dck20110211110303 Violations of the Endangered Species Act, Migratory Bird Treaty Act, and Bald and...

8/7/2019 dck20110211110303 Violations of the Endangered Species Act, Migratory Bird Treaty Act, and Bald and Golden Eagl

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Katherine A. Meyer 8Eric R. GlitzensteinHoward M. CrystalWilliam S. Eubanks IIJessica Almy

Meyer Glitzenstein& Crystal1601 Connecticut Avenue,N. W,Suite 700Washington,D.C.20009-1063Telephone (202) 588-5206

www.meyerglitz.comFax (202) 588-5049

February 9, 20 1 1

Bv Certified MailHieronymus NiessenNedPower M ount Storm LLC5 160 Parkstone Drive, Suite 260Chantilly, VA 20151-3813Carter M. Reid, General CounselDominion Virginia Power120 Tredegar StreetRichmond, VA 232 19

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Albert M. T. Finch, AttorneyShell Wind Energy Inc.150 N. Dairy AshfordBuilding C - 3rd FloorHouston, TX 77079Brian Miller, General CpunselAES Corporation4300 Wilson Boulevard, 11th FloorArlington, VA 22203Ronald Gould, Acting DirectorUnited States Fish & Wildlife Service1849 C Street, N.W.Washington, DC 20240Kenneth Salazar, SecretaryUnited States Department of the InteriorWashington, DC 20240~ - 1849 C Street, N.W.

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Re: Violations of the Endangered Species Act, Migratory Bird Treaty Act, and Baldand Golden Eagle Protection Act in Connection with the Mount Storm and AES NewCreek W ind Power FacilitiesOn behalf of Friends of Blackwater and the Allegheny Front Alliance, we are writing to urge

the companies developing and operating the Mount Storm and Ne w Creek wind power facilities,and the U.S. Fish and Wildlife Service (FWS or Service), the federal agency entrusted withenforcing the Endangered Species Act, 16 U.S.C. $ 1531 et seq., (ESA), the Migratory BirdTreaty Act, 16 U.S.C. $5 703-1 1 (MBTA ), and the Bald and Golden Eagle P rotection Act, 16U.S.C. $ 3 668-668d (Eagle Act), to take concrete, expeditious measures to avoid, minimize,and mitigate these projects impacts to wildlife. As exp lained in detail below, we are veryconcerned that these wind power facilities are now violating or will soon violate these importantfederal wildlife statutes, resulting in the needless loss of wildlife, when regulatory m echanismsand emerg ing technologies exist to greatly minimize and mitigate such adverse environmw.&leffects. m s s

BACKGROUNDA. Relevant Statutes

A number of federal environmental laws apply to wind power facilities thand/or kill wildlife, including endangered bat species, migratory birds, and beagles. Thus, wind power facilities must be designed and operated to comply mfRh sudTlavWandto avoid unnecessary harm to wildlife.

1. Endangered Species ActCongress enacted the ESA to ensure that endangered species are treated with an abundance

of caution, with federal agencies working to halt or reverse their declines, whatever the cost.TVA v. Hill, 437 U.S. 153, 174, 184 (1978). Under the ESA, the FWS must afford species listedunder the A ct the highest of priorities. Id.at 174; accord Animal Welfare Inst. v. Beech RidgeEnergy LLC, 675 F. Supp. 2d 540 ,543 (D. Md. 20 09) (Beech Ridge) (The text of the Act aswell as its legislative history unequivocally demonstrate that Congress intended that protection ofendangered species be afforded the highest level of importance.).

Section 9 of the ESA prohibits any person from taking any member of an endangeredspecies. 16 U.S.C. $ 1538(a). The term take is defined broadly to include harass, harm,pursue , hunt, shoot, wound, kill, trap, capture, or collect. Id.$ 1532(19). The FWS has furtherdefined harass to include an intentional or negligent act or omission which creates thelikelihood of injury to wildlife by annoying it to such an exten t as to significantly disrupt normalbehavioral patterns, including breeding, feeding, or sheltering. 50 C.F.R. $ 17.3. In addition,harm is defined to include significant habitat modification or degradation where it actually

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kills or injures wildlife by significantly impairing essential behavioral patterns, includingbreeding, feeding or sheltering. Id.

Section 1 0 of the ESA provides a limited exception to the otherwise strict prohibition againstthe take of an endangered species. Pursuant to section 10 , the FW S may issue a permit allowingan entity to take a listed species where such taking is incidental to, and not the purpose of,carrying out of an otherwise lawful activity. 16 U.S.C. $ 1539(a)(l)(B). An applicant seekingsuch an incidental take permit (ITPyY)must subm it a detailed conservation plan describing ,among other things: (1) the im pacts of the proposed taking; (2) procedures the applicant will useto mitigate, monitor, and minimize such impacts; (3) an exp lanation of why there are no feasiblealternatives to the proposed taking; and (4) information establishing that sufficient funding existsto implement the plan. Id.$1539(a)(2)(A); 50 C.F.R. Q 17.22. The FWS has published a step-by-step guide for landowners developing a section 10 conservation plan, also known as ahabitat conservation plan (HCP). See FWS & National Oceanic & AtmosphericAdministration Fisheries Service, Habitat Conservation Planning Handbook (1996). Without anITP, anyone who undertake s activities that are likely to take m embers of listed species, or whoauthorizes such activities, 16 U.S.C. Q 1538(g), are subject to criminal and civil federalenforcemen t actions, as well a s civil actions by citizens for declaratory and injunctive relief. See16 U.S.C. $ 1540.

The impact of wind energy facilities on wildlife is a serious issue because wind turbines killand harm several species of wildlife, including species listed as endangered under the ES A, suchas Indiana bats and Virginia big-eared bats. In Beech Ridge, Judge Titus of the District Court forthe District of Maryland e xamined the potential conflict between two federal policies relevant towind energy projects, one favoring the protection of endangered species under the ESA, and theother encouraging deve lopmen t of renewable energy resources, and observed that [tlhe twovital federal policies at issue in this case are not necessarily in conflict so long as the projectdeveloper obtains take authorization in accordance with the ESA . Beech Ridge, 675 F, Supp. 2dat 582-583. He admon ished, [tlhe development of wind energy can and should be encouraged,but wind turbines must be good neighbors. Id.

2. Migratorv Bird Treaty ActThe M BTA prohibits the killing of listed birds without the authorization of the Secretary.

Enacted to fulfill the United States treaty obligations, the M BTA provides that [u]nless andexcept as permitted by regulations made as hereinafter provided in this subchapter, it shall beunlawful at any time, by any m eans or in any manner, to pu rsue, hunt, take, capture, kill, attemptto take, capture, or kill , . , any m igratory bird. 16 U.S.C. Q 703(a) (emphasis added). The

Available at, http://www.fws.gov/endangered/hcp/hcpbook.html3
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Secretary is authorized to permit the killing of birds otherwise protected by the MBTA whendoing so would be compatible with the migratory bird conventions. Id. 0 704(a).

The MBTA authorizes the Secretary to determine when, to what extent, if any, and by whatmeans the take of protected birds is compatible with the terms of the related treaties. How ever,the FWS has not promulgated a regulation which expressly authorizes the issuance of permitsallowing incidental take from industries like wind power development. Consequently, incidentaltake of birds listed under the MBTA is a violation of the Act, for which the FWS can imposecriminal violations, regardless of intent. Thus, the FW S has the authority to pursue anenforcement action against wind energy developers for violations of the MBTA . See FWS, DraftLand-Based Wind Energy G uidelines at 2 (Feb 2011) (Wind Turbine Guidelines). Further,private parties may pursue civil claims against federal agencies for violations of the MBTAunder the Administrative Procedure Act. 5 U.S.C. $0 701-706 (APA); City of Sausalito v.ON eill, 386 F.3d 1186, 1204 (9th Cir. 2004); Hum ane SocY of the U.S. v . G l i ch an , 217 F.3d882 ,888 (D.C. Cir. 2000).

3. Bald and Golden Eagle Protection ActThe Eagle A ct provides that [w]hoever . . . shall knowingly, or with wanton disregard for

the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter,transport, export or import, at any time or in any manner , , . any golden eagle, alive or dead, orany part, nest, or egg there of. . . shall be fined not more than $5,000 or imprisoned not morethan one year or both. 16 U.S.C. 0 668(a). Violato rs are also subject to civil penalties. Id.0 668(b).

Implementing regulations allow the FWS to issue permits to take eagles otherwise protectedunder the Eagle Act in certain situations where the take is associated with but not the purpose ofthe activity. 50 C.F.R . 0 22.26(a). For a permit to be issued, the take must be com patible withthe preservation of the bald eagle and the golden eagle ; necessary to protect an interest in aparticular locality ; and practically unavoidable. Id. Further, some courts have held that theEagle Act, which is worded similarly to the MBTA, allows private plaintiffs to pursue claimsunder the APA against federal agencies for failure to adhere to the Eagle Act. See, e.g,, Jaeger v.Cellco Partnership, 2010 WL 965730 (D. Conn. Mar 16 ,20 10 ); Humane SOCYof the U.S. v.Lu-ian, 76 8 F. Supp. 360 (D.D.C. 1991).B. Species Affected by the Projects at Issue

1. Indiana BatsThe FWS listed the Indiana bat as endangered in 1967 under the predecessor to the current

Endangered Species Act. 32 Fed. Reg. 4001 (Mar 11 , 1967). Even after the Indiana bat waslisted, its range wide population declined precipitou sly. According to the FW S,[elven with the

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discovery of many new, large hibernacula, the range wide population estimate droppedapproximately 57 percent from 1965 to 2001. See FWS, Indiana Bat (Myotis s o d a h ) DraftRecoverv Plan: First Revision at 33 (2007 ) (Indiana Bat Recovery Plan).2 The 2007 rangewide population estimate was approximately 468,000 Indiana bats. FWS, Ind iana Bat Five-YearReview 12 (Sept 2009).3

The W est Virginia population of Indiana bat is critical to the species survival. SeveralIndiana bat hibernacula and Indiana bat maternity co lonies occur in West Virginia. Indiana BatRecoverv Plan at 23 ,28 . Indeed, Hellhole Cave in Pendleton County, West Virginia containsapproximately 12,000 Indiana bats and has been designated by the Service as critical habitat forthe species. In contrast to the generally declining range-wide population numbers, the WestVirgin ia population is faring better, increasing in size and now accounting for 3 percent of thetotal species population. & Richard A. Lamb ert, The Proposed New Creek Mountain WindProiects Proximitv to Regional Endangered B at Habitats And Possible C umulative Effects at(Jan. 29,2 009 ) (Attachment A). The positive population trend for Indiana bats in WestVirginia underscores this populations vital role in the species recovery.

Indiana bats begin to travel to their hibernacula in August and hibernate over winter. SeeCarol A. Peterson & Richard A. Lambert, The Potential Impacts of Wind Power Facilities on

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Rare and Endangered Bats at the Proposed Highland Ne w W ind Project Site 5 (Apr 11,2006),(Potential Impacts of Wind P ~ w e r ) . ~Once they em erge from hibernation for the spring andsummer, Indiana bats can migrate hundreds of kilometers from their hibernacula. Indiana BatRecoverv P lan at 44 (noting studies docum enting the distances traveled by Indiana bats duringmigration, including a study finding that twelve female Indiana bats migrated an average of 296miles, with a maximum migration o f 357 m iles); see also Potential Impacts of Wind Pow er at 5(noting that Indiana bats have been found to migrate 330 miles); J.E. Gardner & E.A. Cook,Seasonal and Geographic Distribution and Ouantification of Potential Summer Habitat 9-20(2002) (noting that banded Indiana bats have been found 325 miles away from hibernacula).They are known to fly ten to sixty miles in one night, and one female has been tracked movingthirty-five miles in approximately eighty-five minutes. Indiana Bat Recoverv Plan at 44.

Exacerbating the traditional threats to the species, such as conversion of forested land, treeharvesting, and the removal of dead trees, the F WS has recognized new grave threats to the

Available at,http://www.mcrcc.osmre.gov/MCR/Resources/bats/pdf/IN%2OBAT%2ODRAFT%2OPLAN%20apr07.pdf

Available at,http://www.Ews.gov/midwest/endangered/recovery/5yr_rev/pdfmJBA5Yr3OSept2009.pdfAvailable at, http://vawind.org/Assets/Docs/CommentsNHG~HNWD~O41107.pdf

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case - disproves that there is anything unique about Indiana bats that prevents them fromcolliding with wind turbines.

The threat posed by w ind power facilities is particularly co ncerning because huge numbers ofIndiana bats are now dying from White-Nose Syndrome (WNS). WNS has emerged as asignificant threat to bat populations. In some hibernacula, the FWS has reported mortality ratesof 90 percent or more. The effects of this disease, the cause of which is unknown, have beenobserved in West Virginia, and the neighboring states of Virginia, Pennsylvania, and Maryland.-See Lizzie Buchen, Disease Epidemic Killing Onlv U S . Bats, 463 Nature 144, 144 (2010). Infact, the West Virginia Department of Natural Resources has reported that WNS is present inHellhole Cave, West Virginias largest bat cave. Press Re lease, W.V. Dept of Natural Res. ,West Virginias Most Important Bat Cave Has White-Nose Syndrome (Feb 23, 2010).7 TheFWS biologists have cautioned that, if WN S is not contained, w ere going to see extinctions oflisted species, and some of species that are not even listed, see Tina Kelley, Bats Perish and NoOne Knows Why, N.Y. Times (Mar 25 ,200 8), which h as led to concern[s] about the continuingviability of the Indiana bat population in the Northeast. FW S, White Nose S vndrome in Bats(2008).8 This unprecedented threat to Indiana bats and other bats means that eliminating andmitigating additive sources of mortality (particularly from wind energy projects) is of especiallycritical importance.

2. Virginia Big-Eared BatsEven more imperiled than the Indiana bat, the Virginia big-eared bat is a subspecies of the

Townsend s big-eared bat (Corynorhinus townsendii). In West Virginia, the Virginia big-earedbats reside in five counties, including Grant County where the M ount S torm and AES N ewCreek projects are located. FWS Species Profile for Virginia Big-eared Bat. The Virgin iabig-eared bat resides in caves at elevations greater than 1500 feet throughout the year. FWS,Recoverv Plan for the Ozark Big-eared Bat and the Virginia Big-eared Bat at 13 (2007) (VBEBRecoverv Plan). l o Colonies often have roosts in multiple caves and move among roosts evenduring cold weather. Virginia big-eared bats have been documented migrating 40 miles betweencaves, and are known to forage mostly along forested edges. Id.at 14.

Virginia big-eared bats long have been restricted to relatively small areas, and are dependenton a few specific kinds of caves for hibernation and reproductive activity. Listing of Virginia

Available at, http://www.wdnr.gov/201 Onewd l Onews031.shtmAvailable at, http://www.fws.gov/northeast/pdf/white-nosefaqs.pdfAvailable at,http://www. fws .gov/ecos/ajax/speciesProfile/profile/speciesProfile.acti~n?spcode=AO80

lo Available at, http://www.fws.gov/ecos/ajax/docs/recoveryqlan/8405O8.pdf7
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birds protected by the MB TA are broad-winged haw k, red-tailed hawk, sharp-shinned hawk ,turkey vulture, warblers, red-eyed vireo, gray catbird, ovenbird, wood duck, cedar waxwing,Am erican redstart, common yellow throat, eastern wood-pewe e, gray-cheeked thrush, woodthrush, sw ainson's thrush, veery, yellow-bellied flycatcher, yellow-billed cuckoo, rose-breastedgrosbeak, ruby-crowned kinglet, golden-crowned kinglet, ruby-throated hummingbird, treeswallow , American crow , American robin, American w oodcock, chimney sw ift, scarlet tanager,field sparrow, and white-eyed vireo. Birds of all of the above mentioned species, among others,have been reported to be killed at the Mount Storm project site, and would be expected to bekilled at the AES New Creek site, which has similar topography.

Overall, wind turbines pose a serious threat to many protected bird species. In fact, theAmerican B ird Conservancy has reported that the FWS estimates that more than 400,000 birdseach year are killed by wind turb ines and that this figure is expected to rise significantly a s morewind power facilities become operational. See American Bird Conservancy, WindDevelopment Threatens Iconic American Birds (Dec 29 ,20 1 O).13

Golden eagles are protected both by the MBTA and the Eagle Act. In 2005, the NationalAviary began a golden eagle tracking study in West Virginia. The study has found that mostindividuals in the eastern North American population of golden eagles migrate through one ormore narrow (30-60 mile) bottlenecks in the mid-Appalachian mountains. These bottleneckshave also been identified as prime locations for wind pow er facilities. The size of the easternNorth A merican population o f golden eagles is small and therefore highly vulnerable todemographic perturbations. See Todd Katzner, National Aviary et al., Rapto rs and Wind EnergyDevelopmen t in the Central Appalachians: Where We Stand on the Issue, at 2 (Aug 200 8).'4Researchers involved in the study are concerned tha t even low levels of mortality from windpower facilities may be significant because golden eagles are long-lived and have lowreproductive rates. Id.at 2-3. Because of their demography, migratory and winter flightbehavior, and vulnerability to wind tu rbines, eastern golden eagles are considered to be the raptorspecies a t greatest risk of population-wide impacts from wind energy developm ent in theAppalachians. Id.at 3. Available monitoring data and modeling strongly suggest that theAllegheny Front, whe re the Mount Storm and AES New C reek projects are located, is a zone ofhigh risk for potential impacts to golden eagles. Id.Audubon Christmas Bird Count datasuggest that some regions of West Virginia including Gran t County, where the Mount Storm andAES N ew Creek projects are located, are important wintering areas for golden eagles, andimmature golden eagles also regularly summer in these areas. Id.

Ava ilable at, http://www.abcbirds.org/newsandreports/releases/101229 .htmll 4 Available at, http://www.aviary.org/cons/pdf/WindEnergyRapto rsWhitePaper.pdf

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C. The Mount Storm Wind Energy Projects Wildlife ImpactsIn 2003, the West Virginia Public Service Commission (PSC) granted NedPower Moun t

Storm LLC (NedPower) a conditional certificate to construct and operate the NedPower MountStorm Wind Energy Facility. The project is located in Gran t Coun ty, in northeast West Virginia,on a forested ridgeline in the Allegheny Front. The Alleghen y Front is part of the Appalachianmountain range and is an important migration corridor for several bird and bat species. SeeLetter from Jeffrey K. Tow ner (FWS) to Jessica L. Yeager, Potesta & Associates (NedPowersenvironmental consultant) (Aug 30,2002) (Attachment B).

Even before the project was approved by the PSC , the FWS had informed NedPower that awind power facility at this location could harm the Ind iana bat and th e Virginia big-eared bat,and that lrleaardle ss of the ex istence of a Tslection 7 nexus, any proiect proponen t or landowneris required under Tslection 9 of the ESA to ensure that their actions do not result in unauthorizedtake of a federally listed species withou t special exemp tion. Attachm ent B (emphasis added).Hav ing evaluated the adverse impact of the Mount Storm project on wildlife after thecommencement of its operations, the FW S now believes that there is no question that many batsand birds are being killed and estima tes 37,875 dead birds and 174,200 dead bats over 25 years(the lifespan of the project). See Email from Jim Zelenak (FW S) to Laura Hill (FWS) (Mar 16,20 10) (Attachment C) (emphasis added).

The certificate issued by the PS C is contingent upon the NedPow ers compliance with theESA, the M BTA, and the National Environmental Policy A ct, 42 USC Q 432 1 et seq. Thecertificate also requires the fulfillmen t of several conditions intended to m inimize impacts onmigratory bird and bat species and to ensure compliance with the ES A and the MBT A, includingconducting post-construction studies for a three year period to assess the bird and bat mortality atthe project site, and addressing any concerns raised by the FWS. See Comm ission Order, CaseNo. 02-1 189-E-CN, NedPower Mount Storm LLC, at 116, 119-123 (Apr 2,200 3) (PSCOrder).15 We understand that to date, four monitoring reports hav e been provided to the PCSand the FWS for 13 operational weeks between July -October 2008 (Fall 2008 Report); 9operational weeks between March -June 2009 (Spring 2009 Report); 12 operational weeksbetween July -October 2009 (Fall 2009 Report); and 4 operational we eks between April -July 2010 (Spring 2010 Re port). The Fall 2008 Repo rt and the Fall 2009 Report indicate thatduring a limited period of time (12 - 13 weeks), approximately 2 1 1 bats were killed by theproject. On the whole, despite the short duration of the study periods (ranging from 4 to 12weeks), the post-construction m ortality studies confirm the d eaths of 553 bats and 131 birds over38 weeks (between Fall 2008 and Spring 2010) when the turbines were in operation.

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l 5 Available at,http://www.psc.state.wv.us/scriptslordersNiewDocument.cfm?CaseActivityID=102728&Source= Archives.

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These figures are significant especially because th e mortality rates appear[] to beunderestimated. Email from Laura Hill (FWS) to Manue la HUSO,Consulting Statistician,Oregon State University (July 7,2 01 0) (Attachment D). Further, the developer of the MountStorm project has failed to estimate the total annual bird and bat m ortality rate which is crucial toassess the actual extent of bat and bird mortality and to identify effective operational chang es toreduce the mortality rate.Bryanne Tait (environmental consultants of NedP ower) (July 30, 2009) (Attachment E) (Weare concerned that cumu lative mortality rates for bats and birds may be high, necessitating theneed for curtailment studies (such as seasonal feathering) to reduce mortality.) (emphasisadded); see also W ind Turb ine Guidelines at 42 (emph asizing the need to determine overallfatality rates and fatality patterns). Although the FW S has emphasized the need to extrapolateannual bird and bat mortality an d accordingly recom mended calculating the estimated totalannual mortality rate for all towers in the project, Ned Pow er has failed to do so, claiming thatdue to the limited study period covered in the report, results of the studies are relevant only tothe [num ber of wee ks studied] and should not be considered annual estimates of impacts orrepresentative of other seasons. Spring 2009 Report at 1; Fall 2009 Report at 1; Spring 2010Report at 20 ; see also Attachment D ([Dlespite having collected 4 seasons of baseline dat a onfully operational turbines (spring and fall seasons during two years), the consultants have notprovided an estimate of mortality for the entire project. Instead they say the results are onlyvalid for each 12 -week study period and should not be considered estimates of impact orrepresentative of other seaso ns.).

Letter from Deborah C arter (FWS) to Robert Williams and

Furthermore, the FWS h as also expressed a concern abou t the formulas used by NedPow ersconsultant to estimate mortality rates, the samp le size of the plots studied, and the frequency ofcarcass searches. See generally Email from Manuela HUSO,Consulting Statistician, Oregon StateUniversity to Laura Hill (FWS) (July 7, 2010) (Attachm ent F) (Im afraid the equation [forcalculating bird and bat mortality] [that NedPowers consultants] provide is unintelligible, w hichis a bit disconcerting in and of itself.). These concerns about the methods used by NedPowersenvironmental consultant to calculate bird and bat mortality are significant because they indicatethat the data reported by Ne dPow er, which represent alarmingly high bird and bat mortality, areunderestimates of the actual (higher) mortality rates. Therefore, NedPower is likelyunderestimating the risk of taking federally listed bat and bird species and discounting the urgentneed to undertake preventive measures to address the actual h igh bird and bat mortality at theproject site.

In addition, although NedP owers environmental consultan t conducted limited acousticAnaE3at surveys to identify bird and bat species in the project area, it has failed to utilize theacoustic data to identify specific species, and has instead m erely categorized bats observed intobroad acoustic categories based on high or low frequency calls. The FWS has called for species-specific analyses of the acoustic bat surveys,=Attachment E, but NedPower has apparentlyfailed to engage in these analyses, even though species-specific data would be instrumental in

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ascertaining the presence of listed species at the project site. See Beech Ridge, 675 F. Supp. 2dat 570-575 (In one study acoustical detectors were m ore than twice as effective a s mist nets inidentifying Indiana bats using the study area. Id.at 571 (internal citation omitted)).

We understand that discussions between the FW S and NedPower about the se rious adverseimpact of the project on wildlife are ongoing, however we do not believe any con crete steps foradopting and implementing additional mitigation of risk to bird and bat species have been agreedupon.D. The AE S New Creek Wind Projects Risks to Wildlife

We also have a serious concern with the New Creek Mountain development proposed byAES , which, like Mount Storm, is slated for a forested ridgeline that provides habitat to a richarray of resident and migratory wildlife, including at least 64 species of breeding b irds andseveral bats, and is in close proximity to Mount Sto rm. The FWS has described the proposedproject as located along ridgelines considered to be part of the Allegheny Front, a know n majormigration corridor for birds and bats. Letter from Deborah C arter (FWS ) to Trevor Peterson(Stantec Consulting) (Sept. 30,2009) (Attachment G).

Am ong the species occurring at the site of the proposed New Creek facility are bald andgolden eag les, other raptors and migratory birds, and federally endangered Indiana bats andVirginia big-eared bats. Not on ly do bald and golden eagles migrate through the site, but there isa bald eagle nest approximately 10 miles away, large numbers of migrating golden eagles havebeen observed within 5 miles, and the majority of raptors observed within the 1-kilometer surveyarea were flying within the rotor-swept zone. The FWS has described the location of theproposed N ew Creek facility as a zone of high risk for potential impacts to golde n eagles fromwind turbines. Id.at 7 . The FWS has also expressed concern about the prbjects effect on othermigrating raptors and other birds. Finding that data from 2007-08 radar studies indicated ahigher level of passage at New Creek Mountain than in most other documen ted radar surveys, aswell as a higher average rate of birds flying at altitudes whe re they could be harm ed by w indturbines, the FWS cautioned that the site may present an elevated risk of mortality. Whendiscussing raptors specifically, the FWS cautioned that the d ifferences in rapto r migrationobserved at New Creek and a nearby wind power facility highlight[ed] the need for multi-yearpre-construction surveys and raise concerns that the New Creek project may post as high a risk toraptors as documented in the Pinnacle study area [w here there is a high level of raptormigration]. Id.at 6.

Further, the FWS believes that endangered Indiana and Virginia big-eared bats may use thearea for migration or foraging. Mist net surveys at the project site have caught a large number ofnorthern myo tis, which use many of the sam e food sources as Indiana bats, display many of the

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same foraging characteristics, and have many of the same behaviors as Indiana bats.16 As notedpreviously, bat populations are already in decline due to anthropogenic sources of mortality andWNS, and any additional mortality could have devastating effects.17 The FWS cautioned that thecumulative effect of multiple wind pow er facilities in the region could red uce the overall batpopulations during the duration of these facility operations (typically 25 to 30 years). Id.at 10.Moreover, the FWS has w arned that if AES fails to minimize and m itigate the predicted 78,250to 112,125 bat deaths that will result from the New Creek wind po wer facility, it could lead topopulation level impacts to many species of bats. Attachment A at 18.*

While AES has conducted some pre-construction studies of the site - including visual andradar surveys, mist netting, nest surveys, and acoustic monitoring - the FW S has expressedconcerns about the length and duration of this research. In comm ents pursuant to the ESA, EagleAct, and MBTA on the consultants pre-construction reports for New Creek, the FWS stated thatdata from a single year gave only a snapsho t of wildlife use of the s ite, which was insufficient topredict bird and bat mortality:

[Blecause of variability in population s and detection rates due to a variety of localand regional factors, one year of data does not necessarily reflect overall speciescomposition or abundance at a site. Thus, the S ervice recommends m ultiple yearsof pre-construction surveys in order to establish a more complete data set.

-Id. at 4.Obtaining accurate information on the wildlife use of the project site is particularly important

given the biological and legal significance of the species known or believed to use the forestedridgeline, which would be put at risk by the construction and operation of wind turbines.Moreover, because this project would have additive effects to other wind power facilities in thearea, it is incumbent upon AES to collect data sufficient to gauge this projects cumulativeeffects.

l 6 The northern myotis also belongs to the same genus (myotis) as the Ind iana bat and littlebrown myotis. The three species tend to be associated, and thus the FWS has used the littlebrown myotis as a surrogate for the Indiana bat at other wind power facilities.l 7 In a draft biological opinion on another Appalachian wind power project in Pennsylvania, theFWS found that the threat posed by WNS significantly reduced the number of bats the windpower facility could take without leading to maternity colony extirpation over time. FWSDraft Biological Opinion for the Shaffer Mountain Wind Farm (Nov. 2010) (excerpts atAttachment H), This biological opinion also uses little brown bats as surrogates for Indianabats.l8 For reasons explained below, even these numbers may be inaccurate, and the harm to batspecies may be even more grave.

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Information available to us through public records requests does not provide a clear pictureof what measures AES plans to take to m inimize and mitigate bird and bat mortality at the site.We are aware, however, of an October 4,2010 letter from AES to the FWS that indicates thecompanys intent to provide an avian and bat protection plan comparable to that proposed for anearby project called Laurel Moun tain, which raises a significant concern that the com pany w illnot comply with the ESA. The Laurel Mountain plan does not indicate that the company intendsto seek an ITP for listed species prior to construction and o peration of the wind turbines at LaurelMountain. Instead, the plan only contemplates applying for an ITP, with a related HCP, after aprotected species has already been taken, which is a patent violation of the ESA. See BeechRidge, 675 F. Supp. 2d at 580-581. Similarly, we are not awa re that AES is planning to applyfor a permit under the Eag le Act.

DISCUSSIONA. Federally Listed Species are Being Taken and Will be Taken in the Future by the

Mount Storm Project in Violation of the ESA and the MBTA.We have over the past several years expressed concern abo ut the adverse impact of the

Mount Storm project on wildlife. See, eg., Notice Letters from Friends of Blackwater andDefenders of Wildlife (February 3,20 03), and Friends of Blackwater et al. (May 8,20 08) toNedP ower and FW S. In response to our concerns, NedP ower had previously stated that it hasbeen working actively.. . to deve lop and implement a positive w ildlife compliance strategy.Letter from Sam Kalen, VanNess Feldman (Attorney for NedPowe r) to Eric Glitzenstein, MeyerGlitzenstein & Crystal (June 25,2 008 ). Now that the projects operations are well underway,and the figures and estimates of wildlife casualties are available, it is evident that there is aninadequate conservation and compliance strategy in place an d we therefore continue to beextremely concerned about the take of protected bat and bird spe cies in violation of section 9 ofthe ESA and the MBTA , as well as the projects overall impacts on birds and bats. Weunderstand that there are ongoing discussions between the FW S and the developer about theunacceptable impact of the project on wildlife, however we do not believe the agency and thedeveloper have agreed to any concrete steps for adopting and implementing additional mitigationof risk to bird and bat species.

Despite the clear risk that the wind power facility is taking endangered Indiana and V irginiabig-eared bats in violation of section 9 of the ESA, the project continu es to operate withou tobtaining an ITP under section 10 of the ESA, an avenue that a federal court has decreed to bethe only way in which the Co urt will allow the [wind energy] project to continue. BeechRidge, 675 F. Supp.2d at 580. Further, in light of the documented and ongoing killing of a largenumb er of bird species protected under the MBT A, the developer is repeatedly and continuouslyviolating the MB TAs prohibition against the take of migratory birds.

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We are also concerned, a s explained previously, that although the developer has conductedbird and bat mortality studies, these studies are lacking in thoroughne ss and rigor, which ca llsinto question NedPowers decision to not seek an ITP for the project. See Beech Ridge, 675 F.Supp. 2d at 570 ,n. 37 (observing in the context of ESA violations on the ground of bat mortalitydue to wind turbines, [tlhe rigor of [bat presence] surv eys is relevant to determine the weightthe C ourt must accord the survey results - results which suggest, if credited, that it is less likelythat there are Indiana bats present at the [wind energy] projec t site).

Taking into a ccount the continuing risk to protected w ildlife, there is a critical need for thedeveloper to apply for an ITP under the ESA and for the FW S and NedPower to quickly identifyeffective mitigation measures to significantly reduce bat an d bird mortality.

1. The Mount Storm Project is Likely Taking; and Will Continue to Take EndangeredIndiana Bats and V irginia Big Eared Bats.

It is inevitable that the M ount Storm project is likely taking and w ill take Indiana bats andVirginia big-eared bats by killing, injuring, wounding, and/or harassing members of thosespecies via turbine collision and barotrauma, in light o f seve ral grounds explained below,including the on-going killing of various species of bats over a short period of time at the Moun tStorm project site, and the high estimates of overall bat m ortality calculated by the F WS.Further, the take of these species by the project has not been permitted by the FWS through theITP process under section 10 of the ESA. Conseq uently, NedPowe r is also in violation of thePSC O rder which is contingent upon the projects compliance with the ESA. See PSC Order at120-121,

Even before NedPow er comm enced construction of the project, the FWS had informedNedP ower that the project would potentially impact endangered bat species such as the Indianabat and the Virginia big-eared bat. See Attachment B. Despite this information, NedP owerrefused to obtain an ITP. Since NedPower completed construction of the Mount Storm projectand began project operations, bat acoustic surveys conducted at the site indicate a high level ofbat activity. & Fall 2008 Report at 32-34; Fall 2009 Report at 35-36. The FWS estimates thatthe M ount Storm project will kill approximately 174,200 bats over the lifespan of the project,confirming that there is no question many bats and birds are being killed .. . [we] [nleed toswitch over to operational changes (cut-in speed adjustment) and studies designed to determineefficacy of those changes. Attachment C. In the span of 12-13 weeks in the fall season alone,nearly 21 1 bats of various species were killed by the projec t, including myotis species closelyrelated to the Indiana bat. & Fall 2009 Report at 24; Fall 2008 Report at 22. As explainedpreviously, these figures, although substantial, may underestim ate the actual bat mortality levels,thus cou nseling strongly in favor of adopting immediate mitigation measures and beginning theITP process rapidly as the project is likely taking Indian a bats and Virginia big-eared bats, andwill inevitably do so in the future in the absence of an effective protective schem e.

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Regard less of the fact that NedP ower has not yet reported killing Indiana or Virginia big-eared bats, NedPow er should nonetheless be required to obtain an IT P because there is evidencethat protected bat species are present at the project site and the project is reasonably certain toeither have already taken or imminently harm such species in violation of section 9 of the ESA.-See Beech Ridge, 675 F. Supp. 2d at 563-64.

There is substantial evidence confirming the presence of Indiana bats at the project site. Batacoustic surve ys conducted by NedP ower for a limited period of time in the fall season alone at afew turbines indicate that more than half of the total bat calls recorded were high frequency batcalls. See Fall 2008 Report at 32-34; Fall 2009 Re port at 35-36. The fact that a substantialpercentage of the bats in the project area are high frequency bats is cause for concern becauseIndiana bats come under the category of bat species that call in high frequency. Despite theFWSs requests that it do so, NedPowe r has not analyzed the acoustic data to identify individualbat species. We strongly recommend that the FWS obtain species-specific data from NedPowerand should NedPower continue to dec line the FWSs second request, the FWS m ust makeapprop riate arrangements w ith NedP owe r to obtain copies of the acoustic data so that anindependent expert can analyze them for the agency.

Further, in each of the four limited post-construction studies conducted, NedPower hasreported the killing of a large number of little brown bats, a species of myotis that has similarphysical and behavioral characteristics as Indiana bats. During mist net surveys conducted as partof the Appalachian Corridor H study, of which eleven of the sites sampled were within 5 miles ofthe M ount Storm project site, 35 bats were documented in the sites near the Mount StormProject, of which 28 bats were from the myotis species of bats. See West, Inc., BiologicalAssessment for the Federally Endangered Indiana Bat (Myotis sodalis) and Virginia Big-earedBat (Cow norhin us townsendii virainianus):NedPower Mount Storm Wind Proiect, GrantCoun ty, West Virginia 10-12 (Oct 2003). The little brown bat lmyotis mortality rates aresignificant not only relative to the individual species, but also for estimating the impact o f theproject on the endangered Indiana bat species. Employing little brown bats as a surrogateindicator spec ies to estimate the take of Indiana bats is a practice employed by the FWS andfederal courts alike. See, e.g., Attachm ent H ([Little brown bats] [are] an appropriate surrogatespecies because the Indiana bat and little brown bat are closely related, use similar foraginghabitats, have overlapping ranges, hibernate in the same caves, and have similar physicalcharacteristics.); Beech Ridge, 675 F. S upp. 2d at 578. The Beech Ridge case is instructivehere because in that case the Court held the developer liable for taking Ind iana bats in violationof section 9 of the ESA despite the absence of docum ented Indiana bat casualties at the project:

Defendants also point out that no Indiana bat has been confirmed dea d.. ..However, other Myotis species have been reported killed at wind power projects.Plaintiffs experts opined tha t biologically, Indiana bats are no less vulnerablethan other Myotis species to turbine collisions and barotraumas. The Court agreeswith these very credible expert opinions. Plaintiffs have presented compelling16


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ongoing bat impacts and m ust apply for the ITP in o rder to avoid liability under section 9 of theESA. See eg ., Wind Turbine Guidelines at 58-60 (recomm ending certain operational measuressuch as changes in blade but-in speed; blade feathering or idling; seasonal shutdowns orshutdowns of an entire facility; using best practices published by the A vian Pow er LineInteraction Comm ittee; minimizing lighting on turbines; and turbine setback s from ridge edges).Just as the court held in the Beech Ridge case, the project may no t proceed until and unlessNedPowe r takes appropriate steps to reduce the risks of listed species impacts and to obtain anITP from the FWS - the legally mandated process for addressing whether and how the takes ofendang ered species cah be authorized. Pursuant to the ITP process, a variety of measures tosignificantly reduce bat mortality could be adopted. For example, in the draft biological opinionfor the Shaffer Moun tain wind farm, the FWS required that the developer adopt a tiered approachto implementing protections for Indiana bats, setting forth clear instructions as to the reasonableand prudent m easures (,RPMYy)necessary to minimize bat mortality and when each m easure istriggered. See Attachment H. The biological opinion states:

The adap tive managem ent strategy will reduce the risk of turbine-relatedmortality. Level 1 of the strategy includes the adoption of a 5.5 m / s turbine cut-inspeed du ring times of the year when Indiana bats are present to reduce fatalities toa level that is RPM-compliant. If the per turbine bat fatalities and proportion oflittle brown bat fatalities approximate the m ean w e used to derive fatalityestimates for the Shaffer Mountain W ind Farm, we would expect Level 1 of theadaptive managem ent strategy to reduce Indiana bat fatalities to a level that meetsor is close to meeting the RPM. However, if take of Indiana bats or the surrogateindicator species (little brown bat) exceeds that w hich is RPM compliant, theadaptive m anagement strategy sequentially proceeds to additional measures thatwill further reduce the risk of fatalities, until Indiana bat fatalities are RPMcompliant.

-Id. at 2.Further, the Shaffer Mountain draft biological opinion also requires a plan for surveying ,

monitoring, and reporting on the Indiana bat population w ithin and adjacent to the project area inorder to ensure com pliance with the established level of incidental take; to assess theeffectiveness of the R PM s; and to determine the need for adjustments to turbine operations inaccordance with the adaptive management strategy. Id.at 6; see also Wind Turbine Guidelinesat 12. Thus, Sha ffer Mountain provides an example of certain RPM s that can be adopted by thewind farm developer through a formal consultation process under the ESA, such as the ITPprocess. Mea sures such as the RPMs recommended in the biological opinion for the Sh afferMountain wind power facility are relevant for the M ount Storm project as well, and prov ide anexample of certain RPMs that can be adopted by NedPower through a formal process under theESA for authorizing incidental take.

2. The Mount Storm Pro-iect is Taking Migratory Birds Protected under the MBT A.19


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The M BTA p rohibits killing listed birds without the authorization from the Secretarypermitting such killing. 16 U.S.C. rj 703. The FWS estimates that 37,875 birds will be killedover the lifespan of the project. Attachm ent C. The limited post-construction mortalitystudies conducted by NedPower reveal that over only 38 operational weeks when the studieswere conducted (between Fall 2008 and Spring 20 lo ), nearly 131 birds were killed, almost all ofwhich are protected under the MBTA . Avian species protected under the MBTA that have beenkilled by the M ount Storm wind power facility include broad-winged hawk, red-tailed hawk,sharp-shinned hawk, turkey vulture, red-eyed vireo, wood duck, cedar waxwing, Am ericanredstart, and several warblers, including, the comm on yellowthroat.

In light of this incontrovertible evidence indicating the ongo ing killing of several species ofmigratory birds protected under the MBTA , NedPower is in violation of the MB TA and musturgently adopt effective measures to prevent and m itigate the bird mortality a t the project.Further, NedPower is also in violation of the PSC Order which is contingent upon the p rojectscompliance with the MBTA . See PSC Order at 120-121,

Under the M BTA th e developer can be held strictly liable for the incidental take of m igratorybirds, and it is irrelevant whether there is any intention to kill birds. See, e.g., United States v.Apollo E nergies, Inc., 61 1 F.3d 679, 684 (10th Cir. 2010) (the [MB TA] does not supply a m ensrea requirement.); United States v. Manning, 787 F.2d 43 1 ,4 35 (8th Cir. 1986) (it is notnecessary to prove that a defendant violated the [MBTA] w ith specific intent or guiltyknowledge.). Additionally, where a project developer could have, but did not, take reasonablecare to preven t avian mortality, it may be held liable under the MB TA. See, e,g., United Statesv. FM C Corn. 572 F.2d 9 02 ,90 6 (2d Cir. 1978) (a person failing to act when he has a duty to doso may be held to be criminally liable just as one wh o has acted imprope rly) (affirming criminalconvictions under the MBTA for bird deaths related to pesticide use); United States v. A ~ o l l o ,61 1 F.3d at 684 (failure to bird-proof oil drilling equipment is actionab le under MBT A); UnitedStates v. Moon L ake Elec. Assn, 45 F. Supp. 2d 1070 (D. Co . 1999) (defenda nt electricalassociation held liable under the MBTA for the killing of protected birds resulting from itsfailure to install protective equipment on its power po les),

The FW S has the authority to prosecute wind energy developers for the incidental take ofprotected migratory birds.Guidelines stress that the FWS should consider a developers efforts to reduce bird mortality bycomplying with the G uidelines when it exercises its prosecutorial discretion. Id.Accordingly,there can be no doubt that the FWS could wield its enforcement authority a s leverage to ensureimplementation of additional protective measures for m igratory birds.

Wind Turbine Guidelines at 6. Indeed, the Wind Turbine

Indeed, in the context of the M ount Storm project, the FWS has stated that its Office of LawLetter from Thom as Chapm an (FWS) to Hieronymus

Enforcemen t will enforce the MB TA a gainst companies that take m igratory birds withoutimpleme nting conservation measures.Niessen, NedPower (Aug 7,20 08) (Attachment I). The FWS has maintained that post-

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construction assessments [for the Mount Storm project] need to move beyond counts of deadbirds and bats in order to begin identifying effective operational parameters that avoid andminimize bird and bat mortality. Attachment E. In fact, the FWS has recommendedoperational changes in the Mount S torm project, such as shutting or feathering down windturbines from mid-July to mid-October in the early evening hours to substantially reducemortality, while reducing energy production by only 7 percent. Id.

We understand that the developers of Mount Storm have been in consultation with the FWSover measures to avoid and minimize bird mortality. How ever, despite such extensiveconsultations since 2002, in light of the extensive ongoing killing of protected wildlife, noeffective measures to reduce bird mortality have been adopted for the Mount Storm project. Ifthe developers of the Mount Storm project do not expeditiously adopt and implement effectiveconservation measures to avoid and minimize bird mortality, the FWS should make clear that itwill enforce the MBTA by prosecuting NedPower for repeated violations at the Mount Stormproject site.23B. The Proposed AES New Creek Project Will Result in the Takin< of Protected Species inViolation of the ESA, the Eagle Act and the MBTA.

23 Unfortunately, there are indications from the wind power industry that the FWS has adopted ageneral policy of non-enforcement of the MBTA with regard to wind power projects. See LauraJ. Beveridge, The Migratorv Bird Treatv Act and Wind Development, available at,http://www.stoel.com/files/StoelO509.pdf,(Despite the specter of MBTA liability for incidentaltake, the wind industry can take som e comfort in the fact that criminal enforcement of the act issolely the province of the federal governm ent.. . While such discretion does not remove liabilityunder the MBTA, it can provide wind developers with some assurance that avian mortalityattributab le to turbines will not be criminally prosecuted.). It should be noted that while theFW S does possess enforcement discretion in deciding whom to prosecute, its non-enforcementdecisions are reviewable by courts if the agency has consciously and expressly adopted ageneral policy that is so extreme as to amount to an abd ication of its statutory responsibilitiesand if the agency engages in a pattern of non-enforcement of clear statutory language. Hecklerv. C hanev, 470 U.S. 821, 833 n.4 (1985) (citing Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.1973 )); see also id.at 839 (Brennan, J., concurring) (It may be presumed that Congress does notintend administrative agencies, agents of Congress own creation, to ignore clear jurisdictional,regulatory, statutory, or constitutional comm ands[.]). To avoid any potential litigation overwhether the FWS has such a policy of non-enforcement as applied to the wind power industry,the FW S should make clear to companies such as NedPower that, unless steps are taken toreduce unacceptable migratory bird impacts, appropriate enforcement actions will beforthcoming. If such steps are not taken, the FWS should initiate enforcement action in the samemanner that it would for other significant MBTA violations. An ongoing failure to do so willexpose the FWS to liability for policy of MBTA non-enforcement in the context of wind pow erprojects.

21
http://www.stoel.com/files/StoelO509.pdfhttp://www.stoel.com/files/StoelO509.pdf


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construction stud ies urged by the FW S if it decides to con tinue to pursue the development of awind power facility at New Creek Mountain.

As explained previously in the context of the Mount S torm project, the developer should notdiscount the possibility -which is supported by many of the data from preliminary studies - thatdeveloping a wind pow er facility at this particular location would pose an exc essive risk toVirginia big-eared bats or Indiana bats, particularly given the species precarious populationstatus. A t minimum, additional surveys would play a crucial role in micro-siting, i.e.,determining where turbines should be located to minim ize bat and bird impacts. See WindTurbine Gu idelines at 56 (If a proposed wind de velopm ent is poorly sited with regard towildlife effects, the most important mitigation opportunity is largely lost and the remainingoptions can be expensive, with substantially greater environmental effects.).

If such pre-construction surveys indicate that this location w ould allow for developm ent of awind pow er facility without excessive wildlife im pacts -which is far from certain, given thepreliminary data -th en AES m ust set forth a clear plan for minimizing and mitigating bird andbat mortality at the site before construction begins. As explained above, an avian and batprotection plan com parable to that proposed for a nearby project called Laurel Moun tain wouldnot comply with the requirements of the ESA. Where there is an indication that the site is likelyto take endangered or threatened wildlife species, or harm golden eagles, the company must seekincidental take authorization prior to construction and operation of the wind power facility.

Given the serious concerns that the FWS has expressed over the future take of golden eaglesand ESA-listed bat species at the proposed New Creek Mountain wind power facility, we believethat if AES does decide to go forward with constructing a wind power facility at this location, itmust pursue incidental take authorizations prior to construction. The approach proposed by thedeveloper in the Laurel bird and bat protection plan - upon w hich the New Creek M ountain birdand bat protection plan would be based - is insufficient to comply w ith the Eagle Act and theESA, since the plan only contemplates applying for a permit to take endangered species after anindividual of that species has been killed. Both the Eag le Act and the ESA are intended to beprotective statutory mechanisms, and both now provide mechanisms to allow individuals andcompanies to apply for permits to authorize the take of protected species incidental to lawfulactivities. Take permits under both statutory and regulatory schemes are prospective, requiringapplication and authorization prior to killing or harming protected species, and allowing the FWSto take enforcement action if take exceeds the amou nt set forth in a permit. See. e.g., 50 C.F.R.Q 22.2 6(d)(l) (encouraging early coordination with the FWS on activities that may result in theincidental take of eagles).

Applying for permits prospectively is the only lawful approach, as this project is likely to killor harm golden eagles and Indiana and Virginia big-eared bats, for many of the sam e reasons thatthe Mount S torm facility is likely taking these species now, and both the Eagle Act a nd the ESAhave prohibitions on take that would apply absent valid permits. Further, applying for these

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permits is the only approach that ensures the conservation of these species. Und er the ESA, theFWS may only issue permits wh ere the take will not jeopardize the species; similarly, the EagleAct regulations require that the take be compatible with the preservation of the bald eagle andthe golden eagle. Id.fj22.26(a). These requirements ensure that the amount of take issustainable, particularly given the cumulative effects of NedPower and other nearby projects.Permits under both statutory frameworks also allow the FWS to impose RPM s to reduce take andrequire mitigation for the take that is authorized, thus minimizing and negating, to the extentpossible, the harm from the activity. For example, as noted previously, the draft biologicalopinion for the Shaffer Mountain wind power facility requires the developer to adopt theadaptive management strategy to minimize bat mortality. &Attachment H. At a m inimum,before any construction proceeds, similar measures sho uld be considered for the N ew CreekMountain facility, pursuant to an ITP process.

For the reasons discussed ab ove in relation to the NedPower Mount Storm wind powerfacility, AES must also fulfill its responsibility to minimize take at New Creek Mountain asmuch as possible to prevent violations of the MBTA . At a minimum, in addition to pre-construction surveys as recommended by the FW S, the developer should adopt temporary,seasonal shutdowns during periods of peak bird use, such as certain times of day or weathercond itions during migration. In other locations, economic analysis of such temporary, seasonalshutdowns has shown that they result in a negligible loss of income to the developer. See, e x . ,Jonathan A. Lesser, Critical Analysis of the Barclays Capital Letter Opinion Regarding ProposedOperating; Restrictions for the Cape Wind P roiect to Comply w ith the Endangered Species Act(April 20 10) (Attachment J).

Moreover, as the developer of the nearby Laurel Mountain wind power facility, AES itselfstands in a unique position to make a meaningful contribution to reducing cumulative impacts tomigratory birds by taking protective measures at both facilities, and by applying data collected atone facility to the other via adaptive management. AE S should plan the placement of turbinesbased on the best information about factors that increase risk of mortality for migratory birds,and once the facility is operational, reduced cut-in speeds, temporary shutdowns, and any otheravailable mechanisms should be employed to reduce mortality.

If AES does not take all available precautions to avoid and reduce mortality of migratorybirds, the FWS has the responsibility and duty to enforce the M BTA as previously discussed.-See supra at 19. To be clear, enforcement of the MBTA is not limited to actions that areintended to take migratory birds. Elsewhere, the FWS has brought enforcement actions againstdefendants where the take of migratory birds was incidental to otherwise lawful activities,including energy generation. In those cases, the FWS has explicitly argued, and courts havefound, that the protections of the MBT A do not require intent to harm or kill birds. See, e.g.,United States v. Moon Lake, 45 F. S upp. 2d 1070 (holding that the MBT A prohibits theunintentional killing of protected birds by power lines); United States v. Corbin Farm Serv., 444F. Supp. 5 10, 532-36 (E.D. Cal. 1978) (holding that the MBTA prohibits the unintentional killing

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of protected birds by pesticide poisoning); see also Sen. Rep. No. 99-445 at 16 (1986), reprinted-in 1986 U.S.C.C.A.N. 61 13, 6128 (explaining that an amendment to the MBTA requiringscienter for felony violations does no t prevent application of a strict liability standard in othercontexts).

CONCLUSIONAt both Mount Storm and New Creek, we are deeply concerned that the FWS and the

developers are failing to translate factual findings of significant wildlife impacts and risks intoeffective measures to avoid and minimize bird and bat mortality. In the absence of acomprehensive compliance and enforcement mechanism taking the place of the current ad hocsystem of consultation between the FW S and the developer, the taking of,listed species at thesesites, although avoidable, appears to be inevitable and in violation of federal laws. Congress hasprovided for such an enforcement m echanism in the form of the permitting process under theESA and the Eagle Act; however, NedP ower and AES have failed to pursue this mandatoryprocess. In the Beech Ridge ca se, where the wind power project developer did not apply for theITP under the ESA, the court held that [b]ecause entirely discretionary adaptive managementwill not eliminate the risk to Indiana bats, the Court has no choice but to award injunctiverelie f.. ..while this Court canno t require [the developer] to apply fo r or obtain [the ITP], it is theonly way in which the C ourt will allow the [I Project to continue. Beech Ridge, 675 F. Supp.2d at 5 80-81, The court concluded that the only avenue available to the developers to resolvethe self-imposed plight in which they now find themselves is to do belatedly that which theyshould have done long ago: apply for an ITP. at 583. Here too, pursuing an ITP for thetake of endangered bats is the only appropriate course of action if these projects are to proceed.Additionally, the FWS m ust ensure that the developers of the Mou nt Storm and the AES N ewCreek projects adopt and implement appropriate conservation measures to avoid, minimize andmitigate mortality of migratory birds protected under the MBTA, and in the event of their failureto do so, the FWS must take appropriate enforcement action against the liable parties.

Accordingly, we request that you document, as soon as practicable, concrete actions that theFW S and/or developers of the M ount Storm and AES N ew Creek projects intend to take toaddress the concerns raised in this letter, including any decision as to whether take authorizationwill be pursued under the ESA and Eagle Act. We also request information on what measures toavoid, mitigate and minimize bat and bird mortality the developers of the Mount Storm and AESNe w Creek projects have ado pted, in consultation with the FW S.

Please do not hesitate to contact us if you wish to discuss this matter o r have any questionsconcerning this letter. We would like to work with the FW S and the companies to address theserious wildlife impact, and threats, posed by the Mount Storm and AES New Creek projects,although we will consider alternate avenues of ensuring compliance with federal wildlifeprotection laws if necessary.

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Jessica AlmyEric Glitzenstein

c c ;Sam KalenCounsel for NedPow er M ount Storm LL CVan Ness Feldman, P.C.1050 Thomas Jefferson Street, NW7th FloorWashington, DC 200 07Email: [email protected] A. Albert, ChairmanWest Virginia Public Service Commission201 Brooks S treetP.O. Box 812Charleston, WV 25 323Sandra Squire, Executive SecretaryWest Virginia Public Service Commission201 Brooks StreetP.O. Box 812Charleston, WV 253 23Michael Bean, CounselorUnited States Department of the Interior1849 C Street, N.W .Washington, DC 20240Email: [email protected] Arroyo, Assistant Director for Fisheries & Habitat ConservationUnited States Fish and Wildlife Service1849 C Street, NWWashington, DC 202 40Deborah Carter, Project Leader

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Attachment ARichard A. Lambert, The Proposed New Creek Mountain Wind Projects Proximity toRegional Endangered Bat Habitats And Possible Cumulative Effects (Jan. 29,2009)


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IntroductionAES W ind LLC (AES) is proposing to construct approximately 48 wind turbines alongan eight-mile stretch of New Creek Mountain in Grant and Mineral Coun ties, We stVirginia. Th e New Creek Mountain Wind Pro ject (here after, the Project) will have anapproxim ate output of 120 megawatts (TRC , 2008).Eight of the 14 bat species known to occur in West V irginia were documented (Stantec2008b) in the Project area. None of the eight docum ented species were Federally listedas Rare, Threatened, or Endangered (RTE). Thou gh no RT E bats were found at theProject site, the Project lies within the migratory range of documented habitat of twoendangered bats, Virginia big-eared bat and Indiana bat (Stantec, 20 0 8 ~ ). The Easternsmall-footed myotis, listed by the state of West Virginia as Critically imperiled (S l), wasfound inhabiting the Project site in large numbers (Stantec, 20 0 8 ~) .Bat mortalities by wind turbines in the northeast and in the imm ediate region have beendocum ented as the highest in the world (Arnett 2005). This bat/wind turbine interactionraises concern about the wisdom of building a wind facility in the Allegheny High lands,which is an endangered bat recovery area.The purpose of this paper is to provide the Allegheny Front Alliance:

A regional perspective on the endangered bat habitat within m igratory range ofthe proposed Project.Explain why there was a lack of endangered bat captures during mist-net surveys.Highlight the potential for impact to RTE species and common bats.Highligh t the expected high mortality.Show the cumulative effects of multiple w ind projects in the area.Previous Studies at New Creek Mountain Wind ProjectBelow are several studies which have been performed for the New C reek Mountain W indProject:Fall 2007 Bird and Bat Migration Survey Repo rt: Visua l, Radar, and Acoustic BatSurveysfor the New Creek Mountain Project, W est Virginia. March 2008. StantecConsulting. 2008a.Spring, Summ er, and Fall 2008 Bird and Bat Migration Survey Report: Visual, Rad ar,and Acoustic Bat Surveysfor the New Creek Mountain Project, West Virginia. December2008. Stantec Consulting. 2008b.New Creek Mountain Bird and Bat Risk Assessment: A Weight-of-EvidenceApproach toAssessing Risk to Birds and Bats at the Proposed New Creek Mountain Project, W estVirginia. Decem ber 2008. Stantec Consulting. 2008c.

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Eastern Small-Footed Myotis Bat M igration an d Foraging BehaviorTh e following is taken from the V irginia Fish and W ildlife Information Service (2006 ),except where noted: Eastern Small-footed Myotis bats feed on mosquitoes, small beetles,true bugs and ants and forage am ong trees and over brush in early evening. Little tonothing is know n of the migration of this species, so seasonal occurrence is hard topredict. It is suspected though that they do not migrate fa r and their only known winterhabitats are caves and mines. Their numbers may be underestimated because the speciesenters hibernacula late, leaves hibernacula early, an d com monly hibernates out-of-sight.They enter into hibernation in November and m ay le ave in late January or early February.They are known to resume hibernation if temperatu res drop again. Single pups are bornMay to July. In sum mer, this species molts and they are known to roost on the groundunder rocks, in crevices and occasionally in buildings and under tree bark, though theyhave been reported hanging in the open in West Virginia. Nursery colonies of 1 2 to 20bats have been found in buildings. They are found in wild, heavily forested, mountainregions, and frequently but not exclusively in caves in hemlock forests. They are alsoknown to inhabit rock falls, mines and rock crevices associated with hemlock forestregions.Migratory Range of Rare, Threatened, and Endangered Cave BatsKurta and Rice (2002) reported that Indiana bats appear to migrate as much as 530 km(329 mi) from their wintering to summering range. In a study conducted in Virginia, lessthan 70 miles from t he Project site, McShea and Lessig (2006), found that female Indianabats traveled 4 to 80 km (2 to 29 m i) from their winter caves to summ er habitats. In a2005 study the Pennsylvan ia Game Com mission tracked an Indiana bat 92 miles, fromPennsylvania to C arroll County, Maryland, less than 105 miles from the project site.These studies reveal a wide variance in migratory distances. As a result the VirginiaHighlands Grotto will look at all the known Indiana bat habitats within the migratoryregion.Barbour and Davis (1969) reported a mean max imum migratory range of 64 km (40 mi)for VBEB s between their summ er and winter caves in West Virginia. Adam et al.(1994) reported V BEB maternity sites located within a 2.2 km radius of a largehibernaculum in Kentucky. Stantec (2 0 0 8 ~ )stated, V irginia big-eared bats typicallymigrate less than 20 km (12mi), but provided n o references for the distance. Againthese studies reveal a w ide variance in migratory distances.As noted earlier little is known about the migration habits of the Eastern Sm all-footedMyotis. What is that known is this species is found in the Project area in great numbers(Stantec, 2 0 0 8 ~ ).With maximum migration distances between 40 miles for the VBEB and 329 miles forthe Indiana bat, an d Virginia, Maryland and Pennsylva nia e30 miles from the project, thisis no longer a local or state issue but an interstate or regional issue. Minimum migratory

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distances should not be the only numbers considered to weight the effects of the Projecton RTE bats. Stantecs 30 miles should not be the only distances used (Stantec, 2 0 0 8 ~ ) ~

ID Distance Anchor Roost Type1 25.44miles South Cave

Methods

Population Designation

The Virginia Highlands Grotto conducted a literature search for cave closures due toendangered bats on the VAR Limited Access Caves list. Data gaps were filled viarepeated requests to the West V irginia Division of Natural Resources (W VDN R),Virginia Department of Game and Inland Fisheries (VDGIF), the Pennsylvania GameCommission (PGC ), the West V irginia Speleological Survey (HC 68, Box 13A,Frankford, W V 24938) and the V irginia Speleological Survey (587 Limestone Lane,Burnsville, VA 24487). Th e locations of the south, mid, and north anchor points of theturbine string were obtained from maps within the application submitted by AES NewCreek, LLC. to the West Virginia Public Service Comm ission. Distances from roostlocations were calculated from all three-anchor points using TOPO! mapping software.Tables 1, 2, and 3 show the shortest distances from the roost locations to the Project site.Indiana Bat (Myotis sodalis) ResultsCounties Inhabited by Indiana BatsStantec (2008~)reported that three nearby West Virginia Counties have both summer andwinter reports for the Indiana bat and that most of the eastern half of the state has winterrecords. With a maximum range of up to 330 miles the Virginia Highlands Grotto(VHG ) believes that to begin to understand the effects of a comm ercial wind facility onthis species we must look at Indiana bat occurrences in a regional setting. Map #1 sh owsthe Projects location in relationship to approximately 310 miles of the Indiana batsrange within this region. This reveals that we are not dealing with jus t the eastern half ofWest Virginia but additional counties within Virginia (Rick Reynolds, VDGIF, personalcomm unication), Maryland (The Nature Conservancy, 2008) and Pennsylvania(Pennsylvania Game Com mission, 2009b).Indiana Bat Caves and Den TreesStantec (2 00 8~ )also reported that three current Indiana bat hibernaculum are reportedwithin 4 8 km (30 miles) of the Project. The Virgin ia Highlands Grottos Endangered BatDatabase, prepared in part from an untitled list of Indiana bat caves supplied by the WestVirginia Division of Natural Resources, reveals ten hibernacula within 30 miles, ratherthan the three reported by S tantec (Map #2 & Table 1). This discrepancy places intoquestion the reliability of Stantec to conduct a thoroug h data search. Placed in a regiona lsetting there are 55 records of Indiana bats within 141 miles of the project site (Table 1)and 62 within 304 m iles.

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I 2 125.96 I South I Cave I Transient I

242526272829

63.16 South Cave 20 or more64.32 South Tree65.06 South Tree65.26 South Tree65.44 South Cave 20 or more68.98 South Tree

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Importance of Peripheral Indiana Bat PopulationsThe core range for the Indiana bat is in Indiana, Kentucky and Missouri (Menzel et al.,2001). Despite almost 40 years of protection, their core range populations continue todecline (Clawson 2002). This decline makes the pei ph era l populations in West Virginiaimportant because the West Virginia Indiana bat popu lation is actually increasing.Currently, the periphe ral population of 15,700 bats in West Virginia accounts for over3% of the entire Indiana bat population (C. Stihler, 2008, em ail to R. Lambert, VHGEndangered Bat D atabase Manager).The main hibernaculum for the Indiana bat in West Virginia is Hellhole (Cave), locatedapproximately 33 miles from the proposed southern most turbine on New CreekMountain. Hellho le is the largest bat hibernaculum in the east. In addition toapproximately 200,000 com mon bats, the cave is home fo r over 12,500 Indiana bats.Figure 1 shows the increase in Indiana bat population coun ts in Hellhole for 22 years,demonstrating that this region is a recovery area for the Indiana bat.

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Hibernating VBEB - composite of fourmajor caves8 0 0 0 n I7 0 0 06 0 0 05 0 0 04 0 0 03 0 0 02 0 0 01 0 0 0

0 8 6 8 9 9 1 9 3 9 7 1 3 5 7

Figure 2. Provided by WVDN RVirginia Big-eared Bat Sub PopulationUnlike the Indiana bat, whose range en compasses over half of the United States theVBEB is concentrated in small, isolated areas. Th e total VBEB population isapproximately 13,600 (USFWS 2000). The popu lation is divided into threeEvolutionary Significant Units (ESU). An ES U is defined as a phylogeographicsubdivision that has a recent comm on history, is genetically cohesive, and is isolated,lacking gene flow with other populations. Acco rding to WVDN R, the WV ESU includesthe bats in Grant, Pendleton, Tucker, (and probably Hardy, Preston, Rando lph, coun tiesin West V irginia and Highland & Rockingham c ounties in Virginia). Th e majority of theVBEB population resides in the WV E SU (NEES 2005). The Southwest Virginia ESU iscomposed of the VBEB s in Southw est Virginia, the New R iver Valley of WV , andNorth Carolina. The third ESU is composed of those VB EBs in Kentucky (Piaggio, atpress; C.Stihler, 2008, email to R. Lamb ert, VHG Endangered Bat Database Manager).The approximately 7000 VBEBs in W est Virgin ia represent the largest populationconcentration with the highest genetic diversity (NEES 2005). Yet this population isstruggling to increase (Stihler, 2005). Stantec (20 08 ~)reported that T&E bat specieswould be potentially impacted with low magnitud e. The VHG believes, that due to theisolation and low population increase of this sub-population, any loss represents a highmagnitude of risk to the species. Losses in the population can t be made up from theESUs in Southwest Virginia and Kentucky but m ust come from within the WV ESU.

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Eastern Sm all-footed Myotis (Myotis Zeibii) Results

ID Distance1 Within Project

Counties Inhabited by Eastern Small-Footed Myotis BatsThe Eastern Small-footed Myotis bzt (Myotis Zeibii) is listed as Rare in West V irginia bythe West Virginia Natural Heritage Program (USF'WS, 2006b; WVDN R, 2006). Twentycounties in West V irginia are known to contain Eastern Small-footed Myotis bats(ESFM )(WVDN R, 2006). Additionally, 12 Virginia coun ties (VDGIF, 2006), 14Pennsylvania counties (Pennsylvania Game Commission, 2009a), and two Marylandcounties (The Nature Conservancy, 2008; Pennsylvania Game Commission, 2005),contain Eastern Small-footed Myotis bats. (See Map #5.)

Anch or Roost Type PopulationSouth Non-Cave

Eastern Small-Footed Myotis Bat Caves

234

29 caves within 50 miles of the Project are know n to harbor Eastern Small-footed Myotisbats (see Map #6). Until the Stantec (2 0 0 8 ~ )report the largest Eastern Small-footedMyotis bat record known to the VHG was in H ighland County, Virginia in HupmanSaltpeter Cave, app roximately 70 miles to the south. Populations reached 64 ind ividualsin 1992 and 32 were reported in 2 005 (GW JNF, 2005).

Within Project North Non-Cave7.85 miles South Cave 19.26 South Cave

13141516

30.23 South Cave31.24 South Cave32.2 South Cave32.97 South Cave

I 5 I 18.51 I South I Cave

1718 33.78 South Cave36.26 South Cave19-202136.32 South Cave37.5 North Cave42.8 South CaveI 22 142.89 1 South 1 Cave

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68 199 South69 201 South70 205 South

Possible Impacts to Eastern Small-Footed Myotis BatsBecause little is known of the migration and foraging habits of the Eastern Small-footedMyotis bat it is difficult to determine the impacts that the Project may have on thespecies. Stantec (2 0 08 ~ )reported that the ES FM were the second m ost frequentlycaptured species on the project site. Th e 61 Eastern Small-footed Myotis bats captured(Stantec, 2008b) represent the largest known popu lation in the VH G database. We agreewith Stantecs (2008b) suggestion that the Eastern Small-footed Myotis is present in thearea year round and that similar habitats will be created by the construction of the Projectattracting more ESFM (Stantec, 20 0 8 ~ ).We disagree with Stantecs assessment (Stantec,2008 c) that large mortality rates cannot be expected. Even low mortalities within a smallpopulation can translate into a large mortality rate.

Cave 2-3Cave 1Cave 1-3

Problems With Stantecs ConclusionsLack of Information Regarding Endangered Bat FatalitiesStantec (2 00 8~ )reported New Creek M ountain is within the range of the endangeredIndiana myotis and VBEB but that no fatalities of these species have been documented atwind facilities. The VH G takes issue with this. Just because no fatalities have beenreported does not mean they have not happened.WV DNR , in their September 19, 2006 letter, in the Liberty Gap W ind Force, LLC case,stated, Although no endangered bats have been observed killed as a result of impactswith wind turbines, we cannot assume that such an event has not occurred. The USFW S(letter September 28, 2006, same case) points out that the fact that no endangered batspecies have been identified to date as having been killed at a wind turbine in the U S . isnot evidence that they are not being killed. The USFWS indicates that because numbersof endangered species are small (due to their endangerment), it may take longer to findendangered bat fatalities (June 30, 2006, same case). Stantec also acknowledges thiswhen they reported, the lack of confirmed cases of collision mortality may also berelated to the low population sizes of these and other rare bat species (Stantec, 2 0 0 8 ~ ) .Arnett et al. (2008) point out that few facilities a re operating within the range ofthreatened and endangered species.In a study in Pennsylvania, the Pennsylvania Game comm ission looking at the role ofhighway traffic on bat mortality did find an Indiana bat killed by an automobile. PGCtechnicians originally failed to identify the bat as an Indiana bat and reported noendangered species killed. Subsequent DNA tests w ere required before the PGC couldconclude that an endangered species had indeed been killed. Given these facts, it is not

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only possible, but also likely that Indiana bats have been killed by wind turbines andthose deaths have gone undetected (Gannon, 2008 ).Lack of Endangered Ba t Captures During Mist-Net SurveysStantec (20 08 ~)reported that the lac k of captures of Indiana and VBEB s at New CreekMountain after extensive m ist netting surveys strongly indicates the absence ofsummer colonies of these species. Gannon (2006) points out, Two sites inPennsylvania where Indiana bat calls were identified via bat detectors were nettedintensively in order to confirm the presence of that species at those locations. I wassuccessful at capturing Indiana bats a t both sites. At the first site it took 9 nights ofnetting (with 10 nets set, a total of 90 net nights). At the second site it took 23 nights ofnetting before I captured an Indiana bat (with 10 nets set, a total of 230 net nights).Because this was a rare endange red species, in an area at the fringe of its range, thelikelihood that we would capture it was reduced. Thus the netting effort at those sitesneeded to be increased before I was able to confirm the species was present.The 150 net nights (Stan tec 2008b, 2008c), for the entire project site, does not representan extensive mist-netting survey. Stantecs assertion that the lack of captures indicatesno risk of impacts to threatened and endangered spec ies lacks creditability since; 1) NewCreek Mountain is within m igratory range of the most importan t Indiana bathibernaculum in the East, 2 ) The Project is on the northern border of the most importantVBEB ESU, and 3) the largest known E SFM popula tion in the region has beendocumented at the Project site.It is also possible that the Stantec studies, beginning April 22 (Stantec, 2008b), missedthe Virginia Big-eared bat migration. One maternity cave in Pendleton County, WestVirginia has had the closing date moved from April 15 to April lstafter noticing that th efemale bats were in the cave by April 15th (Rick Lam bert, personal observation). It isalso possible that S tantec missed the female Indiana bat m igration since the females leavethe hibernaculum first, in late March and early April (Virginia Fish and W ildlifeInformation Service, 2006).Potential for Impact to RTE Species

Stantec (2008~)admits that since Indiana bats migrate up to 331 miles, they might occurwithin the Project area and that Virginia big-eared bats might also be found in the Projectarea. Stantec also admits there is a potential for impacts to occur, but with a lowmagnitude. The VHG takes issue with this because the USFWS (2008) expressed itsconcern with the Project due to its location within the Allegheny Front, a known ma jorbird and bat migration corridor. The USFWS also warned AES that Indiana bats mayuse the area, may be impacted by construction activities, and may be at risk of co llisionwith the proposed Project.In their June 30, 2006 letter (Liberty Gap case) they wrote of the monitoring studies atthe Mountaineer site, It is impossib le to make a conclusion that turbines do not kill

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federally-listed bats based on one sh ort season of monitoring. In fact, the number of batskilled there show s a high likelihood that endangered bats are also likely to be killed.How ever, because of their low numbers due to endangerment, it is likely to take a longerperiod of time to detect death of Indiana bats. Th e US Fish and Wildlife Serv ice wenton to write, In consideration of a high likelihood of use of the project area by Indianabats, Virginia big-eared bats, and othe r bats, the Service concludes there is a reasonablecertainty of bat mortality from operation of the proposed wind power project.Expected MortalityIn its Exec utive Summary (Stantec 2008c), S tantec wrote, Overall, the impac ts to birdsand bats expected at New Creek Mountain are not unique to this Project, but are thosegenerally associated with wind pow er in the eastern United States. Stantec also wrote,Potential ecological impacts are expected to be within the range of those documented atexisting facilities in the east. The six studies conducted in the Appalachians are listed inTable 3. Mortality rates vary from 20 .8 to 63.9 bats per turbine per year and the averagemortality is 35 (n=35.17 ) bat deaths/turbine/year. Each of these studies have differentlengths,

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