West Kauai community groups have filed suit against the state Department of Land and Natural Resources for failing to provide enough environmental scrutiny over a $200 million hydropower project proposed for the Waimea River.

The suit also questions the propriety and legality of the agency’s approval of the project’s environmental assessment and formal “finding of no significant impact.”

The 35-page complaint says the documents were approved in December by DLNR Chairperson Suzanne Case during her last week on the job and without any public hearings or board oversight — a move authorized under a 7-year-old delegation of authority by the Board of Land and Natural Resources.

Elena Bryant, associate attorney at Earthjustice representing Po‘ai Wai Ola and Na Kia‘i Kai, described the approval process as “shady” and a “midnight rubber stamp.”

“This is a major project, a once-in-a-lifetime project,” she said. “To make it a pono project, it starts with a pono process.”

The suit argues that the scope of the project demands a more comprehensive environmental impact statement rather than just an EA.

When asked about the lawsuit, a DLNR spokesperson said the agency doesn’t comment on pending litigation.

Kauai Island Utility Cooperative describes the West Kauai Energy Project as a “groundbreaking” effort that will provide 25% of the island’s energy needs and displace more than 8 million gallons of fossil fuel annually.

With partner AES Corp., the cooperative plans to build a pumped-storage hydropower and irrigation facility, along with solar and battery storage.

KIUC says the project will not only bring the cooperative to more than 80% renewable generation but create economic and agricultural opportunities to the west side communities of Waimea and Kekaha by delivering irrigation water to land owned by the Department of Hawaiian Home Lands and the Agribusiness Development Corp.

According to the EA, KIUC and AES expect to divert an average of 11 million gallons a day — or 4 billion gallons a year — from the Waimea River for 65 years.

But the EA does not address the consequences of discharging much of that water onto the Mana Plain, where it would collect sediment, pesticides and other pollution on its way out into the ocean, according to the lawsuit.

Community members have discussed the project with KIUC over the years, negotiating two agreements that protect river flows and avoid wasting water diverted from Waimea River.

“But the current attempt to ram through an EA and circumvent an EIS has brought community trust and goodwill to new lows,” Earthjustice said in a news release.

“We’re not against renewable energy,” said John A‘ana, Po‘ai Wai Ola vice president and a longtime kalo farmer. “But we are against diverting and dumping river water for energy.”

A‘ana said water flows in the ditch system that feed Waimea River have been measured at a 33% loss over the last decade, and the effects of the coming decades of climate change on the water source are unknown.

“There may not be enough water in the future,” he said. “We need to know these things, and that is why an EIS should be required to analyze all these details for the community and the next generation.”

In a statement released after the EA was approved, KIUC President and CEO David Bissell said the environmental review process took four years to complete, and the final assessment contained thousands of pages of documentation.

“We look forward to continuing our dialog with the community as WKEP progresses,” Bissell said.

Bissell added that the next steps involve seeking land agreements and required permits with a goal of bringing the project operational by 2026.

The capital cost of the project will be paid by AES. KIUC estimates that energy cost savings from the project would reduce electric costs for Kauai by between $157 million and $172 million over the project’s first 25 years.

But if the cooperative were forced into the EIS process, it would add cost and significant delay, said KIUC spokesperson Beth Amaro. She said the delay would result in burning more fossil fuel, higher costs to its members and increased carbon emissions.

Amaro said the hydropower project was established in the mediation agreement approved by the Commission on Water Resource Management in 2017 and signed by KIUC, DHHL, the Agribusiness Development Corp., the Kekaha Agriculture Association and Po‘ai Wai Ola.

All parties agreed to the diversion of a rolling average of 11 million gallons per day to be used for hydropower and agriculture, and all parties agreed that both hydropower and agriculture are beneficial uses of water.

In addition, Amaro said, KIUC and Po‘ai Wai Ola in July signed the Waimea Water Agreement Follow Up Agreement, which, among other things, provides that “the coordination and integration of all water uses, energy uses, and agricultural uses is critical so as to maximize the beneficial use of these waters, to minimize any waste of waters particularly if there is no agriculture or insufficient agriculture to use the water being diverted into the system; to account for fluctuations in agricultural use of the water due to climate change; to minimize any discharge of pollution into the ocean; and to maximize the continuing restoration of as much water as possible into the natural streams.”

Furthermore, the agreement provided that “(Po‘ai Wai Ola) and KIUC are to develop a set of operating protocols for the use of the waters of the Koke‘e Ditch which, among other things, will ensure that the water is matched by agriculture or other end uses acceptable to both parties … .”

Bryant said the EA identifies farming as a potential end use of the water diverted from Waimea River, but does not say how that would actually work. It also does not discuss the impacts if KIUC fails to follow through; possible measures to avoid wasting water diverted from Wai­mea River; and the pollution from dumping excess flow diversions, she said.

A‘ana said the EA is simply inadequate. “KIUC didn’t even mention our agreement in the EA,” he said.