Appeal presses for more bird habitat at Fort Edward solar site

FORT EDWARD — The fight to provide more habitat for grassland birds facing displacement by 527 acres of proposed solar arrays continued Thursday with an appeal of a state ruling on how much land would cushion the birds’ expulsion.

Judge James T. McClymonds, who heard arguments virtually, will decide by May 27 whether Grassland Bird Trust can require Boralex, a Canadian solar company, to purchase, lease or conserve an equal number of acres for threatened and endangered birds. He may also let stand an October ruling from the state Office of Renewable Energy Siting, which said Boralex needs to provide only 216 acres to mitigate the acres on private land set to be blanketed by panels. The property in question is on a vast swath of private and public land designated by various government and nonprofit groups as an important birding area in Washington County.

Either way, it appears the panels will go up in areas that Grassland Bird Trust attorney Benjamin Wisniewski called “high-quality habitat.”

“Our perspective is, if you’re going to develop it, what are you going to do to mitigate the adverse impact on grassland birds?” Wisniewski asked. “Grassland Bird Trust is going to do its best to make sure there’s a net conservation benefit, and that’s exactly what we’ve done in this case. We have not advocated for denial of the permit. We’re not an anti-solar group. We are saying that this case is special, that this area is unique and these designations as conservation centers mean something.”

He also argued the judge should consider a recent but as yet unpublished Cornell University study that found birds such as the northern harrier will not use land with solar panels on it or panels nearby. Currently, the Boralex mitigation site is surrounded on three sides by solar panels. 

Since 2020, Boralex has sought to build the Fort Edward Solar Project on private lands inside the designated Important Birding Area. That area, which includes the state Department of Environmental Conservation Wildlife Management Area and the Washington County Grassland Bird Conservation Center, is habitat for 100 species of birds. These include threatened and endangered species such as short-eared owls, northern harriers, upland sandpipers and horned larks that nest, breed and winter there. The current plan would partially encircle with solar panels the mitigation site as well as the wildlife area owned by the state DEC.

According to a state formula developed by the Public Service Commission and the Office of Renewable Energy Siting, for every acre Boralex takes over, it needs to lease or buy only 0.4 acres of breeding ground and 0.2 acres of winter habitat.

Yet both Boralex and ORES said they are following state regulations. At the hearing, Jim Muscato, speaking for Boralex, said it would cost an additional $3 million to provide more land for the birds. He said that “unless there’s the identification of something significant,” the appeal is unwarranted.

Audrey Friedrichsen, speaking on behalf of ORES, said that “mitigation must achieve a net conservation benefit.”

“It must leave the species in a better place than before the project was built,” Friedrichsen said. “The ORES staff, who are dedicated and trained professionals, are well-versed in these principles and their application in this regulatory process. They know the ecology. They know the science. They know what questions to ask, and they know what information is necessary for the office and the executive director to make the required findings to issue a permit.”

She said Boralex’s layout for the panels “eliminated and reduced impacts to grassland bird species and their occupied habitat and demonstrated avoidance and minimization. This is exactly what the ORES process and the uniform standards and conditions are supposed to do.”

Since 2010, Grassland Bird Trust has worked with the state Department of Environmental Conservation, Washington County and the National Audubon Society to conserve critical habitat for birds. The organization, which owns the 78-acre Alfred Z. Solomon Grassland Bird Viewing Area, also asserts that grassland habitat is the fastest-disappearing landscape in North America.

Speaking for the American Land Rescue Fund, which supports Grassland Bird Trust, President Alexandra Fasulo alleged the land is not suitable for solar panels. She said the clay soil is a weak foundation as it’s prone to slumping and shifting under wet conditions.

“No amount of mitigation can cure that defect,” Fasulo said.

Grassland Bird Trust understands the panels will be built and that “527 acres of habitat is going to be destroyed and no longer suitable for grassland birds,” Wisniewski said.

“Therefore, the less-than-one-to-one mitigation is simply not sufficient,” he concluded. “We need at least 527 to replace the 527. More than that, we need it to be managed in the proper way to go beyond equal and make it an actual benefit.”