THE BIRDS AND THE BATS: USING ADAPTIVE MANAGEMENT TO FIND THE BALANCE OF PUBLIC INTEREST IN WIND FARM DEVELOPMENT.

THE BIRDS AND THE BATS: USING

ADAPTIVE MANAGEMENT TO

FIND THE BALANCE OF PUBLIC INTEREST IN

WIND FARM DEVELOPMENT.

Joe Hockey (Federal Treasurer): wind turbines 'utterly offensive', "I think they're just a blight on the landscape.“

As reported by ABC News 2 May 2014

1. BIRDS, BATS AND WINDFARMS: COMPATIBILITY OR FRENEMIES ?2. NSW WIND FARM REGIME3. BALANCE OF PUBLIC INTEREST4. ADAPTIVE MANAGEMENT5 PUBLIC INTEREST AND ADAPTIVE MANAGEMENT

PositivesWind turbines pose less

danger to species than the extraction and use of fossil fuels, and increasing impacts of climate change

The number of bird and bat strikes is small compared to mortality from other sources

Concerns

Destroy and fragment habitat, disrupt flight patterns for migratory species

Birds and bat strike, mortality.

Long-term impacts on populations

1. BIRDS, BATS AND WINDFARMS: COMPATIBILITY OR FRENEMIES ?

http://www.youtube.com/watch?v=8NAAzBArYdw

A mix of legislation, policy instruments, and industry guidelines.

Administered in accordance with planning laws and regulations enacted under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA).

In 2013 ‘Gateway’ procedure introduceds79C of the EPAA - Decision maker must evaluate impacts

including: the likely impacts of the development on the natural and built environment; and, the public interest.

Approvals under EPAA override provisions in National Parks and Wildlife Act 1974 that protect native species

If wind farm is likely to impact on threatened species, endangered populations or endangered ecological communities, developer needs a licence under the Threatened Species Conservation Act 1995 (NSW)

2. NSW WIND FARM REGIME

Date Issued

Wind Farm Director Generals Requirements Under Section 78A(8A) of the EPAA

31 January 2014

Jupiter Consider the effects, including multiple wind farms in the vicinity on bird/bat strike, movement patterns and loss of habitat.

20 January 2014

Newtricity Consider the effects, including multiple wind farms in the vicinity on bird/bat strike, movement patterns and loss of habitat.

12 August 2013

Biala Consider cumulative effects, including the effects of multiple wind farms in the vicinity on bird/bat strike, movement patterns and loss of habitat.

Date Issued

Wind Farm Director Generals Requirements Under Section 75F of the EPAA

12 November 2010

Bodangora Provide details of how flora and fauna impacts would be managed. Provide details of adaptive management protocols and monitoring.

15 October 2010

Collector Provide details of how flora and fauna impacts would be managed. Provide details of adaptive management protocols and monitoring.

10 October 2010

White Rock

Provide details of how flora and fauna impacts would be managed. Provide details of adaptive management protocols and monitoring; address impacts on birds and bats.

3 September 2010

Capital II Asses impacts on flora and fauna. Provide details of adaptive management protocols and monitoring.

1 June 2009 Boco Provide details of how flora and fauna impacts would be managed. Provide details of adaptive management protocols and monitoring.

29 May 2009 Sapphire Provide details of how flora and fauna impacts would be managed. Provide details of adaptive management protocols and monitoring.

13 February 2008

Silverton Provide details of the impact of the proposal on critical habitats, threatened species, the impact on birds and bats from. An adaptive management plan must be outlined.

21 September 2007

Gullen Range

Provide details of how flora and fauna impacts would be managed. Provide details of adaptive management protocols and monitoring.

1 May 2007 Glen Innes Provide details of how the impact of the proposal on birds and bats from strikes and alteration to movement patterns resulting from the turbines and transmission lines. Provide an outline of an adaptive management program.

4 May 2006 Black Springs

Provide details of the impact of the proposal on critical habitats, threatened species, populations or ecological communities, or their habitats, and details of the impact of the proposal on birds and bats An adaptive management plan must be outlined.

9 January 2006

Cullerin Impacts on critical habitats, threatened species, populations, ecological communities, and their habitats; impact on birds and bats. The applicant should provide an outline of an adaptive management program.

Undated but appears to be 2006

Conroy’s Gap

The environmental assessment must address: impact on critical habitats, threatened species, populations, ecological communities, and their habitats; impact on birds and bats. The applicant should provide an outline of an adaptive management program.

s79C(1)(e)Decision maker needs to take public interest into account

Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd: Preston CJ = the “broader public good”. Bird deaths can be an acceptable risk, especially if mitigation measures are implemented

Telstra Corporation Limited v Hornsby Shire Council: Preston CJ =objectives of ESD

Minister for Planning v Walker: Court drew inferences from the report of the Director-General for planning as well as other instruments relevant to the EIA process

3. BALANCE OF PUBLIC INTEREST

EIS process identifies potential risks. In order to identify actual risks monitoring is necessary, and in order to fine-tune management responses, and achieve pre-determined objectives, operators of wind farms need to implement adaptive management practices.

Iterative approach that involves continual monitoring, investigation, testing and modification

Also requires formulating purposes or objectives that: set targets for achieving key conservation aims; underpin how management decisions are made; and, identify the motivation for interest in the conservation issue

Much of adaptive management hinges on good monitoring. For this reason, regulators and managers need quality baseline data

If adaptive management is not acting as a counter-balance to the front-end environmental decision making processes of the EIA, then it is questionable whether aims and objectives of ESD are being achieved and it also casts doubt on whether public interest is being served

4. ADAPTIVE MANAGEMENT

By extending the conditions of wind farms post-construction, the Minister is anticipating that adaptive management will deal with the actual risks of the projects.

New South Wales Parliament, Legislative Council. General

Purpose Standing Committee No. 5, Rural Wind Farms, The NSW General Purpose Standing recommended that the Minister for Planning ensure that wind farm developers comply with bird and bat management conditions of consent. A summary of results of bird and bat monitoring, including the number of deaths, should be published annually on the Department of Planning website. Where the results demonstrate non-compliance with the conditions of consent the Minister should apply appropriate penalties or action

5 PUBLIC INTEREST AND ADAPTIVE MANAGEMENT

In 2013 the NSW Department of Planning released an audit on three wind farms that were fully operational:

Capital, Cullerin and Woodlawn

These were relevant conditions of approval…….

Wind Farm

No. Conditions

Capital

34 A Bird and Bat Adaptive Management Program must be prepared as part of the OEMP.

35 The Applicant must prepare annual reports commencing 12 months from the start of Operation describing the activities undertaken within the Bird and Bat Adaptive Management Program.

  36 The Applicant must implement all Reasonable and Feasible mitigation measures where the need for further action is identified through the Bird and Bat Adaptive Management Program.

 Cullerin Range

99 A Bird and Bat Adaptive Management Program must be prepared as part of the OEMP. The Program must incorporate monitoring, and a Decision Matrix that clearly sets out how the Proponent will respond to the outcomes of monitoring.

  80 Birds and bats must be monitored in accordance with the Bird and Bat Adaptive Management Program.

  80 Reports must be prepared on an annual basis. Woodlawn

37 A Bird and Bat Adaptive Management Program must be prepared as part of the OEMP,

38 The Applicant must prepare annual reports commencing 12 months from the start of Operation describing the activities undertaken within the Bird and Bat Adaptive Management Program.

39 The Applicant must implement all Reasonable and Feasible mitigation measures where the need for further action is identified through the Bird and Bat Adaptive Management Program.

Wind Farm

Condition Number

Conditions Audit Findings

Capital

34 Preparation of Adaptive Management Program.

Not complied with

35 Annual reports. Not complied with – monitoring not undertaken in accordance with conditions of approval.

  36 Implement mitigation measures.

Not addressed

   Cullerin Range

99 Preparation of Adaptive Management Program.

Appears to have complied but could be improved by proactive placement of project related information on the project’s website.   80 Monitoring.

  80 Annual Reports.    Woodlawn

37 Preparation of Adaptive Management Program.

Plan Prepared.

38 Annual Reports. Documents sighted by auditors. Reports not due at time of audit.

39 Implement mitigation measures.

None considered necessary by the operator.

• Not possible to determine how operators are using data gathered from monitoring; not possible to compare data in the pre-construction and operational phases of the wind farm

• In Australia – problem exacerbated by insufficient studies on the risk to Australian bats and other non-avian species from wind farms

• Ferrer et al, examined information contained in 53 EIAs - found that predicted and actual mortalities of birds differed significantly.

• Means that decision-makers are arguably giving approval for construction and operation of wind based on incorrect assumptions

* Wind farms are seen as a viable alternative to fossil fuels.

* Adaptive management s a way of mitigating bird and bat losses

* To date it there is little follow-up to ensure that operators are adhering to conditions of approval.

•If regulators don’t know what the actual risks are and adaptive management not being implemented, are we fulfilling principles of ESD and if not, is this in the public interest?

Animal Welfare Institute v. Beech Ridge Energy LLC,172 172. 675 F. Supp. 2d 540 (D. Md. 2009) concluded: "[t]he development of wind energy can and should be encouraged, but wind turbines must be good neighbors."