Commission approves wind development BMPs, asks for landowner input

Casper – Three hours of public testimony offered by 30 individuals regarding the Wyoming Game and Fish Department’s recommended wind energy development best management practices were presented to the Wyoming Game and Fish Commission in Casper on April 23.
The majority of the public asked the Commission to hold off on approval of the document. Most landowners expressed concern about private property rights, value being taken from their land and lack of inclusion in the best management practices (BMP) development process.
The April 2010 version of the document, entitled “Wildlife Protection Recommendations for Wind Energy Development in Wyoming,” contained 40 specific recommendations in Appendix A, “Wind Energy Development Best Management Practices,” that the Department says should be considered when wind developers propose a project.
While the Game and Fish does not have the power itself to regulate with the BMPs, county government and the Industrial Siting Council will use them when permitting wind projects.
Many private landowners in the state take exception with the document’s inclusion of private lands along with federal and state lands, saying the BMPs may not constitute a complete taking, but a taking nonetheless. Many private landowners also feel the WGFD didn’t work hard enough to notify all interested parties of the pending recommendations.
“This was not well advertised enough,” said Converse County landowner and rancher Richard Grant. “Ranchers and landowners are the ones helping you maintain your source of income – wildlife – which funds the Department. I look at the BMPs as an encroachment on my private property rights. They limit what I can do on my property in a struggling economy.”
Grant said he encourages sportsmen to come to his property, but cautioned that landowners may not invite them back through the Wyoming Game and Fish public access programs if the BMPs went through.
“With this document you do have the ability to regulate what we as private property owners do on our private property,” continued Grant. “We want to be brought to the table to be a part of the process, and not dictated to.”
“Another concern is that anytime you standardize these guidelines, you’ll increase lawsuits brought by people opposed to wind projects,” said Lynn Woodard of Tie Siding. “Anytime you standardize, it becomes an issue for litigation.”
Regarding the takings issue, Bordeaux rancher and landowner Bob Whitton, chairman of the Renewable Energy Alliance of Landowners (REAL), asked, “Is it ok if our property value is taken a little at a time, as long as it’s not driven to zero? We see wind power as a way to stay in the ranching business and pass it on to the next generation.”
Whitton said that, for him and other ranchers, the BMPs aren’t about wind or wildlife, but about private property rights. “Doing what you want on your own private property is the very essence of freedom in this country. Our land supports the wildlife in this state – they feed, winter, give birth and thrive on our lands, and at our expense, and we open our ranches to public hunting, and you don’t take the time to work with us on this.”
“I’ve always considered Game and Fish as a partner on my ranch, and I’d also like to be a partner in this process. I feel we’ve been left out,” said Natrona County rancher Dennis Sun. “I feel the best way is to put these on hold and work with landowners. The best way to protect wildlife is to protect the private landowner.”
Wheatland rancher and feeder Juan Reyes added, “The BMPs are intrusive, an infringement and they erode private property rights. As they stand, I cannot recommend them.”
Reyes said there’s a misconception that the BMPs will enable more hunting and fishing in development areas. “I see it differently – if the BMPs are approved today, I see private fisheries and land being omitted from public hunting programs. Access can be hurt by approving the BMPs.”
Wyoming Stock Growers Executive Vice President Jim Magagna said the court system can sort out private property rights, but what’s at stake are the relationships involved. “Those don’t get sorted out by the courts – they’ve been built up over many years, and have been enhanced in the last 10 to 15. The Commission has an obligation to guard against things that may set back that relationship.”
“I don’t think it’s ready for prime time,” said Rocky Mountain Farmers Union Wyoming Lobbyist Scott Zimmerman of the document. “We continue to have serious concerns with the approach the recommendations have taken. While it may be appropriate to develop this on federal and state lands, we find it highly objectionable to use the same approach on private lands where the surface owner has no initial input.”
Wyoming Board of Agriculture President Jim Bennage was present to speak on behalf of the Board. “The Board of Ag does not support the document in its current form, due to the vague language regarding private property rights. It does not distinguish or recognize the difference between development on private land versus public.”
“The ag community is the Wyoming Game and Fish Department’s biggest ally in wildlife and wildlife projects, and this creates additional burdens and obstacles for private landowners,” continued Bennage, noting BMP 21 specifically, which says prairie dog colonies should be left intact. “Private landowners and the development companies should have a personal choice in how to deal with prairie dogs on private land as they see fit.”
Bennage also pointed out BMP 36, which requires consultation with the WGFD regarding fences. “Private landowners and developers should make their own decisions on fencing and land use,” he said.
He also commented on BMP 40, which says developers are responsible for disposing of carcasses and handling the rehabilitation of injured wildlife in the project area. “That’s too vague and overreaching,” said Bennage. “It doesn’t differentiate between death of natural causes, wind turbines or other causes unrelated to the project.”
Bennage also told the Commission that the BMPs should have been developed in collaboration with the Board of Ag, a partnership that has existed in the past.
Cheryl Riley of the Wyoming Power Producers Coalition said the April draft was a “significant improvement” over the original, but expressed concern the BMPs were too general. “Wind companies want the opportunity to work on wildlife needs in their specific areas,” she said, specifically noting big game studies and mitigation.
Spencer Martin of Wasatch Wind said his company welcomes the consistency the recommendations bring to the wind power development process. He also said he felt the recommendations allow the flexibility for site-specific conditions, but expressed concern about radio tracking wildlife. “We believe excellent data on big game use of sites can be obtained in other less cost-intensive ways,” he said.
Following public comment, WGFD Deputy Director John Emmerich said the recommendations are needed to provide consistency in permitting.
“That’s one thing industry hates the most – getting different directions every time they talk to somebody in the agency,” he said. “I think we can implement them without undue burdens on industry and landowner rights. If that’s not the case, we can revisit them and move on from there. We’ve certainly tried to develop a set of balanced recommendations with which our Department can work as a starting point.”
“We’re here today to get an endorsement from the Commission on these recommendations,” said Emmerich.
Commissioner Jerry Galles said, “We’ve addressed industry, hunting and fishing, but we didn’t address the landowner issue.”
He suggested approving the document, and getting a small landowner group to address their issues, which would be presented at the September 2010 Commission meeting. “I think we need to get guidelines set, but I’m in tune with the landowners. We should give them an ample amount of time to work with the Department and express their issues of concern.”
“I think the landowner has a voice in the monitoring and mitigation that goes on with their place. We need to write that role for the landowners, so they have a place at the table as the applications are being developed,” said Commissioner Aaron Clark. “They need to be at the table with the developer, and that’s what I hope we can accomplish between now and September. I think it’s missing.”
In the end, the Commission passed the BMPs, but asked Magagna to gather a focus group of landowners to give input on what they think their roll should be in the process, and bring their recommended changes back to the next meeting.
Christy Hemken is managing editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.