National Guard faces lawsuit over turbine project in bird migration corridor

Source: Scott Streater, E&E reporter • Posted: Thursday, January 9, 2014

A national bird conservation group plans to take legal action against the Ohio Air National Guard to stop the construction of a wind turbine along the shores of Lake Erie in one of the largest bird migration corridors in North America.

The American Bird Conservancy, along with Oak Harbor, Ohio-based Black Swamp Bird Observatory, today sent a notice of intent to sue the Ohio Air National Guard, which is proposing to place the wind turbine at its Camp Perry facility near Port Clinton in northern Ohio.

The two groups say the Air National Guard skirted federal laws, including the Endangered Species Act, by not properly analyzing the impacts of the nearly 200-foot-tall wind turbine on a host of sensitive avian species, including bald eagles and federally endangered Kirtland’s warblers and piping plovers.

The notice of intent, sent on behalf of the groups by the Washington, D.C.-based public interest law firm Meyer Glitzenstein & Crystal, asks the Air National Guard to formally respond to the concerns outlined in the 21-page notice by no later than Jan. 20, or “ABC will have no choice but to consider legal action,” according to the notice.

The notice was sent to top officials at the Ohio Air National Guard and Air Force, as well as Interior Secretary Sally Jewell and Fish and Wildlife Service Director Dan Ashe.

Any lawsuit would be filed against the Ohio Air National Guard and not Interior or its agencies, said Robert Johns, an ABC spokesman.

“It is our preference, however, to work in a collaborative fashion with [Air National Guard] and the Service to rectify the violations described herein and to consider alternatives other than wind power to meet [Camp Perry’s] renewable energy needs,” according to the notice of intent.

Michael Hutchins, national coordinator of ABC’s Bird Smart Wind Energy Campaign, said today in a statement that the placement of the turbine as proposed ignores the concerns expressed by officials at Fish and Wildlife as well as the Ohio Department of Natural Resources.

“If completed, this turbine would sit in the middle of a major bird migration corridor directly adjacent to a national wildlife refuge,” Hutchins said. “The FWS has concluded it is likely to kill threatened and endangered bird species such as the Piping Plover and Kirtland’s Warbler, as well as other federally protected birds. We are asking the developer to immediately halt construction and take the steps mandated by federal law to prevent the illegal killing of protected species.”

No one could be reached for comment at the Ohio Air National Guard. A spokesman for Fish and Wildlife said the agency could not comment on any pending litigation.

The Air National Guard conducted an environmental assessment of the project, and in August it released a finding of no significant impact.

But Fish and Wildlife has expressed concerns about the environmental evaluation of the turbine at Camp Perry and its impacts on sensitive avian species, particularly bald eagles.

Mary Knapp, an FWS field supervisor in Ohio, recently disputed claims by the Air National Guard that the project would likely not kill or harm bald eagles.

Knapp, in a Sept. 10 letter to Ohio Air National Guard Capt. Roger Nienberg, noted that a bald eagle nest exists about a half-mile from the proposed turbine site, and that “there are approximately 60 eagle nests within 10 miles of the project area, and the Camp Perry property is located on the shore of Lake Erie, along which bald eagles are expected to migrate and winter.”

“Though the Service requested site-specific eagle monitoring following a standardized protocol, this was not conducted, therefore we are unable to quantify potential risk to bald eagles,” Knapp wrote. “However, based on the presence of important eagle use areas nearby, we believe operation of the turbine could result in take of bald eagles.”

She added that it was up to the Air National Guard to apply to Fish and Wildlife for an eagle take permit “or assume the risk of violating the Bald and Golden Eagle Protection Act.”

As for the endangered Kirtland’s warbler and piping plover, Fish and Wildlife officials “believe that the proposed wind turbine presents a potential risk of take” to both species, Knapp wrote. She added, however, that if measures recommended by the service to avoid and minimize impacts are implemented, the threats to both could be reduced to “unlikely” levels.

The issue of wind development and its impacts on birds and bats has been a controversial one, especially in recent months.

A study released last month and led by government and academic researchers found that new wind farms using the most modern equipment may still kill hundreds of thousands of birds each year in collisions (Greenwire, Dec. 10, 2013).

That study came just days after the Interior Department announced it has finalized a new rule that will allow renewable energy and other projects to obtain permits to injure, kill or disturb bald and golden eagles for up to 30 years, a move that alarmed environmentalists (Greenwire, Dec. 6, 2013).

ABC officials said that the group supports the development of wind and other renewable energy sources but that they must be sited correctly.

ABC has developed what it calls a “Wind Development Bird Risk Map” that it says shows the Lake Erie shoreline in Ohio to be among the worst possible locations for a wind power project. The configuration of water and land, according to the group, serves to “funnel” large numbers of protected migratory birds through a small area.

“Long-term research indicates that some of the largest concentrations of migratory birds in North America occur in the Lake Erie coastal region, including Camp Perry,” said Mark Shieldcastle, research director for the Black Swamp Bird Observatory. “These species, along with one of the highest concentrations of nesting bald eagles in the lower 48 states, use the habitat precisely in the risk zone of turbines such as the one proposed. Long-term monitoring of the active eagle nest at the facility indicates extensive use of the area of the turbine by eagles.”