LIHU‘E — Kaua‘i Island Utility Cooperative members will see a rise in their rates, although it will likely be minimal and won’t take place for a few years, to help pay for measures to protect endangered seabirds, a KIUC official
LIHU‘E — Kaua‘i Island Utility Cooperative members will see a rise in their rates, although it will likely be minimal and won’t take place for a few years, to help pay for measures to protect endangered seabirds, a KIUC official said Thursday.
While fines KIUC has been ordered to pay after pleading guilty to two misdemeanor charges of illegal “taking” of endangered or threatened seabird species won’t impact rates, the $11 million in mitigative measures the utility must perform to protect the birds will cause rates to rise slightly, said David Bissell, KIUC acting president and chief executive officer.
“What will have an impact on rates will be mediation” efforts, resulting in a “relatively small, incremental impact on our next rate case,” he said during a telephone interview.
Both KIUC and the U.S. Department of Justice in separate press releases announced the plea agreement heard in federal court in Honolulu on Thursday, wherein KIUC pleaded guilty to two counts of a 19-count indictment accusing the utility of violating the federal Endangered Species Act and Migratory Bird Treaty Act “by knowingly taking at least 14 Newell’s shearwaters” at or near Kealia Beach, and at least 18 Newell’s shearwaters at KIUC’s Port Allen power plant, the federal release states.
Under the ESA, “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct.”
“The Department of Justice sought a criminal prosecution of KIUC only after a long history of attempts to resolve ongoing violations,” said Ignacia S. Moreno, assistant attorney general for the Environment and Natural Resources Division of the Department of Justice.
“The resolution of this case will set an example for others and help in the successful recovery of the Newell’s shearwaters, a threatened native species that is part of Hawai‘i’s cultural and natural heritage.”
The co-op (which is a legal entity separate from employees and members, Bissell said) was sentenced to the maximum statutory fine of $40,000 for the two counts, and unsupervised probation for 18 months, with specific conditions intended to avoid additional violations during the period of probation.
KIUC agreed to modify and reconfigure power lines associated with the highest incidences of take, must monitor two stretches of inland power lines to help determine the number of protected birds colliding with those lines, and is required to apply for an incidental-take permit that would authorize, as required by law, the taking of such threatened species under certain conditions and requirements, the federal release states.
The plea agreement also requires that, as community service, KIUC make a payment of $225,000 to an account, established at the National Fish and Wildlife Foundation, to benefit protected seabirds on Kaua‘i.
The plea agreement stated that this requirement was aimed at repairing the loss to Kaua‘i of these culturally and ecologically important seabirds, while recognizing KIUC’s annual funding of the Save Our Shearwaters program since 2003.
“What would we and Hawai‘i be if these birds vanished from the earth? I say we would be diminished as a community and as a place, a place so special compared to all others,” said Paul Chang, special agent in charge of law enforcement in the Fish and Wildlife Service’s Pacific Region.
“The result of this case allows me to believe there is hope for all of us working together to preserve Hawai‘i’s unique wildlife,” said Chang. “This is pono.”
The settlement, which avoided the risk and expense of a criminal trial, required the utility to plead guilty to two misdemeanor violations, and ensures that maximum benefits go to the protection of the seabirds rather than to the federal government in the form of large fines and other criminal penalties, said KIUC board Chairman Phil Tacbian.
Bill Goodman, KIUC’s special counsel on this matter, said, “despite having a good defense to many of the charges, KIUC wisely decided to spend its money addressing bird conservation rather than on litigation costs associated with a trial.”
The birds — mainly Newell’s shearwaters and Townsend’s shearwaters — nest in Kaua‘i mountains and can be disoriented on dark nights by artificial lights of civilization as they fly toward the sea. They sometimes collide with objects and during the fall fledging season the fledglings can fall to the ground from exhaustion while circling lights. These downed birds are found throughout the island, and sometimes near utility lines and poles, the KIUC release states.
Moreno credited special agents from the U.S. Fish and Wildlife Service for the investigation of the case culminating in the indictment and subsequent plea agreement.
The case is being prosecuted by the Environmental Crime Section, Environment and Natural Resources Division, U.S. Department of Justice.
Here are some other key features of the settlement agreement:
— KIUC will accelerate its reconfiguration of power lines at Kealia and the Hanapepe town bridge, and will initiate realignment of lines at two locations in Kapa‘a;
— With the agreement of landowners, the utility will plant fast-growing trees to shield utility lines along Kuhio Highway in portions of the Kealia flyway;
— The cooperative will install heat-sensing digital video cameras to monitor shearwater crossings at two locations.
