Published on July7, 2004

MONTPELIER — Bird and bat studies will likely play a role in the decision over whether four tall wind towers will be allowed to be constructed on the summit of East Mountain, thanks to a recent order from the Public Service Board (PSB).

Issued late last month, the ruling gives the Agency of Natural Resources (ANR) and The Nature Conservancy (TNC) the fall months to study the behavior of bats and birds at the East Haven site.

At the same time, however, the ruling is contingent upon the board receiving fieldwork plans by the end of this month.

Adopting a no-nonsense stance, PSB Hearing Officer Kurt Janson said he would not allow the environmentalists to drag their feet.

“While these parties should be afforded the opportunity to conduct those studies, they should not — and will not — be permitted to delay final resolution of this proceeding based on the unfulfilled promise of forthcoming studies,” wrote Mr. Janson in his June 23 order.

A companion order released the same day by the board turned back a bid by another wind farm company to intervene in the bird debate.

enXco, the company that wants to develop a wind farm along the ridgelines of Lowell Mountain, petitioned the board in May on grounds that PSB’s ruling on bird studies may have far-reaching implications.

According to Mr. Janson’s summary of the petition, enXco was concerned that a ruling on whether to require extensive bird studies would likely serve as a precedent for future projects.

However, Mr. Janson went on to rule that the company’s concern did not “constitute sufficient interest to support intervention.” The hearing officer also noted that enXco would have a chance to offer evidence at “its own proposed wind projects.”

The order to expand the hearing time frame and include at least a season’s worth of pre-construction studies on birds and bats was met with mixed reactions.

Windfarm’s Vice President Dave Rapaport said Tuesday that he was a little disappointed by the order.

“It doesn’t look like we’ll be proceeding forth this year,” he said.

But, on the other hand, he noted the order did not rule against his company’s contention that such studies are unnecessary.

The order did not give ANR all it was looking for, either.

“It’s not necessarily the full pre-construction studies we would like to see done,” said William Coleman, the attorney for ANR who is handling the case.

But he said the expanded schedule will give the state and its allies, which include the citizens’ group opposing the project, Kingdom Commons Group, sufficient time to develop the facts.

“We will have a hearing before we get to next spring,” he said.

The PSB order came in response to a motion to expedite the process from developers at East Haven Windfarm of Montpelier, which has an application to build the towers pending before the board. The developers had asked in April for a full hearing to determine if a migratory bird and bat study was necessary and useful. They take the position that such studies should have no bearing on the project.

The developers have the support of some prominent public-interest organizations like Renewable Energy Vermont, as well as the Conservation Law Fund (CLF), one of the most active environmental organizations in the state.

Simply put, these organization take the position that wind turbines poise minimal risks to wildlife, and that extensive studies prior to construction would put small-scale wind developers out of business.

“Requiring the level of pre-development study and analysis proposed by ANR for small-sized wind projects would effectively render such projects economically infeasible,” wrote CLF.

But the problem is that such studies are scarce when it comes to migratory birds and wind power. And both the state and The Nature Conservancy have argued that more information on bat and bird behavior needs to be collected at the site before the PSB renders a decision.

In his discussion of the case, Mr. Janson noted in his order that the studies proposed by ANR and TNC could cost as much as $200,000 a year. Also, Windfarm President, Mathew Rubin testified in an affidavit to the board that his company would need a final order by the end of the year in order to complete construction by 2005.

That doesn’t appear likely now. As a result of Mr. Janson’s decision, a technical hearing on the project will not be held until March. And that late date, Mr. Rapaport acknowledged, will push construction into 2006.

Still up in the air is who will pay for the fall studies. Mr. Coleman noted Tuesday that the costs are still being worked out, even as the agency is feeling the crunch of a deadline to pull its plans together. And in a northern promontory like East Mountain, noted Mr. Coleman, a fall migratory study should get underway in August.

In his discussion of the state’s case, Mr. Janson noted that both ANR and TNC said they did not have the resources to cover multi-year bird and bat studies. However, he made it clear that the ball is in their court.

“I conclude that the schedule should continue to provide the parties with the opportunity to conduct fall migratory studies,” he said.

But he went on to add that the opportunity would be contingent on a filing by month’s end that would include “a description of the scope, schedule, and methodology for each study.”

Once the deadline has passed, he warned, any party, including himself, may move to accelerate the schedule.