Endangered Species Allegation Challenges Maine Wind Farm’s Clean Water Act Permit
Boston based independent renewable energy company First Wind is planning to build a 50-turbine wind farm in Oakfield, Maine. The project will bring a 59-mile transmission line to Aroostook County, a remote area not connected to the U.S. power grid that currently receives electricity from nearby Canada on a single pole run. The Maine Department of Environmental Protection (“MDEP”) approved the project twice – first in 2010 for a smaller version of the project and again in 2012 for the current expanded version of the project. Yet First Wind now faces opposition from environmental groups claiming that the U.S. Army Corps of Engineers (“USACE”) failed to evaluate the project’s potential impacts to species and wildlife in violation of the Clean Water Act.
Evergreen Wind II LLC (“Evergreen”), a subsidiary of First Wind, applied for a permit to construct the Oakfield project in April 2009. Both the MDEP Commissioner and the Maine Board of Environmental Protection (“Board”) approved the application in January 2010. Nearby property owners quickly challenged the project in state court, arguing that the noise causes adverse health effects and lowers property values. The Maine Supreme Judicial Court rejected their claims in March 2011, holding that the Board was correct to issue the permit. The court found substantial evidence to support the Board’s decision not to hold a public hearing and its finding that the project would not cause unreasonable adverse health effects. It noted that MDEP hired a noise control consultant, who concluded that the sound assessments submitted by Evergreen were reasonably and technically correct.
In January 2012, MDEP and the Board approved an expanded version of the project on the condition that the turbines operate in reduced sound power mode and the company submit to sound monitoring reports. However, in a lawsuit filed earlier this month in federal district court in Maine, environmental groups Protect our Lakes and the Forest Ecology Network challenge the project on other grounds. The complaint alleges that the USACE did not evaluate potential impacts to either the Atlantic salmon or the bald eagle. Rather, the groups aver, USACE merely concurred with the U.S. Fish and Wildlife Service’s (“FWS”) requirement that Evergreen develop an eagle conservation plan and implement it before starting commercial operations, which they assert will do little to prevent habitat fragmentation and destruction caused by construction. The groups claim that the dredging and filling associated with the transmission lines would degrade streams that support Atlantic salmon.
The permit authorizes Evergreen to place temporary and permanent fill into inland waterways and freshwater wetlands to build the infrastructure for the wind farm, including roads, transmission lines, and turbine pads. Specifically, Evergreen is planning to impact about 227 linear feet of perennial stream at three locations of designated critical habitat for Atlantic salmon. Evergreen is also planning to clear 319,129 square feet of upland and wetland for transmission line crossings of streams located within the salmon’s designated critical habitat. MDEP consulted with fisheries scientists from the Maine Department of Marine Resources, who approved Evergreen’s proposals addressing these issues, including the use of open bottom arch culverts at the three stream crossings to maintain ecosystem function and fish passage connectivity. Based on the project design, the absence of in stream work, and buffer requirements applied at the crossings, MDEP found that the project would not pose unreasonable impacts to Atlantic salmon habitat. As for bald eagles, MDEP found no record of bald eagle nests located within the proposed transmission line corridor.
A spokesperson for First Wind, John Lamontagne, said that the USACE and FWS thoroughly reviewed the project and its potential impacts and concluded that it complied with federal laws. Indeed, MDEP’s order indicated that the project has made “adequate provision[s] for fitting the development harmoniously into the existing natural environment and the development will not adversely affect existing uses, scenic character, air quality, water quality or other natural resources.”
We will continue to follow this lawsuit and the Oakfield wind project, which must navigate the federal approval process before construction may begin.
Posted at 11/12/2013 3:33 PM