Bird advocates today formally asked the Obama administration to consider a permitting scheme for wind energy projects.

The American Bird Conservancy (ABC) says both bird lovers and the wind energy industry could benefit from such a move because it would focus attention on siting wind farms in areas where there is less likely to be a harmful impact on birds.

The proposals outlined in a petition filed with the Interior Department today would also alleviate concerns the industry has about potential criminal and civil liability under the Migratory Bird Treaty Act (MBTA), the organization says. In theory, wind farm operators could be prosecuted for every migratory bird that is killed.

It is estimated that thousands of such birds die at wind farms every year, with one U.S. Fish and Wildlife Service study speculating that the total could be as high as 440,000. The wind industry says it is a much lower figure.

In October, an estimated 484 birds were killed when lights were left on at an electrical substation at the Laurel Mountain facility in West Virginia.

The problem likely will increase, as the industry is expected to grow in the coming years. According to ABC's petition, there were an estimated 30,000 turbines in 2009. By the end of this year, that figure is expected to have more than doubled.

ABC says Interior has the authority under the MBTA to issue regulations that would allow wind farm operators to obtain a permit if they follow the correct procedures. That permit would include allowances for incidental bird kills and would ensure that the operator would not be prosecuted.

So far, the government, with the backing of industry, has restricted its efforts to working on guidelines for wind farm developers to help minimize the impact on birds and other wildlife (Greenwire, May 24).

But, as ABC points out, operators have no formal guarantee that they won't face prosecution for bird kills, although in practice, no such prosecutions have been undertaken.

Kelly Fuller, ABC's wind campaign coordinator, said her group was "at first optimistic" about the guidelines but complained that, under pressure from the industry, they are being watered down.

Voluntary guidelines "have been proven ineffective," she added.

Eric Glitzenstein, ABC's attorney, said a permitting program would also serve to reward companies that are currently making more of an effort than others to minimize bird kills.

"It's not good to have a system where good corporate behavior is placed at a disadvantage" because of a lack of enforcement, Glitzenstein added.

Under ABC's proposal, which would bring existing sites into a permitting program, only those without permits would face enforcement action.

In a statement, the American Wind Energy Association, which represents the wind energy industry, did not directly address ABC's petition.

John Anderson, the director of siting policy, stressed that the wind power industry "has modest impact on birds compared with other forms of energy generation" and has made more effort than any other sector to "study, monitor, and mitigate for those impacts" that do occur.

The industry is "looking forward" to FWS's finalized guidelines, which were "developed through a consensus-based stakeholder engagement over a three year process and included extensive public comment," Anderson added.

Speaking at a recent Environmental Law Institute event about the issue, David van Hoogstraten, the director of policy and regulatory affairs for BP Wind Energy North America Inc., was distinctly underwhelmed at the idea of a permitting scheme.

"There are an awful lot of migratory birds," van Hoogstraten said. "A permitting system would bog us down."

But he did admit later in the discussion that a permitting scheme "could be done" in a way that industry could potentially live with.

An FWS spokesman said the agency had not yet had time to review the petition.

Previously, the service had said that it is "following the same enforcement model with respect to the wind industry that it has followed in the past with other industries whose operations kill protected birds."

Under that approach, bird kills have been documented and wind farm operators have been made aware of their "stewardship responsibilities," the FWS statement said.

Click here to read ABC's petition.