Ms. Laura Hill, Assistant Field Supervisor, U.S. Fish and Wildlife Service, West Virginia Field Office
September 13, 2010
RE: Scoping Comments On The Fish And Wildlife Service’s Consideration Of An Incidental Take Permit And Habitat Conservation Plan For The Beech Ridge Wind Project
We are writing on behalf of the Animal Welfare Institute (“AWI”) and David G. Cowan with regard to the construction and operation of turbines at the Beech Ridge wind energy facility (the “project”) in Greenbrier and Nicholas Counties, West Virginia. More specifically, we are writing to submit comments to the U.S. Fish and Wildlife Service (“FWS” or “Service”) on the scoping process that FWS is undertaking in connection with its preparation of an Environmental Impact Statement (“EIS”) analyzing the significant environmental impacts of the Beech Ridge project under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370.
As a preliminary matter, AWI and Mr. Cowan respectfully urge the Service to conduct its review under NEPA with respect to the entire Beech Ridge wind facility’s impacts on wildlife, including any already operating turbines, as well as all aspects of the project including turbines, transmission lines, substations, roads, transformers, and any other related invasive infrastructure that did not exist prior to Beech Ridge Energy’s acquisition of the land on which this project is located. Likewise, alternative means of accomplishing the project purposes with fewer wildlife impacts – a critical part of the NEPA analysis – should be considered for all phases of the project. The alternatives analysis should be based on extensive on-site (and potentially off-site) surveying (mist netting, acoustic monitoring, spring emergence studies, etc.), and should consider, among other things, post-construction monitoring, adaptive management techniques, and alternate turbine locations within the project’s boundaries that would result in less significant wildlife and environmental impacts.
I. NEPA Requires That The Service Consider All Direct, Indirect, and Cumulative Impacts of the Beech Ridge Wind Project.
In undertaking its NEPA review, the Service must analyze all direct, indirect, and cumulative impacts on wildlife. See, e.g., 42 U.S.C. § 4332(2)(c); TOMAC v. Norton, 433 F.3d 852 (D.C. Cir. 2006). Direct effects “are caused by the action and occur at the same time and place.” 40 C.F.R. § 1508.8(a). Indirect effects “are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. §1508.8(b). Cumulative impacts are “impact[s] on the environment which result[ from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions … [and] can result from individually minor but collectively significant actions taking place over a period of time.” Id. §1508.7.
Direct wildlife impacts implicated by the Beech Ridge wind project include significant impacts to various unlisted bat species (Hoary bat, Eastern red bat, Silver-haired bat, Tri-colored bat, Big brown bat, Little brown bat, Eastern small-footed bat, and Northern long-eared bat) because of the well-documented mortality of bats due to turbine collision and barotrauma. In addition to unlisted species, there is particular concern here about direct impacts to federally endangered Indiana bats, whose presence on the project site has been confirmed through acoustic data, see, e.g., 675 F. Supp. 2d 540, and there might be similar impacts to federally endangered Virginia big-eared bats (which could be determined through rigorous on-site monitoring). Special emphasis should be placed on the Beech Ridge project’s effects on cave-dwelling species, including Indiana bats and little brown bats, because of the precipitous decline in their population numbers due to White Nose Syndrome (“WNS”). See, e.g., Frick, et al., An Emerging Disease Causes Regional Population Collapse of a Common North American Bat Species, SCIENCE, Vol. 329, pp. 679-82 (Aug. 6, 2010). It should also be noted that a petition has been submitted to list the Eastern small-footed bat and the Northern long-eared bat under the ESA, which might have some impact on the Service’s analysis of bat impacts here. See Center for Biological Diversity (Jan. 21, 2010), http://www.biologicaldiversity.org/campaigns/bat_crisis_white-nose_syndrome/pdfs/petition-My otisleibii-Myotisseptentrionalis.pdf.
Further, there is much evidence in the scientific literature indicating that birds, and particularly eagles and other raptors, are killed and otherwise harmed by wind turbines. If surveys or historical FWS or WVDNR records indicate presence of such bird species on this project site, the direct and indirect impacts implicated by the project must be analyzed in the Service’s NEPA documentation. In addition, assuming evidence indicates the presence of bird species on the project site, the Service should analyze in its NEPA review compliance with other environmental statutes under its jurisdiction – including the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.
Not only should direct impacts to all bat (and bird) species residing in this area be considered and analyzed in an EIS, but so too should the impacts to their habitat that is critical to proper ecosystem functioning and species survival by avoiding disruption of essential biological behaviors. Within the project footprint, for example, many acres of forested habitat were cleared to make way for the project’s turbines, roads, and related infrastructure – activities that likely impacted (and still impact) bats and birds in the area through adverse modification and fragmentation.
In addition to direct and indirect effects, there exist significant cumulative impacts with respect to the Beech Ridge wind project that must be evaluated thoroughly in an EIS. Most importantly, the Service should analyze the cumulative impacts of the Beech Ridge wind project on bats and migratory birds when viewed in conjunction with all other existing and planned wind projects in the eastern United States, and particularly in the Appalachian corridor. There are currently hundreds of wind projects operating in this region, and many more planned for construction, but the net effect of the rapid proliferation of wind energy in this region (which undisputedly has the highest turbine-bat mortality in the nation) is manifest in a daunting gauntlet of wind turbines that bats, birds, and other migratory species must traverse each year during spring and fall migration. This ever-more-difficult migration path poses grave risks to bat and bird populations, and such a significant impact must be analyzed and mitigated here – particularly considering that the estimated bat mortality predicted by the developer’s own consultant was the highest estimate for any wind project ever proposed in the United States.
Other cumulative impacts that must necessarily be evaluated as part of the Beech Ridge EIS include non-wind energy projects (e.g., timber projects, strip mines, residential or commercial development, etc.) in the region that impact bats, birds, and other Beech Ridge- affected wildlife, and the effects of those projects on wildlife and species habitat. Additionally, with respect to bats, WNS and its devastating effects must be thoroughly considered in evaluating the level of acceptable take for any listed bat species affected by the disease to ensure that species jeopardy is not likely to occur under the emergency WNS circumstances. This is of particular concern because WNS-affected bats are much more susceptible to turbine collisions and barotrauma due to compromised flying ability and increased fatigue. The effects of WNS, in conjunction with an array of wind turbines throughout the region, could have devastating effects on local and regional bat populations, and thus effective mitigation of these impacts is crucial.
II. Alternatives, Monitoring, and Mitigation Measures
NEPA requires the Service to “rigorously and objectively evaluate all reasonable alternatives” to the proposed action, and the alternatives analysis is considered the “heart of the environmental impact statement.” 40 C.F.R. § 1502.14. In addition, the EIS should “[i]nclude appropriate mitigation measures not already included in the proposed action or alternatives.” Id. § 1502.14(f).
The Service has indicated that “[t]he alternatives to be considered for analysis in the EIS may include: Variations in the scope of covered activities; variations in curtailment of wind turbine operations; variations in the location, amount, and type of conservation; variations in permit duration; variations in monitoring the effectiveness of permit conditions; or a combination of these elements. We will consider other reasonable project alternatives recommended during this scoping process in order to develop a full range of alternatives.” 75 Fed. Reg. 47267, 47269.
AWI and Mr. Cowan concur with the Service that all of these proposed variations and alternatives should be considered in the EIS. Indeed, AWI and Mr. Cowan provided preliminary comments to the Service on May 19, 2010 related to many of these topics (monitoring, conservation, etc.), and will again include these comments as part of this letter. See Attachment 1. The comments were created in conjunction with leading bat biologists and the comments incorporate the best available science in the field of bat biology and ecology (as of late May 2010). That attachment is hereby incorporated by reference as part of these scoping comments.
Specifically, in addition to the alternatives identified by the Service in the Federal Register notice, AWI and Mr. Cowan urge the Service to analyze the implementation of rigorous and independent bat and bird presence monitoring using technologies including acoustic detection (AnaBat), mist netting, springtime emergence studies, and other tools for detecting presence of bats, birds, and other species on the project site. Such surveys and studies would necessarily inform the Service’s decisionmaking on an ITP/HCP, and would ensure that all environmental impacts and reasonable alternatives are considered in an EIS. Also, pre- construction monitoring is essential for adequately identifying where on the project site the highest levels of bat and bird presence occur in order to minimize risks to wildlife.
Moreover, various adaptive management and post-construction monitoring regimes should be analyzed in the alternatives section of the EIS, and ultimately adopted to minimize and mitigate the impact of expected takes. As our May 19 comments highlight, there are various wildlife-protective mechanisms – including, but not limited to, curtailment of turbines during migration periods, the application of different cut-in speeds than those that would otherwise be used, and the implementation of time-of-year and/or time-of-day turbine operational restrictions (similar to those imposed by Judge Titus), etc. – that must be considered in minimizing the impacts to listed and unlisted bats, birds, and other wildlife species in the area.
Not only are such timing restrictions and other minimization and mitigation measures expressly contemplated in the Congressional mandate for ITPs under the ESA, see 16 U.S.C. §§ 1539(a)(2)(A)(ii), (iv), but they are also an important part of the NEPA process. E.g., 40 C.F.R. § 1505.3 (explaining that “[m]itigation and other conditions established in the [EIS] … shall be implemented by the lead agency … [as] appropriate conditions in grants, permits or other approvals”). Accordingly, the EIS should consider appropriate mitigation measures – based on scientifically defensible and independently created protocols – to minimize the risk of harm to bats, birds, and other wildlife in the region. The Service should also analyze other means of offsetting unavoidable impacts, including but not limited to funding research on WNS and purchasing and protecting important off-site bat habitat.
Please let us know if you have any questions about the comments provided herein. We look forward to continuing to work with the Service and the permit applicant in a cooperative and collaborative manner throughout this process.
William S. Eubanks II
Eric R. Glitzenstein
Meyer Glitzenstein & Crystal, Washington, DC
May 19, 2010
Re: The Incidental Take Permit Process For The Beech Ridge Wind Project
Dear Mr. Groberg and Ms. Hill:
Pursuant to the parties’ January 26, 2010 Stipulation, which provides that Plaintiffs Animal Welfare Institute (“AWI”) and David Cowan may participate in the Incidental Take Permit/Habitat Conservation Plan process (“ITP process”), and that “they will use best efforts to play a constructive, cooperative role in the [p]rocess by making their views on pertinent issues (e.g., monitoring, adaptive management) known to Defendants and/or the Service as early in the ITP Process as practicable,” Stipulation ¶ 7, we are providing the following initial views on behalf of AWI and Mr. Cowan. These are preliminary comments on primary issues of concern that Plaintiffs believe should be considered by the Service in processing any ITP/HCP application for the Beech Ridge Wind Project. They were developed in consultation with the bat experts who testified at the trial in this case, and are based on the best available science known at this time.
The Following Pre-ITP/HCP Surveys Should Be Conducted To Determine Bat Concentrations On The Project Site.
A minimum of one full year (spring, summer, and fall) of surveys should be conducted on the project site to determine a baseline of bat activity;
- Surveys should incorporate appropriate technologies, including mist netting, acoustic detection, and springtime emergence radiotracking from nearby hibernacula;
- Such technologies should be deployed in all available habitats to analyze habitat use;
- If Indiana bat roost trees are located on the project site, such trees should be monitored for one year to determine the extent of Indiana bat use of those trees;
- Such surveys should be conducted by, or at a minimum should incorporate, independent scientists not retained as full-time environmental consultants.
The Following Monitoring And Carcass Searches Should Be Implemented During The ITP/HCP Process.
Beech Ridge Energy should conduct regular bird and bat carcass searches;
- Searches should be conducted on at least 50% of currently operating turbines to ensure an adequate sample size;
- Searches should be conducted on selected turbines at least every four days, but searches should be conducted at least every two days during the fall migration period when more deaths are known to occur;
- An appropriate carcass removal/predation study should be conducted to determine the number of bird and bat carcasses removed by terrestrial and avian predators;
- If any bat carcasses are found, they should be sent for external identification by Craig Stihler or similar qualified independent bat biologist;
- If any bird carcasses are found, they should be positively identified by a qualified ornithologist or institution (e.g., West Virginia Department of Natural Resources).
If FWS Concludes That The Level Of Take Will Not Jeopardize The Species, The Following Conservation Measures Should Be Implemented To Offset Takes In An HCP.
Beech Ridge Energy should provide adequate funding to qualified scientists and/or academic institutions to research white-nose syndrome (“WNS”) and to study how WNS in combination with wind turbine mortalities impacts bat population health, viability, dynamics, survival, and recovery potential;
Beech Ridge Energy should lease and/or purchase property near local Indiana bat hibernacula and plant potential roost trees to provide bats with alternate habitat that may reduce the use of roost trees at the project site and nearer the operational turbines;
Beech Ridge should purchase existing property that contains appropriate roost trees and, through conservation easements or similar instruments, ensure that such habitat is protected in perpetuity (at least until the project is no longer operational);
Any other conservation measures that may be appropriate and/or that are recommended by the Service and/or independent and qualified bat experts to offset anticipated Indiana bat deaths and injuries should be considered.
If FWS Concludes That The Level Of Take Will Not Jeopardize The Species, The Following Post-ITP Monitoring and Carcass Searches Should Be Implemented.
The ITP should require a minimum of three years of post-ITP monitoring, with the possibility of extending such monitoring, depending on the number of documented bird and bat deaths, and, in particular, Indiana bat deaths;
- Carcass searches should occur on at least 50% of operating turbines;
- In Year 1, carcass searches should occur at least every three days, reduced to daily searches during fall migration, unless the previously conducted carcass removal/predation study indicates that more frequent searches are necessary;
- After Year 1, a searcher efficiency should be established based on Year 1 data, and a per-species mortality estimate should be determined (triggering adaptive management regimes if mortality rates meet or exceed levels set in the ITP);
- Areas immediately adjacent to turbines should either be planted in short grass, or covered with gravel, making carcass identification more feasible;
- Turbines selected in Year 1 should, to the extent practicable, come from different areas and turbine lines within the project;
- Carcass searches will continue in Years 2-3, but the sample size and frequency should be dependent on the findings of Year 1 and on the carcass removal/predation study previously conducted;
- Because bats move frequently, a selected turbine in a given year should be monitored for that entire year because of geographical movement;
- If any bat carcasses are found, they should be sent for external identification by Craig Stihler of the West Virginia Department of Natural Resources or similar qualified independent bat biologist, and if any bird carcasses are found, including birds potentially protected under the ESA or the MBTA, such carcasses should be positively identified by a qualified ornithologist.
If An ITP Is Granted, It Should Contain The Following Post-ITP Operational Constraints.
An appropriate cut-in speed, to be determined based on the best available peer-reviewed scientific evidence, should be implemented in spring, summer, and fall during nighttime hours to minimize bat mortalities.
If An ITP Is Granted, It Should Require The Following Post-ITP Adaptive Management Measures.
In the event that Beech Ridge Energy exceeds the incidental take number authorized by the Service in an ITP, if granted, or in the event of unreasonably high bat or bird mortality in general, Beech Ridge Energy should be required to implement further operational constraints to reduce bat and bird mortality (i.e., curtailing all operation during nighttime hours in the fall migration period, adjusting operational times and turbine speed during bat and bird migrations, or modifying cut-in speed as recommended above).
We look forward to working cooperatively with both Beech Ridge Energy and the Service in creating an ITP/HCP that meets the statutory muster of the Endangered Species Act, while also allowing the production of renewable energy in Greenbrier County to move forward in a sustainable and responsible manner. Please let us know if you would like to discuss these recommendations, or the basis for them, at you convenience.
William S. Eubanks II
Eric R. Glitzenstein
Counsel for Plaintiffs Animal Welfare Institute and David Cowan
This article is the work of the author(s) indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.
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