November 27, 2012

Nonprofit sues federal agency to stop Kibby Mountain wind farm

Whit Richardson, Bangor Daily News | November 27, 2012 |

PORTLAND – A nonprofit organization filed a federal lawsuit Monday in a last-ditch effort to prevent the planned expansion of the Kibby Mountain wind farm in northwestern Maine.

The Friends of the Boundary Mountains filed the lawsuit in U.S. District Court in Portland against the U.S. Army Corps of Engineers, claiming the federal agency neglected several federal laws in late September when it provided a permit to TransCanada Maine Wind Development Inc. allowing the company to expand its Kibby Mountain wind farm onto nearby Sisk Mountain in northern Franklin County.

The lawsuit named as defendants Lt. Gen. Thomas P. Bostick, commander of the Army Corps of Engineers, and Jay Clement, the Army Corps’ senior project manager in the New England District.

The Friends of the Boundary Mountains, which was founded in 1995 and is based in Farmington, claims the expansion of the wind farm will violate the Migratory Bird Treaty Act and the Bald and Golden Eagle Act, according to court documents. In addition, the group alleges the U.S. Army Corps of Engineers failed to comply with the Clean Water Act when it issued the permit to TransCanada.

Before TransCanada had completed its original 44-turbine Kibby Mountain project in 2010, it already had proposed an expansion onto nearby Sisk Mountain. After TransCanada scaled back its expansion plans from 15 to 11 turbines, Maine’s Land Use Regulation Commission approved the project in January 2011. The Friends of the Boundary Mountains opposed TransCanada’s original Kibby Mountain wind farm, as well as the Sisk Mountain expansion.

Bob Wiengarten, the nonprofit’s president, said this lawsuit is the group’s last chance to stop TransCanada from building the Sisk Mountain expansion.

“We’ve been fighting this a long time,” Wiengarten said. “We’re a minority trying to protect these species from the onslaught from wind power.”

The group’s lawsuit is related to a permit TransCanada needed from the U.S. Army Corps of Engineers, which is the keeper of the inland waterways under the Clean Water Act, to temporarily and permanently fill in some wetland areas to build the wind farm expansion. As part of its compliance with the Clean Water Act, the Army Corps also is required to judge the resulting effect on wildlife.

The lawsuit argues that while the Corps had a responsibility to investigate the wind farm’s effect on the golden eagle and the Bicknell’s thrush, it failed to adequately do so. Wiengarten claims both species, which have habitat on or around Sisk Mountain, would be at risk if TransCanada is allowed to expand its wind farm.

The complaint argues that the golden eagle species is “falling between the cracks” as neither LURC nor the federal government has exercised “the necessary due diligence in evaluating the true risks and threats to the species,” the complaint claims. Maine considers the golden eagle an endangered species, though the federal government does not. It is protected, however, under the federal Bald and Golden Eagle Act.

The lawsuit cites a May 2011 letter from the U.S. Fish and Wildlife Service to TransCanada: “Proper siting of wind turbines continues to be the [service]’s most critical concern related to wind energy development to avoid and minimize wildlife mortality and habitat fragmentation. New information about migration and movements of golden eagles suggest this species may be the raptor most vulnerable to wind power in the eastern U.S.”

Wiengarten said the Army Corps put conditions into the permit that it claims will protect the golden eagle, but the conditions are inadequate. One such condition is that TransCanada needs to develop an eagle conservation plan, but the company can build the wind farm before submitting it, Wiengarten said.

“We don’t think that’s a very logical way of proceeding,” Wiengarten said. “We know in the real world that these conditions don’t mean anything. Once TransCanada builds it, it’s too late.”

This could be the first lawsuit in Maine that cites the Eagle Act as a reason to prevent the construction of a wind farm, according to Todd Griset, an attorney at Preti Flaherty who specializes in the energy sector.

“I have seen other lawsuits alleging violations of the Bald and Golden Eagle Protection Act, although I am not aware of any such claims made in Maine,” he wrote in an email.

The Bicknell’s thrush is a migratory bird that spends its winters in the Caribbean and its summers in the subalpine habitat found on Sisk Mountain. The species is rare and fickle about choosing its breeding habitat, Wiengarten said. The federal government is currently reviewing a request to identify it as a threatened or endangered species under the Endangered Species Act, a process Wiengarten points out could take at least a year.

“Our argument is they should pay attention to it right now,” he said. “Sisk is just not a good place to put a wind turbine because there’s this rare habitat that this bird, which may be endangered – it’s probably endangered now, but it needs the listing to be official – it needs that breeding habitat. It’s just too risky. It’s crazy to do this.”

When asked why he thinks the Army Corps did not pursue the effects of TransCanada’s wind farm on the Bicknell’s thrush and the golden eagle, Wiengarten said he believes federal agencies are under political pressure to support the wind power industry.

Wiengarten said he’s not against alternative energy, just not the siting of a wind farm on Kibby and Sisk mountains.

The Friends of the Boundary Mountains is asking the court to void the permit the Army Corps granted and prevent the issuance of a new permit until the violations are addressed. It’s also asking for monetary compensation for “their costs and expenses, including reasonable attorneys’ fees,” according to the complaint.

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