Tilting at Windmills

After years of lawsuits, a settlement was finally reached early this year to try to reduce bird kills at the Altamont Pass Wind Resource Area in Alameda County. But critics charge that the new agreement makes an already bad situation even worse.

First, the chain of events that led to the settlement: Over four years ago, the Alameda County Board of Supervisors, Golden Gate Audubon, the Center for Biological Diversity (CBD), Californians for Renewable Energy (CARE), and many of the largest owner/operators of Altamont’s wind turbines began to meet to figure out how to reduce bird kills at Altamont. When the county approved new use permits for the turbines in 2004 without requiring the wind companies to reduce the bird kills, CBD filed a lawsuit, first in federal court and then in state court, against the energy companies for violating state and federal wildlife protection laws. CARE and Golden Gate Audubon joined CBD in an appeal when the county, which collects revenues connected to its turbine permitting process, issued 16 permits to turbine operators without requiring environmental reviews (EIRs) or stringent commitments to reduce bird mortality.

In late 2005, the Alameda County Supervisors partially rejected the environmental groups’ appeals and approved 29 permits covering more than 3,600 wind turbines. Audubon and CARE then filed a lawsuit against the county over its permit renewals, citing its failure to conduct EIRs before approving the permits, which violates the state’s Environmental Quality Act (CEQA). CBD declined to join that suit, concerned joining might derail its own suit. But in a judicial sleight of hand, CBD’s lawsuit was joined with Audubon and CARE’s CEQA suits anyway, and in late 2006, the Alameda County CEQA court dismissed CBD’s lawsuit, overturning earlier complex court decisions that had allowed it to go forward. The Audubon/CEQA lawsuit was not dismissed.

From late 2005 through the end of 2006, Audubon and CARE conducted negotiations with the county and energy companies over the CEQA lawsuit. Finally a settlement was reached between the three major turbine operators, Golden Gate Audubon and four other local Audubons, and CARE, over the objections of Altamont’s scientific study group and CBD, which characterized the agreement as “a complete disaster for birds.” The county announced the settlement on January 5, and the Board of Supes approved it just three business days later without any meaningful input from other conservation groups or raptor biologists familiar with the bird kill issues at Altamont.

Cool Winds

Wind power is touted by people on all points of the political compass as an answer to growing energy needs and deficits. In 2004 California’s wind energy produced enough electricity to light a city the size of San Francisco. Almost all of the state’s wind-generating output is located at Altamont, Tehachapi, and San Gorgonio Pass (near Los Angeles); in the ’90s, those sites produced almost a third of the world’s wind-generated electricity.

Wind energy production costs have decreased four times since 1980, thanks to better technology. Wind power uses less water than other types of energy production (the turbines don’t need water to generate their power), and eliminates drilling for natural gas. Relatively pollutant-free and renewable, wind could replace more problematic power sources such as nuclear plants. But nothing comes without a downside: Bird mortality has dogged the industry since the ’80s.

Established in 1982, the Altamont Pass Wind Resource Area is the oldest and one of the largest wind farms in the nation. It covers about 73 square miles and over 50,000 acres with approximately 5,000 operating turbines. Every year, the earlier model turbines kill thousands of birds, over half of them raptors, when the birds collide with the spinning blades. The older turbines are far more deadly because they are mounted on towers 60 to 80 feet high, directly in the birds’ flight paths, while the newer models stand 200 to 260 feet high, thought to be above where birds of prey normally fly. The older turbines are also less efficient than their newer counterparts, so more are required for the same amount of work.

In a 2006 report to the American Wind Energy Association, researchers Lee Neher of Lawrence Livermore National Laboratory and Shawn Smallwood, scientific expert on Altamont and a member of the county-appointed Scientific Research Committee (SRC), reported that raptors prefer flying at the older turbines’ height, as well as along ridge tops and canyons, where many turbines are sited.

Altamont’s turbines are situated on the Pacific Flyway, one of the world’s major migratory flight paths, and its grassy hillsides provide food for several types of raptors. It also has the highest known density of breeding and nesting golden eagles in the world. It’s an unusually dangerous place for birds, with raptors at special risk;if they’re stalking prey near turbine bases, they’re not looking out for much else. Said Golden Gate Audubon’s Elizabeth Murdock in the San Francisco Chronicle in September 2005, “Altamont Pass never would have been built if we had known how critical that site is& That project never would have gotten through the approval process.”

Mortality estimates in Smallwood and Carl Thelander’s 2004 report to the California Energy Commission (CEC) top 4,000 birds per year, including 1,300 raptors (an estimated 116 golden eagles, 380 burrowing owls, 300 red-tailed hawks, and hundreds of American kestrels, great horned owls, and ferruginous hawks are killed annually), and others totaling about 40 different species. The kills violate state/federal protection laws such as the Migratory Bird Treaty Act, the Bald Eagle and Golden Eagle Protection Act, and several California Fish and Game Code provisions. In 2006 industry consultant WEST conducted monitoring and confirmed raptor death estimates from the 2004 CEC report. In short, Altamont is America’s most lethal wind farm.

“I saw a rock dove flying into a rotor plane against a strong wind,” Smallwood recalls. “As it approached, the turbulence blew it back, and then the bird tried again. This time it flew all the way to the rotor plane, where it got struck and knocked about 50 meters away. I thought it was dead and went over to it … but it was still alive and flushed up and flew another 150 meters [before expiring]….I’ve seen a ferruginous hawk flying around with half a tail, and a golden eagle with no tail….

“An unknown number of these birds don’t die immediately,” Smallwood continues. “They’re taken away by scavengers patrolling the area.” Injured birds also sometimes manage to remove themselves before dying, creating a “crippling bias,” meaning injured birds that crawl away and die aren’t accounted for in kill estimates.

Deadlier than Ever?

The Audubon suit demanded that the county require wind companies to conduct extensive environmental review and demonstrate they were taking action to reduce kills in order to continue operation. The chief mitigation is obvious but costly—replacing older, lower turbines with newer, taller models, called repowering. But the new agreement covers only the signing parties, giving non-signing smaller turbine operators an out—and allows signing companies to use other mitigations to delay replacement of their older turbines.

Agreement terms include 50 percent mortality reduction from a 1,300 dead bird baseline by 2009; seasonal shutdowns for older turbines; shutting down the most lethal turbines by 2008; a turbine blade-painting study; rodent trapping; formation of a Natural Communities Conservation Plan (NCCP), intended to minimize kills of state-listed species covered by the Department of Fish and Game; and if the 50 percent mortality reduction isn’t achieved by 2009, adoption of an adaptive management plan that minimally impacts energy production.

Under the old system of county operating permits, all turbine operators were subject to repowering deadlines, and they had to adhere to recommendations made by Smallwood’s committee. The county attempted to satisfy concerns in its permitting process: It required seasonal shutdowns of turbines in the winter migratory season when bird deaths are particularly high; immediate shutdown of the most lethal turbines; credible monitoring of avian mortality; preparation of an EIR in three years to assess the problem of bird fatalities and the most effective ways to reduce them; and replacing 10 percent of the most problematic turbines by 2009 with fewer, more efficient, turbines, as well as an additional 25 percent replacement by 2013 and another 50 percent by 2015. In other words, 85 percent of the problematic turbines would have been replaced by 2015. In contrast, the settlement agreement allows all existing turbines to remain in place until 2018.

In addition, the smaller companies—those who didn’t sign on to the agreement—can avoid its measures as well as many of those contained in the county operating permits. And ironically, because there was no independent scientific analysis or EIR conducted relating to the agreement, the agreement itself likely violates CEQA, the very charge leveled by Audubon and the other plaintiffs.

The Devil’s in the Details

There are other problems as well. Close examination of the agreement reveals a troubling error: the baseline of 1,300 deaths annually for four raptor species (golden eagle, American kestrel, burrowing owl, red-tailed hawk) was actually the 2004 CEC report figure for all raptor deaths, about 12 species, raising the “permissible” deaths for these four. But even if the real figure (1,100 deaths for the four species) was used, permitting 550 of these raptors to be killed each year is excessive. The agreement may violate the state’s endangered species act (for species such as bald eagles) and other sections of the state’s Fish and Game Code, in addition to CEQA.

The agreement also changes how the number of deaths is figured. An adjustment factor for dead birds not found by searchers or removed by scavengers (multiplying the number of found carcasses by 3.15) was arbitrarily lowered and capped at 2.5. Rodent trapping is still allowed, though it may be illegal because wind companies must conduct environmental review and obtain permission from Fish and Wildlife or Fish and Game before commencing such activities. Rodents make burrows critical to the survival of protected species like the San Joaquin kit fox, California red-legged frog, and the burrowing owls that inhabit the area. Advised against in the 2004 CEC report, trapping may actually increase avian mortality because dead rodents attract birds to turbine areas.

Painting turbine blades to make them more visible to raptors is another questionable mitigation recommended by the settlement. It is an unproven method, and painted turbines can be exempted from seasonal shutdown requirements. Moreover, the agreement gives credit to turbines already shut down as far back as 2002, and phases out seasonal shutdowns by 2009. Many provisions from the 2005 use permits were included in the agreement, but those deadlines are now changed, and permit terms may be modified by the NCCP, which itself may be illegal because Fish and Game may not authorize “take” of federally protected species such as the bald eagle.

The agreement also alters the SRC’s role by giving the signing parties authority to monitor mitigation effectiveness and need for adjustments, relegating the SRC to data collectors and analysts. And because the agreement contains no independent mitigation monitoring or performance bond, it’s not clear how Audubon or the county will enforce the measures.

But most egregiously, the agreement and NCCP could allow the wind companies to opt out of the repowering provision that the county included in its 2005 operating permits, which required replacement of the old turbines with newer models by 2008. Yet Chris Gray, assistant to County Supervisor Board President Scott Haggerty, promises, “They’ll take the windmills down and replace them with a 1-to-10 ratio [one will replace ten old ones], at the cost of $5 million.” Gray did not specify how many turbines this applies to.

Says Gray, “The parties tried to come up with the most comprehensive plan to protect the avian population at Altamont and preserve green energy and wind power. It was a difficult challenge because … Altamont is right in a migratory path and in the middle of a golden eagle nesting ground…. This is good for the parties, but these were very tough negotiations, to which the three biggest wind companies agreed.”

Those companies insist they are concerned about avian mortality. Steve Stengel, communications director at FPL Energy, Altamont’s largest turbine owner/operator, wrote by email, “the Altamont Settlement helps answer questions about how injuries to birds can be addressed, while still providing Bay Area residents with all the environmental and economic benefits that wind energy production has to offer…. Our agreement gives us comfort that organizations such as Golden Gate Audubon and Alameda County will remain flexible, and that … future actions taken by the wind companies will be those that best fit the situation presented by the data.” FPL’s web site states it has removed or shut down approximately 10 percent of operating turbines at Altamont, including replacing 169 turbines with 31 modern units, and shutting down and removing or relocating nearly 100 additional models. Independent sources such as the county have not yet verified these figures.

No Argument with Wind

Was there pressure to settle? Why was the new agreement settled so quickly, provoking criticism on that front alone? Perhaps after such a lengthy and complex negotiation process, Audubon could no longer afford to continue its litigation. Golden Gate Audubon, which did not respond to interview requests, praised the agreement in its March 2007 newsletter The Gull: Author Elizabeth Murdock states that this is the “toughest avian protection ever imposed on the wind industry at Altamont Pass.”

But Alameda County Supervisor Supervisor Gail Steele says, “The agreement isn’t strong enough. It’s always about the dollar, right, versus what’s right for ecology? We all agree we want wind power, but I’m very discouraged and think we should’ve fought more&. I want to be fair, but I wasn’t supportive of the agreement.”

When asked to respond to criticisms that the agreement doesn’t contain sufficient protection, Gray says: “You could shut down all the turbines, but then you have to deal with the other kinds of energy that they were replacing: coal, gas& It’s a tough balance: The companies could then claim bankruptcy, and then you haven’t accomplished your goals….”

However, no environmental organization ever demanded complete shutdown. Smallwood is passionate about not pitting environmentalists against proponents of wind energy: “This is not an argument of wind power versus no wind power—it’s possible to mitigate these kills.” Earlier causes of avian fatalities at the wind farm, such as raptor electrocutions, have been nearly halted after changes made in the ’90s: insulating wire, covering exposed poles, and undergrounding power lines. But the current settlement doesn’t bind the wind companies to mitigation in any meaningful way; for instance, the companies could simply paint turbine blades to avoid recommendations.

For the Birds

If the wind companies don’t hold up their end of the agreement, to whom must they answer? According to Gray, “They are answerable to the county. We could add sanctions, we could change or add requirements of what they have to do…” Entities that could potentially enforce the settlement agreement include the signing parties and others, such as the California Attorney General’s Office and Fish and Game, both of which have failed to take any enforcement action despite 20 years of documented bird kills and legal violations.

The agreement may be affected by the proposed federal Energy Policy Reform and Revitalization Act, which includes new regulations for siting, building, and operating wind projects to avoid or minimize impacts to birds and bats, also harmed by turbine blades. At the same time, the House Ways and Means Committee is considering an extension of tax breaks for the wind power industry, although the American Bird Conservancy has testified that tax breaks should be conditioned upon wind developers doing their best to avoid bird and wildlife impacts.

In May, in his testimony before the House Subcommittee on Fisheries, Wildlife, and Oceans, the Conservancy’s Michael Fry said, “Voluntary efforts to address the impacts of wind projects on birds and wildlife have been a failure. There has been much discussion and almost no real action on the part of the wind industry to resolve bird collision issues.” Ironically, the problems at Altamont may have hampered the wind industry as a whole. According to a 2002 WEST report to the Bonneville Power Administration: “Primarily due to concerns generated from observed raptor mortality at the Altamont Pass wind plant &new proposed wind projects both within and outside of California have received a great deal of scrutiny and environmental review. In the mid-1990s, development of wind projects were delayed, sometimes to a point that the project was not developed, due in part to avian collision concerns.”

According to the Conservancy, given the projected growth rate of the wind industry, between 900,000 and 1.8 million birds will likely be killed every year by wind turbines by 2030 unless protective measures are implemented. Fry says better siting of wind power plants and monitoring for migrating birds could help.

The avian mortality problem at Altamont illustrates the complex nature of energy production—even “good” sources such as wind have impacts. Smallwood is “aghast that our natural resource agencies—federal and state—allow the companies to do this when as an individual I can get a shotgun and shoot a golden eagle, but I’d go to jail.”

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