USFWS Pinnacle 93009 Letter USWF | Bald Eagle | Bird Migration

United States Department of the4i

FISH AND WILDLIFE SERVICE " West Virginia Field Office 694 Beverly Pike Elkins, West Virginia 26241 September 30, 2009

Mr. Paul Kerlinger Curry & Kerlinger, LLC Post Office Box 453 Cape May, New Jersey 08212 Mr. Mike Sponsler BHE Environmental 5300 E. Main Street, Suite 101 Columbus, Ohio 43213-2580 Re: Comments on Wildlife Studies for the Pinnacle Wind Power Project, Mineral County, West Virginia, (PSC Case # 09-0360-E-CS)

Dear Mr. Kerlinger and Mr. Sponsler: The U.S. Fish and Wildlife Service (Service) has reviewed the wildlife risk assessments conducted in support of the proposed Pinnacle Wind Power Project (Pinnacle) near the town of Keyser in Mineral County, West Virginia. The proposed wind facility will consist of twentythree (23) turbines (418-feet or 1,379-meters tall at the top of rotor-swept area) aligned along the ridge of Green Mountain, a section of the Allegheny Front. The elevation of the project area varies from 2,514 to 2,851 feet (766 to 869 meters) above mean sea level. The proposed project includes construction of 0.75 mile (1.2 kilometers) of transmission line. Between 102 to 245 acres (41 to 99 hectares) of land will be cleared of vegetation for construction of the turbine towers, transmission lines, and other infrastructure. Following construction, most of these cleared areas will be allowed to regenerate. The comments we provide below pertain to the Habitat Characterization and Assessment of Rare, Threatened, and Endangered Species for the Pinnacle Wind Farm (BHE Environmental 2009a); the Avian Risk Assessment for the Pinnacle Wind Power Project (Kerlinger 2009); and the Bat Risk Assessment: Pinnacle Wind Farm (BHE Environmental 2009b). We submit these comments and recommendations pursuant to the Endangered Species Act of 1973 (ESA), as amended (16 U.S.C. 1531 et seq.), the Bald and Golden Eagle Protection Act (BGEPA) (16 U.S.C. 668 et seq.), and the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.).

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009

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The Service identified several species and groups that may be impacted by the construction and operation of the Pinnacle wind power facility in a letter to Ms. Becky Braeutigam dated April 13, 2007. The letter noted that the Federally-listed endangered Indiana bat, the bald eagle, migratory birds (including bald and golden eagles), and unlisted migratory bats may be affected either directly or indirectly by activities associated with the construction and operation of the facility, including: behavioral effects, habitat removal and fragmentation, increased human activity, maintenance of rights-of-way and roads, and collisions with turbine blades, among others. The habitat characterization and assessment and the avian and bat risk assessments for the proposed Pinnacle Wind power project describe the potential for impacts to these identified species using the survey information, data from other wind power facilities, and literature reviews. The Pinnacle risk assessments are based on a weight-of-evidence approach using relative measures (low, medium, and high) to determine the level of impact a particular stressor (i.e., construction activities, collision) will have on a species or group. This is an acceptable approach that has been used by the Service and other Federal agencies to describe risk. As further described below, we disagree, however, with conclusions drawn from these analyses. Habitat Characterization and Assessment The habitat characterization and assessment for rare and Federally-listed species on the Pinnacle study area described the habitat of the endangered Indiana bat on site as "minimal" based on previous and ongoing disturbances on site and a minimal amount of preferred habitat in the turbine corridor (i.e. forested riparian areas and caves). However, the executive summary of this report noted that in the summer of 2008, a substantial portion of the 245-acre (98-hectare). project area was clear-cut. The area of timber cut was not stated but we assume it was on the order of roughly 62 acres (25 hectares) during the time of year when bats were active. [The report refers to a total 102-acre (41-hectare) limit of disturbance for the project, and refers to 40 acres (16 hectares) of young timber remaining on site. By subtraction, one can infer that roughly 62 acres (25 hectares) were cut.] We cannot tell from the scant details in the habitat characterization report, but it is possible that the ridgeline where the project is to be located originally contained mature trees which may have . provided higher levels of suitable roosting and foraging habitat for Indiana bats prior to the clear-cutting. The bat risk assessment for Pinnacle (BHE 2009b, page 9) describes the ridgetop of the Pinnacle project area as relatively mature forest (presumably prior to clear-cutting by the landowner). The bat risk assessment also indicates that the proposed Pinnacle project prior to clear-cutting was expected to remove 0.04 percent of the forest in the county; and is therefore not a significant loss (BHE 2009b, p. 3). However, the proper context for comparison is not the entire county but the ridgeline on which the Pinnacle project is proposed to be constructed. At a local level, the forest loss from Pinnacle is cumulative to the clear-cutting by the landowner which is expected to remove one-half to two-thirds of the trees from the ridge (BHE 2009b, page 3). Because this endangered species uses mature trees for roosting, and uses forested habitat to travel to foraging areas (Butchkoski 2007), clearing of large areas of forested habitat could disrupt potential roost sites and travel corridors for this species. Remaining trees greater than a 5-inch (12.8-centimeter) diameter-at-breast height should only be cut during the time of year

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 when bats are in hibernation (November 15 through March 31). To compensate for forest clearing and habitat fragmentation on-site, we recommend protecting intact mature forest habitat off-site. Likewise, the habitat characterization report noted (post-clearcut) the lack of large trees suitable for nesting by eagles. These forested impacts should be clarified and appropriately avoided, minimized, and mitigated. At a minimum, we recommend that Pinnacle commit to implementing the recommendations on page 10 of the Avian Risk Assessment (Kerlinger 2009) regarding seasonal clearing restrictions for nesting birds, habitat restoration, and development of a forest management plan.

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The habitat characterization and assessment for Pinnacle also noted the high , likelihood of occurrence of several rare species that use talus and rock outcrops: small-footed bat, Allegheny woodrat, eastern spotted skunk, and timber rattlesnake. Timber rattlesnakes were observed in abundance on site yet the report concluded a minimal likelihood the Pinnacle project will adversely affect rare reptiles. To avoid contributing to the need to list additional species under the Federal Endangered Species Act, we recommend avoiding impacts to talus and rocky outcrop areas that may be used as suitable habitat by small-footed bats and other sensitive species. Avian Risk Assessment Night Migrating Birds No on-site observations of passage rate, flight altitude, or flight direction were used to assess risks to nocturnally migrating birds at the proposed Pinnacle site. The collision risk to night migrants was assessed by reviewing previous studies conducted at other locations in the eastern United States. The studies cited as most relevant to assessing collision risk at the Pinnacle site are of two different types: radar studies (for estimating numbers, altitudes, and directions) and carcass searches (for estimating collision mortality). Currently, there are no available studies that directly correlate radar observations with observed mortality at ridgeline locations. Data from 23 wind facility post-construction avian mortality studies are presented to assess night migrant collision potential at the proposed Pinnacle site. Only four of these studies (Nicholson 2001, 2002; Kerns and Kerlinger 2004; Fiedler et al. 2007; Young et al. 2009a) were conducted at ridge sites which are similar to the proposed Pinnacle location. Results of these four carcass search investigations indicate that approximately two to seven night migrants/turbine/year are killed at eastern ridge top wind projects. Of the 21 radar studies cited, only three (Mabee et al. 2006; Woodlot Alternatives, Inc 2005; and "Allegheny Ridge" unknown citation) were conducted at. ridge sites along the Allegheny Front and are potentially useful for estimating passage rate, flight altitude, and flight direction of night migrants at the Pinnacle site. Mean passage rates reported in these studies varied from 187 to 493 targets/kilometer/hour. Altitude observations referenced in the Pinnacle risk assessment indicate that night migrants generally flew above the maximum height of industrial wind turbines, with between 7 and 15 percent on average observed flying within the rotor-swept zone (below 410 feet or 1,353 meters). However, Stantec Consulting (2008a) reported that on some

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 nights as many as 53 percent of night migrating birds crossing a nearby Allegheny Front ridge flew below the 410-foot (1,353-meter) level. If similar conditions occur at the Pinnacle site, the presence of industrial-scale wind turbines may present a significant collision risk to night migrants during peak migration and/or inclement weather conditions. Eagles We also are concerned about the risk of collision mortality to golden and bald eagles using the air space over the proposed Pinnacle wind power project. Results of the "Spring and Fall Raptor Migration Studies" contained in the Avian Risk Assessment for the Pinnacle Wind Power Project (Pinnacle Risk Assessment) confirm that the proposed project site lies in a major migratory pathway for the relatively small eastern population of golden eagles (Kerlinger 2009). The author notes that "Fall Golden Eagle migration at Pinnacle is significant and comparable in volume to that registered at some of the hawk watch sites that are considered the most important inland in eastern North America" (Kerlinger 2009). The fall 2007 observation period at the proposed Pinnacle site was conducted between September 1 and December 15 and totaled 87 observation days. During this period, 99 golden eagles and 57 bald eagles were observed passing through the project area. The spring 2008 observation period occurred between March 2 and April 29 and totaled 45 observation days. During this period, 102 golden eagles and 37 bald eagles were observed passing the project area. The authors noted that a high percentage of these birds flew along the ridge where the turbines are proposed and at heights corresponding to the rotor-swept area. Little research has been published concerning the wind turbine collision risk of eagles migrating along linear ridge systems. Three wind facility post-construction avian mortality studies (Kerns and Kerlinger 2004; Fiedler et al. 2007; Young et al. 2009a) are cited in the Pinnacle Avian Risk Assessment as evidence of low collision risk for migrating eagles along this linear Appalachian ridge. However, because of limitations in the methodologies employed or project location (discussed below), reliance on these studies may lead to a significant underestimate of risk to migrating eagles at the proposed Pinnacle facility. In 2003, Kerns and Kerlinger (2004) studied bird collisions and associated bird mortality at a 44turbine wind energy facility in Tucker County, West Virginia, approximately 26 miles (42 kilometers) southwest of the proposed Pinnacle site. Of the 13 rounds of carcass searches conducted during the fall migration period, only two occurred during November, the peak month for golden eagle migration (Kerlinger 2009; HMANA 2008). Also, during these two rounds of searches (November 7 and 9 and November 14, 20-22), multi-day gaps in the field effort increased the likelihood that any carcasses would be scavenged before discovery. Of the eight rounds of carcass searches conducted in the spring, none were conducted in March, the peak month for spring golden eagle migration (Kerlinger 2009; HMANA 2008). No eagle carcasses where found during these searches, but because of the sampling limitations noted above, the conclusion that collision risk is low is not well supported. From April 5 to December 20, 2005, Fiedler et al. (2007) conducted weekly carcass searches at. an 18-turbine facility in Anderson County, Tennessee (approximately 370 miles or 595 kilometers southwest of the Pinnacle site). Because this facility is located in the southern portion

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 of the eastern golden eagle migratory range and no eagle observation or passage rate data were presented or could be located, the relevance of this study to the proposed Pinnacle project is questionable to the proposed Pinnacle project. The observed lack of eagle mortality at the Tennessee site may simply be due to eagles not migrating past this site, or at least not in the high numbers observed at more northern locations along the Allegheny ridge system. Without more information, this study is of little use for accurately assessing collision risk at the proposed Pinnacle facility. Young, et al. (2009a) monitored avian mortality at an 82-turbine facility in Grant County, West Virginia (approximately 10 miles or 16 kilometers south-southwest of the Pinnacle site) from July 18 to October 17, 2008, and did not report any eagle fatalities. Again, golden eagle migration through this area does not begin until late October, with the largest number of birds moving through in November (Kerlinger 2009; HMANA 2008). Because the study was conducted when few, if any, migrating golden eagles would be exposed to the wind turbines, the finding of no mortality is not particularly useful for assessing risk to this species at the proposed Pinnacle facility. Regardless of these findings, the authors of the Pinnacle study conclude that golden and bald eagles may be at risk at the Pinnacle site and that "some level of mortality may occur". Considering that bald and golden eagle numbers are increasing, we believe the site poses a high risk of mortality to eagles over the anticipated long operational life of the project (20+ years). The author of the Pinnacle Avian Risk Assessment also evaluated potential habitat loss caused by construction of the proposed project. He concluded the relative degree of habitat loss was a low risk because no eagle nests were observed during surveys of the project area. However, a bald eagle nest was documented within 4.7 miles (8 kilometers) of the project area in 2007, and many more nests have been documented within 20 miles (32 kilometers) of the area, particularly to the east where new observations of nesting bald eagles are being recorded on a regular basis. If bald eagle nests are found in the vicinity of the proposed project site at any time during the construction or operation of the project, Pinnacle Wind Force, LLC should coordinate with the Service's West Virginia Field Office to minimize disturbance and the risk of collision by following the Service's Bald Eagle Management Guidelines (Service 2007, see Enclosure 1). Bald eagles can be particularly sensitive to human activity during courtship, nest building, egg laying, incubation, the early nestling phase, and later (nestlings eight weeks through fledging). Bald eagles display varying degrees of sensitivity to humans, depending on several factors, including: visibility, duration, noise levels, extent of the area affected by the activity, prior experiences with humans, and tolerance of the individual nesting pair (Service 2007). An eagle migration survey has been initiated by the National Aviary, Powdermill Avian Research Center, and several other institutions. During 2007-08, this project tracked several golden eagles (#s 40, 41, and 69) and a bald eagle (#65) in the general vicinity of the proposed Pinnacle wind power project. Available data from the National Aviary suggest that golden eagles migrate through a fairly narrow corridor through Pennsylvania that likely extends into West Virginia; as such, they consider the Allegheny Front and five adjacent ridges to the east to

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Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 be a zone of high risk for potential impacts to golden eagles from wind turbines (Katzner et. al. 2008). Peregrine falcons also are known to nest just south of the proposed Pinnacle wind power site. While the single year of survey data from the Pinnacle study area indicated that there were no large concentrations of raptors, recent analyses of raptor abundance data and collision mortality events indicate that abundance is not necessarily a good predictor of collision fatalities (de Lucas et. al. 2008). Other factors, such as species-specific flight behavior and morphology, weather, and topography in the vicinity of wind power facilities may be equally or more likely related to differences in mortality rates. Additional pre- and post-construction surveys would help to assess. the risk to bald and golden eagles, and clarify whether raptor numbers and flight corridors vary according to season and weather patterns, potentially increasing the risk under certain conditions. As a case in point, raptor studies for both the Pinnacle and New Creek wind power projects covered the peak of migration yet resulted in widely, different estimates of eagle abundance (Kerlinger 2009, Stantec 2008b, c). The reasons are unclear but could be related to differences in thermals between ridgelines, seasonal variation among sites, observer differences, or other factors. These differences highlight the need for multi-year pre-construction surveys. Migratory Bird Concerns For a number of reasons, we believe the risk to migratory birds (including raptors) is higher than indicated in the Pinnacle Risk Assessment. The proposed project is located along ridgelines considered to be part of the Allegheny Front, a known major migration corridor for birds and bats. There are over 50 years of bird migration records from the Allegheny Front Migration Observatory station at Bear Rocks, located approximately 130 miles (210 kilometers) south of the proposed Pinnacle project in the same chain of ridgelines used by birds for broad-front longdistance migration. Observations have been made at Bear Rocks every fall since 1948 by members of the Brooks Bird Club and reported in their quarterly journal, the Redstart. Over 200,000 migrating birds have been banded at this station. In addition, few' mortality studies have been conducted at wind power facilities on forested ridgelines in the Appalachians, similar to those conditions at the Pinnacle site. Of these studies, including ongoing studies at the Mount Storm wind power facility in West Virginia (Young et al. 2009 a, b), mortality rates tend be higher than at projects in dissimilar habitat types such as agricultural fields and grasslands. The mortality rates at wind power facilities on forested ridgelines are four to six birds per tower per year compared with the zero to four birds per tower per year mortality rate in agricultural fields and grasslands (see Stantec 2008d, Appendix A, Table 3). Furthermore, we are concerned about the cumulative impact of wind power projects in the Allegheny Front. There are two projects currently in operation (Mountaineer and NedPower Mount Storm), located within 35 miles (56 kilometers) of the proposed Pinnacle project. These projects have documented mortality of birds and bats. In addition, we are aware of a number of other proposed projects in the Allegheny Front, including the New Creek and Dan's Mountain wind power projects. We therefore believe the risk to migrating birds from the proposed Pinnacle project is higher than indicated in the Risk Assessment because: 1) the proposed project

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Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 is located in a major migration pathway, 2) mortality rates at wind power sites tend to be higher along forested ridgelines, and 3) a number of projects are planned or operating in the Allegheny Front. Even if the post-construction mortality of birds at the Pinnacle site were as relatively low as estimated in the Pinnacle Avian Risk Assessment, the cumulative impact of these wind power facilities, when added to other bird mortality factors (collisions with buildings, moving vehicles, and power lines; or bird kills. associated with contaminant exposure and other human-caused factors) may result in bird population declines.

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Among other things, the Migratory Bird Treaty Act (MBTA, 16 U.S.C. 703-712) prohibits the taking, killing, injuring or capture of listed migratory birds. The unauthorized taking of even one bird is legally considered a "take" under the MBTA and is a violation of the law..Bald and golden eagles are afforded additional legal protection under the Bald and Golden Eagle Protection Act (Eagle Act, 16 U.S.C.. 668). Neither the MBTA nor its implementing regulations found in 50 CFR Part 21 provide for the. permitting of "incidental take" of migratory birds that may be killed or injured by the wind turbines. The Service carries out its mission to protect migratory birds not only through habitat and species management, regulatory programs, investigations and enforcement, but also through fostering relationships with individuals and industries that proactively seek to eliminate their impacts on migratory birds. It is not possible under the MBTA to absolve individuals, companies, or agencies from liability if unauthorized take occurs. However, depending on the circumstances, the Office of Law Enforcement may exercise enforcement discretion. The Service focuses its attention on those individuals, companies, or agencies that take migratory birds with disregard for their actions and the law, especially when conservation measures or specific recommendations regarding pre-construction surveys and post-construction monitoring are either ignored or not properly implemented. In this regard, the Service offers recommendations at the end of this letter and we reiterate our willingness to work with you to develop measures to avoid and minimize impacts to migratory birds, including eagles. The Eagle Act prohibits the take of bald and golden eagles unless pursuant to regulations. In the case of bald eagles, take can only be authorized under a permit. The Eagle Act defines the take of an eagle to include a broad range of actions: pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest or disturb. Disturb is defined in regulations found at 50 CFR 22.3 as: to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior. While the Service's goal is to avoid take of eagles, we recognize that take may occur despite efforts to avoid it. Toward that end, the Service published new regulations for eagle permits on September 11, 2009 (74 Federal Register 46836-46879). These new regulations become effective on November 10, 2009. Because the regulations are new, it will take some time for the Service and others to fully interpret their ramifications and applications. These new regulations allow for applications for permits for the type of take anticipated at wind power facilities. We are available to work with you to develop a full suite of avoidance, minimization, and mitigation

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 options, including but not limited to consideration of alternative project locations, and feathering of blades at some turbines during peak migration and/or periods of inclement weather. Under these new regulations, individual permits may be available to individual wind power companies. In addition, programmatic permits may be available to the wind power industry as a whole. Bat Risk Assessment

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The bat risk assessment for the proposed Pinnacle project included mist net surveys for the presence of bats at the site (during summer and fall 2007 and spring 2008) and surveys of two nearby caves for bat usage (BHE Environmental 2008b). No Federally-listed endangered or threatened bats were captured. The risk assessment reported no caves or portals known to support the endangered Indiana bat or Virginia big-eared bat within five miles (eight kilometers) of the Pinnacle project area. The risk assessment also noted the presence of 11 small Indiana bat hibernacula within 40 miles (64 kilometers) of the project area. However, the authors of the Risk Assessment concluded that the risk of mortality to listed bats was low because of the low density of listed bats near the project area, the lack of capture of listed bats during mist-net and cave surveys, the fact that Indiana bats tend to concentrate their foraging within five miles (eight kilometers) of known hibernacula, and because a listed bat has not yet been documented to have been killed at an operating wind power facility. While the Service believes the risk to listed bat species is low, we note there is still a risk of mortality given that Indiana bats are capable of migrating long distances of over 300 miles (483 kilometers) (Service 1999) and during the 20+ year operating span of the proposed project, there is a likelihood that a listed bat may cross the blade-swept path of the turbines and be killed. Unauthorized take of just one individual of a listed species is a violation of the Endangered Species Act. The Service believes that the risk of mortality to unlisted bat species is higher than the risk to listed bats, and could be biologically significant over time, considering cumulative impacts. Overall, the authors of the Bat Risk Assessment for the Pinnacle project conclude that because pre-construction bat usage of the proposed Pinnacle site is relatively low,. post-construction bat usage and collision mortality will also be low or "not biologically significant." This conclusion seems tenuous to us and two studies not cited in the risk assessment indicate that bat mortality, especially for unlisted bats, may likely be of concern at the Pinnacle site. Kerns and Kerlinger (2004) studied bat collision mortality at a 44-turbine wind energy facility in Tucker County, West Virginia, approximately 26 miles (42 kilometers) southwest of the proposed Pinnacle site. During 23 rounds of searches between April and November, 2003, 475 bat carcasses of seven species were recovered. The estimated bat mortality rate at this facility during the study period was 47.3 bats/turbine (2,092 bats total). Fiedler et al. (2007) conducted a similar study at an 18-turbine facility in Anderson County, Tennessee (approximately 370 miles or 596 kilometers southwest of the Pinnacle site but with bat use similar to. that of the Pinnacle site). Forty carcass searches were conducted between April and December, 2005 and 243 bats of six species were recovered. The calculated mortality rate was estimated to be 63.9 bats/turbine/year (1,149 bats total).

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009

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Because no pre- or post-construction mist-net or acoustical data were available for either of these two sites, we have no way of correlating bat usage rates with mortality. Other studies showing that bat activity varies between intact, edge, and cleared forest locations (Erickson and West 1996, Grindal 1 996) indicate that pre-construction bat surveys may not be especially useful for accurately predicting bat usage of a site after forest clearing and construction. Habitat modifications resulting from the clearing for turbine pads, access roads, and other infrastructure will create open and edge habitat that will likely result in an increased use of the area by at least some bat species: Bat mortality has been documented at all eastern wind power facilities to date. The major cause of death is thought to be a sudden drop in air pressure near the turbine blades, which causes injury to the bat's lungs known as barotrauma (Baerwald et al. 2009). Although the respiratory systems of birds can withstand such drops, the physiology of bat lungs does not allow for the sudden change of pressure. In addition, some bats may die from collisions with turbine blades. In particular, long distance migrants such as red bats, hoary bats, and silver-haired bats are often found during post-construction mortality searches. Although bat acoustic data were not collected at the proposed Pinnacle site, they were collected during 2007 and 2008 at the proposed New Creek wind power site on a forested ridgeline five miles (eight kilometers) away (Stantec Consulting 2008b, c). When considering these data, it is evident there is a clear risk to migratory bats due to operation of both wind power facilities. In particular, acoustic surveys conducted at the proposed New Creek wind power site indicated high levels of bat activity in the upper air space for the long-distance migratory bats (Stantecc Consulting 2008c), the species group killed most frequently in the eastern United States, and eastern pipistrelles, which have suffered relatively severe mortality effects in the northeast in association with white-nose syndrome. Thus these species are at a higher risk for collision with wind turbines. It is unknown whether the anticipated mortality of these bats will affect their populations, though there is the potential that the cumulative effect of multiple eastern wind power facilities will reduce the overall bat populations over the life of the facilities (20 to 30 years). Cumulative impacts of mortalities have been postulated to lead to substantial population declines given the relatively slow rates of reproduction and long life span of bats (Kunz et al. 2007a, Kunz et al. 2007b; Kuvelsky et al. 2007). In addition, other factors, such as the spread of white-nose syndrome, could significantly increase the risk for cumulative impacts to bat species populations in the east. While the Service believes that the risk to Federally-listed bats through habitat modification, fragmentation, collision with turbine blades, and barotrauma is not considered high for the Pinnacle project individually, the cumulative impacts of such development in conjunction with the rapid spread of white-nose syndrome and other threats could result in local or regional population declines. White-nose syndrome has recently been confirmed in caves in Pendleton County, south of the proposed Pinnacle wind power facility, including at least one Indiana bat hibernaculum. This species, along with other Myotis species, has been shown to be severely affected in hibernacula in other states where hibernating bats have been infected with white-nose syndrome. In addition, while no infected Virginia big-eared bats have been found to date, several West Virginia caves provide critical habitat for the species. Depending on the spread of

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009

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white-nose syndrome in coming years and the susceptibility of these endangered bats to the disease, assessments of cumulative impacts to both these species and the status of many other bat species, could change dramatically, including possible listing of new species under the Endangered Species Act. Higher bat activity and fatalities have been consistently related to periods of low wind speed and weather conditions typical of the passage of storm fronts (Arnett et al. 2008, Horn et. al. 2008, Reynolds 2006). Arnett et. al. (2009) found that bat fatalities were significantly reduced by changing wind turbine cut-in speed and reducing operational hours during low wind periods. Their results were said to be similar to those of another recent study of operational curtailment (Baerwald et al. 2009), with data from both indicating a potential reduction in bat fatalities of 50 percent. Arnett et al. (2009) found reductions in average nightly bat fatality ranging from 56 to 92 percent with minimal total annual power output loss (< 1 percent). Data from the New Creek acoustic bat survey work supports this approach in operational curtailment as well. The risk assessment for the New Creek wind power project (Stantec Consulting 2008d) notes that a qualitative comparison of wind speed, temperature and bat activity at this and other sites with similar surveys suggests that bat activity levels were generally higher on nights with wind speeds < 6 meters/second (20 feet/second) . and temperatures > 14 °Centigrade (>57 °Fahrenheit). While additional studies are needed to further test the effects of changes in turbine cut-in speed among different sizes and types of turbines, wind regimes, and other weather and habitat conditions on bat fatalities, these studies provide a good initial step in assessing the effectiveness and practicality of using modifications of turbine cut-in speed based on wind regimes as a mitigative strategy. Summary and Recommendations The Service believes that the weight-of-evidence approach used in the Pinnacle Risk Assessment is an acceptable approach to determine the relative level of impact a particular stressor (i.e., construction activities, collision) will have on a species or group. However, we believe the risk to some groups is higher than determined in the Risk Assessment. In particular we are most concerned about the mortality risk to eagles and unlisted bats from the proposed Pinnacle Wind Power Project, as well as the cumulative effects of multiple wind power projects and other stressors on populations of eagles, other birds, and bats. It is important for the Service, Pinnacle Wind Force, LLC, and others to work together to gather the information needed to determine feasible and effective methods to reduce collision and mortality risk to birds and bats from wind power projects. Based upon the above analysis, we offer the following recommendations to avoid and reduce anticipated impacts to birds and bats and to document any mortality events or changes to the species populations and diversity due to construction and operation of the proposed Pinnacle wind power facility. These recommendations are based on currently available best scientific information. As new information becomes available, we reserve the right to modify these recommendations.

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009

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Pre-Construction Recommendations 1) Reduce the amount of forest removal as much as possible to reduce impacts to forest species, including bats and birds. Implement seasonal clearing restrictions that protect Indiana bats and nesting birds. 2) Protect forest habitat off-site to compensate for forest clearing and fragmentation on-site. 3) Avoid impacts to talus and rocky outcrop areas that may be used as roost sites by smallfooted bats and other sensitive species. 4) Follow the guidelines in the Avian Protection Plan (APLIC and Service 2005) to avoid and reduce bird collisions with overhead lines or guy wires. Post-Construction Recommendations 1) Post-construction mortality monitoring and adaptive management should occur over the operational life of the project. There should be at least three years of intensive monitoring at the beginning of operation. A longer period of intensive monitoring may be needed. Reduced frequency and/or intensity of monitoring may be possible at later stages if early studies document effective operational parameters that significantly reduce bird and bat mortality. Once effective measures are identified, periodic monitoring should continue throughout the operational life to continue to document that the measures are working as planned. Monitoring of bird and bat mortality should occur during spring, summer, and fall seasons. In addition, winter searches should focus on eagle mortality. 2) Pinnacle Wind Force, LLC should coordinate with the Service and WVDNR on study . plans and monitoring prior to initiation of the monitoring. 3) Post-construction assessments should move beyond counts of dead bats and birds in order to identify effective operational parameters that avoid and minimize bird and bat mortality. Studies should investigate if birds and bats are attracted to turbines, and how bird and bat activity and mortality varies with wind speed, direction, persistent weather events, and perhaps other factors. We recommend the use of radar and other monitoring techniques to assess the numbers of 4) birds and bats that are actually flying low enough to be exposed to risk of mortality from wind turbines. We also recommend that the proportion of birds and bats that are successful in passing through the turbine's blade-swept area or that change their flight trajectory to completely avoid the wind turbines be determined. These studies should be conducted during all local climatic conditions and all pertinent daily periods. Changes in behavior and mortality, as well as methods for predicting mortality events should be reported to the Service. 5) The monitoring plan should include a robust adaptive management component that describes the studies to be conducted, anticipated outcomes (hypotheses to be tested), and a subsequent series of responses addressing those outcomes. Monitoring should be conducted to determine if the selected responses actually result in a reduction. of fatalities. Adaptive management trials should begin on some of the turbines in Year 1 of operation. 6) The operation of the facility should be conducted in order to reduce anticipated bird and bat mortality. In particular, there is mounting evidence that bat activity and mortality occur primarily at low wind speeds. Studies should be conducted on the effectiveness of modifying project operations to reduce anticipated bird and bat mortality (such as modifying cut-in speeds, and feathering or stopping blades during the peak of migration or during high-risk weather events). To facilitate data collection in a consistent manner

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 .

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at multiple wind power sites, we recommend that Pinnacle Wind Force, LLC participate in studies similar to the ongoing curtailment study at the Casselman wind power project in Somerset County, Pennsylvania (Arnett et al. 2009). 7) Mortality searches should use dogs to improve detection rates in medium and lowvisibility habitats (Arnett 2006). 8) Fatality estimates should include complex estimators to account for project site variations, particularly for scavenger activity (Huso 2008); daily searches at some tower sites, as well as weekly searches at other towers (Huso 2008, Kerns et al. 2005); large sample sizes of appropriate carcasses (Arnett et al. 2008, Huso 2008); and corrections for habitat variation (Arnett et al. 2008). 9) Due diligence must be practiced in identifying carcasses. Photographs of all bird and bat carcasses should be taken. Except for bat species of the genus Myotis, other carcasses may be used for determination of scavenging rates and searcher efficiency; however, small tissue samples (such as a feather, toe clip, or small wing punch) should be taken if there are questions about identification. All Myotis bat carcasses should be sent to the WVDNR with the researcher's determination of genus and species, date of collection, and turbine number where the carcass was collected. Unidentified bat carcasses should be specially marked with a request for identification from WVDNR bat experts. Should WVDNR staff be unable to conclusively identify these carcasses, and/or conclusively determine through process of elimination that the unidentified carcasses are not Federally-listed endangered or threatened bat species, then Pinnacle Wind Force, LLC should provide funds to the WVDNR for genetic testing at a lab selected by WVDNR and the Service. 10) Survey reports should be submitted to the Service's West Virginia Field Office and WVDNR after each study season and annually by December 31. 11) To help predict raptor impacts, we recommend that Pinnacle Wind Force, LLC fund research on raptor migration patterns in the area, including bald and golden eagles. This could include modeling raptor migration pathways along the Allegheny Front or contributing to ongoing radio telemetry studies by the National Aviary. 12) If nesting bald eagles are found within the project area at any time during the operational life of the project, then the Service's Bald Eagle Management Guidelines (Service 2007) should be followed to avoid disturbance during critical nesting times. We have excerpted pertinent portions of the guidelines for your reference (Enclosure' 1). Due to the risk of bald eagle strikes once a nest has been established, the Service may recommend that wind turbine operation cease if a nest is found within 1320 feet (400 meters) of a turbine. Additional management considerations may be recommended if it appears that the breeding bald eagles are foraging along or adjacent to the turbine string. 13) If a bald or golden eagle, or a Federally-listed threatened or endangered species is found during a mortality search, then Pinnacle Wind Force, LLC will notify the Service's West Virginia Field Office and WVDNR within 24 hours and discuss how to modify operations to avoid impacts in the future. 14) If it is not possible to avoid impacts to Federally-listed species or to bald and golden eagles, then Pinnacle Wind Force, LLC may pursue incidental take permits under the Endangered Species Act and Eagle Act, respectively. Pinnacle Wind Force, LLC may also. apply for such peiuiits prior to construction.

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 We look forward to working with Pinnacle Wind Force, LLC and its consultants to implement the recommendations made above. We appreciate the opportunity to provide information relative to wildlife issues, and thank you for your interest in these resources. If you have any questions, please contact Laura Hill at 304-636-6586, Ext. 18 or laura hillCafws.gov . Sincerely,

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Deborah Carter Field Supervisor

Enclosure

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 cc: RO: Keith Hastie, Diane Lynch, Dave Rothstein WVDNR: Roger Anderson Pinnacle Wind Force, LLC: David Friend, 10592 Perry Highway, #210, Wexford, PA 15090 Project File Reader File ES: WVFO:LHill:skd:9/30/2009 Filename: P:\Wind Power\Pinnacle\Pinnacle Avian and Bat Comments (Sep 30 09).doc

14.

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 References

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Arnett, E.B. 2006. A preliminary evaluation on the use of dogs to recover bat fatalities at wind energy facilities. Wildlife Society Bulletin 34:1440-1446. Arnett, E.B., W.K. Brown, W.P. Erickson, J.K. Fiedler, B.L. Hamilton, T.H. Henry, A. Jain, G.D. Johnson, J. Kerns, R.R. Koford, C.P. Nicholson, T.J. O'Connell, M.D. Piorkowski, and R.D. Takersley, Jr. 2008. Patterns of bat fatalities at wind energy facilities in North America. Journal of Wildlife Management 72:61-78. Arnett, E. B., M. Schirmacher, M. M. P. Huso, and J. P. Hayes. 2009. Effectiveness of changing wind turbine cut-in speed to reduce bat fatalities at wind facilities. An annual report submitted to the Bats and Wind Energy Cooperative. Bat Conservation International. Austin, Texas. 45 pp. Avian Power Line Interaction Committee (APLIC) and U.S. Fish and Wildlife Service. 2005. Avian Protection Plan (APP) Guidelines. Edison Electric Institute APLIC and U.S. Fish and Wildlife Service joint document. 84 pp. Baerwald, E. F., J. Edworthy, M. Holder, and R.M.R. Barclay. 2009. A large-scale mitigation experiment to reduce bat fatalities at wind energy facilities. Journal of Wildlife Management 73:1077-1081. BHE Environmental 2009a. Habitat characterization and assessment of rare, threatened, and endangered species for the Pinnacle Wind Farm, Mineral County, West Virginia. Prepared for: Pinnacle Wind Force, LLC. 49 pp. BHE Environmental 2009b. Bat risk assessment: Pinnacle Wind Farm, Mineral County, West Virginia. Prepared for: Pinnacle Wind Force, LLC. 96 pp. Butchkoski, C. M. 2007. Indiana bat foraging habitat study. Pennsylvania Game Commission. Unpublished report. de Lucas, M., G.F.E. Janss, D.P. Whitfield, and M. Ferrer. 2008. Collision fatality of raptors in wind farms does not depend on raptor abundance. Journal of Applied Ecology 45:16951703. Erickson, J.L. and S.D. West. 1996. Managed forests in the Western Cascades: The effects of seral stage on bat habitat use pattenis. Bats and Forests Symposium, October 19-21, 1995. Working Paper 23/1996. British Columbia Ministry of Forests, Victoria, Canada. Fiedler, J.K., T.H. Henry, R.D. Tankersley, and C.P. Nicholson. 2007. Results of bat and bird mortality monitoring at the expanded Buffalo Mountain windfarm, 2005. Tennessee Valley Authority.

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 Grindal, S.D. 1996. Habitat use by bats in fragmented forests. Bats and Forests Symposium, October 19-21, 1995. Working Paper 23/1996. British Columbia Ministry of Forests, Victoria, Canada. HMANA. 2008. Hawk Migration Association of North America. www.hmana.org Horn, J.W., E.B. Arnett, and T.H. Kunz. 2008. Behavioral responses of bats to operating wind turbines. Journal of Wildlife Management 72:123-132. Huso, M. 2008. A comparison of estimators of bat (and birdO mortality at wind power generation facilities. Bats and wind Energy Cooperative Workshop, Austin, Texas. January 8-10. Available at www.energetics.com/BWECWorkshop2008/agenda.html. Katzner, T.D. Brandes, M. Lanzone, T. Miller, and D. Ombalski. 2008. Raptors and wind energy development in the Central Appalachians: where we stand on the issue. National Aviary Policy Statement — Wind Power.

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Kerlinger, P. 2009. Avian risk assessment for the Pinnacle wind power project, Mineral County, West Virginia. Prepared for Pinnacle Wind Force, LLC. 53 pp. Kerns, J., W.P. Erickson, and E.B. Arnett. 2005. Chapter 3. Bat and bird fatality at wind energy facilities in Pennsylvania and West Virginia. Pages 24-95 in Arnett, E.B. (ed.), Relationship between bats and wind turbines in Pennsylvania and West Virginia: an assessment of fatality search protocols, patterns of fatality, and behavioral interactions with wind turbines. Kerns, J. and P. Kerlinger. 2004. A study of bird and bat collision fatalities at the Mountaineer Wind Energy. Center, Tucker County, West Virginia: Annual report for 2003. Prepared for: FPL Energy and Mountaineer Wind Energy Center Technical Review Committee. Kunz, T.H., E.B. Arnett, W.P. Erickson, A.R. Hoar, G.D. Johnson, R.P. Larkin, M.D. Strickland, R.W. Thresher, and M.D. Tuttle. 2007a. Ecological impacts of wind energy development on bats: questions, research needs, and hypotheses. Frontiers in Ecology and the Environment 5:315-324. Kunz, T.H., E.B. Arnett, B.P. Cooper, W.P. Erickson, R.P. Larkin, T. Mabee, M.L. Morrison, M.D.. Strickland, and J.M. Szewczak. 2007b. Assessing impacts of wind-energy development on nocturnally active birds and bats: A guidance document. Journal of Wildlife Management 71:2449-2486. Kuveleski, W.P., Jr., L.A. Brennan, M.L. Morrison, K.K. Boydston, B.M. Ballard, and F.C. Bryant. 2007. Wind energy development and wildlife conservation: Challenges and opportunities. Journal of Wildlife Management 71:2487-2498. Mabee, T.J., B.A. Cooper, J.H. Plissner, and D.P. Young. 2006. Nocturnal bird.migration over an Appalachian ridge at a proposed wind power project. Wildlife Society Bulletin 34(3).

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 Nicholson, C.P. 2001. Buffalo Mountain windfarm bird and bat mortality monitoring report: October 2000 — September 2001. Tennessee Valley Authority, Knoxville, TN. Nicholson, C.P. 2002. Buffalo Mountain windfarm bird and bat mortality monitoring report: October 2001 — September 2001. Tennessee Valley Authority, Knoxville, TN. Reynolds, D.S. 2006. Monitoring the potential impacts of a wind development site on bats in the northeast. Journal of Wildlife Management 70(5):1219-1227. Stantec Consulting. 2008a. New Creek Mountain bird and bat risk assessment: a weight-ofevidence approach to assessing risk to birds and bats at the proposed New Creek mountain project, West Virginia. Prepared for: AES New Creek, LLC, Arlington, VA. 105 pp. Stantec Consulting. 2008b. Fall 2007 bird and bat migration survey report. Visual, radar, and acoustic bat surveys for the New Creek Mountain project, West Virginia. Prepared for: AES New Creek, LLC, Arlington, VA. 73 pp.

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Stantec Consulting. 2008c. Spring, summer, and fall 2008 bird and bat migration survey report. Visual, radar, and acoustic bat surveys for the New Creek Mountain project, West Virginia. Prepared for: AES New Creek, LLC, Arlington, VA. 103 pp. Stantec Consulting. 2008d. Radar and acoustic bird and bat survey report — Fall 2004, Spring 2005, and Fall 2005 surveys for the proposed Dan's Mountain wind project in Allegany County, Maryland. Prepared for: Dan's Mountain Wind Force, LLC. U.S. Fish and Wildlife Service. 2007. National Bald Eagle Management Guidelines. U.S. Fish and Wildlife Service, Washington, D.C. 25 pp. Woodlot Alternatives. 2005. A spring 2005 radar and acoustic survey of bird and bat migration at the proposed Dan's Mountain Wind project in Frostburg, MD. Report prepared for: U.S. Wind Force, LLC. Young, D.P. Jr., W.P. Erickson, K. Bay, S. Nomani, and W. Tidhar. 2009a. Mount Storm wind energy facility, Phase 1 post-construction avian and bat monitoring, July-October 2008. Prepared by WEST, Inc. for NedPower, Mount Storm, LLC, Houston, TX. 46 pp + appendices Young, D.P. Jr., K. Bay, S. Nomani, and W. Tidhar. 2009b. NedPower Mount Storm wind energy facility, post-construction avian and bat monitoring, March-June 2009. Prepared by WEST, Inc. for NedPower, Mount Storm, LLC, Houston, TX. 51 pp.

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 Enclosure 1. Bald eagle status and distribution in West Virginia, responses to disturbances, and guidelines for projects near active nests.

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The bald eagle was recently delisted and removed from the List of Federally-threatened and Endangered Species. However, the bald eagle is still protected under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.. Known Distribution of Bald Eagles in West Virginia Winter Habitat: Throughout the entire state. Active nest sites: Grant, Hampshire, Hancock, Hardy, Jefferson, Mineral, Morgan, Pendleton, Pocahontas, and Taylor counties. This information is adapted from the Service's National Bald Eagle Management Guidelines (2007). The Guidelines provide additional information about bald eagles and management recommendations. Table 1. Nesting Bald Eagle Sensitivity to Human Activities Sensitivity to Human Activity Most sensitive period; likely to respond negatively Very sensitive period

Phase

Activity Courtship and Nest Building Egg laying Incubation and early nestling period (up to 4 weeks) Nestling period ,4 to 8 weeks Nestlings 8 weeks through fledging

Comments Most critical time period. Disturbance is manifested in nest abandonment. Bald eagles in newly established territories are more prone to abandon nest sites. Human activity of even limited duration may cause nest desertion and abandonment of territory for the breeding season. Adults are less likely to abandon the nest near and after hatching. However, flushed adults leave eggs and young unattended; eggs are susceptible to cooling, loss of moisture, overheating, and predation; young are vulnerable to elements. Likelihood of nest abandonment and vulnerability of the nestlings to elements somewhat decreases. However, nestlings may miss feedings, affecting their survival. Gaining flight capability, nestlings 8 weeks and older may flush from the nest prematurely due to disruption and die.

II

III

Very sensitive period

IV

Moderately sensitive period

V

Very sensitive period

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009

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If agitated by human activities, eagles may inadequately construct or repair their nest, may expend energy defending the nest rather than tending to their young, or may abandon the nest altogether. Activities that cause prolonged absences of adults from their nests can jeopardize eggs or young. Depending on weather conditions, eggs may overheat or cool too much and fail to hatch. Unattended eggs and nestlings are subject to predation. Young nestlings are particularly vulnerable because they rely on their parents to provide warmth or shade, without which they may die as a result of hypothermia or heat stress. If food delivery schedules are interrupted, the young may not develop healthy plumage, which can affect their survival. In. addition, adults startled while incubating or brooding young may damage eggs or injure their young as they abruptly leave the nest. Older nestlings no longer require constant attention from the adults, but they may be startled by loud or intrusive human activities and prematurely jump from the nest before they are able to fly or care for themselves. Once fledged, juveniles range up to mile from the nest site, often to a site with minimal human activity. During this period, until about six weeks after departure from the nest, the juveniles still depend on the adults to feed them. Disruption, destruction, or obstruction of roosting and foraging areas can also negatively affect bald eagles. Disruptive activities in or near eagle foraging areas can interfere with feeding, reducing chances of survival. Interference with feeding can also result in reduced productivity (number of young successfully fledged). Migrating and wintering bald eagles often congregate at specific sites for purposes of feeding and sheltering. Bald eagles rely on established roost sites because of their proximity to sufficient food sources. Roost sites are usually in mature trees where the eagles are somewhat sheltered from the wind and weather. Human activities near or within communal roost sites may prevent eagles from feeding or taking shelter, especially if there are not other undisturbed and productive feeding and roosting sites available. Activities that permanently alter communal roost sites and important foraging areas can altogether eliminate the elements that are essential for feeding and sheltering eagles. The numerical distances for buffers shown in Table 2 are the closest the activity should be conducted relative to the nest.

Table 2: Buffer requirements for activities that entail permanent landscape alterations that may result in bald eagle disturbance. These requirements apply to active bald eagle nests. If there is no similar activity within 1 mile of the nest If the activity will be visible from the nest If there is similar activity closer than 1 mile from the nest 660 feet (200 km), or as close as existing tolerated activity of similar scope. Landscape buffers are recommended.

660 feet (200 km). Landscape buffers are recommended.

Mr. Paul Kerlinger and Mr. Mike Sponsler September 30, 2009 If there is no similar activity within 1 mile of the nest 330 feet (100 km). Clearing, external construction, and landscaping between 330 feet (100 km) and 660 feet (200 km) should be done outside breeding season. If there is similar activity closer than 1 mile from the nest

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If the activity will not be visible from the nest

330 feet (100 km), or as close as existing tolerated activity of similar sco p e. Clearing , external construction and landscaping within 660 feet (200 kn) should be done outside breeding season.

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