Appellate court sends Hu Honua back to planning commission

  • Construction at the Hu Honua Bioenergy plant is shown in this August 2017 file photo.

    HOLLYN JOHNSON/Tribune-Herald

A state court ordered Hawaii County’s Windward Planning Commission to address public shoreline impacts with regard to repairing or replacing a damaged outfall for cooling water and storm water from the Hu Honua Bioenergy power plant under construction in Pepeekeo.

A three-judge panel of the Intermediate Court of Appeals opined that Hilo Circuit Judge Greg Nakamura ruled in error that the public trust doctrine — a section of the state constitution that mandates management of public resources for conservation and self-sufficiency — didn’t apply to Hu Honua’s request for a special management area permit.

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The commission in 2011 granted Hu Honua’s permit without requiring an environmental impact statement or environmental assessment of the project.

Nakamura’s 2014 ruling came in a civil lawsuit against the commission and Hu Honua by The Hilo Project LLC. Other plaintiffs include Robert and Patricia Ferazzi, Susan Munro and Kerry Glass, Marcus G. Spallek and Elaine Munro, Bridget Rapoza and Raquel Dow.

The plaintiffs appealed Nakamura’s ruling. The appellate court opinion remands the case to the Windward Planning Commission for reconsideration.

“I would expect that the Planning Commission will perform its duty,” said attorney Steve Strauss, who represents the appellants, on Monday. “… The outfall is an (environmental impact statement) trigger.”

During a contested case hearing on Hu Honua’s permit request, engineer Dennis Poma, a land use and permitting consultant for Hu Honua, testified that when Hu Honua submitted its SMA application, it didn’t plan on any construction on the shoreline. Officials for the wood-burning power plant project, which is still under construction, requested and received a waiver of environmental review of shoreline impacts.

According to the opinion, Poma testified that Hu Honua was looking at different alternatives to repair the outfall, and also was considering not using the outfall at all. Poma testimony was noncommittal as to whether there would be construction on the shoreline, according to the decision and Hu Honua was still evaluating the situation.

“Despite the status of the outfall, Poma testified that he still believed there would be no impact to the shoreline,” the opinion stated.

According to the opinion, since Hu Honua didn’t specify what would be done in regard to the outfall, it “did not make an affirmative showing that any work done will not conflict with the principles and purposes of the public trust doctrine.”

“Therefore … the Planning Commission granted the amended (special management area) permit in violation of constitutional provisions,” the opinion stated.

The outfall also is a prominent subject in a lawsuit filed in November 2017 by Hilo bed-and-breakfast owner Claudia Rohr against the Windward Planning Commission and the county’s Planning Department.

In her suit, Rohr alleges the project’s primary discharge structure for industrial storm water into the ocean is “in a current condition of disrepair … does not fulfill its intended purpose of settling out sediment from storm water, and obviously needs alternations, repairs” and the location of the structure “is entirely in the shoreline area,” which necessitates an EIS or EA under the Hawaii Environmental Policy Act.

Informed of the appellate court’s decision, Rohr noted she’s been “trying since 2010” to convince the commission and the Planning Department that an environmental review is necessary and required under law.

“That one point will help everybody try to understand the substantial changes to (Hu Honua’s) project,” Rohr said, referring to the proposed increase in power output by the plant from 21.5 to 30 megawatts. “It will require that either the Planning Commission or the Planning Department require Hu Honua to submit an EA or EIS and disclose the impacts to the environment to the community. That’s the whole point of this.”

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Harold Robinson, president of Island BioEnergy, Hu Honua’s parent company, didn’t return a phone call seeking comment.

Email John Burnett at jburnett@hawaiitribune-herald.com.