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United States

Notice to sue developer over bat habitat

A wilderness and wildlife advocacy group is threatening to sue FPL Energy over construction of a 20 turbine wind farm in Meyersdale, Pennsylvania, unless the company develops a habitat conservation plan for the endangered Indiana bat, as mandated by the national Endangered Species Act.

Calling itself "Friends of the Appalachian Highlands," the group has filed a 60-day notice of intent to sue, through the law offices of Meyer & Glitzenstein. The law firm specialises in wildlife litigation and in particular in matters pertaining to the enforcement of the national Endangered Species Act.

The December 9 notice asserts that appropriate pre-construction wildlife studies were not performed and as a consequence the project will result in an "illegal take" -- a non-permitted death -- of federally protected animals. The killing of an endangered animal is sometimes allowed by the federal government if the government decides that a project developer has made an effort to avoid the death but has been unable to do so.

An Indiana bat hibernaculum -- a cave used for winter hibernation -- is located a few miles from the wind farm site. The legal notice asserts that the bats are likely to use the site for a variety of purposes, including as a hunting area, as a flight path, or as a summer roosting place. Consequently, the notice asserts, it is likely that some bats will be killed by the spinning turbines.

Administration and enforcement of the US Endangered Species Act is often messy. In cases involving federal land or federal funding, the jurisdiction of the US Fish and Wildlife Service (USFWS) is almost always assured. In other cases, however, the federal government has no jurisdiction over proposed activities unless an endangered or threatened animal is killed. Even then, its actions are unpredictable. A prosecution may result, or no action may be taken at all.

Legal remedies

Wildlife advocates often seek legal remedies in an attempt to ensure the involvement of federal government. In this case, the 60-day notice was sent to Florida Power & Light Group, FPL Energy's holding company, and to the US Fish and Wildlife Service as well as to Gale Norton, Secretary of the Interior.

At issue is the length of time devoted to studying the behaviour of Indiana bats on the wind farm site. Pennsylvania State University bat biologist Michael Gannon says he was hired to spend two days in May 2003, looking for bat hibernacula on the site.

Gannon says that although he did not find any caves, he suggested to the project's builders, Atlantic Renewable Energy, that the endangered animals most likely used the site and that the company should have done a summer-long survey to better understand the animals' on-site behaviour. Gannon claims the company declined the suggestion.

FPL Energy is reluctant to comment on the letter. "We are reviewing the matter," says the company's Steve Stengel. "After our review, we will respond, if appropriate." From Atlantic Renewable Energy, Sam Enfield confirms that Gannon was employed to survey for mine openings or caves, as stated by Meyer & Glitzenstein in the notice to sue. He adds, however, "They don't bother to state that that was the only work -- related to Indiana bat or any other species -- the Fish and Wildlife Service asked us or recommended for us to do." At the time, in August 2001, all USFWS said was that the site was "within the known range" of the Indiana bat, "and that we should avoid damaging any caves or mine openings on site which they might use," says Enfield. The advice of the USFWS contrasts with the procedure for Mountaineer Wind Farm on Backbone mountain, where several hundred bats were killed in the autumn (Windpower Monthly, November 2003). As part of Atlantic Renewable's standard early consultation with agencies, "The service requested field studies on-site for Indiana bat, and which we had Phil Clem perform," says Enfield.

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