Two bird conversation groups filed a federal lawsuit to block the installation of a wind turbine in a major bird migration corridor near the shores of Lake Erie, claiming one of the turbine’s purposes is to study how many birds it will kill.
The legal challenge stems from a proposal by the Ohio Air National Guard to install and operate a 200-foot-tall wind turbine at its Camp Perry training facility in Port Clinton, Ohio.
The nonprofit groups opposing the project – the Washington D.C.-based American Bird Conservatory, or ABC, and the Black Swamp Bird Observatory, or BSBO, located in Port Clinton – are concerned that the proposed turbine is situated less than a mile from both Lake Erie and the Ottawa National Wildlife Refuge, a protected wetland and known nesting area for federally protected bad eagles.
According to ABC and BSBO’s lawsuit filed Monday in Washington, D.C., federal court, the U.S. Fish and Wildlife Service, or FWS, penned a letter vehemently opposing wind turbines at the proposed location back in 2007, shortly after the Ohio Air National Guard first began considering a wind power project.
At the time, FWS objected to the placement of the proposed turbines, noting the proximity to an area that the agency recognized as vital for migratory birds needing food and rest after crossing Lake Erie on their way south, or before heading back north over the water.
FWS’ 2007 opposition letter also explained that the proposed project was located in a region that boasts the highest concentration of bald eagles in the state, according to the lawsuit.
ABC, whose mission is to conserve native birds and their natural habitats throughout the Americas, says it supports the development of wind power and other renewable energy resources but also recognizes a public interest in ensuring that those renewable energy resources do not needlessly place birds at risk.
The Ohio Air National Guard, a reserve component of the U.S. Air Force, halted progress on the turbine project in 2014 after ABC and BSBO sent formal notice of their intent to bring suit over alleged violations of the ESA, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act and National Environmental Protection Act.
The Ohio Air National Guard then renewed the proposal in 2016, saying the purpose of the project was to study the impacts the wind turbine has on local natural resources while also helping the agency move toward generating more of its energy through renewable resources.
ABC and BSBO claim those environmental “impacts” include bird deaths.
“In short, the stated purpose of the project is to observe how many birds (and bats) – including numerous federally protected species – the turbine will kill by being placed in a crucial migratory pathway and globally important bird area so that [the Ohio Air National Guard] can then ‘make recommendations,’” the conservation groups’ lawsuit states. (Parentheses in original.)
ABC and BSBO allege the Ohio Air National Guard began building the foundation for the turbine before it had completed a consultation with FWS, and before the service had issued its ESA-required biological opinion about the operation of the turbine.
The groups say that beginning construction of the turbine before fulfilling the requirements of the ESA violates the law’s prohibition on making “any irreversible or irretrievable commitment of resources” that forecloses the “formulation or implementation of any reasonable and prudent alternative measures.”
According to the complaint, FWS’s biological opinion does not comply with the ESA because it fails to take into account a recent radar study showing “vast numbers of birds move through the Camp Perry area within the rotor sweep range of the wind turbine, thus greatly increasing the probability of collisions.”
The lawsuit further alleges that the Ohio Air National Guard did not seek a permit under the Migratory Bird Treaty Act, prepare a required environmental impact statement, or obtain a permit to “take” under the Bald and Golden Eagle Protection Act, which includes wounding, killing or disturbing the eagles.
ABC and BSBO say they gave formal notice of their intent to sue in October but received no response.
The defendants in the case are Lisa S. Disbrow, acting secretary of the U.S. Air Force; Col. Andy Stephan of the Ohio Air National Guard; Jim Kurth, acting director of FWS; and Ryan Zinke, secretary of the U.S. Department of the Interior.
ABC and BSBO seek a declaration that the defendants’ actions violate the ESA, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, National Environmental Policy Act and Administrative Procedures Act.
They also want an injunction enjoining the Ohio Air National Guard from authorizing the Camp Perry wind turbine project; an order compelling FWS to prepare a new biological opinion that considers all relevant factors and best available science; and an order compelling the National Guard to prepare an environmental impact statement before moving forward with the project
The groups are represented by Eric Glitzenstein and William Eubanks II of Meyer Glitzenstein & Eubanks, as well as William Sheehan of Barnesville, Md.
A public information officer for the Ohio National Guard declined to comment while the lawsuit is pending. FWS did not immediately respond Wednesday to a phone call requesting comment.
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