CHARGE

CHARGE: Once again less than a third of Kaua`i Island Utility Co-op (KIUC) members voted in the recent board of directors' election. And we think we've discovered at least one reason why.

Although almost a thousand more ballots were cast in this year's election than last, it was not a record number of participants, according to statistics provided by Jonathan Jay, founder of the "P2P" group that organized a huge get-out-the-vote effort.

And despite the campaign that resulted in three new faces on the board, "voter turnout" remained dismally low.

But that may be because not all members are receiving ballots to vote, as one Lawai woman learned last Thursday.

Because of the campaign, Larissa Varaday had heard about the election this time and decided that, because her family's electric bill is in her name, she was going to vote this time. So she want to the KIUC web site, watched the videos of all the candidates, read up on their positions on the issues and chose the three she wanted to vote for.

But Varaday had never received a ballot from KIUC and when she tried to vote on-line she found that she couldn't because she didn't have her "authorization code" number.

After an email and a series of phone calls, she finally reached someone live at KIUC where she was told that it was "too late" for her to vote this time because the Saturday deadline was "too close" and that she could not get her "code" at that late date.

But what she found out next may go a long way to explaining why voter turnout is so low, assuming there are many others out there like her.

Varaday was told that the reason she had never received any ballots for KIUC elections is that five years ago, when she signed up for service, she either did or didn't check a box on her application that apparently determined whether or not she would receive election ballots from KIUC in perpetuity.

"I don't remember whether I checked or didn't check a box- it was five years ago," she said. "I didn't even know there was anything to vote for at the time."

She said she was unclear on Thursday after talking to KIUC whether she had checked or not checked the box but one thing was clear- whatever she had done on her original application had put her on a permanent list of people who never receive ballots or even apparently any notification that there are elections... elections in which they are not currently permitted to participate.

"It's ridiculous," she said on Sunday after the results were in. "I don't think you should have to sign up to vote. Everyone who gets a bill should automatically be able to vote."

Varaday said that she was not even offered the opportunity to come down to the KIUC offices to vote in person. She was just told that with three days left in the election it was too late to give her an authorization code or reverse whatever it was that she did way back when she applied for service.

After spending days doing the research, Varaday felt cheated out of her voice in the co-op's future.

"There are some important issues with energy and all members should get a ballot," she said adding that "it's just not fair" that after doing all that work and finally calling with three days still left she was essentially blown off by KIUC. Rather than having them figure out a way that she could vote- no matter what box she did or didn’t check on her original application- it was apparently too much trouble for KIUC to accommodate a member who wanted to participate in her co-op.

Varaday said she was also told that when people sign up for service, if they want to vote, they are charged a penny- one cent- on their first bill.

We couldn't reach a person at KIUC apparently because it is a holiday weekend.

The question is of course how many more "members" are out there like Varaday who, unbeknownst to them, somehow wound up on the "no ballot sent" list. But even more distressing is the fact that KIUC has kept what amounts to a voter suppression measure a secret.

If KIUC and its board members really wanted to increase participation, doesn't it seem like they would try to make sure that those who filled out their applications really meant to disenfranchise themselves when they failed to correctly read the fine print on their applications?

We're sure that Jay and the others who worked diligently to get people to vote would have liked to know that there was a cap on the number of members who received ballots.

Not for nothing but that fine print on the original application signed by the "member" is also the reason why KIUC can be so cavalier about entering people's properties and installing so-called "smart meters."

While working on another story years ago we discovered that when you sign up for electric service you also sign a form that gives your permission for KIUC- or Citizen's Utilities before them- not only to enter your property, but to install and maintain the wires and meter. "Their" property is defined as all their equipment from the pole to where the wiring in your house begins, "after" the meter.

And if you have electric service you've already given your permission for them to enter your property to install and maintain it all.

The recent federal lawsuit filed by Adam Asquith of Hanalei appears to be based on a misunderstanding of that part of the "contract" between KIUC and the user/member.

After KIUC put out a press release branding him a "smart meter opponent" and characterizing the suit as being part of the movement against smart meters Asquith spoke to Joan Conrow to clear up why he filed the suit.

According to a post Conrow wrote at KauaiEclectic,

Adam said the press release, which brands him a “local smart meter opponent,” is “a total mis- characterization of my stance on smart meters. This is entirely an issue of the sanctity of my home and my right to deny installation of a very new and novel device at my home. I'm a strong proponent of smart technology and smart meters in certain applications. I really would like to be a voluntary participant in this federal project.”

The operative word here is voluntary. “If they would seek consent, they'd find it, but if they seek to force this, they'll find resistance,” he said.

Asquith can't be blamed for not knowing that he had signed away his right to be asked to "opt in" rather than having to "opt out." He's certainly not alone. And to make things worse, obviously KIUC is not exactly forthcoming with this fact even after months of controversy where others have essentially said what Asquith has said but without doing so in a lawsuit.

Just like the fine print KIUC is using to suppress the vote of co-op members like Varaday, the fine print that allows them to control their wires and meter- and "trespass" to do so- is apparently being treated as "proprietary information"--just like just about everything at KIUC.

It makes any notion of transparency and open governance a complete joke.

Yes, apparently KIUC is "fulfilling their legal obligations." But more and more these days, doesn't it seem like that phrase is becoming the last refuge of a scoundrel?

We're pretty sure Varaday and Asquith would agree.

Just because KIUC has the right to do things doesn't mean it's the right thing to do- especially given that it is alleged to be a "co-op," governed and run, by and for, the benefit of the members.

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.

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.

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.