§19.7 - Developing Issues
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§19.7 Developing Issues
As a result of population growth and development, natural habitat has become increasingly scarce and fragmented. Additional anthropogenic threats to the survival and recovery of listed species are uncovered as new information becomes available. Abatement of these threats often conflicts with other development interests. In Washington, efforts to meet renewable portfolio standards and to implement the National Flood Insurance Program are currently at odds with necessary protections for endangered and threatened species and their critical habitat. Nationally, the services are also struggling to incorporate consideration of climate change impacts in ESA programs.
(1) Alternative energy development and endangered species
As the human population in western Washington continues to increase, the need for development of additional energy resources is also growing. Some alternative energy sources have the potential to provide reliable power to state residents without contributing to carbon emissions levels. The Energy Independence Act, Washington Ballot Initiative 937, requires large utilities to obtain 15 percent of electricity provided from sources of alternative energy other than hydropower, citing stable electricity prices, job creation, economic benefits for local governments, and protection of air and water resources. See Ch. 19.285 RCW. Although the state may benefit from the development of alternative energy sources, construction and operation of alternative energy facilities, particularly wind farms, can have negative impacts on endangered or threatened species by fragmenting and destroying critical habitat and directly harming individual animals that collide with structures on the project site. Dept of Fish and Wildlife, Wind Power Guidelines 2 (2009).
In 2009, the Washington State Legislature unanimously adopted Senate Joint Memorial 8001, which states that the federal ESA has the potential to pose significant challenges, including regulatory uncertainty, for those seeking to develop wind and other alternative energy projects in locations that could potentially impact any wildlife listed as threatened or endangered. S.J. Mem. 8001, 61st Leg., Reg. Sess. (2009). The Joint Memorial addresses President Obama, Congress, and the Secretary of the Department of the Interior, and requests that the [USFWS] work cooperatively with the states regulatory agencies and energy producers to resolve these federal endangered species act issues in a manner that allows the continued development of Washingtons wind and other alternative energy resources while at the same time protecting threatened and endangered wildlife. Id. This document reflects a recognition that federal, state, and local agencies and energy producers will have to cooperate to facilitate development of alternative energy facilities in a manner that does not negatively impact species.
Renewable energy projects are not exempt from the ESA. Failure to avoid impacts to listed species may pose significant challenges to a project. A federal district court decision in Maryland highlights the potential conflict between alternative energy development and endangered species protection. Animal Welfare Inst. v. Beech Ridge Energy LLC, 675 F.Supp.2d 540, 542 (D. Md. 2009) (noting: [t]his is a case about bats, wind turbines, and two federal policies, one favoring protection of endangered species and the other encouraging development of renewable energy resources.). Although the court enjoined further construction of a wind energy project in favor of protecting an endangered species of bat, the courts opinion also suggested that alternative energy development and endangered species protection efforts are not mutually exclusive and may successfully coexist if development impacts are appropriately assessed and mitigated under the ESA. Id. at 581.
In Animal Welfare Institute, the plaintiffs, the Animal Welfare Institute, Mountain Communities for Responsible Energy, and David G. Cowan, a private individual, challenged the proposed Beech Ridge wind energy project under §9 of ESA, alleging that development and operation of the project would take a listed species, the Indiana bat (Myotis sodalist). Id. The wind project originally involved construction of 122 turbines along a ridgetop in the Appalachians in West Virginia and had a total footprint of approximately 400 acres. Id. at 548. Based on an extensive written record as well as expert testimony at trial, the court concluded that the proposed construction may actually increase the...
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