Musings; The Rest of the Story Part 2

As I noted in yesterday’s post, there’s more to my recent article on how the county dealt with — or more accurately, didn’t deal with — its longstanding problem of Newell’s shearwaters, or `A`o, being attracted to the lights at county stadiums, tennis courts and ball fields.

So today I’ll finish telling the rest of that story.

While the county certainly had at least an inkling for some time that its lights were killing and injuring the `A`o, some relatively simple solutions were clearly pointed out in 1995 with publication of a report by the world’s foremost seabird experts.

In the section devoted to resorts and the county, the report recommended:

All unnecessary lighting should be reduced to a minimum in October and early November. Tennis courts and other recreation facilities should be lighted only when actively being used. Stickers could be printed and adhered to switches that say, “Save Our Shearwaters, Please turn off lights when finished.” Large signs, with drawings of shearwaters, could be put on fences of these facilities.

Activities that require additional very-bright lighting should be scheduled for periods outside the peak fallout. For example, sporting events and use of port facilities (Port Allen, Nawiliwili).

Yet by 2004, the scientists reported to the U.S. Fish and Wildlife Service, virtually none of these measures had been implemented.

Earthjustice attorney David Henkin said other easy suggestions were proposed to the county, such as putting lock boxes on the lights at the Kilauea sports field so people couldn’t switch them on at will, and waiting until morning to clean up after a football game — or using smaller, directed lights — rather than leaving the stadium lights blazing for hours.

“Their response was pretty limp,” he said. “These were small ticket items that could have and should have been implemented if they were taking their responsibilities seriously.”

In 2005, the state began pressing the county and other entities to deal with their lights in order to avoid a lawsuit. It advised the county to shield the stadium lights and join the state-led process of developing Habitat Conservation Plan (HCP) that would cover numerous entities, including KIUC and some resorts, that were killing and injuring protected species.

“No one on our staff ever told them they should shut their lights off or stop their games,” said Scott Fretz, director of the state Division of Forestry and Wildlife. “We absolutely refused to get into that level of detail about what they should do. We only gave them advice about shielding their lights. We told them to enroll in the HCP and from there we’d work out the specifics. We knew about the sensitivity of the football games and did not advise that.”

The county acknowledges that it received information about the county-wide HCP in December 2006. Yet it decided to go its own way, according to an email response to a list of questions that I posed for the article:

After much evaluation, however, the County determined that an individual HCP would best suit the county’s interests; the County was hoping to obtain an HCP permit at the earliest practicable time and working with multiple parties with little guidance seemed to be contrary to that goal. The county administration sought and received monies in the FY 2007-2008 budget to obtain a planning consultant who would draft the county’s individual HCP application. After the official procurement process, which is dictated by state law, a contract was awarded in January 2008 and work product was generated, which included a preliminary inventory of lights.

In 2008, the County was advised by its consultant that shifting to the state’s programmatic HCP program was beginning to reveal itself as a better solution for the County.

Fretz, however, said the state never expected the county to develop its own HCP because mitigation efforts are expensive and it makes sense for numerous entities to instead pool their monies to be more effective.

In 2007, the county did ask the Legislature for money to shield the lights, with Council Chairman Kaipo Asing, long a friend of the environment, testifying on behalf of the proposal. Here’s an excerpt from my exchange with the county about this issue:

Me: What is the status of shielding the stadium lights? What is the cost, and does the county have the money? It’s my understanding the county did have the money several years ago, but never spent it for that purpose. Is that true, and if so, why wasn’t the money used for light shielding?

County: Due to changes in scope and design, state and county monies were reappropriated in this past year's capital improvements budget for light shielding. The Department of Parks and Recreation is close to awarding the contract, and expects shielding at six facilities to be in place by next year's fall sports season. The Department also has a long-term plan for shielding at more county facilities, and will employ interim operational changes at those facilities until physical improvements are made.

Me: What is the cost? And when did the county previously secure funding for the lighting, and what happened to those funds?

County: The total amount currently budgeted is $5,167,000. State funding was secured during the 2007 legislative session in the amount of $1,210,000. That funding was released by Governor Lingle in October 2008. The balance of $3,957,000 has been obtained through a bond fund. A $1,900,000 contract was recently awarded for light shielding at Vidinha and Hanapēpē stadiums, $321,700 and $202,000 respectively, with the balance of the work to be done at Peter Rayno and Isenberg parks and the Līhu'e tennis courts. This project is set to begin later this month. An additional $120,000 was spent on design work for these light shielding projects. Future light shielding projects for other county park facilities are in the planning stages and the balance of the total amount budgeted will be used for design and construction of these projects.

Me: Other than securing funding for lighting retrofits (and when was that, see first question) did the county do anything in response to warnings about its lights issued five years ago?

County: Funding for lighting retrofits were approved at the interdepartmental level, however, being that the county's budget is approved on an annual basis and is incumbent upon real property tax revenues in any given year, the request for lighting retrofits for FY 2006-2007 ultimately got denied due to restrictions in the budget.

Or in other words, it simply wasn’t a priority — even though it involved complying with federal laws that county officials are sworn to uphold.

The county continues to maintain that “shielding the lights or constructing lighting retrofits is not a cure-all and does not immunize the County from prosecution under the MBTA (Migratory Bird Treaty Act) or the ESA (Endangered Species Act); shielded lights still hold the possibility of attracting and distracting endangered birds, though the possibility is reduced.”

But even after filing criminal charges against the county for its unauthorized “takes,” Department of Justice officials said that during discussions about the county’s plea agreement, they never pressed to have the stadium lights completely turned off. They said the language about canceling the games through the 2010 football season came from the county.

So clearly, neither the state nor the feds were telling the county it had to turn off the lights to comply with the law.

The plea agreement also specified:

The County shall conduct public outreach or provide signage in a mutually agreeable form and manner, at all County facilities including near any light control devices accessible by the public and in association with all facility use approvals or authorizations, from September 1 through December 15 of each year covered by the period of probation. The outreach shall communicate, at minimum, the cultural and ecological importance of Kauai's unique seabirds and articulate the actions taken by the County to protect and conserve Kauai's seabirds.

When I asked the county what it planned to do to satisfy that requirement, I got this response:

Signage, that was approved by the USFWS by the Sept. 1 deadline as stated in the plea agreement, is currently located at county facilities. Due to the quick turn-around required under the plea agreement, the signage is not permanent and is often subject to vandalism. The County is constantly putting forth effort to replace those signs while it completes the necessary process to acquire more permanent signs. There is also an outreach message read at every game.

However, several parents of football players who attend every game said they have never heard an announcement read. Andrea Erichsen, who is heading up the state’s HCP effort, said the state has asked the county to do more public education and outreach, “but they don’t seem very receptive to it. They haven’t been very positive about our ideas about outreach, like having the keiki paint a seabird mural at the park.

State wildlife employees felt the county should do more positive public outreach since its decision to cancel the football games resulted in a backlash against the birds.

“It’s really hard to undo the damage,” Erichsen said.

Especially when the county doesn’t make the effort.