More protection, or more bureaucracy?

That’s the question endangered species advocates, regulators and Kauai’s electric company are wrestling with in the aftermath of a surprise decision from the state’s Land Board to require another layer of environmental review for a plan to save rare seabirds.

“It’s new to us,” Hawaii Department of Land and Natural Resources Wildlife Program Manager Scott Fretz told Civil Beat. “We haven’t done it yet.”

Acting on eleventh-hour advice from lawyers, according to Fretz, the Board of Land and Natural Resources last month deferred action on Kauai Island Utility Cooperative’s proposed habitat conservation plan, which had been widely expected to be approved.

Under the plan, the utility would have spent millions of dollars to put power lines underground, shield lights from the Garden Isle’s dark night sky and take other steps to minimize its harm to protected species like the Newell’s shearwater.

In exchange for those efforts, the plan also included a request for a license to kill more than 100 rare birds per year without penalty from the state. The company, indicted criminally last year by the federal government and accused of repeatedly violating the Endangered Species and Migratory Bird Treaty Acts, is going through a parallel permitting process with the feds.

Until both the federal and state processes are complete, the utility is exposed to potentially huge fines. The utility was taken aback by the decision because it’s already trying to identify and eliminate its impacts on birds.

The plan didn’t satisfy all parties. Earthjustice attorney David Henkin — who was among the vocal supporters of new DLNR and BLNR chief William Aila Jr. — complained it failed to minimize the negative impact on birds.

“The documented, dramatic decline in Newell’s shearwater numbers indicates that, unless KIUC immediately takes action to reduce take, this species may cease to exist in the wild or, at a minimum, its prospects for recovery will be all but eliminated,” Henkin wrote in a letter to the DLNR that was included, with the department’s responses, in the filings [pdf] for the Feb. 25 meeting.

“To avoid the need to shut down its operations altogether, KIUC must promptly implement the necessary measures to avoid pushing the Newell’s shearwater to extinction and to promote the species’ recovery.”

Handed a surprise victory, he told Civil Beat the decision to withhold approval until after an environmental review shows the state now takes its environmental responsibilities more seriously than under previous administrations.

The land department originally recommended the plan be approved without the additional review, claiming the proposal was exempt from normal environmental review triggers because it qualified as wildlife management.

Fretz, the state’s wildlife manager, said the new interpretation “is another regulatory layer that’s going to add a lot of labor on our part.”

Asked if the new layer will provide additional protection for species or if it’s unnecessary, Fretz declined to say.

But he did say the environmental review prepared under Chapter 343 of the Hawaii Revised Statutes is merely about disclosing potential impacts while the habitat conservation plan produced under a different section of state law — Chapter 195D — requires that the proposal create a net positive benefit to the species.

“(Chapter) 195D already goes much further than 343,” he said.

Henkin acknowledged that the environmental review will have some overlap with the habitat conservation plan. But, he said, the review is a holistic look at big-picture impacts not just to birds but to humans — things like cultural impacts, socio-economic impacts, traffic and noise.

“Three-forty-three is a broader look, not just looking at the proposal itself and ways to mitigate it, but alternate ways they could achieve the result,” he said.

He said the review should encompass any and all KIUC operations that impact the environment, even if they’re not being addressed or changed by the habitat conservation plan.

“Three-and-a-half decades of illegal conduct doesn’t automatically become legal just because you’ve been doing it for a long time,” he said.

The last-minute change, and the potential scope of new work, caught the utility off-guard. Expecting to have a habitat conservation plan and incidental take license in hand by now, the company is facing the prospect of months or years of further environmental review.

“It was an extreme surprise that two days prior to us being on the agenda for approval, that we were notified that KIUC was pulled off the agenda,” KIUC Support Services Manager Carey Koide told Civil Beat. “Over the last eight years of working with (the DLNR Division of Forestry and Wildlife), this was the first time that requirement was put on us.”

Koide said the habitat conservation plan specifically identifies all of the co-op’s major projects going forward and seeks coverage for only certain activities.

“It’s not a blank check,” he said. “It’s not like KIUC can just take, take, take for anything and just construct anything we wish to construct going forward.”

For now, the company is exposed to potential penalties from both the state and federal governments for harming rare birds. But the federal process — for which the co-op has already produced an environmental assessment [pdf] — provides a roadmap for the new requirement.

“It’s already been done,” Koide said. “So it’s taking an old document and putting it in a format that’s acceptable to the Hawaii 343 standards, and then going through the process of the public hearings or whatever is required.”

He estimated that might take six to 18 months.

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