Letters on Turbines Provided to Cherry Officials

The voice of the people has been conveyed to government officials of Cherry county, Nebraska. Three commissioners indicated a 60-day public comment period for a proposed wind turbine facility, and letters of many sorts arrived at the designated county office, via postal service, fax, email and more distinctly by those who walked into the proper office on Main Street, Valentine, and presented the paperwork with their view. One delivered comment was written on a paper plate.

Topics indicated by the writings vary. Some of the first opinions arrived in mid-June to ask the three deciders to remove someone from the Planning Commission that had was involved with a company promoting wind turbines while also making decisions about planning in the county. The man did publicly resign.

When the three deciders set a time frame for the public to submit comments regarding the Conditional Use Permit for the proposed Kilgore wind turbine project, there was a whole bunch of letters submitted during the sixty-day period and for some subsequent days.

Each of the letters submitted were scanned by a county employee. Each of the letters were made available via electronic media. All of the available files were acquired via a thumb drive as made available in the county office to any requester, are the basis for the following comments.

Once the public files were available and retrieved, each file was evaluated to determine the correspondence and its author. The names were written down. The composite file provided by the county official was then copied on a personal computer, with a file name associated with the author and the date when the item was received at the Cherry county office. Each file was then edited so that only the context of the sole author remained. It took dozens of hours to edit files in order to remove ancillary comments and retain only the comments associated with the primary author. Essential details were then entered into a database table. Each of the electronic records was thus available for comparative purposes and most importantly to do a query on one or another specific.

There were 252 letters considered, with this number derived from original submissions, and with duplicates combined into a single submission. In some instances, three letters were sent in order to provide a copy to each county commissioner, though each of them was a duplicate.

The primary item of interest – and comment and concern - was whether or not the writer was a proponent or opponent of wind turbines in Cherry county. The submissions were quite vivid. They varied from a scribbled sentence or two to whereas someone did research and mad comments and added ancillary material based upon their detailed research whether it was online or as seen in some reportorial article. Personal opinion reigned as it was pervasive in the verbiage, or even rarely some editorial pictures.

There were 218 submissions where a point-of-view indicated a proponent or opponent choice.

The count was 182 opponents, representing comments by 179 people, so obviously some couple of folks sent in more than one letter, to indicate something or another, or to denote further information that should be considered in regards to the CUP. Opponent letters represented ca. 83.5% of the overall number of letters.

Proponent letters numbered 36, or about 16.5%. A bit more than two-thirds of them were known or realized members of the Cherry County Wind group, based upon name associations and county records. Based upon the known letters, less than one-third of the members of the Cherry County Wind group provided a letter of support for wind turbines within the county. It was obvious while reading the letters, that numerous known members of CCW did not indicate their membership in this association. Their participation in the wind promotion group was based upon their statement of involvement, as well as ancillary research. Obviously, members of this group prefer to not disclose their paid status!

Multiple letters were received from Nebraska, and especially Cherry county places:

Valentine	39	Mullen	28	Kilgore	21
Thedford	20	Seneca	10	Cody	9
Kearney	6	Ashby	5	Crookston	5
Lincoln	5	Merriman	5	Whitman	5
Brewster	3	North Platte	3	Omaha	3
Wood Lake	3	Bristow	2	Gordon	2
Nenzel	2	Norfolk	2	Tilden	2
Brownlee	1	Burwell	1	Columbus	1
Elsmere	1	Firth	1	Gering	1
Gothenburg	1	Hyannis	1	Malmo	1
Pierce	1

Many of the letters from post-offices along the Highway 2 corridor (i.e., Thedford, Seneca, Mullen and Whitman) are actually residents within Cherry county.

Letters also came from Arizona, Colorado, Kansas, Minnesota, Mississippi, many from Missouri. Nevada, North Carolina, North Dakota and South Carolina. Obviously many people that are not residents, though they may be land-owners resident elsewhere or someone which has discovered the region, appreciate the region and their regular or intermittent visits, and took the time to convey that they want the current land setting to continue.

Other pertinent topics mentioned by the contributors to this public discourse were the essential need for a moratorium on issuing CUPs for wind turbine, that commissioners need to make a decision based upon a thorough evaluation of facts, that Van Winkle has a conflict of interest and is making decisions, as determined by state accountability officials, and other miscellany.

Further evaluation of letter contents would convey the reasons why someone took a particular stance regarding wind turbines.

On October 26th, the public hearing on the conditional use permit will be held, starting at 4 p.m. at the Valentine High School auditorium. Public comments will be accepted.

Fauna Conservation Strategy Issued for Kilgore Project

Details on a strategy to “conserve” birds and bats associated with habitats at the proposed Kilgore wind turbine project has become available following its issuance to the U.S. Fish and Wildlife Service. The document comprises more than 90 pages as prepared by a consultant for BSH Kilgore, L.L.C.

Regulatory provisions considered were the Endangered Species Act, Bald and Golden Eagle Protection Act, Migratory Bird Treaty Act, Nebraska Nongame and Endangered Species Conservation Act and the Nebraska Legacy Act.

Goals of the “strategy” are to:

* “Comply with all state and federal bird and bat conservation and protection laws and regulations during the project.

* “Ensure that impacts to bird and bat resources are identified and analyzed.

* “Implement various avoidance and minimization measures to address any impacts that result from the operation of the Project.”

This is the description of the project area: “Throughout the majority of the Project Area, the topography consists of choppy, rolling dunes. Very few trees exist within the Project Area, and those that do exist usually consist of deciduous or coniferous trees planted around farmsteads as wind breaks or in open areas. The most common tree species in the Project Area include cottonwood (Populus deltoides) and eastern red cedar (Juniperus virginiana). Grasslands in the Project Area are maintained as pasture land primarily used for livestock grazing. Center pivot irrigation systems have been constructed in a few areas where soils are more suitable for crop production. Based on observations during Project surveys, predominant crops within the Project Area are corn and alfalfa,” (Olsson Associates 2016). Two percent of the area is woodland, wetlands and developed areas.

Biological assessments are based upon surveys primarily within the 11,049 acre site near Kilgore where 25 to 30 turbines would be placed. This included a raptor nest survey (March and April 2015, including an aerial observation), prairie grouse lek survey (two periods of dates during April 2015), avian use point-count surveys at eight locations (40 hours of observations in April 2015), breeding bird survey (June 15-19, 2015 for 125 “pair-count locations”), bat acoustic monitoring (May to September 2015) and a survey and habitat assessment for the American burying beetle (in June and August 2015).

These field studies gathered "data necessary to:

• "Design a project to avoid or minimize predicted risk
  
• "Evaluate predictions of impact and risk through post-construction comparisons of estimated impacts
  
• "Identify compensatory mitigation measures, if appropriate, to offset significant adverse impacts that cannot be avoided or minimized"
  

Prominent in the findings are:

No occurrence of Whooping Crane within a ten-mile distance of the project site which is at the western extent of the migratory corridor of this species; migratory occurrence records evaluated were those kept by the Fish and Wildlife Service. There are low intensity use locales northeast of Kilgore, primarily in South Dakota.

Minimal occurrence of the American Burying Beetle in comparison to other “control” survey locales within eastern Cherry county; site habitat was rated from fair to poor. One beetle was captured on the project site, and another about a mile to the east

Eight species of bats are “believed” to occur at the project site

There were 35 breeding season bird species representing 974 individuals indicated. An estimated number of breeding birds was “1,065 birds per square kilometer.” The larger number of species occurred amidst the grasslands at the project site.

This is a list of the avifauna noted during surveys done mostly in April and June, 2015:

American Crow

American Robin

Bald Eagle (a nest within a few miles to the south, along the Niobrara River was not found and not recorded by raptor nest survey efforts; this active nest is photographically documented)

Barn Swallow

Black-capped Chickadee

Blue Grosbeak

Bobolink

Brown Thrasher

Brown-headed Cowbird

Common Grackle

Dickcissel

Eastern Kingbird

Ferruginous Hawk *

Field Sparrow

Grasshopper Sparrow

Great Horned Owl

Greater Prairie-Chicken * (seven leks denoted to have 32 males and ten females, occurring predominantly in grassland habitat)

Horned Lark

Lark Bunting

Lark Sparrow

Loggerhead Shrike *

Long-billed Curlew *

Mallard

Mourning Dove

Northern Flicker

Northern Harrier

Red-headed Woodpecker

Red-tailed Hawk (a single occupied nest was the only indication of a breeding raptor)

Red-winged Blackbird

Sharp-tailed Grouse (three grassland leks comprised of mostly male birds)

Song Sparrow

Tree Swallow

Turkey Vulture

Wilson's Snipe

* Indicates a Tier I at risk species

There are at least 300 species of birds whose occurrence has been documented within Cherry county. The list for the "project site" is minimalistic. Notably missing in this list is an ubiquitous species within the region, the Killdeer. No species of meadowlark is listed though the Western Meadowlark is mentioned elsewhere in the document, as being associated with its extent of occurrence. Was there a wren present, notably the House Wren amidst the woodlands? There was also no noted occurrence of the Common Nighthawk, which is a regular resident within the county. Completely missing is any mention of any species of warbler.

Three species denoted by a greater number of observations were the Grasshopper Sparrow (186 birds observed), Horned Lark and Western Meadowlark (with the largest number of birds observed – 340 - during the breeding bird survey). Two other numerous species were the Upland Sandpiper and Brown-headed Cowbird.

Considering the potential for bird-turbine fatalities, the document states: “collision risk is expected to be low for this Project is based on the above mentioned avian summaries and records of fatalities at other wind energy facilities.” The document then presents a list of a dozen wind facilities and the known extent of migratory bird facilities. The average is 3.87 birds per turbine per year.

The report then considers the many potential or known impacts on birds, including disturbance/displacement, electrocution, habitat loss and fragmentation and other factors that occur when wind turbines are built within the project area.

There was no information in the report to indicate how bird-turbine collisions will be evaluated, any active measures to be taken to lessen the extent of any turbine collisions on migratory wild birds, nor how such impacts would be mitigated. The fact of bird mortality due to the wind turbines is an accepted fact as indicated by surveys associated with other places with multiple wind turbines.

It is an accepted norm that the U.S. Fish and Wildlife Service regularly ignores the “taking” of many species of wildbirds, whether their demise is due to the spinning blades of a wind turbine or striking a pane of glass. It is the lack of action by this federal agency that so many deaths of birds occur, without any compensatory measures that are known to occur where there are wind turbines in Nebraska.

Several pages of the document considered the “pre-construction avoidance and minimization measures” associated with eagles, the Whooping Crane, the riverine Least Tern and Piping Plover, a subspecies of the migratory Red Knot, the northern Long-eared Bat and American Burying Beetle. There was then findings associated with “Construction Avoidance and Minimization Measures” for each of these species. Also conveyed was a section on “Operational Avoidance and Minimization Measures” starting on page 69 of the document.

Initial consultation for this assessment occurred with state and federal agencies occurred in September, 2012, the document indicates. There were also additional consultations, notably with the U.S. Fish and Wildlife Service and Nebraska Game and Parks Commission, with the most recent meeting in January, 2016.

This document has an indicated release date of July, 2016. It is prominently marked with a "Business Confidential Information" statement on the title page and within the footnote section of each page. It was submitted to the Fish and Wildlife Service and then made available - as a public document - to other people concerned with this proposed wind turbine project southwest of Kilgore.

Wetland Considerations - Permit Request by BSH Kilgore

James E. Ducey, Valentine; July 19, 2016 as presented at the County Planning Commission meeting at the Valentine school public hearing.

In addition to these prepared comments, my statement was prefaced by saying that the Cherry County Comprehensive Development Plan needs to be considered when the conditional use permit is evaluated. Also while presenting this statement some short, additional and supportive comments were made for emphasis. There were also some slight revisions in grammar.

After contacting the district manager of the regulatory office of the Army Corps of Engineers, the following information is pertinent to the conditional use permit application.

“The Corps, not the applicant, determines jurisdiction” on projects submitted to the Corps for review. Mr. Moeschen even went so far as to advise that the “project proponent talk to us before any filling occurs”

For a jurisdictional determine, the Corps generally looks for a “connection to a creek or channel that connects to a river that flows into the Missouri River.”

“If the wetlands are not waters of the United States, the Nebraska Department of Environmental Quality may have authority because the wetland is a water of the State.”

The Environmental Protection Agency has an “oversight role and generally handles enforcement action when someone does work in a WOUS that is regulated. EPA also reviews jurisdictional determinations completed by the Corps.”

The issues with the conditional use permit include:

• Although the applicant is required to identify wetlands, the provision does not indicate any further action is required. Why is a determination made if there is no “indicated reason” to do so.
  
• The application has not provided documentary evidence that there is no surface water connection to the nearby channel of McCann creek, which connects to the Niobrara River and then the Missouri River. This analysis should include details on various precipitation events which might create runoff when there is a flood or multiple-inch rainfall event.
  
• There is no indication to indicate whether the applicant has contacted the Nebraska Department of Environmental Quality to determine if they have any jurisdiction.
  

Implementation Strategies for Policy 4 in the Cherry County Comprehensive Development Plan indicate:

Wetlands Item 2: “All developments potentially affecting wetlands must comply with state and federal wetlands protection programs” with the Section 404 program mentioned.

• The conditional use permit does not indicate any communication with either state or federal authorities, nor has there been any written documentation available to indicate they will contact either mentioned agency.
  

Item 3: “Development shall leave a naturally vegetative buffer surrounding all wetlands. Roads and utility lines may cross there buffers, but the project’s site plan should minimize such crossings.”

• The conditional use permit application does not indicate how vegetative buffers around the numerous wetlands will be maintained, nor how construction in any wetlands will be minimized.
  

Since neither of these two items have been addressed in a written manner by the applicant, BSH Kilgore has not fulfilled either of these requirement as indicated in the county comprehensive development plan.

Runoff and Erosion Control: “A runoff and erosion control plan shall be implemented in all developments.”

There is no runoff plan in the development application, and at least two requirements in the development plan seem to be applicable. Land Use Compatibility

“Cherry county will ensure that development is compatible with neighboring uses,” including “the impact on scenic views from existing uses.” How is this being accomplished?

Compatible: “Capable of existing or functioning well with another or others”

Public Comment on Proposed Kilgore Turbine Project

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.