(PNN) KIUC INDICTMENT DETAILS DECADES OF FOOT-DRAGGING ON PROTECTION OF SHEARWATERS, ALBATROSS

KIUC INDICTMENT DETAILS DECADES OF FOOT-DRAGGING ON PROTECTION OF SHEARWATERS, ALBATROSS

DESPITE 1992 CONSENT DECREE AND 2001 MOA CO-OP STILL LACKS “TAKE” PERMIT, HABITAT CONSERVATION PLAN

(PNN) -- A federal grand jury indictment charging Kaua`i Island Utilities Co-op (KIUC) with 20 specific counts of “taking” of Newell's Townsend's Shearwaters and Laysan Albatrosses in violation of the Endangered Species Act (ESA) and the Migratory Bird Treaty Act (META) contains a liturgy of allegations of foot-dragging on the part of KIUC and it’s predecessor Citizen’s Electric (CE) dating back to 1979.

It details how, despite a March 1992 consent decree with CE that resulted from a citizen’s lawsuit, to this day many of the decree-mandated recommendation and requirements contained in a study conducted by an advisory panel of scientists- entitled "The Causes and Prevention of 'Fall Out' of Kauai's Seabirds."- have gone unmet to this day.

After Hurricane `Iniki struck Kaua`i the indictment alleges that the following November although “(m)embers of the advisory panel of scientists voiced concerns at the time of the re-building that (a) vertical, net-like, configuration would increase collisions between Newell's shearwaters and power lines” CE refused to go with a “horizontal” configuration- as alternatives to stringing wires between vertical poles (such as "undergrounding") is called throughout the suit- when they rebuilt the grid system.

The indictment states that:

In December 1995, a two-volume study of Kauai's seabirds, including particularly the Newell's shearwater, was published and provided to KIUC's predecessor pursuant to the 1992 consent decree. Approximately 95 % of the fifty downed birds analyzed in the report were discovered within 20 meters of power lines owned and operated by KIUC's predecessor, and subsequently by KIUC. The study concluded in part that during the period 1980 - 1993, "utility structures" on Kauai were responsible for the deaths of between 122 and 350 Newell's shearwaters each year.

The scientific advisory panel publicly concluded, based on the 1995 study results, that, "[it has been confirmed that birds are hitting utility structures and dying." It further concluded that "estimates of downing and mortalities . . . [are] high enough to cause concern about their effects on the population." The 1995 study also concluded that "Summer mortality is correlated with power line arrays where many lines are greater than 15.2 meters high and particularly where they cross major river valleys serving as flyways." The study noted that birds are disoriented by outdoor lights and fall or collide with structures in their path, and that autumn fallout is correlated with lighting.

The study recommended the following actions, among others, to reduce take of seabirds; (1) position wires horizontally rather than as a vertical array on poles; (2) use poles no more than 15 meters high where birds are present; (3) reroute power lines so that they are protected by bridges and tall trees; (4) explore effectiveness of marker balls and bird diverters; (5) bury power lines that cross key flyways, and; (6) shield streetlights.

In the ensuing approximately seven years, KIUC's predecessor did not reposition existing wires, did not lower any existing poles, did not reroute any existing power lines so that they were protected by bridges or tall trees, did not bury any power lines, and failed to shield approximately 700 (or 23%), of its over 3,000 lights, including lights located in identified hot spots for seabirds. Some attempt was made to try bird diverters but it was abandoned. KIUC's predecessor installed some marker balls.

All of the 20 specific “takings”- the technical term for Newell's Townsend's shearwater (Puffinus auricularis newelli) and Laysan albatross (Diomedea immutabilis) deaths- listed in the indictment occurred between 2005 and 2009, 10 plus years after the 1995 report.

But the ’95 report was only the first. The indictment alleges that:

In 1998, another study was published .regarding power lines and seabirds on Kauai. The study recommended, among other things, that lines be arrayed horizontally, that large trees be planted to shield lines, and that lines currently located at river mouths on the coast be moved inland a few hundred meters. Neither KIUC nor its predecessor undertook any of these actions until October 2007 when it reconfigured a single stretch of line.

Despite the commonly held local belief that burying of all electrical wires on the island has been demanded by the federal government the indictment only talks about “bury(ing) power lines that cross key flyways”, and also calls for the use of bridges as well as trees which would be over 15 years old now if they had been planted in 1995 when the recommendations were made.

In the intervening six year CE did little or nothing so in June of 2001 U.S. Fish and Wildlife Service (USFWS) sent a letter to CE urging it to apply for an incidental take permit its takings of seabirds under the ESA (Title 50, Code of Federal Regulations, Section 17.11) citing the relevant studies.

After no response, in March 2002 the USFWS again sent a letter to CE asking them to obtain an incidental take permit and initiate an interim conservation strategy "without delay."

Finally that May the CEO of CE and later KIUC acknowledged that shearwaters "have been subject to 'fallout' due to light attraction and collisions with structures, including electrical power lines." and in October signed a Memorandum of Agreement (MOA) with the USFWS which was “expressly binding on KIUC upon its anticipated acquisition of KIUC's predecessor, which occurred three days later” according to the indictment.

The 2002 MOA was intended to assist KIUC in minimizing and mitigating its takings of the shearwater and albatross and to facilitate its submission of a Habitat Conservation Plan ("HCP") and acquisition of an incidental take permit.

But to this day KIUC has not produced an acceptable HCP nor has it obtained a take permit.

The MOA also called for interim “conservation measures” and delayed enforcement until May 2004 when the permit and plan were supposed to be completed.

The indictment states that:

The measures included inventorying and shielding all remaining unshielded lights, installing marker balls on key lines, and conducting certain on the ground management actions intended to offset take by KIUC facilities during the period covered by the 2002 MOA.

That was when the seven hot spots “known to be heavily used by Newell's shearwaters and other seabirds” were identified as the areas where KIUC had to alter those vertical arrangements for horizontal ones including Wailua at the Wailua River valley, Kealia at the Kapa`a Stream valley, Ele`ele at the Hanapepe River valley, and Waimea at the Waimea River valley.

The indictment says that:

KIUC has failed to modify any of the lines across these locations, except for a stretch of line at Kealia that it reconfigured in October 2007”. However, it did shield affiliated streetlights and place a total of 5 marker balls on three of the lines pursuant to express requirements of the 2002 MOA.

During the time period of the original MOA KIUC did take some measures after much back and forth with USFWS including the shielding of selected streetlights, the placement of five marker balls and finally the funding of the “Save Our Shearwater” (SOS) program which had been previously funded by the state including, the indictment says, for bird downed by KIUC's structures.

That was when the documentation of birds directly injured or killed by KIUC structures began to be documented and four were in 2004 according to the list of specific charges.

Another MOA was then signed in December of 2004 delaying enforcement again and requiring KIUC to continue “operating the SOS program and contribut(e) some funds for a limited predator control program”.

Significantly, around April of 2005 KIUC’s Chair received a copy of “Avian Protection Plan Guidelines” published by the Avian Power Line Interaction Committee, a utility industry group, containing “development and implementation of compliance plans to assist utilities in avoiding bird collisions and electrocutions and thus avoid violations of the MBTA, ESA and other bird-related statutes”.

But despite the provision of this “how to” manual, action on KIUC’s part was not forthcoming and bird deaths attributable to KIUC continued.

According to the indictment on June 1, 2006, the 2004 MOA expired without KIUC having submitted a final HCP or an application for an incidental take permit. In approximately November 2006, “KIUC stated in writing to the USFWS, for purposes of estimating the take that would need to be authorized by an incidental take permit, that, in 2005 alone, its electrical lines and associated structures resulted in the take of 31 to 88 Newell's Shearwaters. KIUC further estimated the take caused by KIUC power lines during 1980 -1993 at 122 to 350 birds per year.”

In exemplifying the amount of prodding needed to get KIUC to begin just one action- reducing “takings” in Port Allen- the indictment says.

In early 2007, KIUC began to modify and shield lights at its Port Allen facility following: (1) a 2003 notification from USFWS that the lights presented a threat to Newell's shearwaters; (2) a 2005 notification that Newell's shearwaters had been observed circling KIUC lights at the Port Allen Facility; (3) KIUC's previously unfulfilled August 2005 commitment to the USFWS to take corrective action regarding those lights; and, (4) the discovery in October 2006 of approximately ten Newell's shearwaters downed at or near KIUC's Port Allen facility.

That’s when the feds seemingly got fed up and on June 29, 2007, “KIUC issued a press release announcing that it had been notified on March 16, 2007, that it was the target of a federal investigation into the killing of protected seabirds”.

The reconfiguration of a single stretch of power line across Kealia at the Kapa`a Stream valley from a vertical to a horizontal array along with “the belated modification of lights at Port Allen, and continuing to fund the SOS program are the only minimization actions KIUC has taken since the expiration of the second MOA in June 2006.”

According to the indictment:

Although additional mitigation activities were identified for KIUC, including on-the-ground colony management to improve reproduction numbers, KIUC has declined to take any further mitigation actions since the expiration of the second MOA in June 2006.

Finally, in October of 2007, “KIUC submitted a final long-term (50 year) HCP and an incidental take permit application in which it estimated that in 2006 KIUC structures took between 88 and 147 Newells' shearwaters”.

But in early 2008, the USFWS informed KIUC that the “incidental take permit application failed to meet issuance criteria in at least three areas.”

So on August 3, 2009, KIUC submitted a draft short-term (5 year) HCP and an incidental take permit application “in which it requested a permit authorizing the takings of up to 180 Newell's shearwaters each year (125 non-lethal takings and 55 deaths). On approximately September 9, 2009, the USFWS informed KIUC that, among other issues, “the proposed mitigation would not fully mitigate the anticipated takings.”

Perhaps the last straw in causing USFWS to forgo working with KIUC and to seek an indictment occurred on December 29, 2009, when

a Laysan albatross on which there was a leg band, was electrocuted on KIUC power lines, causing a small power outage. KIUC staff found the bird and documented the electrocution, but did not notify authorities. KIUC has not modified or taken any action regarding the lines or poles found to be associated with this documented electrocution and does not have an Avian Protection Plan.

That led to the documentation of the 20 takings and so the 20 specific charges which are detailed in the indictment.

According to a press report KIUC says it “has been working diligently for the past decade with every state and federal government agency and other stakeholders to achieve workable solutions to protect endangered Hawaiian seabirds (and) has not violated the criminal provisions of either the ESA or the MBTA and will now, as a result of the Justice Department’s precipitous and ill-conceived decision to file criminal charges, fight this matter in the United States District Court before a jury of Hawai‘i’s residents who, unlike the Justice Department, will treat KIUC fairly and recognize that the cooperative — owned by the residents of Kaua‘i — is doing everything reasonably possible to protect the seabirds,”

See below for complete list of descriptions of documented “takes” that led to the 20 charged counts, sorted by location, as listed in the indictment.

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Takes - Power Lines at or near Kealia Beach

Between approximately June 9, 2005, and July 9, 2005, at least one live and four dead Newell's shearwaters were found downed near an array of KIUC power lines at Kealia Beach. KIUC's consultant was notified of these takings via electronic mail on or about June 22, 2005.

On or about August 5, 2006, one dead Newell's shearwater was found downed near KIUC power lines inland of Donkey Beach, near Kealia Beach

Between approximately October 15, 2006, and October 17, 2006, two dead Newell's shearwaters were found downed near KIUC power lines at Kealia Beach.

On or about May 18, 2007, one dead Newell's shearwater was found downed near an array of KIUC power lines at Kealia Beach.

On or about June 17, 2007, one dead Newell's shearwater was found downed near an array of KIUC power lines at Kealia Beach.

On or about June 27, 2007, one dead Newell's shearwater was found downed in the vicinity of an array of KIUC power lines at Kealia Beach.

On or about August 5, 2007, one dead Newell's shearwater was found downed near KIUC power lines inland of Donkey Beach, near Kealia Beach.

On or about August 16, 2007, one dead Newell's shearwater was found downed in the vicinity of an array of KIUC power lines at Kealia Beach.

On or about September 6, 2007, one dead Newell's shearwater was found downed near KIUC power lines inland of Donkey Beach, near Kealia Beach.

Takes - Power Lines in the Wailua River Valley

On or about July 3, 2005, one dead Newell's shearwater was found downed near an array of KIUC power lines that cross the Wailua River valley.

On or about October 21, 2006, one dead Newell's shearwater was found downed near an array of KIUC power lines that cross the Wailua River valley.

On or about June 16, 2007, one dead Newell's shearwater was found downed near an array of KIUC power lines that cross the Wailua River valley.

On or about October 18, 2009, one dead Newell's shearwater was found downed near an array of KIUC power lines that cross the Wailua River valley.

Takes - Power Lines Near Ele`ele

On or about July 16, 2005, one dead Newell's shearwater was found downed near a KIUC power line pole in Ele`ele.

On or about October 21, 2006, a witness observed a live Newell's shearwater collide with a KIUC power line near Hanapepe Stadium just southwest of Ele`ele and fall to the ground. The bird was recovered and found to be unfit for flight at that time.

On or about October 21, 2006, one live Newell's shearwater was found downed near KIUC power lines just southwest of Ele`ele.

On or about June 29, 2007, one dead Newell's shearwater was found downed near a KIUC power line pole in Ele`ele.

On or about July 18, 2007, one dead Newell's shearwater was found downed near KIUC power lines in Ele`ele.

On or about August 13, 2007, one dead Newell's shearwater was found downed near KIUC power lines in Ele`ele.

On or about October 19, 2007, one dead Newell's shearwater was found downed near KIUC power lines just east of Ele`ele.

Takes - Power Lines in the Waimea River Valley

On or about October 30, 2005, two dead Newell's shearwaters were found downed near KIUC powerlines in the Waimea River valley.

Takes - Power Lines in Kapa`a

On or about October 19, 2005, one dead and one live Newell's shearwaters were found downed near KIUC powerlines near Kapa`a Park.

Between approximately October 13, 2006, and October 20, 2006, six dead Newell's shearwaters were found downed near KIUC power lines in Kapa`a.

On or about October 21, 2009, one dead Newell's shearwater was found downed near a power pole in Kapa`a.

Takes - Power Lines across from Kauai Community College

On or about October 22, 2006, one dead Newell's shearwater was found downed near a power pole on the Kaumuali`i Highway across from Kauai Community College.

On or about October 17, 2009, one dead Newell's shearwater was found downed near a power pole on Kaumuali`i Highway across from Kauai Community College.

Takes - Lighting at the Port Allen Facility

In approximately December 2003, KIUC was reminded by the USFWS that the unshielded lights at its Port Allen facility presented a threat to Newell's shearwaters.

After being informed of Newell's shearwaters observed circling KIUC lights at its Port Allen facility, KIUC agreed in approximately August 2005 to take corrective action regarding unshielded lights still being used at its Port Allen facility.

As of October 2006, KIUC had not accomplished the agreed-upon corrective action at the Port Allen facility. The physical modifications were not commenced until 2007.

Between approximately October 17, 2006, and October 25, 2006, approximately nine Newell's shearwaters were found downed at KIUC's Port Allen facility.

Between approximately October 29, 2008, and October 29, 2009, approximately six Newell's shearwaters were found downed at or near KIUC's Port Allen facility.

Takings - Other KIUC Power Lines and Lighted Facilities

On or about May 30, 2006, one dead Newell's shearwater was found downed near a power pole south of Anahola.

On or about October 15, 2007, one dead Newell's shearwater was found downed near a power pole just west of Puhi.

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Mahalo to Charley Foster for providing the indictment paperwork and to Larry Geller for the OCR conversion.