With the ever-increasing number of wind turbines being constructed, various government and private organizations are pursuing research into the impact of wind turbines on birds and bats with particular focus on endangered species. Earlier this year, the U.S. Fish and Wildlife Service (FWS) and Fowler Ridge I Wind Farm in Benton County, Indiana announced a plan to research ways to reduce the impact of wind generation on bats after finding a dead endangered Indiana bat near a wind turbine. Fowler Ridge I, like all projects, had conducted due diligence wildlife surveys and consulted with state and federal wildlife agencies prior to construction and operation. The project was found to represent a very low risk for bats in general and the endangered Indiana bat in particular, but the finding of the dead bat led to further scrutiny by the FWS.
The Indiana bat has been listed on the endangered species list since 1967. It is found over most of the Eastern half of the United States. Almost half of all Indiana bats hibernate in caves in Southern Indiana. Indiana bats are small, weighing only one-quarter of an ounce, and have a wingspan of nine to 11 inches.
While several wind farms, including Fowler Ridge, have recently requested incidental take permits from the FWS, others have been sent notices of intent to sue under the Endangered Species Act for failing to obtain incidental take permits. An incidental take permit is required when a non-federal action may result in a “take” of an endangered or threatened species. In June 2010, a coalition of environmental organizations and individuals filed a notice of violation against a Constellation Energy, Inc. project proposed for Garrett County, Maryland. The notice alleges that the project will result in an unpermitted taking of Indiana bats and another protected bat species. While construction on the project is proceeding, the legal wrangling is far from over. Constellation has stated they expect to request an incidental take permit for the protected bat species in the project area. Another nearby wind project also received a notice of violation from the same coalition.
In another case, the Beech Ridge wind project in Greenbrier County, West Virginia agreed this summer to request an incidental take permit to settle a lawsuit and also agreed to limit operation of turbines to times of the day when bats are not normally flying. Turbine operations are also prohibited between April 1 and November 15 while the permitting process is underway. An injunction had been issued in the case late last year.
Developers of wind projects must increasingly evaluate whether to seek an incidental take permit even where environmental and biological studies might not indicate that threatened or endangered species, like the Indiana bat, live or breed in the project area. Proactively seeking an incidental take permit may protect projects from lawsuits under the Endangered Species Act and head off challenges for project opponents.