Bird law complicates Biden’s offshore wind push

Source: By Heather Richards, E&E News reporter • Posted: Monday, June 21, 2021

President Biden’s plan to dramatically expand offshore wind power within a decade could come at a hefty price: the accidental killing of many migratory birds.

Biden has promised to advance 16 offshore wind farms along the northeast Atlantic by 2025 as part of his climate and clean energy jobs plan. The projects represent thousands of turbines constructed over the next decade, with some rising as much as 800 feet in the air off the coast of New York, Massachusetts and Virginia.

Exactly how dangerous those projects will be to birds is still unclear, but many experts are concerned because of the projected scale of the industry. At the same time, uncertainties with federal wildlife law could create new obstacles for industry, some say.

Shawn Smallwood, a California ornithologist and expert in bird mortality from energy infrastructure, said wind farms could be an additional stress for avian species that overcome significant hurdles to survive far from land.

“Wildlife flying over the ocean already face extreme hardships,” Smallwood said.

A wind farm, for example, could place giant balsa wood and fiberglass blades in the path of a rufa red knot shorebird on its path from Argentina to the Canadian Arctic as it stops to feast on horseshoe crabs in the Delaware Bay. Or if offshore wind takes off in the Pacific, a project could disrupt foraging habitats for the feeding grounds of a species of seabird along the coast of California.

“We have been spending a lot of time over the last decade or more trying to understand what the holes are and trying to fill them in,” said David Pereksta, a biologist with the Bureau of Ocean Energy Management — the permitting agency most responsible for evaluating offshore wind projects.

Yet federal researchers and scientists say they are far from fully understanding how turbines may affect birds, even as developers of planned projects outline technical plans to protect and monitor species.

The bird challenge that industry faces as it pushes to expand offshore wind could also be complicated by conservation efforts: The Biden administration plans to restore federal protections for birds rolled back in the Trump years.

Trump’s Interior Department interpreted the Migratory Bird Treaty Act (MBTA) so that it no longer penalized companies for the accidental killing of birds. Last month, the Fish and Wildlife Service announced it will undo the Trump changes, potentially creating a new complication for the agency and the offshore wind industry as it gets off the ground.

Still, many bird advocates say they are forging a peace with the offshore wind industry because of the catastrophic risks of climate change and a push to move away from fossil fuels.

Among birders, scientists and wind advocates, there’s consensus about at least one thing: Lessons from the first fleet of offshore wind farms, even painful ones, may be critical in making sure offshore wind over time kills as few birds as possible.

“The only way, right now, to learn is to put steel in the water,” said Joan Walsh, chair of field ornithology at the Massachusetts Audubon Society.

“Everyone is taking a leap of faith here, honestly,” Walsh said.

Trump, Biden and a 1918 law

The 1918 MBTA has had an eventful few years, and more changes are coming.

In 2017, former President Trump’s top lawyer at Interior, Daniel Jorjani, wrote a legal opinion finding that the law protecting more than 1,000 migrating bird species didn’t support criminal penalties for industries that unintentionally killed birds.

The opinion answered complaints from the oil and gas sector that the MBTA was sometimes used like a hammer on industry for accidental and unavoidable deaths. But conservationists countered that the Trump administration had filed the law’s teeth, as it could only be used against people or businesses that intentionally harmed birds.

A court struck the Trump-era legal opinion down last year. But in the last days of the Trump administration, FWS leadership responded with a new rule to codify the contentious interpretation.

The Biden administration has begun the process of undoing the Trump proposed rule and reinstating penalties for the “incidental take” of birds.

That could mean offshore wind projects along the East Coast will be judged according to a slightly tougher legal regime.

Katie Umekubo, a senior attorney at the Natural Resources Defense Council, said historically, the MBTA has been enforced with a carrot and a stick.

Federal wildlife regulators exercise tremendous discretion for when and how they enforce the MBTA. If industries tried to avoid unintentional deaths by careful siting, engaging in mitigation or other good-faith efforts, federal agents were lenient, Umekubo said.

“What the service has done in the past — FWS under both Republican and Democrat administrations — was to try to work with industries,” she said.

Land-based wind has already gone through a back-and-forth with federal wildlife managers on bird impacts.

A decade ago, companies inked a set of best practices with the help of government and conservationists, with many developers following those updated guidelines to reduce bird deaths. Similar work has been done over the years through the Avian Power Line Interaction Committee, an industry, government and conservation collaboration founded in the late 1980s to address whooping cranes electrocuted by power lines. It has since expanded its scope to other avian species.

But industries aren’t necessarily beholden to obey federal wildlife suggestions to avoid bird deaths, as their activities are regulated by state officials or other federal agencies like EPA. For example, FWS also has best practices for oil and gas management that include covering wastewater disposal ponds with netting, but open evaporation pits and waste ponds remain a significant cause of bird mortality every year, according to the agency.

When it comes to the future interpretation of the federal bird law, the Biden administration has hinted it could go further than any of its predecessors, conservationists say. One possibility is that Interior could create an official permitting process, an idea long pushed by conservation groups.

Under such a plan, a permit to “take” a set number of birds would free developers from liabilities when birds die but require a host of protectionary measures from industry in exchange, like research and mitigation. It’s a system used for other bird protective laws, like the Bald and Golden Eagle Protection Act.

Walsh, with Mass Audubon, said she believes this administration will “remake the wheel” on industrial bird impacts under the MBTA, giving the public far more say in how wind developments are authorized and ensuring protections are built into energy project approvals.

Interior declined to say whether the agency may consider an incidental take permitting system under the MBTA.

“The U.S. Fish and Wildlife Service remains committed to working with Treaty partners, states, Tribes, conservation organizations and industry sectors (including offshore wind) to better understand threats and to reduce impacts to birds and other wildlife, including incidental take,” spokesperson Giovanni Rocco said in a statement.

For industry’s part, developers are somewhat wary of an incidental take permitting system.

Laura Morton, senior director of policy and regulatory affairs for offshore wind at the American Clean Power Association, said industry may have “some concerns” about take permits for offshore wind.

For now, she said, the association hasn’t taken a position. Instead, Morton defended the wind industry’s ability to avoid, minimize and mitigate damage to wildlife.

“Offshore wind developers, in consultation with state and federal wildlife agencies, advance measures to limit any potential impacts to avian species as a part of their construction and operations plans approved by BOEM, and these measures have contributed to BOEM’s finding of ‘minor impact’ ratings (little to no potential impacts) with respect to avian species in all environmental review documents to date for offshore wind,” she said.

While it’s true that federal analysis of individual projects’ construction and operations plans have found they would have minor or negligible impacts, federal agencies haven’t been consistent in detailing the potential for offshore wind to harm birds.

FWS’s biological opinion in 2019 of how the Vineyard Wind project off the coast of Massachusetts would affect protected species like the rufa red knot found that as little as 2% of the population may cross through the wind farm during its fall migration.

Earlier this year, with the release of the draft environmental review for the South Fork wind farm proposed off Long Island in New York, BOEM repeatedly estimated the cumulative impacts to birds as minor or negligible, citing the distance that farms would be from shore and the likelihood that fewer birds move that far from land.

But BOEM published a cumulative environmental analysis last year estimating a “moderate” negative effect to bird species from the roughly 2,000 turbines projected to go up over the next decade.

BOEM did not provide comment to explain the discrepancy in response to several requests from E&E News.

The science and the uncertainty

The absence of big offshore wind farms in the United States means there is little information about their potential harm to birds, so scientists are trying to step into the information gap ahead of the expected boom.

For Emma Kelsey, a biologist at the U.S. Geological Survey in California, starting research into which bird species in the Pacific Ocean will be most vulnerable to offshore wind felt like a face-off with “this really big question mark.”

“There’s a lot we don’t know about [seabirds] because they spend the majority of their lives where we can’t see them,” she said. “So what drives their movements, where they feed, where they congregate is a lot harder to understand than, say, for terrestrial bird species.”

Her study, supported by USGS and BOEM and published in Journal of Environmental Management in 2018, aggregated the relative vulnerabilities of more than 80 species that live and feed in waters off the West Coast. It found that defining the risks to birds is unique to time, location and species.

Josh Adams, a research biologist with USGS’s Western Ecological Research Center, gave the example of the California brown pelican.

The large bird — sometimes seen frightening tourists along California piers — hovers over the water and dives for fish. It has a high potential collision risk with turbines because of this behavior — it spends its time looking down, unaware of its surroundings, Adams said.

But 40 miles from shore, the risk of collision for California brown pelicans disappears: They don’t venture out that far.

Meanwhile, the squat Scripps’ murrelet, which dips under the surface and swims after food in waters on the Pacific coast, may have a high displacement vulnerability to an offshore wind farm. Scientists have backed this theory because European researchers have shown Alcids, a bird species in the Alcidae family like puffins, avoiding wind farm areas.

Northern European nations pioneered offshore wind, and they and Great Britain are home to most of the current research into its impact on birds. But because of the wide differences between the birds and their environments in Europe and the Americas, and the infancy of the industry here, the United States is starting mostly from scratch.

Kelsey’s research may help offshore wind developers in California in placing wind turbines. The Biden administration has advanced a wind energy area off the central California coast that could be the site of the first Pacific offshore wind development for the United States.

But the first area that large offshore wind farms will interact with birds will likely be in the northeast Atlantic, where a massive federal studypublished in January showed hundreds of birds crossing federal wind lease areas.

The analysis, led by FWS’s Pamela Loring, is the first ever to use the international Motus Wildlife Tracking System to determine likely flight patterns for more than a dozen species of migrating birds.

The study began with nearly 4,000 individual migratory birds — though scientists reduced the number in their findings to those with the most reliable data, or roughly 600 birds across 12 different species.

The research found that many birds migrating through the Northeast on the way from the Arctic to warmer climes in South America didn’t interact with federal waters at all and often flew higher than the reach of turbine blades. But researchers admitted that there are limits to the technology behind their findings.

Onshore receivers were only reliable in collecting pings from birds within 12 miles from shore, for example. Most of the offshore wind facilities proposed in the Northeast will be farther out.

“The analysis demonstrates that shorebirds face an exposure risk to offshore wind in the federal planning areas,” Loring said in an email. She added the caveat: “This does not give us a full understanding of the exposure and collision risk of shorebirds to offshore wind turbines.”

Climate change also could change the habits of many bird species in sometimes subtle, sometimes shocking ways, several researchers said, making it difficult to assess the impacts of wind energy areas that might not pose a harm now, but could in coming years.

Vineyard Wind and landmark projects

There’s tremendous pressure on offshore wind developers — and regulators — to provide answers about what will happen to birds.

When the Vineyard Wind project — the first large offshore wind farm to be built in the United States — goes up in the waters off Martha’s Vineyard, it will be equipped with high-frequency telemetry receivers to assess what birds and bats are coming in the vicinity of turbines.

Other efforts to limit impacts to avian species include bird-deterrent technology and devices to curb light pollution that could attract birds, which were all requirements attached to the federal approval of the project.

To the south, Atlantic Shores Offshore Wind, a joint venture of Shell New Energies U.S. LLC and EDF Renewables North America, launched a study last year to track the movement of red knots along the Atlantic coast. The rufa subspecies of the speckled little shorebird is endangered. Atlantic Shores plans to develop an offshore wind lease area off the coast of Atlantic City, N.J.

And U.S. Wind, which is developing the MarWin project proposed off the coast of Ocean City, Md., recently released a buoy in the wind energy lease area that will track and record birds, bats and marine mammals like dolphins.

“We want to be sure that we understand the ocean environment where we will be building our wind energy project, and that includes understanding the marine species that are also frequenting the area,” said Jeff Grybowski, CEO of U.S. Wind and the developer behind the first offshore wind farm in the United States, the five-turbine Block Island project off the coast of Rhode Island, which went live in 2016.

Ørsted A/S, the Danish developer involved in several U.S. projects, also said it was developing monitoring programs in collaboration with BOEM and FWS “to address some key data gaps.”

‘We’re still at the early stages’

Despite the promise of answers to come and a potentially supportive administration for the next few years, many bird champions say the looming wind boom is difficult to watch.

Smallwood, the California ornithologist, ticked off a list of concerns: Fast-moving birds that don’t move well will be at risk of collision. Foragers like terns may be drawn to wind areas because the turbines increase the presence of food sources, putting them at risk. And if large areas of the ocean become unusable to migrating birds, the change to their flight patterns could push them past endurance.

“I have seen birds arriving from flights over open water; they tend to crash-land due to exhaustion,” he said.

Figuring out the impacts of blades on birds is also notoriously difficult, even on land. Scientists estimate that they only count a fraction of the birds killed by turbines from carcasses on the ground.

Move the entire operation to the open water, and it’s even less likely you’ll be able to find the remains of dead birds, and technology that could detect collisions and track them is still new, experts said.

Vineyard’s developers, for example, will report to BOEM and FWS every year the number of carcasses they count on facilities and boats. It’s expected to be an undercount.

“It’s hard to quantify mortality,” said Umekubo, the NRDC attorney. “We’re still at the early stages of the science going on.”

But Umekubo is among the wildlife advocates that sees this time, both politically and for the offshore wind industry, as an opportunity.

Many defenders of the avian world have backed away from strong opposition to offshore wind because it offers such clear answers to the bird’s larger risk from climate change.

The National Audubon Society’s 2019 climate report found that two-thirds of North American birds face a growing risk of extinction from unchecked climate change and global warming.

“I have gone from someone who was really not pro-wind to someone who sort of holds their nose,” said Walsh.

“An industry that has the potential of being able to decarbonize our electricity as well as a fair amount of our transportation sector — you can’t walk away from that,” she said. “You have to try.”

Reporter Michael Doyle contributed.