ATTORNEYS AT LAW
Direct Dial: 304340.3895 Email: [email protected] December 11,2013 VIA HAND DELIVERY Ms. Ingrid Ferrell Executive Secretary Public Service Commission of West Virginia 201 Brooks Street Charleston, West Virginia 25301 Re: Case No. 05-1590-E-CS (Closed Entry) BEECH RIDGE ENERGY LLC Application for a Siting Certificate to Authorize the Construction and Operation of a Wholesale Electric Generating Facility and Related Transmission Support Line of less than 200 kV and Associated Interconnection Facilities in Greenbrier County and Nicholas County, West Virginia Dear Ms. Fenell: On behalf of Beech Ridge LLC (“Beech Ridge”), enclosed for filing herewith an Incidental Take Permit (“ITP”) issued by the United States Fish and Wildlife Service C‘USFWS’’) on December 5, 2013, which relates, in part, to the operation of the Beech Ridge Wind Farm. As the Public Service Commission of West Virginia (the “Commission’’) is aware, the United States District Court for the District of Maryland previously ordered that Beech Ridge seek an I”, but it also allowed operation of sixty-seven (67) wind turbines subject to certain conditions. Beech Ridge has operated under these parameters while it sought the ITP. Insofar as the United States Fish and Wildlife Service has issued an ITP to Beech Ridge, Beech Ridge’s position is that it will operate the wind farm in conformity with the ITP, the conditions contained in the Commission’s August 28, 2006 Order (the “Siting Certificate”) in the above-captioned matter and any applicable requirements of the District Court’s earlier mandates. Furthermore Beech Ridge hereby submits the ITP to satisfy any pre-construction and/or post-construction conditions contained in the Siting Certificate. I greatly appreciate your attention to this matter. Should you have any questions, please do not hesitate to contact me.
GPHS:rlm:5571822 Enclosure cc: John Auville, Esquire (w/Enclosure) Vincent Travelli, Esquire (wEnclosure)
Spilman Center : 300 Kanawha Boulevard, East Post Office Box 273 I Charleston,WestVirginia 25321-0273 www.spilmanlaw.com ’ 304,340.3800 i 304.340.3801 fax West Virginia North Carolina Pennsylvania Virginia FEDERAL FISH ANI) WILDLIFE PERMIT
UGULATIONS 50 CER 17.22 I PkRh¶rrER BEECH RIDGE ENERGY LIZ SO WR13 ONE SOUTH WACKER DRlYE! SUITE 1900 CHICAGO, IL GO606 U.S.A.
ANI) CO-PERMITTEE BEECH RIDGE ENERGY 11 LLC ONE SOUTH WACKER DRIVE SUITE CNICA 60606 U.S.A.
D. The co-permittees will hewresponsible for implementing the terms and conditions of the habitat conscwation plan (HCP), incidental take permit (I'W), and the implementing ngrccment (IA). If either eo-pemiittee fuits to implement the terms and conditions, then this permit will be considered to be in violation for both entities.
E. Acceptance of this permit serves as evidence that the cppcnnittees and zed agents undctstnnd and %=e to abide by ail of the terms of permit and all stionso Code of Federal Regulatioq parts 13 nent to issuance oEincidental take permits. Section 1 f ofthe Endangered Species Act as amended (ESA), provides for civil and penalties for failure to comply with pwmit conditions. F. The co-permittees, and their authorize na bnts fMptis sodcdix) and Virginia big-eared b intis townsendti vbgkiantrs), which we listed g wind turbine operations of phwsa I and H of the Wind Energy Project as described in the associ G. Thc authorir;ttioii granted by this permit is subject to full implementation and compliance with the HCP, including all appendices, and the IA between the U.S. Fish and Wildlife Service (USFWS) md the co-pennittzes. This TfP, the HCP, and the IA are binding upon &e co-permittees, and an authorized officer, employee. contmctor, or agcnt conducting covcred a&ivitits.
IL Unless the permit is amended, suspended, revoked or terminated, the pmit duration shall be 25 years. The signed and issued pmitwill be considered effective following execution of the IA by both USFWS and the co-permittees. I. This permit authorii~stake of Indiana bats and Virginia big-warcd bats on covered lands (HCP section 1.4 and HCP appendix A) over the 25-year permit period. 'rtte amount of take authorized by this permit is:
I. Cumulative mortality ofup to 53 Indiana bats (includingboth actual Indiana bats and estimated Indiana bat Mdities ham &e surrogate approach) associated with wind turbine opertttions {section 5.1 of HCP appendsx C) 2. Cunrulative mortality ofup to 14 Virginia big-med bots (including both actual Virginia big-eared bafs and estimated Virginia big-cmd ba ftrtatitics fiom the surrogate approach) associated with wind turbine operations (section 51oHICP appendix C)
J. In the event that one of following thresholds is exceeded, the co-permittees ~1:required to promptly notify and confplr with USFWS to dctermine whether adjdjustments to the wind turbiiie curtailment strategy, OT additional operational changes (section 5.1 of MCP appendix C), are required to emue the projcct remains within authorized take levels identified in pennit condition I.
1. Indiana bat estimated fatalities exueed 4.5 in any given year or Virginia bigeared bat estimated fatalities exceed 1.0 In mygiven year, bnsc 011 the actual number of ca~c~ssesfuund corrected for field biases, or 2. The %year running average estimated lndima bat Mitiesexcecds 1.8 or Virginia big-eared bat Eataitim cxcceds 0.5 (with a 90 percent confidence interval), based on the actual number of surrogate;carcasses found conecteCi for field Mas and correcied for the Indiana bat-to- smogate ratio and the Virginia big-awed bat-toarrogate ratio as described in the HCP (section 5.0 of appendix Q.
K. Changes to the curtailment strategy shdl be evaluated lfvough the mendmeat pmccss identified in section 8.4 oft13 d will quirewitten concurrence from and will be developed in consvltation with the USFWS,bascd on results of the monitorhg studies results available at the time (sections 5.1 and 5.2 of EICP appendix C). Tho USFWS will detwmine whether addition may be requid by the co-permilter-s to Verify the cPectivenessof turbi ional changes following a threshold exceebce event (section 5.1 of i4CP appendix C), or following a request for less restrictive operational p section 5.2 ofIiCP appendix C).
L. The co-permittaes are required to condu6T annual monitoring throughout the permit term to ensure compliance with MCP moasura and pennit terns, evaluate effectiveness of avoidance and minimimion stmte&es, and track compliance with rruthorized levels ortake. Monitoring mifi&ions and protocols are described in the HCP (section 5,2.4 and appendix C). M. Dead or injured birds and bats found incidentally or during postconstruction monitoring will be handled in accordanceto HCP procedms (seccrion 3.2.2.2 ofl1CCP appmdix C). The permittees will noti@ USFWS within 24 how of suspected identification of any injured or dead endangeredlthreatened species, or bald and golden eagles. All endangcmMmtcncd species, bat and eagle cafcil@cs shall be tmfeetred to USPWS. Unknown Mjwlis carcasses will be identified via genetic testing at tlic co-pennittecs' e, and at faciIity acceptable t<)IJSFWS.
N. Upon requcst of the USFWS, the co-permittax shall make available wing and hair tissue smples lkom each dead bat found during HCP monitoring to support USFW affiliated research projects.
0.Within 24 months following permit issoonce, the co-pennittces are required to have fully implcrncnted mitigation prqiects for Indiana and Virginia big-eared bats in coordination with USFWS and compliant with the projccl criteria w2ablish;hed in the HCP (section 5.3).
em an acceptable rnitigiition project cannot be implcrnented upon pcrmil issuance, mittees arc requhd to establish n conservation amount of$785,0M) within 90 days following permit issuance, in accordance with (section 5.3.4 and 6.0). Q. The co-permittees shall comply with the changed circumstances and adaptive management processes of the I-ICP (section 8.2 and 8.5 and appendjx (3.
R. 'Ibe co-permittees will coordinate vlith USFWS daring siting of'the 33 phaw I1 wind to &voidand minimize tS to covered species imd their habitat (c.g., avoiding loss of suitnbtc roost trw, uvoiding placing turbines new su raging habitat) in acco with the IjCp (section 1.6). The eo-permittees will pmvide IJSF'U'S opportunity for an on-site field visit of turbine locations prior to tree clearing, upon request.
S. Thc co-permittees will impleinmt 811 provisions for historic and archaeolopicai resource identifiwtion, avoidance, minimhtion, mitigation, and coordination for the Beech Ridge Energy Phase 11 Project. m descx-ibcd in thd JuIy 2, 201 3 memordndum of rigrecrnent between the permi-, tJSFWS, West Virginia State Historic Preservntion Oilice, and Ctiiawbe Indian Nation. T. The co-permitteas shall allow USFWS employees, personnel, its agents, or advanced notk to each respective co-permittee itl%S' titte 50 Code of Federui Regulations, section 13 WmP of the permit. Nothing within this condition precludes or limits USFWS law enfor enaining to this pcrmjt or in accordance to applicable Federal and State laws and procedures. U. ‘Xlie ctr-permittees m required to annually submit reports on WCP implenlentalion (scientific report, facilities report, off-site conservation report, and chiinges report) due no later than Februruy 15 of each yeat (WPsection 4.2 and HCP umta).
V, fhe co-permittees art: required to anidly submit an exppcnditure rcport due no later than April 30 ofwhyear (HCP sectian 5.3.4). This report will include written confinnation that funding is available or committed for the full implementation ofthe HCP for the ensuing yw.
ual personnel training {section 3.2.4.4 ofHCP uppendi IdCP errata) and contractor education (NCPsection 2.1.4.4), co- inform at1 authorized oflicers. omploy-, contractors, ts conducting covered activities on the terms ofthe HCP and this permit on ctn annual basis. All appiic&le wnmisbetween co-pennittGes ilzcd agents. wliere relevant, shall requirc complr’ancp:with the HCP,the IA, arid this pcmiit. X. For the purposes ofmonitorhg, compliance, reporting, and administrationof the terns of this permit, except where otherwise mifiedin the WCP, fie eontact office for the USFWS shall be: West Virginia Field QAEics, 694 Bcvetly Pike, Elkins, West Virginia 26241, telephone: 3M-636-6586. The Go-pmiittees shall r&r to pemiit number 1XI6692B-0in all correspondence and reports concerning permit activitbs.