By, Richard Harris Podolsky, PhD
FWS currently 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.
Is the Low Hanging-Fruit Gone?
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. Second, the US Fish and Wildlife Service (FWS), in concert with the Department of Justice (DOJ), is now actively pursuing cases of non-compliance with wildlife protection law, especially those such as the Bald and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Protection Act (MBTA). 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 the DOJ has levied against Duke Renewable for Wyoming eagle kills sent a clear reminder that developers need to be proactive to avoid similar fines or profit-killing turbine curtailment. As of this writing, FWS currently 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.
List of Endangered Species is Expanding
Of these three changes, 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 as such 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 of 2013, FWS proposedl that the Northern Long-Eared Bat be covered as endangered under the ESA. If approved for listing, the Northern Long-Eared Bat would join the Indiana Bat as a species capable of causing costly project delays or forfeiture.
Multiple environmental factors are contributing to these species’ rapid decline and possible 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 percent of its original size due to a succession of land-use practices that have degraded their sagebrush steppe ecosystem. The National Wind Coordinating Committee (NWCC) formed the Sage-Grouse Research Collaborative (SGC) in 2010 to examine the potential impacts of wind energy development on sage grouse. Similarly, the Lesser Prairie Chicken population has been in free-fall for over 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” that describes the key findings from a seven-year research project.
Taking Eagles – But Only With a Permit
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 deaths 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 who have been granted an Incidental Take Permit (ITP) to kill, harm or harass (“take” in the vernacular of the ESA) eagles for up to 30 years.
This extremely controversial change to the ITP process (previously an ITP was only good for 5 years) was the Interior Department’s attempt (apparently) to have the ITP permit match the lifespan of a typical wind project. But on the heels of the FWS eagle/wind power mortality data, the public perceived it as an ill-timed get-out-of-jail-free card for wind power. However when the sulfur settled, there were three devils found lurking in the details. First, this extension to 30 years only applies to projects that have gone through the arduous process of acquiring an ITP in the first place. Second, the ITP stipulates how many eagles a permitted project can “take”, and this number cannot be exceeded and must be reviewed every 5 years. Third, the fees for this extended ITP have gone up dramatically, 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 they want for the life of a project, it is rather an expensive concession afforded to only those projects that have qualified for an ITP in the first place 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 and Avoid the Tears
At all project sites, wind developers are encouraged to follow FWS’s 5-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 to habitats of any species of special concern.
- Tier 2 is a more detailed site characterization of potential project sites, with special attention 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.
- Tier 4 and 5 entail post-construction studies and research into mitigating project impacts.
According to US FWS, “Adherence to the US 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 Service and adhere to the Guidelines.”
Bird and Bat Management Tools
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 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 regarding any bird or bat issues that may arise during the operation phase of the project.
To assure that utilities conduct the best field assessments, 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, as often occurs. This approach helps ensure the studies 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 established during the pre-construction assessment phase. Finally, regarding compliance, consider using AvianAudit, a new data-management tool for cataloguing and reporting bird mortalities, strikes and nesting. Developed by GeoEngineers, AvianAudit helps a wind site manager capture and track bird strike incidents in the field from any mobile device. In addition to facilitating data capture, but it also enables the user to export mortality data into FWS reporting forms that can subsequently be sent directly to FWS.
Dr. Richard Harris Podolsky is a certified senior ecologist and CEO of Avian Systems, a biological consulting firm that has conducted bird and bat surveys at over 70 wind farms from Maine to Hawaii. Dr. Podolsky specializes in endangered species biology and as such is familiar with all aspects of compliance with the Endangered Species Act. Podolsky can be reached at: firstname.lastname@example.org or 207-475-5555.