COMPTROLLER GENERAL OF THE UNITED STATES

WASHINGTON, D.C. 20548

B-118307 February 6, 1979CED9-119

Mr. Elvis J. StahrPresident, National Audubon

Society950 Third AvenueNew York-New York 10022

Dear M &t;/_Your letter of January 11, 1979, stated that our report

of November 1, 1978, to the Secretary of the Interior -_ n(CED-79-6) contained numerous inaccuracies that seriouslyweakened our findings. Following receipt of your letter, wereviewed the information used to support our recommendationthat Interior discon-tinue[acquisition ofKealia Po ' on the-Island of Maui, Hawaii and examined the limfted new dataprovided in yoU-let-ter. Our position remains unchanged.

We agree that Kealia Pond should remain a wildliferefuge. This is reflected in our recommendation that theSecretary monitor State and county actions to assure thatthey are compatible with a waterbird haoitat. We do nptagree, however, that actual and planned development in thepond area constitute serious threats to the survival of thecoot and the stilt, necessitating Federal acquisitionthrough condemnation.

As pointed out in our report, data in the recovery planapproved by the Director of Interior's Fish and WildlifeService (FWS) show that the coot has already surpassed itspopulation objective and that the stilt population is wellon the way to recovery without the acquisition of KealiaPond. (See p. 9 of enclosure for discussion of populationobjectives.) Our report also shows that State-owned KanahaPond is the primary nesting and feeding habitat for both thecoot and the stilt, that Kealia Pond is within a zoned conser--vation district, and that both ponds have been designatedby the State as wildlife sanctuaries. (See pp. 1 to 5 ofenclosure for responses to specific points relating to thecurrent status of the two ponds.)

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Further, the interagency cooperation provisions(section 7) of the Endangered Species Act of 1973, as amend-ed, provide an effective mechanism to protect Kealia Pond.Before the pond can be converted to a boat harbor or marinaor other adverse developments occur, a lengthy reviewprocess, including consultation with FWS, is required. Thehigh-level Endangered Species Committee, established by the1978 amendments to the act, would then have to determinewhether (1) the project is of regional or national signifi-cance and in the public interest, (2) the benefits to bederived clearly outweigh the benefits of conserving thespecies' habitat, and (3) no reasonable and prudent alterna-tive to Kealia Pond exists. Using this criteria, the Com-mittee blocked completion of the Tellico Dam in Tennesseeon January 23, 1979.

As your letter points out, the U.S. Army Corps ofEngineers is conducting a study of alternative harbor siteson Maui. Before adverse, development could occur, the Corpswould have to find that Kealia Pond is not only the bestsite for a harbor on Maui, but that no reasonable and prudentalternative site exists on the Island. In the unlikely eventKealia Pond is found to be the only site for a harbor onMaui, FWS would have ample opportunity to reinitiate condem-nation proceedings, if required. (See pp. 6 to 7 of enclo-sure for complete chronology.)

We are still of the opinion that there is no persuasivereason for Interior to acquire Kealia Pond, and thereforehave no plans to withdraw or change our recommendation.

Your letter refers to the points included in a Novem-ber 20, 1978, letter from the Vice-President of the HawaiiAudubon Society and requests us to review his arguments tocorrect the inaccuracies in our report. Our review indica-ted that many of the points he raised were based on specu-lation and conjecture and that others were inaccurate. Ourresponses. to each of the points raised are enclosed.

We have been informed that the Secretary of the Interior'sresponse to our report parallels yours. We intend to recom-mend that the Secretary work with us and the State of Hawaiito resolve this issue. To accomplish this, we will propose ameeting of all the parties involved so that commitments con-cerning the future of Kealia Pond can be discussed and a work-ing accord arranged. We would welcome your participation.

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Because of continuing congressional interest in theFederal acquisition of Kealia Pond, we are sending copiesof this letter and your request to the Chairmen of theSenate Committees on Governmental Affairs, Appropriations,and Environment and Public Works, and to the Chairmen of theHouse Committees on Government Operations, Appropriations,Merchant Marine and Fisheries, and Public Works and Trans-portation. Copies are also being sent to Hawaii's Senatorsand Congressmen, Senator Proxmire, the Governor of Hawaii,the Mayor of Maui, the Secretary of the Interior, theDirector of the U.S. Fish and Wildlife Service, and theDirector, Office of Management and Budget.

We trust that this letter satisfactorily responds toyour request.

Sinc yours,

Comptroller Generalof the United States

Enclosure

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GAO RESPONSES TO POINTS RAISED IN THENOVEMBER 20, 1978, LETTER FROM THE VICE-PRESIDENT

OF THE HAWAII AUDUBON SOCIETY

Point: "One is immediately struck by the fact that the KealiaPond acquisition issue has been singled out for actionby GAO although the report of the nationwide GAO re-view of Endangered Species Act implementation will notbe complete for several months. We suspect this is aresponse to strong pressure from State and/or countyofficials and feel that it is improper for an actionof such significance to be taken before the details ofthe entire GAO study are available for review."

"The reference to a 6.4 million appropriation is accu-rate, but we have reason to believe that this figurefar exceeds the actual appraised value of the site andis therefore an innaccurate picture of what theDepartment of the Interior intends to pay. Presumablyconsultation with your own staff in the U.S. Fish andWildlife Service would confirm this."

Response: GAO is responsible for promptly bringing our find-ings to the attention of the Congress and agencyofficials so that corrective actions can be taken.We give particular emphasis to communicating find-ings which present opportunities for achievinggreater economy, improving efficiency, and obtain-ing better program results. Initiation of condem-nation proceedings, not your suspicion of strongState and/or county pressure, was the primaryreason why the Kealia Pond acquisition was singledout for action.

The approximate $6.4 million appropriated by theCongress for the acquisition of Kealia Pond wasbased on justification provided by Interior. Ifthis figure far exceeds the amount Interior intendsto pay, the error lies with the Department, notwith our report, and should be fully explained tothe congressional appropriation committees.

Point: "The brief description of the status of Kanaha Pondis very misleading. A review of the detailed discus-sion of the site in inclosure 4 would confirm this.The site is a sanctuary in name only. The StateDepartment of Transportation has jurisdiction over thepond and has refused to transfer ownership to the

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Department of Land and Natural Resources, the Stateagency responsible for wildlife-manaqement. The DLNRhas implemented limited habitat improvement efforts atthe pond, but the site is clearly not assured perma-nent protection and should not be thought of as anacceptable alternative to Kealia Pond."

Response: Our descriptions of Kanaha Pond and Kealia Pondwere taken from the 1970 pamphlet, "Hawaii'sEndangered Waterbirds", prepared by the Stateof Hawaii's Division of Fish and Game and Interior'sBureau of Sport Fisheries and Wildlife (now FWS).This pamphlet was used by Interior to justifyacquisition of Kealia Pond in the draft environ-mental impact statement dated March 15, 1978.

We agree that the State Department of Transporta-tion has jurisdiction over Kanaha Pond. However,the pond is administered by the State Department ofLand and Natural Resources, and its designation asan endangered wildlife sanctuary and the protectionprovided it by the endangered species act, limitState and private actions to those compatible witha waterbird habitat.

Point: "A quick review of the long list of wetland areas inthe State that have been adversely modified in recentyears will make it readily apparent that conservationzoning is, in itself, no assurance of permanent pro-tection. As for the sanctuary status, it is correctthat Kealia was also a state sancturay in name onlyfor several years. However, this designation was onlyby agreement with the landowner (Alexander and Baldwin)and was subject to cancellation at any time. As amatter of fact, the agreement has expired anyway, soit is no longer even a 'paper' sanctuary. As far as thewaterbirds are concerned, it never made any differencebecause the State efforts to 'manage' the pond forwaterbirds were token at best."

Response: We agree that the location of Kealia Pond within azoned conservation district does not assure perma-nent protection. State Department of Land andNatural Resources officials informed us that thecurrent agreement with the principal landowner canbe revoked in 30 days. However, if the pond is

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rezoned, any subsequent development would requireapproval from the Corps of Engineers and, as such,would fall under the authority of the-EndangeredSpecies Act (discussed in detail later). Stateofficials advised us that they had not improvedKelia Pond to increase its potential as waterbirdhabitat primarily because of the continuing threatof Federal acquisition.

Point: "Mr. Eschwege's letter attempts to build a case thatthe FWS acquisition plan for Kealia is inconsistentwith FWS policies. As explained earlier, 'sanctuary'status and conservation zoning clearly do not precludeuses that are not compatible with a wildlife refuge.If this were so one wonders why there is a sewagetreatment plant injecting sewage under Kanaha Pond, aprivate residence in the middle of the Paiko LagoonState Wildlife Refuge on Oahu, and a golf course whereSalt Lake used to be. One also wonders about the val-ue of conservation zoning for the largest fresh watermarsh in the State (Kawainui) when the Land Use Com-mission has concluded that sloping lands abutting themarsh are unrelated ecologically to the integrity ofthe marsh and are more appropriately zoned for urbanuse. Other equally illustrative examples abound."

"Mr. Eschwege's letter also states that continuedState protection of the pond was never considered aviable alternative by FWS. That it was considered analternative is evidenced by the discussion of alterna-tives within the FWS Draft EIS for acquisition andmanagement of Kealia Pond as a National WildlifeRefuge. In this document it was concluded that theState was not a logical alternative for management andit was pointed out that the State agency that would beresponsible for this job had joined in recommendingthat the pond become a national wildlife refuge. Asto the viability of State or County management, thatis another question which you can be sure the FWS hasconsidered. However, in review of the state's trackrecord in waterbird conservation it is no surprisethat the alternative was ruled out. The State's en-dangered waterbird 'program' has been largely lip ser-vice. What constructive research has been conductedhas been funded largely by private organizations orthe Federal Government. Tens of thousands of Federaldollars that could have been used for active wildlifeprograms have been returned annually for lack of

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matching by the State government. Additional fundingopportunities through the Endangered Species Programhave been lost because the State has not shown theinitiative to qualify. There is no question thatthere are competent people within State resource agen-cies that could effectively manage Kealia Pond as arefuge, but unless there is a major change in admini-stration policy and a demonstration of initiative inthat direction, there is little hope that such a Stateprogram could ever achieve its objectives."

Response: As evidenced by the 1978 amendments to theEndangered' Species Act, it is not the Congress'intent to prohibit all economic growth and develop-ment in existing wetland areas. Compatible dual-useand even the elimination of some existing wetlandsare permitted under the act, as amended. Becauseeach project must be considered separately underthe act, the examples you use to support Federalacqisition of Kealia Pond have no bearing on thelegislative policies and procedures that would berequired if the pond were rezoned and if economicdevelopment were proposed.

Both the Chairman of the State Department of Landand Natural Resources and the Director of the De-partment's Fish and Game Division strongly opposeFederal acquisition of the pond. Only the Chief ofthe Fish and Game Division's Wildlife Branch, whois also the leader of the FWS Hawaiian WaterbirdsRecovery Team, has "joined in recommending that thepond become a national wildlife refuge." A reasongiven us by this official was that the FederalGovernment has the funds for acquisition, so whynot buy the pond.

We agree that Federal matching funds for wildlifeprograms have been lost and that Hawaii has notqualified for endangered species cooperative agree-ment grants-in-aid. As of October 1, 1978, only22 States had entered into cooperative agreements,and regulations to implement December 1977 amend-ments to the act to make it easier for States toqualify had not been promulgated. Our reviewshowed that the State was actively working towardsqualification and should do so once Interior haspromulgated the implementing regulations.

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Point: "This paragraph implies that the interest of the FWSin establishing a national wildlife refuge at Kealiais based solely on fears that a proposed harbor devel-opment would lead to rezoning and consequent habitatloss. This is only a half-truth that misses the mainpoint. The Hawaii Waterbird Recovery Team has writtenthat the pond 'has great potential and, if fully devel-oped, would well be the best area in the State forstilt and possibly coot.' Refuge status would insurethe opportunity to implement the proposed managementplan to achieve this objective.. On the average, thetwo ponds on Maui account for a quarter of the State'scoot population and more than a third of the Statesstilt population, but they can not be thought of asindependent units that can compensate for loss orradical alteration of the other site."

Response: As our report states, Kealia Pond complementsKanaha Pond by providing a feeding area for boththe coot and the stilt and a nesting habitat forthe coot. Improvements to the pond area could alsoexpand the nesting habitat of the stilt. Ourpoint is that Federal acquisition is not necessaryto maintain the pond as suitable wildlife habitat.

Point: "We find it hard to believe that the GAO personnelworking on the study in Hawaii were convinced that 'theonly development currently planned, for the area isexpansion of the aquaculture farming'. Mayor Cravalhowas a staunch supporter of a deep draft harbor atKealia Pond during the period in the late 1960's whenthe U.S. Army Corps of Engineers was studying alterna-tive harbor sites on Maui. There was, in fact, con-siderable opposition to Kealia as a harbor site duringthe Corps study. The State Department of Transporta-tion recommended in 1972 that the Corps defer siteselection until conditions changed sufficiently tojustify the need for a second port. The study was re-initiated in October 1978 at the request of the StateDOT and county officials. For Mayor Cravalho to con-vince the GAO that harbor development was not a planunder consideration for the site, or to simply hidethe fact altogether, was deceptive. Fortunately, inthis instance, we are confident that the Corps is fullyaware of the controversial nature of the project andthe environmental considerations involved."

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"Again, it should be pointed out that the 'lengthyreview process' required by State law leaves littleroom for comfort in view of the track record. Itseems likely that in this case the regulatory authoritywith the greatest clout will be the Corps' own Section404. It is also important to note that the sameregulatory authority would apply for habitat develop-ment proposals should the site become a FWS refuge."

"The statement that the county and State 'will considerimproving the pond' is about as noncommittal as one canbe, and leaves even less room for satisfaction. Ifthe FWS could be certain that the State and/or countycould and would implement an effective management planat the site and guarantee future wildlife protection,then the acquisition funds would be better spent else-where or not at all."

"The final statement in the paragraph regarding theprincipal landowners lack of plans for commercialdevelopment also seem hard to believe in light of thereinitiation of Corps study for harbor development.Are we to believe that the Corps and State DOT re-started the project, and neither the County or thelandowner knew anything about it?"

Response: Your chronology correctly sets forth the eventsthat have transpired to the present, and, exceptfor the reinitiation of the Corps' study thatoccurred after our field work was completed, wereidentified and evaluated by our staff. However,even the ongoing study of alternative harbor sitesdoes not necessitate Federal acquisition of KealiaPond. A clear understanding of the protective pro-visions of the Endangered Species Act, as amended,is the basis for our conclusion. All the followingspeculative and conjective events would have to oc-cur before construction of a harbor at Kealia Pondcould begin or other economic development initiated.

1. The Corps would have to find that KealiaPond is not only the best site for a harboron Maui, but that no reasonable and prudentalternative site exists on the Island.

2. The conservation district would have to berezoned and the lengthy review process,

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including preparation of a Stateenvironmental impact statement andpublic hearings, would have to resultin an application for a Corps' permit.

3. A biological assessment (review) wouldhave to be conducted by the Corps, asrequired by law before any constructioncontract could be entered into, and theresulting consultation with FWS wouldhave to show that the project wouldadversely affect the species.

4. The Corps would have to deny the permit,and the State or the landowner would haveto apply for an exemption from the Endan-gered Species Committee 1/ establishedby the1978 amendments.

5. Five of the Committee's seven memberswould have to determine that (1) the pro-ject is of regional or national signifi-cance and in the public interest, (2) thebenefits to be derived clearly outweighthe benefits of conserving the habitat,and (3) no reasonable and prudent alterna-tive to Kealia Pond exists.

Only after all the above have occurred could con-struction of a-harbor at Kealia Pond begin. In theunlikely event all of these actions occurred, FWSwould have ample opportunity to reinitiate condemna-tion proceedings, if required.

Point: "Acquisition of Kealia as a refuge is consistent withFWS policy and criteria. The reference to prioritycategories is misleading because half the story isleft untold. We are unaware of any 'priority system'other than that recently applied by your department to

l/The seven members are the Secretaries of the Interior, theArmy, and Agriculture; the Chairrman of the Council of EconomicAdvisors; the Administrators of the Environmental ProtectionAgency and the National Oceanic and Atmospheric Administra-tion; and a representative from the affected State(s).

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implement a presidential directive to Federal agenciesto identify candidate critical habitat on Federallands. In this ranking, it is correct that stilt andcoots were placed in category 3; species facing lowthreats. This ranking affects only the timetable ofreport submission by Federal agencies. The rankingwas also based upon the FWS knowledge of the status ofendangered species on Federal lands under review.Most of the stilt and coot habitat on non DOI Federallands in the State is already protected in one way oranother, generally by cooperative agreement with theFWS."

"For this reason, the low priority ranking for candi-date critical habitat idenification is justified butit should not be interpreted as evidence that FWS bio--logists are not seriously worried about the survivalof these species. It should be noted that the FWS andthe State, in numerous joint and independent publica-tions, have repeatedly stressed the rapid loss ofhabitat and consequent imminent threats to survival ofthe wetland birds."

Response: A criterion that must be met before a habitat canbe acquired for an endangered or threatened speciesis that the species must be in a high prioritycategory based on FWS's endangered species recoverypriority system. This system is not the same asthe one used to establish the critical habitatidentification timetable referred to in your letter.

In April 1978, FWS biologists at the Office ofEndangered Species ranked listed endangered andthreatened species based on a recovery prioritysystem that considers three criteria--degree ofthreat, recovery potential, and taxonomic status--in a matrix of 12 priorities for recovery planningand resource allocations. Both the coot and thestilt are in the priority ten category becauseexperienced FWS biologists determined that thedegree of threat to their survival is low andtheir recovery potential is high. Therefore,the acquisition of Kealia Pond is not consistentwith FWS's criteria relating to the endangeredspecies program.

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Point: "The discussion of population data that appears inMr. Eschwege's letter attests to his lack of under-standing of what the numbers mean. Before I becamea member of the Hawaiian Waterbirds Recovery Team, Irecommended strongly against establishment of a 'pop-ulation objective' figure as a primary criterion formanagement programs. Now the numbers have come backto haunt the Team because they were unrealistic andbased upon inaccurate and inconsistent data. Inter-pretation of data derived from waterbird counts in theState is complicated by the combined effect of severalproblems. These include, among others: (1) variationin the list of sites surveyed, (2) variations in in-dividual site coverage and methods of survey, (3) var-iations in competency of observers, (4) scheduling ofsurveys with little or no respect to weather, tidalpatterns, time of day, etc., and (5) inconsistenciesin methods of recording data. Count records showsome radical fluctuations, sometimes exceeding 200%,so description of 'trends' is particularly dangerous.The reference to apparent upswing in stilt populationin Mr. Eschwege's letter does not take into accountthe major increase in the number of sites surveyed inrecent years. We can hope for the day that the en-dangered waterbirds are reproducing successfully insufficient number to insure their continued producti-vity with the few habitats that can be assured futureprotection. In recommending Kealia Pond as 'essential'habitat for stilt and coots, the Recovery Team recog-nized its prime current value to these species, andits even greater potential."

Response: FWS requires that recovery plans include "* * * asprime objectives the restoration of the species tospecific population levels and distribution judgedto be adequate for reclassifying or delisting ofthe species." The population objectives of 2,000for each of the two species were established bythe species recovery team comprised of responsibleindividuals having expertise or current personalinvolvement with the species. They representspecific population levels judged by the recoveryteam to be adequate for reclassifying or delistingthe species. The results of the more recent sur-veys should not be used to discredit the originalpopulation objectives, but to justify the delistingor reclassification of the species to the threatenedcategory and to modify the recovery plan accordingly.

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Point: "There is no question that acquisition of otherrefuges on Kauai, Oahu and Molokai has improved thepicture for stilt and coots since the original recom-mendations for acquisition of 0ealia were made. How-ever, both the Recovery Plan and the Draft EIS forKealia Pond attest to the fact that acquisition andhabitat management at Kealia is still high priority.One wonders from whom the GAO representatives learnedthat 'changes in the speci-es status have not beenmonitored' When in fact the FWS has greatly accel-erated its population monitoring program in recentyears, particularly within designated and potentialrefuges. Data for Kealia and other important stiltand coot habitat in the State are more exhaustivethan ever before, and they substantiate the greatimportance of Kealia to the survival of these species."

Response: In our responses to the points above, we have iden-tified statements in both the recovery plan anddraft environmental impact statement that should beclarified or revised to reflect the current statusof Kealia Pond. Justification for the continuedhigh priority given the acquisition of Kealia Pondcannot be substantiated by available informationand data. Interior officials who stated thatchanges in the species' status had not been moni-tored, and that the initial decision had never beenreevaluated, include the FWS representative toInterior's Land Planning Group, responsible forapproving all land acquisitions, and the chief ofthe Office of Endangered Species' branch respon-sible for recovery plans and teams.

Point: "Hopefully, the discussion provided here clearly indi-cates that the conclusions in Mr. Eschwege's letterare largely unwarranted. The statement with respectto compatibility of the aquaculture facility and water-bird use should not be used as an argument against therefuge concept. The Kealia Draft EIS clearly attributessummer waterbird use in recent years to the presence ofthe catfish farm and further proposes to retain thefacility once the area is in refuge status. The planalso calls for creation of large impoundments to allowbetter management of water levels and to provide ameans to periodically remove silt that now accumulatesin the absence of a summer drying period. Although itis certain that unlimited expansion of aquaculture faci-lities would conflict with refuge goals, there is everyreason to believe that the two can continue to coexist."

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Response: We conducted a-thorough review of availabledocumentation relating to the planned acquisitionof Kealia Ponad and interviewed pertinent Interior,FWS, State, and other officials. Consequently,our position is well supported. The justificationto acquire Kealia Pond appears to be based largelyon suspicions, feelings, and opinions.