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Getting a Second wind: Wind farm project revived after lawsuit; developer working on permit related to whooping crane

Stock Photo A proposal for a wind farm, like this one shown above, is taking flight. The project, which has generated concerns about its potential danger to two protected bird species, proposed near Ellendale is being revived after litigation halted it in 2011.

By Mike Nowatzki

Forum News Service

BISMARCK — A North Dakota wind farm proposed in the migration route of an endangered bird has been revived after the developer unsuccessfully sued Xcel Energy for pulling out of the project in 2011.

San Diego-based EDF Renewable Energy first proposed the 100-turbine, 150-megawatt Merricourt Project in 2008.

The wind farm would straddle southeastern North Dakota’s McIntosh and Dickey counties and produce enough renewable energy to power 43,500 homes, the company said.

Xcel Energy Inc. signed a $380 million deal to purchase the wind power and assets from EDF, formerly known as enXco.

But Minneapolis-based Xcel terminated the contract after EDF failed to secure a site permit from state regulators by March 31, 2011. The delay was blamed in part on concerns raised by federal officials about the potential effects on the endangered whooping crane and threatened piping plover.

In a lawsuit alleging breach of contract, EDF claimed that Xcel found it financially advantageous to terminate the deal at a time when the economic recession had lowered demand for electricity and reduced the cost of wind turbines.

A federal judge dismissed the lawsuit in April 2013, ruling that Xcel had the right to terminate the contract. The 8th U.S. Circuit Court of Appeals upheld the district court’s judgment in July.

The North Dakota Public Service Commission voted in June 2011 to approve the site permit, which is valid for four years. EDF amended its permit application last month with revised plans to use 75 Vestas 2-megawatt turbines instead of 100 GE 1.5-megawatt turbines, which it says are no longer available.

The changes also shrank the site between Ashley and Ellendale from 22,457 acres to 10,960 acres.

Because of the revisions, the commission has scheduled a formal public hearing at 10 a.m. Dec. 22 at Ashley City Hall.

EDF anticipates starting construction in June and having the wind farm fully operational by the end of 2015, pending permit approval. The towers will stand 427 feet tall from base to blade tip.

The U.S. Fish and Wildlife Service commented in February 2010 that “an adverse effect to whooping cranes is likely” from the project and recommended EDF not start construction until it obtains an “incidental take” permit, which allows a landowner to proceed with an activity that would otherwise result in the illegal killing of an endangered or threatened species.

As EDF noted in its lawsuit, such a permit isn’t required for the Merricourt project, “but is merely ‘insurance’ to protect against the highly unlikely event of prosecution” should one of the birds be killed. Under federal law, killing a whooping crane is punishable by a $100,000 fine and one year in prison.

Kevin Shelley, acting North Dakota supervisor for the Fish and Wildlife Service, said the agency has worked extensively with EDF on a habitat conservation plan, the vehicle for issuing an incidental take permit.

“They have put what I would say is a good-faith effort into building what is a very robust and solid program,” he said, noting some wind developers in the whooping crane’s path have chosen to skip the plan and take on the additional financial risk.

Information is still being gathered to help the service decide whether issuing a permit is appropriate, Shelley said, adding, “We’re still some time away from that.”

Fewer than 300 whooping cranes remain in the wild, Shelley said. The Merricourt site is in the bird’s migration zone, “but it’s near the edge,” making it difficult to measure the risk, he said. The piping plover has known nesting grounds within three miles of the site, he said.

Shelley said the service’s current approach to protecting the whooping crane from wind turbines is to have observers — typically company employees or consultants — watch for whooping cranes in the morning and evenings during their spring and fall migration periods. If the bird is detected, the turbines are temporarily shut down to allow the birds to fly by safely.

The service and EDF are working out the details of such a program, but Shelley said there’s still a margin of error.

“These birds can come in at night and you don’t know they’re there in the morning,” he said. “It’s not a foolproof system by any means.”

EDF spokeswoman Sandi Briner said via email that she was in a training session and would respond to questions soon, but she hadn’t done so by 7 p.m.

Public Service Commission Chairman Brian Kalk said EDF could have difficulty finding a buyer for the project if it doesn’t enter into a habitat conservation plan.

Also, if a company chooses not to pursue a plan, “that’s a big decision factor for us,” he said.

Nowatzki is a reporter for Forum News Service. Contact him at 701-255-5607 or by email at mnowatzki@forumcomm.com.

Mike Nowatzki

Mike Nowatzki reports for Forum News Service. He can be reached at (701) 255-5607.

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