There is a triple whammy emerging in the wind industry that will require developers to be far more proactive than they have been regarding bird and bat issues. The first whammy is that many of the easy-to-develop sites have already been developed. This means that new wind projects are increasingly being forced into habitats with bird, bat and other environmental issues.
The second whammy is that the U.S. Fish and Wildlife Service (FWS), in concert with the Department of Justice (DOJ), is now actively pursuing cases of non-compliance with wildlife protection laws, especially those such as the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.
Just a few short years ago, wind developers could decide how much time and money to spend on bird and bat issues. However, the recent fines levied by the DOJ against Duke Energy Renewables for Wyoming eagle kills sent a clear reminder that developers need to be proactive in order to avoid similar fines or profit-killing turbine curtailment. As of this writing, the FWS has 18 active investigations of bird kills at wind energy projects around the country, seven of which have been referred to the DOJ for prosecution.
The third and final whammy is that the list of threatened and endangered species covered under the Endangered Species Act (ESA) may soon be expanded to cover an additional 757 species.
Of the three changes taking place, the expanded coverage under the ESA is the one that will have the longest-lasting impact on wind power. To be clear, many of these 757 species are aquatic organisms and will rarely, if ever, be impacted by wind power development. However, two bird species pending approval, the Greater Sage-Grouse (proposed endangered) and the Lesser Prairie-Chicken (proposed threatened), are rangeland birds found in 11 western states with huge potential for wind power. Protecting these two species alone under the ESA would greatly impact wind power and many other energy and agriculture interests in the West. Also, in October 2013, the FWS put forward a proposal to have the Northern Long-Eared Bat covered as endangered under the ESA. If approved for listing, the Northern Long-Eared Bat would join the Indiana Bat as a species that has already shown the ability to cause costly project delays or forfeiture.
The concerns for these birds and bats are real, as multiple environmental factors are contributing to their rapid decline and to the possibility of their extinction. In the 1800s, there were an estimated 16 million Greater Sage-Grouse in the West. But in the intervening decades, their population has declined to only 10% of its original size due to a succession of land use practices that have degraded their sagebrush steppe ecosystem. The Sage-Grouse Research Collaborative was formed in 2010 by the National Wind Coordinating Committee (NWCC) to examine the potential impacts of wind energy development on the bird species. Similarly, the Lesser Prairie-Chicken population has been in a free fall for more than 100 years. As with the Greater Sage-Grouse, the NWCC has published a study entitled “Effects of Wind Power Development on the Population Biology of Greater Prairie-Chickens in Kansas,” which describes the key findings from a seven-year research project.
According to federal biologists, wind farms in 10 states have killed a minimum of 85 eagles since 1997, with most deaths occurring between 2008 and 2012. Golden eagles appear to be more vulnerable than bald eagles, with 79 of the 85 being golden eagles. Wind farms in two states, California and Wyoming, were responsible for 58 of the 85 deaths, followed by facilities in Oregon, New Mexico, Colorado, Washington, Utah, Texas, Maryland and Iowa. In a move that may appear to be poorly timed on the heels of these revelations, in December 2013, the Obama administration announced it would allow companies that have been granted an incidental take permit (ITP) to kill, harm or harass (or, “take,” using the ESA vernacular) eagles for up to 30 years.
This extremely controversial change to the ITP process – previously, an ITP was good for only five years – was the U.S. Department of the Interior’s apparent attempt to have the ITP permit match the lifespan of a typical wind project.
However, on the heels of the FWS eagle/wind power mortality data, program changes were perceived as an ill-timed “get out of jail free” card for wind power. For example, this extension to 30 years applies only to projects that have gone through the arduous process of acquiring an ITP in the first place. Additionally, the ITP stipulates how many eagles a permitted project can take, and this number cannot be exceeded and must be reviewed every five years. Lastly, the fees for this extended ITP have gone up dramatically – from $1,000 to $36,000, as well as $2,600 for each five-year period – and the proceeds are applied to eagle protection and conservation activities meant to offset the permitted take.
So, rather than being a carte blanche for any developer to kill all the eagles it wants for the life of a project, it is an expensive concession afforded to only those projects that have qualified in the first place for an ITP and only if they are in complete compliance with their take permit. Nevertheless, conservation groups, such as the National Audubon Society, vowed to challenge the rule, arguing it represents the government’s sanction of the killing of bald and golden eagles. “Instead of balancing the need for conservation and renewable energy, Interior wrote the wind industry a blank check,” Audubon President and CEO David Yarnold said at the time. “It’s outrageous that the government is sanctioning the killing of America’s symbol.”
Embrace the tiers
At all project sites, wind developers are encouraged to follow the FWS’ five-tier voluntary program for land-based wind energy projects. These guidelines contain FWS recommendations on best practices to avoid, minimize and offset the effects of wind development on fish, wildlife and their habitats.
- Tier 1 entails landscape-scale screening of possible project sites, with special attention given to habitats of any species of special concern.
- Tier 2 is a more detailed site characterization of potential project sites, with special attention given to species of concern, habitat fragmentation, plant communities, critical congregation areas, and general information about the size and location of the project.
- Tier 3 entails detailed field surveys to document birds, bats, wildlife and habitats on the site and to quantify risks to each species.
- Tiers 4 and 5 entail post-construction studies and research into mitigating project impacts.
According to the FWS, “Adherence to the U.S. FWS Tiered Approach and to the FWS Land-Based Wind Power Guidelines is voluntary and does not relieve any individual, company, or agency of the responsibility to comply with laws and regulations. However, if a violation occurs, the Service can consider a developer’s documented efforts to communicate with the FWS and adhere to the guidelines.”
When it comes to proactive management of bird and bat issues at wind farms, developers are advised to conduct all requested pre-construction site assessment (Tiers 1-3) and all post-construction monitoring (Tiers 4-5) and to report any bird or bat fatalities to the FWS, as required by law. Regarding site assessment, it is particularly important to conduct the Tiers 1-3 assessments at each project site. These data are crucial, as they inform a developer to any bird or bat issues that may arise during the operation phase of the project.
To ensure that the best field assessments are conducted, it is vital to hire certified ecologists who know all potential species, especially the endangered species and the laws protecting them. It is important to sample intensively in the event the project size changes, which often occurs. In this way, the studies conducted will be valid regardless of changes to turbine layout. Post-construction monitoring is also critical, in that it tells a developer whether bird and bat mortalities are in line with expectations that were established during the pre-construction assessment phase. w
Industry At Large: Avian Mitigation
Feds Step Up Avian Enforcement: Will You Be Ready?
By Richard Harris Podolsky
The U.S. Fish and Wildlife Service has 18 active investigations of wind farms around the country, seven of which have been referred to the Department of Justice for prosecution.
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