1. birds, bats and windfarms: compatibility or Frenemies ?

1. The Birds and the Bats: Using Adaptive Management to Find the Balance of Public Interest in Wind Farm Development.

2. 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

3. 1. birds, bats and windfarms: compatibility or Frenemies ?2. Nsw wind farm regime3. Balance of public interest4. adaptive management5 public interest and adaptive management

4. 1. birds, bats and windfarms: compatibility or Frenemies ? http://www.youtube.com/watch?v=8NAAzBArYdw Positives Concerns Destroy and fragment habitat, disrupt flight patterns for migratory species Birds and bat strike, mortality. Long-term impacts on populations • Wind 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

5. 2. Nsw wind farm regime • 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 introduced • s79C 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 Act1995 (NSW)

7. 3. Balance of public interest • 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

8. 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.

9. 4. adaptive management • Iterative approach that involves continual monitoring, investigation, testing and modification • Also requires formulating purposes or objectivesthat: 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

10. 5 public interest and 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

11. 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…….

14. 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

15. * 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?

16. 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."