Conservation groups that have worked for years to pressure the Kaua‘i Island Utility Cooperative (KIUC) to comply with the Endangered Species Act welcomed the news that, on Friday, the U.S. Fish and Wildlife Service issued a permit detailing the actions the utility must take to reduce the number of imperiled seabirds it kills and injures each year and to offset unavoidable harm.
KIUC promised to seek the required permit when it acquired Kaua‘i’s utility in 2002, but for years 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 (‘ua).
From 1993 to 2008, the population of Newell’s Shearwaters on Kaua‘i declined by 75 percent, in large part due to birds striking power lines and becoming disoriented from the utility’s streetlights.
KIUC’s delays prompted Earthjustice to file a federal lawsuit in March 2010 on behalf of Hui Ho‘omalu I Ka ‘Āina, Conservation Council for Hawai‘i, Center for Biological Diversity and American Bird Conservancy.
“This is an important step in protecting the increasingly rare, native seabirds that nest on Kaua‘i,” said Maka‘ala Ka‘aumoana of Hui Ho‘omalu I Ka ‘Āina. “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.”
In May 2010, two months after the conservation groups went to court, 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 Hawai‘i. “Corporations operating in Hawai‘i should understand their kuleana (responsibility) to protect our precious natural heritage.”
The permit requires KIUC to carry out actions described in a Habitat Conservation Plan (HCP). These include a schedule for KIUC to lower its power lines, obscure them with fast-growing trees, or attach them to bridges to minimize bird fatalities in key flyways—Keālia, Hanapēpē, and Kapa‘a.
“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. “It’s gratifying to see they are finally being required under the HCP.”
The HCP further directs KIUC to fund nesting colony protection and restoration efforts at Limahuli and Hono o Nā Pali to help offset the bird deaths caused by its operations.
“Although the federal permit has been issued, it is not valid until the state also grants an incidental take license," explained Earthjustice attorney David Henkin. “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.”
The state permit is still pending. The Department of Land and Natural Resources has told KIUC to conduct an environmental assessment as part of the process, but the utility has refused to comply.
“Unfortunately, KIUC is still dragging its feet at the state level,” said George Wallace of American Bird Conservancy. “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.”