Opponents of Garrett County wind farm threaten lawsuit 

DEER PARK – Opponents of a Garrett County wind power project have warned developer Constellation Energy and the county government that they plan to sue unless Constellation seeks a special permit from the U.S. Fish and Wildlife Service.

The Constellation project consists of an electrical substation and 28 415-foot wind turbines atop Backbone Mountain, spread along an 8-mile stretch near Eagle Rock.

In a June 23 letter, the Garrett-based opposition group Save Western Maryland and the Maryland Conservation Council stated that the wind project will adversely affect Indiana bats and Virginia big-eared bats, both classified as federal endangered species. The project would therefore violate the federal Endangered Species Act.

To prevent a lawsuit, the opposition groups stated, Baltimore-based Constellation must seek an incidental take permit from USFWS. The permit effectively protects developers from violating the act by creating a plan in advance to deal with the possibility that endangered wildlife could be harmed by a project.

In April, Constellation spokesman Larry McDonnell said the developer planned to voluntarily seek an incidental take permit.

“Even though the risk of a negative impact to an Indiana bat is very remote, Constellation Energy will voluntarily seek the U.S. Fish and Wildlife Service’s approval for any incidental impacts,” McDonnell said. “We will commit to developing Indiana bat habitat improvement projects that will result in far greater benefits to the species than any remote risk posed by the project.”

When reached Tuesday, McDonnell said the company was preparing its permit application, though he was uncertain of when it will be filed.

The application requires developers to create a habitat conservation plan for mitigating the effects of an incidental killing of wildlife. USFWS can also require that applicants conduct biological surveys of the project area.

The length of time needed for USFWS to review a permit application can range from less than three months to one year, depending on the scope and complexity of the conservation plan, according to USFWS permit instructions. The time frame can also be affected by other factors, such as public controversy.

In a news release issued after its letter to Constellation, Save Western Maryland called on Constellation to halt construction on the project “until a conservation plan is completed and a permit is issued.”

“The big wind developers purport to be responsible, corporate citizens,” the group said. “As such, they must live up to their green image by complying with all laws, especially those designed to protect the environment such as the ESA.”

McDonnell said that Constellation’s bat protection measures “have been and will continue to be very comprehensive.”

As evidence of a potential threat to bats, the wind farm opponents cited studies done at the Mountaineer wind farm, a 44-turbine facility in nearby West Virginia, and at a 20-turbine facility near Meyersdale, Pa. The studies showed significant bat mortality at both locations, including one six-week monitoring period when researchers found 398 bat carcasses at the Mountaineer wind farm and 262 at the Meyersdale site.

For legal precedent, they cited a 2009 case in which a federal judge halted development at the Beech Ridge Energy wind farm in Greenbrier County, W.Va., until the developer secured an incidental take permit from the USFWS.

The opposition stated that not only Constellation, but also Garrett County government, could be held liable for any violations of the act, since county government entities granted a number of permits required for the construction to move forward. The county also owns land on which three of the project’s turbines will be placed.

The liability could also extend to the project’s previous owners and other interested parties, such as Old Dominion Electric Cooperative Inc., which has entered into a power purchase agreement with Constellation.