Meyer Glitzenstein & Crystal

1601 Connecticut Avenue, N.W. Suite 700 Washington, D.C. 20009-1056
Katherine A. Meyer Eric R. Glitzenstein Howard M. Crystal William S. Eubanks II Jessica Almy Telephone (202) 588-5206 Fax (202) 588-5049 meyerglitz@meyerglitz.com

November 3, 2011 Via Certified Mail Kenneth Salazar, Secretary U.S. Department of the Interior 1849 C Street, N.W. Washington DC 20240 Daniel M. Ashe, Director U.S. Fish and Wildlife Service 1849 C Street, N.W. Washington DC 20240 Major General Merdith W.B. Temple Acting Commanding General U.S. Army Corps of Engineers 441 G. Street, NW Washington, DC 20314–1000 Shaffer Mountain Wind LLC 10 Penn Center 1801 Market Street Suite 2700 Philadelphia, PA 19103 Gamesa Energy USA c/o Alyssa Edwards Atlantic Region 1 South Broad Street, 20th Floor Philadelphia, PA 19107

Re:

Notice Of Violations Of Section 7 Of The Endangered Species Act And The Act’s Implementing Regulations In Connection With The Proposed Shaffer Mountain Wind Project.

On behalf of the Allegheny Plateau Audubon Society, the Allegheny Front Hawk Watch, Sensible Wind Solutions, the Mount Laurel Chapter of Trout Unlimited, Jack Buchan, and Thomas Dick, we hereby provide formal notice, pursuant to section 11(g) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1540(g), that the U.S. Fish and Wildlife Service (“FWS” or “Service”) has violated section 7 of the ESA, 16 U.S.C. § 1536(a)(2), by rendering a Biological Opinion that failed to rely on the best available scientific evidence, and that authorizes lethal turbine operation in an extremely sensitive biological location for the imperiled Indiana bat, which directly contravenes the Service’s duty to act under the ESA’s institutionalization of caution mandate when addressing impacts to a highly endangered species. In the event that the U.S. Army Corps of Engineers relies in any way upon this scientifically and legally impermissible Biological Opinion in granting a Clean Water Act section 404 permit to Shaffer Mountain Wind LLC (or Gamesa Energy USA), the Corps too will be in violation of the ESA and its implementing regulations. The coalition submitting this letter represents a broad spectrum of conservation interests, and has previously provided various formal notice letters and comments bearing on agency decisionmaking for the Shaffer Mountain Wind Project (“the project”). Those prior letters and comments – which you all have in your records – include the February 9, 2011 Comments on FWS’s Draft Biological Opinion; June 29, 2010 Comments on the developer’s application for a section 404 permit under the Clean Water Act; the April 5, 2010 Notice Letter; the March 10, 2010 Notice Letter; the February 23, 2009 Notice Letter; the October 21, 2008 Notice Letter; and the April 15, 2008 Notice Letter, as well as all attachments to those letters and comments. Those letters are hereby incorporated by reference. INTRODUCTION Shaffer Mountain Wind LLC proposes to develop a 30-turbine industrial wind energy project in Somerset and Bedford Counties in Pennsylvania. That project cannot lawfully proceed without various federal authorizations, including a section 404 permit from the Corps and a supporting Biological Opinion from the Service. Because this project will likely kill and otherwise “take” the highly imperiled Indiana bat (Myotis sodalis), the Corps and the Service entered into formal consultation under section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536, and, on September 27, 2011, the Service issued to the Corps a final Biological Opinion (“BO”) analyzing the project’s impacts to the species. The Biological Opinion strongly reinforces our comments to date that have explained the significant and severe effects that the proposed project will inevitably have on Indiana bats, by introducing “a persistent source of additive mortality to a landscape occupied by an Indiana bat maternity colony.” BO at 74. However, the Biological Opinion does not account for highly pertinent scientific evidence that necessarily should have been considered before rendering a Biological Opinion, nor does the Biological Opinion in any way address serious biological concerns raised by expert bat scientists in declarations attached to our February 9,

2011 letter. Accordingly, the Biological Opinion is unlawful as currently written, and we request that the Service retract the Opinion, and that the Corps not rely on the Opinion in any way, until and unless the Service addresses these vitally important issues in a legally permissible manner as mandated by the ESA and its implementing regulations. DISCUSSION I. THE FINAL BIOLOGICAL OPINION IS NOT BASED ON THE BEST AVAILABLE SCIENCE, AND FAILED TO PROVIDE THE INSTITUTIONALIZATION OF CAUTION REQUIRED BY THE ESA.

In the ESA, Congress mandated that the Service’s consultation efforts – including the preparation of a Biological Opinion – must be based on the “best scientific . . . data available.” 16 U.S.C. § 1536(a)(2). Based on a review of the Service’s September 27, 2011 Biological Opinion, it is clear that several key pieces of available scientific evidence have been entirely overlooked or discarded by the Service in rendering its authorization for this project to proceed in a way that will be lethal not only for thousands of non-listed birds and bats, but also for dozens of members of an endangered bat species already threatened by a rapidly spreading and catastrophic disease in White-Nose Syndrome (“WNS”). Accordingly, at bare minimum, the Service must reinitiate consultation to address the errors identified below. 50 C.F.R. § 402.16. A. The Service Failed To Consider Macrositing Or Micrositing Changes To The Project Layout, And Thus Disregarded Without Explanation Persuasive Declarations By Leading Bat Biologists.

At the outset, the glaring omission of any discussion in the Biological Opinion about potential macrositing or micrositing changes to the project’s layout and design runs counter to the ESA’s best available science mandate in section 7. See 16 U.S.C. § 1536(a)(2). In our February 9, 2011 letter, we explained at length that it was legally inappropriate for the Service to “sidestep[] . . . a vital wildlife conservation option – the avoidance, relocation, or significant modification of the proposed siting location – and determin[e] to instead jump immediately to the implicit conclusion that minimization and mitigation of take is the preferred manner of addressing the devastating effects to an Indiana bat maternity colony (not to mention male Indiana bats).” Circumventing the critical threshold question of whether a wind power project should be located at this site at all in light of the exigent risks the project poses to an Indiana bat maternity colony undermines accepted principles within the independent scientific community, but also directly contravenes section 7 of the ESA and the federal government’s own insistence that critical wildlife resources must play a vital role in threshold siting decision for wind projects. The following are examples of extremely crucial scientific evidence that was made available to the Service bearing on this issue that the Service apparently discarded, and certainly afforded no consideration or discussion in the Biological Opinion, in violation of the ESA. As leading bat ecologist Dr. Thomas H. Kunz opined in a June 27, 2010 declaration, “wind project developers should not site projects in or near known Indiana bat maternity 3

colonies because those colonies are the key to the species’ survival and potential recovery [from WNS].” Attachment 1 ¶ 6. Dr. Kunz further opined that “the scientific evidence indicates that this project as planned is very likely to jeopardize the survival of the Indiana bat, [and thus] the developer should consider various alternate locations that do not present such exigent risks to Indiana bats.” Id. ¶ 7 (emphases added). In addition, bat biologist Dr. Michael R. Gannon, who has extensive expertise regarding Indiana bats and other bat species in Pennsylvania, opined that “there is an unprecedented risk to Indiana bats at the Shaffer Mountain project site.” Attachment 2 ¶ 4 (emphasis added). Dr. Gannon also concluded that this project would “jeopardize the species’ survival and recovery efforts . . . [and therefore] less environmentally damaging alternate locations should be considered and ultimately adopted.” Id. ¶¶ 7-8 (emphases added); see also Attachment 3 ¶ 6 (opining that “a wind power project that poses substantial risks to a maternity colony, as this one does, likely jeopardizes the continued existence of the species and certainly retards its recovery”). A third independent bat biologist, Dr. Lynn Robbins, concurred with the concerns of Drs. Kunz and Gannon, opining that “there is no serious discussion [in the draft Biological Opinion] of the need to at least consider and compare alternative sites with less risk.” Attachment 4 ¶ 3a (emphases added). The views of these leading biologists – that siting should not occur in the midst of at least one known Indiana bat maternity colony – is in accord with the positions staked out by independent scientific organizations, as well as the federal and state wildlife agencies involved here.1 As previously explained, the clear import of these various pronouncements and recommendations from the scientific community, the PGC, and even the Service itself is that,

Department of Interior, Wind Turbine Guidelines Advisory Committee Recommendations to the Secretary of the Interior at 17-18, http://www.fws.gov/habitatconservation/windpower/ Wind_Turbine_ Guidelines_Advisory_Committee_Recommendations_Secretary.pdf (recommending that “consideration of the area [as a siting location] may be abandoned” if a “maternity roost[]” is found to be present on a site); Pennsylvania Game Commission, Wind Energy Voluntary Cooperative Agreement at 31, http://www.portal.state.pa.us/portal/ server.pt?open=514&objID=613068&mode=2 (recommending site abandonment as a key practice to avoid high-risk harms to bats and other wildlife); American Society of Mammalogists, Unanimous Resolution, available at http://www.mammalogy.org/committees /commresolutions/WindEnergyResolution.pdf (strongly recommending “[s]iting and placement that avoids bat hibernation, breeding, and maternity colonies”) (emphases added; Association of Fish and Wildlife Agencies, Wind Position, available at http://jjcdev.com/~fishwild/?section= pdfs/WindPower/ AFWA_wind_position_2008.pdf (“[d]iscourag[ing] the siting of wind facilities in biologically significant areas”); Wildlife Society, Wind Position Statement, available at http://joomla.wildlife.org/documents/ positionstatements/Wind_Energy.pdf (“[a]dvocat[ing] for the avoidance of siting wind facilities in high-risk areas that are determined based on the best available science”) (emphasis added); North American Society for Bat Research, Resolution on Wind (emphasis added), available at http://www.nasbr.org/resolution3.html (recommending “[a]voiding wind energy development at sites proposed by developers that are identified as highrisk by bat experts using the best science available”). 4

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while minimization and mitigation measures might be an appropriate response to reduce wildlife impacts at lower-risk wind energy sites, higher-risk sites (such as those with documented maternity colonies of listed bat species) are simply not appropriate locations for wind turbines at all because of the magnitude of the harm to listed species that will inevitably result.2 Therefore, at a site which the Service clearly recognizes to be a very high-risk site for Indiana bats, see BO at 43 (finding that “this [is] a high-risk zone for bats due to turbine operation”) – and the first wind project in the country to threaten the extirpation of a critical maternity colony for an imperiled species – the first step in the process should have been, and still should be, the consideration of avoidance of this particular site for a wind project altogether. The Service appeared to recognize this important step in the process in 2007 when “[t]he Service recommended that the project be moved to a different location due to the presence of Indiana bats.” BO at 5 (emphases added). However, presumably at the urging of the developer, the Service quickly jettisoned that biologically defensible approach in favor of a mitigation-only approach designed merely to mitigate the effects of a project at a patently unacceptable site – an apparently outcome-driven decision which, if implemented without further ESA consultation, will lead to lethal turbines in an extremely biologically sensitive location with grave impacts to listed wildlife.3 Indeed, not only would rejection of the proposed site comport with the Service’s own policy statements to date recommending avoidance of high-risk locations as well as the Service’s 2007 explicit recommendation urging that the project be moved elsewhere, but it would also

In a deposition during a recent federal trial under the ESA examining the impacts of a proposed wind energy project in West Virginia on Indiana bats, even Dr. Michael Lacki – a hired expert testifying on behalf of the wind energy developer – explained that a single death of a female Indiana bat would be biologically unacceptable because of the importance of maternity colonies, and that, in his opinion, a single female death would require “[s]hutting down turbines” entirely. Attachment 5 at 111-112. Here, not only does the Service purport to authorize the construction of this project on a site with a known maternity colony, but in doing so the Service adopted an Adaptive Management Plan developed in conjunction with the developer which allows dozens of female Indiana bats (and their offspring) to be killed during the life of the project. The Service’s conclusion cannot be squared with even the more conservative views of bat biologists within the scientific community that work for wind companies, as exemplified by Dr. Lacki’s testimony on this subject. Based on our extensive review of various wind projects sited throughout the United States and particularly within the Appalachian corridor, the proposed project is the only one to pose this level of risk to Indiana bats by threatening extirpation of a maternity colony. If the exigent wildlife risks inherent in this project are not enough to compel the Service and the PGC to require or strongly recommend avoidance of a site to a developer, it is difficult to fathom any circumstances that would reach the level of urgency to convince the agencies to actually implement and enforce the strong rhetoric contained in their various guidance documents. 5
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serve other key public interest purposes in ensuring that this wind project, if built, would have substantially less impact to wildlife, wetlands, and other ecological resources than currently anticipated. For example, as we have long pointed out, neither the developer, nor any federal agency, has ever seriously considered a logical siting alternative located in what appears to be a less biologically sensitive area several miles from the proposed project, and which is owned by the same corporation that owns the proposed project area. More detailed information about that alternate site can be found in our prior letters. In sum, by failing to expressly consider avoidance of the proposed site as a step in the section 7 process, the Service has failed to fully assess in the Biological Opinion the impacts of this project on Indiana bats, and in particular on the on-site maternity colony. This patent legal violation is underscored by the Service’s complete failure to consider at all the detailed declarations of undisputed leading bat biologists (Drs. Kunz, Gannon, and Robbins) who all independently concluded that this project will in fact cause jeopardy to the on-site maternity colony, and who therefore recommended that macrositing changes be considered and implemented to accord with the best available science on Indiana bats and wind energy. That stark omission – which is highlighted by the Biological Opinion’s Literature Cited section that does not mention any of those declarations, see BO at 81-88 – alone requires the Service to reinitiate consultation to consider and address the serious biological concerns raised by leading biologists with respect to macrositing and micrositing of this project in a manner that would significantly alleviate the inherent risk of this project as currently planned. 50 C.F.R. § 402.16(b) (requiring reinitiation of consultation where “new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered”) (emphasis added). B. The Service Did Not Rely On The Best Available Science In Rendering Its Biological Opinion, And In Turn, Failed To Explain How The Adaptive Management Plan Will Ensure Against Jeopardy Of The On-site Maternity Colony.

In rendering its Biological Opinion and finding that jeopardy to the on-site maternity colony will not result from the additive mortality from the Shaffer Mountain Wind Project, the Service has relied heavily on several key assumptions that the agency concedes are entirely uncertain, and has also adopted an Adaptive Management Plan developed in conjunction with the developer that proposes to implement monitoring and other measures that will be wholly ineffective in measuring the impacts of turbine operation to the on-site maternity colony. By proceeding based solely on highly speculative and uncertain science, the Service has turned the ESA’s presumption of “institutionalized caution” on its head, see Tenn. Valley Auth. v. Hill, 437 U.S. 154, 194 (1978), authorizing a project with unknown consequences for a critical maternity colony of endangered Indiana bats that itself is of unknown size, in violation of the ESA. In the Biological Opinion, the Service acknowledges that there is indisputable evidence of a maternity colony in the action area for the project. See, e.g., BO at 12-13. Indeed, maps included in the Opinion show that the presumed maternity colony roost tree cluster is adjacent to 6

certain of the proposed turbine locations, and very close in proximity (less than 3 miles) to all of the proposed turbines, presenting a grave risk to female and juvenile Indiana bats. Id. at 13, 38, 40. At the same time, the Service also explains that, because of the significant threat of WNS, the “Indiana bat summer population in Pennsylvania is expected to decline commensurate with the decline in regional hibernating populations, [which will] result in a decline in the size and/or number of maternity colonies.” Id. at 37. The Service further acknowledges that “[t]urbines will be distributed in two strings within a heavily-forested, 2x4 mile area, making this a high-risk zone for bats due to turbine operation.” Id. at 43 (emphasis added). As a result, the Service rightfully concedes that, without operational measures designed to minimize Indiana bat deaths, turbine operation would “probably lead to [the maternity colony’s] extirpation,” see BO at 6061, which would constitute jeopardy to the species and its Appalachian Mountains Recovery Unit. Cf. id. at 34.4 The Service purports to reconcile these patently contradictory facts with its authorization to construct the project by relying on an Adaptive Management Plan (“AMP”) developed in conjunction with the developer, which requires the wind developer “to reduce the risk of maternity colony extirpation” by implementing nondiscretionary take minimization measures, habitat conservation measures, post-construction monitoring, and specified turbine cut-in speeds. Id. at 94. In the Service’s apparent view, the developer’s compliance with the AMP will reduce mortality levels to the point where the maternity colony will not face extirpation. See id. at 7479. Despite the Service’s conclusion that jeopardy will not result to the on-site maternity colony, the assumptions and methodologies relied on by the Service in rendering that opinion are legally and scientifically groundless, as explained below. 1. The Service Failed To Consider The Best Available Scientific Evidence In Estimating The Starting Maternity Colony Population Size.

The Service’s tenuous non-jeopardy conclusion hinges heavily on the arbitrary and unsupported assumption that there are 50 (or more) adult female Indiana bats that constitute the on-site maternity colony each summer. As the Service states in several places in the Biological Opinion, the “fatality rate [may] not exceed 2% of the maternity colony annually,” which is the equivalent of one Indiana bat mortality each year, assuming, as the Service did, a starting maternity colony size of 50. E.g., id. at 11 n.1, 61-62, 63 n.15. The only rationale provided for

The Service appears to recognize that the extirpation of a critically important maternity colony – especially in light of the dramatic decline of Indiana bat populations due to WNS – would result in jeopardy, as that term is defined by the ESA. 50 C.F.R. § 402.02 (defining jeopardy as “engag[ing] in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species”). That proposition is supported by leading bat biologists, who have previously opined that adverse impacts to this onsite maternity colony from turbine operation would jeopardize the species’ survival and recovery. Attachment 1 ¶ 6; Attachment 2 ¶¶ 7-8. 7

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assuming that this maternity colony contains 50 adult females is that “[t]he average maternity colony size is 50 to 80 adult females,” according to a single pre-WNS study in Indiana where the species’s population is the densest of any place in the species’ range. Id. at 16. However, this assumption of a starting maternity colony size of 50 adult females was not only adopted in a vacuum absent any site-specific evidence gathered by the developer, its hired consultants, or the Service suggesting in any way that there exists a starting size of 50 females, but it also contradicts well-established scientific principles indicating that maternity colony populations frequently have less than 50 adult females. See, e.g., Attachment 6, J.O. Whitaker & V. Brack, Jr., Distribution and Summer Ecology in Indiana, in The Indiana Bat: Biology and Management of an Endangered Species, at 51-52 (2002) (explaining that some observed maternity colonies have as few as 16 adult females even in Indiana, which at that time “harbor[ed] ca. 173,000 hibernating Indiana bats, which is 45% of the rangewide total”) (emphasis added); Attachment 7, E.R. Britzke, M.J. Harvey, & Susan C. Loeb, Indiana Bat Maternity Roosts in the Southern United States, 2 Southeastern Naturalist 235, 235 (2003) (noting that “evidence from band recoveries suggests that most females move north from hibernacula to establish maternity colonies of 25-100 individuals”) (emphasis added); Attachment 8, W.J. Chandler, Audubon Wildlife Report (1989) (explaining that maternity colonies are composed of “several to 50 adult females and their young”) (emphasis added). Moreover, the Service’s unfounded assumption of a starting population size of 50 adult females is even more baseless in view of scientific evidence suggesting that maternity colonies tend to consist of fewer Indiana bats as the species’ populations move away from the population center of its range in Indiana, Illinois, and Missouri. Indeed, in the few studies to address maternity colony size in more peripheral areas of the species’ range, biologists have found colonies as small as 23, 25, and 30, respectively. See Attachment 7, Britzke, Harvey, & Loeb (2003) (finding maternity colony sizes of 23 and 25 in the Appalachian region of western North Carolina and eastern Tennessee); Attachment 9, A. Kurta, S.W. Murray, & D.H. Miller, Roost Selection and Movements Across the Summer Landscape, in The Indiana Bat: Biology and Management of an Endangered Species, at 118, 118 (2002) (explaining that the “[n]umber of adults at southern roosts [in Indiana and Missouri] frequently exceeded 40 bats, but emergence counts at northern trees [in Michigan] typically yielded fewer than 30 animals”) (emphasis added). Therefore, considering that the entire state-wide Pennsylvania population of Indiana bats is relatively small (approximately 1,031 bats), see BO at 22, and because the Shaffer Mountain Wind Project is proposed for Appalachian ridges very similar to the locations where one peer-review study observed maternity colonies of only 23 and 25 adult females respectively, see Attachment 7, Britzke, Harvey, & Loeb (2003), it is highly unlikely based on the best available scientific evidence that the starting size of the on-site maternity colony here is 50 adult females. Indeed, based on FWS’s own estimated population number of 1,031 Indiana bats in Pennsylvania – of which it must be presumed that 50%, or 515 bats, are females – it would be impossible to assume a starting population of 50 females because FWS acknowledges that there are eleven known maternity colonies in Pennsylvania, see BO at 37, which would mean an 8

average of no more than 46 females per colony even with 100% summer residency in the State, which evidence has proven not to be the case since several Pennsylvania females have been tracked to maternity colonies in Maryland and West Virginia. Id.5 Accordingly, because an accurate starting colony size is extremely crucial from a biological perspective in determining how the anticipated additive mortality from the project’s wind turbines will impact the maternity colony’s long-term survival and recovery, and thus will determine what level, if any, of additive mortality is acceptable to avoid jeopardy of this maternity colony, the Service’s wholesale failure to consider and rely upon the best available evidence in determining the starting colony size was scientifically erroneous and constitutes a flagrant violation of section 7 of the ESA. 2. The Service’s Reliance On The AMP As A Basis For Monitoring Long-term Surival And Recovery Efforts Of The On-site Maternity Colony Is Scientifically and Legally Erroneous.

Even assuming the Service had put forth a legitimate scientific rationale for a starting maternity colony size of 50 adult females – which it did not – the Biological Opinion is still invalid because the AMP that the Service relies on to avoid jeopardy does not provide any assurance that it will in fact be adequate to monitor the size and health of the on-site maternity colony, and to consequently address any problems before the colony reaches its unknown tipping point toward jeopardy. Pursuant to the AMP, the developer is required to conduct certain monitoring (mist netting and radio-telemetry) of Indiana bats for at least the first five years of turbine operation in order to account for turbine impacts on the maternity colony. BO at 92. Because “Indiana bats are expected to suffer mortality due to turbine operation,” id., the developer must conduct such monitoring in an attempt “to determine to what extent the project affects Indiana bats . . . [including by determining] maternity colony size.” Id. at 93. The Service concedes that these types of monitoring provide no guarantee, much less a reasonable assurance, that they will be adequate to document and track subtle but vitally important changes to the maternity colony’s population: “Monitoring studies have the potential to identify the extent of these effects, and

The best available scientific evidence also suggests that there are Indiana bat maternity colonies on the landscape in Pennsylvania that have not yet been located due to limited surveying effort and financial constraints. See BO at 25 (“Because maternity colonies are widely dispersed during the summer and difficult to locate, it is presumed that all the combined summer survey efforts have found only a small fraction of the maternity colonies that are thought to exist.”). Assuming, as the Service must in rendering its Biological Opinion, that maternity colonies likely exist in Pennsylvania in addition to the eleven that have been discovered to date, the average maternity colony size in Pennsylvania would necessarily decrease proportionately in relation to the expected number of maternity colonies throughout the State. 9

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serve as a means to determine whether the effects of the project on Indiana bats and their habitat are consistent with those anticipated.” Id. (emphasis added). While mist netting and radio-telemetry can of course provide some valuable information about bat species in the area and potentially even information about Indiana bats, it is unreasonable to assume that these monitoring activities will lead to precise information on the maternity colony’s population size, and in turn will somehow provide information sufficient to determine whether the developer has in fact complied with the AMP, and thus the Biological Opinion, by killing no more than a single adult female each year. To be clear, the developer has already conducted relatively extensive mist netting and radio-telemetry on the project site in 2007 and 2008, and yet still does not even know the location of the maternity colony, much less the size of the maternity colony that will inevitably be impacted by operating turbines. Id. at 46-47 (noting that “the location of the maternity colony’ primary roosts remains unknown”). That fact alone compels the conclusion that mist netting and radio-telemetry, while providing crucial information concerning Indiana bat presence on the site, are inadequate for assessing the subtle population changes that will almost certainly result to the maternity colony, specifically where those same monitoring efforts have proven insufficient to document the precise location of the maternity colony. Furthermore, assuming the location of the primary maternity roosts were in fact known, the developer would still have serious difficulty, if not total futility, in accurately measuring the size of the maternity colony in order to determine long-term effects to the colony as well as compliance with the AMP. As the scientific literature makes clear, “[a]n added difficulty is that the fission-fusion society of [female Indiana] bats causes population size to fluctuate unpredictably, even at preferred trees, and determining actual size of a ‘colony’ will demand more than a single emergence count at one tree.” A. Kurta, S.W. Murray, & D.H. Miller at 128. Therefore, it is seemingly impossible for the developer here to accurately account for the maternity colony’s population from one year to another – given the known difficulty of measuring Indiana bat maternity colony population size in light of the species’ fission-fusion behavior and other species’ characteristics – which undermines the entire basis for relying on the AMP in the first instance. If, as appears to be the case, the impacts to the maternity colony will not be readily apparent to the Service and the public in real time (or ever) as turbines and WNS affect the maternity colony population on the ground, it will be impossible for the Service to reinitiate consultation in a timely manner, in the event that the authorized amount of take is exceeded. Such a result flies in the face of the ESA, and cannot withstand scrutiny under section 7, and therefore must be revisited.6

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Because of fission-fusion behavior within a colony, as well as defections to other maternity colonies, it will be impossible to gauge whether this maternity colony is in fact declining, staying stable, or growing yearly based on monitoring results. This is an especially precarious situation because, while the Service has authorized a bat death annually on the assumption of a starting colony size of 50, that same mortality rate might result in jeopardy if the actual starting size is 10

3.

The Service’s Arbitrary Imposition Of Take Minimization Measures Is Not Based On Biological Factors And Therefore Violates The Section 7 Best Available Science Requirement.

Setting aside the glaring errors with respect to the starting maternity colony size and the inadequacy of post-construction monitoring to ensure against jeopardy of the colony, the Service has taken a fundamentally arbitrary approach to minimization measures intended to reduce take of Indiana bats. During the nighttime period when Indiana bats forage and otherwise use the landscape, the AMP proposes to entirely shut down the 3 turbines closest to the anticipated location of the maternity colony. BO at 58 (“The three turbines closest to the identified roost tree cluster would not be operational at all during this period.”); see also id. at 61, 91-92. The other 27 turbines, however, will be operational and will use cut-in speeds of 5.5 meters per second, which even the Service acknowledges will result in Indiana bat deaths. E.g., id. at 58, 91. Nowhere in the Biological Opinion did the Service provide any biological evidence or other justification for why, at the least, more turbines should not be shut down to minimize Indiana bat mortality and reduce impacts on the on-site maternity colony during nighttime from April 1 to October 15. Indeed, the maps provided in the Biological Opinion demonstrate the close proximity of the presumed maternity colony to all 30 turbines, with all turbines falling within three miles of the colony, and at least 15 turbines (or half the project) falling within approximately one mile of the colony. See id. at 13. But, without explanation, the Service authorized a more protective measure (non-operation) for the three closest turbines to the maternity colony, while at the same time authorizing a less protective measure (operation with a cut-in speed) for the remaining 27 turbines, or 90% of the overall project. There is absolutely nothing in the Biological Opinion or pertinent scientific literature to suggest that female Indiana bats (or their offspring) are any less likely to forage a half-mile or mile from their colony than a quarter-mile from their colony. Indeed, the Service acknowledges that “2.5 miles is the maximum distance that females typically travel from their roosting area to forage.” Id. at 57. Accordingly, considering that 27 turbines (90% of the project) fall within the distance of the maternity colony that the Service expects to be the “typical” foraging distance, it is biologically indefensible to only require non-operation of 3 turbines, or merely 10% of the project when bats are on the landscape and at risk of mortality. The arbitrary and wholly unsupported nature of this conclusion is underscored by the fact that the Biological Opinion and AMP are written so as to never require more than 3 non-

less than 50 or if the colony size drops below 50 at some point in the future but goes undetected by mist netting and radio-telemetry. Where such a high level of uncertainty exists – even when employing the Service’s preferred monitoring techniques – the Service must decide in favor of the species’ by applying an “institutionalization of caution” and ensuring against jeopardy, but here has instead decided to roll the dice with a critically imperiled species in a known biologically sensitive location. 11

operational turbines during the period when Indiana bats are active, even if the maternity colony shifts in the future and is directly adjacent to more than three turbines. Id. at 92. Conversely, if the maternity colony shifts farther away from the project, the applicant still must retain nonoperational status for the 3 turbines closest to the maternity colony at night between April 1 and October 15, which we fully support, although we note it to further illustrate the arbitrariness of selecting the number of turbines based not on factors that are supported by any biological evidence of species behavior, but instead on a limited number with no scientific basis. Because section 7 explicitly requires the Service to avoid jeopardy to listed species by imposing nondiscretionary terms and conditions in a Biological Opinion that will achieve a non-jeopardy result in light of available scientific evidence, it was a violation of the Service’s duties to instead select take minimization measures that are simply most convenient for a developer but which the Service has not determined to be biologically adequate to avoid jeopardy based on the available scientific evidence. 4. The Service’s Modeling Is Far Too Uncertain To Authorize Routine Deaths Of Indiana Bats, In Violation Of The ESA’s Requirement Of An Institutionalization Of Caution.

The Service’s modeling and extrapolation efforts in the Biological Opinion are highly speculative and fail to take the cautious approach to protecting listed species that is required by the ESA. Even assuming that the Service’s use of a starting colony size of 50 adult females was proper – which, again, it was not – the Service’s models are seriously flawed because they fail to account for the wide range of uncertainty that exists with the recent onset of WNS and the unknown future of Indiana bats generally, and of this on-site maternity colony specifically.7 In attempting to determine the appropriate baseline against which to judge impacts of the proposed project, the Service implemented a basic deterministic model to assess the likely impacts of turbine operation on the maternity colony. BO at 58-71. The bulk of its modeling – which used a “simple design . . . [with] the inability to incorporate stochasticity” – focused primarily on what are akin to (1) the worst case scenario in which WNS extirpates the colony in 8-10 years, and (2) the best case scenario in which WNS has no measurable effects on the colony. Id. at 65-71. In the worst case scenario, FWS concluded that, if WNS has a “severe effect,” the colony “may face extirpation in eight to ten years in the absence of any turbinerelated fatalities,” meaning that the project’s additive Indiana bat mortality can be authorized because “[o]peration of the Shaffer Mountain wind farm in accordance with the AMP does not appear to accelerate maternity colony extirpation because the additive mortality from turbine

As leading bat biologists have explained, the preservation of every Indiana bat maternity colony is crucial especially in view of the threat presented by WNS. E.g., Attachment 1 ¶ 6 (“[I]t is my scientific opinion that, while each and every Indiana bat might prove critical for survival and recovery of the species [in light of WNS], maternity colonies are the most important resource to be protected to further efforts to save this unique and ecologically beneficial species.”) (emphasis added). 12

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operation is masked by the magnitude of the WNS-related effects on survivorship and fecundity.” Id. at 68. On the other hand, in the best case scenario where WNS does not impact the colony in any way, the Service concluded that “the maternity colony would gradually increase over time under the curtailment scheme detailed in the Adaptive Management Plan,” although the Service noted that the model’s failure to account for stochasticity means that instead of increasing in size the maternity colony would probably stay stable while experiencing no growth due to stochastic events. Id. at 66-67. There are several glaring errors with the Service’s modeling, which presents a legally and scientifically groundless baseline upon which to judge the impacts of turbine operation. See 50 C.F.R. §§ 402.02, 402.14(g). First, with respect to the worst case scenario model, the Service reached a conclusion after reviewing that model to authorize lethal turbine operation that cannot be reconciled with the ESA’s “institutionalization of caution,” Tenn. Valley Auth. v. Hill, 437 U.S. at 194, or the Service’s own statements elsewhere in the Biological Opinion. Specifically, assuming, as the worst case scenario model does, that WNS will devastate Indiana bat populations in Pennsylvania and could lead to extirpation to this maternity colony in 8-10 years, see BO at 68, the Service cannot rationally conclude that turbine operation (i.e., additive mortality of one potentially pregnant female Indiana bat each year) will have no effect on the long-term survival and recovery of the maternity colony because that mortality would be “masked by the magnitude of the WNS-related effects on survivorship and fecundity.” Id. at 68. This illogical conclusion is contradicted by statements elsewhere in the Biological Opinion that suggest that some subset of WNS-affected Indiana bats are likely to develop resistance over time, id. at 67-68, and also scientific evidence suggesting that pathologists are working diligently to better understand, and ultimately find a cure for, WNS. E.g., J. M. Lorch, et al., Experimental Infection of Bats with Geomyces Destructans Causes White Nose Syndrome, 10 Nature 1038 (2011), available at http://www.nature.com/nature/journal/vaop/ncurrent/full/ nature10590.html. Thus, to entirely discount the impact of killing one (potentially pregnant) female per year for up to ten years – assuming the model correctly predicted extirpation in Year 10 – as irrelevant because of the magnitude of WNS’s effect on the maternity colony misses the importance of both ensuring the protection and survival of WNS-resistant female bats at this colony, as well as the need to conserve as many members of the species as possible (and particularly females), until a WNS cure or treatment is discovered.8

To provide a concrete example of what the Service should have, but never considered in modeling its worst case scenario, assume that there is a starting colony population of 50 and that additive mortality of one potentially pregnant female bat is authorized each year, and such mortality in fact occurs, of course in full compliance with the AMP. Under that scenario, extirpation might happen in Year 6, instead of Year 8 or Year 10 as anticipated in the absence of any additive mortality from wind turbines, see BO at 68, because it would remove six adult females by that point (12% of the starting population, and a much larger percentage of the colony as the population declines over time) and potentially six fetal bats that would have otherwise been born and added potential resistance to the maternity colony population. See BO at 64 (explaining that an adult female mortality “would automatically result in the loss of her 13

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Second, the Service’s best case scenario also cannot pass muster under the ESA’s requirement that Biological Opinions and their conclusions be based on the best available science. In the unlikely event that WNS does not impact the size and health of the on-site maternity colony, the Service has concluded that turbine operation pursuant to the AMP (i.e., one death of a pregnant female Indiana bat each year) will appear to allow for growth of the maternity colony, but in actuality the colony will most likely stay stable without any growth due to the model’s failure to account for any stochasticity. Id. at 66-67. While the Service provides a conclusory and self-serving assurance that “the results obtained were conservative . . . [because of] the inability to incorporate stochasticity,” id. at 66, the inherent inability of the Service’s model to factor in stochastic events is problematic from a scientific standpoint since such events will invariably occur during the life of the wind project. Because there is a wide data gap here about the level of impact to be expected from stochastic events and how those impacts would affect the long-term survival and recovery of the on-site maternity colony, it was legal and biological error for the Service to nonetheless conclude that, based on this simple model, the death of one Indiana bat per year – in conjunction with entirely unknown stochastic events – would be reasonably certain not to “directly or indirectly . . . reduce appreciably the likelihood of both the survival and recovery” of this maternity colony. 50 C.F.R. § 402.02; BO at 73. Since it is impossible for the Service to render that conclusion with reasonable confidence based on the model employed, the Service should have instead used a different model that is biologically sound, or alternatively proceeded with an “institutionalization of caution” by determining that the data gaps compel the Service to protect the maternity colony by, at minimum, requiring nonoperation of all turbines during nighttime when bats are on the landscape. Third, while much of the Service’s modeling discussion in the Biological Opinion focused on the worst case and best case scenarios, the available scientific evidence suggests that a very plausible, if not the most likely scenario is something in the middle of those two (i.e., WNS has some level of impact short of extirpation, but significant enough that additive mortality must either be prohibited or very cautiously authorized). See id. at 68 (“[I]t is possible that WNS will have a moderate rather than severe effect on Indiana bats.”). Yet, again, the Service somehow concludes with reasonable certainty that compliance with the AMP (i.e., one Indiana bat mortality per year in addition to WNS deaths) will not “directly or indirectly . . . reduce appreciably the likelihood of both the survival and recovery” of this maternity colony, id. at 73,

offspring”). This is problematic because, had the additive turbine mortality not been authorized by the Service, and a WNS cure or treatment is developed in Years 7-9, the colony would have had a chance of survival and recovery. But, in authorizing this level of additive mortality, there is no colony in Years 7-9, meaning that the Service has summarily eliminated a significant period of time under which this highly imperiled species would otherwise have an opportunity to wait out WNS for a total or partial cure. This error is exacerbated because the few remaining individuals in Years 5 and 6 under the Service’s scenario would most likely be those who developed WNS resistance, and by authorizing their deaths by additive turbine mortality, the Service effectively would toll the death knell of not only this maternity colony, but potentially the strongest bats critical for survival of the recovery unit and species as a whole. 14

but the entirety of the Service’s discussion of this third scenario concedes that it is merely speculation without any scientific basis. As stated in the Biological Opinion, Without knowing how and to what degree demographic parameters may change over time, to what degree WNS-resistance may develop, and to what degree recovery efforts may mitigate the effects of WNS, the results of modeling efforts would be highly speculative. While AMP implementation would probably allow for maternity colony persistence and growth in the absence of WNS, the effects of AMP implementation in conjunction with WNS are much more difficult to predict. Therefore, monitoring over the life of the project is proposed to ensure turbinerelated mortality is low enough to allow for maternity colony survival and recovery. BO at 69 (emphases added); see also id. at 74 (“There is a great deal of uncertainty about the manner in which the maternity colony will be affected by WNS over the 30-year life of the project.”) (emphasis added). As already explained above, since the post-construction monitoring is virtually certain to be ineffective at accurately documenting the turbine-specific effects to the maternity colony, the Service has provided no permissible scientific rationale in light of the vast uncertainty of this modeling scenario for deciding in favor of turbine operation and regular additive mortalities of female Indiana bats, in lieu of species-protective measures that would better ensure maternity colony survival and recovery, in stark violation of the ESA’s “institutionalization of caution.” 5. The Service Has Not Explained Why Non-discretionary Minimization Measures Should Stop Each Year On October 15.

In its Biological Opinion, the Service required the developer, pursuant to the AMP, to implement certain take minimization measures (cut-in speeds of 27 turbines and non-operation of 3 turbines) at nighttime between April 1 and October 15. The Service provides no scientific rationale for the use of those dates. Indeed, the Service seems to indicate that some Indiana bats “are expected to remain in their summer habitat as late as September or mid-October” before engaging in a process called swarming that occurs each fall. BO at 59. Moreover, the only operating project to our knowledge to have taken similar measures due to the risks posed to Indiana bats implemented measures (in that case, non-operation of all 67 turbines) from April 1 to November 15, based on scientific literature indicating that the last Indiana bats enter hibernacula in mid-November. E.g., Stipulation, Beech Ridge Wind Project, available at http://www.windaction.org/documents/25382. Therefore, at minimum, the Service was obligated to consistently apply the temporal constraints at the Shaffer Mountain Wind Project, or explain why Indiana bats that will use this particular project site are somehow biologically different than other Indiana bats throughout the species’ range in terms of when they enter hibernation. The failure to consider the best available science on the Indiana bat, particularly as applied by other wind projects where the Service is overseeing operational impacts to Indiana bats, is a violation of section 7.

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C.

The Service Failed To Consider The Cumulative Effects Of Wind Energy On Indiana Bats, Particularly In Conjunction With WNS.

In every Biological Opinion, the Service is required to consider all cumulative effects in conjunction with the effects of the action. See 50 C.F.R. § 402.14(g)-(h). Cumulative effects are “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation. Id. § 402.02 (emphases added). As the Service acknowledges, “the action area typically extends some distance beyond the project footprint,” and here necessarily includes “flight path disruption” for any Indiana bats within migratory distance. See BO at 12. The Service also notes the long distances that Indiana bats fly in this region, illustrated by two recent female Indiana bats that migrated 84 and 92 miles respectively from near the project site to summer habitat in Maryland and West Virginia. Id. at 37. The Service’s brief “Cumulative Effects” section in the Biological Opinion only looked at timber operations and potential oil and gas development in the vicinity. Id. at 72. There is no discussion about other wind projects within the migratory distance of the bats that will forage at, migrate through, or otherwise use the Shaffer Mountain project site or its airspace during the projects’ lifespan. At present, there are 17 operating wind projects in Pennsylvania with 450 total turbines. See Penn Future, Wind Farms in PA, available at http://www.pennfuture.org/ content.aspx?SectionID =192&MenuID=. Of those, 12 projects consisting of 254 total turbines are in very close proximity to the proposed location of the Shaffer Mountain Wind Project (which is proposed to sit on the border between Somerset and Bedford Counties), as illustrated by the following map:

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Penn Future, Map of PA Wind Farms, available at http://www.pennfuture.org/ content.aspx ?SectionID=192&MenuID=. Moreover, in nearby West Virginia and Maryland there are several wind projects along the Indiana bat migratory corridor that the Service has documented Pennsylvania bats to traverse in spring and fall from nearby hibernacula. See BO at 37. For example, the Mount Storm Wind Project in Grant County, West Virginia has 132 turbines; the Mountaineer Wind Project in Tucker County, West Virginia has 44 turbines; the AES Laurel Mountain Wind Project in Barbour and Randolph Counties, West Virginia has 61 turbines; and the Criterion Wind Project in Garrett County, Maryland has 28 turbines. In addition, several additional nearby projects are planned for construction in the very near future (e.g., the Pinnacle Wind Project in Mineral County, WV with 23 turbines, and the Roth Rocks Wind Project in Garrett County, Maryland with 20 turbines). The failure of the Service to consider and analyze at all the cumulative effect of the Shaffer Mountain Wind Project on both male and female Indiana bats, in conjunction with the anticipated impacts from the hundreds of lethal turbines impeding and disrupting Indiana bat flights paths each spring and fall, fails to comport with the best available scientific evidence regarding cumulative effects, and was contrary to section 7 and the ESA’s implementing regulations. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)-(h). D. The Service Did Not Consider The Recent Mortality Of An Indiana Bat At A Nearby Wind Project.

On September 27, 2011 – the same day the Biological Opinion was issued to the Corps – the Service was informed that an Indiana bat had been killed at the North Allegheny Wind Project, located in Blair and Cambria Counties, Pennsylvania, which are directly adjacent to Somerset and Bedford Counties where this project is currently proposed. See FWS, Indiana Bat Fatality at Pennsylvania Wind Facility, available at http://www.fws.gov/northeast/pafo/. The “carcass was located during voluntary post-construction mortality monitoring,” which is known to overlook many, and often a substantial majority of, bats depending on the timing, search intervals, and search methods employed, and which makes finding a rare endangered bat even more difficult under the circumstances. Therefore, the fact that an Indiana bat was found at all in light of these searcher inefficiencies – on a project site where there is not a maternity colony or other significant concentration of Indiana bats – is highly pertinent to the Service’s analysis of projected impacts here where there is a maternity colony, substantially increasing the risk of mortality at this site. Said differently, the fact that the North Allegheny Wind Project – which necessarily presents less risk to Indiana bats than the Shaffer Mountain Wind Project due to the Shaffer Mountain on-site maternity colony – killed at least one Indiana bat, which is the maximum allowable limit under the AMP at the Shaffer Mountain Wind Project, means that the Service should consider whether and how the correlative levels of risk at the two projects in light of this confirmed death might affect the anticipated level of take at certain cut-in speeds at the Shaffer Mountain Wind Project. Until that analysis is conducted, the Biological Opinion has failed to incorporate a key piece of scientific evidence that has a direct bearing on whether the 17

Service’s conclusion of expected impacts under the AMP is factually and biologically accurate. For this and the other reasons set forth above, the Service (and the Corps) cannot lawfully proceed without, at minimum, reinitiating consultation to account for the deficiencies identified above. 50 C.F.R. § 402.16. II. There Are Serious Risks To Migratory Birds, But The Developer Has Not Evidenced Its Intent To Comply With The MBTA Or BGEPA.

Setting aside the ESA issues identified above, we continue to express concerns that the project, as planned, will have substantial impacts on migratory birds, and particularly on Golden eagles that will migrate through the project site in large numbers and at heights that will result in death and injury from turbines. Indeed, this migratory pathway has been designated as an “Important Bird Area” by the Audubon Society – a designation that the Service-appointed advisory committee defines as “hav[ing] been recognized according to scientifically credible information as having high wildlife value,” and a designation which the advisory committee used as its prime example of an area which is “inappropriate for large scale development” of wind energy. Wind Turbine Guidelines Advisory Committee Recommendations to the Secretary of the Interior at 16, http://www.fws.gov/habitatconservation/windpower/Wind_Turbine_ Guidelines_Advisory_Committee_Recommendations_Secretary.pdf (emphases added). As we have explained in past letters and comments, the Powdermill Nature Reserve and the National Aviary have confirmed through research that a significant portion of the entire population of Golden eagles in the eastern U.S. regularly migrates over and through the project site (i.e., it is their primary migration path), and that the eagles’ routine travel pattern takes them within the projected rotor swept area of the proposed Shaffer Mountain Wind Project turbines. There are only approximately 500-800 pairs of Golden eagles in the eastern U.S., which migrate between eastern Canada and the Allegheny front in Pennsylvania. A scientific analysis is presently being conducted to determine whether this population is sufficiently genetically distinct to qualify as a subspecies. In any case, there is no doubt, based on the available research, that a large percentage of the entire east coast population migrates across, through, and otherwise uses, the Shaffer Mountain project site, and hence faces exceptionally high risks from the project. Shaffer Mountain Wind LLC has not sought, and evidently does not intend to seek, authorization from the Secretary of the Interior to permit the killing of birds listed under the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. §§ 703-11. The MBTA strictly prohibits killing listed birds without such authorization. Enacted to fulfill the United States’ treaty obligations, the MBTA provides that “[u]nless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird.” Id. § 703(a) (emphasis added). Most, if not all, birds that traverse the Somerset and Bedford County migratory pathway are protected by the MBTA. See 50 C.F.R. § 10.13 (listing the birds protected by the MBTA); 18

Final List of Bird Species to Which the MBTA Does Not Apply, 70 Fed. Reg. 12710 (Mar. 15, 2005). Collisions with Shaffer Mountain’s wind turbines are anticipated to kill many birds each year; the construction and operation of the wind power facility will result in habitat loss and fragmentation adversely affecting migratory birds; and the presence of wind turbines will very likely present a barrier to the flight path of migrating birds. In granting a section 404 permit to an industrial wind power facility that is reasonably certain to kill many birds each year that is not seeking authorization from the Secretary of the Interior, the Corps would be authorizing unlawful activity. See Humane Soc’y of the US v. Glickman, 217 F.3d 882, 884-88 (D.C. Cir. 2000) (holding that federal agencies must obtain authorization from the Department of the Interior before they kill birds protected by the MBTA); see also City of Sausalito v. O’Neill, 386 F.3d 1186, 1204 (9th Cir. 2004) (holding that “anyone who is ‘adversely affected or aggrieved’ by an agency action alleged to have violated the MBTA has standing to seek judicial review of that action”). In addition, Shaffer Mountain Wind LLC has not sought, and evidently does not intend to seek, authorization from the Secretary of the Interior to permit the killing or disturbing of eagles under the Bald and Golden Eagle Protection Act (“BGEPA”), 16 U.S.C. §§ 668-668(c). BGEPA strictly prohibits taking any bald or golden eagles without such authorization from the Secretary, id. § 668, and “taking” is defined broadly under the Act to encompass all activities that “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” eagles. Id. § 668(c) (emphases added). As federal courts have recognized, “[a] permit to take a bald or golden eagle can only be issued if the FWS determines that the kill is ‘compatible with the [eagle’s] preservation . . . [and] only [after] the Director of FWS has the authority to grant such a permit.” United States v. Jim, 888 F. Supp. 1058, 1060-61 (D. Or. 1995) (citations omitted). Moreover, the Service recently came out with its Eagle Conservation Plan Guidance, which defines “[eagle] migration corridors” such as the Shaffer Mountain ridges as “important eagleuse areas.” FWS, Draft Eagle Conservation Plan Guidance at 13, available at http://www.fws.gov/windenergy/docs/Final_ECP_draft_guidance_2.8.CLEAN.pdf. In such areas, a project cannot lawfully proceed without first completing an eagle conservation plan, and obtaining permission from the Service to proceed with the project. See id. Here, once again, based on the available research, there is no question that a large percentage of the entire Golden eagle population in the eastern U.S. will migrate through the proposed project site each year and will do so at a height that will bring them into direct contact with the turbines; thus Golden eagles will inevitably be subject to death, injury, and disruption of essential biological functions if the project is constructed as proposed. Moreover, the best available evidence clearly demonstrates that eagles are susceptible to turbine collisions resulting in death. See http://www.oregonlive.com/environmentlindex.ssf/2009/05/first_golden_eagle killed_by a.html (describing death of Golden Eagle from wind project in Washington); http://www.eastcountymagazine.org/node/3146 (describing various eagle mortalities from western wind turbines). Therefore, because there exists an enormous risk to Golden eagles here and the absence of a BGEPA permit, the project cannot proceed at least until and unless the developer brings itself into compliance with the MBTA and BGEPA.

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III.

The Biological Opinion And Other Factors Strongly Support, At Minimum, Preparation Of An EIS.

As we have previously stated, the best available scientific evidence counsels in favor of the Corps denying Shaffer Mountain Wind LLC’s application for a section 404 permit under the Clean Water Act (“CWA”), 33 U.S.C. § 1251-1387. Not only does this project pose, to our knowledge, the gravest risk to an Indiana bat maternity colony of any operating or proposed facility in the nation and pose a substantial risk to migratory birds and the eastern U.S. population of Golden Eagles, but this project also subverts the “public interest” as that term is defined under the Clean Water Act regulations, including because the developer (i.e., the CWA permit applicant) has consistently failed to seriously consider more practicable siting alternatives. More specifically, as a non-water dependent activity, the permit for wind turbine construction and operation cannot be granted unless the applicant “clearly demonstrate[s]” that there are not more practicable and less damaging alternatives – something which Shaffer Mountain Wind LLC has entirely failed to demonstrate by insisting on moving forward with a project site and design layout that threatens the continued existence of the Indiana bat and Golden Eagles, as well as other species of migratory birds and bats – despite repeated calls from conservation organizations and the Service to abandon this high-risk project site. Accordingly, because the Biological Opinion firmly reinforces the extremely acute risk to listed bats, see BO at 43 (calling “this a high-risk zone for bats due to turbine operation”), the Clean Water Act and its implementing regulations dictate denial of Permit 2007-119. Nonetheless, even if the Corps somehow determines that the developer’s application can pass the statutory and regulatory muster of the CWA – something which is very unlikely on this factual and scientific record – the Biological Opinion and risks to Golden eagles, along with other impacts, plainly bolster the need for preparation of an EIS here by the Corps, pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370. Although only one Council on Environmental Quality significance factor need be triggered to require preparation of an EIS, many significance factors are implicated here that compel that conclusion. Accordingly, because the Biological Opinion recognizes the severe and unprecedented risks that this project poses to an Indiana bat maternity colony, and the project also threatens many of the Golden eagles that migrate on the East Coast, an EIS is the only legally permissible way under NEPA in which the Corps could assess the project’s impacts. CONCLUSION The significant deficiencies in the Biological Opinion demonstrate that the Service has authorized construction and operation of the Shaffer Mountain Wind Project without consulting the best available scientific evidence with respect to Indiana bats and wind energy, and by adopting a process for evaluating the threats to the Indiana bat built almost entirely on uncertainty and speculation, in violation of section 7's requirements, the ESA’s implementing regulations, and the statute’s requirement that the Service proceed with an institutionalization of 20

caution in making decisions affecting list species. Indeed, rather than proceeding cautiously to protect a critically important maternity colony of the highly imperiled Indiana bat that is being decimated by WNS, the Service has opted to roll the dice and hope for the best, all so that the Shaffer Mountain Wind Project may proceed. While there might be scenarios under which Congress has authorized federal agencies to gamble with the public’s shared resources, this simply is not one of them because, in the ESA, Congress “indicate[d] beyond doubt that Congress intended endangered species to be afforded the highest of priorities” since their value is “incalculable.” Tenn. Valley Auth. v. Hill, 437 U.S. at 174, 187.9 Please do not hesitate to contact us if you wish to discuss this matter or have any questions concerning this letter. If we do not hear from you in the near future, we will assume that you are not interested in a collaborative resolution and we will consider all available avenues, including litigation, to conserve endangered Indiana bats in accordance with the requirements of the ESA and its implementing regulations.

Sincerely,

William S. Eubanks II Eric R. Glitzenstein

cc: Clint Riley/Carole Copeyon U.S. Fish and Wildlife Service Pennsylvania Field Office 315 South Allen Street, Suite 322 State College, PA 16801 Clint_Riley@fws.gov; Carole_Copeyon@fws.gov

While we recognize the Interior Department’s commitment to renewable energy and believe that to be an important goal, that commitment cannot and should not undermine the ESA process for a renewable energy project, particularly one that is proposed for siting in the riskiest location for a listed species of any wind project in the United States. Had this been a non-renewable energy project, for example a coal-fired power plant or a nuclear reactor, that threatened the survival and recovery of a vital maternity colony for a listed species being decimated by disease, we doubt that, based on this record and available scientific evidence, the Service would have reached a non-jeopardy conclusion. The evaluation of this project must be based on the “best available” science as the ESA dictates, and cannot be predetermined based on the kind of energy project it is. 21

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Allen R. Edris Regulatory Branch U.S. Army Corps of Engineers, Pittsburgh District 1000 Liberty Avenue Suite 2200 Pittsburgh, PA 15222 allen.r.edris@usace.army.mil Tracy Librandi Mumma Wind Project Coordinator Pennsylvania Game Commission 2001 Elmerton Avenue Harrisburg, PA 17110 tlibrandi@state.pa.us Michael Bean, Counselor US Department of the Interior 1849 C Street N.W. Washington, DC 20240 Michael_Bean@ios.doi.gov

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