Wind project developer seeks to avoid wildlife protection measures

The Virginia State Corporation Commission is hearing testimony on the proposed Highland New Wind project on Tuesday, July 17, at its Richmond office building. If the Highland County project goes forward, it will be Virginia’s first utility-scale wind project.

Highland New Wind is testifying that it cannot afford wildlife protections recommended by wildlife agencies, conservation groups, and citizen respondents in the case now before the Virginia State Corporation Commission.

Despite the prospects of government incentives, which would cover the majority of development costs, it remains a marginal project, promising negligible benefits and huge environmental costs.

“This project is simply a bad investment for the wind industry and a bad precedent for the Commonwealth,” says Rick Webb, co-manager of Virginia Wind and co-author of a National Academies report on environmental impacts of wind projects. “If it goes forward, it can only damage the concept of green energy.”

The proposed Highland New Wind project would involve twenty 400-foot turbines on two ridges in the Laurel Fork area of Virginia’s least populated county, an area noted for its high mountain scenery and wildlife abundance. Limited studies conducted by the developer indicate that the project site may have the highest numbers of migrating birds and bats among all wind project sites in the eastern United States.

Multiple agencies and organizations have presented testimony about the proposed project to the State Corporation Commission.

The U.S. Fish and Wildlife Service : recommends that wind energy developers avoid wildlife concentration areas, and that development only occur after multi-year and multi-season study of wildlife use. Highland New Wind must obtain a Habitat Conservation Plan required by the Endangered Species Act.

The Virginia Department of Game and Inland Fisheries : indicates that wildlife mortality at the proposed site may exceed that of all other sites in the eastern U.S. and that without effective monitoring and mitigation measures, the project presents “unacceptable risks.” Continuous monitoring for the life of the project should be required, with project curtailment when mortality thresholds are exceeded.

The Nature Conservancy : provides estimates that as many as 64,000 bats will be killed each year given the number of wind turbines projected for construction by 2020 in the Mid-Atlantic Highlands. Unless solutions are found, the proposed Highland New Wind project will contribute to this “intolerable situation.”

Highland Citizens : argues that Highland New Wind “has tried to provide as little information as possible in an effort to manipulate and limit the review process.”

Virginia Wind : estimates that Highland New Wind will provide less than one-tenth of one-percent of the Commonwealth’s annual electricity needs, and even that small amount will not be available during the peak summer demand period when commonly the wind is not blowing.

This project clearly tests the limits of public support for wind development.

Virginia Wind takes the position that meaningful steps must be taken to solve our energy problem and address air pollution and climate change. The Highland New Wind project is a step in the wrong direction.

Court Prevents Central Appalachian Wind Project From Proceeding Without Federal Endangered Species Act Permit

Washington, D.C. – Federal district court Judge Roger Titus of the U.S. District Court for the District of Maryland has issued a comprehensive ruling that an industrial wind energy facility in Greenbrier County, West Virginia will kill and injure endangered Indiana bats, in violation of the Endangered Species Act (ESA). The court concluded that “the development of wind energy can and should be encouraged, but wind turbines must be good neighbors.” This is the first federal court ruling in the country finding a wind power project in violation of federal environmental law, and it highlights the critical importance of balancing the creation of renewable energy and protection of endangered wildlife species under the ESA.

The court recognized that “the two vital federal policies at issue in this case are not necessarily in conflict” because defendants Invenergy and Beech Ridge Energy could have sought a permit under the ESA which would “allow their project to proceed in harmony with the goal of avoidance of harm to endangered species.” The ESA provides for the issuance of permits that authorize projects in endangered species habitat, but only when the United States Fish and Wildlife Service attaches strict and enforceable conditions designed to minimize the impact on imperiled species.

In finding a violation of the ESA, the court held, based on extensive expert testimony and other evidence, “that, like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded, or killed imminently by the Beech Ridge Project in violation of … the ESA, during the spring, summer, and fall.” Accordingly, the court held “that the only avenue available to Defendants to resolve the self-imposed plight in which they now find themselves is to do belatedly that which they should have done long ago: apply for a permit” under the ESA.

In holding that the project is “certain to imminently harm, kill, or wound Indiana bats,” the court relied heavily on testimony by leading bat biologists Dr. Thomas Kunz of Boston University, Dr. Michael Gannon of Penn State, and Dr. Lynn Robbins of Missouri State University. Dr. Kunz – whom the court has described as the “leading expert in the field of bat ecology in the United States” – testified that the project will not only kill endangered Indiana bats, but may kill more than a quarter of a million bats overall, including species already being decimated by threats such as the devastating disease known as white-nose syndrome.

Plaintiffs in the case – the Animal Welfare Institute, Mountain Communities for Responsible Energy, and caving enthusiast Dave Cowan – applauded the court’s ruling.

“As this nation embraces renewable energy which all of the plaintiffs support, it is critical that such projects be undertaken consistent with federal law to ensure that our rush to develop a green energy future doesn’t jeopardize imperiled species,” said D.J. Schubert, a wildlife biologist with the Animal Welfare Institute. “In this decision, the court sends an unequivocal message that the ‘green energy’ label does not exempt wind power from compliance with federal laws protecting wildlife and the environment,” added William Eubanks, an attorney with Meyer, Glitzenstein & Crystal which represented plaintiffs in this case. “Indeed, other wind power companies are complying with the ESA permitting process, the Congressionally mandated vehicle for minimizing harm to listed species.”

The court enjoined the construction of any additional wind turbines and prohibited the operation of all existing turbines between April 1 and November 15 until an Incidental Take Permit is obtained. Operating the existing turbines between November 16 and March 31 is not likely to impact Indiana bats since they hibernate during the winter months. Per an earlier agreement between the parties and the court, 40 of the 122 planned wind turbines have been erected to date, and those are generally farthest from known winter populations of Indiana bats.

“We do not oppose responsible development of renewable energy projects be they wind farms, solar farms, or tidal energy projects but there must be independent federal regulation of these project to avoid unintentional consequences to protected species,” said John Stroud, spokesperson for Mountain Communities for Responsible Energy. “This court has made clear to Beech Ridge and its parent company that the ESA has teeth, that the Indiana bat will be harmed by this project, and that these companies don’t get a free pass to violate the ESA,” said Dave Cowan, an avid spelunker who has explored many of West Virginia’s caves.


Highland County Supervisors Liable for Non-compliance with Endangered Species Act

Wood Rogers PLC, the Roanoke law firm representing Highland Citizens, has advised the Highland County Board of Supervisors that allowing Highland New Wind Development to proceed without the Incidental Take Permit (ITP) required by the Endangered Species Act will place the county in legal jeopardy. The Highland supervisors have ignored previous warnings on the advice of the county’s attorney.

The new warning follows the recent federal court ruling requiring Chicago-based Invenergy Inc., to stop further construction of its Beech Ridge Project in nearby Greenbrier County, WV and to dramatically curtail operation of 40 completed turbines until the required ITP permit is obtained.

As outlined in the Woods Rogers letter, the issues related to Highland New Wind Development, which has started site preparation without an ITP, are even-more compelling.

Whereas the Beech Ridge project threatens one endangered bat species, the Highland project threatens two endangered bat species and both bald and golden eagles. Moreover, unlike the the Beech Ridge case where only the developer was responsible for compliance, in the Highland case, both the developer and the authorizing local officials are responsible for compliance.

Both the US Fish and Wildlife Service and the Virginia Department of Game and Inland Fisheries (VDGIF) have advised Highland New Wind to obtain an ITP before proceeding. Based on the importance of the site as a migratory pathway for birds and bats, the VDGIF contended in testimony presented to the State Corporation Commission that the project may result in the highest mortality rates for any wind energy project in the eastern U.S.

Wind Turbines on Appalachian Ridges: Rising Concern for the Eastern Golden Eagle

Many raptors, and golden eagles (Aquila chrysaetos) in particular, are susceptible to collisions with turbine blades.  Recent research has shown that the population of golden eagles in eastern North America is small, and that a large proportion of these birds both travel through and overwinter in the Appalachian Mountains.  Although the golden eagle is rare in the eastern U.S., recent research has shown that wintering golden eagles often concentrate on forested ridges in the central Appalachian region – the same ridges targeted for industrial wind energy projects.

Massive Bird Kill at West Virginia Wind Farm Highlights National Issue

With the deaths of nearly 500 birds at the Laurel Mountain wind facility earlier this month, three of the four wind farms operating in West Virginia have now experienced large bird fatality events, according to American Bird Conservancy (ABC), the nation’s leading bird conservation organization.

“Wind energy has the potential to be a green energy source, but the industry still needs to embrace simple, bird-smart principles that would dramatically reduce incidents across the country, such as those that have occurred in West Virginia,” said Kelly Fuller, ABC’s Wind Campaign Coordinator.

There were three critical circumstances that tragically aligned in each of the three West Virginia events to kill these birds. Each occurred during bird migration season, during low visibility weather conditions, and with the addition of a deadly triggering element – an artificial light source. Steady-burning lights have been shown to attract and disorient birds, particularly night-migrating songbirds that navigate by starlight, and especially during nights where visibility is low such as in fog or inclement weather. Circling birds collide with structures or each other, or drop to the ground from exhaustion.

At the Laurel Mountain facility in the Allegheny Mountains, almost 500 birds were reportedly killed after lights were left on at an electrical substation associated with the wind project. The deaths are said to have occurred not from collisions with the wind turbines themselves, but from a combination of collisions with the substation and apparent exhaustion as birds caught in the light’s glare circled in mass confusion.

On the evening of September 24 this year at the Mount Storm facility in the Allegheny Mountains, 59 birds and two bats were killed. Thirty of the dead birds were found near a single wind turbine that was reported to have had internal lighting left on overnight. This incident stands in stark contrast to industry assertions that just two birds per year are killed on average by each turbine. Data from Altamont Pass, California wind farms – the most studied in the nation – suggest that over 2,000 Golden Eagles alone have been killed there.

On May 23, 2003 at the Mountaineer wind farm in the Allegheny Mountains, at least 33 birds were killed. Some of the deaths were attributed to collisions with wind turbines and some to collisions with a substation.

“The good news is that it shouldn’t be hard to make changes that will keep these sorts of unnecessary deaths from happening again, but it’s disturbing that they happened at all. It has long been known that many birds navigate by the stars at night, that they normally fly lower during bad weather conditions, and that artificial light can draw them off course and lead to fatal collision events. That’s why minimizing outdoor lighting at wind facilities is a well-known operating standard. And yet lights were left on at these sites resulting in these unfortunate deaths. This reinforces the need to have mandatory federal operational standards as opposed to the optional, voluntary guidelines that are currently under discussion,” Fuller said.

A fourth wind farm in West Virginia, the Beech Ridge Wind Energy Project in Greenbrier County, has not experienced large mortality events, likely because it is currently prohibited by a court order from operating during nighttime between April 1 and November 15.

“Some West Virginia conservation groups have suggested that other wind farms in the state should shut down their wind turbines at certain times and seasons to protect birds. Given the recurring bird-kill problems, that idea needs to be seriously considered, at least during migration season on nights where low visibility is predicted. A wind farm in Texas is doing just that, so it is possible.” said Fuller.


More than 573,000 birds are killed by the country’s wind farms each year, including 83,000 hunting birds such as hawks, falcons and eagles, according to an estimate published in March in the peer-reviewed Wildlife Society Bulletin.
Getting precise figures is impossible because many companies aren’t required to disclose how many birds they kill. And when they do, experts say, the data can be unreliable.
When companies voluntarily report deaths, the Obama administration in many cases refuses to make the information public, saying it belongs to the energy companies or that revealing it would expose trade secrets or implicate ongoing enforcement investigations.
Nearly all the birds being killed are protected under federal environmental laws, which prosecutors have used to generate tens of millions of dollars in fines and settlements from businesses, including oil and gas companies, over the past five years. . . .
But the administration has never fined or prosecuted a wind-energy company, even those that flout the law repeatedly. . . .
By not enforcing the law, the administration provides little incentive for companies to build wind farms where there are fewer birds. And while companies already operating turbines are supposed to avoid killing birds, in reality there’s little they can do once the windmills are spinning. . . .
Meanwhile, the Obama administration has proposed a rule that would give wind-energy companies potentially decades of shelter from prosecution for killing eagles. The regulation is currently under review at the White House.
The proposal, made at the urging of the wind-energy industry, would allow companies to apply for 30-year permits to kill a set number of bald or golden eagles. Previously, companies were only eligible for five-year permits. . . .
That’s because without a long-term authorization to kill eagles, investors are less likely to finance an industry that’s violating the law.

Estimates of Bird Mortality Due to Collision With Wind Turbines in the U.S.

Research published in the December 2013 issue of the journal, Biological Conservation, indicates that bird mortality from collisions with wind turbines is on the rise as more and taller turbines are built. The researchers estimate that a mean of 234,000 birds are killed annually by collisions with the newer monopole turbines in the contiguous U.S., and they predict that 1.4 million birds per year will be killed if enough turbines are built to meet the Department of Energy’s goal of producing 20% of U.S. electricity with wind power by 2013. They also found that widely spaced turbines in open areas have lower mortality rates than turbines along mountain ridgelines.

The authors also advocate requiring public availability of wind industry bird mortality reports.

First Ever Criminal Enforcement of the Migratory Bird Treaty Act for Bird Fatalities at Wind Projects

Duke Energy Renewable has plead guilty to violation of the Migratory Bird Treaty Act in connection with the deaths of 14 golden eagles and 149 other protected birds at two wind projects in Wyoming. The company was sentenced to pay fines and costs totaling $1 million, to apply for an Eagle Take Permit, and to implement a plan to protect golden eagles at its four Wyoming wind projects. This precedent has significant implications for the eastern U.S., where the golden eagle population is much smaller and high bird mortality has been documented at wind projects on Appalachian ridges.