This month, Reuters reported that the Obama administration is working on a plan that will permit wind developers to kill endangered whooping cranes who fly in the path of the turbine blades.
The formal language of the Administration is less pointed but the impact the same.
The U.S. Fish and Wildlife Service intends to prepare an Environmental Impact Statement (EIS) on a proposed application for an Incidental Take Permit (ITP) issued under Section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act).
If approved, wind developers will be permitted to 'take' an unspecified number of endangered species including the whooping crane. 'Take' under the Endangered Species Act, is defined as the injuring or killing of endangered species.
A bird at risk
Whooping cranes are rare birds that occur only in North America. The July 2010 total wild population was estimated at 383 with only one self-sustaining flock, the Aransas-Wood Buffalo National Park population, numbering just 283 individuals. Twice yearly, whooping cranes undertake their 5000-mile migration journey between their breeding ground in northwest Canada to their wintering area on the Texas coast. The bird's 200-mile wide flyover area is well defined crossing through Alberta, Montana, North Dakota, South Dakota, Nebraska, Kansas, Colorado, Oklahoma, New Mexico, and Texas. Ninety-four percent of all observations of whooping cranes occur in this area.
Wind farms have the potential to directly kill whooping cranes either from the turbines themselves or associated construction of power lines. The U.S. Fish and Wildlife Service estimates that as many as 40,000 turbines could be built in the 200-mile wide corridor. Current estimates put the turbine count in the path at 2,705 turbines (40 operational wind plants). A single death of a whooping crane by a turbine blade will impact the entire population. Whooping cranes that do not perish from direct collisions with the blades could suffer potentially irreparable harm through the loss of hundreds of square miles of vital migration stopover habitat.
According to a 2009 government report, a rise in mortality rate of just three percent annually would doom the species. As it is, loss of genetic diversity will continue unless the wild population is able to grow to approximately 1,000 individuals, a goal that is likely improbable given current rates of land development in critical habitat areas.
The majority of wind farms proposed and built in the U.S. do not require federal permits so there's no nexus for wind developers to consult with the U.S. Fish and Wildlife Service prior to siting projects. Still, wind energy facilities must lawfully abide by the Endangered Species Act, despite their favored status under the Obama administration.
We encourage readers to see Judge Roger Titus' landmark opinion involving the Beech Ridge wind energy project (December 2009) where he recounts some of the legal history of the Act including the 1978 Supreme Court decision that halted construction of the Tellico Dam  in Tennessee. Titus cites this from the 1978 decision: “examination of the language, history, and structure of the legislation under review here indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities,” (id. at 174) and that Congress’ purpose “was to halt and reverse the trend toward species extinction, whatever the cost,” (id. at 184). The value of endangered species was found to be "incalculable."
Few developers bother to file for incidental take permits even in cases where the potential of injuring or killing endangered species is high. And why bother? Despite known cases of endangered and threatened species killed at wind plants, we know of no cases where penalties have been imposed. In fact, the threat of enforcement was hardly even noticed until the Beech Ridge decision. In 1978 it was the Department of the Interior who filed the Tellico Dam case. Today, U.S. Secretary of the Interior, Ken Salazar, sides with the American Wind Energy Association (AWEA) in proclaiming that wind power is compatible with existing federal laws protecting wildlife and their habitat.
With all due respect, Secretary Salazar is wrong.
The fact is we have federal laws and decades of legal precedence directed at protecting endangered species that now create uncomfortable obstacles to nebulous energy goals (20% wind power by 2030) and shifting tax policy that promote job creation and renewable energy.
A Safe Harbor plan
The U.S. Fish and Wildlife Service is acting at the request of the Wind Energy Whooping Crane Action Group, a collection of 19 of the largest wind energy developers .
The incidental take permit sought by the Group, if granted, will sweep away decades of environmental policies meant to protect whooping cranes and their limited habitat. Under the new plan, wildlife impacts that would be deemed unacceptable in the context of different kinds of projects will be excused. Other birds included in the plan are the lesser prairie chicken, Sprague’s pipit, the mountain plover, piping plover and interior least tern. In exchange, applicants must agree to develop and abide by a habitat conservation plan aimed at minimizing impacts.
For nearly a decade, the wind industry has downplayed the impact of turbines on birds by pointing to house cats and buildings as the real danger but wind farms are not as benign as claimed. The Beech Ridge decision was a wake-up call for both developers and the Department of the Interior. Hiding violations from the public will be harder moving forward and as more turbines are erected.
Offering safe harbor to developers is inherently wrong. Especially when the proposed habitat conservation plan will be developed by the wind industry and overseen by an administration that has consistently advocated for wind. Instead, Fish and Wildlife Service scientists and field offices should be allowed to do their jobs and enforce the laws we have.
The next step in the process is for the Fish and Wildlife Service to receive public comment on the plan. The Service published a notice in the Federal Register on July 14, 2011 initiating a 90-day comment period. For information on how and where to submit comments, visit the Service’s web site to download a copy of the notice.
The Endangered Species Act is one of the few defenses whooping cranes have against irreversible decline and extinction. Please consider making your voice heard on this critical matter.
 The Tellico Dam was later completed after Congress exempted the project from the Endangered Species Act.
 The Group includes Acciona North America; Allete; Alternity; BP Renewables; Clipper Wind Energy; CPV Renewable Energy Company, LLC; EnXco; Duke Wind Energy; Horizon Wind Energy; Iberdrola Renewables; Infinity; MAP Royalty; NextEra Energy Resources; Renewable Energy Systems Americas; Terra-Gen; Trade Wind Energy; Element Power; Own Energy; and Wind Capital Group.
Editor's note: A separate and developing story involving Bald Eagles and the Goodhue Wind project approved in Minnesota provides important perspective.
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Windaction.org joined other environmental interest groups and individuals in submitting a sixty-day notice of federal law violations to the Department of Interior in connection with the proposed Cape Wind offshore wind energy facility. Laws cited include the Endangered Species Act (ESA) and the Outer Continental Shelf Lands Act.
The notice and supporting appendices were prepared by attorneys Jessica Almy and Eric R. Glitzenstein of Meyer Glitzenstein & Crystal, the Washington D.C. public interest law firm representing the groups.
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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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On July 10, George Wallace of the American Bird Conservancy provided testimony before the House Subcommittee on Fisheries, Wildlife and Oceans where he stated “The wind industry is prepared to increase the number of turbines 30 fold over the next 20 years ... at the current estimated mortality rate, the wind industry will be killing 900,000 to 1.8 million birds per year. While this number is a relatively small percentage of the total number of birds estimated to live in North America, many of the bird species being killed are already declining for other reasons, and losses of more than a million birds per year would exacerbate these declines.”
Two recent news articles corroborate Dr. Wallace’s concerns. The first details the risks of wind development on the endangered Whooping Crane, of which only 525 birds exist on the planet.
Yet, according to Laurie Jodziewicz, AWEA's manager of siting policy, the wind industry will "continue to grow in the crane's migration corridor and should not be subject to regulations that don't apply to other industries."
The second article states, in general, avian populations are more at risk today than ever. “So drastically have overall migratory bird populations fallen that one scientist who compared weather satellite images over time, found that migrating bird flocks were 50 percent smaller than they were several years ago.”
The wind industry perpetuates claims that their experts have resolved how best to site the turbines where they will do the least damage. Talk is cheap, and this claim is unsubstantiated. The fact remains that avian and bat species populations are at risk from wind blades, towers and transmission infrastructure. The industry advocates the dangerous strategy of addressing mortality problems after the wind projects are operational, but what then?
Windaction.org calls on the U.S. Fish and Wildlife Agency, the Canadian Wildlife Service, and the respective State and Provincial agencies to stop acceding to wind developers and vigorously protect the resources under their watch.
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