Incidental “take” permits are history – 2 year anniversary
December 25th, 2019
![](https://legalectric.org/f/2017/12/20171211_105733_Eagle120th-576x1024.jpg)
That’s an eagle who’d been feasting on the carcass in the foreground as I drove across 110th in Freeborn County. There’s a nest off to the right (west) a bit that the Freeborn Wind developers and Dept. of Commerce don’t want to acknowledge. Wind projects are supposed to be a ways from eagle nests and foraging grounds.
A CNN article today raised this issue today, near the 2nd anniversary of a tRump administration “clarification” that stated that the Migratory Bird Treaty Act does not prohibit incidental takes.
From that CNN post:
According to emails obtained by the Times, when the Michigan Department of Natural resources emailed the U.S Fish & Wildlife Service seeking clarification if it could cut down trees, they were told “The recent M -Opinion also removes the prohibition to removing trees with active nests as long as the intent of the action is the cutting of the trees (in this case for timber harvest).” The agency did lay out potential ways to limit the damage done to the birds and nests, but noted those actions were “strictly voluntary.”
So it looks like taking down trees with nests in them would be OK for right-of-way clearing, or removing “hazard trees” by wind project?
Wind and transmission projects in this area often, if not always, have required eagle take permits (how many Decorah eagles died due to transmission lines? Four, I think!). But with the tRump administration “deconstructing the administrative state” at every turn, well, guess what was issued? Open season on migratory birds. It’s the 2 year anniversary of removal of protections:
From this memo
For the reasons explained below, this Memorandum finds that, consistent with the text, history, and purpose of the MBTA, the
statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.
Yes, you heard that right, as of December 22, 2017, federal policy, interpretation of the Migratory Bird Treaty Act, requires an take permit only for those activities that have the PURPOSE of “taking” a bird covered under the Act. So we won’t be seeing take permits required for wind and transmission projects.
And yet despite that policy turn around, he says things like this last week at “Turning Point.” He probably doesn’t even know that incidental takes are not an issue for wind projects:
But FYI, bird takes have dropped dramatically in technology changes since the days of the Altamont Pass small turbine bird blenderizers. With larger, slower blades, spaced further apart fewer birds die. But some do! Particularly an issue if turbines are installed in migratory pathways, or foraging areas. Hence the need for a take permit, for siting away from bird areas, an attempt to put a limit on kills. That bird kills have been lowered doesn’t mean there’s reason to eliminate the take permits, no reason to eliminate prohibitions. WHY?
Improper Ground Factor – Why It Matters!
December 18th, 2019
![](https://legalectric.org/f/2019/11/Ground-Factor2_Page_1-1024x791.jpg)
This is really important! I learned, after perusing the PPSA handout from Commerce, that none of the wind projects permitted in 2019, and none of the wind projects currently in the permitting process, are using the proper ground factor of 0.0 for noise modeling. WHAT?
So I put this comment together and filed it:
Needless to say, the PUC had something to say about that… they extended the comment period for the PPSA Annual Hearing!
Coal ash? Comment now!
September 22nd, 2019
![](https://legalectric.org/f/2010/02/coal-fire.jpg)
Remember the huge coal ash impoundment ruptures/breeches dumping coal ash all over? THIS is why treatment and use of coal ash matters:
TVA coal ash slide – UPDATES
And even in Minnesota: TVA coal ash — we had our own ash slide here in MN
There was a rule update and comments in 2018, and it was remanded, and so here we go around again…
FEDERAL REGISTER ANNOUNCEMENT: Disposal of Coal Combustion Residuals from Electric Utilities
Comments must be received on or before October 15, 2019!
From the EPA’s announcement (CLICK HERE):
Public Hearing on the Proposed Changes to the Regulations for Coal Combustion Residuals: Enhancing Public Access to Information and Reconsideration of Beneficial Use Criteria and Piles
Wed, October 2, 2019
9:00 AM – 8:00 PM EDT
DoubleTree by Hilton Hotel
300 Army Navy Drive
Arlington, VA 22202
The public hearing will consist of three sessions:
- A morning session starting at 9:00 am and ending at noon.
- An early afternoon session starting at 1:00 pm and ending at 4:00 pm.
- An evening session beginning at 5:00 pm and ending at 8:00 pm.
CLICK HERE FOR THE PROPOSED RULE!
Just do it, comment away!!! Comments must be received on or before October 15, 2019.
Rock County CUP granted
September 11th, 2019
![](https://legalectric.org/f/2019/09/CoAtty-Juhl.jpg)
Here they are, the two County Attorneys bookending the three developer reps, probably congratulating themselves on the County’s granting of the “Juhl Energy Development in partnership with Agri-Energy/GEVO” Conditional Use Permits for Sections 17 and 19 in Rock County.
What’s the big deal? Well, let’s start with the application, which was “fluff” — incomplete to put it mildly, and yet it was forwarded to the Planning Commission, a hearing was held without necessary information and documentation, and then it went to the County Board. Really, no exaggeration. Here’s the full board packet:
And what’s odd about this? The “conditions” proposed in the Board packet:
![](https://legalectric.org/f/2019/09/Conditions.jpg)
These are things that are to be included with an application, and if not, the Ordinance says that the application is not complete. FYI, this Ordinance was adopted in 2018, but is NOT posted on the County’s Website with the other Ordinances — really — check the link. WTF? Here it is (the County Attorney sent me a pdf, but it was only the even pages! Another WTF! Thankfully a little birdie sent the full Ordinance.):
![](https://legalectric.org/f/2019/09/Ordinance1.jpg)
![](https://legalectric.org/f/2019/09/Ordinance2.jpg)
NOTE in the heading: “An application to the County for a permit under this section is not complete unless it contains the following…” with all those 1-19 requirements constituting “the following.”
Take another look at the “application” in the board packet, two “applications” and a total of 10 pages! What a farce.
On behalf of the Jarchows, I’d sent a letter to the County Attorney, Administrator, and Zoning/Land-Use Administrator, and the County Board, laying out the problems, particularly stressing the egregiously incomplete application, together with an Affidavit of John Jarchow explaining their concerns with the potential nuisance coming to their property, a pre-existing permitted use:
And a Data Practices Act Request:
On to yesterday’s meeting. The County Attorney admitted that the Board had only the materials of the posted pack in front of them. As to the many missing items necessary for a complete application, one Commissioner asked about the Ordinance requirement of completeness, and the County Attorney said (not exact quote, but close) at least twice:
Oh, I wouldn’t be concerned about what the Ordinance says.
Really… I’d reminded the Commissioners of their Oath of Office, and I wonder if they thought about that. What’s the point of an ordinance if it’s ignored by the Board, the Planning Commission, and the Zoning Administrator who referred that incomplete application forward?
There were unstated claims that the biofuel plant needs this project to be able to sell to a California company. There’s a deadline approaching as the developers say this will be operational by year end.
IF THIS PROJECT IS SO IMPORTANT TO THE PLANT, AND TO THE COMMUNITY, why would the developer submit such an inadequate application? It’s on them, if they want to grease the skids and make it sail through, to do it right. But they didn’t.
Why would the Zoning Administrator forward such an inadequate and non-compliant application to the Planning Commission to review? Why would the Planning Commission hold a hearing and recommend it be approved when there is no record on which to base its “Findings.” Why would the County Board approve a CUP with so little record, and make a decision that has no record to support it? Why would the County allow a developer to put it in this position?
It’s on the developer to provide a complete application. If this project is so important, why would a developer make this strategic decision not to provide what’s required in an application?
Because they could? Because they couldn’t/can’t provide the information required? Because they knew the County wouldn’t make them follow the County Ordinance?
“Oh, I wouldn’t be concerned about what the Ordinance says.” Don Klosterbuer, Rock County’s County Attorney
Follow up Data Practices Act Request #2:
Court DENIES Freeborn Wind/Xcel Motion to Dismiss
August 27th, 2019
![](https://legalectric.org/f/2009/02/crowd_cheering_med.jpg)
Freeborn Wind, now owned by Xcel Energy, tried to get Association of Freeborn County Landowners booted out of the Appellate Court. Freeborn Wind’s Motion DENIED!
And here’s the Order of the Appellate Court:
And this delightful snippet:
![](https://legalectric.org/f/2019/08/Snippet.jpg)
So now we’re off to the races!! We filed a Motion to Stay the Proceeding, because Xcel has filed its request for a site permit amendment. We shall see…