LIHU‘E - Proponents of small wind systems got a lift this week when the county attorney said a proposed bill designed to streamline the permitting process would not open the county to legal or financial liability should an applicant's windmill kill an endangered seabird.

The announcement, delivered by Deputy County Attorney Ian Jung, who specializes in planning issues and advises the Kaua‘i Planning Commission, came at the Kaua‘i County Council's Planning Committee meeting Wednesday in Council Chambers at the Historic County Building in Lihu‘e.

Jung said it was "fairly far-fetched" for the county to have increased liability should the bill pass into law, likening the permitting of windmills to the permitting of buildings or even the registering of cars and licensing of drivers. When endangered species are harmed by buildings or vehicles, it is the owner or operator that can be held liable, not the county, Jung said.

He also said that the bill would generally permit structures that can already be constructed with variances and zoning permits - he estimated there had been almost 10 landowners to already go that route - or even without those steps if the windmill fits into existing height limits in the comprehensive zoning ordinance.

Councilman Tim Bynum, who introduced Bill No. 2317, said the Office of the County Attorney had been consulted throughout the drafting of the bill and that the wording currently included is sufficient to protect the county from legal liability.

If passed as currently written, the bill would require applicants to notify the state Department of Land and Natural Resources Division of Forestry and Wildlife and the U.S. Department of the Interior Fish and Wildlife Service of any plans to construct a windmill, but would not require those agencies to sign off on the proposal.

Planning Committee Chair Jay Furfaro told Jung that his analysis - which included the pronouncement that those state and federal entities involved in the care of endangered seabirds have not yet laid out their processes for giving clearance to windmills - only "muddied the waters."

Councilman Derek Kawakami wondered if DLNR would ever get to a point where they say the taking of a shearwater will be "OK," and Furfaro said he was unsure if notifying those agencies is enough. After the meeting, he explained why he wanted to be conservative with the legislation.

"When we've got shallow pockets, you take less risk," Furfaro said.

Council Chair Bill "Kaipo" Asing said he was "taken aback" by the comparison of the bill to a simple zoning permit and worried that the "narrow opinion" would not protect the county if it became the target of a complaint or lawsuit.

"I'm surprised the County Attorney's Office is taking that kind of stand," Asing said.

Jung acknowledged that the language in the bill - even if it included a phrase warning applicants of their potential liability - would not guarantee the outcome of a lawsuit, but declined to back down from his opinion.

Other windmill worries

While Jung's statement could go a long way to resolving one issue standing in the way of the bill's passage, there are several other factors that have yet to be addressed.

Furfaro said that in addition to the bird strike issue, he has concerns about the visual blight, especially on the North Shore, a potential noise nuisance, and the possibility that passing the bill could impact Kaua‘i Island Utility Cooperative's redundancy plans and rate structure.

He said after the meeting that he is not demanding that his colleagues wait for KIUC to sign off on any proposal before moving forward, but would like to hear back from the co-op on the subject and make the public aware of the potential impacts of the legislation.

While a propagation of small-scale windmills would not directly impact KIUC's minimum redundancy required by the Public Utilities Commission, having an increasing number of customers connected to the grid for backup purposes but not buying as much electricity could create the need for a higher flat "standby" charge to prevent the rest of the co-op's users from footing the bill for new infrastructure to get KIUC in line with the state's renewable energy goals by 2020, Furfaro said.

The council will likely wait at least another month before taking further action on the bill. Furfaro said the consultants working on the county's comprehensive energy plan were unable to attend Wednesday's meeting due to travel difficulties but will likely be at the Nov. 10 committee meeting, scheduled for a Tuesday because of November holidays.

The council unanimously deferred Bill No. 2317 until the first meeting after the consultants appear. If all goes as planned, the bill would come back on the agenda on Nov. 25.

Furfaro has said he would like to wait to move forward until after the council receives a completed version of the plan, including suggested legislative measures, which is expected in early 2010.