A three-judge panel at the U.S. Court of Appeals for the D.C. Circuit in an Aug. 5 ruling rejected part of the federal approvals for the 250-MW Buckeye Wind LLC project in Champaign County, Ohio.
Buckeye Wind’s project may pose a danger to the Indiana bat, a federally listed endangered species. In order to comply with the Endangered Species Act (ESA), Buckeye applied for an incidental take permit with the U.S. Fish and Wildlife Service and submitted a conservation plan. The conservation plan provided that Buckeye would site its turbines away from known Indiana bat habitats, adjust the turbines’ operating times and speeds, and protect additional habitat. The Service issued the permit.
Union Neighbors United Inc. challenged the permit, claiming that the Service failed to comply with its obligations under the National Environmental Procedures Act (NEPA) and failed to make required findings under the ESA. As to the Service’s NEPA violations, Union Neighbors claims that it failed to consider a reasonable range of alternatives before issuing the permit. With regard to the ESA, Union Neighbors claims that the Service applied the incorrect standard in finding that Buckeye “to the maximum extent practicable, minimize[d] and mitigate[d] the impacts of such taking.”
Said the Aug. 5 appeals court decision: “We conclude the Service failed to comply with its NEPA obligations when it failed to consider an economically feasible alternative that would take fewer bats than Buckeye’s proposal, and we reverse the District Court on that point. However, we also conclude that the Service’s interpretation of the ESA is entitled to deference. In light of its interpretation, the Service complied with its ESA obligations, and we affirm the judgment of the District Court on Union Neighbors’ ESA claims accordingly.”
The proposed facility would include up to 100 wind turbines, each with a capacity of 1.6 to 2.5 MW, with a total generating capacity of approximately 250 MW for the facility. The site for the facility is a predominantly agricultural and rural area where Indiana bats maintain a presence during the summer maternity season and presumably traverse during spring and fall migrations to and from their hibernation areas.
In 2007, Buckeye began consulting with the Service and the Ohio Department of Natural Resources Division of Wildlife to determine the impact that its project would have on the local wildlife populations. After Buckeye consulted with the Service for several years and provided a number of pre-construction field studies, in 2010 the Service issued a notice of intent to initiate a scoping period on the project and solicited public comments. Buckeye submitted a completed application for its Incidental Take Permit (ITP) in February 2012.
The Habitat Conservation Plan (HCP) first attempts to minimize its impact on Indiana bats through the Action and Project Areas – those areas that could be affected by the issuance of the permit – and the locations of individual turbines. Specifically, the HCP moves the Action Area to a location 8 kilometers (5 miles) away from a 2008 discovery of Indiana bats. Additionally, turbines are sited in already-developed lands where turbines would pose a reduced risk to the bats, and no turbine is sited within 2.9 kilometers of known maternity roost trees discovered in 2009. Finally, only 10 of the 100 turbines are sited within habitat where the turbines would pose the greatest risk of impact to the Indiana bats. The Conservation Plan also includes operational restrictions. Buckeye commits to both “turbine feathering” and increased “cut-in speeds.” Feathering is a reduction in the blade angle to the wind to slow or stop the turbine from spinning until a designated cut-in speed is reached. Cut-in speeds are the wind speed at which rotors begin rotating and producing power.