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The Honolulu Advertiser
Posted on: Friday, May 21, 2010

Utility indicted in 54 bird deaths


By Diana Leone
Advertiser Kaua'i Bureau

LIHU'E, Kaua'i Kaua'i's electric utility wires and unshielded lights allegedly have downed at least 54 seabirds from June 2005 to December 2009, a federal criminal indictment says.

That's the number of birds listed as found dead or injured near the base of Kaua'i Island Utility Cooperative utility poles or near unshielded lights at the utility's Port Allen power plant, according to the document filed Wednesday in Honolulu federal court.

The indictment alleges that the co-op failed to take the necessary actions to protect these birds and others, as required under federal laws.

The criminal charges come three years after the Kaua'i co-op was told it was the subject of a criminal investigation regarding bird interactions.

"From that time until Monday of this week KIUC has been attempting to settle the matter," said David Proudfoot, an attorney for the utility. The utility has also continued to meet with state and federal wildlife officials regarding its proposed plan for mitigating its effects on the birds, he said.

All but one of the downed birds listed in the indictment were Newell's shearwaters (Puffinus auricularis newelli, or 'a'o in Hawaiian). The birds are listed as threatened under the U.S. Endangered Species Act. Harassing, harming, wounding or killing a protected species is prohibited by law.

The indictment filed by the U.S. Department of Justice's Environmental Crimes Section also cites the December 2009 death of a Laysan albatross, which was found electrocuted in a KIUC wire, causing a small power outage. The albatross is protected by the U.S. Migratory Bird Treaty Act.

CONSENT DECREE

The indictment says that when Kaua'i Island Utility Cooperative took over the former Kaua'i Electric Division in 2002, it was immediately responsible for pre-existing bird-interaction issues. Those concerns date back at least to a 1992 citizen lawsuit that resulted in a consent decree.

According to the indictment, a 1995 study concluded that between 1980 and 1993 "utility structures" on Kaua'i accounted for the deaths of 122 to 350 Newell's shearwaters each year. That amount was "high enough to cause concern about their effects on the population."

The study proposed that the utility reposition wires on poles in horizontal instead of vertical arrays; use shorter poles or reroute lines to be protected by bridges or trees in flight paths; explore use of marker balls or bird diverters on lines across key flyways; and shield streetlights.

Wednesday's indictment says the utility:

Has not produced a Habitat Conservation Plan and incidental take permit that has been accepted by the state Division of Forestry and Wildlife and U.S. Fish and Wildlife Service. The permits may be granted when an applicant shows it cannot prevent all harm to protected species, but is taking acceptable steps to mitigate that harm.

Modified the array of power lines at only one of seven identified key bird flyways and added marker balls to a few others.

Has now shielded all its 3,000 streetlights, but adds that the last 700 weren't done until 2003.

Did not modify lights at the Port Allen power plant until 2007, despite an agreement to do so in 2005.

KIUC's attorney, Proudfoot, said by e-mail yesterday that the utility had hoped to settle the civil and criminal complaints against it.

He said the biggest problem with endangered seabirds is "fallout" from fledgling birds disoriented by lights, a problem "long ago corrected at KIUC's facilities."

"Mostly the indictment deals with alleged 'take' from KIUC's overhead lines. This is important because KIUC does not believe or admit that there is any 'take' from its overhead lines," Proudfoot said.

"Take" is the official term for any effect on a protected species, including harassment, injury or death.

The criminal indictment will be heard at an arraignment before a magistrate judge in Honolulu, at a date to be determined, Proudfoot said.

"I believe KIUC is still interested in trying to effect a global settlement (civil and criminal) of this matter with the government, which it has been trying to do from the beginning, but what form this might take I won't speculate," he said.

INTERIM PLAN

Scott Fretz, wildlife program manager for the state Division of Forestry and Wildlife, said he hopes that state and federal wildlife agencies will continue to work on an interim Habitat Conservation Plan and permits for the utility, in spite of the criminal case.

"The investigation and indictment affects past take" of protected seabirds, he said. The Habitat Conservation Plan will spell out actions for KIUC to take in the future.

The Justice Department and U.S. Fish and Wildlife Service refused comment on the matter yesterday.

About 75 percent of the estimated 29,000 Newell's shearwaters in the Hawaiian Islands live on Kaua'i, according to the state Department of Land and Natural Resources.