Comments on BSH Kilgore L.L.C. Request for Conditional Use Permit
- Read before zoning board at public hearing
- Valentine courthouse; May 23, 2016
The following are items of concern in reference to both permit planning and zoning actions regarding the permit request– both of which this board are required to consider.
1) Wetlands
Only the U.S. Army Corps of Engineers can be a legal decision on the regulation and jurisdiction of wetlands; the CUP is limited only to what was gathered by Olsson Associates, without any Corps review or acceptance of findings.
2) Endangered Species Act - U.S. Fish and Wildlife Service
There should be a letter available from FWS in regards to the status of threatened and endangered species, including the American Burying Beetle (as seen on the project site) nor on potential impact on the Whooping Crane; this is a public document nearly always done in association with large scale project
3) Migratory Bird Treaty Act
In comparison to a review prepared by FWS for a single wireless tower at Crookston, this CUP application does not address: a) need to avoid work activity between February 1 to July 15 that would avoid impacts to nests, eggs or young. FWS generally recommends no removal or impact to vegetation during this period. If construction should occur, the agency recommends that a "qualified biologist" conduct a pre-construction risk assessment. If applicable conditions apply, the FWS requests:
- a copy of any survey for migratory birds;
- written description of specific work activities that will take place; and
- written description of any avoidance measures than can be implemented to avoid the take of migratory birds.
The project developer is also responsible for any take of migratory birds through action of the turbines. Fines can be assessed by the federal government for the death of any migratory species protected through this act. Civil lawsuits can also be filed.
4) Structure Lighting
There is no mention of the type of lighting that will occur at substation buildings (needs to be either down-lighting or motion-detecting, according to FWS).
5) Bald and Golden Eagle Act
A federal permit is required for incidental take of any eagles. Whether or not a permit will be required is not clear, according to FWS? However, "the take of an eagle without a permit is a violation of the Bald and Golden Eagle Protection Act as well as the Migratory Bird Treaty Act, and could result in prosecution," according to a FWS official. ... "Should the project pose a great enough level of risk of taking eagles, as identified in the processes contained in the Wind Energy Guidelines and Eagle Conservation Plan Guidance, we may recommend that the project be modified to reduce the risk to eagles or not be built at that location."
6) Nebraska Game and Parks – Threatened and Endangered Species
What review has been done to meet state review requirements (i.e., American Burying Beetle, Western Prairie Fringed Orchard, Whooping Crane).
7) National Historic Preservation Act
Needed is a required legal determination on potential occurrence of cultural resources as prepared by qualified archeologist and to be in compliance with Section 108 regulations.
8) Land Ownership Memorandum
Exhibit B of the CUP application indicates that a copy of the relevant memorandum of agreement will be on file. The Rothleutner Family Limited Partnership is listed with the legal description of affected property, yet there is no agreement document on public file as of 9 a.m., May 23rd. The application is therefore conveying erroneous information.
Summary
Each of these reviews would be associated with public agencies. Any communications – including letters, emails, documents, etc. – are information that must be made available through any Freedom of Information Act request(s). Public information is not proprietary, and may not – according to standard law decrees - be withheld from public availability.
The U.S. Fish and Wildlife Service has not responded to a FOIA request for documents made more than two weeks ago, indicating the FWS is complicit in the failure to provide public documents.
Building Setback Addendum
There is no known scientific basis for having a 1000 foot setback as indicated within the permit application, except that the figure was commonly used many years ago and then apparently copied for use by others. Vestas has been quoted to say: "Do not stay within a radius of 400 meters (1,300 feet) from an operating turbine unless it is necessary." In 2014, Ohio set the distance at 1125 feet from the tip of the turbine blade. In 2014, Newport, North Carolina established a setback distance of 5000 feet. Some places that require a setback distance of 2,500 feet or more are now increasingly common.
The most modern figures, including figures derived from scientific comparisons and studies indicate that those proposed for the BSH-Kilgore project are insufficient.
Some minor typographic errors have been corrected from the submitted comments.