Island Watch

Federal, State Endangered Species Rules Are Up for Public Comment Through February

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service have announced that they are seeking public comments on draft guidelines “designed to ensure consistency in administration of the Endangered Species Act.” At the state level, the Department of Land and Natural Resources’ Division of Forestry and Wildlife is planning to hold hearings across the state in February on a new set of rules (Title 13, Chapter 107) for threatened and endangered plants and revised rules concerning indigenous wildlife (including threatened and endangered species) and introduced wild birds (Title 13, Chapter 124).

The Federal Papers

According to the Fish and Wildlife Service, the draft documents “provide guidance to agency staff on developing habitat conservation plans, managing petitions, conserving species that are ‘candidates’ for listing, consulting with other federal agencies, and defining ‘populations’ of vertebrate species eligible for listing under the [Endangered Species] Act.”

Several federal documents are available for comment. According to a press release from the Fish and Wildlife Service, one is a “draft Handbook for Habitat Conservation Planning,” intended to give agency staff “consistent and simplified procedures … as they work with private landowners who apply for permits for ‘incidental take’ of endangered species.”

The second document is a set of guidelines on petition management, which, the FWS says, will “more rigorously define those species and actions that may be petitioned under the Endangered Species Act. The Act allows any individual to petition the Fish and Wildlife Service or the National Marine Fisheries Service to list, delist, or reclassify (change from endangered to threatened, for example) a species. The draft document also provides guidance on time frames for responding to petitions and notification of petitioners.”

Yet a third document consists of draft guidelines for conserving species that are candidates for listing as either threatened or endangered. “The guidelines provide information on how to identify species as candidates and provide direction for monitoring candidates to ensure they do not become extinct while awaiting a decision on whether to go forward with listing. The new guidance also sets out standards for prioritizing candidate species and mechanisms for taking actions benefiting candidates to avoid listing,” the FWS says in its press release.”

Still another document gives the FWS and NMFS guidelines for consulting with other federal agencies, under Section 7 of the Endangered Species Act.

Finally, there is a new draft policy for vertebrate species. “The Act currently allows the services to list as endangered or threatened any species, subspecies, or vertebrate population but does not clearly define what vertebrate populations are eligible for listing,” the FWS news release says. “The draft policy would set standards to be used when determining whether a particular animal population may be eligible for listing. Elements to be considered include the extent to which the population is discrete in relation to the remainder of this species, how significant the population segment is to its species, and the population’s status with regard to the Endangered Species Act’s criteria for listing.”

Requests for more information or comments on the draft documents may be forwarded to the Chief — Endangered Species, USFWS, ARLSQ-452, 1849 C Street, NW, Washington, D.C., or to the Chief — Endangered Species Division, NOAA/NMFS, OPR 13342, 315 East-West Highway, Silver Spring, Md. 20910.

State Rules

The revisions to state rules are intended to address the increasing complexity of regulatory and management issues arising from growing numbers of endangered and threatened species. Up to now, plants and animals have been dealt with in the same rule (Chapter 124). The new Chapter 107 has been established to deal exclusively with endangered and threatened plants, while Chapter 124 has been revised to deal only with wildlife.

By press time, no hearing schedule had been published. However, DOFAW was planning on holding state-wide hearings in February.

For years, Hawaiian Western Steel buried hazardous wastes, including bags of dust containing high amounts of lead and cadmium, on undeveloped land in the area of Campbell Industrial Park on O`ahu. (For more on the operations of this plant, see the [url=/members_archives/archives1993.php]January 1993[/url] edition of Environment Hawai`i.) The plant went into bankruptcy soon after the Environmental Protection Agency cracked down on it for violations of the federal Clean Air Act. Eventually, the Campbell Estate, which owns the land where the waste was dumped, and the owners of Hawaiian Western Steel agreed to cap the dump site. Under the federal Resource Conservation and Recovery Act, they are now required to prepare a closure plan that meets the requirements of the law. Among other things, they must ensure that the amount of water percolating through the waste is held to a minimum, that the cap placed over the waste pile will not wear away, and that the site will be secured.
The closure plan — some 700 pages long — is now available for public review and comment.

The waste pile covers about 5 acres and contains more than 100,000 cubic yards of waste material. The area is bisected by the Hanua Street extension, which runs from north to south. Since the plant closed, the extension has been paved with asphalt. The area of the waste pile to the side of the road has been capped with an impermeable plastic membrane, 30 mils thick, to prevent water from seeping into the area where the hazardous waste has been dumped, while a series of drainage channels has been built around the perimeter of the pile.

While the pile has been capped with a membrane, there is no similar lining placed underneath it. Under present federal regulations, waste sites such as this must be lined, to prevent seepage of contaminated water into underground water sources. However, according to the closure plan (prepared by Remcor, Inc., of Pittsburgh), “the waste pile area commenced operations more than 10 years before the promulgation of the liner system design and installation requirements… [D]isposal of wastes ceased well before July 29, 1992, which is the construction commencement date for new landfills … that triggers requirements for liners and leachate collection systems… Thus, the liner and leachate collection system requirements for new, expanded, or replacement units are not applicable to the Waste Pile Area.”

Most of the work described in the closure plan occurred in 1993 under an order issued by the EPA pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as the Superfund law.

New work will involve placing a geotextile cover and six inches of “coral base course” over the surface of the drainage channels. The entire area will then be covered with asphalt pavement at least two and a half inches deep. This will connect the surface of the waste pile on either side of the Hanua Street extension to the asphalt pavement of the road, and will therefore minimize the likelihood of moisture entering under the roadway.

To satisfy the requirement that the waste pile will be secured, the closure plan proposes weekly visual inspections of the site “to ensure that the fence is intact and that the warning signs remain posted” and to monitor for evidence of erosion of the side slopes, drainage channels, or “plateau” surfaces.

Finally, the plan anticipates monitoring groundwater in the area for the next 30 years, the duration of the “post-closure” period called out in federal law.

The closure plan consists of two parts. The first is “Revision No. 1, RCRA Closure Plan,” dated August 6, 1993, and prepared by Remcor. The second (and far smaller) is titled “Waste Pile Closure Plan Addendum,” dated October 14, 1994. Copies of these documents are available for review at the Solid and Hazardous Waste Branch of the state Department of Health (Room 212, 919 Ala Moana Boulevard, Honolulu), and at the Ewa Beach Public Library reference desk (91-950 North Road, Ewa Beach).

The EPA and the Department of Health will hold a public hearing on the closure plan “if substantial public interest exists or if a request for a public hearing is received.” Requests for a hearing must be made in writing and must state the nature of the issues to be raised at the hearing. The deadline for comment is February 4, 1995. Comments should be sent to Paul Kalaiwa`a at the Department of Health (address above) or to Vern Christianson at U.S. EPA, Region 9, 75 Hawthorne Street (H-3-2), San Francisco, California 94105.

In the [url=/members_archives/archives_more.php?id=1330_0_30_0_C]December 1994 Island Watch[/url] of Environment Hawai`i, we reported on a proposal to allow the onaga (red snapper) to recover from overfishing in the waters off the Main Hawaiian Islands. The proposal was to impose a closed season for onaga. Our report stated that the closed season would apply not only in waters under the control of the state of Hawai`i (out to three miles), where onaga are seriously overfished, but would apply in federally controlled waters as well. “Even though the onaga under federal control are not as overfished as those in state waters,” we wrote, “closing onaga fishing in both areas is necessary to allow enforcement of the closed season.”

Robert Schroeder of the Western Pacific Regional Fishery Management Council has informed us that this is incorrect. According to the recommended management option adopted by a state and federal task force formed to deal with the problem of overfished onaga, onaga from the Northwestern Hawaiian Islands, where stocks are healthy, would continue to be available for fishing during the closed season around the Main Hawaiian Islands. To allow for enforcement of the closed season, the source of origin of onaga sold during that time “must be clearly documented” at dockside, Schroeder wrote.

Most onaga targeted by near-shore fishermen are caught in state waters. However, in a few areas (notably the Penguin Banks, southwest of Moloka`i), the bottomfish fishing grounds extend into federal waters as well. As Environment Hawai`i reported in [url=/members_archives/archives1994.php]March 1994[/url] (Scroll down to see the entire issue’s article listing), the Western Pacific Regional Fishery Management Council has sought to get the state of Hawai`i to manage these areas because of the logistical difficulties that arise in enforcement efforts. According to Schroeder, if the state Legislature enacts a bill calling for a closed season for onaga, “it is expected that the Council will then follow with consistent legislation for the federal waters of the [Main Hawaiian Islands]. Such an amendment to the Bottomfish Fishery Management Plan may involve a processing time of up to a year, for final approval by the Secretary of Commerce.”

The season proposed for closure would extend from July through October. Onaga and ehu, another overfished species, would be covered. Under the task force’s recommendation, the closed season would be in effect for a five-year trial period.

— Patricia Tummons

Volume 5, Number 8 February 1995