From the Cumberland (Maryland) Times-News

March 24, 2010

Protection of endangered species DNR’s responsibility

AG: Agency has final say during wind project permitting process

Kevin Spradlin
Cumberland Times-News

— CUMBERLAND — A Maryland attorney general’s opinion that lays the protection of endangered species that could be affected by wind energy projects at the feet of the state Department of Natural Resources comes in response to a District 1 legislative delegation’s inquiry.

Robert N. McDonald, chief counsel for opinions and advice within the Maryland Office of the Attorney General, issued an advisory opinion Tuesday that said even the Public Service Commission, which is the final granting authority for permits under the streamlined process for industrial wind energy projects under 70 megawatts, must adhere to any position taken by DNR on the safety of endangered species.

Frostburg resident and former state senator John Bambacus requested the local legislators to seek the state AG’s opinion, which is nonbinding. Bambacus made the request after a federal judge halted a Greenbrier County, W.Va., project concluding the project would kill and injure Indiana bats, a federally protected species. The case was the first in the nation to prevent, at least temporarily, an industrial wind energy project on environmental grounds.

“The developer of the project had not obtained a permit allowing the incidental taking of an endangered species,” McDonald said.

McDonald opined that the state’s endangered species law is similar, but not identical, to the federal law.

“It looks like the AG has determined that the state (law) takes precedence over the PSC’s decision,” Bambacus said in a prepared statement, “in which case, if there are any endangered species on proposed industrial wind turbine sites, they can be challenged.”

“It also seems to say that a lawsuit brought against a Maryland project would probably have the same result as in West Virginia,” Bambacus said.

Bambacus has chastised DNR Secretary John Griffin in multiple letters for what Bambacus perceives as a lack of effort to protect wildlife and residents. He said Griffin has been begging off “the endangered species issue” but the federal court decision in December put the agency “in a box.”

“The PSC is to obtain the views of DNR as to the suitability of energy projects,” McDonald said, “including wind projects that satisfy certain criteria, when it decides whether to issue a CPCN (Certificate of Public Convenience and Necessity) for such a project.”

Frank Maisano, energy and environmental media relations specialist and spokesman for the wind energy industry, said the advisory opinion likely won’t impact two existing projects in Garrett County “because we’ve already gone through the process (and) have our permits.”

However, it “certainly is going to put a damper on anybody who is interested in moving forward with a project, should that opinion be the opinion of the state.”

There could be same debate about that. Maisano said the direction of the majority of state legislators and Gov. Martin O’Malley clearly support the development of renewable energy sources.

Kevin Spradlin can be reached at kspradlin@times-news.com.