An early draft from environmental consulting firm EDM (http://www.edmlink.com/) released by CHA this week raises significant concerns about the potential impact of the proposed Kenedy wind project on migrating and resident birds (not surprisingly, giant windmills + millions of migrating birds = trouble). The draft notes that the project appears to contradict federal guidelines intended to minimize environmental impact and that the project – because of its location – could violate federal laws like the Migratory Bird Treaty Act and the Endangered Species Act. A final assessment is due in the next few weeks from our consultant, but the early draft offers enough red flags to warrant public review of this project before it is approved. (You can find a copy of the assessment in its entirety here: (http://coastalhabitatalliance.org/studies_reports.htm ).
The Migration Gamble
Some laws are designed to prevent bad projects. Others punish them once they’re built. Unfortunately, one of the laws that might impact the Kenedy County projects – the Migratory Bird Treaty Act – doesn’t have a clearly outlined permitting process. So, some developers choose to gamble. They build their projects and take their chances that (1) the project won’t violate the law and (2) the government won’t punish them if it does. Surely, enforcement is important. But addressing a predictable threat after the fact won’t prevent the damage.
Wetlands and the Clean Water Act
In addition to threatening wildlife, this project poses a threat to the sensitive wetlands of the Laguna Madre. The eastern portion of the proposed site is a matrix of freshwater ponded wetlands that gradate to brackish lagoons and mud flats and then to the Laguna Madre. This wetlands complex protects the Laguna Madre and nourishes the wildlife of the region. And makes up the world-class habitat we are dedicated to protecting.
Although filling of wetlands requires a prior federal permit, the developers have publicly represented that they intend to construct the industrial wind project in a manner that avoids any filling of wetlands. While this may be possible for individual pad sites, it seems hard to imagine how the various pads could be connected with construction and service roads without the discharge of fill into regulatory wetlands. Under the federal Clean Water Act, filling wetlands without a permit from the Army Corps of Engineers is a civil and/or criminal violation of the federal Clean Water Act.
It is an old game to invest in a development and then argue that approval must be given to protect the prior investment. These wind energy developers should be required to obtain permits before they build. The last thing we need is a complex of illegal turbines that those on the coast are forced to address in an after-the-fact manner.
A Public Project Deserves a Public Review
Since our formation, CHA’s primary request had been for a scientific and public review of this proposed project. It should come as no surprise that the developers have argued that no such process is required. CHA should be allowed to intervene in the CCN process before the Texas Public Utility Commission on the 345 kV transmission line that is proposed to serve the wind energy facilities. Environmental impact issues exist from the transmission line itself, not to mention to the wind energy projects that are the secondary and cumulative impacts associated with the transmission line.
This issue will come to a head on Wednesday October 17 at the PUC where a hearing on our motion to intervene will be held at 9:30. We at CHA are hopeful that the Commissioners will let our coastal voice be heard and allow a full presentation of our ecological concerns via the hearing process. We have retained some of the best talent in the United States to evaluate the consequences of these wind energy projects and are evaluating other legal options. We will keep you advised of our progress.
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Watch for future e-news from CHA, or visit www.coastalhabitatalliance.org  for more information.
Coastal Habitat Alliance Newsletter, Oct. 16, 2007