Research, Laws and Scientific Reports
The following documents have been cited by scientists, researchers, policymakers and members of the general public in stating their concerns about the Lehua aerial rodenticide project.
Additional citations of materials are included in the Final Environmental Assessments and in the citations of research reports and comment letters related to the Lehua aerial rodenticide operation.
Assessments of 2009 Aerial Drop of Diphacinone on Lehua:
Report by Invasive Species International
by Land Care Research
Published by Pacific Cooperative Studies Unit
University of Hawaii (January 2011)
2. Powerpoint presented by former head of Pesticides Branch, Department of Agriculture, reviewing the scope and findings of 3 aerial broadcasts of rodenticide at Lehua Island (2009), Mokapu Island (2008), and Keahou Ranch (2003).
The presentation contains detailed information about the fish and whale deaths that shortly followed the aerial application of diphacinone. (Reports of dead fish 4 days after last aerial drop, reports of one dead juvenile whale, 7 days after last aerial drop. A second whale reported dead less than one month after last aerial drop). In 2009, 3,900 lbs, significantly less than the amount being proposed for the August 2017 aerial drop, was used.
The last slides in this presentation contain many citations to research on impacts of diphacinone to wildlife.
Department of Agriculture Permits and Application for Aerial Drop of Diphacinone 2017:
1. Approved Application with conditions, signed by Scott Enright, Chair, Board of Agriculture, dated August 22, 2017.
2. Application for Aerial Drop #1, submitted by David Smith, Administrator, HI Department of Fish & Wildlife (DoFAW)
3. Application for Aerial Drop #2, submitted by David Smith, Administrator, HI Department of Fish & Wildlife (DoFAW)
4. Application for Aerial Drop #3, submitted by David Smith, Administrator, HI Department of Fish & Wildlife (DoFAW)
NOAA Letter of Concurrence, dated August 21, 2017:
1. Required Concurrence Letter from the National Oceanic and Atmospheric Administration (NOAA) describing their concerns regarding endangered species, communications with USFWS and scope of NOAA concurrence. This NOAA Concurrence Letter was legally required prior to the proposed Lehua Aerial Rodenticide drop. The letter was delivered after work hours on August 21, and announced as received by DLNR on August 22. The first Lehua aerial drop began at approximately 6 am on August 23.
Board of Land and Natural Resources Agenda-- Lehua MOU:
1. Meeting Agenda of the Board of Land and Natural Resources (BLNR) listing Requests of Approval of Memorandum of Understanding for the Lehua rodenticide operation, July 14, 2017 (Item C-4).
Approved in form by the Board of Land and Natural Resources
at its July 14, 2017 Board meeting.
Agreement between HI DLNR, DoFAW, USFW, USDA, US Coast Guard, National Tropic Botanical Gardens, the Robinson family as owners of Ni'ihau, and Island Conservation as contractor.
The agreement outlines in general terms the responsibilities of the parties. It refers heavily to an Operational Plan and Operational Budget that were not released by DLNR for public review, on grounds that these documents are subject to change at any time.
In this MOU, sole source, no-bid contractor Island Conservation is responsible "for compliance with all applicable regulatory processes and permits." The Robinsons, as owners of Ni'ihau, are responsible for "provid[ing] local community members to support on the ground operations."
Under Section 9, the Indemnification clause states, "The State of Hawaii (DLNR/DOFAW) shall be responsible for damage or personal injury resulting from acts or omissions of state employees while acting within the scope of their employment to the extent that the State's liability for such damage or injury has been determined by a court or otherwise agreed to by the State. The state shall pay for such damages and injury to the extent that funds have been authorized and appropriated by the Legislature for such prupose, and the funds have been allocated by the executive budget process."
Under Section 11, entitled, "No Commitments Beyond Agreement," "the Parties acknowledge and agree that nothing in this Agreement shall obligate any of the parties to expend or provide funds or staffing, or to take any other actions, beyond those which are explicitly called for in this Agreement. It is not clear, without review of the Operational Plan, to what extent consultant Island Conservation is obligated to perform rigorous monitoring and biosecurity activities following the aerial drop of rodenticide.
As of August 2, 2017 it is unclear whether this agreement has been fully executed by the parties. At the July 14, 2017 BLNR meeting, USDA has requested and been removed from this agreement, stating that it will enter into a separate agreement for this project, according to a DLNR representative.
3. Approval of BLNR to allow the DoFAW Administrator to issue permits under subsection H of Exhibit 1 of this document (approved by BLNR at its July 14, 2017 meeting), for "Biocontrol research to control invasive plants and animals..." in Natural Area Reserves. It is unclear whether Lehua island falls within the definition of a Natural Area Reserve. DLNR representatives have stated that Lehua is not a Natural Area Reserve. This statement requires official confirmation. However, this document may be useful for future work regarding pesticide use in state-based conservation projects.
Letter dated July 31, 2017 from John McHugh, Administrator of the state Department of Agriculture Plant Industry Division
Description: Provides appiicable law and process that empowers the Department of Agriculture to conduct this investigation and to suspend the license of a pesticide immediately if necessary to prevent an imminent hazard.
Clean Water Act Application, Approved by Dept. of Health:
1. Dept. of Health, Clean Water Branch
CWB NOI Form M [PDF}
Submission #: 2NB-ZK4A-Z3F2
DLNR requests that all questions about this document be directed solely to DLNR's Lehua project liaison at firstname.lastname@example.org
Applicant Decisionmaker: HI Dept. of Land and Natural Resources
Applicator Name: Island Conservation.
Application under the Clean Water Act for pesticide release into state waters, Class AA Marine.
Only 3 discharge coordinates are provided in the map accompanying the application, despite the potential discharge of pesticide throughout the entire shoreline of Lehua.
Note the statement on p. 8: "The boundary of Pesticide Management Area and Treatment areas are within the terrestrial area of Lehua Island." There is no mention under the response that the PMA and Treatment area also includes nearshore waters.
Issued by Hawaii Department of Health
Date: July 14, 2017
Signed by Virginia Pressler to Suzanne Case.
Confirming that DLNR, DoFAW "is now covered under the NPDES General Permit for point source discharges from the application of pesticides. Letter provided authorization to discharge pesticides into receiving state waters in the Pest Management Area(s) identified in the Notice of Intent, on a condition of compliance with various sections of the Hawaii Administrative Rules as cited therein. Letter also references a Pesticide Discharge Management Plan (PDMP), and empowers the Director of the Dept. of Health to modify the PDMP.
Some Laws Applicable to the Aerial Drop of Rodenticide on Lehua:
1. DLNR/USFW explanation of how the proposed aerial drop meets all of the 13 criteria for defining significant impacts, text excerpted from 2005 Final EA for the 2009 Lehua aerial drop.
2. State Criteria for Project "Significance" (ranked generally in order of relevance to the Lehua aerial rodenticide drop):
According to Hawaii Administrative Rules Section 11-200-12, if any one of the following criteria is triggered, a full Environmental Impact Statement (EIS) is required, and a Finding of No Significant Impact (FONSI) is deemed inappropriate. State law provides a 30 day challenge period to a FONSI, starting July 23, 2017 (HRS 343-7(b)).
The proposed project is not located in an environmentally sensitive area.
The proposed actions will not affect rare, threatened or endangered species or its habitat.
The proposed actions do not involve an irrevocable commitment to loss or destruction of any natural or cultural resource.
The proposed actions will not conflict with the State's long-term environmental policies.
The proposed actions will not involve substantial degradation of environmental quality.
The proposed actions will not substantially adversely affect the economic and social welfare of the community.
The proposed actions will not have cumulative impacts or involve a commitment for larger actions.
The proposed actions will not substantially adversely affect the public health of the community.
The proposed actions will not curtail the range of beneficial uses of the environment.
The proposed actions will not substantially affect air or water quality or ambient noise levels.
The proposed actions will not substantially affect scenic vistas and view planes identified by state plans or studies.
The proposed actions will not involve substantial secondary impacts, such as population changes or effects on public facilities.
The proposed project will not require substantial energy consumption.
3. Federal Laws and Guidelines
Section 2.5 of the Final EA describes the relevant laws, label and permit requirements for the Lehua rodenticide operation.
Clean Water Act (listed in the Final EA under the older prior name of the law, the Water Pollution Control Act of 1948) CWA Link to Subchapter IV: Permits and Licenses
Coastal Zone Management Act of 1972
National Historic Preservation Act of 1966 (NHPA)
The Fish and Wildlife Act of 1956
Executive Order 13112 regarding Invasive Species
Executive Order 13186 Responsibilities of Federal Agencies to Protect Migratory Bird
Executive Order 13089 Coral Reef Protection
Executive Order 12898 Environmental Justice in Minority Populations and Low-Income Populations
US Coast Guard Guidelines
4. Hawaii State Laws and Enabling Statutes
Hawaii Department of Agriculture, Pesticides Branch
Hawaii Revised Statutes (HRS) Chapter 149a - Licensing, sale or distribution of pesticides within Hawaii
Hawaii Administrative Rules (HAR) 466 Pesticides - Defining licensing, application information, restrictions and aerial application permitting
Hawaii Administrative Rules (HAR), Title 13 Department of Land and Natural Resources, Subtitle 5 (Forestry and Wildlife), Part 2 (Wildlife), Chapter 124 (Endangered wildlife), Subchapter 4, Permits
Hawaii Revised Statutes Chapter 344, Environmental Policy Act
Hawaii Revised Statutes (HRS) Chapter 343, Environmental Impact Statements and specifically 343-7 providing for a 30 day challenge to a Finding of No Significant Impact
Hawaii Revised Statutes (HRS) Chapter 341, Environmental Quality Control Act
Hawaii Revised Statutes (HRS) Chapter 128D, Environmental Response Law
Hawaii Revised Statutes (HRS) Chapter 342D-50(a), Water Pollution and HAR Chapter 11-54, Water pollutants
Hawaii Revised Statutes (HRS) 321, Department of Health
Hawaii Revised Statutes (HRS) Title 12, Conservation and Resources, Chapter 183D, Wildlife
Hawaii Revised Statutes (HRS) Chapter 26-15, Department of Land and Natural Resources and Chapter 195D-5 Conservation programs, and 183D-4 Wildlife Sanctuaries "for the purposes of preserving, protecting, conserving, and propogating wildlife..."
1. FIFRA Section 3 label for DITRAC 50-D, diphacinone product, approved June 22, 2017 for improved appeal to Polynesian rats [PDF}
State Department of Agriculture approval is required for a Special Local Needs permit that would allow aerial broadcast in Lehua in some level of contravention to the label directions
Topography map of Lehua Island, showing steepness of terrain that will facilitate downward movement of rodenticide pellets toward the coastal areas [PDF]
DLNR Fishing Regulations [valid as of August 2015]
listing Off Season status of four species through August:
moi, ula, ula papapa, and Kona crab
Violation Reports from previous projects managed by contractor Island Conservation:
Notice to USFWS of Violations Committed in Aerial Drop of Rodenticide on Rat Island, issued by the State of Alaska's Department of Environmental Conservation [PDF]
Violations included applying pesticides in a manner that resulted in significant non-target mortality of gulls, bald eagles and other non-target prey and exceeding the allowable application rates as set forth on the pesticide label.
Report describes high mortality of birds (400 count). Page 14 of the report shows that requirements allowing "takes" (collateral kills) of birds under the Migratory Bird Treaty Act may have been purposely avoided.
Citing irregularities in bait application, inadequate documentation of the basis of decisions, applications did not follow the operational plan.
Correspondence re: a 942-day recommended ban on consumption of fish, following an aerial drop of brodifacoum rodenticide at Wake Island. [PDF}
Read the Final Environmental Assessments: