LIHU‘E — Conservation groups on Monday dismissed the federal lawsuit they filed last year against Kaua‘i Island Utility Cooperative for violations of the Endangered Species Act.
“We are encouraged our efforts toward the protection and preservation of endangered seabirds have been recognized,” KIUC Support Services Manager Carey Koide said in a KIUC press release.
Maka‘ala Ka‘aumoana of Hui Ho‘omalu I Ka ‘Aina said the groups went to court because KIUC refused to take responsibility for killing and injuring nearly 200 Newell’s shearwaters each year.
“Now that the utility is finally taking necessary steps to help the birds, we’ve accomplished what we set out to do,” she said.
Nearly all of the world’s Newell’s shearwaters nest on Kaua‘i. From 1993 to 2008, the Kaua‘i population of Newell’s shearwaters declined by 75 percent, largely due to disorientation from the utility’s streetlights and birds striking power lines, according to a release from the American Bird Conservancy, which took part in the lawsuit.
In May, KIUC obtained an incidental take permit from the U.S. Fish and Wildlife Service. The co-op has contracted with the state government and private and non-profit agencies to conduct a comprehensive set of mitigation programs to benefit the recovery of the seabirds, Koide said.
In March 2010, Earthjustice filed suit on behalf of ABC, Hui Ho‘omalu I Ka ‘Aina, Conservation Council for Hawai‘i and the Center for Biological Diversity to compel KIUC to comply with the ESA.
“Under pressure from the litigation, KIUC secured an ESA incidental take permit in May 2011 and is now implementing critical measures to protect these imperiled seabirds,” according to the ABC release.
“For almost a decade, we urged KIUC to lower its power lines, but the utility refused, even though it admitted the lines are a major cause of shearwater deaths,” said Marjorie Ziegler of Conservation Council for Hawai‘i. “Now the worst offenders will be coming down, giving hope that shearwaters will be around for future generations to enjoy.”
ABC’s George Wallace said Kaua‘i’s Newell’s shearwater population needs safe places to raise their offspring in order to withstand the annual toll taken by KIUC’s operations.
“That’s why we fought so hard to make sure KIUC contributes its fair share to protect nesting colonies from non-native predators such as rats, cats and owls,” he said.
KIUC’s ESA permit requires it to contribute nearly $400,000 per year to protect shearwater colonies on the North Shore.
“Getting KIUC to commit to taking vital steps to protect Newell’s shearwaters is a significant step in the right direction, but actions speak louder than words,” said Peter Galvin of the Center for Biological Diversity. “We’re going to keep close tabs on KIUC to make sure it lives up to its promises.”
Earthjustice attorney David Henkin said the federal permit obtained in May is “only a stopgag measure” that will last a few years at the most.
“We remain actively involved in the permitting process to ensure that Kaua‘i’s imperiled seabirds get the long-term protection they need to recover from decades of reckless behavior by the utility,” he said.
Koide said in the KIUC release that the co-op remains “fully committed” to preserving and protecting Kaua‘i’s seabird populations, and cited KIUC’s funding and implementation of Save Our Shearwaters program for several years.
“Through this program, in partnership with the Kaua‘i Humane Society and DLNR Division of Forestry and Wildlife, KIUC has helped coordinate the rescue, rehabilitation and release to the wild of thousands of downed seabirds,” said Koide, adding that the co-op will continue to work with the “environmental community” toward recovery of the shearwaters.
The Environment and Natural Resources Division of the U.S. Department of Justice on March 16, 2007 notified KIUC it was the target of an investigation into the taking of protected seabirds, KIUC’s Anne Barnes wrote in a press release dated June 29, 2007.
The investigation was being conducted by the U.S. Fish and Wildlife Service in conjunction with the DOJ, with cooperation of the U.S. Attorney’s Office for the District of Hawai‘i.
In that release, Barnes wrote a paragraph almost identical to Koide’s Monday press release. She said KIUC remained “fully committed” to preserve and protect the shearwaters, and had coordinated the “rescue, rehabilitation and release to the wild of hundreds of downed seabirds.”
The major difference between both releases was the numbers of seabirds rehabilitated. From 2007 to 2011 it went from hundreds to thousands.
On Dec. 2 KIUC’s Shelley Paik said in a press release the co-op had settled federal criminal charges concerning protected seabirds.
“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,” KIUC Board Chairman Phil Tacbian said in the release.
Bill Goodman, KIUC’s special counsel on the charges, said in the release that despite “a good defense” to many of the charges, KIUC “wisely decided” to spend funds on bird conservation rather than on litigation costs.
In that release, KIUC CEO David Bissell said the co-op takes its responsibility for seabirds very seriously. KIUC had spent over $4 million in minimization and mitigation projects, he said.
But in the same release, KIUC never admits being responsible for downing shearwaters. Instead it states birds can be disoriented on dark nights by “artificial lights of civilization” as they fly to the sea. The birds sometimes hit objects and during the fall fledging season can fall to the ground exhausted from circling lights.
“These downed birds are found throughout the island, and sometimes near utility lines and poles,” the release states.
Some of the key elements of the settlement included powerline reconfigurations in Kealia and Hanapepe Bridge, installing digital sensor monitoring cameras at two shearwater locations, paying $225,000 to the National Fish and Wildlife Foundation to be used for on-island shearwater projects, pleading guilty to two petty misdemeanors and paying a $40,000 fine, and agreeing to be placed on an 18-month unsupervised probation.
Such probation would be subject to early termination if the USFWS issued an Incidental Take Permit as part of KIUC’s Seabird Habitat Conservation Plan.
On May 16, KIUC announced it was granted federal approval of a utility-funded plan to protect seabirds and a permit protecting it from fines and prosecution for birds injured in collision with utility structures.
“The utility’s short-term Habitat Conservation Plan commits KIUC to $11 million in spending for Newell’s shearwaters and other threatened seabirds over a five-year term,” said Barnes in the release, adding that the amount was on top of the $4 million already spent on seabird-related efforts.
Those $4 million Barnes referred to were the same funds Bissell said the co-op had spent working in mitigation projects with lawyers, consultants, wildlife agencies, government regulators and community groups.
The five-year permit allows KIUC “take” of the threatened Newell’s shearwater, endangered Hawaiian petrel and the band-rumped storm petrel, a candidate for listing under the ESA.
“The HCP and permit make it possible for KIUC to invest in conservation activities, pole and line modifications, and funding for studies of the seabirds, all of which are designed to help save more seabirds than are taken by the utility,” the May 16 release states.
• Léo Azambuja, staff writer, can be reached at 245-3681 (ext. 252) or lazambuja@ thegardenisland.com.