:

It's an interesting situation before the Supreme Court. While California v. FERC said the Federal Power Act supersedes state law under all but certain enumerated circumstances, the Court later ruled in PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, that the Clean Water supersedes the Federal Power Act and gives the power back to the states to set licensing requirements. In pointing out the seemingly schizophrenic decisions, the dissent in the later case pointed out that California would have prevailed in the earlier case had it asserted its requirements through the Clean Water Act rather than through the Federal Power Act.

In any case, I wouldn't want to be the attorney having to navigate through that legal mine field.

But in reading the two opinions, while California is a wide ranging and broad reaffirmation of a previous case called First Iowa Hydro-Electric Cooperative v. FPC, which held for federal supremacy in all water issues, Jefferson County v. Washington Dept. of Ecology, deals narrowly and specifically with the Clean Water Act and water quality, although it does say one cannot separate water flow from water quality.

It doesn't even mention First Iowa or California and only touches obliquely on California at the end by saying

In addition, the Court is unwilling to read implied limitations into § 401 based on petitioners' claim that a conflict exists between the condition's imposition and the Federal Energy Regulatory Commission's authority to license hydroelectric projects under the Federal Power Act, since FERC has not yet acted on petitioners' license application and since § 401's certification requirement also applies to other statutes and regulatory schemes.

Which means that the case didn't even touch on any FERC supremacy issues because, at the time of the decision, there was no FERC involvement yet.

Which is exactly what opponents of the FERC process are saying- that if and only if FERC isn't involved in hydroelectric development, state laws and regulations would be enforceable- otherwise, all bets are off.

While it's nice that someone with some integrity from KIUC is finally, after all this BS, at least trying to address the specifics of why members are trying to reverse the board's decision, TenBruggencate is apparently shooting blanks- blanks most likely provided by Bissell and Proudfoot.

(PNN/gw?) REJECT EXTORTION, LIES, INCOMPETENCE; VOTE "NO" ON KIUC'S BALLOT MEASURE

PNN: REJECT EXTORTION, LIES, INCOMPETENCE; VOTE "NO" ON KIUC'S BALLOT MEASURE

Please vote "no" to the ballot measure that recently arrived in your mailbox and send KIUC a message that subterfuge, laziness and a lack of due diligence is not acceptable.

The issue is not hydro-electric power development as they would have you believe but Kaua`i Island Utilities Co-op's (KIUC) ill-considered decision to engage in the Federal Energy Regulatory Commission (FERC) process despite the state Department of Land and Natural Resources' (DLNR) opposition to the use of FERC in Hawai`i- opposition which dates back to a previous attempt to use FERC in the 1990's.

Not only did the KIUC board of directors either ignore or fail to discover the state's opposition but they were apparently unaware of a US Supreme Court case, California vs. FERC, which would give FERC the power to override the unique water use laws of Hawai`i.

The FERC process is so odious that Senator Daniel Akaka (D- HI) introduced legislation to remove Hawai`i from FREC control.

The KIUC board of directors was sold a bill of goods by new KIUC CEO David Bissell apparently, whether by malpractice or malfeasance, without discovering these factors and now has used lies and an overwhelming expenditure of co-op funds for a PR campaign to try to make people believe that they must vote "yes" in order to ever develop hydroelectric facilities on Kaua`i.

Nothing could be further from the truth. But the board has continued to try to make up for the lack of attention to their true fiduciary responsibilities- to serve the members of the co-op- and instead protect themselves from being accused of blowing, by some reports, up to $400,000 which has already been spent.

If KIUC members don't stop the process here it could cost KIUC members even more in defending a planned intervention by the state attorney general’s office as well as planned lawsuits by opponents federal control of Hawai`i water resources.

According to a Pacific Business News interview with William Tam, deputy director for water at DLNR, Tam threatened the intervention saying that

"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.”

In the Supreme Court of the US (SCOTUS) case the justices ruled that FERC's rules trump state regulations if the two conflict, despite assurances from Bissell and KIUC attorney David Proudfoot that all state regulations will be followed.

The fact is that Bissell, Proudfoot and the board have refused to directly engage with opponents on the specifics of the FERC process raised by Tam, Akaka and the SCOTUS ruling, rather taking a paternalistic "trust us" tact.

But trust is difficult if not impossible given KIUC's track record and the surreptitiousness of the vote to engage Free Flow Partners- the company applying for the FERC permits with which KIUC has a so far secret "memorandum of agreement."

Though they promise to engage "stakeholders" from now on, not only is the damage to any trust already done but they have made it clear that on the key issue of FERC involvement they will not budge no matter what future discussions with the community yield.

As a matter of fact Bissell and Proudfoot have admitted using the fact that they controlled the "voters' guide" that came with the ballot to misrepresent opponents' views.

An article in the local Kaua`i newspaper states that:

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.”

(Opponent Pat) 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.”

It's apparent that the extortionate efforts by KIUC to misrepresent the issue by threatening Kaua`i with a "vote yes or you will never have hydro" lie are, in and of themselves, a reason for continued mistrust.

In fact, an effort to recall all board members and fire Bissell and Proudfoot is being discussed by opponents of the decision to engage with FERC.

Don't knuckle under to KIUC's threats to deny us hydroelectric projects or believe the prevarications, misrepresentations and efforts to overwhelm us with false PR statements by voting "no" on the KIUC FERC "hydro" ballot measure.

FERC YOU

FERC YOU: Anyone surprised at the FERC KIUC debacle wave your electricity bill in the air.

Okay- you can go back to sleep now. Because unless you were under the proverbial rock for the past decade you must have been fast asleep to be shocked at anything "this co-op" does.

Since day one when barnacle-on-the-butt-of-Kaua`i Gregg Gardiner convinced a group of good old boys and girls and Democratic Party bosses to pay way too much for the liability that was Citizen’s Electric- and stick the resultant debt on the backs of the island working people- the hew and cry of warnings has been a loud if ineffective undercurrent of stomach churning rage from rate payers.

"We're all for a co-op- just not THIS co-op" was the slogan of the original "nitpickers" whose moniker was proudly taken from former Mayor Marianne Kusaka's attempt to denigrate the effort that saved members $50 million and should have brought the price down by another hundred million.

But the makeup of the board was a who's who of the then, two factions of the Democratic Party- the old guard represented by aging, "442nd" party boss Turk Tokita vs the new guard of then-former Mayor and then-out-of-politics progressive JoAnn Yukimura.

And when the bylaws and rules were forced down the throats of members in an all-or-nothing vote- removing the promised precepts of the Sunshine law and giving all power to the board- the course was set for today's dictatorial decision-making by a handful of the power elite.

With today's news from Pacific Business News (via the local newspaper) that William Tam, deputy director for water at DLNR said that "the state does not want Hawai‘i's (sic) 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" and the announcement of an effort from anti-FREC forces leader Adam Asquith to get signatures to a full page ad fully explaining all that's insanely stupid about going through the feds, the tide seems to be turning- that despite the "that's my story and I'm stickin' to it" stance of the stumble-bums on the KIUC board.

And that includes the original three opponents- Carol Bain, Ben Sullivan and Jan TenBruggencate who were elected to be the voice of reason but who now, reportedly, have switched sides.

What the board seems to have forgotten are the lessons of another recent debacle- the ill-conceived and supremely bungled Superferry and the resultant battle.

The reason why, shockingly, the people of Kaua`i seemed to oppose the big bad boat was not the boat itself but for the way it usurped the processes that, although usually ineffective, are at least supposedly there to protect us from deregulatory invasion from Washington D.C. and Honolulu.

Just as the feds and state conspired to remove the environmental assessment and impact statement process for the Superferry, once again a bunch of power mongers have decided to allow a federal process to negate the unique water rights and management laws that have been carefully developed over decades in Hawai`i.

Then when challenged the powerful wielded their power to lie and deceive in such a blatant way that nobody failed to get the "sit down and shut up" message that General Linda Lingle and her unified command threw in the faces of those who usually, unless riled up by a lack of respect, act like sheeple.

And now though few understand the ins and outs of water usage, citizens feel the same kind of "like it or lump it" missive coming from elected officials who fail to get the message that their arrogance, not the project, is the becoming the issue.

Though it's too early to tell the rising tide of indignation over the attempted FERC KIUC sleight-of-hand indicates that the same kind of outrage that swept the island over the Superferry fiasco might just be at hand.

Because, as "this co-op" circles the wagons, the natives are getting restless.

GAG ME WITH A RULE

GAG ME WITH A RULE: A week ago we ended our piece on Kaua`i Island Utilities Coop (KIUC) and their ill-conceived and even more ill-advised hydro-electric projects on the Hanalei, Makaweli and Wailua Rivers by criticizing three board members who, though promising to bring some transparency and openness to the Board of Directors, have apparently capitulated to the board “gag rule” on speaking publicly on KIUC’s board’s policy and decisions.

We wrote:

For some reason it doesn’t seem to matter who we elect to KIUC’s board of directors. So far three directors who seemed to “get it” before their election- Carol Bain, Ben Sullivan and recently Jan TenBruggencate- have remained silent and apparently gone along with the majority, supposedly, we hear, because they don’t have the majority they need to overturn some “stifle rule” that forbids them from speaking on their own.

Assuming their thoughts on this and other KIUC actions are in dissent of the majority it’s time for them to rise to the to challenge by speaking out publicly, at least as individual co-op members- and letting the chips fall where they may.


And with an upcoming election it’s vital we get commitments from candidates to toss this policy.

But not only is the board steeped in secrecy but the rule itself has never been given any exposure- until now.

Anyone looking for it would have to go to KIUC’s “Board Information and Meeting” page and then search through 27- yes 27- Board of Directors Policies and Procedures until you get to the last one- the 27th, Director Communications- to find it.

We understand from someone who had seen the previous policy that this version- apparently passed in May 25th 2010- is even somehow an improvement over the last one although we can’t imagine anything more much restrictive.

The policy starts off fairly innocuously with a “Purpose of Policy” statement that says:

To Define for present and future KIUC Directors guidelines for communicating about KIUC Matters with KIUC's members and the public at large, and to foster communication with KIUC's members so that they may actively participate in setting KIUC's policies and making KIUC decisions consistent with cooperative principle number two.

But then it goes on to restrict that communication to accomplishing anything but “active participation.”

The “Policy Content” starts off innocuously enough by saying:

A. Directors must not reveal any of KIUC’s privileged, confidential or proprietary information to anyone outside the Board and/or KIUC executives, in any format.

But the next section fully restricts board members from saying anything that doesn’t reflect the full boards position on any item, saying

B. Where a position has been taken by KIUC and/or its Board, Directors should make every effort to ensure that any communications with KIUC members/customers (whatever the form of the communication) are accurate and represent the official position of KIUC and/or the Board, (emphasis added) or, if no position has been taken, that the communications accurately reflect only information revealed in open sessions of KIUC Board meetings and/or in public documents.

It gets worse. The next one forces board members to clear any and all public statements through the board’s chair.

C. Any communication clearly likely to receive wide dissemination (blog, social networking site, letter to editor, news release, white paper, etc.) is to be submitted for review to the Chairperson of the Board or, in the absence of the Chair. KIUC's President and CEO, prior to dissemination. The contents of such communications must comply with paragraphs A and B above. Such review is intended to be a check for accuracy and appropriateness, because even a minor misstatement could lead to significant difficulties for KIUC. The results of the review of such communications shall be provided to the Director requesting review no later than 3 working days after receipt by the reviewing authority, and will include a statement of approval, or if not, the reasons for disapproval and/or recommended changes. If the requesting Director is not satisfied that reason given by the reviewing authority for non-approval is appropriate, the requesting Director is entitled to resubmit the communications with changes or bring the matter to the attention of the entire Board at a properly noticed meeting, and the decision of the Board thereupon shall be final.

So, in other words, if you are of a different opinion you are entitled to... change your opinion. Gee thanks dad.

And you can bet that if a board member doesn’t agree with, lets say, the hydroelectric projects or the recently announced “power partners” agreement for a photovoltaic solar farm that will lock rate payers into prices that are tagged to oil at $90 a barrel, they will not get approval until they agree with the rest of the board.

But wait- it gets worse still. Board members are actually banned from even discussing their dissenting thoughts with coop members because the next section says:

D. Directors should not publicly debate or advocate issues that are under active consideration by the Board or that have been previously decided—such discussions should be reserved for Board meetings. However, it is entirely appropriate for Directors to discuss with their constituents (in appropriate venues) issues that are before the Board, with the intent of gathering input to be brought to Board discussions, assuming that such communications comply with paragraphs A and B above.

That goes even presumably if they are running for re-election and are challenged over board actions during their tenure.

There are six candidates so far in this year’s election- David Iha, Patrick S. Gegen, F. Kenneth Stokes, Teofilo Phil Tacbian and Peter Yukimura- for three position, although there may be more who petition to get on the ballot.

You can be sure that the three incumbents seeking reelection, Iha, Tacbian and Yukimura- all charter members of the good old boys club- will never vote to remove this policy. And presumably- and conveniently- in a wonderful “catch-22” the policy restricts them from stating whether they disagree with, and will vote to overturn, the rule

The only pertinent question for the rest this year is “will you vote to remove Board Policy #27, the gag rule?”

WATCHING THE RIVER FLOW... OR NOT

WATCHING THE RIVER FLOW... OR NOT: The outrage over Kaua`i Island Utilities Co-op’s (KIUC) anachronistic, 20th century plans for hydro-electric dams- despite the fact that all over the country people are actually trying to tear them down and use flow of the river generation- continues with word that Wailua isn’t the only river on their destructive target list.

According to an article in yesterday’s Honolulu Advertiser:

The Hanalei River, Makaweli River and Wailua River proposals involve constructing dams and weirs that would result in reservoirs of various sizes. The largest would be a reservoir with a surface area of 35 acres that would be created by a 503-foot-long, 23-foot-high earthen dam on the Wailua River. The Kokee Ditch project would tap two existing reservoirs that would be upgraded, (KIUC senior energy solutions engineer Steve) Rymsha said.

But the article goes on to point out that:

residents who submitted written comments on the Wailua plan suggested developers opt for a "run-of-the-river" approach, where the natural flow of the river could be tapped to generate electricity without building a dam. The majority of existing hydro projects in Hawaii are run of the river ( emphasis added).

Why is it that every decision made on Kaua`i seems to fly in the face of the latest “best practices” around the world? Do they issue some sort of “worst practices” manual whenever someone moves into a decision making position? Are we that far from the mainland that information takes decades to reach here? Do they lose the ability to do research when elected or appointed?

One of the more rabid opponents of this latest insanity is architect Juan Wilson who has been a voice for perma culture and sustainability on the island.

In a scathing yet well reasoned indictment of KIUC and its latest debacle Wilson writes at his Island Breath web site:

KIUC's... plan is to continue an affordable American Dream of suburban consumption. The scale and activity of their hydroelectric dreams are unaffordable and will have only damaging affect on the ecosystem of their locale...

I wrote FERC the following;

Do not permit Free Flow Power a preliminary permit application for the Wailua Power Project for Kauai Island Utility Co-op (KIUC). We do not need another hydro-power plant on Kauai.

He then gives a blunt, factual history of the financial foibles at KIUC and how they’ve managed to raise our bills since their inception, rather than lowering them as promised.

As it came into being (2002) KIUC agreed to pay Citizens Communication Co. $215 million for the assets of Kauai Electric. That was the first mistake. A ridiculous price that burdened the "Co-Op” from day one with a debt that will never be paid off.

They have locked us into a debt obligation that assumed and relied on continued economic growth for decades into the future. The bursting housing bubble, peak oil and peak food ended that dream. Now KIUC thrashes to find a gimmick to keep up with that old General Electric motto "Progress is our most important product." Nonsense!

We need our power utility co-op to help finance residential (and small business) solar PV projects.

KIUC has squandered members money and avoided facing the reality of the future. Their perception of progress is to continue on a "business as usual" consumption model that will inevitably lead to greater damage to the Kauai's ecosystem and continue to fail to serve its members.

KIUC have had several bad business ideas. One was to grow sugarcane as fuel. KIUC is oblivious to the reality that we need to grow our own food more than we need to grow biofuel for electric power generation.

KIUC is an abysmal failure as a cooperative power utility with no insight or planning that will alleviate the pain we on Kauai will experience in the next year or two as oil prices again reach the levels of the summer 2008.

But the untenable financing and idiotic business model our so called co-op has locked us into doesn’t have to be the way the future of energy looks on Kaua`i. Wilson suggests that:

The real solutions here are rather simple.

1) Promote demand destruction (50% reduction for starters).
2) Enable widespread distributed generation (using solar PV and some wind)
3) Accept system resilience over reliability.
4) Implement a 5 year plan to get off diesel fuel for electricity.

The idea of damming the Wailua River to fulfill the imagined needs of pre-collapse suburban America would be laughable if it were not so tragic. Talk about bad ideas.

This island is way too fragile to consider using geo-engineering projects like major dams to satisfy air-conditioning loads and our Chevy Volt recharging expectations. Any investment in these pipe-dreams by the idiots running KIUC is a waste of our precious treasure that could be focused on those things within our grasp.

And people wonder why our electricity is the most expensive in the country. The best thing that could happen to KIUC is that they go bankrupt and the county takes over their operation as a public utility. Then we could get down to the business of planning for the downsizing our the current grid and the affordable alternatives that are achievable in the real future we face.

For some reason it doesn’t seem to matter who we elect to KIUC’s board of directors. So far three directors who seemed to “get it” before their election- Carol Bain, Ben Sullivan and recently Jan TenBruggencate- have remained silent and apparently gone along with the majority, supposedly, we hear, because they don’t have the majority they need to overturn some “stifle rule” that forbids them from speaking on their own.

Assuming their thoughts on this and other KIUC actions are in dissent of the majority it’s time for them to rise to the to challenge by speaking out publicly, at least as individual co-op members- and letting the chips fall where they may.