PORTLAND – Friends of the Boundary Mountains filed a lawsuit against the U.S. Army Corps of Engineers in U.S. Maine District Court last week, requesting the agency re-assess the impact TransCanada’s Sisk Mountain Wind Project would have on the golden eagle, Bicknell thrush, and clean water act.
The action filed was in response to the Corps’ issuance of a permit dated Sept. 27, 2012, that allows TransCanada to construct an industrial wind facility on Sisk Mountain.
In the lawsuit, the plaintiff, FBM, contends that by issuing the permit, the U.S. Army Corps of Engineers violated the Clean Water Act, International Migratory Bird Treaty, and the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act.
FBM is asking that the Corps vacate the permit, and not issue a new permit until they comply with the CWA, MBTA and Eagle Act, and conduct further study to ensure they are in compliance. FBM is also asking for recovery of legal expenses.
The wind project on Sisk Mountain allows for the construction of 11 three-mega-watt wind turbine generators located adjacent and to the west of the existing Kibby Project, and the construction of roads and other necessary infrastructure.
Although TransCanada was not named in the lawsuit, no one from TransCanada was available to answer questions about the lawsuit.
Bob Weingarten, spokesperson for FBM, maintained that in August he sent a letter to the U.S. Army Corps of Engineers asking them to do a biological assessment on the golden eagle, listed on the federal register as a possible endangered species. The U.S. Fish & Wildlife Agency told him the feder- al register statement put the species into a “status review category.” The statement in the federal register gives credence to more study on the issue.
Weingarten explained that because the Land Use Regulatory Commission gave TransCanada a two-year extension in May, they have until 2015 to start the project. Friends of the Boundary Mountains was an intervener in this request, opposing it because of new data on the golden eagle.
Attorney Lynne Williams, of Bar Harbor, who has a long history in representing groups on environmental issues including those opposing the Plum Creek project in the Moosehead region, said LURC’s decision was upheld by the Maine Supreme Court earlier this year. The Corps may file a motion to dismiss or a motion for summary judgment. “It’s hard to predict exactly what twist the case will take,” she said.
With winter coming, it is unlikely TransCanada will be doing any construction on the Sisk project in the immediate future, she said.
When asked about the lawsuit, Weingarten said because the golden eagle is being overlooked, it’s detrimental to the species, not giving it an opportunity to reestablish itself in Western Maine. Golden Eagles stop by the Boundary Mountains. Their preference is to nest in places they’ve nested before. There’s at least one right on the cliffs of Sisk Mountain overlooking Route 27, and there are two others that are believed to hang out there. “It’s called a hot spot,” for the golden eagles, he said.
Weingarten said, “The protections are ludicrous… It includes an eagle conservation plan, but one that says first build the project, and submit the plan before it starts operation.”
The complaint also cites that there needs to be more study on the Bicknell Thrush, “one of the most rare, range-restricted breeding birds in the Northeast. Its rarity and the importance of conserving its habitat are widely recognized by national wildlife conservation organizations and agencies, making the list of priority species for conservation by National Audubon, Partners in Flight, and the U.S. Fish and Wildlife Service.” The plaintiffs contend the construction of the turbines would cause “direct habitat loss and significantly degrade surrounding habitat quality” through the effects of fragmentation caused by the project.
FBM has a long standing commitment to preserving the Boundary Mountains. The organization has been in existence for 17 years. It has approximately 125 members, who reside in Maine, New Hampshire, Vermont, Massachusetts, Connecticut and New York.
Weingarten explained FBM was formed in 1995, when Kenetech submitted a massive proposal to build a wind project on four different Boundary Mountains including Kibby. No one wanted to oppose it, so we formed. The company went bankrupt and that saved the day, he said. Then, a few years later, along comes TransCanada with the first proposal to develop Kibby being submitted in 2005. During that in-between period, Weingarten explained they had tried to work with the Maine Department of Conservation to make the Kibby land part of Maine’s Public Lands. While agencies concurred it was a great idea, they said there were many areas that had more priority.
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