This month, Reuters reported that the Obama administration is working on a plan that will permit wind developers to kill endangered whooping cranes who fly in the path of the turbine blades.
The formal language of the Administration is less pointed but the impact the same.
The U.S. Fish and Wildlife Service intends to prepare an Environmental Impact Statement (EIS) on a proposed application for an Incidental Take Permit (ITP) issued under Section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act).
If approved, wind developers will be permitted to 'take' an unspecified number of endangered species including the whooping crane. 'Take' under the Endangered Species Act, is defined as the injuring or killing of endangered species.
A bird at risk
Whooping cranes are rare birds that occur only in North America. The July 2010 total wild population was estimated at 383 with only one self-sustaining flock, the Aransas-Wood Buffalo National Park population, numbering just 283 individuals. Twice yearly, whooping cranes undertake their 5000-mile migration journey between their breeding ground in northwest Canada to their wintering area on the Texas coast. The bird's 200-mile wide flyover area is well defined crossing through Alberta, Montana, North Dakota, South Dakota, Nebraska, Kansas, Colorado, Oklahoma, New Mexico, and Texas. Ninety-four percent of all observations of whooping cranes occur in this area.
Wind farms have the potential to directly kill whooping cranes either from the turbines themselves or associated construction of power lines. The U.S. Fish and Wildlife Service estimates that as many as 40,000 turbines could be built in the 200-mile wide corridor. Current estimates put the turbine count in the path at 2,705 turbines (40 operational wind plants). A single death of a whooping crane by a turbine blade will impact the entire population. Whooping cranes that do not perish from direct collisions with the blades could suffer potentially irreparable harm through the loss of hundreds of square miles of vital migration stopover habitat.
According to a 2009 government report, a rise in mortality rate of just three percent annually would doom the species. As it is, loss of genetic diversity will continue unless the wild population is able to grow to approximately 1,000 individuals, a goal that is likely improbable given current rates of land development in critical habitat areas.
The majority of wind farms proposed and built in the U.S. do not require federal permits so there's no nexus for wind developers to consult with the U.S. Fish and Wildlife Service prior to siting projects. Still, wind energy facilities must lawfully abide by the Endangered Species Act, despite their favored status under the Obama administration.
We encourage readers to see Judge Roger Titus' landmark opinion involving the Beech Ridge wind energy project (December 2009) where he recounts some of the legal history of the Act including the 1978 Supreme Court decision that halted construction of the Tellico Dam  in Tennessee. Titus cites this from the 1978 decision: “examination of the language, history, and structure of the legislation under review here indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities,” (id. at 174) and that Congress’ purpose “was to halt and reverse the trend toward species extinction, whatever the cost,” (id. at 184). The value of endangered species was found to be "incalculable."
Few developers bother to file for incidental take permits even in cases where the potential of injuring or killing endangered species is high. And why bother? Despite known cases of endangered and threatened species killed at wind plants, we know of no cases where penalties have been imposed. In fact, the threat of enforcement was hardly even noticed until the Beech Ridge decision. In 1978 it was the Department of the Interior who filed the Tellico Dam case. Today, U.S. Secretary of the Interior, Ken Salazar, sides with the American Wind Energy Association (AWEA) in proclaiming that wind power is compatible with existing federal laws protecting wildlife and their habitat.
With all due respect, Secretary Salazar is wrong.
The fact is we have federal laws and decades of legal precedence directed at protecting endangered species that now create uncomfortable obstacles to nebulous energy goals (20% wind power by 2030) and shifting tax policy that promote job creation and renewable energy.
A Safe Harbor plan
The U.S. Fish and Wildlife Service is acting at the request of the Wind Energy Whooping Crane Action Group, a collection of 19 of the largest wind energy developers .
The incidental take permit sought by the Group, if granted, will sweep away decades of environmental policies meant to protect whooping cranes and their limited habitat. Under the new plan, wildlife impacts that would be deemed unacceptable in the context of different kinds of projects will be excused. Other birds included in the plan are the lesser prairie chicken, Sprague’s pipit, the mountain plover, piping plover and interior least tern. In exchange, applicants must agree to develop and abide by a habitat conservation plan aimed at minimizing impacts.
For nearly a decade, the wind industry has downplayed the impact of turbines on birds by pointing to house cats and buildings as the real danger but wind farms are not as benign as claimed. The Beech Ridge decision was a wake-up call for both developers and the Department of the Interior. Hiding violations from the public will be harder moving forward and as more turbines are erected.
Offering safe harbor to developers is inherently wrong. Especially when the proposed habitat conservation plan will be developed by the wind industry and overseen by an administration that has consistently advocated for wind. Instead, Fish and Wildlife Service scientists and field offices should be allowed to do their jobs and enforce the laws we have.
The next step in the process is for the Fish and Wildlife Service to receive public comment on the plan. The Service published a notice in the Federal Register on July 14, 2011 initiating a 90-day comment period. For information on how and where to submit comments, visit the Service’s web site to download a copy of the notice.
The Endangered Species Act is one of the few defenses whooping cranes have against irreversible decline and extinction. Please consider making your voice heard on this critical matter.
 The Tellico Dam was later completed after Congress exempted the project from the Endangered Species Act.
 The Group includes Acciona North America; Allete; Alternity; BP Renewables; Clipper Wind Energy; CPV Renewable Energy Company, LLC; EnXco; Duke Wind Energy; Horizon Wind Energy; Iberdrola Renewables; Infinity; MAP Royalty; NextEra Energy Resources; Renewable Energy Systems Americas; Terra-Gen; Trade Wind Energy; Element Power; Own Energy; and Wind Capital Group.
Editor's note: A separate and developing story involving Bald Eagles and the Goodhue Wind project approved in Minnesota provides important perspective.