December 16, 2009

Honorable John R. Griffin Re: Judge Titus Decision

Secretary
Department of Natural Resources
Tawes State Office Building C4
580 Taylor Avenue
Annapolis, Maryland 21401-2397

Dear Mr. Secretary:

In light of the recent federal court ruling on endangered species, I am trying to understand
the Department’s position on current Maryland law which exempts any industrial wind
plant project from comprehensive environmental review process (PSC CPCN hearing
process) if its generating capacity is limited to 70MW or less. You will recall that the
Department opposed the passage of this law, requested by Synergics President Wayne
Rogers after he withdrew his initial 40MW proposal targeting the Roth Rock ridge in
Garrett County when faced with endangered species conditions he found objectionable.
Under SB 566, which passed the General Assembly in 2007 and was signed by Governor
O’Malley, Rogers reapplied for an exemption, again for a project along Roth Rock, this
time requesting to build a 50MW plant. Synergics has argued that the PSC cannot
consider in its “exemption” determination any issue other than “grid safety and
reliability.” Current law, as I understand it, precludes any comprehensive environmental
review, and thus the conundrum facing the Department.

Does the Department agree that it no longer has any role to play in protecting threatened
and endangered species as these might be affected by the installation and operation of
70MW or smaller wind projects? Will it continue not to challenge the current PSC
interpretation that, because it believes the Maryland General Assembly’s intention was to
rescind any socio-economic or environmental oversight, it cannot deny permission to a
developer of a 70MW or smaller industrial wind plant— even if the wind energy
project might result in harm to species listed by DNR as endangered and thus heretofore
protected under the State’s Nongame and Endangered Species Conservation Act?In the
case of the Mourning Warbler at Roth Rock, for example, a massive wind project could
indeed remove this state endangered species from its only reliable nesting site in the state.

Interestingly, in Synergics’ original application for its Garrett County wind plant (Case
Number 9008), the Department filed extensive comments which expressly asserted and
explained that the Mourning Warbler, protected under Maryland’s Nongame
and Endangered Species Conservation Act, would be harmed. Under the re-filed
“exemption” application (Case Number 9191), there is no filing from the Department and
no mention of the endangered Mourning Warbler issue. As you know, I filed a request
for internal DNR staff documents under the State’s Public Information Act, and was told
that such records were “pre-decisional” and therefore not made available to me.
It may be that by ignoring the implications of federal law for Maryland, not to mention
state law, the Department is at risk for failing to implement and enforce the law. As your
expert staff knows well, Golden Eagles and other species of concern are placed at risk by
any massive industrial facility placed high above the ridgelines of Maryland’s mountains.

Sincerely,

John N. Bambacus