Since 2003, with the discovery of significant bat kills at the Mountaineer wind energy facility sited on a forested ridgeline in West Virginia, the wind industry has been battling the issue of how best to predict and site wind facilities to avoid, or minimize the problem. High bat mortality has since been reported at project sites worldwide, particularly involving migratory species, prompting concerns of cumulative effects on bat populations.

World renown bat expert, Dr. Thomas H. Kunz, and others, in their peer-reviewed paper entitled "Ecological impacts of wind energy development on bats", detailed the significant risk that industrial-scale wind turbines pose for migratory and local bat populations in the Mid-Atlantic Highlands region of the United States. The authors projected that by 2020, annual bat fatalities at wind energy facilities in this region alone could reach 111,000 bats. They also state that their preliminary projections of cumulative bat fatalities are "likely to be unrealistically low, especially as larger and increasing numbers of wind turbines are installed." 

High bat mortality is not limited to the eastern region of the U.S. Drs. Kunz and Merlin Tuttle raised the red flag in Texas where limited or no studies are underway and researchers in Canada, where barotrauma was first identified, are also trying to quantify the problem. When the devastating bat-killing disease white-nose syndrome - which has now spread to much of the East Coast - is factored into the equation, it's easy to understand why leading bat experts are predicting truly dire consequences unless drastic changes are made in the way that wind power projects are sited and regulated.

With that background, we introduce the law suit filed by Animal Welfare Institute, Mountain Communities for Responsible Energy, and others against Beech Ridge LLC.

At issue is whether the massive Beech Ridge project - consisting of over 120 industrial wind turbines spread out over 23 miles on multiple Appalachian ridges in Greenbrier County, West Virginia - will likely kill, wound, harm, harass, or otherwise "take" any federally endangered Indiana bats during the two decades that the turbines will operate. Discovery taken to date by the plaintiffs' attorneys reveals the scale of risk to bats as follows:

• that Defendants' own consultant - BHE Environmental ("BHE") - has predicted that more than 135,000 bats would be killed by the turbines, through a combination of direct impacts with the turbine blades and barotrauma;

• that such deaths will likely include other "myotis" species - the taxonomic group that includes Indiana bats - including such species that have been captured on the Beech Ridge site and that resemble the Indiana bat and share similar ecological characteristics;

• that other wind power projects built on Appalachian ridges - including the "Mountaineer" facility in West Virginia, which is close geographically to the Beech Ridge project - have had far higher rates of bat mortality than wind power projects located in other parts of the country, and that the available data reflect that Appalachian projects have killed higher percentages of myotis species than elsewhere in the country;

• that hundreds of Indiana bats presently hibernate in caves within ten miles of the project site - including some that are less than seven miles from turbine locations - and that there are no currently operating wind power projects closer to known Indiana bat hibernacula;

• that Indiana bats can and do migrate between summer roosting and foraging habitat much further than the distance between the hibernacula and the project site;

• that there is in fact "suitable" Indiana bat habitat on the project site itself, as confirmed by the parties' site inspection;

• that the 23 miles of Beech Ridge turbines will be physically located between known Indiana bat hibernacula to the south and east of the project and known Indiana summer foraging and roosting habitat to the west and north of the project;

• that Defendants performed no surveys whatsoever regarding Indiana bat - or, for that matter, any other bat - use of the site during the crucial Fall migration period although both the United States Fish and Wildlife Service ("FWS") and WV DNR sent BHE letters urging that such surveys be performed.

Despite these facts, the developer asserted that Indiana bats were unlikely to be killed, injured, or otherwise taken because Indiana bats have never been detected on the project site itself.

But, in fact, pre-trial investigations uncovered that several such surveys were completed in July 2005. The developer now admits a subcontractor collected "ultrasound" data and the acoustic data sat in a file cabinet unanalyzed. Two experts for the Plaintiffs, Drs. Lynn Robbins and Michael Gannon have analyzed these long-hidden files and have determined that Indiana bats were almost certainly present on the site during the survey.

The trial start date is set for Oct 21; Windaction.org will be watching these proceedings closely. This single project, if permitted to proceed, will pose an alarming risk to bats, including Indiana bats. But what sobers us most is that data involving the Indiana bat was never publicly revealed until a civil suit was filed and the right document requests made. There is no excuse for this cover-up by Beech Ridge LLC and its environmental consultant, BHE Environmental Inc., and they shouldn't be allowed to get away with it.

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This week, Cleveland Plain Dealer bird blogger, Jim McCarty, wrote a delightful article on the successes of Audubon's Seabird Restoration Program in nurturing and tracking the return of rare seabirds to Maine's coastal areas. Mr. McCarty is obviously a bird enthusiast who has spent time researching and writing about the risks to migrating birds should a "string of colossal power-producing windmills" be erected in Lake Erie. 

This week he offered an update to his research by reporting on the U.S Fish and Wildlife Service ("USFWS") Advisory Committee now preparing turbine siting guidelines designed to protect birds from wind turbines. He wrote that this action by USFWS "came in response to pressure from environmental conservation groups" including the National Audubon Society and the Cornell Lab of Ornithology and opined that a "bird-friendly boost from the U.S. Fish and Wildlife Service" will convince wind proponents to make necessary concessions in order to protect our feathered friends.

Unfortunately, Mr. McCarty's optimistic explanation for why USFWS established the Advisory Committee reflects a rewrite of history dating back to 2003. Windaction.org warns that he and other wildlife activists not take any solace in the Committee's work for a host of reasons.

A time line of the events as they relate to this Committee may help reveal why skepticism of its work product is warranted.

May, 2003: The US Fish and Wildlife Service released its Guidance on Avoiding and Minimizing Wildlife Impacted from Wind Turbines.  USFWS regional directors were informed that "wind energy facilities can adversely impact wildlife, especially birds and bats, and their habitats. More facilities with larger turbines can lead to cumulative effects that will initiate or contribute to the decline of some wildlife populations." The Service made it clear that the guidelines did not negate or otherwise weaken existing federal laws protecting wildlife. The guidelines called for a minimum of three years of preconstruction studies to assess risk to migrating birds.

January 2006: The wind industry viewed the USFWS Guidelines as "impractical, inappropriately restrictive, and developed without adequate industry input". A letter surfaced, authored by Mark Sinclair of Clean Energy States Alliance, a wind advocacy group, announcing a collaborative process for resolving wind/wildlife conflicts. His letter stated the outcome of this process "may result in a product that is significantly different than the existing USFWS Interim Guidance". Members of the collaborative included USFWS, the American Wind Energy Association - the powerful wind industry trade group - National Audubon Society, Sinclair's Clean Energy States Alliance, and others. The meetings were not publicly noticed, nor were they open to the public. Laurie Jodziewicz, spokeswoman for AWEA, said the point of the group was to "develop guidelines that everyone could agree on." 

Make no mistake. This effort was not triggered by environmental conservation groups. To the contrary, such groups, including National Audubon, were complicit in the industry's effort to weaken our national Guidelines. 

January 31, 2006: The founders of Windaction.org with others sent a letter to Interior Secretary Gale Norton inquiring about the collaborative process and asking whether USFWS intended to "comply with the basic openness and accountability provisions of the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App 2." FACA applies to any committee established or utilized by one or more agencies in the interest of obtaining advice or recommendations for the Federal Government. Its provisions also require that committees be fairly balanced in terms of points of view represented and the function to be performed.

We were rightly concerned that closed-door meetings would simply be an opportunity for the wind industry and its advocates to force revisions of the agency's Guidance in a manner that made turbine siting and operation easier, but detrimental to wildlife.

February 9, 2006: Scheduled first meeting of the Collaborative. Upon receipt of our January 31 letter, the process was canceled.

March 2007: The USFWS announced it would be forming an Advisory Committee based on FACA. The intent of the Committee was to evaluate and develop guidelines for the safe siting of wind energy facilities.

October 2007: The Committee and members list were formally announced. Of the 22 members (including Mark Sinclair) none possessed research expertise or experience involving bat interactions with wind turbines nor expertise in bird impacts especially with respect to effects on migratory birds using the Appalachian mountain ridges in the eastern U.S. Other expert deficiencies were glaring. 

January 17, 2008: Windaction.org and others submitted a letter to Interior Secretary Dirk Kempthorn informing him that the composition of the committee was illegally skewed in favor of wind industry representatives and the selection process ignored leading experts on critical wildlife impacts.

Shortly after, Dr. Clait Braun declined his appointment to the Committee telling Windaction.org that one reason was that the Committee was stacked in favor of wind interests. Others declined participation leaving a few openings. In response to our letter, the Service scrambled to fill the slots with bat "experts".

March 6, 2008: USFWS Career Deputy Director Ken Stansell responded in a proforma letter stating "We believe the selection of the members met the goal of achieving balance" among geographic regions, wildlife interests and industry interests.

January and April, 2009: The first few drafts of the guidelines were released by the Committee for public comment.

May 11, 2009: Windaction.org and others submitted a second letter to Secretary Salizar requesting he immediately suspend work on the committee citing excessive industry influence in preparing the Committee's draft recommendations.

To date, our concerns with the Committee's membership have been ignored.

Scientists have written to USFWS expressing concern with the draft guidelines including Dr. Shawn Smallwood, a prominent biologist in the area of impacts of wind turbines on avian life. Those familiar with the history of the Committee and the 'agendas' of its individual members have little faith that its work product will serve any value in protecting vulnerable wildlife resources - a job we would have thought to be the highest priority for the USFWS.

Windaction.org encourages greater Congressional oversight by the House Natural Resources Committee. Some States are being more proactive than the Feds. For instance, Mr. McCarty and other bird enthusiasts may wish to look to New York State for its guidance released in January 2009.

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