[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                          GONE WITH THE WIND:
                       IMPACTS OF WIND TURBINES
                           ON BIRDS AND BATS

=======================================================================

                           OVERSIGHT HEARING

                               before the

                  SUBCOMMITTEE ON FISHERIES, WILDLIFE
                               AND OCEANS

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                          Tuesday, May 1, 2007

                               __________

                           Serial No. 110-22

                               __________

       Printed for the use of the Committee on Natural Resources



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                     COMMITTEE ON NATURAL RESOURCES

               NICK J. RAHALL II, West Virginia, Chairman
              DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas              Ken Calvert, California
Frank Pallone, Jr., New Jersey       Chris Cannon, Utah
Donna M. Christensen, Virgin         Thomas G. Tancredo, Colorado
    Islands                          Jeff Flake, Arizona
Grace F. Napolitano, California      Stevan Pearce, New Mexico
Rush D. Holt, New Jersey             Henry E. Brown, Jr., South 
Raul M. Grijalva, Arizona                Carolina
Madeleine Z. Bordallo, Guam          Luis G. Fortuno, Puerto Rico
Jim Costa, California                Cathy McMorris Rodgers, Washington
Dan Boren, Oklahoma                  Bobby Jindal, Louisiana
John P. Sarbanes, Maryland           Louie Gohmert, Texas
George Miller, California            Tom Cole, Oklahoma
Edward J. Markey, Massachusetts      Rob Bishop, Utah
Peter A. DeFazio, Oregon             Bill Shuster, Pennsylvania
Maurice D. Hinchey, New York         Dean Heller, Nevada
Patrick J. Kennedy, Rhode Island     Bill Sali, Idaho
Ron Kind, Wisconsin                  Doug Lamborn, Colorado
Lois Capps, California               Vacancy
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina

                     James H. Zoia, Chief of Staff
                   Jeffrey P. Petrich, Chief Counsel
                 Lloyd Jones, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

             SUBCOMMITTEE ON FISHERIES, WILDLIFE AND OCEANS

                MADELEINE Z. BORDALLO, Guam, Chairwoman
     HENRY E. BROWN, JR., South Carolina, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Wayne T. Gilchrest, Maryland
    Samoa                            Cathy McMorris Rodgers, Washington
Neil Abercrombie, Hawaii             Bobby Jindal, Louisiana
Solomon P. Ortiz, Texas              Tom Cole, Oklahoma
Frank Pallone, Jr., New Jersey       Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island     Don Young, Alaska, ex officio
Ron Kind, Wisconsin
Lois Capps, California
Nick J. Rahall II, West Virginia, 
    ex officio


                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, May 1, 2007.............................     1

Statement of Members:
    Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam     1
        Prepared statement of....................................     3
    Brown, Hon. Henry E., Jr., a Representative in Congress from 
      the State of South Carolina, Prepared statement of.........    79
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     5
        Prepared statement of....................................     5
    Sali, Hon. Bill, a Representative in Congress from the State 
      of Idaho...................................................     3

Statement of Witnesses:
    Arnett, Edward B., Conservation Scientist, Bat Conservation 
      International..............................................    23
        Prepared statement of....................................    25
        Response to questions submitted for the record...........    33
    Daulton, Michael, Director of Conservation Policy, National 
      Audubon Society............................................    54
        Prepared statement of....................................    56
        Response to questions submitted for the record...........    61
    Fry, Donald Michael, Ph.D., Director, Birds and Pesticides, 
      American Bird Conservancy..................................    35
        Prepared statement of....................................    36
        Response to questions submitted for the record...........    41
    Glitzenstein, Eric R., Partner, Meyer Glitzenstein and 
      Crystal....................................................    46
        Prepared statement of....................................    47
        Response to questions submitted for the record...........    52
    Hall, Dale, Director, U.S. Fish and Wildlife Service, U.S. 
      Department of the Interior.................................    17
        Prepared statement of....................................    19
    Mollohan, Hon. Alan B., a Representative in Congress from the 
      State of West Virginia.....................................     6
        Prepared statement of....................................     9

Additional materials supplied:
    American Wind Energy Association, Statement submitted for the 
      record.....................................................    68
    Shuster, Hon. Bill, a Representative in Congress from the 
      State of Pennsylvania, Statement submitted for the record..    67
    Taylor, Gary J., Legislative Director, Association of Fish & 
      Wildlife Agencies, Letter submitted for the record.........    67
    Vinick, Charles C., President and CEO, Alliance to Protect 
      Nantucket Sound, Statement submitted for the record........    80


 OVERSIGHT HEARING: ``GONE WITH THE WIND: IMPACTS OF WIND TURBINES ON 
                            BIRDS AND BATS''

                              ----------                              


                          Tuesday, May 1, 2007

                     U.S. House of Representatives

             Subcommittee on Fisheries, Wildlife and Oceans

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:04 a.m. in 
Room 1324, Longworth House Office Building. Hon. Madeleine Z. 
Bordallo [Chairwoman of the Subcommittee] presiding.
    Present: Representatives Bordallo, Kildee, Rahall and Sali.

      STATEMENT OF THE HONORABLE MADELEINE Z. BORDALLO, A 
     REPRESENTATIVE IN CONGRESS FROM THE TERRITORY OF GUAM

    Ms. Bordallo. The oversight hearing by the Subcommittee on 
Fisheries, Wildlife and Oceans will now come to order.
    The Subcommittee is meeting today to investigate wind 
energy and its effects on wildlife, specifically, negative 
impacts on protected bird and bat populations. Pursuant to 
Committee Rule 4[g], the Chairman and the Ranking Minority 
Member will make the opening statements. If any other Members 
have statements, I invite you to submit them for the record.
    This morning's hearing, entitled ``Gone with the Wind: 
Impacts of Wind Turbines on Birds and Bats,'' will continue the 
committee's series of investigations, exploring renewable 
alternative energy sources as options to reduce our nation's 
dependence on non-renewable fossil fuels.
    From the outset, we need to recognize the obvious reality 
that any future reduction in fossil fuel emissions will be made 
possible only through better energy conservation and the 
development of alternative energy sources. Many analysts 
believe wind energy is an economic alternative because wind 
turbines emit no harmful greenhouse gas emissions, and are 
capable of generating electricity on a utility-sized scale.
    Consequently, wind energy has been viewed conventionally as 
a green energy technology. In fact, Congress has acted over the 
past 20 years to provide financial incentives to encourage the 
private sector development of wind energy, and the industry has 
responded. In 2002, wind power generating capacity jumped by 27 
percent, and comparable growth is projected for 2007 and 
beyond.
    Yet recently studies documenting substantial bird and bat 
mortality associated with wind turbines in California and West 
Virginia indicate that our conventional wisdom concerning this 
technology may have been naive, if not flat out wrong.
    The committee will hear from this morning's witnesses about 
the degree of bird mortality that has been discovered at 
several wind projects now in operation. Witnesses will also 
testify that we can no longer assume that bat populations are 
not at risk from wind turbines. To the contrary, it appears 
that we know far too little about how bats interact with this 
technology to assume anything.
    We will also investigate the adequacy or inadequacy of 
current Federal, state, and local oversight in permitting 
authorities concerning the development of wind turbine projects 
and the protection of our wildlife.
    Of particular interest, witnesses will testify about the 
wind industry's compliance with longstanding wildlife 
conservation laws, especially the Migratory Bird Treaty Act, 
the Bald and Golden Eagle Protection Act, and the Endangered 
Species Act, and Federal enforcement.
    For example, a plain reading of the language of the 
Migratory Bird Treaty Act articulates an ambiguous authority 
for the Secretary of the Interior to protect over 800 listed 
species of migratory birds, and an abridged reading of Section 
2 of the Act reads that ``...unless and except as permitted by 
regulations, it shall be unlawful at any time by any means or 
in any manner to pursue, hunt, take, capture, or kill any 
migratory bird.''
    On its face, this language would appear to be as 
straightforward a directive as can possibly be written by 
Congress. But despite having a clearly expressed authority to 
protect birds from all sources of harm, it is surprising, if 
not alarming, to learn that the U.S. Fish and Wildlife Service 
has never prosecuted any wind power project for killing birds, 
even when the mortality has been documented and the cause of 
death irrefutable.
    The committee needs to understand why the Federal 
government continues to allow protected birds to be 
incidentally killed when it has the directive to prohibit any 
action from harming birds, including the development and 
operation of wind turbines. This responsibility is even more 
critical considering the wind industry's plan to quickly bring 
more projects on line.
    In closing, I want to make it clear that I do not oppose 
the development of wind energy. In certain circumstances, I am 
confident that this technology can provide genuine green power. 
The issue is not whether you support wind energy--we all do. 
Rather, the challenge is if we have the patience and the good 
sense to develop this promising source of alternative energy 
without causing significant harm to the wildlife we strive to 
protect.
    And now as Chairwoman, I recognize Mr. Brown, or rather, 
Mr. Sali. Mr. Brown will be here momentarily, the Republican 
Member representing Mr. Brown for any statement that he may 
have.
    [The prepared statement of Ms. Bordallo follows:]

     Statement of The Honorable Madeleine Z. Bordallo, Chairwoman, 
             Subcommittee on Fisheries, Wildlife and Oceans

    This morning's hearing entitled, ``Gone with the Wind: Impacts of 
Wind Turbines on Birds and Bats,'' will continue the committee's series 
of investigations exploring renewable alternative energy sources as 
options to reduce our Nation's dependence on non-renewable fossil 
fuels.
    From the outset, we need to recognize the obvious reality that any 
future reduction in fossil fuel emissions will be made possible only 
through better energy conservation and the development of alternative 
energy sources. Many analysts believe wind energy is a viable 
alternative because wind turbines emit no harmful greenhouse gas 
emissions and are capable of generating electricity on a utility-sized 
scale. Consequently, wind energy has been viewed conventionally as a 
``green'' energy technology.
    In fact, Congress has acted over the past 20 years to provide 
financial incentives to encourage the private sector development of 
wind energy. And the industry has responded--in 2006, wind power 
generating capacity jumped by 27 percent and comparable growth is 
projected for 2007 and beyond.
    Yet recent studies documenting substantial bird and bat mortality 
associated with wind turbines in California and West Virginia indicate 
that our conventional wisdom concerning this technology may have been 
naive, if not flat-out wrong.
    The committee will hear from this morning's witnesses about the 
degree of bird mortality that has been discovered at several wind 
projects now in operation. Witnesses will also testify that we can no 
longer assume that bat populations are not at risk from wind turbines. 
To the contrary, it appears that we know far too little about how bats 
interact with this technology to assume anything.
    We will also investigate the adequacy or inadequacy of current 
federal, state and local oversight and permitting authorities 
concerning the development of wind turbine projects and the protection 
of wildlife. Of particular interest, witnesses will testify about the 
wind industry's compliance with longstanding wildlife conservation 
laws, especially the Migratory Bird Treaty Act, the Bald and Golden 
Eagle Protection Act, and the Endangered Species Act, and federal 
enforcement.
    For example, a plain reading of the language of the Migratory Bird 
Treaty Act articulates an unambiguous authority for the Secretary of 
the Interior to protect over 800 listed species of migratory birds. An 
abridged reading of section 2 of the Act reads, ``That unless and 
except as permitted by regulations,...it shall be unlawful at any time, 
by any means or in any manner, to pursue, hunt, take, capture, [or] 
kill...any migratory bird.'' On its face this language would appear to 
be as straightforward a directive as can possibly be written by the 
Congress.
    But despite having a clearly expressed authority to protect birds 
from all sources of harm, it was surprising, if not alarming, to learn 
that the U.S. Fish and Wildlife Service has never prosecuted any wind 
power project for killing birds even when the mortality has been 
documented, and the cause of death irrefutable.
    The committee needs to understand why the federal government 
continues to allow protected birds to be incidentally killed when it 
has clear authority to prohibit any action from harming birds, 
including the development and operation of wind turbines. This need 
becomes even more critical considering the fact that the wind industry 
is ramping up to quickly bring more projects on line.
    In closing, I want to make it clear that I do not necessarily 
oppose the development of wind energy. In certain circumstances I am 
confident that this technology can provide genuine ``green'' power. The 
issue is not whether you support wind energy--we all do. Rather, the 
challenge is if we have the patience and good sense to develop this 
promising source of alternative energy without causing significant harm 
to the wildlife we strive to protect.
                                 ______
                                 

   STATEMENT OF THE HONORABLE BILL SALI, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IDAHO

    Mr. Sali. Thank you, Madam Chair. This is a statement 
actually that was prepared by Mr. Brown, and I am honored to 
read it on his behalf, and I will state for the record I do 
agree with him.
    Two weeks ago we heard that carbon emissions are the 
greatest crisis facing mankind. While I suspect many people 
would find that statement an exaggeration today, we have an 
opportunity to do something about that problem by examining the 
impacts of a clean, renewable, and safe alternative energy 
source.
    Onshore wind power is growing at a rate of 22 percent each 
year, and it provides electricity for about 8 million 
Americans. More importantly, wind turbines produce no waste. 
They require no external fuel, and they create no air, water, 
or noise pollution. Unlike other fuels, they do not emit any 
carbon dioxide, nitrogen oxide, sulfur oxide or mercury into 
the environment. In fact, the existing U.S. wind turbine fleet 
displaces more than 19 million tons of carbon dioxide each 
year. To generate one megawatt of wind for 20 years, we would 
need to burn 29,000 tons of coal, or 92,000 barrels of oil.
    Nearly two years ago the General Accounting Office 
submitted a report on the impacts of wind turbines on wildlife. 
While the GAO found that wind farms in northern California and 
West Virginia were killing certain bats and birds, their 
fundamental conclusion was that, in the context of other avian 
mortalities, it does not appear that wind power is responsible 
for a significant number of bird deaths.
    More recently, the U.S. Fish and Wildlife Service has 
solicited names of individuals to serve on the Secretary's Wind 
Turbine Advisory Committee. These experts will provide advice, 
guidance, and recommendations to minimize impacts to wildlife 
relative to land-based wind energy facilities.
    While I know that this hearing will focus, or will not 
focus on the Cape wind project in Massachusetts, I found it 
interesting that a senior staff member of Greenpeace noted 
that, ``House cats in Hyannis killed more birds than this wind 
farm ever will.''
    Madam Chairwoman, we do not have to choose between onshore 
wind power or bird protection. In fact, I agree with the 
sentiments of the president of the National Audubon Society 
that, ``Our challenge is to help design and locate wind power 
projects that mitigate the negative impact on birds.''
    If we are ever going to get serious about the development 
of alternative energy sources, wind power must be a part of the 
solution. We can produce this safe, clean, and renewable source 
of energy without killing large numbers of birds or bats. We 
can accomplish that by strengthening siting standards and by 
conducting pre-construction and biological surveys. Our energy 
policy can no longer be simply to say no to each and every 
energy source.
    I look forward to hearing from our witnesses, and I am 
anxious to hear how wind power and wildlife can co-exist in the 
future. Thank you, Madam Chair.
    Ms. Bordallo. Thank you, Mr. Sali, for your opening 
statement, and now as Chairwoman, I have the honor and the 
privilege of recognizing for any statement he may have the 
esteemed Chairman of the Natural Resources Committee, Chairman 
Nick Rahall, an acknowledged expert on energy policy and a 
tireless advocate for the sensible use and conservation of our 
nation's natural resources.
    Mr. Rahall.

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE 
          IN CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mr. Rahall. Thank you, Madam Chair, for that very kind 
introduction. I appreciate it, and certainly want to commend 
you, Chairman Bordallo, for your leadership on this important 
Subcommittee and for your interest in scheduling this morning's 
hearing. I have not yet heard what my colleague from West 
Virginia has to say except to say that I am sure I will agree 
with whatever he says.
    He used to be a very valued member of this committee for 
his first term and a half here on Capitol Hill, and he has 
since left us for a higher calling, and that is to be a 
cardinal, but we still maintain our friendship, and certainly 
commend Alan for his superb leadership on this issue and so 
many issues important to our home state of West Virginia.
    Today, we will shed light on the side of wind power that 
few ever hear about; namely, the real and growing threat of 
this technology on wildlife, especially birds and bats.
    Two years ago I joined with my friend and dear colleague 
from West Virginia, from whom we will hear in a moment, Alan 
Mollohan, to request that the GAO investigate the environmental 
impacts of the birds in the wind industry in the Appalachian 
Highlands and across the country.
    The GAO made two important findings abundantly clear in its 
September 2005 report. The first conclusion was that the wind 
industry is subject to relatively indifferent and ineffective 
environmental oversight. The second finding was that we know 
far too little about the negative effect that this technology 
has on bird and bat populations.
    Since that time, permit applications have been growing in 
my state and elsewhere, but agency oversight has not kept pace 
either on the state or the Federal level.
    For instance, in June 2003, the U.S. Fish and Wildlife 
Service published voluntarily interim guidelines to avoid or 
minimize the impacts of wind energy projects on wildlife and 
their habitat. Today, May 2007, as far as I know, these 
guidelines are still voluntary.
    Meanwhile, I suspect that wind projects are on a regular 
basis in violation of the Migratory Bird Treaty Act and the 
Endangered Species Act, yet no enforcement action is being 
taken.
    In conclusion, Madam Chair, the bottom line is that we 
cannot allow ourselves to wholeheartedly embrace wind energy at 
every location where a strong wind blows without first 
evaluating this technology in its entirety and having in place 
a responsible regulatory framework. This hearing will be a 
crucial step in reaching that endeavor.
    Thank you for having this hearing.
    [The prepared statement of Mr. Rahall follows:]

            Statement of The Honorable Nick J. Rahall, II, 
                Chairman, Committee on Natural Resources

    Thank you, Chairwoman Bordallo, for your leadership on this 
important subcommittee, and for your interest in scheduling this 
morning's hearing. Today we will shed light on the side of wind power 
that few ever hear about; namely, the real and growing threat of this 
technology on wildlife, especially birds and bats.
    Two years ago I joined with my friend and colleague from West 
Virginia, Congressman Alan Mollohan, who also joins us here today, to 
request that the Government Accountability Office investigate the 
environmental impacts of the burgeoning wind industry in the 
Appalachian highlands and across the country.
    The GAO made two important findings abundantly clear in its 
September 2005 report. The first conclusion was that the wind industry 
is subject to relatively indifferent and ineffective environmental 
oversight. The second finding was that we know far too little about the 
negative effect that this technology has on bird and bat populations.
    Since that time, permit applications have been growing in my State 
and elsewhere, but agency oversight has not kept pace either on the 
State or Federal level.
    For instance, in June of 2003, the U.S. Fish and Wildlife Service 
published voluntary interim guidelines to avoid or minimize the impacts 
of wind energy projects on wildlife and their habitat. Today, May of 
2007, as far as I know these guidelines are still voluntary.
    Meanwhile, I suspect that wind projects are on a regular basis in 
violation of the Migratory Bird Treaty Act and the Endangered Species 
Act, yet no enforcement action is being taken.
    The bottom line is that we cannot allow ourselves to wholeheartedly 
embrace wind energy at every location where a strong wind blows, 
without first evaluating this technology in its entirety and having in 
place a responsible regulatory framework. This hearing will be a 
crucial step in that larger endeavor. Thank you.
                                 ______
                                 
    Ms. Bordallo. Thank you, Chairman Rahall, for your 
statement, and I would now like to recognize our first witness, 
our colleagues from West Virginia, Congressman Alan Mollohan, 
who has followed very closely the issue of wind energy 
development in his state and across his region.
    Mr. Mollohan.

   STATEMENT OF THE HONORABLE ALAN B. MOLLOHAN, A MEMBER OF 
            CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mr. Mollohan. Madam Chairwoman, Minority Member Sali, my 
good friend and colleague, Mr. Rahall, I can think of no higher 
calling than balancing the environmental concerns we have with 
the ability to produce adequate, relatively inexpensive energy 
for this country which it has relied upon for its prosperity up 
to this time.
    Madam Chairwoman, I want to commend the Subcommittee first 
for holding what I believe is the first congressional hearing 
on the impacts of wind turbines on wildlife, and I am grateful 
for the opportunity to appear before you today.
    As Congressman Rahall mentioned, he and I have been very 
interested in this. I have been following his leadership, as 
usual, on this issue, and we have obviously a great concern 
because of the impact that wind energy not thoughtfully 
introduced into West Virginia might have on wildlife and also 
on viewsheds.
    Wind energy developers have targeted the mountain ridges of 
our State of West Virginia, and for a number of years I have 
expressed my deep concern about their projects. Among the 
reasons for my concern are the environmental impacts of these 
massive projects, including their impacts on the natural beauty 
of our state, and their impacts on wildlife.
    In the past, West Virginia's natural resources were 
exploited without regard to the long-term environmental 
consequences, and I think it is imperative that this not be 
allowed to happen again.
    For anyone who has ever seen an industrial wind energy 
project on mountain ridges, it isn't at all surprising that 
they raise serious environmental concerns. For example, the 
Mountaineer Project, which is in my district, consists of 44 
turbines, each of which is about 340 feet high--in other words, 
50 feet higher than the tip of the Capitol dome--and these 
turbines are spread out over 4,000 acres of mountain ridge.
    This hearing could not be more timely. With last year's 
extension of the Federal tax subsidy for wind energy 
production, and with the concern over global warming, more 
attention is being paid to wind energy now than ever before, as 
the Ranking Member indicated.
    But at the same time, there is mounting evidence that in at 
least some regions of the country--including the Mid-Atlantic 
Region--and in some circumstances, wind turbines have a 
devastating impact on wildlife. It is especially troubling that 
these reasons for this impact are largely unknown, and so real 
solutions to these problems simply are not in sight. 
Compounding these problems is the fact that critical 
information on the bird and bat populations, such as 
information on their size and migratory pathways, simply does 
not exist.
    In short, there is little reason to believe that the wind 
energy projects that are being built in environmentally 
sensitive areas will be any less deadly to wildlife than those 
built in the past. The cumulative impact of all these projects 
on wildlife has to be of concern to Congress for at least two 
reasons.
    First, all wind energy projects--those that are destructive 
of wildlife, as well as those that are not--are Federally 
subsidized through the Production Tax Credit. Almost certainly 
those projects would not exist but for this subsidy, and so 
Congress has a real responsibility to address this issue.
    Second, the Federal wildlife protection laws are intended 
to prevent this kind of harm from occurring, and so it is also 
important for Congress to closely examine whether wind energy 
developers are complying with those statutes and whether any 
changes in the law are warranted.
    To that end, I would like to devote the remainder of my 
statement to what is occurring in West Virginia regarding the 
construction and operation of wind energy projects. Because it 
is clear that West Virginia is an environmentally sensitive 
area, one would think that both developers and the state 
permitting agency--which is West Virginia Public Service 
Commission--would adopt a cautious approach to large, new 
projects. Unfortunately, that is not the case.
    Currently there is one energy project operating in the 
state, the 44-turbine Mountaineer Project that I referred to 
earlier. It was the Mountaineer Project that, according to 
studies conducted in 2003 and 2004, killed thousands of bats 
during the study periods, resulting in estimates of mortality 
that, according to the Fish and Wildlife Service, ``...are 
among the highest ever recorded in the world.''
    The Public Service Commission has approved the construction 
of three additional, much larger projects in the state--most 
recently, in August of last year, 124 turbine project. Two 
weeks ago the commission began hearings on yet another proposed 
project.
    If these four projects are built as proposed, the number of 
turbines in the mountain ridges of West Virginia would jump by 
well more than 10-fold, to 584 turbines. If those data weren't 
sobering enough, the Fish and Wildlife Service stated recently 
that it is reviewing six more wind energy projects that have 
been proposed for this state.
    The facts relating to the project that was approved last 
August, the ``Beach Ridge'' wind energy projects, are 
particularly disturbing. That project was approved even though 
the developer's own environmental consultant predicted that the 
project would kill nearly 7,000 bats annually and thus would 
result in the same or greater mortality than had been recorded 
at the Mountaineer project.
    Moreover, after carefully reviewing the plans for the Beach 
Ridge project, the Fish and Wildlife Service determined that 
before beginning construction, the developer should conduct 
specific, multi-year studies on the impacts that the project 
would have on bats and birds, but the developer rejected the 
agency's conclusions and instead conducted studies that were 
far more limited.
    Even though the Public Service Commission decides 
applications under a ``public interest'' standard, the 
commission held that the limited studies conducted by the 
applicant were sufficient, thereby holding, in effect, that it 
was entirely permissible for the developer to disregard the 
determinations that the Fish and Wildlife Service had made.
    Overall, there are at least two lessons to be learned here.
    First, wind energy developers are not going to voluntarily 
take all the steps that are reasonably necessary for the 
protection of wildlife. They just aren't going to do it. These 
developers are for-profit corporations that, like any other, 
are answerable to shareholders. Their basic imperative will 
always be to get turbines up and running and thereby generating 
some amount of electricity, not much, by the way, and more 
importantly for their owners major tax credits.
    In the same vein, after the 2003 and 2004 studies on bat 
mortality at the Mountaineer site, the project owner refused to 
allow further studies there, and it has likewise refused to 
alter its operations in a way that could reduce bat mortality.
    Second, the state permitting agencies cannot be counted 
upon to implement the Federal wildlife protection laws. It is 
noteworthy that in disregarding the determinations of the Fish 
and Wildlife Service had made on the proposed Beach Ridge 
project, the West Virginia Public Service Commission relied 
heavily on the point that those determinations were made under 
guidelines that are voluntary and interim in nature.
    In sum, if the Federal wildlife laws are to be fully 
implemented with regard to wind energy projects, the job must 
be done by the Fish and Wildlife Service. The action of the 
Service in issuing guidelines on wind turbine impacts on 
wildlife was certainly appropriate because it is far better to 
avoid harm to wildlife in the first place rather than to 
address it after the fact.
    But one point that needs to be looked at is the effect of 
the voluntary nature of the guidelines when combined with the 
fact that no wind energy company has yet been prosecuted for 
violating the Federal wildlife laws. One question that is 
raised is whether these circumstances are tending to create a 
situation in which the wind energy companies are enjoying a de 
facto exemption from the wildlife protection laws.
    More broadly, the problem of the impacts of wind turbines 
on wildlife needs to be confronted squarely. It needs to be 
confronted honestly. One basic question that needs to be 
answered is, if developers are allowed to carry out their plans 
to build thousands of turbines on the Appalachian mountain 
ridges, what are the specific impacts on wildlife, and on our 
ecosystem, what will result?
    It is simply a matter of sound public policy that we know 
the answer to these questions before construction takes place. 
Once we have that information, we will be in a position to make 
the informed decisions on where wind energy projects should be 
built, and under what terms and what conditions.
    This hearing is an important first step in this process. I 
look forward to your continuing efforts. I compliment you for 
having this hearing, for being insightful enough to look beyond 
our rush to implement alternative ways of generating 
electricity, to look for the impacts prior to us being left 
with legacies that are unfortunate and costly in the long run, 
and is all you have to look at the energy-producing areas of 
the country to know that we have been playing catch-up because 
we did not anticipate the consequences of bad policy, and going 
forward without consideration of the impacts of the energy 
production that we have had in the past, and we want to 
anticipate it into the future.
    So I compliment you, Madam Chairman, and thank you for 
allowing me so much time to testify. I would be pleased to 
answer questions.
    [The prepared statement of Mr. Mollohan follows:]

   Statement of The Honorable Alan B. Mollohan, a Representative in 
                Congress from the State of West Virginia

    Madam Chairwoman, I want to commend the subcommittee for holding 
what I believe is the first congressional hearing on the impacts of 
wind turbines on wildlife, and I am grateful for the opportunity to 
appear before you.
    Wind-energy developers have targeted the mountain ridges of my 
state of West Virginia, and for a number of years I've expressed my 
deep concern about their projects. Among the reasons for my concern are 
the environmental impacts of these massive projects, including their 
impacts on the natural beauty of my state, and their impacts on 
wildlife. In the past, West Virginia's natural resources were exploited 
without regard to the long-term environmental consequences, and I think 
it's imperative that this not be allowed to happen again.
    For anyone who's ever seen an industrial wind-energy project on 
mountain ridges, it isn't at all surprising that they raise serious 
environmental concerns. For example, the Mountaineer project, which is 
in my district, consists of 44 turbines, each of which is about 340-
feet high--in other words, 50 feet higher than the tip of the Capitol 
dome--and those turbines are spread out over 4,000 acres of mountain 
ridges.
    This hearing could not be more timely. With last year's extension 
of the federal tax subsidy for wind-energy production, and with the 
concern over global warming, more attention is being paid to wind 
energy now than ever before.
    But at the same time, there is mounting evidence that in at least 
some regions of the country--including the mid-Atlantic region--and in 
some circumstances, wind turbines have a devastating impact on 
wildlife. It is especially troubling that the reasons for this impact 
are largely unknown, and so real solutions to these problems simply are 
not in sight. Compounding these problems is the fact that critical 
information on the bird and bat populations, such as information on 
their size and migratory pathways, simply does not now exist.
    In short, there is little reason to believe that the wind-energy 
projects that are being built in environmentally sensitive areas will 
be any less deadly to wildlife than those built in the past. The 
cumulative impact of all of these projects on wildlife has to be of 
concern to Congress for at least two reasons.
    First, all wind-energy projects--those that are destructive of 
wildlife, as well as those that are not--are federally subsidized 
through the Production Tax Credit. Almost certainly those projects 
would not exist but for that subsidy, and so Congress has a real 
responsibility to address this issue.
    Second, the federal wildlife protection laws are intended to 
prevent this kind of harm from occurring, and so it's also important 
for Congress to closely examine whether wind-energy developers are 
complying with those statutes, and whether any changes in the law are 
warranted.
    To that end, I'd like to devote the remainder of my statement to 
what's occurred in West Virginia regarding the construction and 
operation of wind-energy projects. Because it's clear that West 
Virginia is an environmentally sensitive area, one would think that 
both developers and the state permitting agency--which is the West 
Virginia Public Service Commission--would adopt a cautious approach to 
large, new projects. Unfortunately, that is not the case.
    Currently there is one wind-energy project operating in the state, 
the 44-turbine Mountaineer project that I referred to earlier. It was 
the Mountaineer project that, according to studies conducted in 2003 
and 2004, killed thousands of bats during the study periods, resulting 
in estimates of mortality that, according to the Fish and Wildlife 
Service, ``are among the highest ever reported in the world.''
    The Public Service Commission has approved the construction of 
three additional, much larger projects in the state--most recently, in 
August of last year, a 124-turbine project. Two weeks ago the 
Commission began hearings on yet another proposed project.
    If these four projects are built as proposed, the number of 
turbines on the mountain ridges of West Virginia would jump by well 
more than 10-fold, to 584 turbines. If those data weren't sobering 
enough, the Fish and Wildlife Service stated recently that it is 
reviewing six more wind-energy projects that have been proposed for the 
state.
    The facts relating to the project that was approved last August, 
the ``Beech Ridge'' wind-energy project, are particularly disturbing. 
That project was approved even though the developer's own environmental 
consultant predicted that the project would kill nearly 7,000 bats 
annually, and thus would result in the same or greater mortality than 
had been recorded at the Mountaineer project.
    Moreover, after carefully reviewing the plans for the Beech Ridge 
project, the Fish and Wildlife Service determined that before beginning 
construction, the developer should conduct specific, multi-year studies 
on the impacts that the project would have on birds and bats. But the 
developer rejected the agency's conclusions and instead conducted 
studies that were far more limited.
    Even though the Public Service Commission decides applications 
under a ``public interest'' standard, the Commission held that the 
limited studies conducted by the applicant were sufficient--thereby 
holding, in effect, that it was entirely permissible for the developer 
to disregard the determinations that the Fish and Wildlife Service had 
made.
    Overall, there are at least two lessons to be learned here.
    First, wind-energy developers are not going to voluntarily take all 
the steps that are reasonably necessary for the protection of wildlife. 
These developers are for-profit corporations that, like any other, are 
answerable to their shareholders. Their basic imperative will always be 
to get turbines up and running, and thereby generating some amount of 
electricity and--more importantly for their owners--major tax credits. 
In the same vein, after the 2003 and 2004 studies on bat mortality at 
the Mountaineer site, the project owner refused to allow further 
studies there, and it has likewise refused to alter its operations in a 
way that could reduce bat mortality.
    Second, the state permitting agencies cannot be counted upon to 
implement the federal wildlife protection laws. It is noteworthy that 
in disregarding the determinations that the Fish and Wildlife Service 
had made on the proposed Beech Ridge project, the Public Service 
Commission relied heavily on the point that those determinations were 
made under guidelines that are voluntary and interim in nature.
    In sum, if the federal wildlife laws are to be fully implemented 
with regard to wind-energy projects, the job must be done by the Fish 
and Wildlife Service. The action of the Service in issuing guidelines 
on wind-turbine impacts on wildlife was certainly appropriate, because 
it is far better to avoid harm to wildlife in the first place rather 
than address it after the fact.
    But one point that needs to be looked at is the effect of the 
voluntary nature of the guidelines when combined with the fact that no 
wind-energy company has yet been prosecuted for violating the federal 
wildlife laws. One question that is raised is whether these 
circumstances are tending to create a situation in which the wind-
energy companies are enjoying a de facto exemption from the wildlife 
protection laws.
    More broadly, the problem of the impacts of wind turbines on 
wildlife needs to be confronted squarely and honestly. One basic 
question that needs to be answered is, if developers are allowed to 
carry out their plans to build thousands of turbines on Appalachian 
mountain ridges, what are the specific impacts on wildlife, and on our 
ecosystem, that will result?
    It is simply a matter of sound public policy that we know the 
answer to this question before that construction takes place. Once we 
have that information, we will be in a position to make informed 
decisions on where wind-energy projects should be built, and under what 
terms and conditions.
    This hearing is an important first step in this process, and I look 
forward to your continuing efforts. I would be glad to answer any 
questions that you may have.
    NOTE: Additional information submitted for the record by Mr. 
Mollohan has been retained in the Committee's official files.
                                 ______
                                 
    Ms. Bordallo. I thank my colleague, the gentleman from West 
Virginia, Mr. Mollohan, for his testimony, and I ask unanimous 
consent that we enter into the record the supporting materials 
for the testimony of Congressman Alan B. Mollohan.
    Hearing no objection, so ordered.
    Mr. Mollohan. Thank you, Madam.
    Ms. Bordallo. Would any of the members wish to ask 
questions? Mr. Rahall, we will begin with you to ask a question 
of your colleague?
    Mr. Rahall. Well, thank you, Madam Chair. I don't have any 
questions really except to highlight a point that my colleague 
raised, and that is the tax credits that these corporations 
seem to be enjoying both on the Federal and state level, and it 
appears to be reminiscent of the controversy we had in the 
synfuels industry when that industry came into West Virginia, 
applied some kerosene to coal or something they claimed was 
new, and use it as a spray, and got tax credits for what was 
really nothing new, and ended up being bogus.
    At that time it was a Marriott corporation, as I recall, 
that was getting these tax credits from the state or Federal--I 
am not sure who.
    So here, it appears very much the same type of scenario. 
These out-of-state, sometimes foreign-owned corporations are 
coming in and saying they have this new pollutant abatement 
technology, or whatever they are describing it as, in order to 
get tax credits, and it seems to be just a mere write-off of 
other energy concerns they may have where they are making 
profits and trying to offset one from the other.
    So I think we need to certainly take a serious look at the 
tax credits of these out-of-state corporations maybe enjoying 
at our expense.
    Mr. Mollohan. I thing I agree totally. I think obviously 
because the Federal tax advantages for developing and 
implementing wind energy, one of the most important purposes 
and interests of the Federal government obviously is to look at 
the tax subsidy issue.
    I think a cost/benefit study would really be interesting 
here, or a cost/benefit look. What is the cost of wind energy 
in terms of revenues lost to the Federal government, revenues 
lost to the State of West Virginia?
    We are really subsidizing an industry which is contributing 
on the benefit side extremely little to the electric grid 
across the country. You would have to put windmills on every 
single ridge in West Virginia to increase the percentage of 
contribution that energy generated by windmills would increase, 
and I believe it is below 1 percent. I am sorry I don't have 
the number in my head, but it is well below 1 percent. You 
wouldn't get it up to 1 percent. Then the question is what 
damage have you done? What would be the cost not only in 
subsidies but in the cost of energy to wildlife, and to the 
viewshed?
    There is a huge environmental viewshed issue here, and I am 
not against windmills at all. There are probably places in the 
country that windmills are perfectly appropriate from every 
standpoint, from the standpoint of not impacting wildlife in an 
unacceptable way, and from a standpoint of not obstructing the 
viewshed, but there are special areas that are viewshed-
sensitive, and mountain ridges, these windmills totally 
redefine the mountain ridges.
    You do not see trees. You see windmills, and I suspect that 
is true in any silhouette kind of environmental area. I can 
imagine the oceans, it would be close in. It would be a very 
objectionable thing. So the viewshed issue is a competing 
environmental issue in my mind, and obviously the killing of 
bats and birds.
    While some of these bats--I am sorry to go on here--but 
some of these bats, these bats were not endangered species, but 
at the rate they are being killed by these windmills they may 
become endangered species in West Virginia.
    Mr. Rahall. Thank you, Alan. Thank you for your superb 
testimony.
    Mr. Mollohan. Thank you.
    Mr. Rahall. Thank you, Madam Chair.
    Ms. Bordallo. Thank you. The Chair now recognizes the 
Ranking Member, Mr. Sali, of Idaho.
    Mr. Sali. Thank you, Madam Chair.
    Congressman Mollohan, I am trying to figure out exactly 
what changes to Federal policy, Federal law that you might be 
advocating, and let me ask you some specifics.
    Are you proposing that the Federal government assume some 
kind of responsibility in siting wind turbine farms?
    Mr. Mollohan. I am definitely proposing that the Federal 
government develop, after careful hearings and careful 
studying, there is a National Academy of Science study going on 
right now with regard to siting, siting standards, absolutely. 
I think it could be a model like the surface mining 
legislation, which addresses after the fact a very unfortunate 
environmental degradation with surface mining.
    The Federal government can pass the standards and the 
states can achieve compliance with the Federal standard and 
gain primacy or have stronger standards, but the Federal 
government is definitely in the position, and certainly because 
of it subsidy is giving to windmills, has an interest in 
providing leadership in all the environmental areas, including 
the siting areas.
    Mr. Sali. You are advocating that the Federal government 
take a status of preemption in the siting?
    Mr. Mollohan. Well, what I just said was that the Federal 
government provide leadership, much in the model that is 
available for us with regard to surface mining legislation. Is 
the Federal government is in the best position and has an 
interest--I am repeating myself because certainly because of 
its subsidy interest, but it is the subsidy that it provides to 
his industry, but also because these issues are national in 
scope, and just like any other environmental control, if you 
apply the control nationally, then you create a level playing 
field for the cost.
    So, yes, I think it would be good policy for the Federal 
government to come up with siting standards which, I think, the 
states could achieve primacy with regard to by adopting those 
standards equally or stronger standards.
    Mr. Sali. OK.
    Mr. Mollohan. But the Federal government is in the position 
to provide leadership, and can you imagine how it would happen 
otherwise in 50 states?
    Mr. Sali. Well, apparently that is what we are doing today, 
and that is what you don't like, and that is what I am trying 
to figure out.
    Mr. Mollohan. No, no, no. That is what I am advocating. 
That is what I am saying. Can you imagine how it would happen 
otherwise in 50 states?
    If we have a here and now energy crisis issue, then we have 
a here and now how are we going to do it right with regard to 
each of the alternative industries, the renewable industries 
that we are going to bring forward.
    But with regard to this windmill, the industrial windmill 
industry, there are virtually no standards. Why would we do 
that? Why would we repeat the experience that we have had with 
regard to coal mining, with regard to oil production, with 
regard to oil and gas, and allow this industry to go forward 
without in a prospective way looking at the environmental harms 
and the wildlife harms? Why don't we do that?
    Be wise about it at this point based upon our experience of 
not being wise in the past, and anticipate these degradations 
and fashion policy to allow the industry to go forward, but to 
allow it to go forward only in an environmentally acceptable 
way, and siting is certainly one issue, and killing wildlife is 
certainly another issue?
    Mr. Sali. OK, let us talk abut that second piece there, the 
wildlife part.
    Mr. Mollohan. Yes.
    Mr. Sali. I think I am correct that bats are not migratory 
birds so we wouldn't regulate them under the Migratory Bird 
Treaty Act.
    Mr. Mollohan. Well, you can regulate them under anything 
you want because this is the Federal government and you are in 
the business of fashioning authorization laws, and if bats are 
endangered, as they are particularly in these sensitive areas, 
then the Federal government needs to look at that, and I would 
recommend come up with standards with regard to it if it is 
found that bats are killed in unacceptable numbers.
    Mr. Sali. So you are advocating that we add bats to the 
Migratory Bird Treaty Act?
    Mr. Mollohan. No. I am advocating that you look at the 
issue as you are doing, and I compliment you for doing that in 
this hearing. When you make a determination, number one, if 
there is a harm that should be protected against by the Federal 
government, and then you look at, as an authorizer, the 
appropriate vehicle to provide that protection.
    Mr. Sali. Congressman, I am not trying to turn this into a 
debate. I am just trying to figure out----
    Mr. Mollohan. I am not debating. I am answering your 
question. I am telling you that I think you ought to address 
it. I am not saying yes to your question, but I am telling you 
where I think they should do it. I think you should look at it, 
and I think you should address the issue appropriately. I am 
just saying, I am over here, as Nick Rahall says, on the 
appropriate side. You are on the thinking side. You are over 
here really fashioning this policy, and so I compliment you 
for----
    Mr. Sali. I am glad to know that you agree that----
    Mr. Mollohan. I am complimenting you for being able to look 
at the right place to address this issue.
    Mr. Sali. I am just trying to figure out what areas of the 
law you would like us to change.
    Mr. Mollohan. I want you to change the area of the law that 
you think is appropriate to change, and I think you are in a 
better position to determine----
    Mr. Sali. But I am asking you which ones you are advocating 
for us to change. You have more level of knowledge than--higher 
level of knowledge than I do about the specifics of this. That 
is why you are testifying.
    Mr. Mollohan. I don't.
    Mr. Sali. Are you advocating that we change the Migratory 
Bird Treaty Act? Yes or no.
    Mr. Mollohan. I am advocating that you change or create an 
appropriate legislative vehicle to address this unacceptable 
kill of bats and birds that aren't migratory and that are being 
killed at a rate that they may become an endangered species.
    Mr. Sali. All right. Thank you.
    Mr. Mollohan. Thank you.
    Ms. Bordallo. Thank you. Thank you, Ranking Member.
    Now I would like to recognize Mr. Kildee from Michigan.
    Mr. Kildee. Thank you, Madam Chair.
    Alan, years ago in the northwest of this country dams were 
being built and we found out later the effect it had upon the 
salmon population, in some instances almost ruined for certain 
rivers and further inland, even as far as Idaho salmon, and we 
didn't know what we were doing then. We didn't ask ourselves 
what would happen to the salmon.
    I think what you are doing early on, because this is still 
fairly early, to try to ask ourselves what will the effect on 
birds and bats be, and I think we commend you, I commend you 
for asking those questions that were not asked about the salmon 
years ago when those dams were being built, and some are being 
unbuilt now because of that.
    What can we do, first of all, to mitigate the harm to the 
birds and the bats, and when we do destroy or minimize one 
species, do we make it easier for other species to move in, and 
invasive species move in and have a negative effect upon that 
area?
    Mr. Mollohan. First of all, may I compliment you, which I 
hadn't thought of, on the salmon analogy. That is a very 
interesting analogy. And going back to my notion about doing a 
cost/benefit study, we are now in a remedial way spending 
hundreds of millions of dollars to ensure that the salmon, 
various salmon populations are not devastated or that we can 
restore them, and that is the one contribution the subcommittee 
that I chair makes annually, and the funding for salmon 
restorations in the hundreds of millions of dollars, and we 
every year increase the president's request in that regard, and 
we have tremendous member interest in that.
    We are also--in that cost/benefit study, we should look at 
things like how much does it cost us to restore the land after 
surface mining, or rivers and streams after underground mining, 
and so we fully appreciate, and we should do it in a 
prospective way, fully appreciate all of the harms that 
windmills can possibly result in that will leave us with these 
unacceptable legacies that are very expensive.
    When you put in a windmill, I didn't testify about this, 
but when you put in a windmill, you essentially clear-cut the 
mountain ridge, clear-cut the mountain ridge. That is what you 
do, and these are industrial sites all along the mountain 
ridge, and it does absolutely redefine the mountain ridge, and 
then, as I testified, it has these negative but only 
imperfectly documented wildlife losses, and as I pointed out, 
this study is totally inadequate in order for us to really 
fashion good policy. We have some studies coming.
    The second part of your question probably is outside my 
area of expertise. It is beyond my area of expertise, and I am 
sure there may be some fish and wildlife people here that can 
address specifically.
    Mr. Kildee. If I could amend that question a bit. I wish 
there had been Alan Mollohan around at the time we were 
building those dams, or trying now to reverse some of that 
because those questions should have been asked at that time.
    I mentioned invasive species, what effect it might have, 
but even maybe the species that are there that are being kept, 
their population kept low with the absence of bats, for 
example. The species may grow and have a negative effect upon 
the land.
    Mr. Mollohan. I have read, and only based upon that and not 
my own expertise, bats are veracious consumers of bugs, and so 
what is the impact of devastating the bat population with 
regard to mosquitoes, with regard to all kinds of----
    Mr. Kildee. Beetles, the things that sometime attack our 
forests, right?
    Mr. Mollohan. Perhaps. I don't know if beetles are a part 
of their food chain, but there are lots of--I am sure these 
smart gentlemen behind me, and ladies, can testify to there are 
all kinds of harmful insects.
    This is a lot of killing of bats--just the studies they 
did. It is really unacceptable because if they are not 
endangered at the rate they are being killed there are some 
judgments by experts that they could become endangered, and so 
why do that? Why not understand that impact before it happens 
so that we can fashion a policy, have windmills, but do it in 
the right way?
    Mr. Kildee. Well, I commend you for what you are doing 
because the forest industry in Michigan is being restored. Back 
around the turn of the century my dad was a lumberjack, went to 
work in the lumber woods, and when he was 13 years old, and he 
can recall when they brought the last load of virgin timber 
from the lower peninsula into Traverse City, Michigan. But now 
we are trying to restore it, and one of the threats to the 
forest industry, of course, are various types of insects, and 
the bats might have some role in trying to keep that population 
under control.
    Mr. Mollohan. Well, that has a huge role in keeping insect 
population down. That I do know.
    Mr. Kildee. We don't really know, but I think you are 
asking the right questions. You are raising that. I wish 
someone had done this for the salmon years ago, and they were 
just being built but no one ever asked these questions, so I 
commend you for what you are doing.
    Mr. Mollohan. Mr. Sali asked the question about is it 
appropriate in the first instance for the Federal government to 
address this issue legislatively. Well, look at it and see what 
they should do legislatively, and my answer was yes.
    I would just add to that, that the West Virginia 
Legislature has not done that, and I am not sure that any state 
has done that, and these issues can easily sneak up on you, and 
become real problems before certainly state legislatures take 
them up, and commend you for taking leadership by holding this 
hearing, and perhaps the Federal government should really step 
forward with the leadership.
    Mr. Kildee. Perhaps we can find a way where we can have 
both the wind-generated power and protect the environment.
    Mr. Mollohan. Oh, no doubt.
    Mr. Kildee. Right. And I think you are helping us.
    Mr. Mollohan. I am not here testifying against wind power.
    Mr. Kildee. Right.
    Mr. Mollohan. I am here testifying for us taking into 
consideration the consequences of the industry in different 
locations, and having us understand ahead of time what we are 
doing and fashion policy to make sure we do it right.
    Mr. Kildee. How we can mitigate damage and maybe still have 
the wind power, but mitigate the damage that it might----
    Mr. Mollohan. I am sure there are lots of places that wind 
power is appropriate and doesn't have these unfortunate 
consequences.
    Mr. Kildee. Thank you very much for what you are doing. 
Thank you.
    Mr. Mollohan. Thank you, Mr. Kildee.
    Ms. Bordallo. I thank my colleague from Michigan, Mr. 
Kildee, and our witness this morning. I thank you very much, 
Mr. Mollohan, for coming before us, and answering our many 
questions that we had, and I also wish to thank our overall 
Chairman of the Resources Committee, Mr. Rahall, for appearing 
before this hearing. You can be excused.
    Mr. Mollohan. In turn, I would like to thank you again for 
holding the hearing and allowing me to testify. I would like to 
thank my good friend, Congressman Rahall, for being here, and 
then I would like to invite you all to the only site in West 
Virginia right now, as I say there is going to be five more 
real quickly and a bunch of others, to come over and view them.
    It is in Tucker County, in the Canaan Valley. It is the 
500th wildlife refugee in the country. In the wintertime, there 
is good skiing. In the summertime, there is all kinds of good 
hiking and fishing, there is even a golf course for those who 
can't put their clubs away.
    Thank you very much.
    Ms. Bordallo. Thank you very much. That sounds like an 
interesting invitation, and----
    Mr. Mollohan. Just three hours away.
    Ms. Bordallo.--we will take that under advisement. Thank 
you.
    Mr. Mollohan. Thank you. Thank you, Madam Chairman.
    Ms. Bordallo. As Chairwoman, I now recognize our second 
panel of witnesses, and our witnesses on this panel include Mr. 
Dale Hall, the Director of the U.S. Fish and Wildlife Service; 
Mr. Edward B. Arnett, Conservation Scientist, Bat Conservation 
International; Dr. Michael Fry, Director, Birds and Pesticides, 
American Bird Conservancy; Mr. Eric R. Glitzenstein, attorney 
and partner, the law firm of Meyer Glitzenstein and Crystal; 
and Mr. Michael Daulton, Director of Conservation Policy, the 
National Audubon Society.
    I now recognize Mr. Hall to testify for five minutes. I 
would note for all witnesses that the red timing light on the 
table will indicate when your time has concluded, and we would 
appreciate your cooperation in complying with the limits that 
have been set as we have several witnesses to hear from today, 
and be assured that your full statement will be submitted for 
the hearing record.
    Mr. Hall.

               STATEMENT OF DALE HALL, DIRECTOR, 
                 U.S. FISH AND WILDLIFE SERVICE

    Mr. Hall. Good morning, Madam Chairman, Members of the 
Subcommittee.
    I appreciate the opportunity to testify before you today 
regarding wind energy development and its impacts to wildlife 
resources. Wind-generated electrical energy is clean energy. It 
is renewable and produces no emissions. However, at this point 
we cannot say that wind energy is always green energy. Wind 
energy facilities can adversely impact wildlife, especially 
birds and bats, and their habitats.
    Commercial wind energy facilities have been constructed in 
34 states, with developments planned for several other states 
as well as offshore areas and locations along all coasts, 
including the Great Lakes. As more facilities with larger 
turbines are built, the cumulative impacts of this rapidly 
growing industry may initiate or contribute to the decline of 
some wildlife populations and may seriously degrade wildlife 
habitats.
    Wind energy continues to grow exponentially with slightly 
more than 16,000 commercial wind turbines currently operating 
in the United States, and within the next 12 years it is 
predicted that that will grow to more than 155,000, almost 10-
fold increase.
    Potential harm to wildlife populations from direct 
mortality and from habitat disturbance and fragmentation makes 
careful analysis today very important. The impacts of wind 
power facilities on energy vary by region and by species. 
Studies show that wind power facilities in central California, 
Pennsylvania, West Virginia, have killed large numbers of 
raptures and bats.
    However, many wind power facilities in the United States 
have not been studied. Also, must is still unknown about bird 
migratory pathways and corridors and overall species population 
levels. As a result, scientists cannot draw definitive 
conclusions about the threat and cumulative impacts that wind 
power poses to wildlife.
    In addition to impacts to birds and bats due to the air 
strikes, the Service is concerned about the cumulative impacts 
of wind power to terrestrial fauna. New wind power development 
will require not only construction of wind turbines but also 
extensive construction of related infrastructure, access roads, 
and transmission corridors. Because much of the supporting 
infrastructure will be constructed in areas that are currently 
completely undeveloped, the effects of habitat fragmentation 
will likely impact terrestrial species.
    Regulating wind power facilities is largely the 
responsibility of state and local governments. However, 
regulatory agency officials do not always have experience or 
expertise to address environmental and wildlife impacts from 
wind power.
    The Federal government generally only has a regulatory role 
in wind power development when development occurs on Federal 
lands or involves some form of Federal participation such as 
providing funding for the projects. In these cases, the 
development operation of wind power facility must comply with 
any state and/or local laws as well as Federal laws such as the 
National Environmental Policy Act and the Endangered Species 
Act, which often require pre-construction studies or analyses 
and possible modifications to proposed projects to avoid 
adverse environmental effects.
    The Migratory Bird Treaty Act, the Bald and Golden Eagle 
Protection Act, the Endangered Species Act, and the Marine 
Mammal Protection Act are the Federal laws most relevant to 
protecting wildlife from wind power impacts, and these laws 
generally forbid harm to various species of wildlife.
    Although none of the four laws expressly require wind power 
developers and operators to take specific steps to ensure that 
wildlife will not be harmed during either the construction or 
operation of their facilities, wind power developers or 
operators are liable for any harm to protected species that may 
occur. In 2003, the Service announced the availability of 
voluntary interim guidelines that have provided and continue to 
provide a national template for use by Federal, state, and 
local governments in the wind power industry, to use in siting 
and evaluating wind power development proposals in 
environmentally friendly ways.
    On March 13, 2007, we announced in the Federal Register the 
establishment of a Wind Turbine Guidelines Advisory Committee. 
This committee will provide advice and recommendations to the 
Service and the Secretary on effective measure to avoid or 
minimize impacts to land-based wind energy facilities. 
Nominations for members closed on April 12, and we expect to 
have approximately a 20-member task force that will work with 
us over the next two years.
    The key points that we need to be evaluating, I believe, 
are, number one, the pre-construction site evaluation and 
biological needs in order to know what the impacts may be, and 
then the monitoring and proper siting of the facilities that 
comply with the best environmentally friendly aspects of siting 
facilities.
    With that, I see my time is up, and I look forward to 
answering any questions.
    [The prepared statement of Mr. Hall follows:]

                 Statement of H. Dale Hall, Director, 
       Fish and Wildlife Service, U.S. Department of the Interior

    Madam Chairwoman and Members of the Subcommittee, thank you for the 
opportunity to provide the testimony of the Department of the Interior 
and the U.S. Fish and Wildlife Service on wind energy development and 
impacts to fish and wildlife resources. I am Dale Hall, Director of the 
U.S. Fish and Wildlife Service (Service).
 Introduction
    Wind-generated electrical energy is renewable, produces no 
emissions, and is considered to be generally environmentally-friendly 
technology. The President's National Energy Policy seeks, among other 
things, to stimulate development of alternative energy sources, 
including wind, and to explore the use of these new technologies along 
with energy conservation practices. The Department, through the Bureau 
of Land Management and the Minerals Management Service, is working to 
implement this policy by providing greater opportunities for the 
development of alternative energy, including wind energy.
    As discussed in more detail below, while there are clear benefits 
to wind energy development, some facilities, particularly older 
facilities or those sited in areas with a high presence of birds and 
bats have the potential to cause deaths due to collisions, with 
unspecified long-term results. With this in mind, the Service is 
focusing its efforts on determining ways to balance wildlife needs when 
wind energy facilities are sited and constructed. My testimony does not 
address the benefits of wind power, nor does it compare the impacts of 
wind with those of other generation technologies, including traditional 
fossil fueled generation.
    In addition to wildlife studies from both Europe and North America, 
the recent Government Accountability Office (GAO) report that addressed 
these issues, and the laws and regulations currently in place to manage 
wildlife impacts from wind energy development, I will discuss positive 
actions taken by the Service to assist industry in minimizing impacts 
to wildlife when constructing wind energy facilities. These positive 
steps include publication of interim guidelines relating to siting and 
evaluating wind power development proposals and establishment of the 
Wind Turbine Guidelines Advisory Committee to provide advice and 
recommendations to the Secretary of the Interior on development of 
measures to avoid or minimize impacts from land-based facilities to 
wildlife and habitat.
 Overview of Wind Energy Development
    Commercial wind energy facilities have been constructed in 34 
states, with developments planned for several other states, as well as 
offshore areas and locations along all coasts, including the Great 
Lakes. As more facilities with larger turbines are built, the 
cumulative impacts of this expanding industry and other energy 
generation technologies as well should be evaluated. Land-based 
turbines currently are approaching heights of 450 feet above ground 
level, while offshore turbines will likely be taller, with rotor swept 
areas currently covering nearly 3 acres of airspace and blade tip 
speeds exceeding 170 miles per hour at operating speeds. Wind energy 
continues to grow, with slightly more than 16,000 commercial wind 
turbines currently operating in the United States. The President's 
Advanced Energy Initiative of 2005 notes that wind energy has the 
potential to provide 20 percent of our national electricity needs, the 
estimated equivalent of over 300 gigawatts of electricity or over 
150,000 commercial turbines nationwide. The potential harm to wildlife 
populations from direct mortality and from habitat disturbance and 
fragmentation makes careful evaluation of proposed facilities 
essential.
    As noted in the GAO's September 2005 report, titled ``Wind Power: 
Impacts on Wildlife and Government Responsibilities for Regulating 
Development and Protecting Wildlife,'' avian mortality has been well 
documented at older wind energy facilities in the western United 
States. Based on this knowledge, the wind industry has made many 
adjustments to locating facilities and equipment. However, the 
potential impact of wind energy developments on wildlife and their 
habitats is within the mission area of the Service. Due to local, 
seasonal, and annual differences in wildlife concentration and movement 
patterns, habitats, area topography, facility design, and weather, each 
proposed development site is unique and requires an appropriate level 
of evaluation.
    Europe has played a leading role in commercial wind development for 
at least the past decade, including offshore wind energy siting and 
operation. Norway, for example, produces nearly 15 percent of its 
electrical energy by wind, including offshore development. Until 
recently, detailed analysis of wind energy impacts to birds and bats in 
Europe--both for land-based and offshore facilities--had not been 
especially robust. However, recent studies of the impacts of offshore 
facilities on sea ducks, for example, have shown facility avoidance, 
behavioral modification, and feeding disturbance of these waterbirds. 
Detecting birds that have collided with offshore facilities is 
extremely difficult. The impacts that offshore facilities may have on 
increased sea duck energy demands, disruptions to feeding, and 
behavioral modification are only now being assessed.
    Service personnel may become involved in the review of potential 
wind energy developments on public lands or where there is a Federal 
nexus (i.e, a Federal permit or Federal funding) through the required 
National Environmental Policy Act review. This may be as a cooperating 
agency or because of the Service's responsibilities under the Migratory 
Bird Treaty Act, the Bald and Golden Eagle Protection Act; or because 
of the agency's special expertise. The National Wildlife Refuge System 
Improvement Act requires that any activity on Refuge lands be 
determined to be compatible with the Refuge system mission and Refuge 
purposes. In addition, the Service is required by the Endangered 
Species Act to assist other Federal agencies in ensuring that any 
action they authorize, implement, or fund will not jeopardize the 
continued existence of any federally listed endangered or threatened 
species or adversely modify its designated critical habitat. Service 
biologists have also received requests from some industry 
representatives for consultation on wildlife impacts of proposed wind 
energy developments on private lands. Proposed offshore wind energy 
facilities within 3 nautical miles of the coast currently require a 
permit under Section 10 of the Rivers and Harbors Act, which is 
administered by the U.S. Army Corps of Engineers. The Service routinely 
provides Section 10 permit application review and comment. Proposed 
offshore wind energy facilities in federal waters are regulated by the 
Minerals Management Service per its authorities under the Energy Policy 
Act of 2005. Their siting and operations will be subject to National 
Environmental Policy Act review and Endangered Species Act and Marine 
Mammal Protection Act requirements.
 U.S. Government Accountability Office (GAO) September 2005 Report on 
        Wind Power: Impacts on Wildlife and Government Responsibilities 
        for Regulating Development and Protecting Wildlife
    As previously mentioned, the GAO published a study of wind power 
and its effects on wildlife in 2005. The study did not compare the 
impacts or benefits of wind with those of other generation 
technologies, including traditional fossil fueled generation. Many of 
their summaries and findings, which are summarized here, are relevant 
to today's discussion.
    Habitat destruction and modification is a leading threat to the 
continued survival of wildlife species in the United States. Although 
wind power facilities were once thought to have practically no adverse 
environmental effects, it is now recognized wind energy, like all power 
generation technologies, can have adverse impacts, particularly on 
wildlife, and specifically on birds and bats and their habitats. Large 
numbers of birds and bats have been well documented to cross virtually 
all parts of the United States, including along mountain ridges, 
coastlines, and in broad front migrations from the Rocky Mountains to 
the Atlantic coast during their seasonal migrations. Consequently, wind 
power projects located in areas with a high presence of birds and bats 
could potentially impact these animals. For example, at older, first-
generation wind power-generating facilities in California's Altamont 
Pass west of the Bay Area, wind turbines killed large numbers of 
migratory birds. High levels of bat mortality have been documented at 
two facilities in Appalachia, as well as at facilities in Oklahoma and 
southern Alberta, Canada. Wind power facilities may also have other 
impacts on wildlife through alterations of habitat, disturbance, and 
behavioral modification.
    In this context, GAO assessed (1) what available studies and 
experts have reported about the impacts of wind power facilities on 
wildlife in the United States and what can be done to mitigate or 
prevent such impacts, (2) the roles and responsibilities of government 
agencies in regulating wind power facilities, and (3) the roles and 
responsibilities of government agencies in protecting wildlife.
    As the GAO report points out, uncertainty and gaps in knowledge 
have resulted in the inability of scientists to draw definitive 
conclusions about the threat and cumulative impacts that wind power 
poses to wildlife. The impacts of wind power facilities on wildlife 
vary by region and species. Specifically, studies show that wind power 
facilities in central California, Pennsylvania, and West Virginia have 
killed large numbers of raptors and bats. It should also be noted, 
however, that studies in other parts of the country show comparatively 
lower levels of bird mortality, although most facilities have killed at 
least some birds. Many wind power facilities in the United States have 
yet not been studied, but where studies have been conducted, research 
efforts are not consistent and the findings may not be valid. 
Furthermore, much is still unknown about bird migration pathways and 
corridors and overall species population levels. Notably, only a few 
studies have been or are being performed concerning ways in which to 
reduce wildlife fatalities at wind power facilities.
    In addition to impacts to birds and bats due to air strikes, the 
Service is concerned about the cumulative impacts of wind power to 
terrestrial fauna. New wind power development will require not only 
construction of wind turbines, but also construction of related 
infrastructure such as access roads and transmission facilities. The 
effects of such habitat fragmentation could impact terrestrial species.
    Regulating wind power facilities is largely the responsibility of 
state and local governments. However, there are regulations related to 
air safety and obstruction evaluation and analysis of wind projects 
administered by the Department of Transportation's Federal Aviation 
Administration. In addition, wind projects proposed in Federally-
administered offshore waters would be within the purview of the 
Minerals Management Service, which serves as lead regulatory agency. In 
the six states that GAO reviewed, wind power facilities are subject to 
local- or state-level processes, such as zoning ordinances to permit 
the construction and operation of wind power facilities. As part of 
this process, some agencies require environmental assessments before 
construction. However, regulatory agency officials do not always have 
experience or expertise to address environmental and wildlife impacts 
from wind power.
    As a general rule, the Federal government has a regulatory role in 
wind power development only when development occurs on Federal land or 
involves some form of Federal participation, such as providing funding 
for projects. In these cases, the development and operation of a wind 
power facility must comply with any state or local laws as well as 
Federal laws, such as the National Environmental Policy Act and the 
Endangered Species Act, which often require preconstruction studies or 
analyses and possibly modifications to proposed projects to avoid 
adverse environmental effects.
    As with any activity, Federal and state laws afford protections to 
wildlife from wind power facilities. Four laws, the Migratory Bird 
Treaty Act, the Bald and Golden Eagle Protection Act, the Endangered 
Species Act, and the Marine Mammal Protection Act (for offshore 
facilities), are the Federal laws most relevant to protecting wildlife 
from wind power facilities, and these laws generally forbid harm to 
various species of wildlife. The Service is the Federal agency that has 
primary responsibility for implementing and enforcing these laws. 
Although none of the four laws expressly require wind power developers 
and operators to take specific steps to ensure that wildlife will not 
be harmed during either the construction or operation of their 
facilities, wind power developers or operators are arguably liable for 
any harm to protected species that may occur. In some cases, developers 
voluntarily consult with the Service--or a state natural resources 
agency--before they construct a project or they do so as a requirement 
of a state or local wind power regulatory agency, to identify potential 
impacts to wildlife. In other cases, Federal involvement may consist of 
Service law enforcement officials investigating instances of wildlife 
fatalities at a wind power facility.
    Rather than seeking to prosecute wind power facilities companies 
when mortality events occur, the Service prefers to work with companies 
to encourage them to take mitigation steps to avoid future harm. The 
Service has been working with the wind industry to help identify 
solutions and ensure that wildlife mortality at wind power facilities 
is minimized. For example, the Service has participated in many 
industry-sponsored workshops and conferences, issued interim voluntary 
guidelines for industry to use in developing new projects that are 
wildlife- and habitat-friendly, and served as a member in a wildlife 
working group with industry, their consultants, states, other Federal 
agencies, scientists, and conservationists since 1995.
    Regarding state wildlife protections, all of the six states that 
GAO reviewed have statutes that can be used to protect some wildlife 
from wind power impacts. However, no states have taken any 
prosecutorial actions against wind power facilities where wildlife 
mortalities have occurred.
    To encourage potential wildlife impacts to be considered when wind 
power facilities are permitted, GAO recommended that the Service reach 
out to state and local regulatory agencies with information on the 
potential wildlife impacts due to wind power and on the resources 
available to help make decisions about the siting of wind power 
facilities. The Service has taken these recommendations very seriously, 
having participated in recent meetings with state and local regulatory 
officials in California, Colorado, Ohio, New Mexico, New York, 
Pennsylvania, Texas, and Wisconsin. The Service is also a cooperating 
agency on NEPA documents for two proposed offshore wind power 
facilities in the Northeast.
 2003 Interim Guidelines on Avoiding and Minimizing Wildlife Impacts 
        from Wind Turbines
    At the request of the Secretary of the Interior, the Service 
established a Wind Turbine Siting Working Group in 2002, to develop a 
set of comprehensive national guidelines for siting and constructing 
wind energy facilities. On July 10, 2003, the Service published a 
notice in the Federal Register announcing the availability of the 
interim Guidelines and requesting comments through July 7, 2005. The 
Service received 25 comments from a wide range of stakeholders 
regarding the interim guidelines. After reviewing the comments and 
evaluating advances in the science behind wind turbine siting and 
design, the Service determined that a Federal Advisory Committee Act 
(FACA) advisory group would best balance representation from wind 
development, wildlife conservation, and government in the process.
 Establishment of Wind Turbine Guidelines Advisory Committee
    On March 13, 2007, the Service published a notice in the Federal 
Register, announcing the establishment of the Wind Turbine Guidelines 
Advisory Committee. This Committee will provide advice and 
recommendations to the Secretary of the Interior through the Director 
of the Service on developing effective measures to avoid or minimize 
impacts to wildlife and their habitats related to land-based wind 
energy facilities. The Committee will help us examine issues such as 
site selection and turbine design, scientifically validated mitigation 
measures, peer-reviewed pre- and post-construction monitoring 
protocols, and field tested and validated deterrents so that we can 
develop land-based wind resources while protecting wildlife. The 
Committee will also make recommendations on how to coordinate review 
and evaluation of facilities by state, tribal, local, and Federal 
agencies. The Committee will be established under the Federal Advisory 
Committee Act and is expected to exist for two years, with its 
continuation subject to biennial renewal. Nominations of members closed 
on April 12, 2007, and we are working with the Secretary on 
recommendations for appointments to the Committee.
    Member organizations will be selected to represent the varied 
interests associated with wind energy development and wind/wildlife 
interactions, including state, local, and Federal agencies, tribes, 
non-governmental conservation organizations, and the wind industry and 
its consultants. Members will be senior representatives of their 
respective constituent groups with knowledge of: wind energy facility 
location, design, operation, and transmission requirements; wildlife 
species and their habitats potentially affected; wildlife survey 
techniques; applicable laws and regulations; and current research on 
wind/wildlife interactions.
    The Service will review the final recommendations of the Committee, 
revise its voluntary guidelines to avoid and minimize wildlife impacts 
from wind turbines, and make the guidelines available for public review 
and comment prior to making them final. The Service also plans to 
develop a national template for an avian protection plan for the wind 
industry, possibly based on recommendations from the FACA Committee, 
much like what has been developed for the electric utility industry, 
with the expectation of regional step-down plans that provide for 
wildlife-friendly wind power.
 Bolstering Service Efforts to Address Impacts
    The Service believes that the development of consistent, 
scientifically valid pre- and post-construction monitoring protocols, 
capable of being stepped down to regional and local levels would be 
helpful for all energy generation technologies. Results of studies 
conducted using scientifically valid protocols to assess risk to 
species and habitats at energy development sites could be published, 
ideally in refereed scientific journals. The published information 
could then be used by the energy industry to validate a risk assessment 
process, make course corrections based on new post-construction 
findings, adopt mitigation measures, use deterrents where bird and bat 
mortality is shown to be problematic, and update and further improve 
the Service's future guidance.
    The Service wants to work with the states, public utility 
commissions, zoning and planning boards, and industry before wind 
energy and other generation technology plants are permitted and 
developed. The Service would like the opportunity for our biologists to 
review pre-construction and risk assessment data/documents prior to 
project development. Presently, due to issues of confidentiality, much 
of this information, especially on pre-construction monitoring and 
potential impacts, is not available. The Service also seeks 
cooperation, including site access, to enable monitoring of sites being 
proposed for energy project development, sites being selected and 
assessed using pre-construction monitoring protocols, sites being 
developed, and sites that are operating to assess mortality, changes in 
bird and bat behavior, and modifications to habitats that negatively 
impact species. The Service can assist in the environmentally 
responsible development of all energy generation, including wind 
energy, if we have access to research and monitoring information. The 
Service believes we can work effectively with industry to help develop 
energy projects in the most environmentally friendly way possible.
 Conclusion
    In closing, Madam Chairwoman, the Service is responsible for 
conservation of wildlife in the public trust, and will work to ensure 
that development of energy projects is carried out in a manner that is 
bird- and bat-friendly and that sound science and adequate 
environmental assessments are the basis for informed decisionmaking. 
The Service will continue to work collaboratively with all 
stakeholders, including the wind industry, to minimize impacts to 
wildlife and habitats while maximizing opportunities for energy 
development in the most wildlife- and habitat-friendly way possible.
    This concludes my testimony. I appreciate the opportunity to appear 
today before the Subcommittee, and I would be pleased to answer any 
questions that you or members of the Subcommittee may have.
                                 ______
                                 
    Ms. Bordallo. Thank you, Mr. Hall.
    I now recognize Mr. Arnett to testify for five minutes.

  STATEMENT OF EDWARD B. ARNETT, CONSERVATION SCIENTIST, BAT 
                   CONSERVATION INTERNATIONAL

    Mr. Arnett. Thank you, Madam Chairwoman, and good morning 
to the Subcommittee members.
    My name is Ed Arnett. I am a conservation scientist with 
Bat Conservation International, but I also am program 
coordinator for the Bats and Wind Energy Cooperative, which is 
an alliance of state and Federal agencies, private industry, 
academic institutions, and non-governmental organization that 
was initiated in the late fall of 2003, to try to determine and 
solve problems associated with bat fatalities.
    I am here today at your request, and appreciate the 
invitation to share some information with you about bats and 
wind energy development. I would also point out that my 
testimony is provided on behalf of Bat Conservation 
International and my comments may not necessarily reflect the 
opinions of all entities associated with our cooperative, which 
has been working together over the past three years.
    I would like to first point out that bats play an essential 
role in virtually every ecosystem in the world and occupy very 
unique ecological niches, and it was noted earlier about pest 
control. Most notably here in North America, they are key 
nocturnal predators of insects, and studies of Mexican Free 
Tail Bats in the State of Texas, for example, have demonstrated 
extraordinary economic benefits of pest control by these 
particular bats, and that extends to other ecosystems as well.
    Unfortunately, little is know about historical and current 
populations of most species of bats, but currently many are 
believed by scientists to be in substantial decline for a 
number of different reasons. We know that bats are being killed 
at wind facilities worldwide and large numbers have been 
documented at several of the facilities that have been studied 
to date.
    This has led to the consensus among world's leading experts 
that although population impacts remain unknown the projected 
expansion of wind development and levels of fatalities at some 
facilities suggest that significant cumulative impacts must be 
considered for some species, and there are projected numbers 
that are available in my written testimony, and I would be 
happy to elaborate on those as needed.
    These numbers really escalate rapidly also as we consider 
projecting out over a particular project for 20 years, 25 
years, over the duration, and also considering those impacts 
from a wide perspective across the distribution of any of these 
species that are being affected. So the potential for 
cumulative impacts becomes even more obvious, and this is a 
serious concern for bats because they are long-lived, they have 
exceptionally low reproductive rates, population growth is 
slow, and they are slow to recover from population declines.
    Furthermore, several colleagues and I believe that bats are 
in fact attracted to wind turbines, and they are killing prime 
breeding-age adults which further exacerbates the population 
impacts.
    Leading experts from around the world have reviewed 
existing information on wind energy impacts, and all agree that 
our state of knowledge is unsatisfactory. Pre-construction 
studies are inconsistently implemented across states, ranging 
from no effort whatsoever to very intensive studies that we 
have been working on with proactive companies and other 
agencies, but they are typically short duration, lack clear 
objectives, and are underfunded.
    Post-construction studies vary in duration and intensity, 
and may be seriously biased due to field sampling biases that 
are oftentimes not accounted for.
    However, we have learned some things from our existing 
studies and we have made some recommendations; most notably, 
the curtailment of operations during predictable periods may in 
fact provide an opportunity to reduce fatalities, but those 
experiments have not been implemented and remain untested to 
date. Thus we see an urgent need for increasing support for 
comprehensive interdisciplinary research programs that address 
priority needs to quantify risks and document the success of 
potential solutions.
    In regard to legislative actions, we believe that perhaps 
most importantly involves additional funding support at two 
broad levels. First, agency support for environmental review, 
permitting, and oversight, and research initiatives to quantify 
impacts and develop solutions.
    It is our opinion that the Federal agencies such as the 
U.S. Fish and Wildlife Service, land management agencies such 
as the BLM and Forest Service are grossly understaffed and 
underfunded to effectively handle the onslaught of permits of 
wind development on both public and private lands, and they are 
currently facing budget constraints and staffing issue, and 
this situation creates potential threats not only for wildlife 
but also costly delays to the industry, and streamlining and 
eliminating processes are unacceptable in our view, and both 
state and Federal agencies need support adequate to 
participate.
    Second, we feel additional funding support for research 
initiatives is imperative to not only agencies but also to 
entities such as the National Science Foundation, the National 
Fish and Wildlife Foundation and other entities to support this 
much needed research.
    Finally, realizing that it is not the charge of this 
Subcommittee, Congress could potentially strengthen the Federal 
tax production credit by requiring when projects to meet 
standards, including best management practices and guidelines 
that are in fact developed by the Federal government and other 
stakeholders to protect wildlife, which would level the playing 
field and provide equal consideration for wildlife among 
projects throughout their duration.
    In conclusion, Bat Conservation International wants to 
recognize that we understand threats to the environment and the 
economy from global climate change, and support the development 
of clean renewable energy sources. Nevertheless, current 
evidence has led to the consensus among leading experts that 
impacts can become severe if facilities continue to operate 
without careful planning and developing solutions to minimize 
harm to both birds and bats, which are both ecologically 
essential.
    The Federal government must increase efforts to support the 
responsible development of wind while protecting wildlife 
resources. Cooperation access to study sites, funding, and 
transparency of information from industry has been mixed, but 
generally we have been pleased--and sometimes frustrated--with 
the progress of efforts, but our partnerships for the bats and 
wind energy cooperative and other cooperatives that have been 
ongoing have been successful to some degree, and we are moving 
forward and in the right direction, and applaud the companies 
and organizations working proactively with us to move forward 
in solving this problem.
    Unfortunately, more needs to be done. We need to expand our 
breadth of cooperation to develop a sound scientific basis for 
decision-making.
    Madam Chairwoman and Members of the Subcommittee, on behalf 
of BCI I would like to thank you for inviting me and sharing 
this information. I look forward to helping you with this issue 
and answering any questions you may have.
    [The prepared statement of Mr. Arnett follows:]

        Statement of Edward B. Arnett, Conservation Scientist, 
                     Bat Conservation International

Introduction
    Madam Chairwoman and Members of the Subcommittee, my name is Ed 
Arnett, Conservation Scientist and Co-Director of Programs for Bat 
Conservation International (BCI). I am also the program coordinator for 
the Bats and Wind Energy Cooperative (herein referred to as ``the 
Cooperative'') an alliance of state and federal agencies, private 
industry, academic institutions, and non-governmental organizations 
interested in cooperating to develop solutions to minimize or, where 
possible, prevent mortality of bats at wind facilities. The Cooperative 
was initiated by BCI, U.S. Fish and Wildlife Service (USFWS), the 
American Wind Energy Association (AWEA), and the Department of Energy's 
National Renewable Energy Laboratory (NREL) and is supported 
financially by these entities and a diversity of stakeholders including 
wind industry companies, clean state energy funds, and private 
individuals and foundations. The Cooperative seeks to secure and 
administer cooperative funding among interested parties and allocate 
those resources to promote research needed to address issues and 
develop solutions surrounding wind energy development and fatality of 
bats. I studied bat presence and habitat relationships in Oregon for 
eight years while serving as a research biologist for Weyerhaeuser 
Timber Company and for my Ph.D. dissertation research. I have led 
research efforts for the Cooperative since May 2004, which includes 
post-construction fatality searches at the Mountaineer, West Virginia 
and Meyersdale, Pennsylvania facilities, pre-construction assessments 
of bat activity at multiple sites in Massachusetts, Pennsylvania, and 
Wisconsin, and investigations on possible acoustic deterrent devices 
that may reduce fatality of bats at wind facilities. I currently am 
Chair of a technical review committee on wind energy impacts on 
wildlife for The Wildlife Society (final report due for public release 
by early summer 2007), serve as a committee member for the Wind and 
Wildlife Subcommittee for the Association of Fish and Wildlife 
Agencies, and provide technical input on bats and wind energy issues to 
several agencies, organizations, and private industry.
    I am here at your request and appreciate the invitation to discuss 
impacts of wind energy development on bats and address questions from 
the Subcommittee. In my invitation, I was asked to address four topics 
and, after providing background information, I will focus most of my 
comments on these specific areas. My testimony is provided on behalf of 
BCI and my comments may not necessarily reflect the opinions of all 
entities associated with the Cooperative.
Background
    Fatalities of bats have been recorded at wind facilities worldwide, 
first noted in Australia in 1972 by Hall and Richards (1972). Before 
2001, relatively small numbers of bat fatalities were reported at wind 
energy facilities in the U.S. (Johnson 2005). These were first noted at 
facilities in California during avian fatality searches (e.g., Orloff 
and Flannery 1992). However, bat kills at wind facilities generally 
received little attention in North America until 2003 when between 
1,400 and 4,000 bats were estimated to have been killed at the 
Mountaineer Wind Energy Center in West Virginia (Kerns and Kerlinger 
2004). During that same year, a high kill rate of bats also was 
discovered at Buffalo Mountain in Tennessee in 2003 (Fiedler 2004).
    Shortly after the reports from Mountaineer and Buffalo Mountain in 
2003, representatives from the AWEA, BCI, NREL, and the USFWS met in 
late 2003 and established the Cooperative to further understand causes 
of bat fatalities at wind facilities and work toward developing 
solutions. A two-day workshop was held in February 2004 that brought 
together leading experts on bat ecology, radar and thermal imaging 
technology, and avian acoustical monitoring from the United States, 
Canada, and the United Kingdom. Experts concluded that causes and 
solutions would be extremely difficult to identify without more 
reliable information about 1) bat migration; 2) bat interactions with 
turbines, particularly their responses to moving versus non-moving 
blades and how they are being killed; 3) patterns of fatality in 
relation to location, topography, weather, and turbine characteristics; 
and 4) potential deterrents and/or avoidance mechanisms. Based on the 
recommendations of its experts, the Cooperative under took field 
research during the summer of 2004 to improve carcass search protocols 
and observe bat interactions with turbines. The Cooperative also has 
conducted extensive pre-construction assessments of bat activity at 
multiple sites in Massachusetts, Pennsylvania, and Wisconsin, and 
initiated investigations on possible acoustic deterrent devices that 
may reduce fatality of bats at wind facilities.
    Since the inception of the Cooperative, we have learned that high 
bat fatality continued at the Mountaineer facility in 2004 (Arnett 
2005) and that this site was not an isolated incident in the eastern 
U.S.; large kills also were reported at facilities in Pennsylvania in 
2004 (Arnett 2005) and high fatality rates have continued at the 
Buffalo Mountain facility in Tennessee (J. Fiedler, Tennessee Valley 
Authority, personal communication). Colleagues in Europe also have 
reported widespread bat fatality at wind facilities, especially in 
Germany (Durr and Bach 2004, Brinkman 2006), and, most recently, much 
higher than expected bat fatalities were discovered in mixed forest and 
agricultural lands in New York (Jain et al. 2007) and in open prairie 
in southern Alberta Canada (Robert Barclay, University of Calgary, 
unpublished data). Incidental discoveries by ornithologists in Oklahoma 
indicate that the Mexican free-tailed bat, the most abundant and 
economically valuable species of the Southwest, also is vulnerable to 
wind turbine kills (Piorkowski 2006), yet no formal studies have been 
conducted in this region.
    While current estimated fatality rates of bats are highest for 
sites located on forested ridges (Johnson 2005, Kunz et al. 2007), it 
is now irrefutable that increased search efforts since the 2003 
findings at Mountaineer have documented a more widespread problem than 
previously believed. These fatalities raise serious concerns about 
potential impacts on bat populations at a time when many species of 
bats are known or suspected to be in decline (Pierson 1998, Racey and 
Entwistle 2003) and extensive planning and development of wind energy 
is increasing throughout North America (Kunz et al. 2007). Future 
developments of wind energy facilities, and expected impacts, depend on 
complex interactions of economic factors, technological development, 
regulatory changes, political forces, and other factors that cannot be 
easily or accurately predicted at this time (Kunz et al. 2007). Current 
and projected fatality rates should provide an important wakeup call to 
agencies, developers, and decision makers to support additional 
monitoring and hypothesis-based research to address a growing concern 
of national and international importance.
Topics Requested by the Subcommittee
    1)  What steps are being taken by federal and state governments to 
ensure that this emerging technology is appropriately sited and 
monitored to limit or prevent the incidental take of bats, especially 
T&E species?
Key Points:
      There currently is little empirical evidence to determine 
what represents ``appropriate siting'' of wind facilities for bats. 
Extensive research in this area is needed immediately.
      Criteria and standards need to be established, determined 
based on the best available information, for high risk areas for bats 
(and other wildlife) that can be integrated into siting guidelines 
among states or regions so these areas can be protected in a consistent 
manner.
      Although there is a paucity of empirical evidence 
supporting actions to limit or prevent incidental take of bats, what 
evidence and recommendations are available (e.g., curtailment of 
operations during predictable high risk periods) have not been 
implemented and remain untested.
      Some states are beginning to integrate mitigation 
measures into permits (e.g., limited curtailment during low wind 
periods when most bats kills occur), but these measures still have not 
been tested in the field.
      Bats usually are protected under state laws pertaining to 
``nongame'' animals, but most states do not enforce take of bats. Bats 
that have been killed most frequently by wind turbines are not 
protected under federal law.
      There are no consistent guidelines or processes for 
siting, permitting, or monitoring and little commonality among states, 
although several states have embarked on developing voluntary 
guidelines for siting and monitoring wind facilities.
      Numerous steps have been taken to improve working 
relationships, cooperation, and information exchange that include 
developing and participating in state and national working groups, 
research partnerships, and greater involvement in consultation during 
permitting.
    Federal resource and land management agencies, non-governmental 
organizations, contractors, developers, and utilities have dominated 
the discussion about wildlife interactions with wind energy facilities. 
Until recently, state fish and wildlife agencies have not been deeply 
or proactively involved. This limited participation reflects a variety 
of factors, including more immediate management priorities, lack of 
fiscal and human resources, and the limited regulatory authority to 
apply wildlife considerations to these decisions. These facts 
notwithstanding, wind energy permitting and regulation in most of the 
U.S. is primarily the responsibility of state and local governments, 
and wildlife agencies have served only in an advisory capacity with no 
regulatory authority. Often times, wildlife agencies are not consulted 
or their recommendations considered during permitting. This situation 
is beginning to change, as several states have embarked on developing 
guidelines for siting and have set up wind working groups to address 
issues and advise legislators and regulators about the potential 
impacts and benefits of wind development, including effects on wildlife 
resources.
    Unfortunately, there currently is little commonality from state-to-
state regarding permitting or requirements for pre- or post-
construction monitoring. While several states have embarked on 
developing guidelines for siting, consistency and coordination among 
states is critical and as yet rare. Developing consistent guidelines 
for siting, monitoring and mitigation strategies among states and 
federal agencies would assist developers with compliance with relevant 
laws and regulations and establish standards for conducting site-
specific, scientifically sound biological evaluations. Renewable 
Portfolio Standards should account for wildlife impacts and inclusion 
of guidelines in the permitting process would further strengthen agency 
participation and implementation of guidelines. Permits for wind 
projects should contain language regarding monitoring and mitigation 
requirements; recently, some states have integrated these requirements 
into permits (e.g., curtailment for a specified period of time and 
under certain conditions), although mitigation measures remain untested 
and some may be inadequate.
    Criteria and standards need to be established, determined based on 
the best available information, for high risk areas for bats (and other 
wildlife) that can be integrated into siting guidelines among states or 
regions so these areas can be protected in a consistent manner. An 
unfortunate reality is the fact that if a responsible developer decides 
to abandon a particular site because of environmental sensitivity, 
there are no state or federal regulations or guidelines that prohibit 
another developer from pursuing a wind project on that site. Unless the 
playing field is leveled and all developers are held accountable 
equally, through regulation or guidelines that are linked to 
permitting, renewable portfolio standards, and the Production Tax 
Credit, sensitive, high risk sites could be developed in the future.
    The USFWS issued voluntary guidelines in 2003 to avoid and minimize 
wildlife impacts by wind turbines and consults with industry on project 
scope and issues, recommends studies and relevant information, reviews/
comments on studies and applications, makes recommendations and 
coordinates with state regulatory and authorizing entities and 
interested parties. When incidental take is likely to occur, the USFWS 
recommends to the developer that a Habitat Conservation Plan be 
prepared pursuant to Section 10(a)(1)(B) of the Endangered Species Act, 
the preparation of which is voluntary. The Service also advocates for 
implementation of a pre-filing 3-stage consultation process that would 
include 1) scoping of wildlife issues, 2) studies to address issues 
raised in scoping, and 3) review of study results and recommendations. 
This is the same process codified in FERC regulations for hydroelectric 
projects (18 CFR 4.38).
    State and federal agencies and other stakeholders have participated 
with processes like the National Wind Coordinating Committee and have 
sponsored or participated in conferences, workshops, and symposia at 
professional meetings. Federal and state agencies also have joined with 
other stakeholders in research partnerships like the Bats and Wind 
Energy Cooperative (http://www.batcon.org/home/index.asp?idPage=55) and 
the NWCC facilitated Grassland and Shrub Steppe Species Collaborative 
(http://www.nationalwind.org/workgroups/wildlife/gs3c_overview.
pdf). These efforts are important, positive steps, but state and 
federal agencies require more support, including funding, to 
effectively participate in these endeavors.
    Wind energy is expanding rapidly within the range of threatened and 
endangered species of bats such as the Indiana bat (Myotis sodalis), 
the gray bat (Myotis grisescens), and the Virginia big-eared bat 
(Corynorhinus townsendii virginianus). Although no threatened or 
endangered species have been found killed at existing wind facilities, 
not all sites have been searched thoroughly or for multiple years, and 
bats are very difficult to find during searches. Most biological 
assessments conducted at existing and proposed facilities have used 
literature searches, limited site visits and survey efforts, and 
present habitat conditions to speculate the potential impact on 
threatened and endangered species of bats; interestingly, almost all 
conclude no impacts with limited empirical evidence for support. New 
evidence from radio-telemetry studies in Pennsylvania and New York 
suggests that Indiana bats travel considerable distances across ridges 
and may in fact be at risk given their flight paths from hibernacula to 
summer habitat (see http://www.pgc.state.pa.us/pgc/lib/pgc/reports/
2006_wildlife/71402-05.pdf for an example). Continued development of 
wind facilities will likely pose risks to these species and increase 
the probability of take. Some species could be pushed to threatened or 
endangered status resulting proximately, ultimately, or independent of 
wind energy development. More studies are needed to fully elucidate 
risk of all bats, including endangered species.
    Better Coordination and Integration is Needed. Given projected 
increases in multiple sources of energy development, including biomass, 
wind, and oil and gas development, future conflicts surrounding land-
use, mitigation, and conservation strategies should be anticipated. 
Habitat mitigation options, for example, when developing wind in open 
prairie may be compromised by development of other energy sources. 
State and federal agencies must partner with multiple stakeholders to 
implement regional assessments of existing and future land uses. 
Planning regional conservation strategies among industries, agencies 
and private landowners could reduce conflicts and increase options for 
conservation. Comprehensive monitoring and research programs are needed 
to gather required information to develop better siting guidance and 
mitigation strategies in the immediate future.

    2)  What is the status of bat populations?
Key Points:
      Little is known about historical or current populations 
of most species of bats, but many are believed to be in substantial 
decline.
      Bats are long-lived and have exceptionally low 
reproductive rates, population growth is relatively slow, and their 
ability to recover from population declines is limited.
      Although population impacts are unknown, given the level 
of fatalities at some wind facilities significant cumulative impacts 
must be considered for some species.
    Some species could be pushed to threatened or endangered status 
resulting proximately, ultimately, or independent of wind energy 
development.
    More than 1,100 species of bats worldwide account for nearly a 
quarter of all mammals, yet their populations are poorly understood. 
Many populations have been extirpated or have declined alarmingly 
(O'Shea and Bogan 2003). Eastern red bats, for example, are one the 
most frequently killed species, yet are already reported to be in 
decline (Whitaker et al. 2002, Carter et al. 2003, Winhold et al. 
2005). There are nine species or subspecies of bats in the U.S. and 
territories that are listed as endangered under the U.S. Endangered 
Species Act, and 24 that are designated as species of concern (formerly 
Category 2 candidates for listing under the ESA; O'Shea and Bogan 
2003). Like birds, bats play essential ecological roles in maintaining 
the balance of nature. However, as previously mentioned, unlike birds, 
bats that are most frequently killed by wind turbines are not protected 
under federal law and, although bats usually are protected under state 
laws pertaining to ``nongame'' animals, most states do not enforce take 
of bats.
    Little is known about historical or current populations of most 
species of bats. Better information exists for species of bats that 
primarily use caves for either winter hibernation (e.g., gray and 
Indiana bats) or summer maternity roosts (e.g., Mexican free-tailed 
bat). Most experts base inferences on population trends from indices on 
changes in capture rates over time, winter counts at hibernacula, 
trends in habitat loss or protection, and public submissions of species 
for examination by state health departments (e.g., Carter et al. 2003). 
Unfortunately, current techniques are ineffective to quantify 
populations and no long-term studies exist for documenting changes in 
trends of tree- and foliage-roosting species of bats (Carter et al. 
2003).
    Bats are long-lived and have exceptionally low reproductive rates 
(Kunz 1982), population growth is relatively slow, and their ability to 
recover from population declines is limited, thereby increasing the 
risk of extinctions (Barclay and Harder 2003, Racey and Entwistle 2000, 
2003). Habitat loss and degradation, disturbance and/or loss of roosts, 
and persecution by fearful humans have contributed greatly to the 
decline of many species of bats (Kunz 1982, Pierson 1998, Racey and 
Entwistle 2003). Fatality of bats at wind turbines has been recognized 
only recently as a major conservation concern. Although population 
impacts are unknown, given the level of fatalities thus far documented 
at wind facilities, biologically significant additive mortality must be 
considered for some species as wind power development expands and 
fatalities accumulate (Kunz et al. 2007). As previously mentioned, some 
species could be pushed to threatened or endangered status resulting 
proximately, ultimately, or independent of wind energy development.
    Kunz et al. (2007) projected numbers of bat fatalities in the Mid-
Atlantic Highlands from wind turbines expected in to be installed by 
2020 (installed capacity of 2,158 MW based on National Renewable Energy 
Laboratory WinDS Model for the Mid-Atlantic Highlands for the year 2020 
[http://www.nrel.gov/analysis/winds/]); they projected 32,818 to 64,281 
would be killed in just one year in this region under the assumptions 
used. The potential for serious cumulative impacts is obvious in just 
this one region and when considering all regions continent-wide and 
over the full life of a project (20-25 years), the numbers escalate 
rapidly and heighten concerns.

    3)  To what degree does industry account for bats in their 
preliminary planning and subsequent construction and operation of wind 
turbines?
Key Points:
      Pre-construction studies are inconsistently implemented 
across states, ranging from no effort to intensive studies, but are 
typically short duration, lack clearly stated objectives, and are under 
funded to adequately evaluate true risks to bats and other wildlife.
      Correlations between pre-construction monitoring data and 
post-construction bat fatality rates currently do not exist, seriously 
limiting our understanding of risks.
      Post-construction studies vary in duration and intensity 
and often are seriously biased depending on how well investigators 
design the study and account for field sampling biases (e.g., searcher 
efficiency, scavenger removal, habitat variation, seasonality).
      Industry has collaborated with partnerships such as the 
Bats and Wind Energy Cooperative to conduct needed research to 
understand issues and develop and test mitigation strategies.
      There is an immediate need to increase support for 
research programs that address priority needs for pre-and post 
construction monitoring and to develop and test mitigation strategies.
    Pre-construction. Industry has performed pre-construction studies, 
but there are no consistent requirements and level of effort ranges 
from no work to extensive studies, the later being a rare extreme (see 
Arnett et al. 2006 as an example). Pre-construction studies have lacked 
consistent implementation of methods and often are fundamentally flawed 
in a number of ways. They are typically short duration, lack clearly 
stated objectives, and are under funded to adequately evaluate true 
risks to bats and other wildlife. Pre-construction surveys for bats 
commonly employ mist nets and acoustic detectors to assess local bat 
species presence and activity. However, using this information to 
predict bat fatality and, thus risk at a site has proved to be 
challenging. Mist netting may be useful for determining presence of a 
species on site, but multiple surveys are required (Weller and Lee 
2007) and mist netting does not confirm absence of a species. 
Unfortunately, past and current efforts to acoustically monitor bat 
activity prior to construction of turbines may suffer from flaws in 
study design, including small sample sizes, poor temporal and spatial 
replication, and inappropriate inference because limitations and 
assumptions were not understood or clearly articulated (Hayes 2000). 
Also, there is a lack of information and lack of agreement among 
stakeholders, biologists, and scientists regarding what constitute 
different levels of risk in relation to bat activity and potential 
fatality of bats at wind facilities. Perhaps most importantly, we 
currently are unaware of any study that has correlated pre-construction 
monitoring data with post-construction fatality, a fundamental link 
necessary for extrapolating pre-construction data to predict potential 
risk of wind facilities to bats. More extensive pre- versus post-
construction comparisons are urgently needed to understand risk-levels 
and to develop criteria for high risk sites that should be avoided.
    Post-construction. At least some post-construction monitoring for 
birds has been conducted at most existing wind facilities, though bat 
fatalities were typically recorded only incidentally. Nevertheless, bat 
kills have been documented at almost every facility where post-
construction searches were conducted. However, until recently, efforts 
to specifically estimate bat fatality rates have been rare. Criticism 
of survey protocols used in past efforts centers on field sampling 
biases (e.g., small sample sizes, poor accounting for carcass removal 
by scavengers and searcher efficiency, and failure to account for 
detectability among habitats) that can profoundly bias the number of 
estimated fatalities. Searches are typically conducted at seven, 14 or 
28-day intervals, and often do not adequately account for scavenger 
removal rates or searcher efficiency. During an intensive 6-week study 
at Mountaineer, West Virginia, scavengers removed up to 70% of killed 
bats within 24 hours, and at Meyersdale, Pennsylvania, searcher 
efficiency averaged only 25% on this heavily vegetated site (Arnett, 
2005). With few exceptions, post-construction studies are conducted for 
just 1-2 years.
    Both pre- and post-construction studies have lacked standardized 
procedures, thus making it impossible for broad comparisons that could 
facilitate an understanding of potentially cumulative impacts or of the 
relative risks associated with varied habitat and topography. Most have 
been conducted without adequate peer review of methodology, results, or 
interpretations of findings, and few studies have been published in the 
scientific literature, although that trend is starting to change.
    It is critical that future post-construction monitoring be 
conducted using standard protocols for consistency so as to facilitate 
broad comparisons among facilities. Daily searches are required at some 
turbines in order to correlate fatality with weather variables. This is 
important because several studies have reported that most bat 
fatalities occur on low wind nights (Fiedler 2004, Arnett 2005, 
Brinkmann 2006) and understanding these patterns will help determine 
predictable periods of high fatality for implementation of mitigation 
measures such as curtailment of operations. More research is needed on 
fatalities in regions with existing wind facilities that have been 
poorly studied (e.g., eastern forested ridges, the southwest) and 
regions with new developments (e.g., coastal areas). There is an urgent 
need for increasing support for comprehensive, interdisciplinary 
research programs that address priority needs to quantify risks and 
document the success of potential solutions. Funding should emphasize 
cooperative efforts among private organizations, industry, and 
government agencies.

    4)  What legislative actions might Congress consider to ensure that 
an expansion of wind energy does not come at an unnecessary expense to 
bats and other wildlife?
    Federal funding. Perhaps the most important and immediate 
legislative action involves funding support at two broad levels: 1) 
agency support for environmental review, permitting, and oversight; and 
2) research initiatives to quantify impacts and find and test 
solutions.
    Wind energy development is relatively new and emerging wildlife 
issues have created financial burdens on federal agencies responsible 
for public trust resources. It is our opinion that the USFWS, for 
example, is grossly understaffed and under funded to effectively handle 
the onslaught of permits for wind development on both private and 
public lands. As wind energy has now expanded beyond private lands and 
onto public lands, the Nation's resource management agencies, most 
notably the Bureau of Land Management, U.S. Forest Service, and Mineral 
Management Service, have now been dealt an additional land use 
objective that requires environmental review, permitting, and 
monitoring to evaluate and reduce environmental impacts and protect 
public trust resources. Unfortunately, land management agencies already 
are facing budget constraints and simply cannot deal effectively with a 
new management issue like wind energy permitting without funding and 
staffing in addition to an already constrained situation. This 
situation creates potential threats to wildlife and costly delays for 
industry. Stream-lining or eliminating processes for environmental 
review on the impacts of wind energy on wildlife are unacceptable and 
both state and federal agencies need support to adequately participate.
    Second, we sorely lack the scientific information required to make 
decisions. Federal funding has been minimal and sporadic at best and 
additional appropriations to support research initiatives will be 
critical in the immediate future. This should include appropriations to 
all federal agencies involved with wind energy development, and also to 
the National Science Foundation, National Fish and Wildlife Foundation, 
and other appropriate venues for supporting much needed research on 
wind energy and wildlife.
    A second approach would involve establishing a federal fund for 
priority research on the impacts of wind energy on wildlife. This 
funding could be appropriated to and administered by the National 
Renewable Energy Laboratory, for example. Wind developers could draw 
funding for the wildlife research associated with a project and if that 
project is built, the developer would re-pay the fund. A scientific 
advisory committee would determine: (a) what research needs to be done 
at a given site; (b) how research should be done (e.g., the study 
design should be peer-reviewed); and (c) peer-review processes required 
for credibility of work performed. All research findings would be 
available to other wind developers and the public. This would lead to 
developing a body of well-designed, peer-reviewed, accessible research 
that helps evaluate potential impacts of wind energy on wildlife and 
that decision-makers can rely on to assess information for individual 
sites.
    Federal Tax-Credit and links to wildlife protection. While 
realizing it is not the charge of this subcommittee, Congress should 
strengthen the Federal Productive Tax Credit (the tax credit extension 
H.R. 197 currently is in Ways and Means) by requiring wind projects to 
meet standards, including best management practices and guidelines, 
developed by federal agencies and other stakeholders to protect 
wildlife and their habitats. Such provisional conditions would help 
level the playing field among developers and provide equal 
consideration for wildlife among projects and over the duration (20-25 
years) of projects.
    Although a state-level issue, we also believe that Renewable 
Portfolio Standards should account for wildlife impacts and inclusion 
of guidelines in the permitting process, further strengthening agency 
participation in permitting and implementation of guidelines.
    Migratory Bat Treaty Act. Migratory bats currently are not offered 
laws for protection and conservation across borders similar to 
migratory birds. Given new threats to bats from wind turbines across 
the North American Continent, we believe it is now time for federal 
adoption of such a law similar to the Migratory Bird Treaty Act. Such 
an act would foster protection for bats and better collaboration for 
conservation.
CONCLUSION
    In conclusion, Bat Conservation International recognizes threats to 
our environment from climate change and supports the development of 
clean, renewable energy sources. Nevertheless, current evidence has 
lead to consensus among leading experts that cumulative impacts of wind 
energy development could become severe if facilities continue to 
operate without careful planning to minimize harm to birds and bats, 
both of which are ecologically essential. We believe that minimizing 
and mitigating harmful impacts to wildlife is an essential element of 
``green energy'' and that developers of wind energy must substantially 
increase efforts to improve siting and develop and test methods to 
minimize harm to wildlife. Additionally, the federal government must 
increase its efforts and funding to support the responsible development 
of wind energy while protecting wildlife resources. Cooperation, access 
to study sites, funding, and transparency of information from industry 
have been mixed. We are pleased with progress of efforts such as our 
partnership on bats and wind energy and other collaborative efforts, 
and applaud those companies and organizations working proactively with 
resource agency specialists and scientists to solve problems. 
Unfortunately, more has to be done immediately to expand and improve 
the breadth of our cooperation in developing a sound, scientific basis 
for decision-making.
    To quote from a distinguished colleague, Dr. Gary White, and a 
paper he published in 2001 (White 2001): ``All too often in wildlife 
management, [we] are asked to resolve conflicts that are impossible 
because the basic biological knowledge to understand the issue is 
lacking. All stakeholders are right, under the assumptions each brings 
to the issue, but because the biological knowledge is inadequate to 
refute any of the assumptions, the conflict cannot be resolved in an 
objective fashion based on the biology of the problem.'' Thus, we must 
ask ourselves ``would we rather collect knowledge up front to resolve 
the issue or pay for litigation to resolve the issue without knowledge? 
In the end...such `train wrecks' prove even more expensive in time, 
money, and consternation among the players and all the while decisions 
will be made without reliable knowledge.'' History is replete with 
examples where science lags behind on-the-ground implementation. In the 
case of wind energy impacts on wildlife, the lag is due in large part 
to poor funding and commitment to priority research. We must increase 
cooperation, access to study sites, and logistical and financial 
support for research to gain the reliable knowledge needed for 
decision-making to solve wind energy and wildlife conflicts. This 
Subcommittee and Congress can make a difference through implementation 
of suggestions offered as part of this hearing.
    Madam Chairwoman and Members of the Subcommittee, on behalf of Bat 
Conservation International I want to thank you for inviting me to share 
this information and assist you on this important issue. I would be 
happy to answer any questions you may have.
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                                 ______
                                 

           Response to questions submitted for the record by 
             Edward Arnett, Bat Conservation International

Questions from Mr. Brown:
(1)  Mr. Arnett, what are the causes of bat mortality at wind farm 
        facilities?
    Without having clarified the question with your staff, I will 
answer this in two ways. First, the actual causes of death. Most 
studies report that the majority of bat fatalities discovered have 
obvious injuries including broken wings, broken back, and crushed 
skulls which are consistent with direct collision with moving blades. 
However, several studies report bat fatalities with no external trauma 
which suggests that some are killed either by ``glancing blows'' from 
the turbine blades further from the tip and more toward the blunt end 
near the hub, or through a phenomenon known as rapid decompression. 
Wind turbines produce obvious blade-tip vortices and if bats get 
temporarily trapped in these moving air masses it may be difficult for 
them to escape. Once trapped in these vortices, they may experience 
rapid pressure changes that could cause internal injuries leading to 
death. If bats are not killed, but only injured, and fall to the ground 
into habitats without shrubs or trees, many species of bats would not 
be able to lift off the ground, and thus would die because they require 
some level of height to drop, swoop and take off in flight. Other 
species are capable of lift off from flat ground. I do not believe that 
bats strike the turbine's monopole or non-moving blades and are killed 
only by fast moving turbine blades. Thermal imaging video footage 
gathered at Mountaineer in 2004 shows bats investigating stationary 
turbines, chasing slow-moving blades, and consistently being struck by 
fast-moving blades, thus providing strong evidence to support this 
contention.
    Second, there are several hypothesized reasons why bats are killed 
by wind turbines. Several colleagues and I believe that bats are 
attracted to turbines for perhaps any number of reasons. Leading 
attraction hypotheses include perception of turbines as roost trees, 
perception of roosts as rendezvous sites for migrating bats to 
encounter mates during the fall breeding season, insect attraction to 
turbines which then attracts bats to feed, and sound attraction (both 
ultrasonic and audible below 20kHz--i.e., the ``swishing'' sound of 
moving blades). Regardless of the actual cause, we do not believe bat 
fatality at turbines is a random chance event and some level of 
attraction exists, which further complicates our efforts for mitigating 
impacts.
(2)  If so little is know about the historical or current populations 
        of most species of bats, how do you know they are substantially 
        declining? Where is the scientific evidence or is your data 
        based only anecdotal information?
    There is both scientific evidence and anecdotal observations over 
the past century that suggests bats were once far more numerous than 
they are today. There is strong supporting evidence for the decline of 
several cave-roosting species that are now endangered, most notably the 
Indiana bat and the gray bat. Methods for enumerating and tracking 
changes in populations of bats that hibernate in caves provide the most 
reliable data for trends of these species. Tracking populations of 
other species are far more problematic because several species that are 
widely dispersed, such as those that use forests for example, are 
extremely difficult to monitor and long-term trends difficult to 
establish. Nevertheless, scientists have used indices such as data from 
long-term mist-netting stations, records of the number of bats 
submitted to public health agencies for rabies testing, and measures of 
habitat loss to evaluate potential changes in numbers of some species 
of bats over time. Anecdotal observations from historic literature 
suggest that tree-roosting species like the red bat and hoary bat, 
those most frequently killed by turbines in North America, were once 
far more numerous. In the late 1890s, naturalist Edgar Mearns reported 
observations of ``great flocks'' of red bats migrating in the fall that 
would often take days to pass over. There are numerous other anecdotal 
accounts suggesting many species of bats were once far more abundant.
(3)  Why don't states enforce their wildlife laws for bats?
    I do not feel it is appropriate for me to speak on behalf of an 
agency and speculate why such laws are rarely if ever enforced. I 
suggest that specific states be contacted in regard to their 
regulations and enforcement in regard to non-federally listed species 
of bats.
(4)  While I understand bats migrate across state lines, do they also 
        migrate from the United States into Canada and Mexico?
    Yes, several species are known to migrate across international 
borders. Hoary bats, for example, are known to breed far north into 
Canada and winter in Mexico. Other species of migratory tree roosting 
bats, such as silver-haired bats and red bats, exhibit similar 
patterns. Brazilian free-tailed bats, which have been reported killed 
at wind facilities in Oklahoma, readily migrate into Mexico during 
winter.
(5)  How many lawsuits have you or your organization filed against the 
        Federal government in the last five years? Please elaborate on 
        what issues the suits concerned and which agencies were the 
        target of the lawsuit. Have you filed any related to wind power 
        projects?
    BCI has never filed a lawsuit against any entity in its history.
(6)  Do you or any members of your organization serve on any Federal 
        advisory panels or committees as a representative of your 
        organization?
    Founder and Executive Director Dr. Merlin Tuttle has served on the 
Indiana Bat Recovery Team from 1982 to present, and the Gray bat 
recovery team from 1981 to present.
(7)  Do you, your organization, or any of the officers or full time 
        employees of your organization receive any Federal grants, 
        contracts or other funds? If so, please elaborate.
    In addition to grants received from agencies in the Department of 
Interior and the National Fish and Wildlife Foundation that were 
disclosed prior to my testimony, BCI has partnered with several federal 
agencies including the U.S. Forest Service, Natural Resources 
Conservation Service, Department of Defense and others to achieve bat 
conservation and management objectives. For most projects, federal 
funds are matched with private funds generated by BCI.
                                 ______
                                 
    Ms. Bordallo. Thank you. Thank you very much, Mr. Arnett.
    I would like now to invite Dr. Fry to testify.

              STATEMENT OF MICHAEL FRY, DIRECTOR, 
        BIRDS AND PESTICIDES, AMERICAN BIRD CONSERVANCY

    Mr. Fry. Chairman Bordallo, Member Sali, Distinguished 
Members of the Committee, I would like to thank you for 
inviting me to testify on wind projects.
    My name is Dr. Michael Fry. I work for American Bird 
Conservancy. I am responsible for science and policy issues of 
wind project impacts on mortality and habitat impacts on birds 
and documenting the fact that there is more danger from these 
than communications towers or even house cats. However, as the 
U.S. develops many more of these wind projects, the projected 
kill will be about one to two million birds per year from wind.
    Data from Fish and Wildlife Service and the U.S. Geological 
Survey indicated that at least 25 percent of all our native 
bird species are in decline. The mortality at wind farms is 
significant because many of the species most impacted by wind 
are already in decline, and all additional sources of mortality 
are significant.
    Unfortunately, today the collaborative efforts to address 
the impacts of wind projects on birds have been a failure. The 
Department of Energy formed the National Wind Coordinating 
Committee in 1994. The NWCC has been an active forum for 
environmental issues, had developed fact sheets and methods 
documents to identify risks. The NWCC has recommended actions 
that could be taken by industry to prevent mortality and 
habitat destruction from wind projects.
    The industry has largely ignored these recommendations as 
either too costly or unproven. The wind energy is essentially 
unregulated.
    The wind industry has been constructing and operating wind 
projects for almost 25 years with little oversight. At the 
Altamont Pass in California more than a thousand Golden Eagles 
have been killed and have been put in the freezer. Not a single 
prosecution for killing eagles has been brought by Federal 
officials. No explanation has been provided why the Bald and 
Golden Eagle Protection Act has been ignored. Without any 
enforcement the industry has no incentive to prevent bird 
mortality.
    Fish and Wildlife Service developed an interim series of 
voluntary siting guidelines in 2005. The Federal guidelines 
must be mandatory rather than voluntary when industry is 
provided ample evidence that they regard voluntary guidelines 
as unimportant and they have been ignored.
    American Bird Conservancy wants to see meaningful Federal 
participation to solve wildlife problems. While I know it is 
not the purview of the Natural Resources Committee's 
jurisdiction, H.R. 197 has been introduced in the Ways and 
Means Committee to renew the Production Tax Credit for wind. 
ABC recommends that any renewal of the Production Tax Credit 
include amendments that require developers to follow best 
management practices to avoid bird impacts.
    Because of the Federal tax credit, there is already a 
Federal nexus in all wind projects. ABC wants to see amendments 
that require a national mapping program to identify important 
areas and sensitive bird areas. We want to require efforts to 
reduce habitat loss during construction in the operation of 
wind projects. We want to require modification or relocation of 
turbines that kill a disproportionate number of birds, and we 
want to require studies to implement real time radar at wind 
projects to signal when flocks of birds approach the project 
and require hour-by-hour shutdowns to avoid mortalities. These 
are currently being done in Spain at wind projects now.
    The implementation and oversight of these measures would be 
best accomplished by identification of a Federal lead agency 
and to provide authority for enforcement and development of 
best management practices. The logical lead agency would be the 
Fish and Wildlife Service, or if they are overburdened or do 
not want to take that, the Federal Energy Regulatory Commission 
could be given this responsibility if there were adequate 
resources.
    In my written testimony, I have described the groups of 
birds most at risk, and have also listed critical areas of 
research to protect birds. Also in my written testimony is a 
description of the failure to protect critically endangered 
Puerto Rican Nightjar, a bird species with a total population 
of less than 1,700 individuals.
    In 2006, the Fish and Wildlife Service granted an 
incidental take permit to destroy dozens of nesting territories 
and allow construction of a major wind project in Puerto Rico 
in areas described by the Department of Energy as poor to 
marginal wind. This is a prime example of the lack of 
responsibility of Federal oversight to protect fish and 
wildlife in projects.
    Thank you again for the opportunity present my testimony. I 
will be happy to answer any questions.
    [The prepared statement of Mr. Fry follows:]

            Statement of Donald Michael Fry, PhD, Director, 
        Pesticides and Birds Program, American Bird Conservancy

    Chairman Bordallo, Ranking Member Brown, and distinguished members 
of the Fisheries, Wildlife and Oceans Subcommittee, I would first like 
to thank you for inviting me to testify on behalf of the American Bird 
Conservancy (ABC) on the effects of wind turbine energy projects on 
birds in the United States.
    My name is Dr. Michael Fry, and I am the Director of the Pesticides 
and Birds Program at American Bird Conservancy. In addition to being 
responsible for science and federal policy issues concerning 
pesticides, my job includes federal policy and science issues related 
to the effects of wind projects on mortality and habitat impacts to 
birds.
    My qualifications include a PhD in Animal Physiology from the 
University of California, Davis, and 30 years experience in avian 
ecology and toxicology at the University of California and at American 
Bird Conservancy. I am a member of the Wildlife Workgroup of the 
National Wind Coordinating Committee, funded by the U.S. Department of 
Energy I serve on the Minerals Management Service, Outer Continental 
Shelf Environmental Studies Program, Science Advisory Committee, and am 
Chair of the Subcommittee on Alternative and Renewable Energy.
    American Bird Conservancy (ABC) is a 501(c)3 not-for-profit 
organization, whose mission is to conserve wild birds and their 
habitats throughout the Americas. It is the only U.S.-based, group 
dedicated solely to overcoming the greatest threats facing birds in the 
Western Hemisphere. In brief, ABC has been an active participant in 
national symposia on wind power, birds and wildlife for the past ten 
years and believes that with proper siting, operation, and monitoring, 
wind energy can provide clean, renewable energy for America's future 
with minimal impacts to birds and bats. ABC has developed a policy 
statement on wind energy and birds available on our website at: http://
www.abcbirds.org/policy/windenergy.htm
    Unfortunately, to date, collaborative efforts to successfully 
address the impacts of wind projects on birds and wildlife have been a 
failure.
    As members of this subcommittee may know, the Department of Energy 
formed a consensus-based collaborative in 1994, the National Wind 
Coordinating Collaborative (NWCC), which is comprised of 
representatives from the utility, wind industry, environmental, 
consumer, regulatory, power marketer, agricultural, tribal, economic 
development, and state and federal government sectors. The purpose of 
the collaborative was ``to support the development of an 
environmentally, economically, and politically sustainable commercial 
market for wind power''. The NWCC has been an active forum for 
discussion of environmental issues, and subcommittees of the NWCC have 
developed several fact sheets and methods and metrics documents in an 
effort to identify risks to wildlife from wind projects, and to 
recommend actions that could be taken by industry to prevent, reduce, 
or mitigate collision mortality and habitat destruction arising from 
the construction and operation of wind projects within the US.
    My experience with NWCC, however, has been that there has been much 
discussion and almost no real action on the part of the wind industry 
to resolve bird collision issues at wind project areas.
    The wind energy industry has been constructing and operating wind 
projects for almost 25 years with little state and federal oversight. 
They have rejected as either too costly or unproven techniques 
recommended by NWCC to reduce bird deaths. The wind industry ignores 
the expertise of state energy staff and the knowledgeable advice of 
Fish and Wildlife Service employees on ways to reduce or avoid bird and 
wildlife impacts.
 Federal and state oversight for wind energy projects has been 
        virtually nonexistent.
    Federal participation in regulation and enforcement of wind energy 
has been particularly conspicuous in its absence. At Altamont Pass Wind 
Resource Area, more than a thousand Golden Eagles have been killed, and 
enforcement officials have archived carcasses for decades. Not a single 
prosecution for take of eagles has been brought by federal officials, 
and no adequate explanation has ever been provided to explain why the 
Bald and Golden Eagle Protection Act has been ignored for so long.
    The Fish and Wildlife Service developed an interim series of 
voluntary siting guidelines in 2003, and revised them after a prolonged 
comment period in 2005. Federal guidelines must be required rather than 
voluntary. The wind industry has provided ample evidence that voluntary 
guidelines are regarded as unimportant and are thus summarily 
dismissed.
    The State of California has worked diligently to document habitat 
issues and bird kills. They have recommended studies to evaluate 
techniques to prevent or minimize the killing of birds of prey at 
several wind resource areas in California. Permits for development and 
operation continue to be issued by California and its counties. They 
have done so after being promised by wind developers that the wind 
industry would take all measures ``feasible'' to prevent or minimize 
bird injuries and deaths. However, without any meaningful regulatory 
oversight or enforcement, the industry has exhibited very little change 
in its behavior over the past 25 years. Technology has advanced 
substantially, and promises have been made that newer technologies 
would reduce bird deaths, but very little evidence has been provided by 
industry to substantiate their claims.
    In fact, when independent researchers finally gained access to the 
Altamont Pass area, under contract from the California Energy 
Commission, the results of their research and documentation were 
viscously attacked by staff from the California Wind Energy 
Association. Every effort was made to discredit the research and 
personally discredit the researchers. The NWCC website provides an 
excellent bibliographic resource to much of this information, and 
documents and links are available at: http://www.nationalwind.org/
workgroups/wildlife/.
    The State of Maryland has recently exempted wind projects from 
meaningful environmental review. Maryland has eliminated the 
requirement for a Certificate of Public Convenience and Necessity 
(CPCN) before construction of a wind farm. The law eliminates the 
ability of stakeholders other than the wind developer to have input 
into the process. The law now: 1) Exempts wind energy developers from 
obtaining a Certificate of Public Convenience and necessity (CPCN) from 
the Public Service Commission. The developer only needs a construction 
permit.; 2) Blocks the public from having meaningful participation in 
the decision process for wind energy projects; and 3) Prevents public 
and expert testimony at Public Service Commission hearings for wind 
energy projects proposed on state-owned lands and offshore, in waters 
of the Chesapeake Bay.
    In summary, there has been a great deal of discussion and very 
little action on the part of industry and the federal government to 
resolve bird and wildlife issues.
 Bird populations at greatest risk include birds of prey and grassland 
        songbirds.
    The bird species at risk at individual wind projects vary greatly, 
as habitats with good wind resource are highly variable across the US. 
In general, the two bird species groups at greatest risk are birds of 
prey, (both hawks and eagles that hunt during the day, and owls, which 
are nocturnal, and hunt at night) and grassland birds, species groups 
living in the Great Plains and in flat or rolling hill country in the 
Pacific Northwest, California, and Texas.
    The bird species that have been documented to have the greatest 
risks from collision mortality are:
 Collision Mortality Risk:
 Birds of Prey:
    Especially in California and the Pacific Northwest
        Golden Eagles
        Red-tailed Hawks
        White-tailed kites
        American Kestrels
        Burrowing Owls
        Barn Owls
        Great Horned Owls
 Grassland ground birds and songbirds:
    Especially in the Pacific Northwest and Great Plains
        Horned Larks
        Mourning Doves
        Swallows
        Pheasants
        Western Meadowlarks
        Sparrows-several species
 ``Generalist'' species, found in many places:
        Gulls-several species
        Common Ravens
 Migratory birds
        Warblers-several species
        Thrushes
        Wrens
        Sparrows and finches
        Bluebirds
        Swallows
        More than 50 species of other migratory songbirds
 Habitat loss:
    Especially in the Great Basin and the Great Plains and Texas
        Sage grouse
        Prairie chickens

    Birds of prey have long been recognized as the most vulnerable 
group of birds to suffer direct mortality from collisions with rotor 
blades of wind turbines. It appears that resident birds are killed in 
the greatest numbers, that is, those birds that live in the area of the 
wind project and are apparently killed while hunting. This has been a 
particularly difficult problem in California at Altamont Pass and also 
at the Montezuma Hills wind area in Solano County. The risk to resident 
birds of prey appears directly related to the population density of 
birds of prey in the area. To date, very few well documented mitigation 
attempts have been tried to reduce the kills of birds of prey at 
existing wind projects.
    There have been early planning efforts at one major wind project: 
Foote Creek Rim, Wyoming, where careful location of wind turbines to 
avoid raptor flight patters has resulted in minimizing collision 
mortality of birds of prey. This type of effort should be undertaken at 
every wind project, early in the planning stages, prior to leasing land 
or siting turbines.
    Grassland bird species are also at risk of both collision mortality 
and habitat loss. Horned Larks are a small songbird species that has 
been disproportionately killed at windfarms in the Great Basin and 
Great Plains, apparently because of courtship behaviors that involve 
aerial display flights that take the birds into the path of turning 
rotors. Other ground dwelling songbirds and grouse are not at as high 
risk from collision mortality, but may be at very high risk of 
disturbance and displacement from wind projects, because of their 
apparent aversion to tall structures. Active research sponsored by the 
NWCC and funded by others is ongoing, in an effort to identify the 
displacement risks to grassland species.
 Habitat loss in Puerto Rico and tretas to the endangered Puerto Rican 
        Nightjar:
    The Puerto Rican Nightjar is a critically endangered insect eating 
``Whip-poor-will'' like species, with a total population estimated at 
less than 1700 individuals. They live in tropical dry forests at only a 
few locations in Puerto Rico, and have been listed as Endangered by the 
FWS since 1973. In 2006, the FWS granted an incidental take permit to 
destroy approximately 46 nesting territories in prime habitat in 
Guayanilla, Puerto Rico, to allow the construction of a major wind 
project (WindMar) in an area described as ``marginal'' wind resource by 
the Department of Energy. It is completely inexplicable why the FWS 
would grant such a permit to allow destruction of an endangered species 
for development of a wind farm at a marginal resource, with a very 
inadequate habitat conservation plan under the ESA. This is a prime 
example of the lack of regulatory oversight provided by the FWS to 
protect wildlife at wind projects.
 A Proposal for Meaningful Federal Participation to solve wildlife 
        problems:
    While I know that it is not the Natural Resources Committee's 
jurisdiction, there is a bill in the Ways and Means Committee to renew 
the production tax credit for wind energy, H.R. 197. ABC recommends 
that any renewal of the production tax credit include provisions that 
require meaningful research into ways of minimizing bird and bat kills 
by wind projects, and require developers follow standard Best 
Management Practices (BMPs) in avoiding and minimizing bird and 
wildlife impacts.
    Below several important research topics that have not been 
adequately addressed since their discovery shortly after operation of 
the wind projects at Altamont Pass began 25 years ago. When answers to 
these questions are available, they should be incorporated into the 
BMPs, and enforced by the appropriate authorities. The logical federal 
agency to have authority over promulgation and enforcement of BMPs. 
would be the FWS.
      Require efforts to reduce habitat loss during 
construction and operation of wind projects.
      Require adequate studies prior to siting wind projects to 
avoid important and sensitive bird areas.
      Require modifications to locations or operation of 
turbines that kill a disproportionate number of birds.
      Require real-time radar to be installed at wind projects 
that are located in regions with high numbers of migratory birds, and 
require project shut-downs when flocks of birds at risk from collisions 
are detected approaching the wind project.
    Critical research needs to be done in the following areas:
 Identification of important bird areas.
    These areas should be off-limits to wind development unless 
adequate preventative measures can be discovered to minimize incidental 
take of protected bird species.
 Better analysis of direct mortality.
    The methods used to evaluate collision mortality in operating wind 
farms are controversial and uncertain in their conclusions. Birds and 
bats killed by wind turbines are searched for by field teams at 
infrequent intervals, and the methods to extrapolate to the true number 
of birds or bats killed still remain controversial. For example, it is 
unknown whether small birds struck by a turbine blade moving with a 
speed of greater than 150 mph remain intact, or whether they 
disintegrate into a ``poof'' of feathers and small fragments. It is 
unknown how far carcasses of small birds that do remain intact can be 
catapulted by a turbine blade that is 130 feet long traveling at 150 
mph. It is unknown how frequently and quickly scavengers remove 
carcasses of dead or injured birds, so that monitoring personnel (when 
present) do not observe the mortality. The formulas and algorithms used 
to estimate scavenging rates remain controversial and the environmental 
community remains skeptical of the accuracy of mortality estimates.
 Do turbines on ridge tops significantly affect migrants?
    The ``typical'' modern turbine is a 1.5 MW, 3 blade monopole 
turbine with a hub height 55-80 m (180-260 ft.) above ground level, and 
turbine blade length of 35-40 m (115-130 ft.). The rotor typically 
spins at 12-20 rpm, and the rotor tip travels at 150-180 mph. The 
height of the rotor, the speed of the blades, and the speed of the wind 
are all factors in where a bird carcass might land after being struck 
by a blade.
    Recent published scientific reports indicate that greater than 10% 
of nocturnal migrating songbirds migrating over ridges fly at 
elevations putting them within the area of rotating turbines (Mabee at 
al. 2006, WILDLIFE SOCIETY BULLETIN 34(3):682-690). It is not known 
whether these birds are at risk of being struck by turbines blades, 
whether they can adequately avoid them, and whether inclement weather 
might increase the collision risk, as it does with communications 
towers.
 What locations in the U.S. are unsuitable for wind projects? This 
        would be based on the presence of vulnerable bird and bat 
        species.
 What areas of the U.S. are significant migratory corridors or broad 
        regions with huge numbers of migratory birds, both songbirds 
        and raptors?
    The Gulf Coast of Texas and Louisiana are known to be critical 
passage areas for billions of protected migratory bird species. Weather 
radar has been employed to evaluate the numbers of birds migrating 
along the Texas coast, and flocks of millions of birds are routinely 
observed in spring and fall. Texas, however, does not even involve its 
Department of Parks and Wildlife in the permitting process, which is 
carried out by the Texas General Land Office. I believe this is totally 
unacceptable.
 Can real-time radar and short-term turbine shutdowns successfully 
        prevent mortalities of migrating birds without economic 
        hardship to wind projects and without harmful interruptions to 
        the electric grid?
    Real-time radar is currently operational in Spain to prevent 
collision mortality to migrating birds of prey. This or similar 
technologies need to be developed in this country, in spite of the 
frequently heard statement that such measures are too costly, and that 
financers of projects will not stand for the economic loss from 
temporary or seasonal shutdowns. The World Bank is requiring such 
technologies to be developed at wind projects in Mexico to prevent 
mortalities to migrating hawks that funnel through the Oaxaca region in 
very large numbers.
 Can automated technologies be developed that detect bird strikes to 
        turbine blades?
    If acoustic, photographic or other sensitive automatic detectors 
could be developed within rotor blades or turbine hubs to monitor bird 
strikes, the uncertainty and expense of carcass searches and 
repetitious monitoring of wind farms could be eliminated, and better 
information on problem turbines would be generated. The costs of 
incorporating sensitive detectors into rotor blades or hubs would be 
very small compared to the overall costs, and cost reductions from 
reduced monitoring and analysis would be significant.
 How will bird strikes be evaluated at offshore wind projects?
 Which bird species (ex Brown Pelicans and Gannets) are at risk from 
        offshore wind projects?
 Will offshore wind projects exclude wintering migratory sea ducks and 
        other birds from traditional feeding habitats?
    The last three questions deal primarily with offshore wind 
projects, and need to be addressed to the Minerals Management Service 
Environmental Studies Program, as they gear up for environmental 
studies in conjunction with leasing offshore areas for wind projects.
    All of these unanswered questions have been posed to the National 
Renewable Energy Laboratory of the Department of Energy and to the 
Minerals Management Service. At the current time there is no adequate 
budget to answer these or other questions, but wind projects are going 
forward at an increasing rate without answers to these questions, and 
without adequate involvement of the Fish and Wildlife Service for 
development of enforceable guidelines for preventing or minimizing bird 
kills and habitat losses.
 Biological Significance of wind turbine mortality.
    While the actual number of birds killed by wind turbines is 
unknown, estimates have been made in the range of 30,000 to 60,000 per 
year at the current level of wind development. The wind industry is 
prepared to increase the number of turbines 30 fold over the next 20 
years, in order to fulfill the President's request that renewable 
energy projects supply 20% of the nation's energy needs by 2030.
    At the current estimated mortality rate, the wind industry will be 
killing 900,000 to 1.8 million birds per year. While this number is a 
relatively small percentage of the total number of birds estimated to 
live in North America many of the bird species being killed are already 
declining for other reasons, and losses of more than a million birds 
per year would exacerbate these unexplained declines. Data from the FWS 
Migratory Bird Management and Breeding Bird Survey by the U.S. 
Geological Service indicate that at least 223 species of our native 
bird species are in significant decline (about 1/4 of all species in 
US). The mortality at wind farms is significant, because many of the 
species most impacted are already in decline, and all sources of 
mortality contribute to the continuing decline.
    Thank you once again for the opportunity to present my testimony 
today Chairman Bordallo.
                                 ______
                                 

   Response to questions submitted for the record by Dr. Michael Fry

Questions from Ranking Minority Member Brown
(1)  Why are so many birds being killed at the Altamont Pass Wind 
        Resource Area? Is it a siting problem, outdated technology or 
        some other factors? Should this facility be closed?
    The Altamont Pass Wind Resource area was the first large scale wind 
project in the United States, and was built in a rural area of Central 
California that has a very high resident population of eagles, hawks 
and owls, as well as a large population of birds of prey that migrate 
from northern areas and winter in Central California. The area also has 
a large population of ground squirrels and rabbits, which are the main 
prey resources for the birds of prey. The most significant problem at 
Altamont appears to be resident and wintering birds that actively hunt 
these prey, and while focusing on prey, they do not watch where they 
are flying, and they collide with turbine rotors and are killed. There 
is relatively little evidence that migrating birds passing through the 
Altamont area are killed while migrating.
    The County of Alameda, the California Energy Commission (CEC), and 
the wind farm operators have participated in several large studies to 
determine ways to minimize the mortalities, and to determine which 
turbines are most dangerous to birds. Because the Altamont area has 
more than 7000 turbines of several different designs, it is a very good 
place to study the problem, and try different mitigation methods. 
Fortunately, in the last few years, the County and CEC have been able 
to persuade the operators to actively participate in finding solutions 
to the problem, because many of the turbines are now obsolete, and the 
projects need to be ``repowered'' with newer, more modern, turbines 
that are more efficient, and, hopefully, less dangerous to birds. As 
condition of the new repowering agreements, the wind farm operators 
have been required to begin intense studies and mitigation trials to 
identify the best turbine designs, identify problem turbine locations, 
move or shut down individual problem turbines, and conduct land 
management activities to try and reduce the number of rodents living in 
the area. This involves managing cattle grazing on the land, moving 
rock piles that are havens for rodents, and other measures to reduce 
rodent populations. Turbine rotor blade painting, placing new turbines 
away from flight corridors, changing the heights of turbines to move 
them out of flight paths, and installing bird diverter pylons are all 
methods that are being studied to solve the collision problems.
    I believe that the Altamont is our best ``field laboratory'' for 
working to reduce bird kills, and that active management needs to 
continue if regulators and the industry are to find the best management 
practices that will be used at other projects to reduce wildlife 
mortality. I do not believe Altamont should be shut down at the present 
time.
(2)  Dr. Fry, is it safe to say, you disagree with the General 
        Accounting Office that concluded in 2005 that ``Studies from 
        these two locations (Altamont Pass and Mountaineer) stand in 
        contrast to studies from other wind power facilities. These 
        studies show relatively lower bird and bat mortality''? Please 
        cite your studies?
    I participated in the writing of the document: ``Wind Turbine 
Interactions with Birds and Bats: A Summary of Research Results and 
Remaining Questions'', November 2004, published by the National Wind 
Coordinating Committee, which I have included as an attachment to this 
letter. The wildlife workgroup reviewed and compiled all available 
data, both public and proprietary industry data, on wind farms that was 
available to do the statistical analysis for the report. Much of the 
data in the report were the data used by the GAO in their analysis.
    While the GAO report concludes that only California and Appalachia 
have been identified as areas with high mortality, the conclusions do 
not accurately reflect the data presented in the GAO report. Table 3 of 
Appendix II is particularly important, and has been included below.
[GRAPHIC] [TIFF OMITTED] T5058.001

    .epsTable 3 shows that the Altamont Pass area has a lower mortality 
rate than many other areas around the US, but because of the very high 
number of turbines, the overall kill at Altamont is higher than other 
areas. The Altamont Pass mortality rate for birds is 0.19-0.87 birds 
per turbine, while 4 facilities in Oregon, and facilities in Wyoming, 
Minnesota, Wisconsin, Tennessee, and West Virginia are all higher than 
Altamont, based on fatalities per turbine per year. The GAO report 
further states: ``Lack of comprehensive data on bird and bat fatalities 
from wind turbines makes it difficult to make national assessments of 
the impact of wind turbines on wildlife''. The GAO report continues: 
``...relatively few postconstruction monitoring studies have been 
conducted and made publicly available. It appears that many wind power 
facilities and geographic areas in the United States have not been 
studied at all. For example, a bird advocacy group expressed concern at 
a recent National Wind Coordinating Committee meeting that most of the 
wind projects that have been monitored for bird impacts are in the 
west. The American Wind Energy Association reports that there are 
hundreds of wind power facilities currently operating elsewhere in the 
country. However, we were able to locate only 19 postconstruction 
studies that were conducted to assess direct impacts to birds or bats 
in 11 states. Texas, for example, is second only to California in 
installed wind power capacity, but we were unable to find a single, 
publicly available study investigating bird or bat mortality in that 
state''.
    Texas has since become the State with the largest number of wind 
turbines, and there is still not a single public report documenting 
wildlife impacts of wind projects in Texas.
    Altamont Pass, therefore, is not singularly high in mortality of 
birds, but is actually below average. It is just better studied, and is 
larger than most wind projects. The mortality problem is nationwide, 
both for birds and for bats.
(3)  Dr. Fry, in your testimony, you seem to object that large 
        companies like General Electric now own and operate the new 
        large emerging wind power farms? Would you feel better about 
        this technology if they were small rather than large companies 
        that made this investment?
    The wind industry was begun by small companies that were idealistic 
and truly wanted to develop energy resources that did not depend on 
fossil fuels. This idealism is the same force that has motivated 
scientists and the public to fight global climate change. I look 
forward to the day when giant energy corporations like BP and GE make 
just as strong a commitment to solving the problems of global warming. 
The size of a corporation owing or operating a wind farm does not 
matter. In my opinion, an important factor is the commitment to 
providing energy while minimizing impacts on the environment.
(4)  Cats and high rise windows kill millions of birds each year. In 
        fact, many times more than your estimates from wind turbines. 
        What is your organization doing to combat the huge cat and 
        window collision problem?
    American Bird Conservancy believes all the cumulative causes of 
mortality to birds should be addressed and reduced. Currently there are 
223 species of birds in trouble, because their populations are steeply 
declining, and some of them will need the protection of the Endangered 
Species Act if the trends are not reversed. The Fish and Wildlife 
Service has identified these as ``Species of conservation concern'', 
and the causes of population decline are generally uncertain.
    American Bird Conservancy would like to request that the Committee 
on Natural Resources hold a hearing on the causes of decline of our 
native bird species, and take testimony on actions that might be taken 
to protect them. Birds are our most conspicuous wildlife, and the 
public has consistently supported efforts to protect birds.
    Causes of bird mortality:
        Glass Buildings
        House cats
        Pesticides
        Habitat destruction and fragmentation
        Automobiles
        Utility power and transmission lines
        Communications towers
        Wind turbines
        Fishing gear, especially commercial long lines
        Lead fishing sinkers
    Cats: American Bird Conservancy started the Cats Indoors campaign 
in 1997. The campaign is designed to educate cat owners, decision 
makers, and the general public that cats, wildlife and people all 
benefit when cats are kept indoors, in an outdoor enclosure, or trained 
to go outside on a harness and leash. ABC developed many education 
materials, including fact sheets, posters, the popular brochure, 
Keeping Cats Indoors Isn't Just For The Birds, an Educator's Guide for 
Grades K-6, print and radio Public Service Announcements (PSAs). Much 
more about the program is available on the ABC website at: http://
www.abcbirds.org/cats/ ABC has had a full-time director for the Cats 
Indoors! Campaign since 1997, and has worked with many State agencies, 
the Fish and Wildlife Service, and others to promote keeping cats 
indoors and safe. ABC has also conducted a program to work with feral 
cat colonies to prevent feral cats from killing threatened and 
endangered Piping Plovers along beaches in eastern States, and has 
worked with the Humane Society of the United States and other not for 
profit organizations to promote keeping cats indoors.
    Windows: American Bird Conservancy (ABC) has a nationwide network 
of cooperating organizations in the Bird Conservation Alliance (BCA). 
The BCA Director, Alicia Craig, is a full-time ABC employee whose 
responsibility it is to coordinate programs with out conservation 
partners. One of the programs is FLAP--Fatal Light Awareness Program, a 
non-profit in Toronto, Canada. Another is Lights Out Chicago, which has 
been conducting a campaign to encourage large building owners in 
Chicago to shut off lights at night. One of the strongest supporters of 
Lights out Chicago is a former Board Member of ABC.
(5)  Congressman Mollohan mentioned the ``impacts on the natural 
        beauty'' of wind power facilities. How much should the Federal 
        government regulate view impacts of Federally-permitted 
        activities and projects? If you agree that the Federal 
        government should, how would you create standards?
    I think regulating the ``viewshed'' should be a local, County or 
State responsibility, except in National Parks or on federal lands, 
where the agency overseeing the federal lands should work cooperatively 
with the local authorities. American Bird Conservancy does not have a 
policy on visual impacts of wind projects, because ABC's concern is 
focused on the threats of wind projects on birds.
(6)  How many lawsuits have you or your organization filed against the 
        Federal government in the last five years? Please elaborate on 
        what issues the suits concerned and which agencies were the 
        target of the lawsuit. Have you filed any related to wind power 
        projects?
    American Bird Conservancy is not a litigious organization. We have 
always tried to work with parties responsible for harming birds, and to 
reach agreements voluntarily. ABC has only resorted to four lawsuits, 
two against communications towers killing birds: one in Hawaii 
affecting endangered Hawaiian birds and one in Mississippi in the major 
migratory flyway. ABC also filed suit against the Corps of Engineers 
for their attempt to destroy the largest breeding colony of Caspian 
Terns on Earth in the Colombia River Basin by removing a dredge spoil 
island. Subsequently the Corps has hired ABC in a contract to help them 
avoid destruction of Least Tern habitat. The last suit was against EPA 
to stop the use of the pesticide Fenthion for mosquito abatement in 
Florida following the documented killing of more than 300,000 birds, 
including endangered Piping Plovers. EPA subsequently has supported the 
creation of an ABC pesticide database.
(7)  Do you or any members of your organization serve on any Federal 
        advisory panels or committees as a representative of your 
        organization?
    Yes, I serve on two FACA committees currently, and have served on 
special scientific panels for EPA and the National Research Council of 
the National Academy of Sciences.
    Current Participation:
        EPA: Pesticide Program Dialog Committee 2005-present
        U. S. Dept. Interior Minerals Management Service Science 
        Advisory Committee 2006-present.
    Former Participation:
        U. S. Environmental Protection Agency (EPA), Ecological 
        Committee on FIFRA Risk Assessment Methods, 1997-1999
        U. S. Environmental Protection Agency, Science Advisory Panel 
        for refined terrestrial and aquatic models, probabilistic risk 
        assessment for pesticides. 2004
        U. S. National Academy of Sciences, National Research Council: 
        Panel on Hormone Related Toxicants, 1995-1999
(8)  Do you, your organization, or any of the officers or full time 
        employees of your organization receive any Federal grants, 
        contracts or other funds? If so, please elaborate.
    The list of federal grants is included in my disclosure statement 
which has been attached.
    [NOTE: The document, ``Wind Turbine Interactions with Birds and 
Bats: A Summary of Research Results and Remaining Questions'', November 
2004, published by the National Wind Coordinating Committee, has been 
retained in the Committee's official files.]
[GRAPHIC] [TIFF OMITTED] T5058.002

.eps[GRAPHIC] [TIFF OMITTED] T5058.003

                                 .eps__
                                 
    Ms. Bordallo. Thank you very much for your testimony, Dr. 
Fry, and the Chair now recognizes Mr. Glitzenstein. You are now 
recognized to testify for five minutes.

          STATEMENT OF ERIC R. GLITZENSTEIN, PARTNER, 
                 MEYER GLITZENSTEIN AND CRYSTAL

    Mr. Glitzenstein. Thank you, Madam Chairwoman, Chairman 
Rahall, and Members of the Subcommittee.
    My perspective on this comes from my work in a public 
interest law firm where we represent nonprofit conservation 
organizations, including organizations like Friends of Black 
Water, an organization within the State of West Virginia that 
has done significant work on the wind power issue, and in that 
connection we have followed very carefully a number of the wind 
projects that have been going on, and the ones that are 
currently, or are in the planning stage.
    We also brought a Freedom of Information in that case on 
behalf of Friends of Black Water against the Fish and Wildlife 
Service to obtain documents reflecting the Service's approach 
to enforcement, or as the case may be, non-enforcement of the 
Federal wildlife laws and what that pattern of non-enforcement 
might in fact be based upon.
    What we have learned over the course of time I think is 
actually what a number of other members of the Subcommittee and 
witnesses have already testified to, and that is that we do not 
have a current coherent, comprehensive policy for addressing 
the potential adverse impacts on wildlife and other 
environmental values.
    Most of the protections to this date have been laid at the 
doorstep of local and state permitting agencies. The reality is 
that those agencies are in no position whatsoever to address 
impacts on national, indeed international resources like 
migratory birds, and I think the most obvious way of looking at 
that is they don't even have jurisdiction over the cumulative 
impact issue which really only a national entity like the Fish 
and Wildlife Service can take any kind of coherent approach to.
    If you look at the major Federal wildlife laws, each of 
them has proven to be fundamentally inadequate for I think what 
have turned out to be fairly obvious reason. The Endangered 
Species Act only comes into play when there is a listed and 
endangered threatened species. Even in that situation, the Fish 
and Wildlife Service has an enormous problem even obtaining 
access to the sites. Unless the owner of the plant allows the 
Service on the site, the Service may not even be able to 
determine that, in fact, this is the habitat of a listed 
species, and the protections of that one never come into play.
    National Environmental Policy Act only applies when there 
is already some other Federal licensing or funding at work, and 
even then it is only a procedural statute. There could be 
acknowledgment that there are massive wildlife impacts, and yet 
there is no substantive obligation under that law to do 
anything about them.
    The Migratory Bird Treaty Act and the Bald and Golden Eagle 
Protection Act would appear to be the most obvious statutes for 
addressing these problems, but the reality is that there are 
fundamental flaws in how those statues have been enforced.
    A critical thing to realize is that, unlike many other 
environmental laws such as the Endangered Species Act, there is 
no citizen enforcement mechanism within those statutes. 
Endangered Species Act, citizens, if they believe a species is 
being illegally taken, can go to court and seek some kind of 
prospective enforcement. That is not possible under those 
statutes. As a consequence, enforcement is entirely left up to 
the Fish and Wildlife Services. If it does not enforce the law, 
essentially the law goes completely unimplemented.
    We found out when we did our Freedom of Information Act 
case that many of the line officers within the Fish and 
Wildlife Service have documented repeated violations. Dr. Fry 
gave the overall statistics. Let me give you an example of one 
of the reports and what it said.
    It says that migratory bird mortalities at the wind farms 
usually occur by the birds being dismembered when they come 
into contact with the fully exposed spinning turbine blades, 
and that `One particular Golden Eagle was found in four 
separate pieces with the left wing and one leg so badly twisted 
together they could not be readily separated.''
    It went on to say that other types of injuries documented 
over the decades include severed beaks resulting in massive 
hemorrhage, decapitations, midskull or complete fractures, 
midbody separation. So just to give some concrete sense as to 
what we are talking about, these are massive ongoing impacts on 
migratory birds, yet there has been no enforcement as people 
have already testified to.
    What we are recommending and what I have suggested in my 
testimony is three specific measures. One, an obligation to 
engage in a cumulative impacts analysis and to adopt measures 
that would bring that cumulative impacts perspective to bear on 
wind operation siting decisions.
    Second, I think the Subcommittee should seriously consider 
adding a citizen enforcement mechanism to the Migratory Bird 
Treaty Act. That is in many other environmental statutes. There 
is no coherent reason why it should not be brought up to date 
with respect to that statute and the Bald and Golden Eagle 
Protection Act.
    And third, basic elementary standards for monitoring pre-
construction surveys and adaptive management as you have with 
nuclear power, hydro-electric facilities, the whole range of 
energy production facilities. No reason why that should not 
also be done with respect to wind power, we respectfully 
submit.
    I would be happy to answer any questions.
    [The prepared statement of Mr. Glitzenstein follows:]

    Statement of Eric R. Glitzenstein, Meyer Glitzenstein & Crystal

    I appreciate the opportunity to testify before the subcommittee on 
the vitally important topic of the impact of wind turbines on wildlife, 
particularly migratory birds and bats. I am a partner with the 
Washington, D.C. public-interest law firm Meyer Glitzenstein & Crystal, 
which provides legal representation to non-profit environmental, 
conservation, and animal protection organizations. I am also the 
President of the Wildlife Advocacy Project, a non-profit organization 
dedicated to assisting grassroots activists in their efforts to educate 
the public concerning threats to wildlife. A brief Biographical 
Statement is being provided.
    As requested by the subcommittee, my testimony will focus on the 
current legal and regulatory framework that applies to the impact of 
wind turbines on wildlife. As discussed below, while a number of 
federal environmental laws may come into play when wind turbines are 
being planned and constructed, there is, at present, no comprehensive, 
effective federal system for avoiding, minimizing, and mitigating the 
effects of wind power projects on migratory birds, bats, and other 
wildlife. In addition, some of the most important regulatory and legal 
tools that are available depend entirely on the willingness of 
officials in the Department of the Interior to threaten or bring 
appropriate enforcement actions. Because such officials have 
demonstrated that they are completely unwilling to bring such actions, 
even in the face of flagrant violations of federal laws, wind power 
companies have little incentive to avoid or minimize impacts on 
wildlife, including federally protected species.
    Before turning to these issues in greater detail, it is important 
to stress that wind power facilities, if properly sited, constructed, 
and monitored, can and should be a part of the answer to the global 
climate change crisis. At the same time, strenuous efforts must be made 
to avoid creating new ecological crises in the name of solving an 
existing one. By the same token, the fact that wind power may prove to 
be a piece of our energy puzzle does not mean that the wind power 
industry should get a free pass when it comes to safeguarding wildlife 
and other natural resources. Nor does it mean that the industry should 
have blanket immunity from federal environmental laws. Just as the 
nation would not tolerate the nuclear, oil, or coal industries asking 
to be relieved of all obligations to protect wildlife and other 
resources, nor should that be an acceptable outcome for the wind power 
industry. As in most situations, it is crucial to find the appropriate 
balance between encouraging the construction of wind turbines in 
appropriate locations while, at the same time, ensuring that common-
sense protections for wildlife are adopted and satisfied. After 
explaining the current untenable situation, my testimony will suggest 
appropriate legislative solutions for striking that balance.

 THE INADEQUACY OF CURRENT CONSERVATION LAWS AND REGULATORY SYSTEMS TO 
        ADDRESS THE ADVERSE IMPACTS OF WIND POWER PROJECTS ON WILDLIFE
    To date, the federal government has played an extremely limited 
role in ensuring that wind turbines are sited and constructed in an 
environmentally sound and sustainable fashion. At present, all that is 
required for most wind power projects to begin construction and 
operation is a permit from the relevant state or local public service 
commission. These agencies have neither the expertise, the incentive, 
nor the legal mandate to fully evaluate the impact of wind power 
projects on wildlife and other natural resources. Most important, state 
and local agencies cannot reasonably be expected to evaluate, let alone 
to act upon, the potential cumulative effects of projects over which 
they have no jurisdiction--particularly impacts to migratory birds, 
which are a uniquely national (indeed, international) resource.
    On the other hand, while several federal conservation laws may be 
used to reduce the impacts of wind turbines on birds, bats, and other 
wildlife under some circumstances, each of these statutes has proven to 
have severe limitations and deficiencies in addressing this issue. 
Taken together, they fall woefully short of the sort of comprehensive 
protection that will be necessary, particularly if wind power projects 
expand at the exponential rate presently being projected.
    The Endangered Species Act only affords protections to the 
relatively few species that have been formally listed as endangered or 
threatened. Under the best of circumstances, it generally takes years 
to persuade the Fish and Wildlife Service (``FWS'') to list a new 
species. Accordingly, while the ESA has afforded some vital protections 
to listed species like the Indiana bat and Northern flying squirrel 
(which the FWS is now proposing to delist on highly dubious legal and 
factual grounds), it provides no protection at all for the vast 
majority of birds and bats that are killed, injured, and harassed by 
wind turbines. And even for listed species, the ESA can be a crude 
instrument for protecting wildlife from wind turbines. If projects are 
not being built on federal lands--as is the case with most projects--
the FWS has no legal authority to secure access to sites even to 
ascertain whether listed species are present in the area, let alone to 
insist that siting or construction changes be made to protect such 
species. Accordingly, although the ESA makes it unlawful for any power 
company to build a turbine that kills, injures, or harms a listed 
species--including, in some circumstances, through habitat 
destruction--the companies presently have a perverse incentive to 
remain ignorant regarding such impacts and hoping that the safeguards 
of the ESA never come into play.
    The National Environmental Policy Act (``NEPA'') requires all 
federal agencies to analyze--in Environmental Impact Statements--the 
environmental impacts of ``major federal actions significantly 
affecting the quality of the environment.'' However, where--as is the 
case with most wind power projects--there is no necessary federal 
approval or other agency action, the EIS requirement is not triggered. 
Moreover, even where NEPA applies, the statute is purely procedural, 
i.e., the NEPA analysis could disclose that a project will have massive 
adverse impacts on a project that involves federal action (such as a 
project being build on national forest land, or with federal funding), 
but NEPA would not prevent the project from going forward.
    On their face, the two federal statutes with the greatest potential 
to ameliorate the adverse effects of wind turbines are the Migratory 
Bird Treaty Act (``MBTA'') and the Bald and Golden Eagle Protection Act 
(``BGEPA''). The MBTA, which implements various treaties between the 
U.S. and other countries to protect migratory birds, makes it 
``unlawful at any time, by any means or in any manner, to pursue, hunt, 
take, capture, [or] kill'' any migratory bird protected by the 
treaties. Any person who ``kills'' or ``takes'' a migratory bird in 
violation of the Act may be fined or even imprisoned for up to six 
months. Similarly, the BGEPA generally prohibits the taking, wounding, 
killing, or disturbing of bald and golden eagles--species that are also 
protected by the MBTA--and provides for criminal penalties when there 
is ``wanton disregard for the consequences'' of actions on eagles. In 
addition, civil enforcement actions may be brought by the government 
even when there is harm but no intent to harm eagles.
    Unfortunately, while these statutes should be of enormous value in 
addressing the adverse effects of wind turbines on birds, their actual 
benefit has been negligible at best. This is because of two related 
problems--first, neither the MBTA nor the BGEPA contains a ``citizen 
suit'' provision; accordingly, citizen enforcement of the statutes 
directly against wind projects that are killing and injuring protected 
birds is, at present, legally impossible. Second, although enforcement 
of these statutes against private violators is entirely dependent on 
the willingness of federal officials to bring, or at least threaten, 
actions for civil or criminal penalties, Interior Department and other 
federal officials have consistently refused to do so with respect to 
wind turbines, although they have known for decades that these projects 
may--if not properly sited and constructed--result in rampant 
violations of the MBTA and BGEPA.
    Unlike the Endangered Species Act and most other modern 
environmental laws--such as the Clean Water Act, Clean Air Act, and 
Toxic Substances Control Act--neither the MBTA nor BGEPA authorizes 
citizens to bring enforcement actions against statutory violators. 
Indeed, ``citizen suit provisions are now fixtures in the landscape of 
federal environmental law,'' Fadil, Citizen Suits Against Polluters: 
Picking Up the Pace, 9 Harv. Env. L. Rev. 23, 24 (1985), precisely 
because Congress has repeatedly recognized that the enforcement of 
environmental laws will be lax to nonexistent unless vigilant and 
concerned citizens are empowered to bring suit.
    That has certainly been the case with wind power projects. Interior 
Department officials have known since the early 1980's--when wind 
turbines were installed in the Altamont Pass in California--that such 
projects have the potential to maim, dismember, and otherwise destroy 
eagles, hawks, owls, falcons, and many other bird species. Indeed, in 
disturbing documents my firm obtained in a Freedom of Information Act 
lawsuit on behalf of Friends of Blackwater--a West Virginia 
conservation group--FWS enforcement officers documented that even 
single turbines were killing, every month, hundreds of such birds in 
the most horrific manner imaginable.
    For example, according to one internal ``Report of Investigation'' 
documenting ``Violations of the Migratory Bird Treaty Act'' and 
``Violations of the Eagle Act,'' the report explains that ``[m]igratory 
bird mortalities at the wind farms usually occur by the birds being 
dismembered when they come into contact with the fully exposed spinning 
turbine blades,'' and that one ``particular Golden eagle was found in 
four separate pieces,'' with the ``left wing and one leg [] so badly 
twisted together, they could not be readily separated.'' According to 
the Report, other ``[t]ypes of injuries observed are: severed beaks 
resulting in massive hemorrhage; decapitations, either mid-skull or 
complete; complete mid-body separation; wing amputations or 
fractures.'' (A copy of this Report and several similar internal FWS 
investigatory records are being submitted along with this testimony for 
the convenience of the Subcommittee). The Report also documented many 
``electrocution mortalities,'' while stressing that ``[m]ost migratory 
bird electrocutions are preventable using current technology.''
    Yet although such killing and injuring of eagles, hawks, and other 
birds has now been going on for decades and this constitutes a patent 
violation of the MBTA and the BGEPA, federal officials have never even 
initiated civil or criminal enforcement actions against any of the 
Altamont (or any other) facilities. Unfortunately, the same pattern of 
official abdication of enforcement responsibilities is now being 
repeated on the East Coast. For example, soon after a 44-turbine 
project called the Mountaineer Wind Energy Center became operational in 
December 2002 in the West Virginia Appalachian highlands, dozens of 
migrating songbirds--including blackpoll, magnolia, and Canada warblers 
and other species on the FWS's list of migratory birds of ``special 
concern''--were killed in a single night after colliding with turbines 
during foggy conditions characteristic of the Appalachian ridges. Once 
again, although this was the largest single bird kill ever recorded at 
a wind power facility in the U.S., Interior Department officials again 
took no enforcement action against the company for this flagrant 
violation of the MBTA,
    It has become painfully apparent that, without further direction 
from Congress, the situation facing wildlife will become even more 
ominous as Interior Department officials adhere to their ``hands off'' 
policy. Indeed, in an effort to prompt a change in approach, in June 
2003, over thirty national and regional conservation groups--including 
Defenders of Wildlife and the National Audubon Society--along with 
concerned scientists and citizens wrote to the Secretary of the 
Interior and the Director of the FWS urging them to exercise their 
authority under the MBTA to take ``immediate steps to ensure that 
appropriate biological information is gathered and considered before an 
expansive series of large-scale wind power projects is constructed 
throughout the Appalachian Mountain ridges, with potentially 
devastating and irreversible impacts on the hundreds of migratory bird 
species that funnel through those ridges each year.'' The conservation 
groups and scientists urged the Interior Department to establish 
appropriate siting and construction criteria and, equally important, in 
order to ``ensure that these criteria are followed by the wind power 
industry,'' to ``us[e] the threat of MBTA enforcement as leverage if 
necessary, so that illegal ``takes'' of migratory birds are avoided or 
minimized.''
    In a September 2003 response, the Department made clear that it had 
no intention of enforcing the MBTA or even using the threat of such 
enforcement to ameliorate the impact of wind turbines. Thus, while 
acknowledging that ``impacts on birds, bats, other wildlife, and [] 
disruption and fragmentation of habitats are of concern,'' the 
Department stated that it would merely ``encourage'' compliance with 
``voluntary'' siting and monitoring ``guidelines,'' and that it hoped 
that a ``spirit of partnership and cooperation'' would prompt power 
companies to comply with the guidelines. In other words, the Department 
made clear that it would continue to rely on the same laissez-faire 
approach that has already proven to be woefully inadequate in 
preventing bird kills at the Altamont pass and other wind turbines.
    Finally, as bad as the present regulatory situation is for birds, 
it is, if possible, even worse for bats. Except for the few bat species 
that are presently listed as endangered or threatened, bats have no 
substantive protection under any federal conservation law, although the 
projected wind facilities may well decimate bat populations. The FWS 
has estimated that the Nedpower Mount Storm Wind Project in West 
Virginia could alone ``kill approximately 9,500 bats a year,'' which is 
a ``significant level of fatalities which local populations would have 
a difficult time sustaining.'' (9/15/07 letter from FWS West Virginia 
Field Office to Newpower).
    Likewise, scientists with Bat Conservation International (``BCI'') 
found that 66 turbines at two wind power sites in West Virginia and 
Pennsylvania killed as many as 2,900 bats in just a six-week study 
period--an alarming rate that the organization said was simply not 
``ecologically sustainable.'' Yet FPL Energy--which owns the plants--
reneged on a commitment to allow further monitoring of bat impacts 
because it might put pressure on the company to shut down turbines. In 
the absence of further legal safeguards, it is inevitable that bat 
populations will be decimated by the ever-expanding wind power 
operations, and that additional bat species may eventually have to be 
listed as endangered or threatened as a direct result of wind power.
    In sum, there are, at present, gaping holes in the protection of 
wildlife--and birds and bats in particular--from poorly sited, 
constructed, and monitored wind turbines. While migratory birds are 
ostensibly protected by the MBTA and BGEPA, that protection has proven 
illusory because federal officials simply refuse to enforce those 
statutes against even the most egregious violations in connection with 
wind turbines. Except for a handful of listed bat species, bats lack 
even theoretical protection under federal law. And, even in the rare 
instances where federal regulatory tools are being brought to bear on 
individual projects--such as projects on federal lands or where the FWS 
knows that an endangered or threatened species is present--no agency is 
even evaluating the cumulative effects of present and planned wind 
turbines on at-risk wildlife species, let alone incorporating such 
analysis into a precautionary regulatory regime. Accordingly, in the 
absence of further federal safeguards, it is inevitable that the nation 
will, perversely, wind up creating a new ecological crisis in the guise 
of addressing another one. Now is clearly the time for Congress to act, 
before it is too late.

 PROPOSED LEGISLATIVE RESPONSE TO THE LOOMING WILDLIFE CRISIS POSED BY 
        EXPANDING WIND TURBINES
    Fortunately, relatively modest measures can afford wildlife 
invaluable protections, while still allowing wind power projects to 
expand into ecologically appropriate locations.
    First, Congress should require the FWS, based on recommendations of 
an independent committee of scientific experts (i.e., experts who have 
not served as consultants for, and have no other financial connection 
with wind power companies) to (1) evaluate the likely cumulative 
effects of present and planned wind turbines on birds, bats, and other 
wildlife populations, and (2) devise appropriate measures for 
minimizing and mitigating such cumulative effects to the greatest 
extent practicable. A temporary moratorium on the construction of new 
turbines should be imposed while this analysis--which could probably be 
completed within six to twelve months--is conducted.
    Second, Congress should amend the MBTA by authorizing citizens to 
bring appropriate enforcement actions for violations of the statute. 
There is no sensible policy reason why citizens should be able to 
enforce the ESA and other major environmental laws, but may not do so 
with regard to MBTA violations; rather, the lack of a citizen suit 
provision is merely an historical artifact, i.e., the MBTA was enacted 
long before it became routine for Congress to look to citizen 
enforcement as a critical supplement to enforcement efforts by 
perennially underfunded and frequently indifferent federal officials. A 
citizen suit provision in the MBTA could be modeled after the ESA's 
citizen suit provision (section 11(g) in that Act), which has generally 
worked well in helping to curb egregious violations of that law.
    Third, Congress should require the FWS to adopt, following public 
notice and comment procedures, mandatory siting, construction, 
monitoring, and adaptive management standards that are designed to 
avoid, minimize, and mitigate wildlife (and particularly bird and bat) 
impacts, and with which all wind turbines must comply. These standards 
should be informed by and consistent with the cumulative impacts 
analysis conducted by the FWS and independent scientists. Many such 
standards could parallel the voluntary ``guidelines'' on which the FWS 
is now relying and which are sound in principle but largely ignored by 
the wind power industry--which, once again, has no incentive to comply 
with such guidelines and concrete financial reasons not to do so.
    Turbines should not be permitted to operate unless the FWS 
expressly certifies that they are in compliance with the standards; to 
ensure that they remain in compliance, such certifications should be 
renewed periodically. In addition, as with other major energy 
facilities--such as nuclear and hydroelectric plants--the public should 
have an opportunity to comment on the adequacy of a company's plans for 
complying with standards designed to avoid, minimize, and mitigate 
environmental impacts.
    For example, as with the present guidelines, such standards should 
provide that turbines must be sited so as to minimize wildlife impacts, 
including by avoiding ecologically sensitive areas such as known bird 
migration routes, wetlands where birds and other wildlife are known to 
congregate, and all hibernation, breeding, and maternity/nursery 
colonies of bats. In addition, turbines should be sited and configured 
so as to avoid landscape and other features that are known to attract 
wildlife (e.g., because eagles, falcons, and other raptors are known to 
use cliffs and ledges for perching, turbines should be set back from 
such features).
    To ensure that appropriate information is brought to bear on such 
siting and configuration decisions, the standards should require 
comprehensive pre-construction site surveys that are of sufficient 
scope and duration to reasonably evaluate the extent to which a 
particular site is used by migratory birds, bats, and other wildlife. 
Congress should make clear that the FWS has authority to oversee all 
such surveys and, of critical importance, to obtain access to all sites 
under consideration so that the Service can evaluate for itself the 
value of a particular site for wildlife.
    Consistent with the present voluntary guidelines, mandatory 
standards should also require wind companies to monitor impacts of 
turbines on wildlife, to ensure that predictions of acceptable impact 
are not exceeded. All monitoring plans should be approved by the FWS, 
and all data produced as a result of the monitoring efforts should be 
made available to the Service and, in turn, the public. Where 
monitoring reveals that turbines are exceeding anticipated wildlife 
impacts, the standards should require that adaptive management measures 
be brought to bear to reduce such impacts to the ``baseline'' 
conditions predicted by the turbine operator. Where companies fail to 
comply with the standards for siting, constructing, monitoring, and 
reducing unanticipated impacts, both the FWS and interested citizens 
should be authorized to bring appropriate enforcement actions to ensure 
such compliance.
    With regard to turbines already in existence, while it may be 
impractical to relocate them, they should not be relieved of all 
obligations to monitor for wildlife impacts, and to make appropriate 
technological and other adjustments to reduce such impacts. 
Accordingly, Congress should direct that the FWS should adopt specific 
standards--again, with public notice and comment--regarding the 
appropriate means to minimize and mitigate impacts at turbines already 
in operation. Because impacts on bats have already proven to be an 
enormous concern at such facilities, Congress should make clear that 
the standards should specifically focus on appropriate measures for 
reducing such impacts, including by requiring plant operators to 
retrofit turbines with newly available technologies for reducing 
impacts and/or to compensate for them by, e.g., offsetting any 
unavoidable impacts by purchasing and preserving in perpetuity 
mitigation habitat. Of course, all such turbines should remain fully 
subject to preexisting conservation laws, such as the ESA and MBTA.
    If common-sense measures such as these are adopted to conserve 
precious wildlife resources, wind power will be worthy of the ``green 
energy'' and ``environmentally friendly'' labels that its promoters and 
supporters use to describe it. Without them, those labels will, over 
the coming years and decades, be increasingly viewed as tragically 
ironic, as birds, bats, and other wildlife are needlessly killed and 
maimed in ever-increasing numbers.
                                 ______
                                 

                              May 25, 2007

By Electronic Mail

Madeleine Z. Bordallo
Chairwoman, Subcommittee on
Fisheries, Wildlife and Oceans
Committee on Natural Resources
U.S. House of Representatives
Washington, D.C. 20515

Re:  Responses to Follow-Up Questions for May 1, 2007 Oversight Hearing 
on Wind Turbines and Wildlife Impacts

Dear Chairwoman Bordallo:

    Thank you for the opportunity to testify at the May 1, 2007 hearing 
on the impacts of wind turbines on birds and bats. The following are my 
answers to the follow-up questions from Rep. Brown. Where a question 
has several different parts to it, I will answer each part in 
individual paragraphs.
    1. It is correct that a principal reason why the federal government 
has played an extremely limited role on this issue is because most wind 
projects have been sited on non-federal lands. However, certain federal 
environmental statutes come into play even where projects are not built 
on federal lands. For example, the Migratory Bird Treaty Act broadly 
makes it unlawful for any person to kill a migratory bird without 
authorization. The Endangered Species Act makes it unlawful for any 
person to kill or otherwise ``take'' members of a listed species 
without a permit. Accordingly, another central reason for why the 
federal government has played a limited role with regard to the adverse 
impacts of wind power projects on wildlife is that there has been 
woefully inadequate enforcement of the federal environmental laws that 
do apply to such projects on non-federal lands.
    I am not proposing that the federal government replace state and 
local entities in all siting decisions. Rather, I am suggesting that 
where uniquely national resources are at stake--such as migratory birds 
and bat populations that overlap state boundaries--and where states are 
not, and cannot be expected to, address impacts that transcend 
individual state concerns (such as cumulative effects on wildlife 
populations that will be impacted by projects in multiple states) 
federal regulations are necessary and appropriate to address and 
mitigate environmental impacts. This is not a radical concept. As 
mentioned in my testimony, the federal government establishes minimum 
siting and other standards for nuclear power plants, hydroelectric 
facilities, and other energy projects. There is no reason why the 
federal government should not play a similar role with regard to wind 
power projects.
    2. I am not suggesting that states do not care about their 
wildlife. Indeed, some states have done extremely well in managing 
wildlife populations, while others do not have as strong a record. 
However, as suggested in my answer to the first question, no state 
agency can be expected to address impacts on interstate wildlife 
resources such as migratory bird populations. For example, the State of 
Maryland--where a number of wind projects are being built and/or 
proposed--has neither the legal jurisdiction nor the expertise to 
address the cumulative impacts of multiple projects in various states 
on migratory bird populations. Only a federal agency--such as the U.S. 
Fish and Wildlife--has the capacity and expertise to address such 
impacts.
    While I cannot provide examples of where states have failed to 
enforce their own wildlife laws, the problem with wind power projects 
is that states simply do not have wildlife laws that are adequate to 
address the problems now being experienced. For example, I am not 
familiar with any state law that makes it unlawful for a wind power 
project to kill a large number of bats. Indeed, if such laws existed, 
we would not be seeing bat kills of the magnitude now being experienced 
and projected. Accordingly, while state laws are sufficient to address 
some kinds of wildlife problems, the national development of wind power 
clearly calls for a national solution to ameliorate adverse wildlife 
impacts that are plainly not being adequately addressed by state 
agencies.
    3. My public-interest law firm regularly brings lawsuits against 
federal agencies for failing to enforce federal environmental statutes. 
I have been lead counsel in approximately 10 such cases in the last 
five years and have been co-counsel in many other such cases. We do not 
receive any federal taxpayer money as up-front ``compensation'' for 
bringing such cases. Some of the statutes under which we bring suit--
such as the Endangered Species Act and the Clean Water Act--provide 
that ``prevailing parties'' may recover attorneys' fees awards when the 
Court deems it appropriate. Congress included such provisions for the 
precise purpose of encouraging private enforcement of federal 
environmental laws. When fees are awarded in cases brought by my firm 
they are used primarily to reimburse the non-profit conservation 
organizations we represent.
    An example of a lawsuit I have brought recently is a case pursued 
on behalf of Save the Manatee Club and 18 other conservation and animal 
protection organizations to address the large numbers of manatees that 
are killed and maimed by power boats. The lawsuit was brought against 
the U.S. Army Corps of Engineers (which gives federal permits for 
projects that increase power boat access to manatee habitat) and the 
U.S. Fish and Wildlife Service. The lawsuit resulted in a settlement 
that has significantly increased the number of manatee sanctuaries and 
refuges in Florida. I have brought many other lawsuits to gain and 
increase protection for imperiled species under the Endangered Species 
Act; some species that have benefitted from such lawsuits include the 
Canada lynx, the Wood stork, the Right whale, and the Grizzly bear. I 
have represented both national conservation and animal protection 
groups (such as Defenders of Wildlife, the Sierra Club, and the Humane 
Society of the U.S.) and grassroots groups (such as the Florida 
Biodiversity Project and Friends of Blackwater, a West Virginia 
organization). A docket of the past and pending cases of Meyer 
Glitzenstein & Crystal can be found at www.meyerglitz.com.
    The only lawsuit my firm has filed related to wind power projects 
is a Freedom of Information Act case to obtain documents from the 
Interior Department shedding light on why the Service has failed to 
enforce laws such as the Migratory Bird Treaty Act and the Bald and 
Golden Eagle Protection Act against wind power projects that are 
violating these laws. As mentioned in my testimony, that lawsuit 
resulted in the release of documents demonstrating that there have been 
rampant legal violations in connection with wind power projects, and 
yet no enforcement actions have ever been brought by the federal 
government to curtail such violations.
    4. Reasonable efforts should be made to minimize the numbers of 
birds killed by all causes. More pertinent to the topic at hand, 
however, the fact that bird populations are already being decimated by 
many different sources is a compelling reason to take modest 
precautionary steps to ensure that wind power does not become one more 
lethal blow to populations that are already suffering greatly. 
Otherwise, as a society, we will have learned nothing from past 
experience. For example, only after many communications towers were 
built did it become apparent that such facilities were killing millions 
of birds. Why would we, as a society, want to repeat such a ``leap 
before we look'' approach with wind power projects instead of now 
adopting modest measures for siting, constructing, and monitoring 
projects so that we can both benefit from properly sited and built 
projects and avoid unnecessary impacts on birds, bats, and other 
wildlife? We teach our children that an ``ounce of prevention is worth 
a pound of cure.'' It is also a good adage on which to base federal 
wildlife policy.
    It is also important to recognize that simply comparing total 
numbers of bird impacts from different sources is a misleading 
comparison because different species of birds are killed in 
disproportionately high numbers by different kinds of sources. For 
example, wind power projects built along Appalachian ridges will have a 
disproportionately high impact on bald eagles, golden eagles, falcons, 
and hawks who fly over these ridges while migrating. Thus, for example, 
while cars and trucks may kill more birds in total, wind power projects 
may have a particularly devastating cumulative impact on eagles and 
other raptors--as has happened at the Altamont Pass Wind Facility in 
California. For this reason as well, it makes little sense to conclude 
that wind power projects should go largely unregulated by the federal 
government because many birds die from other causes.
    I and others have brought lawsuits to address adverse impacts on 
birds from other sources. For example, I am presently involved in 
litigation concerning the impacts of limestone mining on Everglades 
wetlands used by Wood storks and many other bird species. Recent cases 
brought by other environmental attorneys have focused on the adverse 
impacts of pesticides on endangered birds and other wildlife. But at 
the same time, it is far better public policy to put reasonable 
protections in place before the fact so that such lawsuits are 
unnecessary. Congress has that opportunity with wind power projects.
    5. To begin with, the problem posed by the Altamont Pass Wind 
Facility highlights the importance of making informed siting and 
construction decisions before the turbines are built. Once they are 
built--as at Altamont--options are obviously more constrained. That 
experience should not be repeated on the East Coast. Because I am not a 
scientist or engineer, I am reluctant to provide specific 
recommendations on the best way to deal with the ongoing killing and 
injuring of eagles, hawks, and other birds at Altamont. It is my 
understanding that there are available technological ``fixes'' that can 
be used to significantly reduce some of the sources of mortality (such 
as electrocutions), while others may prove more intractable. If there 
are ongoing impacts that cannot be adequately ameliorated through 
retrofitting of equipment or other technological fixes, turbines should 
be shut down if there is to be compliance with the Migratory Bird 
Treaty Act and the Bald and Golden Eagle Protection Act. These laws--
and the treaties on which they are based--flatly forbid the killing or 
injuring of eagles, hawks, and other migratory birds, and basic respect 
for the rule of law, to say nothing of the interest in wildlife 
protection, demands that wind project operators should not be permitted 
to simply violate the law with impunity.
    6. While I do not believe that the aesthetic impact of a wind power 
projects is the most important environmental consideration, it is 
certainly a legitimate concern when it comes to siting federally-
approved projects. Many of our nation's ``special places''--such as 
national parks, monuments, forests, and refuges--have been set aside 
precisely so that they may afford opportunities to the public for quite 
contemplation and enjoyment of the natural splendor and unspoiled 
beauty that make our country such a unique place. Accordingly, if wind 
power projects--or any other project for that matter--can be sited in 
such a way as to avoid or minimize marring an otherwise unblemished 
view of a mountain, shoreline, or other special natural place, then 
such considerations should indeed help guide siting decisions.
    As for the creation of appropriate federal ``standards'' concerning 
aesthetic impacts, they should be based on the reasonable principle 
that, where feasible, unspoiled areas should be avoided and areas that 
already have, as part of their ``baseline'' condition, other industrial 
activities should be the preferred locations for wind projects. This is 
already a standard concept in evaluations under the National 
Environmental Policy Act, the Endangered Species Act, and other federal 
environmental laws, and it should also be applied in the wind power 
context.

                               Sincerely,

                          Eric R. Glitzenstein

                                 ______
                                 
    Ms. Bordallo. Thank you very much, Mr. Glitzenstein, and 
now Mr. Daulton. I appreciate your patience in waiting to go 
last, and the floor is yours to testify for five minutes.

STATEMENT OF MICHAEL DAULTON, DIRECTOR OF CONSERVATION POLICY, 
                    NATIONAL AUDUBON SOCIETY

    Mr. Daulton. Thank you, Madam Chairwoman, and I am happy to 
demonstrate my patience as I begin my testimony.
    My name is Mike Daulton, and I am Director of Conservation 
Policy for National Audubon Society. Thank you for the 
opportunity to testify today regarding the impacts of wind 
power on migratory birds, bats and other wildlife.
    National Audubon Society has 24 state offices, and more 
than 500 local chapters throughout the United States, serve 
more than 1 million members and supporters. Our mission is to 
conserve and restore natural ecosystems, focusing on birds, 
other wildlife and their habitats for the benefit of humanity 
and the earth's biological diversity.
    Audubon has an extensive history of involvement in wind-
wildlife interaction issues, including efforts to develop state 
guidelines for wind development in California, Washington, 
Pennsylvania, and New York, and working cooperatively to 
improve the siting, design, and management of wind facilities 
throughout the country.
    Audubon believes that wind power must be considered in the 
context of its importance as a solution to global warming. 
Global warming resulting from the burning of fossil fuels is a 
severe threat to birds, wildlife, and habitat, and we have 
moral obligation to take action to control the pollution that 
causes global warming before it is too late.
    Birds and wildlife will face losses of habitat due to sea 
level rise, more frequent and severe wild fires, loss of prey 
species, flooding and droughts, and other significant 
ecological changes. Birds, like most species, are highly 
adapted to particular vegetation and habitat types that may no 
longer exist or rapidly decline.
    As the threats of global warming loom every larger, Audubon 
recognizes that alternative energy sources like wind power are 
essential. Many new wind power projects will need to be 
constructed across the country as part of any serious 
nationwide effort to address global warming. Audubon supports 
the expansion of properly sited wind power as a solution to 
global warming, and supports Federal legislation such as the 
Production Tax Credit and renewable electricity standard that 
would further encourage this expansion and help to reduce 
pollution from fossil fuels.
    However, at the same time it is critical that this 
expansion be managed responsibly because it is clear that wind 
field facilities are capable of killing a large number of birds 
and other wildlife. Wind energy facilities can have detrimental 
impacts on birds, bats, and other wildlife in four fundamental 
ways: collision mortality, loss or degradation of habitat, 
disturbance and displacement from habitat, and disruption of 
ecological links.
    If the wind industry expands significantly from 1 percent 
of the nation's electricity supply to 10 percent, or 20 percent 
or more, the cumulative effects on bird populations could be 
significant. Some early wind projects like Altamont in 
California are notorious for killing many raptures, including 
Golden Eagles. In cases where the birds affected are already in 
trouble such as sage grouse in windy parts of the plain states, 
the turbines could push them closer to extinction.
    Overall, however, we believe the impacts can be greatly 
reduced through proper siting that avoids the most important 
habitat areas for birds and wildlife. The first rule of 
avoiding impacts will always be the old adage, ``Location, 
location, location.''
    Efforts to otherwise minimize impacts are hampered by 
significant gaps in the research. These research gaps make it 
difficult for scientists to draw conclusions about wind power's 
overall impact on birds and wildlife. There is a shortage of 
information on migratory bird routes, bird behavior, as well as 
the ways in which topography, weather, time of day, and other 
factors affect bird and bat mortality, and there are few 
comprehensive studies testing the effectiveness of various 
mitigation strategies.
    Audubon strongly encourages an expansion of research 
capacity to best determine how to maximize the benefits of wind 
power while reducing the potential for harm to birds, wildlife, 
and the environment. We recommend that the committee consider 
establishing a greater Federal role in research in wind-
wildlife interaction, and we also recommend that the committee 
consider policy options for providing incentives to the wind 
industry to follow the voluntary guidance that emerges from the 
Federal FACA process.
    In conclusion, Audubon believes a significant expansion of 
properly sited wind power is necessary to address the severe 
threat of global warming, but much work needs to be done to 
ensure the expansion of the wind industry occurs without 
serious consequences for bird, wildlife, and their habitat. We 
look forward to working with the committee to find ways to 
support development of wind energy while providing adequate 
safeguards for birds, bats, and other wildlife.
    Madam Chairwoman and Members of the Subcommittee, this 
concludes my prepared statement, and I will be happy to answer 
any questions you may have.
    [The prepared statement of Mr. Daulton follows:]

      Statement of Mike Daulton, Director of Conservation Policy, 
                        National Audubon Society

    Madam Chairman and Members of the Subcommittee:
    I am Mike Daulton, Director of Conservation Policy for the National 
Audubon Society. Thank you for the opportunity to testify regarding the 
impacts of wind turbines on birds and bats. I commend you for holding 
this important hearing today.
    National Audubon Society's 24 state offices and 500 local chapters 
throughout the United States serve more than one million members and 
supporters. Audubon's mission is to conserve and restore natural 
ecosystems, focusing on birds, other wildlife, and their habitats for 
the benefit of humanity and the earth's biological diversity. Our 
national network of community-based nature centers and chapters, 
scientific and educational programs, and advocacy on behalf of areas 
sustaining important bird populations, engage millions of people of all 
ages and backgrounds in positive conservation experiences.
    Audubon has a long history of involvement in wind-wildlife 
interaction issues, including efforts to develop state guidelines for 
wind development in California, Washington, Pennsylvania, and New York; 
providing substantive input regarding the Bureau of Land Management's 
policy for wind development on public lands; and working cooperatively 
to improve the siting, design, and management of wind facilities across 
the country.
    As the threats of global warming loom ever larger, alternative 
energy sources like wind power are essential. Many new wind power 
projects will need to be constructed across the country as part of any 
serious nationwide effort to address global warming. This shift toward 
renewable energy is well underway. According to the American Wind 
Energy Association, over the past year the U.S. wind energy industry 
installed more than 2,400 megawatts of new power generation, making 
wind one of the largest sources of new power generation in the country 
at a time of growing electricity demand. The state of Texas recently 
announced its intention to become the country's wind power capital. 
Audubon supports the expansion of properly-sited wind power as a 
solution to global warming, and supports federal legislation, such as 
the Production Tax Credit and a Renewable Electricity Standard, which 
would further encourage this expansion and help to reduce pollution 
from fossil fuels.
    At the same time, it is critical that this expansion be managed 
responsibly, because it is clear that wind facilities are capable of 
killing a large number of birds and other wildlife. Some early wind 
projects like Altamont in California are notorious for killing many 
raptors, including Golden Eagles. The lessons learned from Altamont 
still loom over the industry: if wind turbines are located in the wrong 
places, they can be hazardous and they can fragment critical habitat. 
In cases where the birds affected are already in trouble, such as sage 
grouse in windy parts of the Plains States, the turbines could push 
them closer to extinction.
    Much work remains before scientists have a clear understanding of 
the true impacts to birds and wildlife from wind power. Scientists are 
particularly concerned about the potential cumulative effects of wind 
power on species populations if industry expands dramatically. 
Significant development is being considered in areas that contain large 
numbers of species or are believed to be major migratory flyways, such 
as the Prairie Pothole region and the Texas Gulf Coast.
    On balance, Audubon strongly supports wind power as a clean 
alternative energy source that reduces the threat of global warming. 
Each individual wind project, however, has a unique set of 
circumstances and should be evaluated on its own merits.
 Global Warming is a Severe Threat to Birds, Wildlife, and Habitat
    Global warming resulting from the burning of fossil fuels is a 
severe threat to birds, wildlife, and habitat, and we have a moral 
obligation to take action now to control the pollution that causes 
global warming before it is too late. Global warming already is 
impacting birds, their prey, and their habitat, and these impacts will 
become more severe if action is not taken to greatly reduce pollution 
from the burning of fossil fuels.
    Global warming threatens birds and wildlife in many ways. Birds and 
wildlife will face losses of habitat due to sea level rise, more 
frequent and severe wildfires, loss of prey species, flooding and 
droughts, increased invasive species, changes in vegetation and 
precipitation, and loss of snow and ice, and other significant 
ecological changes. Birds, like most species, are highly adapted to 
particular vegetation and habitat types that may no longer exist, shift 
toward the poles or higher elevations, or rapidly decline. New pests, 
invasive species, and diseases will create additional risks.
    The timing of birds' migration, breeding, nesting, and hatching are 
highly adapted to the availability of suitable habitat, adequate prey 
and other food sources, and other factors. Since global warming is 
unlikely to cause different species to adapt or move at the same rate, 
bird behavior may no longer be in sync with their food sources and 
habitat needs.
    Scientists are already observing global warming's impacts on birds. 
The results are alarming. More than 80 percent of plant and animal 
species studied have shown changes in timing of migration or 
reproduction, shifts in habitat or migratory routes, or other changes 
associated with global warming. Some of the observed impacts on birds 
include:
      Migratory birds, seabirds, and songbirds in North America 
are shifting toward the poles, as well as migrating and laying eggs 
earlier in spring
      Several North American warbler species have shifted 
northward more than 65 miles. The Golden-winged Warbler's range has 
moved nearly 100 miles north just in the past two decades.
      Adelie Penguins are taking longer routes to find food in 
the ocean as icebergs break off Antarctica's Ross Ice Shelf.
    Birds that already live at high altitudes or latitudes may not be 
able to move with the changing climate. Endangered species with limited 
habitat and/or gene pools may also not be able to move or adapt quickly 
enough to avoid extinction. Species that depend on habitat types such 
as particular coastlines or polar ice also will be vulnerable as those 
habitats diminish or disappear.
    In the United States, both prairie and coastal species will be 
severely impacted by global warming. More frequent and severe droughts 
in the Central U.S. are likely to cause prairie potholes to dry up, 
jeopardizing millions of waterfowl during breeding season. Sea level 
rise and erosion will jeopardize the threatened Western Snowy Plover 
and other shorebirds. Projected loss of neotropical migrant songbirds 
also is very high: 53 percent in the Great Lakes region, 45 percent 
loss in the Mid-Atlantic, 44 percent loss in the northern Great Plains 
and 32 percent fewer in the Pacific Northwest.
 Significant Expansion of Renewable Energy Sources Such As Wind Power 
        Is Needed to Reduce Pollution from Fossil Fuels and Address 
        Global Warming
    To protect birds, wildlife, and habitat from global warming, it is 
necessary to reduce pollution resulting from the burning of fossil 
fuels, particularly when generating electricity. Fossil fuel power 
plants account for more than one-third of the carbon dioxide emitted by 
the United States, and carbon dioxide emissions from power plants were 
27 percent higher in 2004 than in 1990.
    To reduce pollution from fossil fuels, we must diversify our energy 
sources with clean alternatives such as wind and solar power. There are 
numerous opportunities to reduce carbon dioxide pollution from a 
variety of sources and set us on a course that can minimize the 
economic and ecological damages of global warming.
    However, it is important to be mindful that real solutions will 
require major shifts in America's energy generation and use. As the 
analysis published by Robert Socolow in the journal Science in August 
of 2004 demonstrates, in order to stabilize carbon dioxide levels in 
the atmosphere globally, emissions must be cut by more than half from 
their projected levels in 2050 under a ``business as usual'' scenario. 
This amounts to slowing growth by 7 gigatons of carbon emissions per 
year. Reductions of this magnitude will require rapid expansion of 
available renewable power sources such as wind power. To achieve 14 
percent of the reduction goal, for example, would require development 
of 2 million 1 megawatt wind generators worldwide. On a shorter time 
horizon, to generate 5 percent of the nation's electricity by 2020 
using average size (1.5 MW) wind turbines, would require more than 
62,000 additional turbines to be constructed in the United States, 
adding to the more than 16,000 turbines already constructed.
    To achieve the necessary reductions in greenhouse gases, America 
must begin moving rapidly on a thoughtful, environmentally-responsible 
path toward a significant expansion of properly-sited renewable energy 
sources such as solar and wind power. The infrastructure that will be 
necessary to expand renewable energy generation and transmission at the 
level that is necessary to reduce global warming will result in a 
transformation of the landscape in many parts of the country. This 
transformation has the potential to come into conflict with efforts to 
conserve birds, wildlife, and their habitat.
    Our challenge is thus to help design and locate wind power projects 
that minimize the negative impacts on birds and wildlife. All wind 
power projects should be fully evaluated on a case-by-case basis, prior 
to development, to ensure that site selection, design, and long-term 
monitoring and adaptive management plans avoid significant harm to bird 
and wildlife populations.
 Planned Expansion of Largely Unregulated Wind Power Raises 
        Conservation Concerns
    Audubon is concerned about the potential cumulative effects of wind 
power on species populations if the wind industry expands dramatically. 
Significant development is being considered in areas that contain large 
numbers of species or are believed to be major migratory flyways, such 
as the Prairie Pothole region and the Texas Gulf Coast.
    Wind energy facilities can have detrimental impacts on birds, bats, 
and other wildlife in four fundamental ways:
    1.  Collision mortality
    2.  Loss or degradation of habitat
    3.  Disturbance and subsequent displacement from habitat
    4.  Disruption of ecological links
Collision mortality:
    Collision mortality occurs when animals collide with the moving 
turbine blades, with the turbine tower, or with associated 
infrastructure such as overhead power lines. Impacts vary depending 
upon region, topography, weather, time of day, and other factors. 
Several recent publications have reported that collision mortality is 
relatively low, e.g., a 2005 Government Accountability Office report 
concluded, ``it does not appear that wind power is responsible for a 
significant number of bird deaths.'' That same report, however, noted 
that mortality can be alarmingly high in some locations. It also 
pointed out that there are vast gaps in the mortality data, and that 
the record may be biased because most of the information collected thus 
far has come from the West where collision mortality appears to be 
lower than in other regions, such as the Appalachians. Currently, 
collision mortality is being assessed at only a small minority of the 
wind energy facilities in the country. In some regions, it has not been 
assessed at all.
Loss or degradation of habitat:
    Development of wind power facilities results in destruction of 
habitat from support roads, storage and maintenance yards, turbine 
towers, and associated infrastructure. It may involve blasting and 
excavation to bury power lines. Such activity may cause contiguous 
blocks of habitat to become fragmented, leading to increased abundance 
of predators, parasites, and invasive species. This may not be a 
problem where native habitats have already been disturbed, such as 
agricultural areas, but it can have substantial impacts if the wind 
energy facilities are sited in areas of pristine or rare native 
habitats.
Disturbance and subsequent displacement from habitat:
    The impacts of wind energy facilities extend well beyond the 
footprint of the roads, power lines, and other structures. Disturbance 
from human activity and turbines may displace animals from the habitat. 
While this is seldom lethal, it may cause birds and other animals to 
abandon preferred habitat and seek lower-quality habitat elsewhere, 
where disturbance is less. This may result in reduced survival or 
reduced breeding productivity, which may cause lower or declining 
populations.
    It appears that some birds, such as prairie grouse and other 
grassland birds, avoid places with tall structures. These species are 
adapted to open habitats where raptor predation is a major source of 
mortality. Tall structures in such habitats give raptors an advantage 
by serving as perching sites, allowing them to survey the landscape in 
search of prey. Some ornithologists believe prey species, such as 
Greater Sage-grouse and prairie chickens, are behaviorally programmed 
to perceive tall structures as a threat, and therefore avoid using 
habitats where tall structures exist. In cases where the birds affected 
are already in decline, the turbines could push them closer to 
extinction.
Disruption of ecological links:
    Large wind energy facilities may interfere with the ability of 
birds and other wildlife to travel between feeding, wintering, and 
nesting sites. Alternatively, they may cause birds to make longer or 
higher flights between such areas. This results in higher metabolic 
costs, and therefore may reduce survival and reproduction.
 Federal Guidelines and Expanded Research Capacity Are Needed
    Impacts to birds, bats, and other wildlife from wind projects can 
be largely avoided if the most important habitat areas are not 
developed. The first rule of avoiding impacts will always be the old 
adage ``location, location, location.'' Audubon believes that places 
where birds gather in large numbers or where many species are present, 
such as the Prairie Pothole region, the Texas Gulf Coast, or raptor 
migration bottlenecks in the Northeast, should be largely avoided.
    If impacts cannot be avoided, they should be minimized. However, 
minimizing impacts effectively requires that the impacts be accurately 
predicted, verified, and mitigated. Sound project-level decisions 
regarding minimization of impacts require a comprehensive body of 
scientific research to predict wildlife impacts, a process for 
gathering adequate information at the site-specific project level 
before and after construction, and a process for modifying projects 
effectively after problems arise.
    Currently, there are no mandatory federal regulatory standards, and 
few state standards, regarding the design or siting of wind power 
facilities to reduce risks to birds and other wildlife. The U.S. Fish 
and Wildlife Service (FWS) and several states have published 
guidelines, but these are merely advisory in nature, and in most cases 
compliance is voluntary. Some federal land management agencies have 
adopted guidelines for wind power developments on public lands, but the 
guidelines fail to provide adequate measures for mitigating the risks 
to birds.
    In most cases, county or local governments are responsible for the 
regulation and permitting of wind turbine siting. Siting decisions are 
often made based on wind resources, ease of access to land, and 
accessibility of transmission lines. At present, little or no effort is 
made to coordinate the siting of wind facilities at a regional scale to 
avoid conflicts with migratory birds and bats. At the local scale, 
minimal pre-construction inventories of bird use are conducted to 
assess potential risks to birds. Furthermore, because there are no 
widely recognized standards for unacceptable levels of mortality and 
other risks such as displacement, it is rare for a wind power proponent 
to reject a site solely on the basis of risks to birds.
    According to a study by the Government Accountability Office, some 
state and local regulatory agencies have little experience or expertise 
in addressing environmental and wildlife impacts from wind power. For 
example, officials from one state agency interviewed by the GAO said 
they did not have the expertise to evaluate wildlife impacts and review 
studies prior to construction, and they rely on the public comment 
period while permits are pending for concerns to be identified by 
others.
    At the federal level, the U.S. Fish and Wildlife Service is 
responsible for implementing the Migratory Bird Treaty Act and other 
laws protecting migratory birds. Generally, the FWS carries out its 
responsibility to protect migratory birds by issuing guidelines to 
advise energy developers about the best management practices needed to 
prevent or minimize violations of federal bird protection laws, and has 
not prosecuted a single case citing a violation of wildlife laws 
against a wind developer.
    In July 2003, the FWS published its Interim Guidelines to Avoid and 
Minimize Wildlife Impacts from Wind Turbines, and accepted public 
comment on the proposed guidelines until July 2005. The proposed 
interim guidelines received criticism from both the wind industry and 
wildlife conservation advocates. In late 2005, an attempt was made to 
establish a collaborative forum in which the FWS, the wind power 
industry, wildlife conservationists, and renewable energy advocates 
could seek common ground and try to develop guidelines that would meet 
the needs of all interests. These efforts continued until February 
2006, when they were suspended due to the threat of a lawsuit charging 
the FWS with violating the Federal Advisory Committee Act (FACA). Over 
the next year, the FWS worked to form a multi-stakeholder process that 
will comply with FACA. In March 2007, the FWS announced the formation 
of a Wind Turbine Guidelines Advisory Committee (that will be chartered 
under FACA) to develop new guidelines.
    Audubon encourages this FACA process as a necessary means of 
providing guidance to state and local regulatory authorities, to 
prevent local conflicts that may unnecessarily arise in the absence of 
such guidance, and to better ensure protection of birds, wildlife, and 
habitat.
Research:
    Significant gaps in the literature make it difficult for scientists 
to draw conclusions about wind power's impact on birds and wildlife. 
There is a shortage of information on migratory bird routes, bird and 
bat behavior, as well as the ways in which topography, weather, time of 
day, and other factors affect bird and bat mortality. Studies conducted 
at one location can rarely be extrapolated to another location due to 
differences in site-specific conditions such as topography, types and 
densities of species present, types of wind turbines present, and use 
of different monitoring and surveying protocols. Mortality studies and 
monitoring conducted by industry is considered proprietary information 
and often is not openly shared with the public or with government 
agencies. Finally, there are few comprehensive studies testing the 
effectiveness of various mitigation strategies.
    Some significant research questions that deserve priority attention 
are as follows:
      Is it possible to predict what fatalities (number and 
species) will occur before construction begins, and what data should be 
collected to accurately predict fatalities?
      Can we identify areas of high bird abundance and high 
risk, and find ways to steer wind development away from those areas?
      What is the level of collision mortality in regions other 
than the West? Can we develop a single, scientifically sound, 
consistent protocol to assess sites and compare mortality levels across 
all regions of the country? What can we learn about risk factors (e.g. 
region, habitat type, topography, season, time of day, weather, etc.) 
from mortality assessment data?
      What levels of fatalities are being documented regarding 
protected species, including threatened and endangered species and 
Birds of Conservation Concern? What are the cumulative population 
impacts of wind facilities on birds and bats?
      What are the specific habitat and behavioral impacts and 
effects of wind energy facilities, and how do they influence 
populations?
      What are effective methods to reduce mortality? If they 
exist, what is the best protocol to deploy them?
    Audubon strongly encourages an expansion of research capacity to 
best determine how to maximize the benefits of wind power while 
reducing the potential for harm to birds, wildlife and the environment. 
We recommend that the Committee consider establishing a greater federal 
role in research on wind-wildlife interaction, with particular 
attention to the research gaps identified. The Committee should 
consider establishing a formal structure, such as a task force, to 
direct this expanded federal research role, to collect and review its 
results, and to propose modifications to the federal guidelines. The 
task force should include representatives from government agencies such 
as the U.S. Geological Survey, the U.S. Fish and Wildlife Service, and 
the National Renewable Energy Laboratory, as well as scientific experts 
from academia and nongovernmental organizations such as Audubon.
 Congress Should Consider Providing Incentives to the Wind Industry to 
        Address Bird and Bat Impacts
    Establishing federal voluntary guidelines is an important first 
step toward improving the siting, design, and management of wind 
facilities, and will have particular value in educating state and local 
regulatory authorities regarding the appropriate considerations to be 
taken into account in permitting decisions. However, some regulators 
and wind developers may choose to ignore the voluntary guidance. For 
that reason, Audubon recommends that the Committee consider policy 
options for providing incentives to the wind industry to follow the 
voluntary guidance that emerges from the federal FACA process.
    Policy options may include developing a certification process that 
would provide assurances to financial institutions providing financing 
for wind projects that they carry low risk while also providing 
assurances to electric utilities that they are purchasing wildlife-
friendly renewable energy projects; and establishing a mitigation fund 
or grant program that would lower the costs of project modifications 
and other forms of mitigation. A federal investment in these incentives 
would help to guide the necessary expansion of renewable energy while 
helping to provide adequate safeguards for birds, bats, and other 
wildlife.
 Conclusion
    A significant expansion of properly-sited wind power is necessary 
to address the severe threat of global warming, but much work needs to 
be done to ensure the expansion of the wind industry occurs without 
serious consequences for birds, wildlife, and their habitat. Research 
suggests that rare raptors and sensitive grassland birds may be put at 
risk by wind development, and many scientists are concerned that 
expansion of major wind developments into important migratory bird 
habitat and flyways in areas like the Prairie Pothole region and the 
Texas Gulf Coast could have serious consequences for bird and wildlife 
populations. Audubon supports efforts to establish federal guidelines 
for the wind industry to better ensure protection for birds and 
wildlife, and recommends that the Committee consider ways to expand 
research capacity to provide better scientific information that would 
inform project siting, design, and management decisions. The Committee 
also should consider providing incentives to the wind industry to help 
guide the necessary expansion of renewable energy while providing 
adequate safeguards for birds, bats, and other wildlife.
    Madam Chairman and Members of the Subcommittee, this concludes my 
prepared statement. I would be happy to answer any questions you may 
have.
                                 ______
                                 

           Response to questions submitted for the record by 
               Michael Daulton, National Audubon Society

Questions from Mr. Brown:
(1)  Mr. Daulton, in your testimony, you noted that: ``A significant 
        expansion of properly-sited wind power is necessary to address 
        the severe threat of global warming''. I agree that it is 
        important that all wind power facilities be properly sited, how 
        do we achieve that goal?
    At this time, there should be nationwide minimum guidelines on the 
siting of wind power projects to minimize their impacts on birds and 
other wildlife. They should clarify which areas should be excluded from 
wind power development due to conservation concerns and which areas are 
more suited for siting, the appropriate pre-construction studies, and 
other factors. In addition, the federal government should increase 
funding for research and quickly engage in a mapping effort that would 
provide a coarse filter for determining the areas of high and low risk 
for conflicts between wind development and bird and wildlife 
conservation. Additional incentives (both financial and regulatory) may 
be needed to provide further guidance to industry to attain the highest 
standards for bird and wildlife protection.
(2)  Was Altamont Pass Wind Resource Area simply sited in the wrong 
        location?
    The Altamont Pass Wind Resource Area was very poorly sited in an 
area that is both a ground squirrel colony providing an abundant food 
source for raptors and also an important wintering area for Golden 
Eagles. Audubon is working closely with the wind industry and the local 
permitting agencies to develop a long-term conservation plan that 
facilitates re-powering (replacement of old turbines with newer, more 
efficient ones) while striving to reduce bird impacts by more than 50 
percent.
(3)  What are your hopes and expectations in regard to the new Wind 
        Turbine Advisory Committee?
    I hope that the Wind Turbine Advisory Committee can develop the 
guidance necessary to provide adequate safeguards for birds and 
wildlife while allowing the wind industry to further grow as necessary 
to be an important part of the solution to global warming.
(4)  In your judgment, why hasn't a single violation of wildlife laws 
        against a wind developer been prosecuted?
    In their study published in September 2005, the Government 
Accountability Office reviewed this question and found that more than 
50 instances of Golden Eagles killed by 30 different companies at 
Altamont Pass were referred by the U.S. Fish and Wildlife Service to 
the Interior Solicitor's office for civil prosecution or the Department 
of Justice for criminal prosecution. Justice officials told GAO that, 
in general, when deciding to prosecute a case criminally, they consider 
a number of factors, including the history of civil or administrative 
enforcement, the evidence of criminal intent, and what steps have been 
taken to avoid future violations. The Justice Department does not 
discuss the reasons behind specific case declinations as a matter of 
policy, nor does it typically confirm or deny the existence of 
investigations. Interior's Office of the Solicitor General told GAO 
that they have not pursued prosecution of cases at Altamont Pass 
because Justice agreed to review turbine mortalities for possible 
criminal prosecution.
(5)  What are the federal protections for non-listed bat species?
    We would refer the committee to Bat Conservation International, 
which also was represented on the hearing panel, for questions 
regarding the statutory protection for bats.
(6)  Congressman Mollohan mentioned the ``impacts on the natural 
        beauty'' of wind power facilities. How much should the Federal 
        government regulate view impacts of Federally-permitted 
        activities and projects? If you agree that the Federal 
        government should, how would you create standards?
    View standards may be appropriate for existing protected areas to 
ensure protection of natural scenic attributes. Areas that may be 
appropriate for such protection include National and State Parks, 
Wilderness Areas, National Monuments, and National Seashores.
(7)  How many lawsuits have you or your organization filed against the 
        Federal government in the last five years? Please elaborate on 
        what issues the suits concerned and which agencies were the 
        target of the lawsuit. Have you filed any related to wind power 
        projects?
    See enclosed.
(8)  Do you or any members of your organization serve on any Federal 
        advisory panels or committees as a representative of your 
        organization?
    No.
(9)  Do you, your organization, or any of the officers or full time 
        employees of your organization receive any Federal grants, 
        contracts or other funds? If so, please elaborate.
    I provided the committee with documentation as requested via 
facsimile prior to the hearing. Please let me know if any additional 
documentation is needed.
Response to Question 7 from Congressman Brown regarding litigation 
        against the federal government filed by the National Audubon 
        Society during the last five years
    Audubon has identified 20 cases filed in the last five years in 
which the National Audubon Society has participated as a plaintiff 
against the federal government. Below is a list of those cases. The 
agency is identified as well as the principal statute or issue 
involved. National Audubon has not filed any suits related to wind 
power projects.
    National Wildlife Federation v. Souza, No. 2-07-cv-14114-JEM (S.D. 
Fla. filed Apr. 6, 2007). The federal defendants are the Department of 
the Interior, including the Fish and Wildlife Service, and the Corps of 
Engineers. The suit concerns a development in the Corkscrew Swamp and 
presents issues principally under the ESA, the Clean Water Act, and 
NEPA.
    Friends of Congaree Swamp v. South Carolina Department of 
Transportation, No. 3:06-CV-02538 (D.S.C., filed Sept. 13, 2006). The 
federal defendant is the Department of Transportation. The suit 
concerns South Carolina Highway 601 improvements and presents issues 
principally under the Clean Water Act and NEPA.
    Conservancy of Southwest Florida v. U.S. Army Corps of Engineers, 
No. 06-80532-CIV-HURLEY (S.D. Fla, filed May 18, 2006). The federal 
defendants are the Department of the Interior, including the Fish and 
Wildlife Service, and the Corps of Engineers. The suit concerns a 
development in the Corkscrew Swamp and presents issues principally 
under the ESA, the Clean Water Act, and NEPA.
    National Audubon Society v. Kempthorne, No. 06-349-RCL (D.D.C. 
filed Feb. 28, 2006). The federal defendant was the Department of the 
Interior, including the Fish and Wildlife Service. The suit concerned 
the Cerulean Warbler and presented issues under the ESA.
    National Wildlife Federation, et al. v. Souza, No. 06-CV-80532 
(S.D. Fla. filed June 1, 2005). The federal defendants are the 
Department of the Interior, including the Fish and Wildlife Service, 
and the Corps of Engineers. The suit concerned a development in the 
Corkscrew Swamp and presents issues principally under the ESA, the 
Clean Water Act, and NEPA.
    National Audubon Society v. Kempthorne, No. 1:05-CV-0008 (D. 
Alaska, filed Mar. 26, 2005). The federal defendant was the Department 
of the Interior. The suit concerned oil and gas leasing in the area of 
Teshekpuk Lake/Northeast Planning Area NPR-A and presented issues 
principally under the ESA and NEPA.
    Natural Resources Defense Council, et al., v. U.S. Forest Service, 
421 F. 3d 797 (9th Cir. 2005). The federal defendant was the United 
States Forest Service. The suit concerned Roadless Areas in Tongass 
National Forest and presented issues under NEPA.
    Natural Resources Defense Council v. Rodgers, No. 2:88-CV-01658 
(E.D. Cal.). Settled in 2006. The federal defendant was the Bureau of 
Reclamation. The suit concerned Friant Dam water contracts and 
restoration of the San Joaquin River.
    Northern Alaska Environmental Center v. Norton, 361 F. Supp. 2d 
1069 (D. Alaska 2005), aff'd sub. nom., Northern Alaska Environmental 
Center v. Kempthorne, 457 F.3d 969 (9th Cir. 2006). The federal 
defendant was the Department of the Interior, including the Bureau of 
Land Management and the Fish and Wildlife Service. The suit concerned 
oil and gas leasing in the Northwest Planning Area of NPR-A and 
presented issues principally under the ESA and NEPA.
    Utah v. United States, No. 2:97-CV-927-AK (D. Utah, filed Aug. 24, 
2005. The federal defendant was the Department of the Interior, Bureau 
of Land Management. The suit concerned Utah's claim to sovereign lands 
and the public trust doctrine.
    The Wilderness Society v. U.S. Forest Service, No. 05-04038-EDL 
(N.D. Cal. filed Oct. 6, 2005). The federal defendant was the 
Department of Agriculture, including the Forest Service. The suit 
concerned the repeal of the Roadless Area Policy and presented issues 
principally under NEPA.
    National Audubon Society v. Department of the Navy, No. 2:04-CV-2-
BO(2) (Eastern NC District, filed May 4, 2005). The federal defendant 
was the Navy. The suit concerned a proposed offsite Navy land field 
near Pocosin Lakes National Wildlife Refuge and presented issues 
principally under NEPA.
    Washington County, N.C. v. U.S. Department of the Navy, Nos. 
CV.A.2:04-CV-3-B0(2), CV.A.2:04-CV-2-B0(2) (E.D.N.C., filed April 20, 
2004). The federal defendant was the Navy. The suit concerned 
compliance with NEPA.
    Rio Grande Silvery Minnow v. Keys, Nos. 02-2130, 02-2135, 02-2151, 
02-2152, 02-2160, 02-2186; 355 F. 3d 1215 (10th Cir. 2004). The federal 
defendants were the Department of the Interior, including the Fish and 
Wildlife Service and Bureau of Reclamation, and the United States Army 
Corps of Engineers. The suit concerned the endangered silvery minnow 
and presented issues principally under the ESA.
    National Audubon Society v. Evans, No. Civ.A.99-1707(RWR) (U.S.D.C, 
District of Columbia, filed July 3, 2003). The federal defendant was 
the Department of Commerce, including NOAA Fisheries. The suit 
concerned the Highly Migratory Species Fishery Management Plan under 
the Magnuson-Stevens Fishery Conservation and Management Act.
    The Wilderness Society v. Norton (E.D. Ca., decided June 12, 2003). 
The federal defendant was the Department of the Interior. The suit 
concerned management of the Lower Klamath and Tule Lake National 
Wildlife Refuges and presented issues principally under NEPA.
    The Ocean Conservancy v. Evans, No. 8:03CV124T24EAJ (M.D. Fla, 
decided Dec. 17, 2003). The federal defendant was the Department of 
Commerce, including NOAA Fisheries. The suit concerned an emergency 
rule issued under the Magnuson-Stevens Fishery Conservation and 
Management Act.
    National Audubon Society, Inc. v. Davis, No.CV-98-04610-CAL. (N.D. 
Cal., filed September 24, 2002). The federal defendant was the Fish and 
Wildlife Service. The suit concerned issues under the ESA.
    National Audubon Society v. Evans. No. 99-1707 (D.D.C. decided July 
3, 2003. The federal defendant was the Department of Commerce, 
including NOAA Fisheries. The suit concerned conservation of Atlantic 
bluefin tuna under the Highly Migratory Species Fishery Management Plan 
under the Magnuson-Stevens Fishery Conservation and Management Act.
    Vermont Public Interest Research Group v. U.S. Fish and Wildlife, 
No. 2:01-CV-332 (D. Vt., decided Sept. 13, 2002). The federal defendant 
was the United States Fish and Wildlife Service. The suit concerned 
proposed releases of lampricides into a like and presented issues under 
NEPA.
                                 ______
                                 
    Ms. Bordallo. Thank you very much, Mr. Daulton, and I will 
now recognize members for any questions they may wish to ask 
the witnesses alternating between the majority and the 
minority, and allowing five minutes for each member. Should the 
members need more time, we will have a second round of 
questions, but at this time since our distinguished Chairman of 
the Natural Resources Committee with us, I would like to give 
him the opportunity to ask questions first.
    Mr. Rahall. Thank you, Madam Chair. I really don't have any 
questions, specific questions for this panel on the subject at 
hand. I do appreciate their expert testimony.
    I would just like to remind Mr. Hall, Director of Fish and 
Wildlife Service, of a communication that I have sent him in 
regard to the proposed de-listing of the Northern Virginia fly 
squirrel, and hope that he could supply those documents to my 
office per the letter I have written him, which you should have 
in your office.
    Thank you, Madam Chair.
    Ms. Bordallo. Thank you, Mr. Chairman.
    I have a couple of questions for Mr. Hall. Mr. Hall, the 
Service published interim guidelines in 2003 regarding the 
siting, construction, and operation of wind turbines, and 
received significant public comment on them. Since closing the 
public comment period in 2005, however, the Service has 
declined to publish the final guidelines.
    Mr. Hall, what is the status of these guidelines? Does the 
Service intend to publish final guidelines in the near future, 
and why wasn't the formation of a new advisory committee 
necessary?
    Mr. Hall. Thank you, Madam Chairman.
    After the 2005 two-year public comment period, there were 
extended discussions with members of the public and others, and 
there was a Federal Advisory Committee Act allegation, and so 
the efforts there were basically put on hold for the formation 
of this formal Federal Advisory Committee Act that would work 
with us over the next two years.
    I would also like to point out that after two years of 
public comment, there was very little resolved on how to site 
because the information isn't there. A lot of the biology isn't 
there. There is so much we don't know that there was still a 
lot of controversy even associated with the 2005 draft interim 
guidance.
    So we are hopeful, we are very hopeful that this Federal 
Advisory Committee Act that we will be forming will get us to 
some substantive approaches to try and work through these 
pretty sticky issues.
    Ms. Bordallo. To follow up, Mr. Hall, on the same 
questioning. As noted earlier, as I said, the Service held open 
an extensive public comment period. It was for a couple of 
years. So it is my understanding that a significant majority of 
responders were in favor of the guidelines. Is that accurate?
    Mr. Hall. I think it is accurate to say that the vast 
majority of people supported getting some sort of protocol, 
some sort of guideline out there, or a series of guidelines on 
how to do this. The devil was in the details on what they 
should be. There was a lot of disappointment that the Fish and 
Wildlife Service just didn't have the authority to go on to 
property and do analyses ahead of time without the permission 
of the landowner. There was a lot of concern about the 
biological aspects of what we know and don't know about the 
flight paths, and therefore several studies are underway now, 
and the Appalachian one is one of those, to try and figure out 
how the birds and bats move at night in these high-structured 
mountain areas.
    So I think that there was a lot of support to have 
guidelines, a lot of support to have some rules, if you will, 
that people could follow, but not a lot of consensus on exactly 
what those rules should say.
    Ms. Bordallo. You said in answer to my first question, I 
think, that you put it on hold.
    Mr. Hall. Well, we stopped the discussions.
    Ms. Bordallo. I was wondering if there was financial 
constraints or whatever the case might be. Did you note that?
    Mr. Hall. I think we made it public that the challenge that 
we were working outside of compliance with the Federal Advisory 
Committee Act, and we let the public know that we wanted to go 
back and try and form this Federal advisory committee to try 
and help us work through it because after all these years it 
seems fruitless to try and get that far and then to be 
challenged because of the process.
    Ms. Bordallo. Well, OK. I have one other question now. Even 
though the Service has not published the final guidelines, can 
you tell us to what degree the industry adopted the voluntary 
guidelines in their siting and development decisions? And in 
light of this experience, should compliance with the future 
guidelines be mandatory or voluntary?
    I think one of our witnesses stated what he thought of 
that. I think it was Dr. Fry.
    Mr. Hall. I think compliance is sketchy at best. I think 
everything that you have heard about the industry's ability to 
accept or not accept them is accurate. We have very little 
Federal nexus unless it is on Federal lands working through an 
EIS or some other form to force them to follow them.
    I do believe, my personal opinion, I believe if we go 
through all this effort to try and come up with guidelines that 
they should be more than advisory. However, I don't know 
exactly what kind of legal authority that we would have to make 
them binding.
    Ms. Bordallo. Let me ask Dr. Fry. Would you like to comment 
on that?
    Mr. Fry. If you give Federal money to a project and you 
just decide that you are not going to have any oversight, it is 
stupid. You really do need to have Federal oversight if you are 
going to give Federal money, and you do also have to enforce 
Federal laws. When you kill a thousand Golden Eagles, and you 
have no explanation for why you haven't done any enforcement, 
you are giving the industry a complete green light to just go 
ahead and do business as usual.
    Mr. Glitzenstein. May I respond to that?
    Mr. Hall. May I respond to that?
    Ms. Bordallo. Mr. Glitzenstein, yes.
    Mr. Glitzenstein. I think, just to follow up on what has 
just become clear, if there is a need for clear authority for 
the guidelines, Mr. Hall just testified that he would like to 
see those guidelines as more than simply advisory, as I 
understand his testimony, and he said the problem is what is 
the authority for making them more than advisory. I think that 
is clearly, as I understand it, a statement to the Subcommittee 
as to why we need some explicit legislation that would provide 
for those guidelines to have some enforceable effect.
    So it appears that there is some kind of a consensus, at 
least on this panel, that there is a need for that, and without 
that I think there would be a concern about whether or not you 
can currently adopt enforceable guidelines of that kind.
    Ms. Bordallo. Thank you. Are there any others that would 
like to comment?
    Mr. Hall. I would like to respond. Several times it was 
pointed up that we have not taken enforcement action, and I 
would like to clarify for the record that every time we have 
received under the Bald and Golden Eagle Protection Act or 
under the Migratory Bird Treaty Act an allegation our special 
agents have gone to investigation. Mr. Glitzenstein read from 
one of those reports.
    We do not bring prosecutorial actions for criminal offense. 
We have to refer those to the United States attorney, and when 
those cases are brought and we provide the information to the 
United States attorney, it is the United States attorney that 
decides whether or not they will or will not bring cases of 
criminal malfeasance against anyone, but the Fish and Wildlife 
Service doesn't bring that.
    We do the investigative work. We hand it over to the United 
States attorney, and the United States attorney makes that 
decision on behalf of the U.S. Government.
    Ms. Bordallo. Are there any other--yes, Mr. Daulton.
    Mr. Daulton. I would just like to point out that the 
Audubon Society would welcome discussion of any proposals, 
including possibly making those guidelines mandatory, to 
improve bird protection with regard to the siting and design of 
wind turbines. However, I do think that the committee should 
consider a broad range of options in terms of providing 
incentives to the industry to enter into some--to take more 
action both in terms of predicting the impacts and mitigating 
the impacts.
    Ms. Bordallo. Thank you. Mr. Hall, would it be possible for 
you to--you have declined to publish the final guidelines, but 
all of this public input, could you provide--it must be reams 
of paper over there in your department of the public input, so 
could we get a copy of those----
    Mr. Hall. Absolutely.
    Ms. Bordallo.--comments from the public?
    Mr. Hall. Absolutely.
    Ms. Bordallo. Thank you.
    I now would like to call on the Ranking Member, Mr. Sali, 
for questions.
    Mr. Sali. Thank you, Madam Chair.
    First of all, I have a statement from Congressman Shuster, 
another statement or a letter to Ranking Member Brown from the 
Association of Fish and Wildlife Agencies, and a statement by 
the American Wind Energy Association, and I would like to ask 
unanimous consent that they be included in the record for 
today.
    Ms. Bordallo. So ordered.
    [The statement submitted for the record by Mr. Shuster 
follows:]

 Statement of The Honorable Bill Shuster, a Representative in Congress 
                     from the State of Pennsylvania

    Mr. Chairman, I want to thank you for holding this important 
hearing. Wind development and its positive and negative impacts on the 
environment are very important priorities for us to consider as wind 
power grows across the nation. In my district, there is a lot of 
potential wind development, so I consider hearings like this essential 
to gathering facts and information. I would encourage the committee to 
take a very open, objective look at this important topic.
    To that end, Mr. Chairman, I want to draw the committee's attention 
to a bold, collaborative approach the Commonwealth of Pennsylvania has 
aggressively pursued over the last year on this topic. Just last week, 
the Pennsylvania Game Commission held a ceremony in which they 
announced cooperative agreement spearheaded by the Pennsylvania Wind 
and Wildlife Collaborative. The Collaborative is partnership between 
government officials, scientists, bird/bat experts, wind developers and 
environmental groups. This Pennsylvania-led collaborative effort can 
set a bold example for partnership that will provide better information 
and science, minimize and potentially mitigate adverse wildlife 
impacts, and create stronger partnerships to develop this important 
renewable resource.
    By no means is wind power the sole answer to our environmental and 
energy challenges today, but it must certainly be a key part of 
advancing clean, renewable energy, while at the same time, providing 
economic opportunities for some of our most rural communities.
                                 ______
                                 
    [A letter submitted for the record by the Association of 
Fish and Wildlife Agencies follows:]

                ASSOCIATION OF FISH & WILDLIFE AGENCIES

                           Hall of the States

                444 North Capitol Street, NW, Suite 725

                         Washington, D.C. 20001

                         Phone: (202) 624-7890

                          Fax: (202) 624-7891

                      E-maih [email protected]

                          www.fishwildlife.org

Honorable Charles Brown, Ranking Republican
Subcommittee on Fisheries, Wildlife, and Oceans
1124 Longworth House Office Building
Washington DC 20515

Dear Congressman Brown:

    As you know, the Association of Fish and Wildlife Agencies 
(Association) represents the perspectives of the collective State Fish 
and Wildlife Agencies on important fish and wildlife issues. All 50 
State Fish and Wildlife Agencies are members. The Association's members 
have a vital and vested interest in wind energy development and its 
potential impacts on wildlife and therefore request the submission of 
this letter to the hearing record of May 1, 2007. In the future, we 
would like to be considered to provide testimony related to wind energy 
and wildlife.
    The Association appreciates that the development of wind and other 
renewable energy resources have potential environmental advantages over 
the development and use of nonrenewable sources. We also believe that 
thoughtful placement of wind energy development is necessary to 
maintain healthy fish and wildlife populations across North America. In 
order to better engage the State Fish Wildlife Agencies, industry, 
federal agencies, and non governmental agencies in a landscape-level 
dialogue, the Association created a Wind Energy Subcommittee under our 
Energy and Wildlife Policy Committee.
    We have also worked with numerous partners including the U.S. Fish 
and Wildlife Service (USFWS) to develop a collaborative effort to 
address wind energy and wildlife interactions at the national scale. 
Although partners attempted to develop a collaborative in late 2005, 
due to legal constraints, the USFWS was required to develop the USFWS 
Wind Turbine Guidelines Advisory Committee on which we are now engaged. 
The USFWS has been fully supportive of collaborative efforts in this 
policy area. It was threatened legal challenges that compelled the 
creation of the Federal Advisory Committee (FAC). The USFWS acted 
expeditiously in creating the FAC and securing its approval by the 
Administration.
    We believe that we have an unprecedented opportunity to work with 
industry and land use and regulatory agencies at a landscape scale to 
lessen potential wildlife impacts including direct impacts to birds and 
bats; habitat fragmentation from wind energy farms and transmission 
lines; and changes in migratory patterns of big game. We look forward 
to working with the Subcommittee on this issue.
    I appreciate your time and consideration of this issue. Please 
don't hesitate to contact Gary Taylor, Legislative Director, 
Association of Fish and Wildlife Agencies, at (202) 624-7890 for 
additional information.

                             Respectfully,

                             Gary J. Taylor

                          Legislative Director

cc: Delegate Madeleine Z. Bordallo
                                 ______
                                 
    [A statement submitted for the record by the American Wind 
Energy Association follows:]

           Statement of the American Wind Energy Association

    Wind energy is one of the most environmentally-friendly energy 
technologies in the world. One hundred per cent clean, wind energy 
provides electricity without harmful global warming pollutants like 
carbon dioxide. In addition, wind energy does not require any mining, 
drilling, transportation, or waste disposal.
    ``Wind energy development's overall impact on birds is extremely 
low compared with many other human-related activities,'' said AWEA's 
Executive Director Randall Swisher. ``Many more birds are killed flying 
into buildings, for example, than wind turbines.''
    Wind energy will never be a significant source of bird mortality 
compared to other sources such as buildings, vehicles, communication 
towers, and even cats. For every 10,000 birds killed by human 
activities, less than one is caused by a wind turbine.
    National Audubon Society President John Flicker himself is an 
outspoken proponent of wind energy. In a column he wrote for the 
November-December 2006 issue of the Society's magazine, he stated that 
Audubon ``strongly supports [properly sited] wind power as a clean 
alternative energy source'' and pointed to the threat global warming 
poses to birds and other wildlife.
    ``The wind industry is a conscientious and highly active steward of 
the environment and supports and funds innovative wildlife research 
through collaborative agreements with conservation groups and 
foundations,'' said Swisher.
    The wind energy industry has worked for years to reach out and 
cooperate with conservation groups and government agencies on research 
and joint initiatives:
        National Wind Coordinating Collaborative--10 years
        Bats & Wind Energy Cooperative--3 years
        Grassland/Shrub-Steppe Species Collaborative--2 years
    Swisher added: ``Wind power is an essential element in responding 
to both climate change and the exponentially increasing demand for 
electricity in the U.S. It's 100 per cent clean, free and 
inexhaustible, and a readily available and cost-effective source of 
energy.''
    AWEA estimates that in 2007, wind electricity will displace 
approximately 19 million tons of carbon dioxide--the leading greenhouse 
gas and primary global warming pollutant--which otherwise would be 
emitted by traditional energy sources such as coal, natural gas, oil 
andother sources. With the growing public demand for clean energy, 
there is broad recognition--among President Bush, Congress and business 
leaders--that wind energy is essential in balancing our nation's energy 
needs.
    AWEA is the national trade association of America's wind industry, 
with a membership that includes global leaders in wind power 
development, wind turbine manufacturing, and energy, as well as a broad 
range of component and service suppliers. More information on wind 
energy is available at the AWE A Web site: www.awea.org.
                                 ______
                                 
    Mr. Sali. Thank you, Madam Chairman.
    Mr. Arnett, I am trying to think back through the testimony 
and I didn't take notes, but did you say that the impact of 
bats could accumulate and be one to two million within a very 
short time with the projects that are on the table, is that 
correct?
    Mr. Arnett. Dr. Fry gave specific numbers. We have a paper 
that is being published in the ``Frontier Ecology and the 
Environment'' by some colleagues that have made some 
projections for the Mid-Atlantic Region based on a number of 
assumptions on installed capacity. Those numbers currently were 
estimated at--given the National Renewable Energy Lab's 
projection for installed capacity in that region to be 
somewhere between 33,000 and 64,000 bats that would be killed 
given those assumptions.
    My point was, was that as we think about other projects, 
other regions and differing fatality rates across those 
regions, the numbers certainly could escalate. And if we think 
about the 20 percent factor that is being touted now, and that 
would probably--National Renewable Energy Lab as speculated 
that that would be somewhere abound 325,000 megawatts installed 
capacity. If you do the math, the numbers escalate very 
rapidly.
    Mr. Sali. OK. Now, I appreciate that clarification. You 
said during your testimony that bats are attracted to the wind 
turbines. Am I correct in that?
    Mr. Arnett. We have evidence from the Mountaineer studies 
that I was involved with in 2004 to suggest that the bats most 
certainly are attracted to these turbines. And if you would 
like, I have thermal imaging videos I would be happy to show 
you after the hearing.
    Mr. Sali. OK. Well, my question is this. If they are 
attracted to the turbines, then how can you site them in a 
place where they won't be attracted to them?
    Mr. Arnett. That creates a very interesting conundrum for 
us because in fact the studies that are conducted pre-
construction may lead us down the path of committing what is 
called a Type 2 error in statistics where we actually would 
collect the data pre-construction and assume no potential 
impact, but in fact the bats are attracted they may be killed 
at higher than expected rates and leading to the fatal 
conclusion that there was an impact when we previously said 
there was none, and it is a real problem for us.
    Mr. Sali. OK. I am trying to recall my biology and you are 
the expert and I am not, but basically I have understood that 
bats essentially hunt by some kind of sonar.
    Mr. Arnett. Echo location, that is correct.
    Mr. Sali. OK. And I have watched bats. I have them in my 
backyard, and thankfully they hunt lots of insects there, but 
as they dart and turn very sharply to catch those insects, I am 
wondering how is it that they can locate those insects, which 
are very small, and navigate in a way to catch them but they 
can't locate those blades of that turbine and something that is 
coming at a constant rate of speed, they can't navigate away 
from those.
    Mr. Arnett. Well, the one thing we clearly do not 
understand is how the animals actually receive the echoes 
returning from a plastic-based or whether there are other 
substance turbine blades are made of moving at up to speeds of 
estimated between 140 and 180 miles per hour on full 
operational speed. We simply don't have any information on how 
they receive those signals from something moving that fast.
    Furthermore, as the bats are moving through the air space 
at time one they may not detect any action of the blades or 
detect the presence of the blade, and at time two they are 
struck or caught in the wake. We think some of the bats may in 
fact actually be killed by the bodices that are created and 
thrown to the ground via the wake of the turbines moving that 
fast.
    So your point is very well taken. How can they not perceive 
them? We think they do when they are moving slowly. We actually 
have a video tape of bats chasing slow moving blade tips, but 
there are a number of uncertainties as to how they perceive 
these turbines, none the least of which is we actually believe 
they may be attracted to them as potential roost sites or 
places to congregate with potential mates in the fall.
    Mr. Sali. Because other bats are attracted to the blades?
    Mr. Arnett. There is a hypothesis that has been generated 
recently about the behavior of the bats that are killed most 
frequently at these turbines. They happen to be migratory tree-
roosting and foliage-roosting bats, and these are animals that 
are solitary in the landscape during spring and summer. They go 
their separate ways, males and females segregate, but they do 
tend to congregate in the fall for breeding purposes, and there 
is a hypothesis suggesting that they may aggregate at tall 
structures in the landscape. If that hypothesis is true, then 
there may be some sort of flocking, mating type behaviors that 
attract these.
    Regardless, we are left with a few options other than 
understanding how to better site, curtail operations, or scare 
the bats away so to speak, and we are in fact embarking on some 
work on deterring mechanisms, and in fact to try and jam their 
echo location system, not so much to scare them away but to 
make the air space around the turbines uncomfortable and so 
they can't get return echoes and such. Those investigations 
have proved promising in the lab and in initial field 
experiments but we have yet to develop a fully operational 
system, and tests are underway this summer to continue 
embarking on that endeavor.
    Mr. Sali. Thank you Madam Chair.
    Ms. Bordallo. I thank the Ranking Member, and now I 
recognize the gentleman from Michigan, Mr. Kildee.
    Mr. Kildee. Thank you, Madam Chair.
    I think we can all learn from the past. The Fish and 
Wildlife Service was established in 1903, over 100 years ago, 
and I had mentioned to Congressman Mollohan about the salmon, 
and I think we can learn from the past.
    Can you recall what was the role--I know this is going back 
in history, but the role of the Fish and Wildlife Service when 
they were building the dams and diverting the water, I know 
they did some fish flatters and things like that--what was the 
role at that time? Were they anticipating the damage that would 
be done?
    Mr. Hall. I think the role at that time--it depends on the 
date of the dam. If it was after the thirties, then the Fish 
and Wildlife Coordination Act might have been in play, and 
there would have been reports written and consultations done, 
and I worked in the northwest for about six and a half years, 
and heard lots of discussions about the salmon and the dams, 
and how they got started, and I have heard people discuss the 
fact that it was recognized that there could be impacts to the 
salmon fishery out there, to the salmon runs.
    But at the time that things were going on rural development 
for electricity, lots of homes didn't have it, and they were 
weighing those kinds of needs of the public, and I have heard 
at least two people who have really researched this say that 
they believed it was a conscious decision.
    I think in learning from those types of experiences though 
we have the opportunity to do a lot better with wind power, and 
have it be an alternative source of energy but have one that is 
done correctly.
    Mr. Kildee. I am happy to hear that, that you have learned 
from the past because there is something analogous there 
between the two, and I think all of us support increasing our 
electrical energy power. I have no problems with wind power, 
but I want to make sure that we can mitigate the negative 
impacts.
    Let me ask you this question. I come from the Great Lakes. 
My district borders on the Great Lakes. A renewable energy 
study by the Environment Michigan estimates that up to 150 
percent of Michigan's electrical energy needs could be met by 
fully developing Michigan's offshore wind energy potential; 
that is, five to 12 miles off the coast.
    What do we know about offshore wind energy and its impact 
on wildlife and habitat, especially in the Great Lakes, Mr. 
Hall?
    Mr. Hall. Well, unfortunately, we don't know a lot. We 
don't know a lot about on land and the impacts that are 
occurring, but you can imagine in an ocean or a Great Lakes' 
environment where any damaged birds would not be readily seen 
probably 30 minutes after they have been hit. So I think there 
is a lot of unknowns associated with wind power over 
significant bodies of water.
    Mr. Kildee. Considering that you, and I appreciate your 
candor as you admit that we know very little about the present 
and cumulative impacts of wind energy on wildlife, do you agree 
that we should be operating more cautiously to evaluate wind 
power projects before they are built?
    Mr. Hall. I do, sir. I think that it is very prudent to do 
the studies that are necessary pre-construction to try and find 
out the wind vectors, the use of those vectors by the birds 
both onshore and offshore, and then there are other impacts in 
the offshore arena as well that are below the surface that 
would probably need to be looked at, and the National Marine 
Fishery Service or the Fish and Wildlife Service in the Great 
Lakes with the fisheries involved as well.
    Navigation, there are lots of things involved in the open 
water environment, but I really do encourage prudence. We know 
that this is a source that could be a very good clean source of 
energy, but we really do want it to be green.
    Mr. Kildee. Appreciate it. Anyone else want to comment on 
that?
    Mr. Arnett. Congressman, I was just going to add that 
recently I have been chairing a technical review committee for 
the Wildlife Society, preparing a summary document on the 
impacts of wildlife and wind energy development which will be 
released soon. We did a summary of offshore issues, and I would 
call to your attention, and can get the information to you that 
the National Renewable Energy Lab has recently--I believe it 
was last year--published a review by Dr. Michael Morrison from 
Texas A&M University who summarized the impacts of offshore 
development, and drew inferences from studies that had been 
conducted in Europe most extensively, and related that to 
development in not only the Great Lakes but also the Atlantic 
coast and probably most importantly, the lower Gulf coast where 
there are serious concerns about development in that particular 
region.
    The Wildlife Society review will be out shortly, and I can 
get you the information on the review that is currently 
available on National Renewable Energy Lab's website.
    Mr. Kildee. Madam Chair, could we include that in the file 
or the record of this hearing?
    Ms. Bordallo. No objection.
    Mr. Kildee. Thank you very much.
    [NOTE: The National Renewable Energy Laboratory report 
entitled ``Bird Movements and Behaviors in the Gulf Coast 
Region: Relation to Potential Wind Energy Developments'' by 
M.L. Morrison, Texas A&M University, has been retained in the 
Committee's official files.]
    Mr. Kildee. Thank you. Thank you very much.
    Mr. Fry. Member Kildee.
    Ms. Bordallo. Yes.
    Mr. Fry. The Minerals Management Service has just 
commissioned a review, worldwide review of literature on 
wildlife impacts from offshore wind. That was prepared by 
Research International in South Carolina, and I received a 
draft of it yesterday. I sit on the Federal Advisory Committee 
for Minerals Management for Offshore Wind, and we could--while 
I don't think it would be appropriate for the draft, but 
certainly when that becomes final, and the next comments are on 
due on the 7th of May, so we should have it in the next month, 
we could provide that as well, which summarizes all the 
European literature as well as what we know from this country, 
but it is going to be very difficult, no question, to look at 
the impacts of offshore wind on birds because the carcasses 
disappear.
    Mr. Kildee. Madam Chair, also if I could ask consent that 
that be contained in the file or record of this----
    Ms. Bordallo. Without objection.
    [NOTE: The report submitted for the record has been 
retained in the Committee's official files.]
    Mr. Kildee. Thank you very much.
    Ms. Bordallo. Thank you, Dr. Fry.
    Mr. Hall, I have a question for you. You note in your 
statement that Federal regulation of wind power generally 
occurs only if a proposal is located on Federal property or the 
development involves some form of Federal participation such as 
providing funding.
    Why is a statutory responsibility to protect a wildlife 
resource held in trust for the American public not included in 
this list?
    Mr. Hall. Are you talking about the migratory birds?
    Ms. Bordallo. That is correct.
    Mr. Hall. And the Migratory Bird Treaty Act?
    Ms. Bordallo. Yes.
    Mr. Hall. When I am talking about us having a legitimate 
legal entry into--before the fact--development, it is not much 
different for wind power than it would be for the Corps of 
Engineers having the responsibility to develop, or the Bureau 
of Reclamation develop dams, and we are involved early on there 
to work with them. And our efforts in those early 
consultations, and that was what I was pointing to early, we 
need early involved pre-construction so that we can talk about 
what the potential impacts might be, and hopefully avoid those 
impacts, or find ways to minimize or mitigate the impacts.
    But we can't under the Migratory Bird Treaty Act or under 
the Bald and Golden Eagle Act go in before anything has 
happened and require them to come sit down and talk with us, 
and let us help develop the project. Our only real avenues are 
those projects that have a Federal nexus.
    Ms. Bordallo. Yes. The other question is other witnesses 
have testified that the current regulatory process does not 
provide for competent consideration of environmental threats. 
Now, you seem to agree with the need for environmental review 
when you note in your written statement that the, and I will 
quote you, ``potential harm to wildlife populations from direct 
mortality and from habitat disturbance and fragmentation makes 
careful evaluation of proposed facilities essential.''
    Why has the Service not instituted a more rigorous process 
to ensure that wind energy proposals are given the necessary 
scrutiny to ensure that protected wildlife are put at a minimal 
risk?
    Mr. Hall. In those areas where there is not a Federal 
nexus, we have encouraged and have been working with the wind 
industry for at least 10 years that I am aware of as a person 
in the Fish and Wildlife Service, and longer, but we simply 
cannot require them to allow us to sit down if there is no 
Federal nexus and it is before the fact.
    Ms. Bordallo. Mr. Glitzenstein, could you please respond to 
that?
    Mr. Glitzenstein. Yes, thank you. I actually would take a 
more expansive view of the Service's authority. I think that 
since the Migratory Bird Treaty Act, I think as you pointed out 
in your opening statement, clearly forbids taking migratory 
birds by killing them wind turbines and that sort of thing. I 
think the Service, if it wanted to, could accomplish much more 
comprehensive protection in a number of ways.
    One thing it could do is put out the guidelines that it has 
suggested to the public, and say that if these guidelines are 
not followed, then we will in fact bring appropriate civil and 
criminal enforcement action. I think it would get the attention 
of the wind power industry a lot more quickly if you said that 
failure to comply with those kinds of guidelines would in fact 
result in some kind of meaningful enforcement.
    I have to take a bit of issue with Mr. Hall. He is 
absolutely right that on some occasion there have been efforts 
to refer with respect to the California turbines to the U.S. 
attorney's office and there was no prosecution. The Service 
does have pretty broad civil enforcement authority, however, 
and I believe under the MBTA the agency could go in and ask 
that those facilities not be built unless they were being 
operated in a way that would avoid wildlife impacts.
    So I understand the concerns that Mr. Hall is suggesting, 
but I think that if the agency really wanted to get better 
compliance with those kinds of guidelines there are ways they 
could do that under existing law. But the fact of the matter is 
they made clear they are not going to do that and I think that 
counts in favor of further action by Congress.
    Mr. Hall. If I might just clarify----
    Ms. Bordallo. Mr. Hall, yes.
    Mr. Hall.--for the record. There is no civil penalty under 
the MBTA. There is a civil penalty under the Bald and Golden 
Eagle Protection Act, but not under the Migratory Bird Treaty 
Act, only criminal.
    Ms. Bordallo. Let me ask this, Mr. Hall. Short of a 
mandatory process, is there any way then to ensure the kind of 
evaluation that you say is necessary?
    Mr. Hall. In any law enforcement function, whether it is 
the cop walking the beat or the kinds of things we are talking 
about, the overall objective is voluntary compliance. Now if 
they don't, then you really should have some means of ensuring 
that the public's interest is looked after. When I look at the 
MBTA or our attorneys do, I am not an attorney, but when we 
look at the MBTA, and the Bald and Golden Eagle Protection Act, 
I have to defer to them to tell us what they think that our 
authorities are, and our guidance so far has been we can't 
really require anything to happen until a violation has 
occurred.
    Ms. Bordallo. So you really don't have an answer. Dr. Fry, 
did you want to comment on that?
    Mr. Fry. Well, the Fish and Wildlife Service says they 
don't have any authority until a violation has occurred. Excuse 
me. Violations occur routinely and no enforcement has been 
brought by Justice or by Fish and Wildlife Service. So, of 
course, if the industry has been given a green light to kill as 
many birds as necessary or as unavoidable or as convenient, 
then they are not going to comply with anything, and the idea 
of having voluntary guidelines with no teeth at all just--it is 
not tenable.
    This is the only energy sector that is unregulated, and 
Members of Congress are upset about it in their own districts. 
The environmental community is upset about it. We would like 
green energy. You know, nobody really wants mountain top coal, 
which really does a lot of damage, but you really have to 
enforce some laws. You have to put teeth in something or the 
industry is just going to go on as though nothing were 
happening.
    Ms. Bordallo. Well, I certainly agree with that.
    Dr. Glitzenstein, do you have a comment on that question I 
just asked Mr. Hall?
    Mr. Glitzenstein. I believe again that if there is not some 
step taken to hold the industry's feet to the fire in some 
fashion, there is not going to be any change, and I think it 
does reenforce what I mentioned in my opening statement, which 
was if the Service is not going to be prepared to bring 
enforcement action for whatever reason, because they can't do 
it or because the U.S. attorney's office won't prosecute if it 
is referred to the U.S. attorney's office, then I think counsel 
is in favor of an additional enforcement mechanism in the 
Migratory Bird Treaty Act, and the Bald and Golden Eagle 
Protection Act, allow for citizen enforcement.
    I can assure you that if there was an opportunity for some 
kind of citizen oversight--this is not a radical proposition, 
we have this in virtually every modern environmental law, the 
Clean Water Act, the Clean Air Act, the Endangered Species 
Act--I can assure you that very quickly the wind industry 
companies would pay a lot more attention to the requirements of 
those statutes.
    So if the Service feels that it can't do it or won't do it, 
then I think there are alternatives that the Subcommittee would 
be wise to look at.
    Ms. Bordallo. Thank you. Thank you very much.
    I would like now to recognize the Ranking Member, Mr. Sali.
    Mr. Sali. Thank you, Madam Chair.
    Mr. Fry, you had given the statistic that the wind turbines 
could--at the potential that I guess is on the table right 
now--account for one to two million bird deaths per year.
    Mr. Fry. Yes.
    Mr. Sali. You are the one that made that testimony?
    Mr. Fry. Yes.
    Mr. Sali. In the GAO's report from 2005, they listed five 
major sources of bird mortality, and one is office windows that 
apparently account for at least 100 million, maybe a billion 
bird deaths annually.
    In terms of scale, is your organization doing anything to 
stop what is a much greater problems in terms of siting 
buildings?
    Mr. Fry. There are non-governmental groups working on glass 
buildings. Clearly, that is a problem. I would like to say that 
we are not going to solve our energy crisis by building new 
power plants. We are going to have to do conservation, and if 
you don't want glass buildings to kill birds, turn the damn 
lights off.
    The birds are attracted to buildings at night because they 
are lit up, and you can save energy, you can save money, you 
can save birds by just turning the lights off, and 
organizations like the group called FLAPP in Ottawa, Canada, 
publish brochures and work on this issue.
    American Bird Conservancy has worked on other issues 
primarily, but we do work with FLAPP and we do have the Bird 
Conservation Alliance, which has worked on tall buildings. We 
have worked with communications towers which are another----
    Mr. Sali. Am I correct that your organization has a lawsuit 
going to stop the building and maybe remove cell towers, is 
that correct?
    Mr. Fry. Very specific ones on the Gulf coast of the U.S., 
yes, and----
    Mr. Sali. Well, how about domestic and feral cats that 
account for hundreds of millions of bird deaths every year, 
would your organization want to outlaw cats too?
    Mr. Fry. We have a program called ``Cats Indoors''. We have 
been working with the Fish and Wildlife Service and with 
coastal communities around the northeast and in California to 
eliminate feral cats. The Fish and Wildlife Service does not 
want to get into the business of irritating cat owners by 
destroying feral cats, and I understand the political----
    Mr. Sali. Well, what about domestic cats though too----
    Mr. Fry. Domestic cats, feral cats----
    Mr. Sali.--do you think all cats ought to be kept indoors?
    Mr. Fry. If you kept the cats indoors, they wouldn't be 
killing birds.
    Mr. Sali. OK.
    Mr. Fry. That is the Cats Indoors Program.
    Mr. Sali. How about cars and trucks that the GAO says 
accounts for about 60 million bird deaths every year, do you 
want to outlaw cars and trucks?
    Mr. Fry. I understand all of these things contribute to the 
death of birds, and that is why I did preface my remarks by 
saying 25 percent of all the bird species in this country are 
declining. They have been declining significantly since we 
started doing the breeding bird survey in 1966. That bird 
survey was instituted because DDT and dieldrin were killing a 
lot of birds, and the habitat loss from agriculture, whatever, 
there are lots and lots of habitat fragmentation causes--
urbanization that caused the loss of birds.
    But all of the effects are cumulative so that if you have 
an avoidable process of killing birds----
    Mr. Sali. But wouldn't you agree that these other causes of 
bird deaths are many, many--hundreds of times as many bird 
deaths per year. While I would agree with you that we certainly 
shouldn't have a Federal or state policy anywhere that results 
in unnecessary bird deaths, wouldn't you agree that their is a 
need for a reasonable approach to this? If we eliminated every 
single bird death from wind turbines, so what? The cumulative 
total from all these other causes is so much greater it would 
be an unnoticeable difference. Would you agree with that?
    Mr. Fry. No, I don't. I don't think it would be an 
unnoticeable difference.
    Mr. Sali. So you think that one to two million that we 
might save if we got rid of every wind turbine----
    Mr. Fry. No, no, no, I don't say got rid of. I say work 
with the industry so the industry reduces the number of birds 
killed. The industry has no incentive now to not to kill birds, 
none at all. There is no enforcement mechanism in their way 
that bother them. There is cause, whatever.
    Mr. Sali. But the states have the authority to site these 
in places, and I think we would have to agree that the state 
has the authority to say, no, you can't build it here if they 
have a concern, and I guess my point is maybe the states are 
taking a reasonable approach here because there are just so 
many birds that are killed by other--I mean, if you have a 
billion birds that are killed by collisions with office 
windows, if you got rid of all one to two million deaths from 
the wind turbine problem, then who would notice?
    Mr. Fry. I guess if you are concerned that we kill a 
billion birds with office windows, why is the Natural Resources 
Committee not doing anything about killing birds at windows?
    Mr. Sali. OK, now we are talking. But my point is, isn't it 
unfair to the wind energy industry to just focus on these 
turbines when there are so many other things that perhaps we 
should be focusing on to address your concerns?
    Mr. Fry. Well, I think you have to work on all of the 
environmental issues simultaneously, and we are a small 
organization. We are not going to take over your responsibility 
for maintenance of the environment, you know, on all things. We 
have to work on specific and specific places. Wind energy is 
one of them.
    You know, this started out as a very green industry. It has 
been taken over by BP, Shell, Florida Power & Light, GE, 
companies that work on the bottom line. They are no longer 
environmental communities. So you know, I would like to see 
some regulation to these large mega corporations, international 
corporations just the same way I would like to see meaningful 
legislation in coal, meaningful legislation in climate change, 
carbon question, a lot of different issues. I world on 
pesticides primarily. You know, I do wind on my days off. But 
the environmental community is fully committed to trying to do 
conservation, and I think it would be really nice to get 
Congress to participate.
    Mr. Sali. You would agree with me though that if we 
conserved all of the energy from these wind turbines though, it 
still wouldn't reduce the number of bird collisions and deaths 
from office windows and those kinds of things, correct?
    Mr. Fry. No. If you want to get rid of the collisions at 
office windows, turn the lights off. It is real simple.
    Mr. Sali. Thank you.
    Ms. Bordallo. Thank you very much.
    I have one final question. Mr. Kildee?
    Mr. Kildee. No, I have nothing.
    Ms. Bordallo. One final question, I guess, for Mr. Daulton. 
You note in your statement that the National Audubon Society 
supports the expansion of properly sited wind power facilities, 
and supports the Federal Production Tax Credit and Renewable 
Energy Standard.
    Would Audubon also support conditioning these financial 
incentives to make their availability contingent upon wind 
power facilities being certified as some kind of a wildlife 
friendly standard?
    Mr. Daulton. At this time we are not prepared to support 
that, no. I think that that question needs to be considered 
within the context of some well-earned momentum that the wind 
industry has gained and its potential to offset global warming.
    So I do think that something that is so important to the 
growth of the industry, like the Production Tax Credit, and 
they have gone through feast or famine cycles based on whether 
the Production Tax Credit is in place or about to expire, and 
gets renewed, they have gone through those kinds of feast or 
famine cycles. I think it is so critical to that industry and 
in turn to solving global warming that we do need to be careful 
about ways in which we bring regulatory frameworks into that 
tax credit.
    That said, we are absolutely committed to improving bird 
protection in this area and would welcome discussion of any 
policy options, including that one.
    Ms. Bordallo. Just to follow up. Are the various types of 
available mitigation actions cost prohibitive? In other words, 
would they raise the cost of compliance so high as to cancel 
out the financial benefit of the tax credit?
    Mr. Daulton. I don't think so. I do not think that 
mitigation options are so cost prohibitive that they would 
cancel out financial benefits for the wind industry. No.
    Ms. Bordallo. Are there any other answers to that from the 
panelists? Care to comment on that?
    Mr. Fry. I don't have information on the cost of the 
compliance.
    Ms. Bordallo. On the cost, yes.
    Mr. Fry. I also do agree that it would not be cost 
prohibitive. I think that the tax credits are something that 
the industry finds are absolutely essential for development. 
Well, I think if something is absolutely essential for 
development, it is a great thing to put an amendment on to make 
them comply environmentally.
    Ms. Bordallo. All right. Any other comments?
    Mr. Arnett. Just wanted to point out on some mitigation 
issues from a research perspective and some things that we have 
found out. I mentioned earlier that curtailment of operations 
is a possible mitigation strategy which clearly would have an 
impact on number of kilowatts produced during certain periods 
of time, and would have some level of financial impact.
    But one thing I want to point out that our science is 
starting to show, although there is very little information, 
what we have seen is a pattern of bat fatalities in particular 
as it related to lower wind periods, and periods of the late 
summer and fall, particularly in this region that are generally 
the low wind periods, if you will, for this region. So our 
science is trying to understand the predictability of those 
periods to mitigate or to minimize the costs of those types of 
mitigation strategies.
    They haven't been implemented as of to date. They need to 
be implemented immediately and test these experimentally to 
understand the reductions and fatality and the economic costs 
so we can put all of this together for the information we need 
to make these kinds of decision.
    I can say that conceptually BCI certainly supports linkages 
of standards and best practices that are developed among 
multiple stakeholders to do things like the Production Tax 
Credit, renewable portfolio standards, and other things, but 
obviously we need to move forward at the science and get better 
information to understand those issues.
    Ms. Bordallo. Thank you. Thank you very much, Mr. Arnett.
    Just for the record, my district is Guam, Territory of 
Guam, and we have quite a few bats in that part of the world. 
However, our bats are a little bit different than other bats 
from the United States and around the world. They are bats that 
feed on fruits, tropical fruits, and they are a delicacy in our 
territory. So I have been listening with a great deal of 
interest to the comments that were made today, but I just 
wanted that to be placed on the record.
    [Laughter.]
    Ms. Bordallo. So I thank all the witnesses for their 
participation in the hearing today, and members of the 
Subcommittee may have some additional questions for the 
witnesses. We will ask you to respond to these in writing, and 
the hearing record will be held open for 10 days for these 
responses.
    If there is no further business before the Subcommittee, 
the Chairwoman again thanks the members of the Subcommittee and 
our witnesses. The Subcommittee stands adjourned.
    [Whereupon, at 11:59 a.m., the Subcommittee was adjourned.]

    [A statement submitted for the record by Mr. Brown 
follows:]

  Statement of The Honorable Henry E. Brown, Jr., Ranking Republican, 
             Subcommittee on Fisheries, Wildlife and Oceans

    Madam Chairwoman, I compliment you for the creative title of this 
oversight hearing. It apparently refers to a obscure movie that was 
filmed in the late 1930's. After looking at the witness list, I full 
expected we would hear testimony from Rhett Butler and Scarlett O'Hara.
    Two weeks ago, we heard that carbon emissions are the greatest 
crisis facing mankind. While I suspect many people would find that 
statement an exaggeration, today, we have an opportunity to do 
something about that problem by examining the impacts of a clean, 
renewable and safe alternative energy source.
    Onshore wind power is growing at a rate of 22 percent each year and 
it provides electricity for 8 million Americans. More importantly, wind 
turbines produce no waste, they require no external fuel and they 
create no air, water or noise pollution. Unlike other fuels, they do 
not emit any carbon dioxide, nitrogen oxides, sulfur dioxide or mercury 
into the environment. In fact, the existing U.S. wind turbine fleet 
displaces more than 19 million tons of carbon dioxide each year. To 
generate 1 megawatt of wind for 20 years, we would need to burn 29,000 
tons of coal or 92,000 barrels of oil.
    Nearly two years ago, the General Accounting Office submitted a 
report on the impacts of wind turbines on wildlife. While the GAO found 
that a wind farm in Northern California and West Virginia were killing 
certain birds and bats, their fundamental conclusion was that: ``In the 
context of other avian mortalities, it does not appear that wind power 
is responsible for a significant number of bird deaths''.
    More recently, the U.S. Fish and Wildlife Service has solicited 
names of individuals to serve on the Secretary's Wind Turbine Advisory 
Committee. These experts will provide advice, guidance and 
recommendations to minimize impacts to wildlife relative to land-based 
wind energy facilities.
    While I know that this hearing will not focus on the Cape Wind 
Project in Massachusetts, I found it interesting that a senior staff 
member of Greenpeace noted that: ``House cats in Hyannis kill more 
birds than this wind farm ever will''.
    Madam Chairwoman, we do not have to choose between onshore wind 
power or bird protections. In fact, I agree with the sentiments of the 
President of the National Audubon Society that: ``Our challenge is to 
help design and locate wind-power projects that mitigate the negative 
impacts on birds''.
    While we may not have wind farms in South Carolina, if we are ever 
going to get serious about developing alternative energy sources, wind 
power must be part of the solution. We can produce this safe, clean and 
renewable source of energy without killing large numbers of birds and 
bats. We can accomplish that by strengthening siting standards and by 
conducting pre-construction and biological surveys. Our energy policy 
can no longer be--simply saying NO--to each and every energy source.
    I look forward to hearing from our witnesses and I am anxious to 
hear how wind power and wildlife can co-exist in the future.
    Thank you, Madam Chairwoman.
                                 ______
                                 
    [A statement submitted for the record by the Alliance to 
Protect Nantucket Sound follows:]

          Statement of Charles C. Vinick, President and CEO, 
                  Alliance to Protect Nantucket Sound

    Dear Chairwoman Bordallo and members of the Subcommittee, on behalf 
of the Alliance to Protect Nantucket Sound (Alliance) I would like to 
submit the following testimony for the record. The Alliance is a 
nonprofit environmental organization dedicated to the long-term 
preservation of Nantucket Sound. An area of water hugged to the North 
by Cape Cod and to the South and East by Martha's Vineyard and 
Nantucket Island, Nantucket Sound is a rich and diverse biological 
community. It serves as habitat for numerous species of Seabirds and is 
within the foraging and migratory route of multiple bat species. Our 
goal is to protect Nantucket Sound, and its wildlife resources, in 
perpetuity through conservation, environmental action, and opposition 
to inappropriate industrial or commercial development that would 
threaten or negatively alter the coastal ecosystem.
Background
    Wind energy projects have been documented to negatively affect both 
the avian and bat populations that reside in, and migrate through, 
areas containing wind turbines. Wind energy production may affect birds 
in three ways: 1) fatalities, as experienced among a wide variety of 
bird species, resulting from collisions with rotors, towers, power 
lines, or with other related structures, or electrocution on power 
lines; 2) habitat fragmentation; and 3) the direct impacts on bird 
habitat from the footprint of turbines, roads, power lines, and 
auxiliary buildings. This is a problem for both onshore and offshore 
turbine energy projects located in areas of concentrated bird and bat 
activity.
    There are a number of environmental concerns associated with birds 
and wind turbines. One of the key concerns is mortality or other 
effects on birds listed as protected species under international, 
federal, and state legal authorities. There also are concerns about 
local or regional population impacts, as well as cumulative impacts on 
species at national and regional scales. The increase in the number of 
wind turbines associated with individual projects, as well as the 
height and size of each turbine, has also elevated the level of avian 
impact.
    Bat mortalities caused by wind turbines have been observed 
throughout the U.S., with the highest levels occurring in the Eastern 
United States. Generally, bat mortality is highest in the late summer 
and early fall, a period which is thought to coincide with large levels 
of bat migration. Migrating bats are thought to be most threatened by 
turbines because research shows that they may navigate during migration 
without the use of echolocation, which would otherwise help them to 
avoid turbines and related structures. In addition, there is some 
indication that bats may be attracted to turbines, confusing them for 
traditional roost sites. Historic records reflect that, whether over 
land or water, bats appear to seek out relatively tall structures for 
overnight roosting. 1 Thus tall turbines can be mistaken for 
tall trees and increase the potential for turbine-bat collisions as the 
structures lure in the bats.
---------------------------------------------------------------------------
    \1\ This is evident from the historic records of red bats landing 
on ships at sea off the coast of New England, and reports of these bats 
colliding with tall anthropogenic structures on shore and roosting in 
trees at inland sites.
---------------------------------------------------------------------------
    The correlation between wind energy development and impacts on 
avian and bat populations is an issue that has been receiving an 
increasing amount of attention in recent months. In addition to this 
hearing, numerous other studies have either begun or been completed. In 
May 2007, for example the National Research Council released a report 
titled Environmental Impacts of Wind-Energy Projects. The report notes, 
``environmental influences of wind energy facilities can propagate 
across a wide range of spatial scales, from location of a single 
turbine to landscapes, regions, and the planet, and a range of temporal 
scales from short-term noise to long-term influences on habitat 
structure and influences on presence of species.'' 2 It has 
become increasingly clear that wind turbines have a direct effect as 
well as an indirect effect on avian species.
---------------------------------------------------------------------------
    \2\ National Research Council; Prepublication copy of Environmental 
Impacts of Wind-Energy Projects (2007) Pg 49. Last accessed on May 11, 
2007 at http://books.nap.edu/catalog.php?record--id=11935.
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The Need for Mandatory Guidelines
    In recognition of the relationship between bird and bat mortality 
and wind energy facilities, various guidelines have been developed for 
the permitting of such facilities.
    For example, in April 2007, the California Energy Commission and 
California Department of Fish and Game released a draft staff report, 
titled California Guidelines for Reducing Impacts to Birds and Bats 
from Wind Energy Development. The guidelines include recommendations on 
preliminary screening of proposed wind energy project sites; pre-
permitting study design and methods; assessing direct, indirect, and 
cumulative impacts to birds and bats in accordance with state and 
federal laws; developing avoidance and minimization measures; 
establishing appropriate compensatory mitigation; and post-construction 
monitoring, analysis, and reporting methods. Perhaps the most 
comprehensive guidelines, however, are the U.S. Fish and Wildlife 
Service (FWS) ``Interim Guidance on Avoiding and Minimizing Wildlife 
Impacts from Wind Turbines'' (May 2003). See Attachment 1. 3 
The voluntary guidance is intended to assist FWS staff in providing 
technical assistance to the wind energy industry to avoid or minimize 
impacts to wildlife and their habitats. It does this through: 1) aiding 
in the proper evaluation of potential wind energy development sites; 2) 
promoting the proper location and design of turbines and associated 
structures within sites selected for development; and 3) specifying 
pre- and post-construction research and monitoring to identify and/or 
assess impacts to wildlife. One of the most important provisions of the 
Interim Guidelines calls for three consecutive years of radar data for 
site-specific projects.
---------------------------------------------------------------------------
    \3\ Attachment 1 includes only the interim guidance document. The 
full document including guidance and technical appendices for 
implementation are available at http://www.fws.gov/habitatconservation/
wind.pdf. Last accessed on April 27, 2007.
---------------------------------------------------------------------------
    Unfortunately, voluntary guidelines are only as effective as each 
developer's willingness to abide by them. The Cape Wind Project 
proposed for Nantucket Sound is an example of the problems that result 
when wind developers choose to ignore the guidelines and proceed with 
insufficient data. The project is also an example of why mandatory, 
rather than voluntary, federal requirements are necessary
    Land surrounding Nantucket Sound serves as a breeding and feeding 
ground to many different species of birds, including globally 
significant populations of the federally protected piping plover, an 
endangered species. The area also provides habitat for other federal 
and state endangered species such as the roseate tern and peregrine 
falcon. The U.S. breeding population of roseate terns was declared 
endangered in 1987. In recent years, nearly 90% of the Northeast U.S. 
breeding population nested around Cape Cod. An estimated 500,000 sea 
ducks winter in Nantucket Sound, the highest concentration of wintering 
ducks in North America. The Sound is home to common eiders and black 
scoters. The area is part of the Atlantic Flyway--a major migratory 
bird route and generally abounds with birds vulnerable to wind energy 
development.
    There is currently a complete absence of site-specific bat data for 
Nantucket Sound. 4 It is, therefore, impossible to state 
with certainty the bat population of the area at this time. However, 
Nantucket Sound is well within the migratory range of eastern red bats, 
hoary bats, and silver-haired bats and the nightly foraging ranges of 
other species that occur in New England. This suggests that wind 
turbine construction in the area may also have a significant impact on 
bat populations.
---------------------------------------------------------------------------
    \4\ Despite repeated requests, the Wind project proponent has 
refused to conduct the necessary site-specific studies necessary to 
obtain actual population data.
---------------------------------------------------------------------------
    It is in this avian sanctuary that Cape Wind Associates have 
proposed to construct an industrial sized wind complex. The proposed 
Cape Wind project is likely to have a significant impact on avian 
species in the Nantucket Sound area. It is slated to have 130 wind 
turbines each 440 feet high spread over 25 square miles.
    For over five years, FWS and other parties have called upon Cape 
Wind Associates to conduct the research called for under the FWS 
Interim Guidelines, especially the three years of radar data so that 
the impact of the proposed project can be adequately assessed. See 
Attachment 2. These studies are necessary, practicable, and reasonable. 
However, they have not been conducted, due to the recalcitrance of the 
project developer. The studies that Cape Wind has conducted are 
insufficient as a basis for biological assessment. For example, Cape 
Wind's widely criticized ``visual observations'' of birds in Nantucket 
Sound produced a count of 365 ``targets'' in the ``rotor-swept area'' 
of the project over a single day of observation in September, 2002. A 
radar study of the same zone and time period, however, reported 11,156 
``targets.'' This great disparity shows the clear need for reliable 
data and studies, and the need for mandatory requirements for their 
collection. The necessary studies could have been conducted at a 
reasonable cost and would have been completed well in advance of agency 
review for permitting purposes, had Cape Wind followed the FWS Interim 
Guidelines and agency recommendations. Unfortunately, Cape Wind's 
responses are dismissive of the serious impacts that the project is 
likely to have on endangered and threatened birds and in no way provide 
federal agencies with the scientific data or relevant information that 
they need to make legal and regulatory determinations about the 
project. Prior to permitting, large-scale projects such as Cape Wind 
must be required to complete studies of bird and bat impacts that 
provide complete and useful data to aid agency decisionmakers in the 
permitting process. If the Subcommittee is serious about the protection 
of birds, the now voluntary FWS guidelines must be made mandatory.
    The Department of the Interior is currently forming a ``Wind 
Turbine Guidelines Advisory Committee'' for the purpose of developing 
permanent guidelines, and providing additional advice and support. See 
Attachment 3. The Alliance asks Congress to encourage the speedy 
development of these guidelines and to insist that the guidelines 
include minimum site-specific data collection standards. In addition, 
Congress should pass a law that prohibits any wind project, including 
currently pending projects, from being authorized, onshore or offshore, 
unless either the FWS guidelines have been satisfied or FWS makes a 
finding of no significant impact.
Adaptive Management is Not the Solution
    The Wind industry has advocated for adaptive management to be the 
primary response to the need for more avian information and the lack of 
a current mitigation strategy. The mentality is ``build now and 
mitigate impacts, to the extent possible, later.'' But historical 
evidence suggests that wind projects have the potential to wreak havoc 
on bird and bat populations. Relying on adaptive management as 
alternative to adequate preconstruction studies and mortality avoidance 
is particularly problematic for raptor and bat populations, which have 
slow reproductive cycles and low reproductive rates. Impacts to these 
populations are long-lasting and once harmed, they cannot quickly 
recover. Resource stewardship requires more protection than the ``build 
now, fix later'' philosophy would provide.
    Congress cannot allow adaptive management to be used as a 
substitute for necessary pre-construction data collection. Congress 
needs to mandate that agencies responsible for the review of individual 
projects rely on the precautionary principal and deny project permits 
in areas of significant importance to avian species, including 
migratory bird routes until the government can establish that post-
construction mitigation efforts are successful. If a location on a 
migratory bird route is good for developing now, it will be good for 
development later, after the government has a better understanding of 
the viability of mitigation options.
Conclusion
    While further research is greatly needed to understand the threat 
that wind energy poses to bird and bat populations, as well as to 
understand how to mitigate such impacts, it is clear that there is a 
direct correlation between increased bird and bat mortality and wind 
energy facility construction and operation. It is also clear that 
congressional action is needed to remedy the situation. The Alliance 
urges the Subcommittee to mandate compliance with the FWS guidelines 
for wind energy development and to require reviewing agencies to rely 
on the precautionary principle and not adaptive management, in the 
absence of necessary resource and impacts data.

                                 
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