Kauai Utility Ordered to Protect Rare Seabirds

LIHUE, Kauai, Hawaii, May 16, 2011 (ENS) – It has taken two lawsuits against the Kauai Island Utility Cooperative and years of advocacy work, but Hawaiian and national conservation groups are now optimistic that their goal of protection for two species of rare seabirds is within reach.

On Friday, the U.S. Fish and Wildlife Service issued a permit that requires the utility on Hawaii’s northwesternmost main island to reduce the number of endangered and threatened seabirds it kills and injures each year and to offset unavoidable harm.

When KIUC acquired Kauai’s utility in 2002, the nonprofit, member-owned cooperative promised to seek the required permit, has since refused to implement the measures needed to prevent the deaths of two species of seabirds protected by the federal Endangered Species Act – the threatened Newell’s shearwater, also known by the Hawaiian name ‘ao; and the endangered Hawaiian petrel, called ‘ua.

Newell’s shearwater (Photo by Michael Walther courtesy American Bird Conservancy)

From 1993 to 2008, the population of Newell’s shearwaters on Kauai declined by 75 percent, as the birds flew into power lines and became disoriented from the utility’s streetlights.

The Hawaiian petrel was formerly found on all the main Hawaiian Islands except Ni’ihau, but it now has a very small breeding range, just five locations in the main Hawaiian islands. Urbanization is one of the main reasons for the species’ decline.

KIUC’s delays prompted Earthjustice to file a federal lawsuit in March 2010 on behalf of four groups – Hui Ho’omalu I Ka Aina, Conservation Council for Hawaii, Center for Biological Diversity and American Bird Conservancy.

Two months later, the U.S. Justice Department indicted KIUC for criminal violations of the Endangered Species Act for killing the protected seabirds without a permit.

The utility entered into a plea agreement shortly before its trial was scheduled to begin in December 2010.

“It’s unfortunate that two lawsuits were needed to get KIUC to take responsibility for its actions,” said Marjorie Ziegler of Conservation Council for Hawaii. “Corporations operating in Hawaii should understand their kuleana (responsibility) to protect our precious natural heritage.”

The newly issued permit requires KIUC to carry out actions described in a Habitat Conservation Plan. These include a schedule for the utility to lower its power lines, obscure them with fast-growing trees, or attach them to bridges to minimize bird fatalities in key flyways on Kauai’s southern and eastern shores.

“This is an important step in protecting the increasingly rare, native seabirds that nest on Kauai,” said Maka’ala Ka’aumoana of the “taro roots” group Hui Ho’omalu I Ka ‘Aina. “We regret only that KIUC has taken so long to do something meaningful about the nearly 200 endangered and threatened seabirds its power lines and streetlights kill and injure each year.”

The utility says it already has implemented many measures to avoid, minimize and mitigate the potential impacts on the seabirds.

Power lines in Hanapepe, Kauai, which is a flyway mentioned in the Habitat Conservation Plan. (Photo by Kayt-n-Eric)

“These include shielding all KIUC owned street lights to eliminate upward-projecting light that could disorient seabirds; pursuing opportunities to underground existing and proposed power lines; supporting and funding the Save Our Shearwaters program; experimenting with methods to increase the visibility of power lines; supporting seabird predator control on Lehua Island; and carrying out extensive research designed to identify seabird breeding colonies, where measures can be taken to enhance the successful reproduction of the species,” the utility said in a statement in August 2010.

In its August 2010 application for a short-term Habitat Conservation Plan, the utility agreed to spend more than $11 million on measures designed to minimize and mitigate potential impacts of KIUC?s facilities on the species.

In addition, KIUC agreed to provide $6 million for new minimization measures at locations that state and federal agencies have identified as putting the endangered or threatened species at greatest risk.

The cooperative said it will also provide an average of $955,000 yearly towards general and species-specific seabird mitigation measures.

Earthjustice attorney David Henkin explains that although the federal permit has been issued, it is not valid until the state also grants an incidental take license.

“KIUC remains in violation of both federal and state endangered species laws and is not authorized to harm any protected species until it has both permits,” said Henkin.

The incidental take permits would be effective for up to five years and would be replaced by a long-term Kauai Seabird HCP, which would include other Kauai participants in addition to KIUC.

The state permit is still pending. The Hawaii Department of Land and Natural Resources has ordered KIUC to conduct an environmental assessment as part of the process, but the utility has refused to comply, said Henkin.

“We’ve been asking KIUC to implement these common sense protective measures for years, but the utility refused,” said Peter Galvin of the Center for Biological Diversity, based in Arizona. “It’s gratifying to see they are finally being required under the HCP.”

The Habitat Conservation Plan further directs KIUC to fund nesting colony protection and restoration efforts at two locations to help offset the bird deaths caused by its operations.

“Unfortunately, KIUC is still dragging its feet at the state level,” said George Wallace of American Bird Conservancy, based in Washington, DC. “It’s not over yet, but the issuance of a federal permit represents a hard-fought effort by the conservation community to hold KIUC accountable.”

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