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Ohio wind farm gets OK to ‘take’ endangered bat after judge throws out lawsuit

A federal judge on March 18 threw out a lawsuit challenging the U.S. Fish and Wildlife Service’s decision to allow a wind farm developer to kill an endangered species of bat in Ohio. The ruling was a victory for EverPower Wind Holdings Inc., which fought earlier court challenges and local opposition in its attempt to build a wind farm that could include more than 100 turbines in Champaign County, Ohio.

An “incidental take” permit that the FWS issued to EverPower subsidiary Buckeye Wind LLC in 2013 would let it kill and disturb a limited number of Indiana bats at the Buckeye wind farm as long as the company followed a conservation plan designed to offset the losses. At the time, the service said the permit was “a positive step” toward “recovering” the species while “addressing this country’s future energy needs.”

A group called Union Neighbors United Inc. claimed that regulators broke a handful of federal laws in issuing the permit, in part because they did not opt for alternatives that reportedly would have resulted in fewer killings.

Judge Richard Leon of the U.S. District Court for the District of Columbia ruled that the permit was lawful because regulators concluded that the mitigation plan would “adequately protect” the bats. “Here, the FWS found that the minimization and mitigation measures ‘fully offset’ the impact of the taking of Indiana bats, and thus, it was not necessary to determine if the plan was the ‘maximum that can be practically implemented'” by the developer, Leon wrote.

The wind industry’s growth in recent years has brought it into conflict with conservationists in some states who say the locations that developers are selecting threaten wildlife.

Developers installed 4,850 MW of new wind power capacity in 2014, and there were more than 12,700 MW of wind projects under construction nationwide at the end of 2014, according to the American Wind Energy Association.

The American Bird Conservancy in June 2014 sued the federal government over a rule allowing energy project developers to apply for permits to kill, capture or disturb eagles for up to 30 years. The ABC sued the government on behalf of residents of California and the Pacific Northwest for allegedly failing to conduct a proper environmental review before issuing the rule.

Republicans have attacked the rule, saying the Obama administration appears to have developed too close of a relationship with the wind industry.

The U.S. Department of the Interior said it changed the rule after wind developers complained that five-year permits were too brief to secure financing. FWS Director Daniel Ashe told the House Natural Resources Committee that the rule change was “technical” in nature and did not require analysis under the National Environmental Policy Act.

EverPower, which is backed by Terra Firma Capital Partners Ltd., will be allowed to kill up to 130 bats at the Buckeye wind farm over 25 years.