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COASTAL UPDATE – SPECIAL EDITION THE KENEDY WIND FARMS |
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This is a special edition of my coastal update that is written regarding the Kenedy County wind farms. The Coastal Habitat Alliance is a group that was formed to bring together environmental and private sector interests to act to protect our coast. The Coastal Habitat Alliance is working to identify some agency with jurisdiction over these environmentally damaging wind farms. We are in federal court over the absolute absence of the Texas Coastal Management Program and we hope to have the court order the construction stopped pending some type of coastal management review. In the meantime, we have identified two major environmental issues and we are trying to find a regulatory agency with jurisdiction other than the relatively worthless Texas Coastal Management Program. Here is a summary of the current situation. The Wind Farms Two large wind farm projects are in the early stages of construction in Kenedy County - one by Babcock and Brown on the Kenedy Foundation lands and one by PPM Energy on the Kenedy Trust lands. According to filings with the Federal Aviation Administration, 291 turbine locations are currently identified between the two projects (these are registered as air navigation hazards because they are about 400 feet high). The turbines are arranged in rows that extend from the southwest to the northeast in order to intercept the prevailing wind that comes from the southeast. Within the rows, the turbines are about three or four football fields apart (roughly 300 to 400 yards). The rows themselves are about a mile and a half apart because of airflow issues. Based on these filings, the current wind farm plans (which represent about 700 MW of power production) will occur in an area of about 35,000 acres. If the full 1200 MW reserved with the Energy Reliability Council of Texas (ERCOT) for Kenedy County is built, the wind farms will cover about 60,000 acres. Within the 35,000 acre site, between 50 to 150 miles of industrial-grade road will be constructed, depending upon whether the roads directly connect the turbine locations or whether the roads will be constructed around surface wetlands as has been promised by the wind developers to the U.S. Army Corps of Engineers. The Environmental Impact Issues There are two very serious environmental impact issues associated with the two Kenedy County wind farm proposals. The construction of these wind farms is occurring within a unique sand sheet wetlands system that is maintained by rainwater moving through the shallow subsurface through a huge land area. This regional water flow also provides freshwater to the hypersaline Laguna Madre. Our analysis indicates that construction of these wind farms would interfere with this regional water movement, leading to catastrophic impacts to the wetlands biology and potentially to the Laguna Madre. There are also major bird-related issues associated with the construction of these wind farms at this location. This is a major migratory corridor, with literally millions of birds moving through this area during spring migration as well as in the fall. There is also extensive local use of the wetlands by resident wading birds, particularly during the winter when ducks like the redheads feed and rest throughout this area. According to our bird strike experts, the development of this site could lead to the worst avian impact disaster in the history of North American wind energy. Impact to the Laguna Madre Dr. Ron Sass, the former chair of the Ecology Department of Rice University and the Weiss Chair in Natural Resources at Rice, is a biogeochemist who has been studying the regional movement of freshwater in Kenedy County for the Coastal Habitat Alliance, along with Dr. John Jacob from the Coastal Wetland Center of the Texas A&M Extension Service and Larry Dunbar, a hydrologist and Registered Professional Engineer.
According to Dr. Sass and the team, the wind farm projects are being constructed at a unique place on the Texas coast - the land cut area of the Laguna Madre. The land cut is a land bridge that connects the Kenedy County mainland where the projects are being constructed with Padre Island, dividing the Laguna Madre into the Upper Laguna and Lower Laguna. Two major Gulf of Mexico currents - one flowing from north to south and another flowing south to north from Mexico - meet and deposit sand on the beach-side of the land cut. This sand has been blown inland for thousands of years, forming the South Texas Sand Sheet in Kenedy County. This is a very well known geologic phenomenon. This sand is laid down on top of a clay geologic base. So - the land in Kenedy County has a clay base a few feet below the surface that is covered by sand. In places, the sand has blown out, leaving depressions that are wetlands. In other areas, the sand has piled up as dunes, leading to the interesting landscape of this region. Kenedy County gets about 26 inches of rain per year. When rain comes, the water falls on the sand and is immediately soaked into the subsurface. However, it can't go very far down before it hits the relatively impermeable clay layer. So - the water builds up in the subsurface sand layer and begins to flow very slowly through the sand, following the gentle slope of the land toward the Laguna Madre. Where the sand has been blown out, wetlands occur at the land surface. Over time, this regional flow of water reaches the tidal flats and waters of the Laguna Madre, providing an important source of freshwater inflow for this hyper-saline system. This regional water movement is not well researched nor well understood but there is no doubt that this regional water system and movement exists. It is clear that the wetlands occurring within the wind farm area are fed by this water source as is the Laguna Madre itself. According to Dr. Sass, any disruption of this water flow would be catastrophic to the regional hydrology and the wetlands fed by this system along with the Laguna Madre. In other words, if this regional water flow is disrupted, the ecology of this region - which has been termed "The Last Great Habitat" of Texas - would be irreparably impacted. Dr. Sass's opinion - one shared by our engineer Larry Dunbar, myself and others - is that it is impossible to construct the wind farm without disrupting this regional flow of water into the wetlands and the Laguna Madre due to the impact of the construction of the extensive road system needed to construct and maintain the turbines. Our analysis indicates that in order to construct industrial-grade roads in this sand environment, either the sand will need to be removed or it must be seriously compacted. Either way, the subsurface flow of water will be disrupted. Additionally, trenches must be constructed and backfilled in order to lay the utility lines that collect the electricity. This is heavy industrial construction - there will be large caliche trucks, concrete mixers and trucks carrying the blades and assembly of the turbines with payloads of 40 tons. This is industrial construction and development that has impacts and implications to this fragile and unique natural system. The blockage of the regional fresh water flow in itself is sufficient reason for concern and opposition but storm surge issues make the blockage more significant. When Hurricane Brett hit in 1999, the storm surge rose to an elevation of approximately 7 to 8 feet. Back then, the salt water covered the land surface and then drained back, leaving no lasting harm to the natural system. However, if water movement is impeded in either the surface of subsurface, then salt water will be impounded throughout this freshwater wetlands system, ultimately destroying 35,000 acres of prime habitat. Impact to Birds and Threatened and Endangered Species Coastal Habitat Alliance - has released a study by EDM International, experts in bird kills from power lines, communication towers and wind farms. EDM reviewed documentation released to date by one of the companies and evaluated the suitability of these sites based on the USFWS voluntary guidelines. EDM found that three major locational criteria relative to birds - avoidance of migratory corridors, avoidance of areas with local bird movements, and avoidance of areas with endangered or threatened bird species - were not followed in the decision to locate these projects in Kenedy County. EDM evaluated the suitability of these Kenedy County sites using the Potential Impact Index process of the USFWS and found that these sites rated almost as high as the Aransas National Wildlife Refuge site. By contrast, certain West Texas sites that were also evaluated came out much lower in the score, indicating that from a bird strike perspective, the Kenedy County site should be avoided and West Texas sites developed instead. Finally, EDM concluded that if these sites were in fact developed, it is likely that "these proposed projects could result in the most significant impacts to birds in the history of North American wind energy." The United States Fish and Wildlife Service (USFWS) has written letters expressing concerns about the bird kill and endangered species impact issues of this project. Unfortunately, the USFWS is an agency with no regulatory authority. Instead, the USFWS has authority to prosecute for a "take" of birds and/or endangered species under either the Migratory Bird Treaty Act or the Endangered Species Act, but such action is after the take or kill has occurred, not before. USFWS has written letters to the wind farm developers asking them to come in and undertake a voluntary review under the Endangered Species Act. So far, the developers have met with USFWS but have not submitted any application to allow the issuance of a "take" permit under the ESA. Click Here to read the USFWS Letter to Babcock and Brown Click Here to read the USFWS Letter to PPM Energy, Inc. No Regulation To date there has been NO regulation of the wind farms. The Coastal Habitat Alliance believes that the U.S. Army Corps of Engineers has regulatory authority under either Section 10 of the River and Harbor Act of 1899 or perhaps under Section 404 of the Clean Water Act. Of these, the better-known program is the Section 404 program whereas the Section 10 permit program is not often used by the Corps outside of navigable waterways. However, this is a unique problem and will require some innovative thinking if regulation of these two wind farm projects is to occur. First, consider the Section 404 permit program. Under the Section 404 program, a permit is required only if the developer proposes to discharge fill material into jurisdictional wetlands. So far, the wind farm developers have worked with the Corps to identify surface wetlands and to avoid them. The reality of the Section 404 permit program is it is possible to negatively impact wetlands - e.g., starve them of their water supply and ultimately destroy them - without triggering the need for a Section 404 permit. That is exactly what we fear will happen if this construction continues - that the road system will alter the subsurface flow of water that replenishes the wetlands and provides the Laguna Madre with freshwater inflow. The permit program that may be relevant is Section 10 of the River and Harbor Act of 1899. Under Section 10, the Corps has jurisdiction over any activity in or affecting navigable waters of the United States. The Laguna Madre (to the extent of mean high tide) and the Gulf Intracoastal Waterway are navigable waters of the United States. The wind farms will impact these waters by intercepting the water flow and impacting the Laguna. We need the help of anyone who is interested in contacting the Corps and asking them to regulate these wind farms under Section 10. Federal Court Litigation Update A lawsuit has been filed in federal court by the Coastal Habitat Alliance against Land Commissioner Jerry Patterson, the Texas Public Utility Commissioners and the wind developers over the failure of Texas to follow its Coastal Management Program and require a permit for the construction of electrical generation facilities within the Texas Coastal Zone. When Texas joined the federal coastal program in 1995, a contract was reached between the State of Texas and the Federal Government over regulation of new development within the Texas coastal zone. Texas represented that it would regulate all electrical generation facilities within the Texas coastal zone as well as all land and water uses having a direct and significant impact on coastal waters. As a result of this representation and the subsequent agreement, Texas has received millions of dollars in federal aid. Now the State is taking the position that this regulatory program was eliminated by the Legislature with deregulation of the electric industry and no longer exists. However, the State failed to notify the federal government of this change in their agreement. Our suit essentially argues that the State lost the right to unilaterally change its regulatory program in the coastal zone once it made the agreement and took federal money. Unless and until such changes are fully considered and approved by the federal government (which has not happened), either a regulatory program still exists and must be enforced or no development may occur until some manner of permitting is conducted. This case has been filed in federal court in the Western District of Texas, Austin Division, and a Motion for Preliminary Injunction has been recently filed. The case is complex. Because there is no right of citizen enforcement under the federal Coastal Zone Management Act, our suit has been filed under the U.S. Constitution for violation of the Supremacy Clause and for taking of our property (a permit process) without due process of law. We may file a Motion for Temporary Injunction in the not-too-distant future, depending upon what we hear from the Court regarding the timing of a hearing on our Motion for Preliminary Injunction. Call to Action We need help in saving 35,000 valuable acres on the shoreline of the Laguna Madre. Road construction has already begun. The time for action is now. If you know a politician or someone who is influential with politicians, please contact them and let them know that these projects should be regulated. We need the Corps of Engineers to write to the developers, asking them to stop construction and apply for a Section 10 permit. Alternatively, we would ask the Corps of Engineers to reconsider its decision that no Section 404 permit is needed for these developments. The important point is that you can help today, if you will. Thanks. Blackburn. This links may be useful - For additional mailing addresses, Click Here |
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