Greens threaten to sue Ohio Air National Guard over turbine

By Scott Streater | 10/26/2016 01:17 PM EDT

A national bird conservation group is threatening to sue the Ohio Air National Guard if it does not abandon plans to build a wind turbine along the shores of Lake Erie in one of the largest bird migration corridors in North America.

A national bird conservation group is threatening to sue the Ohio Air National Guard if it does not abandon plans to build a wind turbine along the shores of Lake Erie in one of the largest bird migration corridors in North America.

The American Bird Conservancy, along with the Oak Harbor, Ohio-based Black Swamp Bird Observatory, says placing a wind turbine at the Camp Perry facility in northern Ohio violates the Endangered Species Act and other federal laws and would threaten a host of sensitive avian species, including bald eagles and federally endangered Kirtland’s warblers and piping plovers.

The groups also say a biological opinion conducted by the Fish and Wildlife Service, which regulators used in evaluating the project, is flawed, in part because the Air National Guard built "the foundation for the wind turbine" before the service finished its review.


The Washington, D.C.-based public interest law firm Meyer Glitzenstein & Eubanks LLP yesterday sent the Air National Guard a 60-day notice of intent to sue on behalf of the two conservation groups.

The guard has said it wants to build the turbine to test wind energy and evaluate potential impacts to migratory birds in the region as it works to move toward more renewable energy sources.

But the conservation groups say building a large wind turbine close to the shores of Lake Erie is a poor choice.

"The site is located within one of the world’s largest confluences of migratory birds and bats, making it among the most poorly placed wind projects in the United States," said Michael Hutchins, who directs the American Bird Conservancy’s Bird-Smart Wind Energy Campaign.

Kimberly Kaufman, executive director of the Black Swamp Bird Observatory, said her group is "baffled" by the Air National Guard’s insistence on building the turbine at the site.

"It’s especially hard to understand when you consider that an expansion of their existing solar array would not only generate more renewable energy, but would be a move that birders, conservationists and local citizens would applaud," Kaufman said.

Meyer Glitzenstein & Eubanks sent the notice to top officials at the Ohio Air National Guard and the Air Force and to Interior Secretary Sally Jewell and FWS Director Dan Ashe. But the groups would file any lawsuit against the Ohio Air National Guard and not Interior or its agencies, Hutchins said.

The notice says the groups "would be pleased to discuss the issues raised in this letter" but adds that if the Air National Guard proceeds with the project, the groups intend "to consider all available means, including litigation, to ensure compliance with federal environmental law."

E&E News could not reach anyone for comment at the Ohio Air National Guard. A Fish and Wildlife Service spokeswoman said the agency does not comment on matters involving pending litigation.

‘Crucial migratory pathway’

Camp Perry says in a draft environmental assessment (EA) and draft finding of no significant impact (FONSI) issued last summer that it wants to build the turbine to study "certain impacts of wind energy" and to assist "with its move towards generating more of its energy on base through renewable resources."

But the conservation groups in their 16-page notice of intent to sue strongly disagree with that stated purpose.

"Put bluntly, the stated purpose of the project is to see how many birds (and bats) the turbine kills by being placed in a crucial migratory pathway and globally important bird area so that [the National Guard] can then make ‘recommendations’ in view of the resulting mortality," the notice states.

The groups say Camp Perry officials acknowledged in the draft EA that the base "is located adjacent to the Ottawa National Wildlife Refuge, which is known for its high diversity of birds." Yet the draft EA, they say, "inconsistently (and nonsensically) asserts that ‘[n]o effects to wildlife are anticipated under the Proposed Action.’"

The lawsuit notice also says FWS issued its biological opinion on the wind turbine before it completed a radar study that the groups say showed "vast numbers of migratory birds and bats" fly in the area at altitudes within the rotor-swept zone of the proposed turbine.

"This is highly problematic, especially since the results of this study essentially invalidate" both the draft EA and draft FONSI, Hutchins said.

This isn’t the first time the Air National Guard has proposed building the wind turbine at the base. It first proposed one in 2007.

But the Air Force in early 2014 decided to drop the project after the American Bird Conservancy and Black Swamp Bird Observatory threatened to sue (E&ENews PM, Jan. 29, 2014).

FWS had expressed concerns about the environmental evaluation of the turbine at Camp Perry. And Mary Knapp, an agency field supervisor in Ohio, disputed claims by the Air National Guard that the earlier version of the project would likely not kill or harm bald eagles.

Knapp, in a Sept. 10, 2013, letter to Ohio Air National Guard Capt. Roger Nienberg, noted that a bald eagle nest exists about a half-mile from the proposed turbine site and that "there are approximately 60 eagle nests within 10 miles of the project area, and the Camp Perry property is located on the shore of Lake Erie, along which bald eagles are expected to migrate and winter."

She wrote: "Though the Service requested site-specific eagle monitoring following a standardized protocol, this was not conducted, therefore we are unable to quantify potential risk to bald eagles. However, based on the presence of important eagle use areas nearby, we believe operation of the turbine could result in take of bald eagles."

Knapp added that it was up to the Air National Guard to apply to Fish and Wildlife for an eagle take permit "or assume the risk of violating the Bald and Golden Eagle Protection Act."

American Bird Conservancy leaders say that the group supports the development of wind and other renewable energy sources but that they must be sited correctly.

Poorly sited projects "can have significant adverse impacts on migratory birds and other wildlife," the notice of intent to sue says.

"The proposed site for the Camp Perry project — in extremely close proximity to the Ottawa National Wildlife Refuge and in a major migration corridor — is one of the worst possible locations to construct and operate a wind power project."