Thanks to Rick Webb of VA Wind for pointing us to a posting at North American Windpower: “FWS Official To Wind Developers: Our Door Is Always Open”
The title of the article might be a bit misleading if you read into it “rubber stamp,” since the gentleman quoted, Al Manville, the FWS’ senior wildlife biologist with the migratory bird division, is simply suggesting that developers “come to us at the get-go, before a site has been selected [and] before a landowner agreement has been signed” because “unfortunately, right now in many cases, we find out about the development of a project through a news release or something on the evening news when we have not been consulted whatsoever, and that’s frustrating.” (This seems particularly important to us in the case of projects in sensitive areas, especially those which are inhabited by, or harboring migrating endangered species.)
Mr. Manville further notes that often, particularly when dealing with wind business “start-up” developers, “by the time problems are unveiled in post-construction monitoring, they’ve sold the facility.”
Of course, with wildlife standing in the way of profits, many in the wind business do not support the USFWS recommendations Mr. Manville discussed, with the American Wind Energy Association taking the lead to criticize the USFWS offering. The AWEA seems quite happy with the Wind Turbine Guidelines Advisory Committee recommendations made last year, presumably because many favorable to the wind business participated in creating the WTGAC guidelines.
Mr. Manville suggests that the USFWS will utilize the WTGAC guidelines as a “baseline” but have no obligation under their charter to follow them. Mr. Manville finds the AWEA “line in the sand” mentality “unconstructive” and recommends they come to the table to discuss how to remedy the differences. But, I suggest it might be a gap too wide to bridge, especially when one group is driven by money and the other driven to protect the environment. For example, in this situation, as the article states, the AWEA is concerned site assessments called for by the USFWS will create “unforeseen costs to wind farms’ operating budgets,” while Manville says such assessments are “crucial” to understand industrial wind’s impact on bats and birds. (Of course, it would come as no surprise to me if the Administration stepped in to pressure the USFWS to back off. After all, the election is coming and, realistically, how much can a bat or eagle donate to a campaign fund?)
A key phrase I pulled from the article, in light of the ongoing construction on the Allegheny Front in Mineral County WV and nearby Western Maryland, is this statement from Mr. Manville: “Even though our guidelines are currently voluntary, and even if the final guidelines become voluntary too, there’s still this whole issue that the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act aren’t wishy-washy – those are laws,” Manville says. “If take occurs and you do not have a permit for take, including disturbance, you’re in criminal liability and potential criminal culpability.”
I find this caution particularly relevant to the folks at US WindForce, developer of the Pinnacle project in Mineral County WV, since it appears they have all but ignored earlier recommendations of the USFWS (1) and the WVDNR (2) and, apparently, have no interest in securing an incidental take permit (3) as required by the Endangered Species Act. This seems risky business were they to “take” one of the endangered species which inhabits or migrates through the Allegheny Front since, according to Mr. Manville; they would not be left “off the hook if bird takes are discovered.” This, of course, is not news to the Allegheny Front Alliance, which has raised this issue specific to the Pinnacle project on many occasions. They were also ignored.
On the other side of the ridge, in Garrett County Maryland, our friends at Save Western Maryland have been pushing the increasingly-reluctant Constellation Energy to secure an incidental take permit as well. They’ve even filed suit to insist that what the developer comply with the Endangered Species Act which, early on in the project development phase, Constellation voluntarily committed to do. Of course, that promise was made before Constellation actually built the massive turbines, ironically … at Eagle Rock!
(1) – The USFWS letter re: Pinnacle “identified several species and groups that may be impacted by the construction and operation of the Pinnacle wind power facility in a letter to Ms. Becky Braeutigam dated April 13, 2007. The letter noted that the Federally-listed endangered Indiana bat, the bald eagle, migratory birds (including bald and golden eagles), and unlisted migratory bats may be affected either directly or indirectly by activities associated with the construction and operation of the facility, including: behavioral effects, habitat removal and fragmentation, increased human activity, maintenance of rights-of-way and roads, and collisions with turbine blades, among others.”
The USFWS letter included “comments and recommendations pursuant to the Endangered Species Act of 1973 (ESA), as amended (16 U.S.C. 1531 et seq.), the Bald and Golden Eagle Protection Act (BGEPA) (16 U.S.C. 668 et seq.), and the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.).”
(2) – The WV DNR letter notes that “In addition to the general bird and bat issues associated with wind facilities in West Virginia, there are other species of concern at the Pinnacle site. Species of concern to the WVDNR are the Allegheny woodrat, timber rattlesnake, bald eagle, golden eagle and spotted skunk. All these species are listed as Species of Greatest Conservation Need in the State’s Wildlife Action Plan and all but the spotted skunk are Northeast Regional Species of Concern.” Further, “Data from raptor migration monitoring and golden eagle radio telemetry studies suggest the Pinnacle project is located along a significant migration corridor for eagles. Golden eagles may also frequent the site in winter as there are records from nearby NewCreek Mountain.”
(3) – “Incidental take permits are required when non-Federal activities will result in take of threatened or endangered species. A habitat conservation plan or “HCP” must accompany an application for an incidental take permit. The habitat conservation plan associated with the permit ensures that the effects of the authorized incidental take are adequately minimized and mitigated.”