That Turbine Blades Be Feathered Or Stopped at Iowa Wind Speeds in Order to Minimize the Number of Bat Fatalities As Much Possibie, If Fkible

Meyer Glitzenstein & Crystal 1601 Connecticut Avenue, N. W, Suite 700 Washington, D.C. 20009-1063

Katherine A. Meyer 8 Telephone (202) 588-5206 Eric R. Glitzenstein Fax (202) 588-5049 Howard M. Crystal www.meyerglitz.com William S. Eubanks II Jessica Almy

February 9,2011

Bv Certified Mail

Hieronymus Niessen NedPower Mount Storm LLC 5 160 Parkstone Drive, Suite 260 02- //8q-E-LN Chantilly, VA 20151-3813

Carter M. Reid, General Counsel Dominion Virginia Power 120 Tredegar Street Richmond, VA 232 19

Albert M. T. Finch, Attorney Shell Wind Energy Inc. 150 N. Dairy Ashford N Building C - 3rd Floor E3 WSU Houston, TX 77079 n frl cI3 =D Brian Miller, General Cpunsel F" n 0 AES Corporation CI m- 4300 Wilson Boulevard, 1 1th Floor =c, < Arlington, VA 22203 3 m W c3 Ronald Gould, Acting Director 0 United States Fish & Wildlife Service c3 1849 C Street, N.W. Washington, DC 20240

Kenneth Salazar, Secretary United States Department of the Interior

~ - 1849 C Street, N.W. Washington, DC 20240

cycled papa Re: Violations of the Endangered Species Act, Migratory Bird Treaty Act, and Bald and Golden Eagle Protection Act in Connection with the Mount Storm and AES New Creek Wind Power Facilities

On behalf of Friends of Blackwater and the Allegheny Front Alliance, we are writing to urge the companies developing and operating the Mount Storm and New Creek wind power facilities, and the U.S. Fish and Wildlife Service (“FWS” or “Service”), the federal agency entrusted with enforcing the Endangered Species Act, 16 U.S.C. $ 1531 et seq., (“ESA”), the Migratory Bird Treaty Act, 16 U.S.C. $5 703-1 1 (“MBTA”), and the Bald and Golden Eagle Protection Act, 16 U.S.C. $3 668-668d (“Eagle Act”), to take concrete, expeditious measures to avoid, minimize, and mitigate these projects’ impacts to wildlife. As explained in detail below, we are very concerned that these wind power facilities are now violating or will soon violate these important federal wildlife statutes, resulting in the needless loss of wildlife, when regulatory mechanisms and emerging technologies exist to greatly minimize and mitigate such adverse environmw.&l effects. m ss

BACKGROUND A. Relevant Statutes

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

1. Endangered Species Act

Congress enacted the ESA to ensure that endangered species are treated with an abundance of caution, with federal agencies working to halt or reverse their declines, whatever the cost. TVA v. Hill, 437 U.S. 153, 174, 184 (1978). Under the ESA, the FWS must afford species listed under the Act the “highest of priorities.” Id. at 174; accord Animal Welfare Inst. v. Beech Ridge Energy LLC, 675 F. Supp. 2d 540,543 (D. Md. 2009) (“Beech Ridge”) (“The text of the Act as well as its legislative history unequivocally demonstrate that Congress intended that protection of endangered species be afforded the highest level of importance.”).

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

2 kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” Id.

Section 10 of the ESA provides a limited exception to the otherwise strict prohibition against the take of an endangered species. Pursuant to section 10, the FWS may issue a permit allowing an entity to take a listed species where such taking is “incidental to, and not the purpose of, carrying out of an otherwise lawful activity.” 16 U.S.C. $ 1539(a)(l)(B). An applicant seeking such an “incidental take permit” (“ITPyY)must submit a detailed “conservation plan” describing, among other things: (1) the impacts of the proposed taking; (2) procedures the applicant will use to mitigate, monitor, and minimize such impacts; (3) an explanation of why there are no feasible alternatives to the proposed taking; and (4) information establishing that sufficient funding exists to implement the plan. Id. $1 539(a)(2)(A); 50 C.F.R. Q 17.22. The FWS has published a step- by-step guide for landowners developing a section 10 conservation plan, also known as a “habitat conservation plan” (“HCP”). See FWS & National Oceanic & Atmospheric Administration Fisheries Service, Habitat Conservation Planning Handbook (1 996).’ Without an ITP, anyone who undertakes activities that are likely to take members of listed species, or who authorizes such activities, 16 U.S.C. Q 1538(g), are subject to criminal and civil federal enforcement actions, as well as civil actions by citizens for declaratory and injunctive relief. See 16 U.S.C. $ 1540.

The impact of wind energy facilities on wildlife is a serious issue because wind turbines kill and harm several species of wildlife, including species listed as endangered under the ESA, such as Indiana bats and Virginia big-eared bats. In Beech Ridge, Judge Titus of the District Court for the District of Maryland examined the potential conflict between two federal policies relevant to wind energy projects, one favoring the protection of endangered species under the ESA, and the other encouraging development of renewable energy resources, and observed that “[tlhe two vital federal policies at issue in this case are not necessarily in conflict” so long as the project developer obtains take authorization in accordance with the ESA. Beech Ridge, 675 F, Supp. 2d at 582-583. He admonished, “[tlhe development of wind energy can and should be encouraged, but wind turbines must be good neighbors.” Id.

2. Migratorv Bird Treaty Act

The MBTA prohibits the killing of listed birds without the authorization of the Secretary. 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.” 16 U.S.C. Q 703(a) (emphasis added). The

Available at, http://www.fws.gov/endangered/hcp/hcpbook.html

3 Secretary is authorized to permit the killing of birds otherwise protected by the MBTA when doing so would be compatible with the migratory bird conventions. Id. 0 704(a).

The MBTA authorizes the Secretary to determine when, to what extent, if any, and by what means the take of protected birds is compatible with the terms of the related treaties. However, the FWS has not promulgated a regulation which expressly authorizes the issuance of permits allowing incidental take from industries like wind power development. Consequently, incidental take of birds listed under the MBTA is a violation of the Act, for which the FWS can impose criminal violations, regardless of intent. Thus, the FWS has the authority to pursue an enforcement action against wind energy developers for violations of the MBTA. See FWS, Draft Land-Based Wind Energy Guidelines at 2 (Feb 201 1) (“Wind Turbine Guidelines”). Further, private parties may pursue civil claims against federal agencies for violations of the MBTA under the Administrative Procedure Act. 5 U.S.C. $0 701-706 (“APA”); City of Sausalito v. O’Neill, 386 F.3d 1186, 1204 (9th Cir. 2004); Humane Soc’Y of the U.S. v. Glichan, 217 F.3d 882,888 (D.C. Cir. 2000).

3. Bald and Golden Eagle Protection Act The Eagle Act provides that “[w]hoever . . . shall knowingly, or with wanton disregard for the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner , , . any golden eagle, alive or dead, or any part, nest, or egg thereof. . . shall be fined not more than $5,000 or imprisoned not more than one year or both.” 16 U.S.C. 0 668(a). Violators are also subject to civil penalties. Id. 0 668(b).

Implementing regulations allow the FWS to issue permits to take eagles otherwise protected under the Eagle Act in certain situations where the take is “associated with but not the purpose of the activity.” 50 C.F.R. 0 22.26(a). For a permit to be issued, the take must be “compatible with the preservation of the bald eagle and the golden eagle; necessary to protect an interest in a particular locality;” and practically unavoidable. Id. Further, some courts have held that the Eagle Act, which is worded similarly to the MBTA, allows private plaintiffs to pursue claims under the APA against federal agencies for failure to adhere to the Eagle Act. See, e.g,, Jaeger v. Cellco Partnership, 2010 WL 965730 (D. Conn. Mar 16,2010); Humane SOC’Yof the U.S. v. Lu-ian, 768 F. Supp. 360 (D.D.C. 1991).

B. Species Affected by the Projects at Issue

1. Indiana Bats

The FWS listed the Indiana bat as endangered in 1967 under the predecessor to the current Endangered Species Act. 32 Fed. Reg. 4001 (Mar 11, 1967). Even after the Indiana bat was listed, its range wide population declined precipitously. According to the FWS , “[elven with the

4 discovery of many new, large hibernacula, the range wide population estimate dropped approximately 57 percent from 1965 to 2001.” See FWS, Indiana Bat (Myotis sodah) Draft Recoverv Plan: First Revision at 33 (2007) (“Indiana Bat Recovery Plan”).2 The 2007 range wide population estimate was approximately 468,000 Indiana bats. FWS, Indiana Bat Five-Year Review 12 (Sept 2009).3

The West Virginia population of Indiana bat is critical to the species’ survival. Several Indiana bat hibernacula and Indiana bat maternity colonies occur in West Virginia. Indiana Bat Recoverv Plan at 23,28. Indeed, Hellhole Cave in Pendleton County, West Virginia contains approximately 12,000 Indiana bats and has been designated by the Service as critical habitat for the species. In contrast to the generally declining range-wide population numbers, the West Virginia population is faring better, increasing in size and now accounting for 3 percent of the total species population. & Richard A. Lambert, The Proposed New Creek Mountain Wind Proiect’s Proximitv to Regional Endangered Bat Habitats And Possible Cumulative Effects at 7 (Jan. 29,2009) (“Attachment A”). The positive population trend for Indiana bats in West Virginia underscores this population’s vital role in the species’ recovery.

Indiana bats begin to travel to their hibernacula in August and hibernate over winter. See Carol A. Peterson & Richard A. Lambert, The Potential Impacts of Wind Power Facilities on Rare and Endangered Bats at the Proposed Highland New Wind Project Site 5 (Apr 11,2006), (“Potential Impacts of Wind P~wer”).~Once they emerge from hibernation for the spring and summer, Indiana bats “can migrate hundreds of kilometers from their hibernacula.” Indiana Bat Recoverv Plan at 44 (noting studies documenting the distances traveled by Indiana bats during migration, including a study finding that twelve female Indiana bats migrated an average of 296 miles, with a maximum migration of 357 miles); see also Potential Impacts of Wind Power at 5 (noting that Indiana bats have been found to migrate 330 miles); J.E. Gardner & E.A. Cook, Seasonal and Geographic Distribution and Ouantification of Potential Summer Habitat 9-20 (2002) (noting that banded Indiana bats have been found 325 miles away from hibernacula). They are known to fly ten to sixty miles in one night, and one female has been tracked moving thirty-five miles in approximately eighty-five minutes. Indiana Bat Recoverv Plan at 44.

Exacerbating the traditional threats to the species, such as conversion of forested land, tree harvesting, and the removal of dead trees, the FWS has recognized new grave threats to the

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

Available at, http://www.Ews.gov/midwest/endangered/recovery/5yr_rev/pdfmJBA5Yr3OSept2009.pdf

Available at, http://vawind.org/Assets/Docs/CommentsNHG~HNWD~O411 07.pdf

5 survival and recovery of the Indiana bat, including collisions with wind-energy turbines “given the rapid proliferation of wind farming,” and the large scale mortality of bat species at wind farms, and has concluded, “Jwlind-energy developments, particularly near hibernacula or along potential migration routes where large numbers of Indiana bats could be impacted, should be evaluated as a potential threat.” Indiana Bat Recoverv Plan at 101 (emphasis added) (citation omitted).

In addition to direct collisions with wind turbines, recent scientific evidence confirms that wind projects also threaten Indiana bats by creating low-pressure zones near turbines that lead to a fatal condition called barotrauma.’ Erin F. Baenvald et al., Barotrauma Is a Significant Cause of Bat Fatalities at Wind Turbines, Current Biology, Vol, 18, R695 (2008); see also Wind Turbine Guidelines at 9 (explaining that in addition to direct mortality from barotrauma, bats may also experience “hearing impairment and other internal injuries that may allow the bats to fly or otherwise move away from the vicinity but would ultimately result in their death”). Bats have died in alarming numbers at wind power facilities after colliding with turbines and from barotrauma. Thomas H. Kunz et al., Ecological Impacts of Wind Energy on Bats: Ouestions, Research, Needs. and Hvpotheses, 5 Frontiers in Ecology and the Env’t 3 15,316 (2007) (“Recent monitoring studies indicate that some utility-scale wind energy facilities have killed large numbers of bats”).

Nothing is unique about Indiana bats that allows them to avoid the mortality at wind power facilities that has proven to be so devastating to other bats. At trial in the Beech Ridge case, renowned bat biologist Dr. Thomas Kunz testified that he knew of no reason why Indiana bats should not suffer the same fate as other species of bats. 675 F. Supp. 2d at 577-78. His testimony was supported by other experts who were credited by the court. The Beech Ridge court, considering defendants’ argument that Indiana bats fly at heights that would allow them to fly around turbines without colliding with the blades, found that “there is no reason why Indiana bats would not fly at a height of 137 to 389 feet above the ground, within the rotor swept area of the turbines[.]” Id. at 578.

More important, we need not speculate whether Indiana bats can be killed by wind turbines, because, shortly after the Beech Ridae ruling, the FWS has confirmed an Indiana bat mortality at a wind power facility in Indiana. News Release, FWS, U.S. Fish and Wildlife Service and Wind Farm Owners Work Together (Feb 8,201O).6 The death, caused by collision with a turbine, occurred during migration. See id. This mortality - predicted by the experts in the Beech Ridge

5 “Barotrauma” is damage to lungs and eardrums due to a rapid change in air pressure and has been observed in bats who have died at wind power facilities.

Available at, http://www.fws .gov/midwest/News/release.cfm?rid= 177

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

The threat posed by wind power facilities is particularly concerning because huge numbers of Indiana bats are now dying from White-Nose Syndrome (“WNS”). WNS has emerged as a significant threat to bat populations. In some hibernacula, the FWS has reported mortality rates of 90 percent or more. The effects of this disease, the cause of which is unknown, have been observed in West Virginia, and the neighboring states of Virginia, Pennsylvania, and Maryland. -See Lizzie Buchen, Disease Epidemic Killing Onlv US. Bats, 463 Nature 144, 144 (2010). In fact, the West Virginia Department of Natural Resources has reported that WNS is present in Hellhole Cave, West Virginia’s largest bat cave. Press Release, W.V. Dep’t of Natural Res., West Virginia’s Most Important Bat Cave Has White-Nose Syndrome (Feb 23, 2010).7 The FWS biologists have cautioned that, if WNS is not contained, “we’re going to see extinctions of listed species, and some of species that are not even listed,” see Tina Kelley, Bats Perish and No One Knows Why, N.Y. Times (Mar 25,2008), which has led to “concern[s] about the continuing viability of the Indiana bat population in the Northeast.” FWS, White Nose Svndrome in Bats (2008).8 This unprecedented threat to Indiana bats and other bats means that eliminating and mitigating additive sources of mortality (particularly from wind energy projects) is of especially critical importance.

2. Virginia Big-Eared Bats

Even more imperiled than the Indiana bat, the Virginia big-eared bat is a subspecies of the Townsend’s big-eared bat (Corynorhinus townsendii). In West Virginia, the Virginia big-eared bats reside in five counties, including Grant County where the Mount Storm and AES New Creek projects are located. FWS Species Profile for Virginia Big-eared Bat.’ The Virginia big-eared bat resides in caves at elevations greater than 1500 feet throughout the year. FWS, Recoverv Plan for the Ozark Big-eared Bat and the Virginia Big-eared Bat at 13 (2007) (“VBEB Recoverv Plan”). lo Colonies often have roosts in multiple caves and move among roosts even during cold weather. Virginia big-eared bats have been documented migrating 40 miles between caves, and are known to forage mostly “along forested edges.” Id. at 14.

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

Available at, http://www.wdnr.gov/201 Onewdl Onews03 1.shtm

Available at, http://www.fws.gov/northeast/pdf/white-nosefaqs.pdf

Available at, http://www. fws .gov/ecos/ajax/speciesProfile/profile/speciesProfile.acti~n?spcode=AO80

lo Available at, http://www.fws.gov/ecos/ajax/docs/recoveryqlan/8405O8.pdf 7 and Ozark Big-eared Bats as Endangered SDecies. and Critical Habitat Determination, 44 Fed. Reg. 69206, 69207 (Nov 30, 1979). More than half of the global population is found in West Virginia, with the largest known maternity colony and the largest hibernating concentration in the world found in that state. FWS, Virginia Big-eared Bat 5-Year Review 6 (Summer 2008) (“VBEB 5-Year Review”);” W.V. Div. of Natural Res. & FWS, Notice to Cavers: White Nose Syndrome - A New Threat to Cave Bats (2008).12 Six counties in West Virginia and four nearby counties in West Virginia have Virginia big-eared bats. Attachment A at 9. As the FWS has noted, “[tlhe species has a limited range and is highly susceptible to changes in habitat.” 44 Fed. Reg. at 69207. In fact, there are 22 Virginia big-eared bat caves within 30 miles of the proposed AES New Creek project site; 39 caves within 40 miles; and 65 caves with records of Virginia big-eared bats within 74 miles of the proposed project site. Attachment A at 9. The location for the proposed AES New Creek project is located in a Virginia big-eared bat recovery area and a known migratory corridor. Id. at 18.

The FWS listed the Virginia big-eared bat as endangered in 1979, and designated five caves in West Virginia as critical habitat at that time. 44 Fed. Reg. 69206. The Service completed a recovery plan for the Virginia big-eared bat and the Ozark big-eared bat in 1984. VBEB Recovery Plan.

Current estimates of the Virginia big-eared bat population show fewer than 12,000 remaining individuals. VBEB 5-Year Review at 7. The population decline is primarily attributed to human disturbance and habitat loss. However, the Service has expressed serious concerns about the effect of wind power on this species, concluding that foraging and migratory Virginia big-eared bats are “vulnerable to mortality at wind turbines,” id. at 14, and further that “current regulatory mechanisms in regard to wind power production may not be adequate to protect [Virginia big- eared bat] populations.” Id. at 13. In addition, WNS is expected to also affect Virginia big-eared bats. Id. at 12. Given that bat populations have declined as much as 97 percent in caves where the syndrome’s presence has been confirmed, WNS could prove to be a particularly grave threat to this species, meaning that all additive sources of mortality, such as anticipated deaths from wind power, should be eliminated or, at the very least, minimized and mitigated to ensure the species’ survival and recovery.

3. Bird Species

Most migratory and resident birds in West Virginia are protected by the MBTA. See 50 C.F.R. 5 10.13 (listing the birds protected by the MBTA); Final List of Bird Species to Which the MBTA Does Not Apply, 70 Fed. Reg. 12710 (Mar 15,2005). Among the West Virginia

Available at, http://www.fws.gov/ecos/ajax/docs/five_year-review/doc1963.pdf

’’ Available at, http://www.fws.gov/northeast/pdf/WNSWVDNR%20notice%20to%20cavers022908.pdf 8 birds protected by the MBTA are broad-winged hawk, red-tailed hawk, sharp-shinned hawk, turkey vulture, warblers, red-eyed vireo, gray catbird, ovenbird, wood duck, cedar waxwing, American redstart, common yellowthroat, eastern wood-pewee, gray-cheeked thrush, wood thrush, swainson's thrush, veery, yellow-bellied flycatcher, yellow-billed cuckoo, rose-breasted grosbeak, ruby-crowned kinglet, golden-crowned kinglet, ruby-throated hummingbird, tree swallow, American crow, American robin, American woodcock, chimney swift, scarlet tanager, field sparrow, and white-eyed vireo. Birds of all of the above mentioned species, among others, have been reported to be killed at the Mount Storm project site, and would be expected to be killed at the AES New Creek site, which has similar topography.

Overall, wind turbines pose a serious threat to many protected bird species. In fact, the American Bird Conservancy has reported that the FWS estimates that more than 400,000 birds each year are killed by wind turbines and that this figure is expected to rise significantly as more wind power facilities become operational. See American Bird Conservancy, Wind Development Threatens Iconic American Birds (Dec 29,201 O).13

Golden eagles are protected both by the MBTA and the Eagle Act. In 2005, the National Aviary began a golden eagle tracking study in West Virginia. The study has found that most individuals in the eastern North American population of golden eagles migrate through one or more narrow (30-60 mile) bottlenecks in the mid-Appalachian mountains. These bottlenecks have also been identified as prime locations for wind power facilities. The size of the eastern North American population of golden eagles is small and therefore highly vulnerable to demographic perturbations. See Todd Katzner, National Aviary et al., Raptors and Wind Energy Development in the Central Appalachians: Where We Stand on the Issue, at 2 (Aug 2008).'4 Researchers involved in the study are concerned that even low levels of mortality from wind power facilities may be significant because golden eagles are long-lived and have low reproductive rates. Id. at 2-3. Because of their demography, migratory and winter flight behavior, and vulnerability to wind turbines, eastern golden eagles are considered to be the raptor species at greatest risk of population-wide impacts from wind energy development in the Appalachians. Id. at 3. Available monitoring data and modeling strongly suggest that the Allegheny Front, where the Mount Storm and AES New Creek projects are located, is a zone of high risk for potential impacts to golden eagles. Id. Audubon Christmas Bird Count data suggest that some regions of West Virginia including Grant County, where the Mount Storm and AES New Creek projects are located, are important wintering areas for golden eagles, and immature golden eagles also regularly summer in these areas. Id.

Available at, http ://www.abcbirds.org/newsandreports/releases/10 1229 .html l4 Available at, http://www.aviary.org/cons/pdf/WindEnergyRaptorsWhitePaper.pdf

9 C. The Mount Storm Wind Energy Project’s Wildlife Impacts

In 2003, the West Virginia Public Service Commission (PSC) granted NedPower Mount Storm LLC (NedPower) a conditional certificate to construct and operate the NedPower Mount Storm Wind Energy Facility. The project is located in Grant County, in northeast West Virginia, on a forested ridgeline in the Allegheny Front. The Allegheny Front is part of the Appalachian mountain range and is an important migration corridor for several bird and bat species. See Letter from Jeffrey K. Towner (FWS) to Jessica L. Yeager, Potesta & Associates (NedPower’s environmental consultant) (Aug 30,2002) (“Attachment B”).

Even before the project was approved by the PSC, the FWS had informed NedPower that a wind power facility at this location could harm the Indiana bat and the Virginia big-eared bat, and that “lrleaardless of the existence of a Tslection 7 nexus, any proiect proponent or landowner is required under Tslection 9 of the ESA to ensure that their actions do not result in unauthorized take of a federally listed species without special exemption.” Attachment B (emphasis added). Having evaluated the adverse impact of the Mount Storm project on wildlife after the commencement of its operations, the FWS now believes that there is “no question that many bats and birds are being killed” and estimates 37,875 dead birds and 174,200 dead bats over 25 years (the lifespan of the project). See Email from Jim Zelenak (FWS) to Laura Hill (FWS) (Mar 16, 20 10) (“Attachment C”) (emphasis added).

The certificate issued by the PSC is contingent upon the NedPower’s compliance with the ESA, the MBTA, and the National Environmental Policy Act, 42 USC Q 432 1 et seq. The certificate also requires the fulfillment of several conditions intended to minimize impacts on migratory bird and bat species and to ensure compliance with the ESA and the MBTA, including conducting post-construction studies for a three year period to assess the bird and bat mortality at the project site, and addressing any concerns raised by the FWS. See Commission Order, Case No. 02-1 189-E-CN, NedPower Mount Storm LLC, at 116, 119-123 (Apr 2,2003) (“PSC Order”).15 We understand that to date, four monitoring reports have been provided to the PCS and the FWS for 13 operational weeks between July - October 2008 (“Fall 2008 Report”); 9 operational weeks between March -June 2009 (“Spring 2009 Report”); 12 operational weeks between July - October 2009 (“Fall 2009 Report”); and 4 operational weeks between April - July 2010 (“Spring 2010 Report”). The Fall 2008 Report and the Fall 2009 Report indicate that during a limited period of time (12 - 13 weeks), approximately 21 1 bats were killed by the project. On the whole, despite the short duration of the study periods (ranging from 4 to 12 weeks), the post-construction mortality studies confirm the deaths of 553 bats and 13 1 birds over 38 weeks (between Fall 2008 and Spring 2010) when the turbines were in operation.

~~ ~~ l5 Available at, http://www.psc.state .wv.us/scriptslordersNiewDocument.cfm?CaseActivityID=102728&Source = Archives.

10 These figures are significant especially because the mortality rates “appear[] to be underestimated.” Email from Laura Hill (FWS) to Manuela HUSO,Consulting Statistician, Oregon State University (July 7,2010) (“Attachment D”). Further, the developer of the Mount Storm project has failed to estimate the total annual bird and bat mortality rate which is crucial to assess the actual extent of bat and bird mortality and to identify effective operational changes to reduce the mortality rate. Letter from Deborah Carter (FWS) to Robert Williams and Bryanne Tait (environmental consultants of NedPower) (July 30, 2009) (“Attachment E”) (“We are concerned that cumulative mortality rates for bats and birds may be high, necessitating the need for curtailment studies (such as seasonal feathering) to reduce mortality.”) (emphasis added); see also Wind Turbine Guidelines at 42 (emphasizing the need to determine overall fatality rates and fatality patterns). Although the FWS has emphasized the need to extrapolate annual bird and bat mortality and accordingly recommended calculating the estimated total annual mortality rate for all towers in the project, NedPower has failed to do so, claiming that “due to the limited study period covered in the report, results of the studies are relevant only to the [number of weeks studied] and should not be considered annual estimates of impacts or representative of other seasons.” Spring 2009 Report at 1; Fall 2009 Report at 1; Spring 2010 Report at 20; see also Attachment D (“[Dlespite having collected 4 seasons of baseline data on fully operational turbines (spring and fall seasons during two years), the consultants have not provided an estimate of mortality for the entire project. Instead they say the results are only valid for each 12-week study period and should not be considered estimates of impact or representative of other seasons.”).

Furthermore, the FWS has also expressed a concern about the formulas used by NedPower’s consultant to estimate mortality rates, the sample size of the plots studied, and the frequency of carcass searches. See generally Email from Manuela HUSO,Consulting Statistician, Oregon State University to Laura Hill (FWS) (July 7, 2010) (“Attachment F”) (“I’m afraid the equation [for calculating bird and bat mortality] [that NedPower’s consultants] provide is unintelligible, which is a bit disconcerting in and of itself.”). These concerns about the methods used by NedPower’s environmental consultant to calculate bird and bat mortality are significant because they indicate that the data reported by NedPower, which represent alarmingly high bird and bat mortality, are underestimates of the actual (higher) mortality rates. Therefore, NedPower is likely underestimating the risk of taking federally listed bat and bird species and discounting the urgent need to undertake preventive measures to address the actual high bird and bat mortality at the project site.

In addition, although NedPower’s environmental consultant conducted limited acoustic AnaE3at surveys to identify bird and bat species in the project area, it has failed to utilize the acoustic data to identify specific species, and has instead merely categorized bats observed into broad acoustic categories based on high or low frequency calls. The FWS has called for species- specific analyses of the acoustic bat surveys, =Attachment E, but NedPower has apparently failed to engage in these analyses, even though species-specific data would be instrumental in

11 ascertaining the presence of listed species at the project site. See Beech Ridge, 675 F. Supp. 2d at 570-575 (“In one study acoustical detectors were more than twice as effective as mist nets in identifying Indiana bats using the study area.” Id. at 571 (internal citation omitted)). We understand that discussions between the FWS and NedPower about the serious adverse impact of the project on wildlife are ongoing, however we do not believe any concrete steps for adopting and implementing additional mitigation of risk to bird and bat species have been agreed upon.

D. The AES New Creek Wind Project’s Risks to Wildlife

We also have a serious concern with the New Creek Mountain development proposed by AES, which, like Mount Storm, is slated for a forested ridgeline that provides habitat to a rich array of resident and migratory wildlife, including at least 64 species of breeding birds and several bats, and is in close proximity to Mount Storm. The FWS has described the proposed project as “located along ridgelines considered to be part of the Allegheny Front, a known major migration corridor for birds and bats.” Letter from Deborah Carter (FWS) to Trevor Peterson (Stantec Consulting) (Sept. 30,2009) (“Attachment G”).

Among the species occurring at the site of the proposed New Creek facility are bald and golden eagles, other raptors and migratory birds, and federally endangered Indiana bats and Virginia big-eared bats. Not only do bald and golden eagles migrate through the site, but there is a bald eagle nest approximately 10 miles away, large numbers of migrating golden eagles have been observed within 5 miles, and the majority of raptors observed within the 1-kilometer survey area were flying within the rotor-swept zone. The FWS has described the location of the proposed New Creek facility as a “zone of high risk for potential impacts to golden eagles from wind turbines.” Id. at 7. The FWS has also expressed concern about the prbject’s effect on other migrating raptors and other birds. Finding that data from 2007-08 radar studies indicated a higher level of passage at New Creek Mountain than in most other documented radar surveys, as well as a higher average rate of birds flying at altitudes where they could be harmed by wind turbines, the FWS cautioned that the site may present an elevated risk of mortality. When discussing raptors specifically, the FWS cautioned that the differences in raptor migration observed at New Creek and a nearby wind power facility “highlight[ed] the need for multi-year pre-construction surveys and raise concerns that the New Creek project may post as high a risk to raptors as documented in the Pinnacle study area [where there is a high level of raptor migration].” Id. at 6. Further, the FWS believes that endangered Indiana and Virginia big-eared bats may use the area for migration or foraging. Mist net surveys at the project site have caught a large number of northern myotis, which use many of the same food sources as Indiana bats, display many of the

12 same foraging characteristics, and have many of the same behaviors as Indiana bats.16 As noted previously, bat populations are already in decline due to anthropogenic sources of mortality and WNS, and any additional mortality could have devastating effects.17 The FWS cautioned that the cumulative effect of multiple wind power facilities in the region could “reduce the overall bat populations during the duration of these facility operations (typically 25 to 30 years).” Id. at 10. Moreover, the FWS has warned that if AES fails to minimize and mitigate the predicted 78,250 to 112,125 bat deaths that will result from the New Creek wind power facility, it could lead to “population level impacts” to many species of bats. Attachment A at 18.’*

While AES has conducted some pre-construction studies of the site - including visual and radar surveys, mist netting, nest surveys, and acoustic monitoring - the FWS has expressed concerns about the length and duration of this research. In comments pursuant to the ESA, Eagle Act, and MBTA on the consultant’s pre-construction reports for New Creek, the FWS stated that data from a single year gave only a snapshot of wildlife use of the site, which was insufficient to predict bird and bat mortality:

[Blecause of variability in populations and detection rates due to a variety of local and regional factors, one year of data does not necessarily reflect overall species composition or abundance at a site. Thus, the Service recommends multiple years of pre-construction surveys in order to establish a more complete data set.

-Id. at 4. Obtaining accurate information on the wildlife use of the project site is particularly important given the biological and legal significance of the species known or believed to use the forested ridgeline, which would be put at risk by the construction and operation of wind turbines. Moreover, because this project would have additive effects to other wind power facilities in the area, it is incumbent upon AES to collect data sufficient to gauge this project’s cumulative effects.

l6 The northern myotis also belongs to the same genus (myotis) as the Indiana bat and little brown myotis. The three species tend to be associated, and thus the FWS has used the little brown myotis as a surrogate for the Indiana bat at other wind power facilities. l7 In a draft biological opinion on another Appalachian wind power project in Pennsylvania, the FWS found that the threat posed by WNS significantly reduced the number of bats the wind power facility could take without leading to maternity colony extirpation over time. FWS’ Draft Biological Opinion for the Shaffer Mountain Wind Farm (Nov. 2010) (excerpts at “Attachment H”), This biological opinion also uses little brown bats as surrogates for Indiana bats. l8 For reasons explained below, even these numbers may be inaccurate, and the harm to bat species may be even more grave.

13 Information available to us through public records requests does not provide a clear picture of what measures AES plans to take to minimize and mitigate bird and bat mortality at the site. We are aware, however, of an October 4, 2010 letter from AES to the FWS that indicates the company’s intent to provide an avian and bat protection plan comparable to that proposed for a nearby project called Laurel Mountain, which raises a significant concern that the company will not comply with the ESA. The Laurel Mountain plan does not indicate that the company intends to seek an ITP for listed species prior to construction and operation of the wind turbines at Laurel Mountain. Instead, the plan only contemplates applying for an ITP, with a related HCP, after a protected species has already been taken, which is a patent violation of the ESA. See Beech Ridge, 675 F. Supp. 2d at 580-581. Similarly, we are not aware that AES is planning to apply for a permit under the Eagle Act.

DISCUSSION

A. Federally Listed Species are Being Taken and Will be Taken in the Future by the Mount Storm Project in Violation of the ESA and the MBTA.

We have over the past several years expressed concern about the adverse impact of the Mount Storm project on wildlife. See, eg., Notice Letters from Friends of Blackwater and Defenders of Wildlife (February 3,2003), and Friends of Blackwater et al. (May 8,2008) to NedPower and FWS. In response to our concerns, NedPower had previously stated that “it has been working actively.. . to develop and implement a positive wildlife compliance strategy.” Letter from Sam Kalen, VanNess Feldman (Attorney for NedPower) to Eric Glitzenstein, Meyer Glitzenstein & Crystal (June 25,2008). Now that the project’s operations are well underway, and the figures and estimates of wildlife casualties are available, it is evident that there is an inadequate conservation and compliance strategy in place and we therefore continue to be extremely concerned about the take of protected bat and bird species in violation of section 9 of the ESA and the MBTA, as well as the projects’ overall impacts on birds and bats. We understand that there are ongoing discussions between the FWS and the developer about the unacceptable impact of the project on wildlife, however we do not believe the agency and the developer have agreed to any concrete steps for adopting and implementing additional mitigation of risk to bird and bat species.

Despite the clear risk that the wind power facility is taking endangered Indiana and Virginia big-eared bats in violation of section 9 of the ESA, the project continues to operate without obtaining an ITP under section 10 of the ESA, an avenue that a federal court has decreed to be “the only way in which the Court will allow the [wind energy] project to continue.” Beech Ridge, 675 F. Supp. 2d at 580. Further, in light of the documented and ongoing killing of a large number of bird species protected under the MBTA, the developer is repeatedly and continuously violating the MBTA’s prohibition against the take of migratory birds.

14 We are also concerned, as explained previously, that although the developer has conducted bird and bat mortality studies, these studies are lacking in thoroughness and rigor, which calls into question NedPower’s decision to not seek an ITP for the project. See Beech Ridge, 675 F. Supp. 2d at 570,n.37 (observing in the context of ESA violations on the ground of bat mortality due to wind turbines, “[tlhe rigor of [bat presence] surveys is relevant to determine the weight the Court must accord the survey results - results which suggest, if credited, that it is less likely that there are Indiana bats present at the [wind energy] project site”).

Taking into account the continuing risk to protected wildlife, there is a critical need for the developer to apply for an ITP under the ESA and for the FWS and NedPower to quickly identify effective mitigation measures to significantly reduce bat and bird mortality.

1. The Mount Storm Project is Likely Taking; and Will Continue to Take Endangered Indiana Bats and Virginia Big Eared Bats.

It is inevitable that the Mount Storm project is likely taking and will take Indiana bats and Virginia big-eared bats by killing, injuring, wounding, and/or harassing members of those species via turbine collision and barotrauma, in light of several grounds explained below, including the on-going killing of various species of bats over a short period of time at the Mount Storm project site, and the high estimates of overall bat mortality calculated by the FWS. Further, the take of these species by the project has not been permitted by the FWS through the ITP process under section 10 of the ESA. Consequently, NedPower is also in violation of the PSC Order which is contingent upon the project’s compliance with the ESA. See PSC Order at 120-121,

Even before NedPower commenced construction of the project, the FWS had informed NedPower that the project would potentially impact endangered bat species such as the Indiana bat and the Virginia big-eared bat. See Attachment B. Despite this information, NedPower refused to obtain an ITP. Since NedPower completed construction of the Mount Storm project and began project operations, bat acoustic surveys conducted at the site indicate a high level of bat activity. & Fall 2008 Report at 32-34; Fall 2009 Report at 35-36. The FWS estimates that the Mount Storm project will kill approximately 174,200 bats over the lifespan of the project, confirming that there is “no question many bats and birds are being killed.. . [we] [nleed to switch over to operational changes (cut-in speed adjustment) and studies designed to determine efficacy of those changes.” Attachment C. In the span of 12-13 weeks in the fall season alone, nearly 21 1 bats of various species were killed by the project, including myotis species closely related to the Indiana bat. & Fall 2009 Report at 24; Fall 2008 Report at 22. As explained previously, these figures, although substantial, may underestimate the actual bat mortality levels, thus counseling strongly in favor of adopting immediate mitigation measures and beginning the ITP process rapidly as the project is likely taking Indiana bats and Virginia big-eared bats, and will inevitably do so in the future in the absence of an effective protective scheme.

15 Regardless of the fact that NedPower has not yet reported killing Indiana or Virginia big- eared bats, NedPower should nonetheless be required to obtain an ITP because there is evidence that protected bat species are present at the project site and the project is reasonably certain to either have already taken or imminently harm such species in violation of section 9 of the ESA. -See Beech Ridge, 675 F. Supp. 2d at 563-64. There is substantial evidence confirming the presence of Indiana bats at the project site. Bat acoustic surveys conducted by NedPower for a limited period of time in the fall season alone at a few turbines indicate that more than half of the total bat calls recorded were high frequency bat calls. See Fall 2008 Report at 32-34; Fall 2009 Report at 35-36. The fact that a substantial percentage of the bats in the project area are high frequency bats is cause for concern because Indiana bats come under the category of bat species that call in high frequency. Despite the FWS’s requests that it do so, NedPower has not analyzed the acoustic data to identify individual bat species. We strongly recommend that the FWS obtain species-specific data from NedPower and should NedPower continue to decline the FWS’s second request, the FWS must make appropriate arrangements with NedPower to obtain copies of the acoustic data so that an independent expert can analyze them for the agency.

Further, in each of the four limited post-construction studies conducted, NedPower has reported the killing of a large number of little brown bats, a species of myotis that has similar physical and behavioral characteristics as Indiana bats. During mist net surveys conducted as part of the Appalachian Corridor H study, of which eleven of the sites sampled were within 5 miles of the Mount Storm project site, 35 bats were documented in the sites near the Mount Storm Project, of which 28 bats were from the myotis species of bats. See West, Inc., Biological Assessment for the Federally Endangered Indiana Bat (Myotis sodalis) and Virginia Big-eared Bat (Cownorhinus townsendii virainianus): NedPower Mount Storm Wind Proiect, Grant County, West Virginia 10-12 (Oct 2003). The little brown bat lmyotis mortality rates are significant not only relative to the individual species, but also for estimating the impact of the project on the endangered Indiana bat species. Employing little brown bats as a surrogate indicator species to estimate the take of Indiana bats is a practice employed by the FWS and federal courts alike. See, e.g., Attachment H (“[Little brown bats] [are] an appropriate surrogate species because the Indiana bat and little brown bat are closely related, use similar foraging habitats, have overlapping ranges, hibernate in the same caves, and have similar physical characteristics.”); Beech Ridge, 675 F. Supp. 2d at 578. The Beech Ridge case is instructive here because in that case the Court held the developer liable for taking Indiana bats in violation of section 9 of the ESA despite the absence of documented Indiana bat casualties at the project: Defendants also point out that no Indiana bat has been confirmed dead.. .. However, other Myotis species have been reported killed at wind power projects. Plaintiffs’ experts opined that biologically, Indiana bats are no less vulnerable than other Myotis species to turbine collisions and barotraumas. The Court agrees with these very credible expert opinions. Plaintiffs have presented compelling

16 evidence that Indiana bats behave no differently than other Myotis species that have been killed by wind turbines and Defendants have failed to rebut this fact. Furthermore, the Court is not surprised that no dead Indiana bat has vet been found at any wind proiect because few post-mortality studies have been conducted, mortality searches are generally inefficient, and Indiana bsrts are rare. -Id. at 577-579 (emphasis added) (internal citations omitted).

As noted, the Court’s ruling proved prescient since, shortly after the decision, an Indiana bat death was confirmed at a wind power facility in Indiana. News Release, FWS, U.S. Fish and Wildlife Service and Wind Farm Owners Work Together (Feb. 8, 2010).19

Moreover, there is no doubt that Indiana bats not only migrate through the project site during the spring and fall, but that they are likely present in the project area year around. Indiana bats use the project area for foraging and roosting habitat. Several Indiana bat hibernacula are located in close proximity to the Mount Storm project area. For example, two Indiana bat hibernacula are located approximately 18 miles south or southwest of the project site and another Indiana bat hibernaculum is located approximately twenty two miles from the project. See West Inc., An Assessment of Potential Collision Mortality of Migrating Indiana Bats (Myotis sodalis) and Virginia Big-eared Bats (Corynorhinus townsendii vivginianus) Traversing Between Caves -

, Supplement to Biological Assessment 8 (Apr 4,2004) (“Supplemental Biological Assessment 7, ).20 Ten current Indiana bat hibernacula are within 30 miles of the proposed location for the AES New Creek Wind Power Project, meaning they are also in close proximity to Mount Storm. 2’ Lambert Study at 6. Hellhole Cave - situated in the neighboring Pendleton County in West Virginia - is home to more than 12,500 Indiana bats and has been designated by the FWS as critical habitat for the species. Indiana Bat Recovery Plan at 24, 70. At least forty bats were counted, including little brown bats and eastern pipistrelles, both of which are known to hibernate in caves with Indiana bats at a cave that was discovered less than one mile from the NedPower project site. See Dr. Pamela C. Dodds & Arthur W. Dodds, Jr., Bat Survey Report for Small-Foot Cave (Jan 2008).

Additionally, an Indiana bat has been identified at Big Run Bog, which is located approximately 14 miles from the Mount Storm project site. Karen E. Francl, Communitv Characterization of High Elevation Central Appalachian Wetlands 1 14 (2003).22 Approximately

~ l9 Available at, http://www.fws.gov/midwest/News/release.cfm?rid=l77

2o Available at, http://www.west-inc.com/reports/finalbatsupplement.pdf

21 It should be noted that the NedPower Mount Storm Wind Energy Project and the proposed AES New Creek Wind Energy Project are located in close proximity (approximately three miles) of each other, signifying that the wildlife impacts of the two projects are to a large extent similar.

22 Available at, http://coweeta.uga.edu/publications/francl.pdf 17 10 miles from Big Run Bog, a stable colony of Indiana bats are being monitored around Big Springs Cave at the Fernow Experimental Forest, which is a known winter hibernaculum for Indiana bats. Id. The research conducted on the presence of bats near the Big Run Bog indicates that there is a substantial level of bat activity at high mountain bogs. Id. at 116. This fact is relevant because a significant bog called the Helmick Run Bog is located next to the Mount Storm project site.

In sum, although NedPower has not reported any taking of Indiana bats to date, failure to report dead Indiana bats does not mean Indiana bats are not being taken, especially in light of the presence of Indiana bats near the project site; the fact that Indiana bats travel many miles to migrate and forage; the substantial bat casualties caused by the ongoing operations of the project and other nearby wind energy facilities, including the killing of a large number of little brown bats (used as a surrogate for the Indiana bat); the identification by acoustic surveys of a substantial number of bat passes as high frequency bats; and the problems related to the post- construction mortality studies conducted by NedPower, including the limited number of turbines studied, and problems related to searcher efficiency and the scavenging of carcasses between searches.

For similar reasons, given the high bat mortality documented at the project, the project is also likely taking the endangered Virginia big-eared bats. The project is located within five miles of at least two caves known to be used by Virginia big-eared bats. Supplemental Biological Assessment at 8. The closest is approximately 3.5 miles southeast of the southern end of the project site where the FWS has documented the presence of two male and five female Virginia big-eared bats in the cave. Td. Further, part of the project site is considered to be within essential foraging and roosting habitat of Virginia big-eared bats. Moreover, 42 caves used by Virginia big-eared bats are located within approximately 54 miles of the project site and the nearby Mountaineer wind energy facility (located approximately 14 miles west of the Mount Storm project site) where unprecedented levels of bat mortality have been documented.

In light of the high bat mortality rate at the project site, the considerable distances traveled by Virginia big-eared bats, the fact that their migratory behavior is highly variable, and the proximity of caves containing these bats to the project site, it is likely that there is and will be take of endangered Virginia big-eared bats caused by the project.

It should be stressed that a project that takes even a sinale member of a listed wildlife species has violated section 9 of the ESA. See Wind Turbine Guidelines at A7 (explaining the meaning of “take” under the ESA). Given that it is inevitable that the Mount Storm project will result (or will continue to result) in the incidental taking of Indiana bats and Virginia big-eared bats by killing, injuring, wounding, and/or harassing members of those species via turbine collision and barotraumas, NedPower should immediately take appropriate steps to minimize and mitigate

18 ongoing bat impacts and must apply for the ITP in order to avoid liability under section 9 of the ESA. See eg., Wind Turbine Guidelines at 5 8-60 (recommending certain operational measures such as changes in blade but-in speed; blade feathering or idling; seasonal shutdowns or shutdowns of an entire facility; using best practices published by the Avian Power Line Interaction Committee; minimizing lighting on turbines; and turbine setbacks from ridge edges). Just as the court held in the Beech Ridge case, the project may not proceed until and unless NedPower takes appropriate steps to reduce the risks of listed species impacts and to obtain an ITP from the FWS - the legally mandated process for addressing whether and how the takes of endangered species cah be authorized. Pursuant to the ITP process, a variety of measures to significantly reduce bat mortality could be adopted. For example, in the draft biological opinion for the Shaffer Mountain wind farm, the FWS required that the developer adopt a tiered approach to implementing protections for Indiana bats, setting forth clear instructions as to the reasonable and prudent measures (,‘RPMYy)necessary to minimize bat mortality and when each measure is triggered. See Attachment H. The biological opinion states:

The adaptive management strategy will reduce the risk of turbine-related mortality. Level 1 of the strategy includes the adoption of a 5.5 m/s turbine cut-in speed during times of the year when Indiana bats are present to reduce fatalities to a level that is RPM-compliant. If the per turbine bat fatalities and proportion of little brown bat fatalities approximate the mean we used to derive fatality estimates for the Shaffer Mountain Wind Farm, we would expect Level 1 of the adaptive management strategy to reduce Indiana bat fatalities to a level that meets or is close to meeting the RPM. However, if take of Indiana bats or the surrogate indicator species (little brown bat) exceeds that which is RPM compliant, the adaptive management strategy sequentially proceeds to additional measures that will further reduce the risk of fatalities, until Indiana bat fatalities are RPM compliant.

-Id. at 2. Further, the Shaffer Mountain draft biological opinion also requires a plan for surveying, monitoring, and reporting on the Indiana bat population within and adjacent to the project area in order to ensure compliance with the established level of incidental take; to assess the effectiveness of the RPMs; and to determine the need for adjustments to turbine operations in accordance with the adaptive management strategy. Id. at 6; see also Wind Turbine Guidelines at 12. Thus, Shaffer Mountain provides an example of certain RPMs that can be adopted by the wind farm developer through a formal consultation process under the ESA, such as the ITP process. Measures such as the RPMs recommended in the biological opinion for the Shaffer Mountain wind power facility are relevant for the Mount Storm project as well, and provide an example of certain RPMs that can be adopted by NedPower through a formal process under the ESA for authorizing incidental take.

2. The Mount Storm Pro-iect is Taking Migratory Birds Protected under the MBTA.

19 The MBTA prohibits killing listed birds without the authorization from the Secretary permitting such killing. 16 U.S.C. rj 703. The FWS estimates that 37,875 birds will be killed over the lifespan of the project. Attachment C. The limited post-construction mortality studies conducted by NedPower reveal that over only 3 8 operational weeks when the studies were conducted (between Fall 2008 and Spring 20 lo), nearly 131 birds were killed, almost all of which are protected under the MBTA. Avian species protected under the MBTA that have been killed by the Mount Storm wind power facility include broad-winged hawk, red-tailed hawk, sharp-shinned hawk, turkey vulture, red-eyed vireo, wood duck, cedar waxwing, American redstart, and several warblers, including, the common yellowthroat.

In light of this incontrovertible evidence indicating the ongoing killing of several species of migratory birds protected under the MBTA, NedPower is in violation of the MBTA and must urgently adopt effective measures to prevent and mitigate the bird mortality at the project. Further, NedPower is also in violation of the PSC Order which is contingent upon the project’s compliance with the MBTA. See PSC Order at 120-121,

Under the MBTA the developer can be held strictly liable for the incidental take of migratory birds, and it is irrelevant whether there is any intention to kill birds. See, e.g., United States v. Apollo Energies, Inc., 61 1 F.3d 679, 684 (10th Cir. 2010) (“the [MBTA] does not supply a mens rea requirement.”); United States v. Manning, 787 F.2d 43 1,435 (8th Cir. 1986) (“it is not necessary to prove that a defendant violated the [MBTA] with specific intent or guilty knowledge.”). Additionally, where a project developer could have, but did not, take reasonable care to prevent avian mortality, it may be held liable under the MBTA. See, e,g., United States v. FMC Corn. 572 F.2d 902,906 (2d Cir. 1978) (“a person failing to act when he has a duty to do so may be held to be criminally liable just as one who has acted improperly”) (affirming criminal convictions under the MBTA for bird deaths related to pesticide use); United States v. A~ollo, 61 1 F.3d at 684 (failure to bird-proof oil drilling equipment is actionable under MBTA); United States v. Moon Lake Elec. Ass’n, 45 F. Supp. 2d 1070 (D. Co. 1999) (defendant electrical association held liable under the MBTA for the killing of protected birds resulting from its failure to install protective equipment on its power poles),

The FWS has the authority to prosecute wind energy developers for the incidental take of protected migratory birds. Wind Turbine Guidelines at 6. Indeed, the Wind Turbine Guidelines stress that the FWS should consider a developer’s efforts to reduce bird mortality by complying with the Guidelines when it exercises its prosecutorial discretion. Id. Accordingly, there can be no doubt that the FWS could wield its enforcement authority as leverage to ensure implementation of additional protective measures for migratory birds.

Indeed, in the context of the Mount Storm project, the FWS has stated that its Office of Law Enforcement will enforce the MBTA against companies that take migratory birds without implementing conservation measures. Letter from Thomas Chapman (FWS) to Hieronymus Niessen, NedPower (Aug 7,2008) (“Attachment I”). The FWS has maintained that “post-

20 construction assessments [for the Mount Storm project] need to move beyond counts of dead birds and bats in order to begin identifying effective operational parameters that avoid and minimize bird and bat mortality.” Attachment E. In fact, the FWS has recommended operational changes in the Mount Storm project, such as shutting or feathering down wind turbines from mid-July to mid-October in the early evening hours to substantially reduce mortality, while reducing energy production by only 7 percent. Id. We understand that the developers of Mount Storm have been in consultation with the FWS over measures to avoid and minimize bird mortality. However, despite such extensive consultations since 2002, in light of the extensive ongoing killing of protected wildlife, no effective measures to reduce bird mortality have been adopted for the Mount Storm project. If the developers of the Mount Storm project do not expeditiously adopt and implement effective conservation measures to avoid and minimize bird mortality, the FWS should make clear that it will enforce the MBTA by prosecuting NedPower for repeated violations at the Mount Storm project site.23

B. The Proposed AES New Creek Project Will Result in the Takin

23 Unfortunately, there are indications from the wind power industry that the FWS has adopted a general policy of non-enforcement of the MBTA with regard to wind power projects. See Laura J. Beveridge, The Migratorv Bird Treatv Act and Wind Development, available at, http://www.stoel.com/files/StoelO509.pdf,(“Despite the specter of MBTA liability for incidental take, the wind industry can take some comfort in the fact that criminal enforcement of the act is solely the province of the federal government.. . While such discretion does not remove liability under the MBTA, it can provide wind developers with some assurance that avian mortality attributable to turbines will not be criminally prosecuted.”). It should be noted that while the FW S does possess enforcement discretion in deciding whom to prosecute, its non-enforcement decisions are reviewable by courts if the agency “has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities” and if the agency engages in a “pattern of non-enforcement of clear statutory language.” Heckler v. Chanev, 470 U.S. 821, 833 n.4 (1985) (citing Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973)); see also id. at 839 (Brennan, J., concurring) (“It may be presumed that Congress does not intend administrative agencies, agents of Congress’ own creation, to ignore clear jurisdictional, regulatory, statutory, or constitutional commands[ .]”). To avoid any potential litigation over whether the FWS has such a policy of non-enforcement as applied to the wind power industry, the FWS should make clear to companies such as NedPower that, unless steps are taken to reduce unacceptable migratory bird impacts, appropriate enforcement actions will be forthcoming. If such steps are not taken, the FWS should initiate enforcement action in the same manner that it would for other significant MBTA violations. An ongoing failure to do so will expose the FWS to liability for policy of MBTA non-enforcement in the context of wind power projects.

21 We are troubled by the developer’s failure to undertake the pre-construction wildlife surveys urged by the FWS and its steadfast commitment to constructing the facility in this specific location, despite indications that New Creek Mountain may serve as an important migration corridor and that construction of the project would therefore result in unreasonable levels of bird and bat mortality. We are also concerned about the apparent disinterest of AES in applying for incidental take permits under the Eagle Act and ESA for that take that is unavoidable. The information available to us suggests that the proposed AES New Creek project will have similar unacceptable wildlife impacts as the Mount Storm project given the close proximity in which the two projects are located. Despite the experience at the Mount Storm site, AES has not committed to taking the measures required by the Eagle Act, ESA, and MBTA to prevent bird and bat mortality in connection with its proposed New Creek Mountain facility.

As discussed above, the FWS has expressed concern about the effect of the project on migrating raptors, other birds, and endangered bat species. Given that radar data indicate a particularly high level of passage at New Creek Mountain, especially at altitudes in the rotor- swept zone, this particular site may well present an unacceptably high risk of mortality to federally protected wildlife. Prior to investing any further resources into developing this particular site, AES should heed the FWS’s recommendation that it undertake multi-year pre- construction surveys to evaluate how migrating raptors, endangered Indiana and Virginia big- eared bats, golden eagles, and other species use the area.

In the Beech Ridge decision, the FWS had recommended that the wind power developer conduct multiple years of pre-construction surveys and conduct mist-net surveys during fall and spring migration to assess the project’s impact on endangered bats. 675 F. Supp. 2d at 554; see -also Wind Turbine Guidelines at 23 (“The first step for developers will likely be to identify and eliminate from consideration those areas that are precluded from development or are inappropriate for development based on high levels of risk to fish, wildlife, and/or their habitats.”) (emphasis added). There, Judge Titus expressed the court’s displeasure that the company had ignored these recommendations due to “the financial burden on Defendants and [the] delay[] [to] construction of the project,” despite the presence of nearby hibernacula, the physical characteristics of the project site, and the known presence of myotis bats. 675 F. Supp. 2d at 582. The company’s failure to implement the pre-construction surveys recommended by the Service inspired “little confidence” in the court, which expressed skepticism that the company would actually implement adaptive management strategies to reduce bat mortality after the project was constructed, as defense counsel had argued. Id. at 579-80. Thus, the court enjoined the wind power facility until the developer sought an ITP permitting it to take endangered bats. AES risks a similar outcome at the New Creek project site if it continues to ignore the recommendations of the FW S that multi-year pre-construction surveys are necessary to assess the wind power facility’s impacts to endangered bats and federally protected raptor species, including golden eagles. Therefore, we strongly urge AES to conduct the pre-

22 construction studies urged by the FWS if it decides to continue to pursue the development of a wind power facility at New Creek Mountain.

As explained previously in the context of the Mount Storm project, the developer should not discount the possibility - which is supported by many of the data from preliminary studies - that developing a wind power facility at this particular location would pose an excessive risk to Virginia big-eared bats or Indiana bats, particularly given the species’ precarious population status. At minimum, additional surveys would play a crucial role in micro-siting, i.e., determining where turbines should be located to minimize bat and bird impacts. See Wind Turbine Guidelines at 56 (“If a proposed wind development is poorly sited with regard to wildlife effects, the most important mitigation opportunity is largely lost and the remaining options can be expensive, with substantially greater environmental effects.”).

If such pre-construction surveys indicate that this location would allow for development of a wind power facility without excessive wildlife impacts -which is far from certain, given the preliminary data -then AES must set forth a clear plan for minimizing and mitigating bird and bat mortality at the site before construction begins. As explained above, an avian and bat protection plan comparable to that proposed for a nearby project called Laurel Mountain would not comply with the requirements of the ESA. Where there is an indication that the site is likely to take endangered or threatened wildlife species, or harm golden eagles, the company must seek incidental take authorization prior to construction and operation of the wind power facility.

Given the serious concerns that the FWS has expressed over the future take of golden eagles and ESA-listed bat species at the proposed New Creek Mountain wind power facility, we believe that if AES does decide to go forward with constructing a wind power facility at this location, it must pursue incidental take authorizations prior to construction. The approach proposed by the developer in the Laurel bird and bat protection plan - upon which the New Creek Mountain bird and bat protection plan would be based - is insufficient to comply with the Eagle Act and the ESA, since the plan only contemplates applying for a permit to take endangered species after an individual of that species has been killed. Both the Eagle Act and the ESA are intended to be protective statutory mechanisms, and both now provide mechanisms to allow individuals and companies to apply for permits to authorize the “take” of protected species incidental to lawful activities. Take permits under both statutory and regulatory schemes are prospective, requiring application and authorization prior to killing or harming protected species, and allowing the FWS to take enforcement action if take exceeds the amount set forth in a permit. See. e.g., 50 C.F.R. Q 22.26(d)(l) (encouraging early coordination with the FWS on activities that may result in the incidental take of eagles).

Applying for permits prospectively is the only lawful approach, as this project is likely to kill or harm golden eagles and Indiana and Virginia big-eared bats, for many of the same reasons that the Mount Storm facility is likely taking these species now, and both the Eagle Act and the ESA have prohibitions on take that would apply absent valid permits. Further, applying for these

23 permits is the only approach that ensures the conservation of these species. Under the ESA, the FWS may only issue permits where the take will not jeopardize the species; similarly, the Eagle Act regulations require that the take be “compatible with the preservation of the bald eagle and the golden eagle.” Id. fj 22.26(a). These requirements ensure that the amount of take is sustainable, particularly given the cumulative effects of NedPower and other nearby projects. Permits under both statutory frameworks also allow the FWS to impose RPMs to reduce take and require mitigation for the take that is authorized, thus minimizing and negating, to the extent possible, the harm from the activity. For example, as noted previously, the draft biological opinion for the Shaffer Mountain wind power facility requires the developer to adopt the “adaptive management strategy” to minimize bat mortality. & Attachment H. At a minimum, before any construction proceeds, similar measures should be considered for the New Creek Mountain facility, pursuant to an ITP process.

For the reasons discussed above in relation to the NedPower Mount Storm wind power facility, AES must also fulfill its responsibility to minimize take at New Creek Mountain as much as possible to prevent violations of the MBTA. At a minimum, in addition to pre- construction surveys as recommended by the FWS, the developer should adopt temporary, seasonal shutdowns during periods of peak bird use, such as certain times of day or weather conditions during migration. In other locations, economic analysis of such temporary, seasonal shutdowns has shown that they result in a negligible loss of income to the developer. See, ex., Jonathan A. Lesser, Critical Analysis of the Barclays Capital Letter Opinion Regarding Proposed Operating; Restrictions for the Cape Wind Proiect to Comply with the Endangered Species Act (April 20 10) (“Attachment J”). Moreover, as the developer of the nearby Laurel Mountain wind power facility, AES itself stands in a unique position to make a meaningful contribution to reducing cumulative impacts to migratory birds by taking protective measures at both facilities, and by applying data collected at one facility to the other via adaptive management. AES should plan the placement of turbines based on the best information about factors that increase risk of mortality for migratory birds, and once the facility is operational, reduced cut-in speeds, temporary shutdowns, and any other available mechanisms should be employed to reduce mortality.

If AES does not take all available precautions to avoid and reduce mortality of migratory birds, the FWS has the responsibility and duty to enforce the MBTA as previously discussed. -See supra at 19. To be clear, enforcement of the MBTA is not limited to actions that are intended to take migratory birds. Elsewhere, the FWS has brought enforcement actions against defendants where the take of migratory birds was incidental to otherwise lawful activities, including energy generation. In those cases, the FWS has explicitly argued, and courts have found, that the protections of the MBTA do not require intent to harm or kill birds. See, e.g., United States v. Moon Lake, 45 F. Supp. 2d 1070 (holding that the MBTA prohibits the unintentional killing of protected birds by power lines); United States v. Corbin Farm Serv., 444 F. Supp. 5 10, 532-36 (E.D. Cal. 1978) (holding that the MBTA prohibits the unintentional killing 24 of protected birds by pesticide poisoning); see also Sen. Rep. No. 99-445 at 16 (1 986), reprinted -in 1986 U.S.C.C.A.N. 61 13, 6128 (explaining that an amendment to the MBTA requiring scienter for felony violations does not prevent application of a strict liability standard in other contexts).

CONCLUSION

At both Mount Storm and New Creek, we are deeply concerned that the FWS and the developers are failing to translate factual findings of significant wildlife impacts and risks into effective measures to avoid and minimize bird and bat mortality. In the absence of a comprehensive compliance and enforcement mechanism taking the place of the current ad hoc system of consultation between the FWS and the developer, the taking of,listed species at these sites, although avoidable, appears to be inevitable and in violation of federal laws. Congress has provided for such an enforcement mechanism in the form of the permitting process under the ESA and the Eagle Act; however, NedPower and AES have failed to pursue this mandatory process. In the Beech Ridge case, where the wind power project developer did not apply for the ITP under the ESA, the court held that “[b]ecause entirely discretionary adaptive management will not eliminate the risk to Indiana bats, the Court has no choice but to award injunctive relief.. ..while this Court cannot require [the developer] to apply for or obtain [the ITP], it is the only way in which the Court will allow the [I Project to continue.” Beech Ridge, 675 F. Supp. 2d at 580-81, The court concluded that the only avenue available to the developers “to resolve the self-imposed plight in which they now find themselves is to do belatedly that which they should have done long ago: apply for an ITP.” at 583. Here too, pursuing an ITP for the take of endangered bats is the only appropriate course of action if these projects are to proceed. Additionally, the FWS must ensure that the developers of the Mount Storm and the AES New Creek projects adopt and implement appropriate conservation measures to avoid, minimize and mitigate mortality of migratory birds protected under the MBTA, and in the event of their failure to do so, the FWS must take appropriate enforcement action against the liable parties.

Accordingly, we request that you document, as soon as practicable, concrete actions that the FWS and/or developers of the Mount Storm and AES New Creek projects intend to take to address the concerns raised in this letter, including any decision as to whether take authorization will be pursued under the ESA and Eagle Act. We also request information on what measures to avoid, mitigate and minimize bat and bird mortality the developers of the Mount Storm and AES New Creek projects have adopted, in consultation with the FWS.

Please do not hesitate to contact us if you wish to discuss this matter or have any questions concerning this letter. We would like to work with the FWS and the companies to address the serious wildlife impact, and threats, posed by the Mount Storm and AES New Creek projects, although we will consider alternate avenues of ensuring compliance with federal wildlife protection laws if necessary.

25 Jessica Almy Eric Glitzenstein

cc; Sam Kalen Counsel for NedPower Mount Storm LLC Van Ness Feldman, P.C. 1050 Thomas Jefferson Street, NW 7th Floor Washington, DC 20007 Email: [email protected]

Michael A. Albert, Chairman West Virginia Public Service Commission 201 Brooks Street P.O. Box 812 Charleston, WV 25323

Sandra Squire, Executive Secretary West Virginia Public Service Commission 201 Brooks Street P.O. Box 812 Charleston, WV 25323

Michael Bean, Counselor United States Department of the Interior 1849 C Street, N.W. Washington, DC 20240 Email: [email protected]

Bryan Arroyo, Assistant Director for Fisheries & Habitat Conservation United States Fish and Wildlife Service 1849 C Street, NW Washington, DC 20240

Deborah Carter, Project Leader 26 Attachment A

Richard A. Lambert, The Proposed New Creek Mountain Wind Project’s Proximity to Regional Endangered Bat Habitats And Possible Cumulative Effects (Jan. 29,2009) The Proposed New Creek Mountain Wind Project’s Proximity to Regional Endangered Bat Habitats And Possible Cumulative Effects

Prepared by:

Richard A. (Rick) Lambert Of the Virginia Highlands Grotto Of the National Speleological Society P. 0. Box 151 Monterey, Virginia 24465

Prepared for: Allegheny Front Alliance 94 Orchard Street Keyser, WV 26726

January 29,2009 Table of Contents

Introduction ...... 3 Previous Studies at New Creek Mountain Wind Project., ...... 3 Indiana Bat Migration and Foraging Behavior ...... 4 Virginia Big-eared Bat Migration and Foraging Behavior ...... 4 Eastern Small-footed Myotis Bat Migration and Foraging Behavior ...... 5 Migratory Range of Rare, Threatened, and Endangered Cave Bats...... 5 Methods ...... 6 Indiana Bat (Myotis sodalis) Results ...... 6 Counties Inhabited by Indiana Bats ...... 6 Indiana Bat Caves and Den Trees ...... 6 Importance of Peripheral Indiana Bat Populations ...... 8 Virginia Big-eared Bat (Corynorhinus townsendii virginianus) Results ...... 9 Counties Inhabited by Virginia Big-eared Bats ...... 9 Virginia Big-eared Bat Caves...... 9 Virginia Big-eared Bat Sub Population ...... 12 Eastern Small-footed Myotis (Myotis leibii) Results ...... -13 Counties Inhabited by Eastern Small-footed Myotis Bats ...... 13 Eastern Small-Footed Myotis Bat Caves ...... 13 Possible Impacts to Eastern Small-footed Myotis Bats ...... 15 Problems With Stantec' s Conclusions ...... 15 Lack of Information Regarding Endangered Bat Fatalities ...... 15 Lack of Endangered Bat Captures During Mist-Net Surveys ...... 16 Potential for Impact to RTE Species ...... 16 Expected Mortality., ...... 17 Cumulative Effects ...... 18 Conclusion...... 18 Literature Cited., ...... 18 Appendix., ...... 22 Map #1 - Distribution of counties known to be inhabited by the federally . endangered Indiana bat...... 23 Map #2 - Distribution of caves and den trees known to be inhabited by the federally endangered Indiana bat ...... 24 Map #3 - Distribution of counties known to be inhabited by the federally endangered Virginia Big-eared bat ...... -25 Map #4 - Distribution of caves known to be inhabited by the federally endangered Virginia Big-eared bat ...... -26 Map #5 - Distribution of counties known to be inhabited by the critically imperiled Eastern Small-footed Myotis bat ...... 27 Map #6 - Distribution of caves and other habitats known to be inhabited by the critically imperiled Eastern Small-footed Myotis bat ...... 28 Map #7 - Distribution of all regional RTE bat habitats and the 1000+ turbines operating, under construction and planned April 2008...... 29

2 Introduction

AES Wind LLC (AES) is proposing to construct approximately 48 wind turbines along an eight-mile stretch of New Creek Mountain in Grant and Mineral Counties, West Virginia. The New Creek Mountain Wind Project (here after, the Project) will have an approximate output of 120 megawatts (TRC, 2008).

Eight of the 14 bat species known to occur in West Virginia were documented (Stantec 2008b) in the Project area. None of the eight documented species were Federally listed as Rare, Threatened, or Endangered (RTE). Though no RTE bats were found at the Project site, the Project lies within the migratory range of documented habitat of two endangered bats, Virginia big-eared bat and Indiana bat (Stantec, 2008~). The Eastern small-footed myotis, listed by the state of West Virginia as Critically imperiled (S l), was found inhabiting the Project site in large numbers (Stantec, 2008~).

Bat mortalities by wind turbines in the northeast and in the immediate region have been documented as the highest in the world (Arnett 2005). This bat/wind turbine interaction raises concern about the wisdom of building a wind facility in the Allegheny Highlands, which is an endangered bat recovery area.

The purpose of this paper is to provide the Allegheny Front Alliance:

A regional perspective on the endangered bat habitat within migratory range of the proposed Project. Explain why there was a lack of endangered bat captures during mist-net surveys. Highlight the potential for impact to RTE species and common bats. Highlight the expected high mortality. Show the cumulative effects of multiple wind projects in the area.

Previous Studies at New Creek Mountain Wind Project

Below are several studies which have been performed for the New Creek Mountain Wind Project :

Fall 2007 Bird and Bat Migration Survey Report: Visual, Radar, and Acoustic Bat Surveys for the New Creek Mountain Project, West Virginia. March 2008. Stantec Consulting. 2008a.

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. December 2008. Stantec Consulting. 2008b.

New Creek Mountain Bird and Bat Risk Assessment: A Weight-of-EvidenceApproach to Assessing Risk to Birds and Bats at the Proposed New Creek Mountain Project, West Virginia. December 2008. Stantec Consulting. 2008c.

3 Indiana Bat Migration and Foraging Behavior

The following is taken from the Virginia Fish and Wildlife Information Service (2006), except where noted: Indiana bats begin to return to their hibernation caves in August. Before going into hibernation, the bats express a swarming behavior where they fly in and out of the hibernacula but roost outside of the cave. This is usually during the first 10 days in October. This is when fat reserves are built up for the long winter and also when mating takes place. Sperm are stored in the uterus and ovulation occurs when females leave hibernation in spring. By mid-October, males and females are entering into hibernation where they congregate together in small dense clusters of about 300 bats per square foot. The average hibernation lasts 187 days. Females leave hibernation first (late March through early April) and can migrate up to 532 km (330 miles); however, most populations of Indiana bats appear to migrate much shorter distances (NEES, 2006). The females establish “maternity” colonies where they produce only one offspring per year, born in late June or early July. They nurse and roost with their young for 4 to 6 weeks until the young can fly. Roosts are usually located under loose tree bark or in tree cavities in riparian woodland, upland woodlots, or in hedgerows. In Virginia, foraging most often occurs in riparian forest canopies, along upland slopes and ridge tops, and along edges of forests and croplands (Romme, 1995). Also, roost trees have been found in Tucker County, WV (Beverly 2004) and Highland County, VA at >914 m asl. Radiotag studies in the area have shown that Indiana bats traveled in the same orientation of the ridgelines, northeast to southwest (NEES, 2006).

Virginia Big-eared Bat Migration and Foraging Behavior

Virginia Big-eared bats (VBEB) are known to forage in old-field habitat and travel to high elevations to forage. West Virginia Division of Natural Resources (WVDNR) suggests that cleared areas at high elevations may attract Virginia Big-eareds (NEES, 2006). Previous studies also indicate that Virginia Big-eareds will travel over ridges each night to reach foraging areas (NEES, 2006). The following is taken from the Virginia Fish and Wildlife Information Service (2006), except where noted: The VBEB is one of only two Virginia bat species which are known to roost in caves in the summer. Females gather from diverse hibernacula during April and May to form maternity colonies in warm caves, Pups are born between April and July. Females are only known to use caves for maternity sites, but males may use old buildings, crevices or caves for summer roosting. If disturbed during summer roosting, an entire male colony may move to an alternate site. From October to April, males and females usually hibernate together in caves, occasionally in rocky crevices or under loose tree bark, where they commonly. roost singly or in small groups, and appear to arouse frequently during the winter. Repeated mating occurs from October-February, and ovulation from February to April. They feed on moths and other insects and have been observed foraging over corn and alfalfa fields, pastures, and in crowns of trees. Virginia Big-eared bats migrate up to 40 miles between winter and summer habitats.

4 Eastern Small-Footed Myotis Bat Migration and Foraging Behavior

The following is taken from the Virginia Fish and Wildlife Information Service (2006), except where noted: Eastern Small-footed Myotis bats feed on mosquitoes, small beetles, true bugs and ants and forage among trees and over brush in early evening. Little to nothing is known of the migration of this species, so seasonal occurrence is hard to predict. It is suspected though that they do not migrate far and their only known winter habitats are caves and mines. Their numbers may be underestimated because the species enters hibernacula late, leaves hibernacula early, and commonly hibernates out-of-sight. They enter into hibernation in November and may leave in late January or early February. They are known to resume hibernation if temperatures drop again. Single pups are born May to July. In summer, this species molts and they are known to roost on the ground under rocks, in crevices and occasionally in buildings and under tree bark, though they have been reported hanging in the open in West Virginia. Nursery colonies of 12 to 20 bats have been found in buildings. They are found in wild, heavily forested, mountain regions, and frequently but not exclusively in caves in hemlock forests. They are also known to inhabit rock falls, mines and rock crevices associated with hemlock forest regions.

Migratory Range of Rare, Threatened, and Endangered Cave Bats

Kurta and Rice (2002) reported that Indiana bats appear to migrate as much as 530 km (329 mi) from their wintering to summering range. In a study conducted in Virginia, less than 70 miles from the Project site, McShea and Lessig (2006), found that female Indiana bats traveled 4 to 80 km (2 to 29 mi) from their winter caves to summer habitats. In a 2005 study the Pennsylvania Game Commission tracked an Indiana bat 92 miles, from Pennsylvania to Carroll County, Maryland, less than 105 miles from the project site. These studies reveal a wide variance in migratory distances. As a result the Virginia Highlands Grotto will look at all the known Indiana bat habitats within the migratory region.

Barbour and Davis (1969) reported a mean maximum migratory range of 64 km (40 mi) for VBEB’s between their summer and winter caves in West Virginia. Adam et al. (1994) reported VBEB maternity sites located within a 2.2 km radius of a large hibernaculum in Kentucky. Stantec (2008~)stated, “Virginia big-eared bats typically migrate less than 20 km (12mi),” but provided no references for the distance. Again these studies reveal a wide variance in migratory distances.

As noted earlier little is known about the migration habits of the Eastern Small-footed Myotis. What is that known is this species is found in the Project area in great numbers (Stantec, 2008~).

With maximum migration distances between 40 miles for the VBEB and 329 miles for the Indiana bat, and Virginia, Maryland and Pennsylvania e30 miles from the project, this is no longer a local or state issue but an interstate or regional issue. Minimum migratory

5 distances should not be the only numbers considered to weight the effects of the Project on RTE bats. Stantec’s 30 miles should not be the only distances used (Stantec, 2008~)~

Methods

The Virginia Highlands Grotto conducted a literature search for cave closures due to endangered bats on the VAR Limited Access Caves list. Data gaps were filled via repeated requests to the West Virginia Division of Natural Resources (WVDNR), Virginia Department of Game and Inland Fisheries (VDGIF), the Pennsylvania Game Commission (PGC), the West Virginia Speleological Survey (HC 68, Box 13A, Frankford, WV 24938) and the Virginia Speleological Survey (587 Limestone Lane, Burnsville, VA 24487). The locations of the south, mid, and north anchor points of the turbine string were obtained from maps within the application submitted by AES New Creek, LLC. to the West Virginia Public Service Commission. Distances from roost locations were calculated from all three-anchor points using TOPO! mapping software. Tables 1, 2, and 3 show the shortest distances from the roost locations to the Project site.

Indiana Bat (Myotis sodalis) Results

Counties Inhabited by Indiana Bats

S tantec (2008~)reported that three nearby West Virginia Counties have both summer and winter reports for the Indiana bat and that most of the eastern half of the state has winter records. With a maximum range of up to 330 miles the Virginia Highlands Grotto (VHG) believes that to begin to understand the effects of a commercial wind facility on this species we must look at Indiana bat occurrences in a regional setting. Map #1 shows the Project’s location in relationship to approximately 310 miles of the Indiana bat’s range within this region. This reveals that we are not dealing with just the eastern half of West Virginia but additional counties within Virginia (Rick Reynolds, VDGIF, personal communication), Maryland (The Nature Conservancy, 2008) and Pennsylvania (Pennsylvania Game Commission, 2009b).

Indiana Bat Caves and Den Trees

Stantec (2008~)also reported that three current Indiana bat hibernaculum are reported within 48 km (30 miles) of the Project. The Virginia Highlands Grotto’s Endangered Bat Database, prepared in part from an untitled list of Indiana bat caves supplied by the West Virginia Division of Natural Resources, reveals ten hibernacula within 30 miles, rather than the three reported by Stantec (Map #2 & Table 1). This discrepancy places into question the reliability of Stantec to conduct a thorough data search. Placed in a regional setting there are 55 records of Indiana bats within 141 miles of the project site (Table 1) and 62 within 304 miles.

ID Distance Anchor Roost Type Population Designation 1 25.44miles South Cave

6 I 2 125.96 I South I Cave I Transient I

24 63.16 South Cave 20 or more 25 64.32 South Tree 26 65.06 South Tree 27 65.26 South Tree 28 65.44 South Cave 20 or more 29 68.98 South Tree

7 Importance of Peripheral Indiana Bat Populations

The core range for the Indiana bat is in Indiana, Kentucky and Missouri (Menzel et al., 2001). Despite almost 40 years of protection, their core range populations continue to decline (Clawson 2002). This decline makes the peipheral populations in West Virginia important because the West Virginia Indiana bat population is actually increasing. Currently, the peripheral population of 15,700 bats in West Virginia accounts for over 3% of the entire Indiana bat population (C. Stihler, 2008, email to R. Lambert, VHG Endangered Bat Database Manager).

The main hibernaculum for the Indiana bat in West Virginia is Hellhole (Cave), located approximately 33 miles from the proposed southern most turbine on New Creek Mountain. Hellhole is the largest bat hibernaculum in the east. In addition to approximately 200,000 common bats, the cave is home for over 12,500 Indiana bats. Figure 1 shows the increase in Indiana bat population counts in Hellhole for 22 years, demonstrating that this region is a recovery area for the Indiana bat.

8 Hibernation Counts - Hellhole

I 140001 I 12oooj1 I lOOOO-[l~

mtndlene ! 86 89 91 93 95 97 99 1 3 5 7

I Figure 1. Provided by WVDNR

While Stantec (2008b) reports that the majority of Indiana bat summer colonies have been documented in low-elevation valleys, a study by McShea and Lessig (2006) less than 70 miles from the Project site refutes Stantec’s assertion, at least, for this peripheral population. McShea and Lessig found that three out of five roost trees were above 914 m (3000’) in elevation.

Virginia Big-eared Bat (Corynorhinus townsendii virginianus) Results

Counties Inhabited by Virginia Big-eared Bats

Stantec (2008~)reported that six counties in West Virginia have reports of Virginia Big- eared bats. This study failed to consider a regional perspective by not including four near-by counties in Virginia, which have documented Virginia Big-eared bat reports (Map #3).

Virginia Big-eared Bat Caves

Stantec also reported five records of Virginia Big-eared bat caves within 48 km (30 miles) of the project. The VHG Endangered Bat Database shows not five but 22 caves with records of VBEB within 30 miles of the project site (Map #4 & Table 2). This discrepancy again places into question the reliability of Stantec to conduct a thorough data search. Placed in a regional setting, there are 39 caves with records of Virginia Big- eared bats within 40 miles of the Project site. This is the distance VBEB can interact with the Project. There are 65 caves with records of Virginia Big-eared bats within 74 miles of the project site (Table 2). These 74 caves represent all the known caves for this sub-population.

9 Table 2 - Virginia Big-eared bat habitats and their proximity to New Creek Mountain

10 60 68.06 South Cave Occasional 61 69.06 South Cave 62 69.19 South Cave 63 71.3 South Cave Occasional I 64 172.94 I South 1 Cave

69 I 199 I South 1 Cave I 1160-200 70 I208 I South I Cave I Occasional

VBEB maternity colony population numbers increased in West Virginia from 1983 to 1988. They declined in 1989 and again in 1990. Increases were observed from 1991 through 1995. Since 1995 the VBEB female population has basically remained stable (WVDNR, 2005). The VBEB female population, in summer maternity colonies, peaked in 1999 at 6416 bats. (The largest increase appears to have been the result of discovering previously unknown maternity colony sites). In 2005, eight of the ten maternity colonies showed population decreases while only two showed increased counts.

The hibernating population of VBEB’s reached a peak in 1991 and declined through the 1990’s. Since 2001, slight increases in the population have been noted, but still remain below the 1999 population (Figure 2). WVDNR considers the Virginia Big-eared bat in WV to be in decline (Stihler, 2005).

t Hibernating VBEB - composite of four maj o r caves

8000 n I 7000 6000 5000 4000 3000 2000 1000 0 86 89 91 93 97 1 3 5 7

Figure 2. Provided by WVDNR

Virginia Big-eared Bat Sub Population

Unlike the Indiana bat, whose range encompasses over half of the United States the VBEB is concentrated in small, isolated areas. The total VBEB population is approximately 13,600 (USFWS 2000). The population is divided into three Evolutionary Significant Units (ESU). An ESU is defined as a phylogeographic subdivision that has a recent common history, is genetically cohesive, and is isolated, lacking gene flow with other populations. According to WVDNR, the WV ESU includes the bats in Grant, Pendleton, Tucker, (and probably Hardy, Preston, Randolph, counties in West Virginia and Highland & Rockingham counties in Virginia). The majority of the VBEB population resides in the WV ESU (NEES 2005). The Southwest Virginia ESU is composed of the VBEB’s in Southwest Virginia, the New River Valley of WV, and North Carolina. The third ESU is composed of those VBEB’s in Kentucky (Piaggio, at press; C.Stihler, 2008, email to R. Lambert, VHG Endangered Bat Database Manager).

The approximately 7000 VBEB’ s in West Virginia represent the largest population concentration with the highest genetic diversity (NEES 2005). Yet this population is struggling to increase (Stihler, 2005). Stantec (2008~)reported that T&E bat species would be potentially impacted with low magnitude. The VHG believes, that due to the isolation and low population increase of this sub-population, any loss represents a high magnitude of risk to the species. Losses in the population can’t be made up from the ESU’s in Southwest Virginia and Kentucky but must come from within the WV ESU.

12 Eastern Small-footed Myotis (Myotis Zeibii) Results

Counties Inhabited by Eastern Small-Footed Myotis Bats

The Eastern Small-footed Myotis bzt (Myotis Zeibii) is listed as Rare in West Virginia by the West Virginia Natural Heritage Program (USF'WS, 2006b; WVDNR, 2006). Twenty counties in West Virginia are known to contain Eastern Small-footed Myotis bats (ESFM)(WVDNR, 2006). Additionally, 12 Virginia counties (VDGIF, 2006), 14 Pennsylvania counties (Pennsylvania Game Commission, 2009a), and two Maryland counties (The Nature Conservancy, 2008; Pennsylvania Game Commission, 2005), contain Eastern Small-footed Myotis bats. (See Map #5.)

Eastern Small-Footed Myotis Bat Caves

29 caves within 50 miles of the Project are known to harbor Eastern Small-footed Myotis bats (see Map #6). Until the Stantec (2008~)report the largest Eastern Small-footed Myotis bat record known to the VHG was in Highland County, Virginia in Hupman Saltpeter Cave, approximately 70 miles to the south. Populations reached 64 individuals in 1992 and 32 were reported in 2005 (GWJNF, 2005).

ID Distance Anchor Roost Type Population 1 Within Project South Non-Cave 2 Within Project North Non-Cave 3 7.85 miles South Cave 1 4 9.26 South Cave I 5 I 18.51 I South I Cave

13 30.23 South Cave 14 31.24 South Cave 15 32.2 South Cave 16 32.97 South Cave 17 33.78 South Cave 18 36.26 South Cave 19- 36.32 South Cave 20 37.5 North Cave 21 42.8 South Cave I 22 142.89 1 South 1 Cave

13 23 42.97 South Cave 24 43.2 North Cave 25 44.21 North Cave 26 44.57 South Cave 27 45.37 South Cave 28 45.42 South Cave 29 46.61 South Cave 30 46.61 South Cave 31 48.53 South Cave 32 52.46 South Cave 33 56.48 South Cave 34 59.99 South Aqua duct 35 60.98 South Aqua duct 36 63.17 South Cave 37 65.45 South Cave 38 69.19 South Cave 32-64 39 72.57 South Cave I40 173.5 I South 1 Cave 1 1 41 78.33 South Cave 22 42 84.72 South Cave 16-30 43 85.03 South Cave 5 44 86.66 South Cave 45 86.71 South Cave 46 95.07 South Cave

61 133 South Cave 62 141 South Cave 63 149 South Cave 1 64 162 South Cave 65 175 South Cave 4-25 66 176 South Cave 67 185 South Cave 7

14 68 199 South Cave 2-3 69 201 South Cave 1 70 205 South Cave 1-3

Possible Impacts to Eastern Small-Footed Myotis Bats

Because little is known of the migration and foraging habits of the Eastern Small-footed Myotis bat it is difficult to determine the impacts that the Project may have on the species. Stantec (2008~)reported that the ESFM were the second most frequently captured species on the project site. The 61 Eastern Small-footed Myotis bats captured (Stantec, 2008b) represent the largest known population in the VHG database. We agree with Stantec’s (2008b) suggestion that the Eastern Small-footed Myotis is present in the area year round and that similar habitats will be created by the construction of the Project attracting more ESFM (Stantec, 2008~).We disagree with Stantec’s assessment (Stantec, 2008c) that large mortality rates cannot be expected. Even low mortalities within a small population can translate into a large mortality rate.

Problems With Stantec’s Conclusions

Lack of Information Regarding Endangered Bat Fatalities

Stantec (2008~)reported New Creek Mountain is within the range of the endangered Indiana myotis and VBEB but that no fatalities of these species have been documented at wind facilities. The VHG takes issue with this. Just because no fatalities have been reported does not mean they have not happened.

WVDNR, in their September 19, 2006 letter, in the Liberty Gap Wind Force, LLC case, stated, “Although no endangered bats have been observed killed as a result of impacts with wind turbines, we cannot assume that such an event has not occurred.” The USFWS (letter September 28, 2006, same case) points out that “the fact that no endangered bat species have been identified to date as having been killed at a wind turbine in the US. is not evidence that they are not being killed.” The USFWS indicates that because numbers of endangered species are small (due to their endangerment), it may take longer to find endangered bat fatalities (June 30, 2006, same case). Stantec also acknowledges this when they reported, “the lack of confirmed cases of collision mortality may also be related to the low population sizes of these and other rare bat species” (Stantec, 2008~). Arnett et al. (2008) point out that few facilities are operating within the range of threatened and endangered species.

In a study in Pennsylvania, the Pennsylvania Game commission looking at the role of highway traffic on bat mortality did find an Indiana bat killed by an automobile. PGC technicians originally failed to identify the bat as an Indiana bat and reported no endangered species killed. Subsequent DNA tests were required before the PGC could conclude that an endangered species had indeed been killed. Given these facts, it is not

15 only possible, but also likely that Indiana bats have been killed by wind turbines and those deaths have gone undetected (Gannon, 2008).

Lack of Endangered Bat Captures During Mist-Net Surveys

Stantec (2008~)reported that the lack of captures of Indiana and VBEB’s at New Creek Mountain after “extensive” mist netting surveys “strongly indicates the absence of summer colonies of these species”. Gannon (2006) points out, “Two sites in Pennsylvania where Indiana bat calls were identified via bat detectors were netted intensively in order to confirm the presence of that species at those locations. I was successful at capturing Indiana bats at both sites. At the first site it took 9 nights of netting (with 10 nets set, a total of 90 net nights). At the second site it took 23 nights of netting before I captured an Indiana bat (with 10 nets set, a total of 230 net nights). Because this was a rare endangered species, in an area at the fringe of its range, the likelihood that we would capture it was reduced. Thus the netting effort at those sites needed to be increased before I was able to confirm the species was present.”

The 150 net nights (Stantec 2008b, 2008c), for the entire project site, does not represent an “extensive” mist-netting survey. Stantec’s assertion that the lack of captures indicates no risk of impacts to threatened and endangered species lacks creditability since; 1) New Creek Mountain is within migratory range of the most important Indiana bat hibernaculum in the East, 2) The Project is on the northern border of the most important VBEB ESU, and 3) the largest known ESFM population in the region has been documented at the Project site.

It is also possible that the Stantec studies, beginning April 22 (Stantec, 2008b), missed the Virginia Big-eared bat migration. One maternity cave in Pendleton County, West Virginia has had the closing date moved from April 15 to April lstafter noticing that the female bats were in the cave by April 15th (Rick Lambert, personal observation). It is also possible that Stantec missed the female Indiana bat migration since the females leave the hibernaculum first, in late March and early April (Virginia Fish and Wildlife Information Service, 2006).

Potential for Impact to RTE Species

Stantec (2008~)admits that since Indiana bats migrate up to 331 miles, they might occur within the Project area and that Virginia big-eared bats might also be found in the Project area. Stantec also admits there is “a potential for impacts to occur, but with a low magnitude”. The VHG takes issue with this because the USFWS (2008) expressed its concern with the Project due to its location within the Allegheny Front, “a known major bird and bat migration corridor”. The USFWS also warned AES that Indiana bats may use the area, may be impacted by construction activities, and may be at risk of collision with the proposed Project.

In their June 30, 2006 letter (Liberty Gap case) they wrote of the monitoring studies at the Mountaineer site, “It is impossible to make a conclusion that turbines do not kill

16 federally-listed bats based on one short season of monitoring. In fact, the number of bats killed there shows a high likelihood that endangered bats are also likely to be killed. However, because of their low numbers due to endangerment, it is likely to take a longer period of time to detect death of Indiana bats.” The US Fish and Wildlife Service went on to write, “In consideration of a high likelihood of use of the project area by Indiana bats, Virginia big-eared bats, and other bats, the Service concludes there is a reasonable certainty of bat mortality from operation of the proposed wind power project.”

Expected Mortality

In its Executive Summary (Stantec 2008c), Stantec wrote, “Overall, the impacts to birds and bats expected at New Creek Mountain are not unique to this Project, but are those generally associated with wind power in the eastern United States.” Stantec also wrote, “Potential ecological impacts are expected to be within the range of those documented at existing facilities in the east.” The six studies conducted in the Appalachians are listed in Table 3. Mortality rates vary from 20.8 to 63.9 bats per turbine per year and the average mortality is 35 (n=35.17) bat deaths/turbine/year. Each of these studies have different lengths, search interval, and were calculated differently (Arnett et al., 2007) yet they each have one thing in common, a high bat mortality rate.

I AverageMortality I 35.17 I Bat deaths/turbine/year I Table 3. Mortality rates from Post Construction Studies

The three western sites in Stantec’s Table 4-10 average 4,6 bat deaths/turbine/year (Stantec, 2008~).The VHG does not believe that surveys conducted in the west and Midwest are relevant to this study. The differences in geology, habitat, populations, and species diversity are too different to warrant comparison (VDGIF 2006).

Stantec (2008~)reported that it is “not possible to quantitatively assess risk to birds and bats in the pre-construction phase”. Yet the US Fish and Wildlife Service disagrees. In its letter of June 5,2008 to Samantha Hard, of TRC Solutions, the USFWS estimated the New Creek Mountain Wind Project could kill roughly 3,130 to 4,485 bats per year and 78,250 to 112,125 bats over the 25-year estimated life of the Project. These results were based on post construction mortality studies conducted at wind facilities in the east thus refuting Stantec’s (2008b) assertion that risk can’t be predicted. The WVDNR (2008) also told AES that, “It is likely that all wind turbine facilities constructed on ridges in West Virginia will experience similar levels of fatalities of migratory bats.. .”

17 Cumulative Effects

Many bat biologists are now concerned with the cumulative effects of multiple wind projects on migrating bats. Tuttle (2004) wrote, “cumulative impacts are potentially serious as turbines become widespread”. Bat Conservation International (2006) reported, “They (proponents of wind energy development) also do not consider the numbers of turbines planned for the future, the fact that current fatality is underestimated, or that at least some impacted species are already in decline.” T.H. Kunz et al. (2007) wrote, “Our current knowledge and the projected future development of wind energy facilities in the US suggest the potential for a substantial population impact to bats.” Kuntz et al. also wrote, “When lack of knowledge is combined with the fact that bats generally have low reproductive rates (Barclay and Harder, 2003), significant cumulative impacts of wind energy development on bat populations are likely”.

Tuttle (2004) wrote, “Despite evidence of large kills on ridge and mountain tops, 92 additional turbines have been approved for the same West Virginia ridge on which thousands of bats were killed in 2003. In fact, if all the approved ridge top turbines within a 50-mile radius, are built in 2004, the total in just that one small area could reach 410. If local mortality rates were to continue, these turbines alone could lull more than 30,000 bats in a single season.” Map #7 shows wind energy development in the region as of April 2008 in proximity to RTE bats habitats. The 1000+ wind turbines represented on the map could kill more than 73,000 bats per year.

Conclusion

The West Virginia Department of Natural Resources and the US.Fish &Wildlife Service have worked together, and with private landowners to protect vulnerable habitats in order to prevent the decline of the endangered Indiana bat and Virginia Big-eared bat. These efforts have resulted in an increase (locally) of the Indiana bat population. The proposed location for the New Creek Mountain Wind Project is located in this endangered bat recovery area and migratory corridor. The existing data summarized in this report suggests that Stantec has under estimated the impact to RTE bats and that Stantec’s reports contain unreliable information. It is likely that the New Creek Mountain Wind Project will have a strong adverse effect on the populations of endangered bats and will impede their conservation and recovery. The USFWS (2008) warned AES that if the predicted 78,250 to 112,125 bats deaths anticipated over the life of the New Creek Mountain Wind Project went unchecked, it could lead to “population- level-impacts” to many species.

Literature Cited

Adam, M. D., M. J. Lacki, and T. G. Barnes. 1994. Foraging Areas and Habitat use of the Virginia Big-eared Bat in Kentucky. Journal of Wildlife Management. 58 :462-469.

18 Arnett, Edward B. and Erickson, Wallace P. 2005. Relationships 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. Bats 2nd Wind Energy Cooperative. lune 2005, 167 pages.

Arnett, Edward B.; Brown, W. Kent; Erickson, Wallace P.; Fiedler, Jenny K.; Hamilton, Brenda L.; Henry, Travis H.; Jain, Aaftab; Johnson, Gregory D.; Kerns, Jessica; Koford, Rolf R.; Nicholson, Charles P.; O’Connell, Timothy J.; Piorkowski, Martin D.; Tankersley, Roger D., Jr.; 2007. Patterns of Bat Fatalities at Wind Energy Facilities in North America. Journal of Wildlife Management, 72( 1):61-78; 2008

Barbour, T. W. and W. H. Davis. 1969. Bats of America, University of Kentucky Press, Lexington. 286pp.

Barclay, R.M.R., and Harder, L.M. 2003. Life Histories of Bats: Life in the slow Lane. In Kuntz, T.H. and Fenton, M.B. (Eds.). Bat Ecology. Chicago, IL,. University of Chicago Press,

Bat Conservation International. 2006. Impacts of Wind Energy Development on Wildlife Key Issues of Concern. 6 January 2006,3pp.

Beverly, Joel and Mark Gumbert. 2004. Indiana Bats in West Virginia, A Review from Proceedings of Indiana Bat and Coal Mining: A Technical Interactive Forum. Vories, Kimery C, and Anna Harrington, editors, U.S. Department of Interior, Office of Surface Mining, Alton Illinois and Coal Research center, Southern Illinois University, Carbondate, Illinois. Online. http://www.n~crcc.osml-e.~ov/PDF/F;orums/Bat~~2OIndi~na~OC.~df1Opp.

Clawson, R. L. 2002. Trends in Population Size and Current Status Pp. 2-8 In: A. Kurta and J. Kennedy (eds.) The Indiana Bat: Biology and Management of and Endangered Species. Bat Conservation International: Austin, Texas,

Gannon, Michael R. 2006. A Review of Reports on the Potential Impact of Bat by the Proposed Wind Energy Generation Facility, Greenbrier County, West Virginia. 20 pages.

Gannon, Michael R. 2008. A Review of Reports on the Proposed Laurel Mountain Industrial Wind Project, West Virginia, and Its Potential Impact on Bats. Prepared for Laurel Mountain Preservation Association, 9 June 2008,25 pages.

George Washington and Jefferson National Forests. 2005. Detailed Monitoring and Evaluation Report for Fiscal Year 2004. 33 1 p. (including appendices).

Kerlinger, Paul. 2003. What do We Know About Cumulative or Population Impacts? Wind Energy & Birds/Bats Workshop Proceedings. Pages 57-62.

19 Kurta, A. & H. Rice. 2002. Ecology and Management of the Indiana Bat in Michigan. Michigan Academician, 34: 175-190.

McShea, William J. & Heather Lessig. 2006. Migration of Female Indiana Bats (Myotis sodalis)from Winter Hibernacula to Summer Maternity Roosts. 24pp.

Menzel, Michael A,, Menzel, Jennifer M., Carter, Timothy C., Ford, W. Mark, Edwards, John W. 2001. Review of the Forest Habitat Relationships of the Indiana Bat (Myotis sodalis). USDA, Forest Service, General Technical Report NE-284,23 pages.

Nature Conservancy, The. 2008. John Friend Cave: An Ecosystem Without a Light. Accessed online at: http://www.nature.org/wherewework/northarnerica/states/maryland/preserves/art4773. ht ml

North East Ecological Services. 2005. An Overview of the Current State of Knowledge of Bats with Specific Reference to the Potential Impacts of Wind Power, Liberty Gap Wind Project, Pendleton County, West Virginia. 37pp.

North East Ecological Services. 2006. An Overview of the Current State of Knowledge of Bats with Specific Reference to the Potential Impacts of Wind Power Highland New Wind Project Highland County, Virginia. 25 pages.

Pennsylvania Game Commission. 2005. Game Commission Goes Interstate to Trail Endangered Species. 2005 Press release #051-05.4 pages. Accessed on line 1-5-2009. http://www.prrc.state.pa.us/prrc/cwp/view.asp?A=I 1 &0=164062

Pennsylvania Game Commission. 2009a. Endangered Species: Small-footed Myotis. Accessed online at. http://www.pgc.sttlte.pa.us/pgc/cwp/view.asp?a=486&q= 152582

Pennsylvania Game Commission. 2009b. Endangered Species: Indiana Bat. Accessed online at: httn://www.p~c.state.pa.us/n.~c/cw~/view.~s~?a=486&~=152617

Romme, Russell C., Karen Tyrell, Ph.D. and Virgil Brack, Jr., Ph.D. 1995. Literature Summary and Habitat Suitability Index Model: Components of Summer Habitat for the Indiana Bat, Myotis sodalis. Indiana Department of Natural Resources: 190 p.

Stantec Consulting. 2008a. Fall 2007 Bird and Bat Migration Survey Report: Visual, Radar, and Acoustic Bat Surveys for the New Creek Mountain Project, West Virginia. March 2008. 73 Pages.

20 Stantec Consulting. 2008b. 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. December 2008. 103 pages.

Stantec Consulting. 2008c. New Creek Mountgin Bird and Bat Risk Assessment: A Weight-of-Evidenceapproach to Assessing Risk to Birds and Bats at the Proposed New Creek Mountain Project, West Virginia. December 2008. 105 pages.

Stihler, C. 2005. Virginia big-eared bat summer colony censuses. Draft report by Craig Stihler, West Virginia Department of Natural Resources, November 28,2005.

TRC. 2008. Request for Information for the AES New Creek Mountain Project, West Virginia, letter dated April 10,2008, to Barbara Sargent, WVDNR. 2 pages.

Tuttle, Merlin D. 2004. North American Bat Conservation Partnership State Planning Guidefor Bats. 18pp.

U.S. Fish and Wildlife Service. (USFWS). 2000. “Virginia big-eared bat (Plecotus townsendii virginianus) and Ozark big-eared bat (Plecotus townsendii ingens). ’) http:l/endangered. fws. gov/i/a/saa7r- .html (8 December 2000).

US Fish and Wildlife Service. 2006. June 30,2006 letter to Ms. Linda Bouvette from Thomas R. Chapman. 12 pages.

US Fish and Wildlife Service. 2006b. September 28, 2006 letter to Ms. Linda Bouvette from Thomas R.Chapman. 1 lpp.

US Fish and Wildlife Service. 2008. June 5, 2008 letter to Ms. Samantha Hard from Thomas R. Chapman. 20 pages.

Virginia Fish and Wildlife Information Service. 2006. Accessed Online March 21, 2006. http://vafwis.orq

Virginia Department of Game and Inland Fisheries. 2006. Accessed online March 21, 2006. http://www.dgif.state.va.us/wildlife/species/display.asp?id=05002I

West Virginia Division of Natural Resources. 2005. Table 4. Results of West Virginia Division of Natural Resources ’ Virginia Big-eared Bat (Corynorhinus townsendii virginianus) Summer Colony Censuses in West Virginia, 1983-2005 and Percent in Number of Bats 2004 to 2005. 4pp.

West Virginia Division of Natural Resources. 2006. September 19,2006 letter to Ms. Linda S. Bouvette from Frank Jezioro. 7pp.

West Virginia Division of Natural Resources, 2006b. Online. http://www.wvdnr.eov/

21 Appendix

Map #1 - Distribution of counties known to be inhabited by the federally endangered Indiana bat, ...... 23

Map #2 - Distribution of caves and den trees known to be inhabited by the federally endangered Indiana bat...... 24

Map #3 - Distribution of counties known to be inhabited by the federally endangered Virginia Big-eared bat,,...... 25

Map #4 - Distribution of caves known to be inhabited by the federally endangered Virginia Big-eared bat., ...... ;, ...... 26

Map #5 - Distribution of counties known to be inhabited by the critically imperiled Eastern Small-footed Myotis bat...... 27

Map #6 - Distribution of caves and other habitats known to be inhabited by the critically imperiled Eastern Small-footed Myotis bat, ...... 28

Map #7 - Distribution of all regional RTE bat habitats and the 1000+ turbines operating, under construction and planned April 2008...... 29

22 Map #1 - Distribution of counties known to be inhabited bv the federallv endangered Indiana bat.

23 Map #2 - Distribution of caves and den trees known to be inhabited by the federally endangered Indiana bat.

24 Map #3 - Distribution of counties known to be inhabited by the federally endangered Virginia Big-eared bat.

25 Map #4 - Distribution of caves known to be inhabited by the federally endangered Virginia Big-eared bat.

26 27 Map #6 - Distribution of caves and other habitats known to be inhabited by the critically imperiled Eastern Small-footed Myotis bat.

28 Map #7 - Distribution of all regional RTE bat habitats and the 1000+ turbines operating, under construction and planned April 2008. (Map by Boone and Lambert)

29 . .- - ,.?k.:zt : :; :; :-pi United States Department of the Interior ,:A’: - >’. -I

FISH AND WILDLIFE SERVICE ,I

.. ..’ , West Virginia Field Office 694 Beverly Pike . E!kins, West Virginia 26241 FILE COPY AUG 3 0 2002

Ms. Jessica L. Yeager & Pottsta Associates, Inc. -. 2300 MacCorkle Avenue, S.E., Cox Hall . Charleston, West Virginia 15304-1099

Dear Ms. Yeager:

This responds to your information request of June 10, 2002. You requested info&ation on the . potential for the occurrence of’ endangered and threatened species, or their designated critical habitat, under the jurisdiction of the U.S. Fish and Wildlife Service (Service) in the vicinity of the proposed Mount Storm project. Magellan Resource Group and NED Power, Inc. propose to construct and operate approximately 200 wind powered electrical generation structures to the east and south of M< Storm Lake, along the Allegheny Front, in Grant County, West Virginia We provide these Comments pursuant to the Endangered Species Act (ESA)(87 Stat 884, as amended; 16 U.S.C. 1531 et seq.) and the Migratory Bird Treaty Act (16 U.S.C. 703-712). .I ..1 The lbmile by one-mile project is proposed to be constructed in three phases. Access to the site .. wodd be via existing roads, where possible. The exact location of the turbines has not been determined, but preliminary layout shows a double parallel row of turbines in the nortbern and central portion of the project ueu and “clusters” of five to six rows in the southernmost pbdon of the project area (east of Stony River Reservoir). The wind turbines being considered for use at this site would be berween 3 15 and 465 feet in height from the base to the tip of the rotor. The tower an which the rotor will be mounted would be between 2 IO and 330 feet, and the blade mounted on the hub would be between 105 and I35 feet long. The foundation of each turbine wodd be approximately 50 feet in diameter, and would be constructed of concrete, The towers would be tubula and constructed of welded steel plare qdthe rotors ’are glass fiber-carbon epoxy, The project area appears to have a maximum elevation of 3,800 feet mean sea level (msl>.

THRE.4TENED AND ENDANGERED SPECIES

A site visit was conducted by Linda Smith, of my staff, on July 23,2002. Based on this preliminary site visit, it was detzrminrd that federally listed species that could occur in the proposed project area, and could be impacted by the proposed project are: the endangered

. ..,...... *

Indiana bat, Mvotis sodaiis; the endangered Virginia big-eared bat, Connorhinus townsendii vidnianus; the endangered West Virginia northern flying squirrel, Glaucomvs sabrinus fuscus; and the threatened Cheat Mountain salamander, Plethodoo netlinci. The threatened bald eagle, Bdiatetus ieucoceohalus, could occur in the project area as a transient. Two lakes on the Stony River adjacent to, and west of, the proposed project area occasiondly serve as an atrractive feeding area for bdd eagles and for a number of years, nesting bald eagles have used an area approximately 13 miles from the project area.

At this time,the Service is not aware of any federal nexus for this project, i.e. federal Iicense, permit or funding. Consequently. consultation with the Service under Section 7 of the Endangend Species Act (ESA)is not required for this project unless the Corps of Engineers or other federal agency requires a permit for some aspect of the project. We understand that the Corps has been contacted, but the need for a permit for this project has yet to be determined. -. Regardless of the existence of a Section 7 nexus, any project proponent or landowner is require3 under Section 9 of the ESA to ensure that heir actions do not result in unauthorized take of a federally-Iisted species without special exemption. "Take" means to harass, harm, pursue, hunt, shoot, wound, kil, trap, capture, coIlect, or to attempt to engage in any such conduct. Harass is &fined as actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering. Hann is defined as a act which actually kilIs or injures wildlife; harm may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.

Pursuant to Section 10(a)( 1)(B)of the ESA, an incidental take permit (TI'P) authorizes limited . take of federally-listed species. The take must be incidental to and not the purpose of an otherwise lawful activity. Pursuant to Section 10(a)(2)(A) of the ESA, a Habitat Conservation Plan (HCP) must be submitted with an ITP application. The HCP is a statutory requirement of the permit application, which identifies: the impacts which wiII likely result from such taking what steps the applicant will take EO monitor, minimize, and mitigate such impact; and the- funding that will be available to implement such steps; what alternative actions to such taking the applicant considered and the reuons why such alternatives are not being utiIized; and procedures to with unforeseen circurnstxms. deal -

1 The bdiana bat could use the project area for summer foraging and roosting habitat. Fall- swarming behavior is not expected in chis area since the project area is outside of a five-mile radjus of all known Indiana but hibernacula. Indiana batsummer foraging habitats are generally defined as riparian, bottomland. or upland forest, and old fields or pastures with scattered trees. Roosting/maternity habitat consists primariiy of live or dead hardwood tree species such as shagbark hickory, which have rxfoliuting bark that provides space for bats to roost between the barkand the bole of the tree. Tree cavities, crevices, splits, or hollow portions of tree boles and limbs dso provide roost sites. The Service has determined the number of acres of suitable foraging and roosting habitat on the West Virginia landscape available to each Indiana bat known to occur there. On that basis, we have detemintd that smfl projects, generdiy affecting 17

. .. .' ..a . .I $1 acres or less of suitable foraging and roosting habitat, will have little chance (at the 98% corifidence level) of resulting in direcr or indirect take of the species and is therefore considered discountable. I ,.

W9e suggest a determination be made M to the amount of suitable Indiana bat summer habitat chat will be removed as a result of this project. If less than 17 acres will be removed, tree removal can occur at any season of the year and potential impacts to Indiana bats would be considered discountable . If 17 acres or more will be cleared, the Service recokends that the project proponent consider one of the two following options to avoid take of roosting Indiana bats. Mist net sweys may be conducted EO determine if the summer foraging and roosting habitat withi0 the area affected by the proposed project is occupied. If bat surveys are conducted, they should occur between May 15 and August 15 and standard Indiana bat mist net protocol from the Draft Indiana Bat Recovery Plan should be used. An individual who is experienced in thg.biology, data coIlection techniques, and identification of the Indiana bat (a list of qudified individuals is enclosed) should conduct the survey. We recommend a survey plan be submitted to the Service and the West Virginia Division of N~turalResources for review and approval prior to conducting the surveys. We request that bat survey findings be provided to our office. If Indiana bats are not captured, the Service considers that if Indiana bats are present they an there in very low densities and that the likelihood of take from project construction is discountable and tree removal can occur at any time of year.

The other option available to avoid incidental take of roosting Indiana bats is to schedule tree removal for the time period when Indiana bats are expected to be in hibernation, November 15 to March 31. Prior to using this option. an analysis of the area within a two-mile radius of the centerfine of the project should be evaluated to determine if sufficient Indiha bat summer habitat .: will remain after the project. We request this analysis be provided to the Service for our review.

The endangered Virginia big-eared but inhabits caves year around. This species is hown to use a cave that is approximately chree and one-half miles from the southern end of the project area A 1999 fall survey reveded that rwo male Virginia big-eared bats and five female Virginia big- cared bats were using this cave [ WV Division of Nlrtural Resources, personal communication). There are seven other caves in Grant and Tucker Counties that are known to have been used by this species, two of which are known to have populations of 100 or more bats. The approximate foraging mge of female Virginia big-eared bats is five mites from the maternity cave. Radio- telemetry studies in West Virginin have shown that Virginia big-eared bats travel up to 6.5 miles fiomdhe cave roost to feed, so ;L five ro six milt radius around each colony site is considered to contain habitat es'sentiaf to the colonc. Foraging habitats for this bat include woodlands, old fields, and hay fields and it has been found that the samegeneral area is used on successive nights. Moths (Lepidoptera) comprisu the majority of their diet and arc an important food some of many insectivorous bats (all 1 I West Virginia bat species are insectivorous). Virginia big- eared bats do not always return to the cave for daytime roosting. These bats wiIl occupy night roosts, often manmade structures. near the forqing area. Because of the proximity of a Virginia big-eared bat cave and knowledge of their foraging range, we assume that the southern portion of - the project area is used for foriqing by the Virginia big-eared bat. * ... .. During wind power tower mortality surveys in Wisconsin, many times more bats were found than birds. Towers that are lighted would attract moths and 5possiblyfeeding bats, which may cause bat mortaiity from coIlision with the rotors. Bats presently occurring nearby in low density may be attracted to the ma, creating a ,oreater concentration around the lights. Migratory bats such as the hoary bat and the red bat mriy use the Allegheny Front for migration, and since migrating bats may not use echolocation, the Service is concemcd that operarion of the turbines could cmse impacts to migrating bats. We suggest that a study be conducted to evaluate the effect of lights on the feeding behavior of bats in this area or ;1 reference ma; and assess the likelihood of incidental take of federally-listed bats from the operation of the proposed project on his site. We suggest that the srudy plan be developed by reviewing scientific literature and other scientific data on the species and through consultation with species experts.

The West Virginia nodm-n flying squirrel is known to occur in only six counties inWest Virginia which includes Tucker, Randolph, Pendleton, Webster, Pocahontas, and Greenbrier ,, Counties. It is typically found in bored forests comprised of spruce/fir/hemlockmixed with northern hardwoods such as sugar maple, black cherry, American beech, black birch, and yellow birch. However, hey have berii captured in stands of varying age and overstory species composition and understory density, hut most have been taken from moist forest with at least some widely spaced, large diameter conifers and standing and down snags. The presence of I several species of fungi consumed by the squirrel appears to be highIy associated with the species. This squ'irrei's known mnge extends as fir nortb as Douglas and a site in the Rorthwestern edge of Dolly Sods Wiiderness in Tucker Counry, just south of the proposed project area. It is not known to occur in West Virginia below 2,640 feet in elevation. Based on the location and elevation of the project area and tbe presence of some of the habitat characteristics necessaryfor the Wesr Virginia northern fiying squirrel, the Service recommends that a mon thorough survey for potential Wcst Virginia northern flying squirrel habitat be conducted in the proposed project area by an individual qualified to identify squinel habitat. If suitable habitat exists, the area should be surveyed for. the presence of this species by a qualified individual. Please report your survey findings to our office.

The Cheat Mountain salamander. known to occur only in Wesr Virginia, has the northern limit of its range in Tucker County. This sillamunder typically uses red spmce and northern hardwood forest above 3,500 feet in eleviltion, however in the Canaan Valley area of Tucker County, the elevational use extends down to 2.640 feet. Severd populations occur in mixed deciduous forest that have replaced the original red spruce stands: these forests include yellow birch,American beech, sumpmaple, striped maple. and Eastern hemlock trers. The Cheat Mountainsalamander usually occurs orrridge tops or 011 cool, moist. north or eut facing slopes. The salamander is known to occur on Cabin Mountain in southem Canaan galley, Tucker County, which is the next ridge west of the project area. These .iularnandrr.\ have a home range of only about five square meters (48 square feet). Alteraliw of their habitat its minor as cutting hiking trails, access roads, or rights-of-way will expose the forest floor to rernperiture or moisture changes tbat can fragment and isolate populationa. The Service recommends that a survey for potential Cheat Mountain sdamander habitat be conducted in the proposed project afea by an individual quaIified to identify stllamander*hclbittlr. If suir3ble h=lbitat exists, the area should be surveyed for the presence of this species by :Lqiiillified indi\,idial. Please report your survey findings to our office...... ,*,‘ . . ,. .. .* Regardless of your survey findings, we request that a copy of all survey results be provided to our ., office, An assessment of project imp;icts to any federally-listed species found to occur within the project area should also be provided to our office: at il ninimum his should include an assessment of potential “take” of the Virginia big-ri&d bat from operation of the turbines. If dl , “take” of federally-listed species from construction andor operation of the project cannot be avoided, preparation of a Habitat Conservation Plan and request for an Incidental Take Permit (l”)is highly recommended. Issuance of an ITP provides legal protection to the property owner against any potential violations of Section 9 of the ESA.

MTGRATOR Y B IRDS

The Migratory Bird Treaty Act (MBTA) prohibits the taking, killing, possession, transportation, and importation of migratory birds. their eggs, parts. and nests, except when specifically authorized by the.Department of the Interior. The Service believes that certain prac6ces may . result in the taking of birds, eggs. or active nests. These include, but are not limited to, timber harvesting, clearing, ,pbbing. burning, and mowing. Activities such as those noted above, that take birds, eggs, or active nests of migratory birds could occur under a permit pursuant to the MBTA. The Service does not have specific regulations that address the unintentional take of migratory birds and we have not received any requests for permits or issued any permits for such practices in West Virginia. However, the Service believes that projects which Create an environmental hazard to migratory birds such ;IS communications towers (which are estimated to kiII4-5 million birds per year) violate the spirit illid intent of the MBTA and the Code of Federal Regulations at Part 50.

The proposed project area occurs within the Allegheny Front, which is knoh as a migration corridor for birds of prey and passerine and nonpasserine land birds. For 44 years, there has been . a bird banding station to the south of rhe project area in the DoIly Sods Wilderness Area - the Allegheny Front Migration Observatory. Data from this station documents relative species- specifrc use of the station area by nocturnal migrants (mostly passerines) during fall migration. Information on raptor migration is also obtained at the Observatory using an informal * observational methodology. Five-hundred forty-right raptors representing 10 species were’ counted in 2001. this included two bald eagles. three golden eagles, Aauila chrvsaetos; and three peregrine falcons, Falco pereorinuq anacum. To our knowledge, the proposed project area has not been surveyed for breeding birds. - ’ Seved Cooper’s hawks, Accinittt cooDerii, were seen hunting in the southern end of the project area during the Juiy site visit. The northern goshawk. Acciniter centilk, a rare species for West Virginia, has n nessing record approxirnately seven miles-west of the project area. The northern harrier, Circus cvaneus, is known to use the nearby CLinaan Valley area in summer and is likely to use the wetlands and open meadows in the proposed project area for hunting. Bald eagIes have been observed using the northern end sfCnnun Valley during winter. The Service is concerned that these birds of prey and others including, but not limited to, the golden eagle, the red-tailed hawk, Buteo-jamaicensis: the red-shouldered hawk. Buteo lineatus; the broad-winged hawk, Buteo platvmems; the rough-legged h;lwk, Buteo I~~LIs:the American kestrel, &k~ sumerius; the pereyine falcon. the great homed ow!. Bubo virzinianus the shon-eared ow1,

. .. - . - _... . . -. . . ._......

I) Asio flarnrneug; the saw-whet owl. Aeolius acadkus: and the Eastern screech-owl, Oms asio; may also use the project area while hunting and migrating and could coIlide with the towers or rotors.

The southqm portion of the project area, where hrrbines are proposed to be in rows five to six deep in grassland habitat between the eastern edge of the Allegheny Front and Stony River Reservoir, is of pmicular concern to i he Service for several reasons. This area could provide an attractive food source for birds of prey and the opportunity for coIIision with the rotors is enhanced by turbine concentration. Also, the spatial use of the ridgeeline by birds during migration is unknown and the shallow depressions in the ridge topography are likely to funnel birds into this area. Also, the present:: of zl lentic system adjacent to the proposed project area adds to the ecological value of the area. Mt. Storm Lake and Stony River Reservoir, to the west of the project area, are used by rniyating and resident waterfowl, and bald eagles are. known to occasionally use the two lakes iu: LL feeding area. Wetlands occurring in this area also contribute to the ccologicd vdue for avian wildlife. According to National Wetfand Inventory (NRQ maps, numerous emergent, scrub shrub, and forested wetland complexes occur in the southern end of the proposed project area. pmicularly in the Helmick Run area. On-site determinations of the presence of waters of the Unired States, including wetlands, should be made. Definitive determinations are made by the U.S. Army Corps of Ensineen. Also, the need for permits, if any, are made by them. They may be contacted at: Pittsburgh District, Regulatory Branch, William S.Moorhead Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsyivania 18222- 4188, telephone (4121395-7 152.

The Service recognizes tnar lighted towers may contribute to morrality of nocrurnal migratory birds, particuiarly in inclement weather. The proposed project area is known for foggy weather and low cloud conditions. Low cloud conditions can result in lower altitude of bird flight. , Foggy weather can cause birds to become disorientatrd and to circle lights, resulting in bird collisions.

The Service beIieves that evaluation of the potential impacts of the proposed project to migrating and resident migrarory birds of prey. \vtlferfowI, shorebirds, and passerines is very important. Preliminary suggestions for mrtrica tcl measure avian use of the area are: 1) Migratory passage rate: 2) Altitude and spatial profile of miprxion corridor (possibly using mobile fine-scde marine radar unit); - 3) DY~on local weather condiriniis (fog and low clo~tds)and the effects of weather on 1 and 2; 4) Resident migratory species counts :tnd productivity. -

Preconstruction studies should strive to generate information to avoid or mitigate any potential project impacts by siting. confipumticn. or operation of turbines. If it is determined that local weather is iikely to create the potential for bird impucts. we suggest that an evaluation be made of the feasibility of reducing turbine operation during periods of high bird use and foggy or low cloud condjtions .

.. .. , ., . . ,...... - . c ,.* .* Although other wind power projects are proposed for the Grant and Tucker County area, none have yet been constructed, and therefore no post-construction data is currently available. , The Service recommends that dl wind power sites thaz proceed to construction be monitored for kpa~t~on wiIdIife following construction. Post-construction monitoring should be dove-tailed to pre-constmction studies to allow fcr statistically valid evaluation of actual impacts. Post- construction aviarhae momlity monitoring should occur for a minimum of three yeus. Phsed ' project construction, such as proposed for this project. could be useful for impact evaluation purposes if the phases are timed to aliww for post-construction data collection before designing the next phase of construction. Results of post-construcdon studies may indicate that potential impacts to birds or other wildlife are not minimal. In this case, the Service recommends that efforts should be made to addrehs thw impacts by spatial design changes, Iighting changes, use of deterrents, or operational changes.

Regardless of srudy results, the Service recommends that lighting of turbines be &mized to the extent possible to reduce the potential effect on bird mortality. We recommend that white strobe lights be used, as they have been found to be lesh attractive to birds than red-pulsating or constant red lighting.

Jn conclusion, our preliminary e\ uluucion of the proposed project indicates a need for surveys and studies pnor to construcrion to provide information that will allow a thorough evaluation of potential project impacts to federally-listed species end migratory birds, in particular. We encourage you to seek feedback from species experts and state and federal resource agencies on the pre-construction srudy plan and post-consrruction monitoring plan. We request that the resuIts of all studies be made in ailable for review by the Service with opportunities to provide input throughout the project piuining phase. We appreciate the opportunity to provide preliminary comments on this proposed projecc and we look forward to working with Potesta, Magellan Resource Group and SED Power, Inc. to avoid and minimize potential impacts to federally-listed species and rnigra~orybirds. If you have any questions regarding this letter, ' please contact Lindii Smith of ni_v stntf at (303) 636-6586, or at the letterhead address.

Sincerely,

Jeffrey K. Towner - Field Supervisor .- Enclosure (list of persons qual i1'ii.d IO conduct misr net surveys) Jim Zelenak/R5/FWS/DOI TO Laura Hill/RS/FWS/DOI@FWS 03/16/2010 03:43 PM cc Deb Carter/R51FWS/DOI@FWS bcc Subject Mt Storm 2009 Report

Laura,

I looked over the report and have only a few issues, some of which we discussed briefly while you were out of quarantine around lunch time.

1. Make sure all Myotis bats are going to Craig - any update on the "unknown Myotis" that have been coliected thus far?

2. Agree that no more baseline data are needed - no question many bats and birds are being killed. Need to switch over to operational changes (cut-in speed adjustment) and studies designed to determine efficacy of those changes.

3. Concur that they need to better manage vegetation in the search plots so that searcher detectability does not deciine further.

4. Agree that they need to try to derive estimates of annual bat and bird mortality (or, to be conservative and err on the side of the resource, we may just extrapolate their results to the other 18 months that bats aren't hibernating and when mig birds may be present).

5. Here are the numbers they didn't provide, but which are based on their estimates per turbine:

a. 606 migratory birds (+/- about 260) killed in 12 weeks - extrapolated would be 1,515 birds (+/- about 650 [though probably with a tighter cohfidence interval]) over the roughly 30 weeks from April l-Nov. 15. (which doesn't include early spring migrants and some late fall migrants (eagles especially). Extrapolating this 30-week extrapolation to 25 years = 37,875 dead birds.

b. 2,787 bats (+/- about 1,050) killed in 12 weeks - extrapolated would be 6, 968 bats (+I- about 2,625 [though probably with a tighter confidence interval]) over the roughly 30 weeks from April l-Nov. 15. Extrapolating this 30-week extrapolation to 25 years = 174,200 dead bats. Would be interesting to break this out by species for the 6 species that were killed and see what the numbers would be over 25 years relative to our best estimate of their current population sizes.....

Hope the meeting goes well.

When I'm back in the office Monday, I'll put together some notes on the Marcellus Summit for you both to review if you have time before forwarding to Keith Hastie in the RO.

See you then.

Jim Zelenak U.S. Fish and Wildlife Service West Virginia Field Ofice 694 Beverly Pike Elkins, WV 26241 ph: (304) 636-6586 X 17 fax: (304) 636-7824 jim-zelena [email protected] Laura HIlllRBlFWSlDOl To "Huso, Manuela" 07/07/2010 09:02AM cc bcc Subject RE: Sam le sizes for turbine operation trials at wind power projects6 '

Thank you so much Manuela! Your insights are very helpful and I appreciate the time and thought you have put into them. I also look forward to receiving your paper soon!

We do need to carry out a study at this site despite the Ipw SE and CP. The study is required as part of a state citing certificate and the company has an obligation to demonstrate a good faith effort to reduce the bird and bat mortality. The Service is concerned about the level of bird and bat mortality at this site which appears to be underestimated.

In response to your questions:

1. The primary study objectives (as defined by the consultant) are: (1) to estimate bird and bat mortality for the study during the spring and fall migration seasons (# killed/turbine/study period); (2) to correlate mortality to weather variables; and (3) to reduce mortality by testing the effectiveness of different curtailment experiments (compared to fully-operational turbines).

(Note: the Fish and Wildlife Service is interested in estimating annual mortality for the entire facility (132 turbines), however, despite having collected 4 seasons of baseline data on fully operational turbines (spring and fall seasons during two years), the consultants have not provided an estimate of mortality for the entire project. Instead they say the results are only valid for each 12-week study period and should not be considered estimates of impact or representative of other seasons.)

2. I've attached the pages from the study proposal that show the formulas used to estimate mortality rates, scavenger rates, and searcher efficiency rates, etc. They appear to be different formulas than were used in the Casselman study. I would appreciate your thoughts on whether these are valid estimators.

Given the high scavenger and low searcher efficiency rates at this site, would you recommend larger samples sizes for the trials? (e.g. 100 bats per trial as opposed to the proposed 50? 100 total birddtrial as opposed to the proposed 50 small birds and 20 large birds?). They are testing for seasonal differences, as well as for differences by size of carcass. The consultants have decided to change this year to daily searches at all turbines sampled to reduce variability in the data. (Previously they had a combination of weekly searches at some turbines and daily searches at some turbines.) That should help but I'm wondering if they also need larger sample sizes for the trials. @?q Statistical Methods for Estimation of Fatality Rates.docx

Laura Hill Assistant Field Supervisor West Virginia Field Office U.S. Fish and Wildlife Service 694 Beverly Pike Elkins, WV 26241 e-mail : La u ra-H [email protected] ov Phone: (304) 636-6586, ext. 18 FAX: (304) 636-7824 "Huso, Manuela" Statistical Methods for Estimation of Fatality Rates The estimate of the total number of wind turbine-related fatalities will be based on four components: 1) observed number of carcasses, 2) searcher efficiency expressed as the proportion of pianted carcasses found by searchers, 3) removal rates expressed as the length of time a carcass is expected to remain in the study area and be available for detection by the searchers, and 4) estimated proportion of casualties that fall within the study plot based on the overall distribution of casualties around the turbines,

Observed Number of Carcasses

The average number of carcasses detected per turbine is:

- eci .- is1 k where Ci is the number of carcasses detected at turbine i for the period of study, and k is the iiumber of turbines searched.

Estimation of Searcher Efficiency

Searcher efficiency is expressed as p, the estimated proportion of trial carcasses found by searchers, The variance of the estimate, v(p), is calculated by the formula: where d is the total number of carcasses placed. Carcass detection rates will be estimated by major habitat type, carcass size, and season. Data will be pooled across habitat or seasons if detection rates are not significantly different.

Estimation of Carcass Removal

Estimates of carcass removal are used to adjust carcass counts for removal bias. Carcass removal includes removal by predation, scavenging, or other means. The length of time a carcass remains in the study area before it is removed is denoted as ti.

Mean carcass removal time is expressed as t, the average length of time a carcass remains at the site before it is removed: where s is the number of carcasses used in the scavenging trials mid t denotes each carc8ss. Modifications to the estimator will be made if there are trial carcasses that remain at the end of the 14-day trial period (Barnard 2000, Erickson et al. 2003a, Shumway et a2. 1989).

Estimation of the Total Number of Facility-Related Fatalities

For equal sampling effort among turbines and seasons, and assumed equal observer detection and scavenging rates among seasons, the total number of facility-related fatalities (M) is calculated A by dividing the observed fatality rate divided byn , an estimate of the probability a casualty is not removed and is detected: N*c M =- n where N is the total number of turbines in the wind farm, The estimated mortality per turbine per year M is determined by MIN. A The estimate of the probability a casualty is not removed and detected, R ,is calculated by: 1 N I n-k+l = -C C C [P(T > j * I - (i +- 0.5)) * p(1- p)j-’] , where I is the interval between I * n k-1 i=l j=1 searches and n is the number of searches per turbine for the monitoring year. The probability P(T > t) on the right side of the equation is calculated assuming the carcass removal times are distributed either exponential, log-normal or normal with mean t^ . A goodness of fit test will be conducted to determine which distribution is most appropriate.

Annual fatality estimates for large birds, small birds, all birds combined and bats will be calculated. The blreported estimates of m and associated standard errors and 90% confidence intervals will be calculated using bootstrapping techniques (Manly 1997) based on a computer program written in SAS. For each iteration of the bootstrap, the turbines and associated mortality data, searcher efficiency trial birds and associated data, and the scavenging removal trial birds and associated data are sampled with replacement, Estimates of F , F ,p, and m are calculated for each of 5,000 bootstrap samples. The final estimates of F, ? , p, and m, and associated bootstrap percentile confidence intervals, are calculated from the 5,000 bootstrap estimates.

Information from the project site will be used to assess mortality in relation to weather variables and turbine operation changes. There is some evidence that bat mortality is higher on nights with lower wind speeds (Amett et al. 2005) and that migrant birds may be at greater risk of collision on nights when visibility is low due to fog or cloud cover (Kerns and Kerlinger 2004). The wind speed, direction, temperature, precipitation and any other data available from the project site (e.g., turbines or met tower) will be requested and used in an analysis to correlate observed and adjusted numbers of fatalities from the turbines where daily searches occur. United states Depaflment of the FISH AND WILDLIFE SERVICE West Virginia Field Office 694 Beverly Pike Elltins, West Virginia 26241

July 30, 2009

Mr. Roberl William, Environnieiital Consultant Dominion Resources Services, hit. 5000 Doiiiinion Boulevard Glen Allen, VA 23060

Ms. Bryaime Tait, Business Development Manager Shell WindEnergy, Inc. One Shell Plaza 910 Louisiana, Suite 1042 Houston, TX 77002

Re: Case No. 02-1 189-E-CN, NedPower Mount Storni, LLC, Phase 1 Post-Construction Monitoring Report, July-October 2008

Dear Ms. Tait and MI. Williams:

The US.Fish and Wildlife Seivice (Seivice) has reviewed the February 17,2009, report titled “Mount Storm Wind Energy Facility, Phase 1 Post-Construction Avian and Bat Monitoring, July through October 2008.” This report is intended to meet the requirements of the West Virginia Public Service Commission (PSC) Order (Order), dated April 4, 2003, which requires NedPower . to conduct post-construction avian and bat studies and lighting studies for each phase of the ’ project. Below we provide conments on the February 17,2009, report, as well as recomiiendations related ,to futqre coordination and review of these reports.

Future Coordination

The Order requires that the post-construction studies be filed with the PSC 60 days after each project phase has been in operation for six months, with subsequent studies to be filed on 6- month intervals over ensuing periods of three years (for the avian and bat studies) and one year (for the lighting study). NedPower filed the first post-construction fall season monitoring report with the PSC on February 17,2009, and sent us a copy of this report on February 23,2009, two weeks before the start of the spring 2009 monitoiing season. Given ow staffing liinitations, it would be helpful if you could send LLS a copy of each fall season report for our review and comment at least 45 days prior to the start of the next spring monitoring season.

.c NedPower’s post-constmction monitoring plan notes that during the first year of monitoring, the company will hold a meeting with the Service and the West Virginia Division of Natural Mr. Robert Williams July 30,2009

Resources after conipletioii of the fall study period. The intended purpose of this meeting is to discuss the results of the monitoring studies, evaluate the methods used, and consider the need for changes to the protocol or further study. Given that this meeting has not yet occurred, we believe it is important to meet as soon as possible. This would allow us to make recomiendations on testing measures to minimize wildlife mortality through operational changes. Having this discussiqn shortly after completion of the first year of field work is critical, as the PSC only requires three years of wildlife studies, leaving little time to find effective solutions that reduce moi-tality. We believe that longer term studies will be needed if sigificant wildlife mortality is occui-ring at Mount Storm at the conclusion of the initial 3-year study. We are concerned that cumulative mortality rates for bats and birds may be high, necessitating the need for curtailment studies (such as seasonal feathering) to reduce mortality.

Comments on the Report

The authors of the February 17,2009, monitoring report did not extrapolate mortality to all towers because of expected variation among seasoiis. We agree that there likely will be variation among seasons, with higher mortality rates expected during the fall migration period. Therefore in your next report, we recommend that you include a calculation of the estimated total annual mortality rate for all towers for Phase I. Likewise this should be done for years two and three, along with a cumulative mortality estimate across years.

You should be aware that Thomas Kuntz, of Boston University’s Center for Ecology and Conservation Biology, has been re-evaluating his prior work and has determined that the published formulas for calculating mortality at wind power projects are in error. These foimulas underestimate mortality significantly. Preliminary estimates are that the calculations are underestimating mortality by an order of magnitude of up to three times. When Kuntz’s paper on this topic is published, we recommend that you re-evaluate the adequacy of the formulas you are currently using to estimate mortality. You may find that you need to update the formulas and re-run your initial estimates of mortality.

In future reports, we also recommend that you provide more detail on the methods used to acquire and analyze bat acoustic data, the limitations of this technology, and the rationale for lumping bats into broad acoustic categories. Many factors can affect efforts to accurately identify bat species from calls, such as the age of the equipment and software, quality of recordings, habitat structure, and the experience of the researchers collecting and analyzing the data. The report lumps the bat acoustic data into two categories: low frequency calls (< 35 kHz, generally given by larger bats) vs. high frequency calls (2 35 Mz,generally given by Myotis species). If possible to do so reliably, we recommend teasing out the data into more species- specific categories. If not possible, please explain why it cannot be done reliably.

It is important to .use the infomiation being collected to determine the Cause of mortality and methods to reduce and minimize impacts to birds and bats. As we stated in our August 7, 2008, letter, post-construction assessments need to move beyond counts of dead birds and bats in order . to begin identifying effective operational *parametersthat avoid and minimize bird and bat mortality.

2 blr. Robert Williams July 30, 2009

Recent work by Ed Arnett, of Bat Conservation International, at a wind power facility in Casselman, Pennsylvania (to be published in the Journal of Wildlife Management) suggests that bat mortality is reduced substantially (up to 82 percent at the Casselman site) when turbines are feathered or shut down from midJuly to mid-October in the early evening hours. In this case, these operational changes only cost the company 7 percent of their production. Follow-up studies are ongoing and additional study sites are needed. We recoiiimend that NedPower contribute to this effort by including operational experiments such as tlis at the Mount Storm project.

We appreciate the cooperative working relationsliip we have with NedPower and look forward to a future meeting to explore opportunities to reduce wildlife niortality at the Mount Stomi project site. Should you have questions about this letter, please contact Laura Hill at 304-636-6586, Ext. 18 or 1nm.a liiJl~~~fws.~iov.

Sincerely,

Deborah Carter Field Supervisor cc: RO -Hoar LE- Findley PSC - Squire WVDNR - Anderson

3’ cc SubjectRE: Sample sizes for turbine operation trials at,wind power projects

Laura,

I’m afraid the equation they provide is uniintelligible, which is a bit disconcerting in and of itself. I *think* they are trying to pattern it after something proposed by Erickson, et al. of WEST, Jnc. If so, the estimator assumes that the probability of detecting a carcass missed on a previous search is the same as the probability of detecting it the fist time. We are farily certain from studies comparing dogs and humans as well as from studies in which we left carcasses in place after initial searches to see how many would eventually be found on a subsequent search, that this assumption doesn’t hold, except perhaps in easy habitat. There are too many carcasses that we just won’t detect, no matter how many times we search.

This estimator looks to be a modification of an estimator used early on by WEST, but that WEST abandoned because of its bias, underestimating by a very large factor under certain conditions. So, yes, if their previous estimates were based on something like what WEST used, then they are likely underestimates of actual fatality.

If all 24 of the turbines they are searching will be used in the curtailment study, then none will be hlly operational all the time and hence none will be representative of site-level fatality. At Casselman, we had 12 experimental turbines, but als had an additional 10 turbines that were fiilly operational. We used these 10 to estimate per turbine fatality for the site.

It would be a bit complicated to try to drop those weeks during which the turbines were curtailed, and extrapolate the rest of the data to those dropped weeks in order to calculate annual fatality estimates. It could be done, but seeing the level of (mis)understanding already inherent in their presentation of the statistical methods, I would not think the authors would be capable of appropriately addressing this without help. Correlating mortality with weather seems to be a hot topic right now, but is very difficult to do correctly. Testing effectiveness of different curtailment strategies also seems to be a hot topic, but again, is very difficult to do correctly. I strongly suggest the consultants hire a statisticianto help them design their study and analyze their data. Just as an aside, I am *not* available, so this is not a bald-faced attemtp on my part to generate work 0

HTH

Manuela

>::o::o::o::o::o::o::o::o::o::o::o::<

Please note: I will be out of the office and out

of email contact from 7/11-7/25/2010

>::o::o::o: :o::o: :o::<>::o: :o::o::o: :<

Manuela Huso

Consulting Statistician

201H Richardson Hall

Department of Forest Ecosystems and Society

Oregon State University

Cowallis, OR 9733 1

phi 541-737-6232

fk: 541-737-1393

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Statistical Methods for Estimation of Fatality Rates United States Department of the H FISH AND WILDLIFE SERVICE

West Virginia Field Office 694 Beveriy Pike Elluns, West Virginia 26241

September 30,2009

Mr. Trevor Peterson Stantec Consulting 30 Park Drive Topshani, Maine 04086

Re: Proposed New Creek Mountain Wind Energy Project (PSC Case # 08-21 05-E-CS), 2007 and 2008 Bird and Bat Migration Reports and Risk Assessment, Grant County, WV

Dear Mr. Peterson:

The US. Fish and Wildlife Service (Service) has reviewed the Fall 2007 Bird and Bat Migration Survey Report (Stantec Coiisultiiig 2008a), the Spring, Summer, and Fall 2008 Bird and Bat Migration Survey Report (Stantec Consulting 2008b), and the New Creek Mountain Bird and Bat Risk Assessment (Stantec Consulting 2008c) for the proposed New Creek wind power facility in Grant County, West Virginia. The proposed facility would consist of approximately 66 turbines, with a maximum height of 130 meters (430 feet), along an 11.3-kilometer (7-mile) corridor on the ridgeline of New Creek Mountain. These comments are provided pursuant to the Endangered Species Act (87 Stat. 884, as mended; 16 U.S.C. 1531 et seq.), the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d), and the Migratory Bird Treaty Act (16 U.S.C. 703- 712).

On March 12,2009, representatives of AES New Creek, LLC (AES) met with the Service and West Virginia Division of Natural Resources (WVDNR) to discuss results of the spring and fall bird and bat surveys and documentation provided in the New Creek Mountain Bird and Bat Risk Assessment. As a follow-up to the March 12,2009, meeting, we summarize below the results of the surveys and Risk Assessment, and provide comments on the adequacy of these studies as well as our recommendations for future phases of the project during construction and operation.

Migration Surveys and Reports

The 2007 and 2008 bird and bat migration reports detail the surveys conducted to determine the direction, height of passage, and species composition of migrating birds and bats. Survey efforts were conducted between September 2007 and October 2008, and included: nocturnal radar surveys (spring and fall), diurnal raptor counts (spring and fall), an aerial eagle nest survey (spring), breeding bird surveys and area searches (spring), acoustic bat surveys (spring, summer Mr. Trevor Peterson '2 September 30,2009 and fall), bat mist-netting surveys (spring, summer and fall), and a small-footed bat telemetry study. The survey methods used were consistent with the array of survey techniques used to determine species presence/composition and flight direction for other wind power projects.

Nocturnal radar surveys were conducted during 20 nights each in the fall of 2007 aiid spring of 2008, sampled fiom sunset to sunrise, recording both horizontal and vertical hourly radar video files. These surveys documented nocturnal migration patterns similar to,tliose seen at other recently surveyed sites, including highly variable passage rates between nights, with a flight direction roughly parallel to the ridgeline of New Creek Mountain and migration activity generally greatest 2-3 hours after sunset. The mean ff iglit height of targets was 360 meters (1 ,I 88 feet) in the fall and 442 meters (1,459 feet) in spring, with 5 17 percent of targets flying below the proposed maximum height of 130 meters (430 feet) for proposed turbines with blades. The mean flight direction and altitude of targets passing over the project area, and qualitative analysis of the surrounding topography and landscape, indicates a broad front type of landscape movement (north-northeasterly iii tlie spring and southwesterly in the fall).

Rantors

Raptor migration surveys were conducted during fall 2007 (mid-September through December 1) 2007) and spring 2008 (March 21 through May 14) from a meteorological tower clearing near the middle of New Creek Mountain. The surveys were consistent with standard methodologies and covered the peak of raptor migration. Thirteen species were docuniented, with turkey vultures the most cornmon species observed. Five of the raptor species observed are considered sensitive by the State of West Virginia; these include the northern harrier, osprey, black vulture, peregrine falcon, and bald eagle. No Federally-listed threatened or endangered species were observed during the fall 2007 and spring 2008 survey periods, Eight bald eagles and eight golden eagles were observed throughout the two survey periods. Most of the raptors in the survey area were observed flying within 200 meters (660 feet) of the summit, at br below the proposed blade-swept zone. Migrating raptors were generally observed moving parallel to the ridgeline or directly above the ridge, while resident birds were generally observed circling, perching, or foraging over the ridgeline or adjacent valleys. Most of the raptors (68 percent) within the 1-kilometer (0.6-mile) observation radius were flying below 130 meters (430 feet) (the maximum tower height) during both surveys. Flight paths of raptors varied between survey dates and were influenced by varying wind direction and weather, among other factors. The greater occurrence of migrants at low altitudes increases the poteptial for migrating raptors to come into the vicinity of the proposed wind turbines,

An aerial survey for bald eagle nests was conducted on April 30,2008, from a single-engine aircraft flying at an altitude low enough to permit observation of nests (1 50-21 0 meters or 495-, 693 feet above ground). The surveyor observed a known eagle nest approximately 1.0 miles from New Creek during the survey to help refine their nest search image. No active or inactive nests were observed on New Creek Mountain or the surrounding eight kilometers (five miles) during ' tlie survey. Wir, Trevor Peterson 3 September 30, 2009

Breeding Birds

The spring breeding bird survey followed standard survey methodologies using 25 point counts and eight area searches, documenting a ‘total of 64 bird species in and adjacent to the project area. In general, the species observed were common to the region and typical of the habitats in which they were observed. No Federal1y-listed species were observed during the breeding bird survey. However, 11 bobolinks, a species considered rare in the state, were detected during area search surveys in an open field outside the project area.

. -Bats Passive acoustic monitoring was conducted for bats during the fall of 2007 and the spring, summer, and fa11 of 2008. Four acoustic detectors were deployed in 2007 and six in 2008, at and‘ above ground level, to document activity near the proposed rotor zones and in various habitat types. Detection rates were slightly higher than that documented in other similar surveys. Most calls were detected by the talus detector, with more typical activity levels at the tree line and meteorological tower detectors. Viewed seasonally across 2008, detection rates at meteorological tower detectors were generally higher during the fall, followed by the summer, and spring periods, while the highest rates at ground-level detectors were seen during the - summer. Bat calls were grouped into four guilds based on similarity in call characteristics and the uncertainty in the ability of frequency division detectors to adequately provide information for this differentiation. In both 2007 and 2008, the big browdsilver-haired/hoary bat guild was the most prevalent, followed by the red baveastern pipistrelle guild, and the Myotis guild. This trend in species composition is similar to that of other acoustic studies in the region, but does not reflect relative abundance of species in those guilds. Quantitative comparisons of detection rates among detectors, seasons, or habitats are not possible with this data, nor are direct correlation with weather variables, or linking detection rates to bat abundance. However, typical high mid- summer activity (compared to spring and fall) and heavy bat migration in the fall were evident from these surveys.

Bat mist net surveys were conducted in the spring, summer and fall of 2008. Survey efforts . followed the procedures accepted by the Service. Eight bat species (408 individuals) were captured, most during the summer sampling period (62 percent. The northern myotis was the most frequently captured species, followed by the eastern small-footed myotis, a species considered to be “extremely rare or imperiled” in West Virginia. Other species encountered included the big brown :bat, liEle brown myotis, eastern red bat, hoary bat, silver-haired bat, and eastern pipistrelle. No Federally-listed threatened or endangered species were documented during mist net surveys. A radio-telemetry study of eastern small-footed myotis was developed in response to the unusually high summer capture rate of this species. Ten individuals were tracked to day-roosts located along talus slopes and cliff faces down slope of proposed turbines in the noftli end of t.he project area and south of the southern-most proposed turbines. These individuals frequently changed the location of day roosts and moved short distances between roosts. Mr. Trevor Peterson 4 September 30,2009

Summary and Recommendations

In general, the survey methodologies described above were designed to determine whether any outsranding, unique or unusual natural resource was present within the project area. Data . collected during surveys and radio-telemetry work indicated that the project area provides important habitat for the small-footed bat (a slate-listed sensitive species), as well as foraging habitat for other bat species, including the hoary bat, the red bat, and state-listed sensitive silver- haired bat. In addition, these rocky slopes and cliff faces are known to support a variety of other sensitive wildlife species in the region (e.g., Allegheny woodrat). To protect these sensitive resources, the Service recommends avoiding impacts to talus and rocky outcrop areas that may be used as roost sites by small-footed bats and other sensitive species,

We believe that the survey techniques used were appropriate and sufficient to reveal as much information about the resources surveyed as possible during one year. However, because of variability in populations and detection rates due to si variety of local and regional factors, one year of data does not necessarily reflect overall species composition or abundance at a site. Thus, the Service recommends multiple years of pre-construction surveys in order to establish a more complete data set (Service 2003). Multiple years of pre-construction data can account for natural variations in population numbers and composition caused by varying weather conditions and other influences.

New Creek Mountain Bird and Bat Risk Assessment

The Service identified several species and groups that may be impacted by the construction and operation of the New Creek wind power facility in a letter to Ms. Samantha Hand, dated May 15, 2007. Indiana bats, Virginia big-eared bats, nesting bald eagles, migratory birds (including bald and golden eagles) and 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 New Creek Mountaiii Bird and Bat Risk Assessment (Risk Assessment) describes the potential for impacts to these identified species using the survey information, data from other wind power facilities, and literature reviews. The Risk Assessment is 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. Tlzis is an acceptable approach that has been used by the Service and other Federal agencies to describe risk.

Breeding Birds

The authors of the Risk Assessment concluded that potential iisk to breeding birds is Iow/medium to medium at New Creek Mountain based on bird surveys documenting typical avian species composition and abundance (relatively low as compared to more diverse valley habitats nearby), iid literature indicatihg lower rates of collision-for breeding birds as opposed to migrants. Further, the Risk Assessment indicates that proposed clearing/forest fragmentation associated with the wind facility is expected to cause only &or impacts to the distribution of Mr. Trevor Peterson 5 September 30,2009 species in the project area, as many of the bird species documented in the project area are described as edge-associated species, in a habitat characterized by the authors as relatively disturbed Ad fragmented. While one West Virginia state species of concern, the bobolink, was documented during the breeding bird surveys, those birds were observed in an open field located outside the project area.

The authors also concluded there was a low/medium to medium collision risk to migratory birds based on a low documented rate of collision at most wind facilities, and the fact that most migrating birds were flying above proposed turbine heights. However, data from the 2007-08 marine radar surveys indicated a higher level of passage at New Creek Mountain than in most other documented radar surveys, and a higher than average rate of targets (i.e. birds) flying below the proposed rotor zone (approximately 13-17 percent). This survey data indicates a somewhat elevated risk for mortality to migratory birds in the project &ea compared to other documented radar surveys. As explained in more detail below, we believe the risk may be higher than the survey data indicate.

Raptors

Thirteen of the 16 raptor species expected to occur in West Virginia were observed during on- site raptor,niigration surveys conducted in the fall of 2007 and spring of 2008, indicating high raptor species diversity. This included eight golden eagles (all observed during the fall survey) . and eight bald eagles (seven in the fall and one during the spring survey), as well as several unidentified eagles. ‘The majority of raptors within the 1-kilometer (0.6-mile) survey area were observed flying within the blade-swept zone of proposed turbines (< 130 meters or < 430 feet) during both survey periods. Despite this low elevation flight pattern, the authors determined that the collision risk to raptors ‘was low/medium to medium due to survey results showing relatively low rates of raptor migration at the New Creek Mountain site, and low documented rates of raptor collision mortality at wind power facilities in the eastern United States. As further explained below, the Service believes the risk to raptors, especially bald and golden eagles, merits further monitoring given discrepancies in raptor abundance in the study area for the New Creek wind power project compared to much higher concentrations of raptors observed during similar time fiames in the study area for the proposed Pinnacle wind power project located approximately eight kilometers (five miles) away. Bald and golden eagles, in particular, may become increasingly at risk over the life of the New Creek wind power project, as their population numbers appear to be increasing in West Virginia.

Results of spring and fall raptor migration studies confirm that the proposed Pinnacle wind project study area lies in a major migratory pathway for the relatively small eastern population of golden eagles, with the authors noting that “Fall Golden Eagle migration at Pinnacle is significant and comparqble 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 study area 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 though the project area. The spring 2008 observation period occurred between March 2 and April 29 and totaled 45 observation days. During this period, 102 Mr. Trevor Peterson 6 September 30,2009 .

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 for construction and at heights corresponding to the rotor-, or blade-, swept area,

Raptor studies for both New Creek and Pinnacle covered the peak of migration yet resulted in widely different estimates of raptor abundance. The reasons are unclear but could be related to differences in thermals between ridgelines, seasonal variation among sites, observer differences,

G or other factors. These differences highlight the need for multi-year pre-construction surveys and raise concerns that the New Creek project may pose as high a risk to raptors as documented in the Pinnacle study area.

The authors of the New Creek Mountain Risk Assessment also evaluated potential habitat loss from construction of the proposed project. They concluded that the relative degree of habitat loss was low/medium to medium risk because no eagle nests were observed during an aerial nest survey over an eight-kilometer (five-mile) radius centered on the project area, and habitat impacts are expected to be similar to existing conditions in the area. However, a bald eagle nest was documented within eight kilometers (five miles) of the project area in 2007, and many more nests have been documented within 32 kilometers (20 miles) 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, AES should coordinate with the Service 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 8 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).

Grant and Pendleton counties.may also provide important wintering areas for golden eagles, and may be regularly used by immature eagles diring the summer (Katzner et. al. 2008). In addition, the general area within which the proposed project area is located is known to be used by both bald and golden eagles during migration. Lower altitude flights during migration, such as those documented in the raptor surveys for the New Creek and Pinnacle wind power study areas, may increase the probability of an eagle encountering a rotating turbine blade during fall or spring migration across the area.

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 vicinity of New Creek Mountain, 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 Mr. Trevor Peterson 7 September 30,2009

consider the Allegheny Front and five adjacent ridges to the east to 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 New Creek Mountain.

While the single year of survey data 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.

Bird Concerns

For a number of reasons, we believe the risk to migratory birds (including raptors) is higher than indicated in the 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 20 1 kilometers (1 25 miles) south of the proposed New Creek wind power project in the same chain of ridgelines used by birds for broad-front long- distance 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 New Creek site. Of these studies, including ongoing studies at the Mount Stom 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 Risk Assessment, 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 48 kilometers (30 miles) of the proposed New Creek 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. We therefore believe the risk to migrating birds from the proposed New Creek project is higher than indicated in the Risk Assessment because: 1) the proposed prbject 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 New Creek site were as relatively low as estimated in the Risk Assessment, the cumulative impact of these wind power facilities, when added to other bird Mr. Trevor Peterson 8 September 30,2009 mortality factors (collisions with buildings, moving vehicles, and power lines; or bird kills associated with contaminant exposure and other hunian-caused factors) may result in bird population declines.

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 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, coiiipanies, or agencies Erom 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 defmed 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.tlie Service’s goal is to avoid take of eagles, we recognize that take may occu 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 regdations 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 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. Mr. Trevor Peterson 9 September 30,2009

-Bats The authors of the Risk Assessment determined that the risk to bats at New Creek Mountain ranged from low/mediu~nbased on a literature review to medi&i/high based OE weather analysis, an on-site habitat assessment, and both mist-net and acoustic bat surveys, No threatened or endangered bat species were documented in the project area during surveys, though acoustic surveys would not necessarily have been able to detect those species individually. While acoustic surveys have documented moderate to high levels of bat activity relative to other wind turbine sites, the authors concluded that indirect impacts to bats would be minor at New Creek Mountain, given the currently disturbed nature of many habitats within the project area and the relatively small area of anticipated clearing associated with the proposed project. While the small-footed bat was detected in unusually high numbers, individuals tend to forage relatively close to the ground, below the proposed blade-swept zone of wind turbines. Hence this species is not known to be particularly vulnerable to mortality caused by collision with the turbine blades or lung injury caused by sudden drops in air pressure near the blades. The authors of the Risk Assessment stated that indirect impacts to roosting sites are also expected to be minimal because the rocky talus slopes that the small-footed bats in this area were found to favor as roosting habitat (on the western side .ofNew Creek Mountain and in Greenland Gap, south of the project area) will not be directly impacted by project construction.

The Service concurs with the conclusions in the Risk Assessment that there is a lowlinediuni to mediuni risk to threatened and endangered bat species resulting from implementation of this proposed project. We consider there to be a medium or higher risk of mortality to other bats during operation of the turbines.

With respect to listed bat species, the mist net surveys did not result in the capture of a Federally- listed bat. There is not suitable roost habitat for the endangered Indiana bat (MyOtis sodalis) on the ridgeline as the habitat is very dry and vegetated with spindly trees. However, endangered Indiana bats and Virginia big-eared bats (Corynorhinustownsendii virginianus) may be present . in the project area during foraging and/or migration. The nearest known Indiana bat hibernaculum (Smoke Hole Cave) is located within approximately 40 kilometers (25 miles) of the proposed wind power facility. Surveys of Smoke Hole Cave during 1998 to 1999 indicated that a transient population of Indiana bat may use the cave in the winter. Bat monitoring efforts on the nearby Monongahela National Forest also have resulted in the capture of lactating or post- lactating female Indiana bats, indicating the presence of maternity colonies at two locations within about 48 kilometers (30 miles) south and southwest of the proposed New Creek Mountain I wind facility. Hellhole Cave, the state's most important bat cave and an Indiana bat hibernaculum with 12,858 individuals counted in the 2006-07 winter survey (WVDNR 2007), is located approximately 48 kilometers (30 miles) south of the project area. However, Indiana bats are capable of long distance flights (up to 300 miles) during migration (Service 1999). Because this endangered.species uses forested habitat to travel to foraging areas (Butchkoski 2007), clearing of large areas through forested habitat could disrupt travel corridors for this species.

An historical Virginia big-eared bat (VBEB) cave, Kline Gap Cave, is located approximately 14.5 kilometers (nine miles) southwest of the project area. In addition, Peacock Cave is located Mr. Trevor Peterson 10 September 30,2009 approximately 29 kilometers (1 8 miles) from the project area; this cave supports a very large VBEB maternity colony, with 1,013 individuals counted in June of 2008 (WVDNR 2008). Virginia big-eared bats tend not to travel long distances like Indiana bats, but they do move between caves and for foraging (Service 1995).

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 (Baenvald et ai. 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. However, using the information provided in the Risk Assessment, which documented relatively high bat detection rates at acoustic monitoring sites, it is evident that there is a clear risk to migratory bats due to operation of the wind power facility. In particular, acoustic surveys in the project’area indicated high levels of activity in the upper air space above the proposed wind turbines for the long-distance migratory bats, the species group killed most fiequently in the eastern United States, as well as 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 of mortality caused by wind turbines. It is unknown whether the anticipated mortality of these bats will affect their population numbers, though there is the potential that the cumulative effect of multiple eastern wind power facilities will reduce the overall bat populations during the duration of these facility operations (typically 25 to 30 years). As stated in the Risk Assessment, “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 risk to Federally-listed bats through habitat modification, fragmentation, collision with turbine. blades, and barotrauma is not considered high for this project individually, the cuniulative 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 New Creek wind power facility, including at least one Indiana bat hibernaculum. This species, along with other Myolis 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. Depknding on the spread of 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.

The Risk Assessment authors considered potential impacts to bats to have the greatest potential adverse cumulative effects of the four groups of. species considered (raptors, nocturnally migrating passerines, breeding birds, and bats). We agree. Bats tend to reproduce slowly and Mr. Trevor Peterson 11 September 30,2009 have longer life spans than birds; rates of collision mortality at existing wind farms tend to be higher for bats than for raptors, nocturnally migrating passerines, or breeding birds; and other risks to populations (e.g., white-nose syndrome) are currently high for this group.

Higher bat activity and fatalities have been consistently reIated to periods of low wind speed and weather conditions typical of the passage of storm fronts (Amett 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 c< 1 percent). Data from the New Creek acoustic bat survey work supports this approach in operational cui-tailment as well. The Risk Assessment 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 metershecond (20 feethecond) 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 Risk Assessment is an acceptable approach to determine the relative level of impact a particular stressor (Le,, 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 New Creek wind power project, as well as the cumulative effects ofmultiple wind power projects and other stressors on populations of eagles, other birds, and bats.

It is important for the Service, AES, and others to work together to gather the information needed to determine feasible and effective methods to reduce 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 New Creek 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.

Pre-Construction Recommendations I) Reduce the amount of forest removal as much as possible to reduce impacts to forest species, including bats and birds. Mr. Trevor Peterson 12 . September 30,2009 2) Avoid impacts to talus and rocky outcrop areas that may be used as roost sites by small- footed bats and other sensitive species. 3) Should overhead powerlines be constructed, follow the guidelines in the Avian Pro.tection Plan (APLIC and Service 2005) to avoid and reduce bird collisions with overhead lines or guy wires.

Post-Construction Recommendations 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 Iife of the project 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. AES 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, kdhow 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 birds and bats that are actually flying low enough'to be exposed to risk of mortality from the 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's West Virginia Field Office. 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, 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 peak migration or during high-risk weather events). To facilitate data collection in a consistent manner at multiple wind power sites, we recommend that AES participate in studies similar to the ongoing curtailment study at the Casselman wind power project in Somerset County, Pennsylvania (Arnett et al. 2009). Mr. Trevor Peterson 13 ‘September 30,2009

Mortality searches should use dogs to improve detection rates in medium and low- visibility habitats (Amett 2006); 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 (Amett et al. 2008, Huso 2008); and corrections for habitat variation (Arnett et al. 2008). 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 AES 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 3 1. 11) To help predict raptor impacts, we recommend that AES 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 400 meters (1,320) 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 AES will notify the Service’s West Virginia Field Office and the 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 AES may pursue incidental take permits under the Endangered Species Act and Eagle Act, respectively. AES may also apply for such permits prior to construction. Mr. Trevor Peterson 14 September 30,2009

We look forward to working withh.AESto iniplement the reconmendations made above. We appreciate the opportunity to provide information relative to wildlife issues, and thar you for your interest in these resources. If you have any questions, please contact Laura Hill at 304-636- 6586, Ext. 18 or laura hilllii%fws.wov. Sincere1y,

Deborah Carter Field Supervisor Enclosure Mr. Trevor Peterson 15 September 30,2009 cc: FWS RO - Diane Lynch SOL - Dave Rothsteiii PSC - Sandra Squire WVDNR - Roger Anderson AES - Tony Colman Reader File Project File ES: WVFO:LHill:skd:9/30/2009 Filename: P: Wind PowerWew CreekWewCreek-Letter-092909 Mr. Trevor Peterson 16 September 30,2009 References

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. Johison, J. Kerns, R.R. Koford, C.P. Nicholson, T.J. O'Connell, M.D.Piorkowslti, and R.D. Talcersley, Jr. 2008. Patterns of bat fatalities at wind energy facilities in North America. Journal of Wildlife Management 7251-78.

Amett, 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 US. Fish and Wildlife Service. 2005. Avian Protection Plan (APP) Guidelines. Edison Electric Institute APLIC and US.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.

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: 1695- 1703.

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, comparison estimators of bat (and bird0 mortality at wind power ' A of generation facilities. Bats and wind Energy Cooperative Workship, Austin, Texas. January 8- 3 0. Available at www.energetics.com/BWECWorksliop2008/agenda.html. ' Katzner, T.D. Brandes, M. Lanzone, T. Miller, and D.Ombalski. 2008. Rapton and wind energy development in the Central Appalachians: where we stand on the issue. National Aviary Policy Statement - Wind Power.

Kerns, J., W.P. Erickson, and E.B. Amett. 2005. Chapt,er 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. Mr. Trevor Peterson 17 September 30,2009

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 Environiient S:? 15-324. 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.

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. 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.

Stantec Consulting. 2008b. 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. 2008c. New Creek Mountain bird and bat risk assessment: a weight-of- evidence approach to assessing risk to birds and bats at the prposed New Creek mountain project, West Virginia. Prepared for: AES New Creek, LLC, Arlington, VA. 105 pp.

U.S. Fish and Wildlife Service. 1995. Agency draft. Virginia big-eared bat (Corynorhinus townsendii vii-ginianus)revised recovery plan. U. S. Fish and Wildlife Service, Hadley Massachusetts. 33 pp.

U.S.Fish and Wildlife Service. 1999. Agency draft. Indiana bat (Myotissodah) revised recovery plan. U.S. Fish and Wildlife Service, Fort Snelling, Minnesota. 53 pp.

U.S. Fish and Wildlife Service. 2003. Service interim guidance on avoiding and minimizing wildlife impacts from wind turbines. U.S. Fish and Wildlife Service, Washington, D.C. 55 PP. US.Fish and Wildlife Service. 2007. National Bald Eagle Management Guidelines. U.S.Fish and Wildlife Service, Washington, D.C, 25 pp. Mr. Trevor Peterson 18 September 30,2009

West Virginia Division of Natural Resources. 2007. Federal Assistance Performance Report, Endangered Species (Animals) Project E-1, Segment 24 (1 October 2006 - 30 September 2007). West Virginia Division of Natural Resources Wildlife Resources Division, Elkins, WV. 89 pp. plus appendices.

West Virginia Division of Natural Resources. 2008. Federal Assistance Performance Report, Endangered Species (Animals) Project E-I, Segment 25 (1 October 2007 - 30 September 2008). West Virginia Division of Natural Resources Wildlife Resources Division, Elkins, WV. 87 pp. plus appendices.

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 Storin, 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. 5 1 pp. h4r. Trevor Peterson 19 September 30,2009 Enclosure 1. Bald eagle status and distribution in West Virginia, responses to disturbances, and guidelines for projects near active nests.

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 Bal Sensitivity to

Human ' Phase Activity Activity Comments Most sensitive Most critical time period. Disturbance is m'anifested Courtship period; likely to in nest abandonment. Bald eagles in newly I and Nest respond established territories more prone to abandon Building are negatively nest sites. Human activity of even limited duration may cause veiy sensitive . Egg nest desertion and abandonment territory for the I' laying period of breeding season. Incubation Adults are less likely to abandon the'nest near and qdearly after hatching. However, flushed adults leave eggs nestling Very sensitive 'I1 and young unattended; eggs are susceptible to period (up period cooling, loss of moisture, overheating, and to 4 . 'predation; young are vulnerable to elements. weeks) Likelihood of nest abandonment and vulnerability of Nestling Moderately the nestlings to elements somewhat decreases. to 8 weeks

Gsiining flight capability, nestlings 8 weeks and ' 8 weeks Very sensitive older may flush froin the nest prematurely due to through period disruption and die. Mr. Trevor Peterson 20 September 30,2009

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 junip 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. lnterference 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 comrnunal 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 If there is similar activity closer within I mile of the nest titan I milefroh tlie nest

' 660 feet (200 km), or as close as Vtize activity will 660 feet (200 Landscape km). existing tolerated activity of similar be visible from the buffers are recommended. nest scope. Landscape buffers are recommended.

.. Mr. Trevor Peterson 21 September 30,2009

~ ~~~ If there is no similar activity If there is similar activity closer within 1 mile of the nest than I mile from the nest

330 feet (100 km). Clearing, external construction,,and 330 feet (100 km),or as close as existing tolerated activity ~f siniilar &!the activity will landscaping between 330 feet (1 00 krn) and 660 feet (200 lun) scope. Clearing, external not be visible from construction and landscaping within the nest should be done outside breeding season. 660 feet (200 km) should be done outside breeding season.

e 1, Annual fatality es5imd Wind Farm 1.

ife Service on site preparation

4 es from sunset to a. V. r

7 USFW 732 C.

U8FW 733 USFW 790 sets were cons 57 USFW 792 Indiana and high E e to little 58 USW 733 ... - ...._. ._. . .._._.-. . -_ . kUG-11-2008 17~33 US FISH AND W I LDLI FE SERV 1 413 253 8482 P.002 .

I 1, ! United States Department of the Interior FISH AND WILDLIFE SERVICE West Virginia Field Ofiicc 4 694 Beverly Pike 1, Elkins, West Vkginia 26241 August 7,2008 Mr. Hkronymus Niesscn Nsdpower Mount Storm LE 5 160 Parkstone Drive, SI& 260 ChantilXy, Virginia 20151

e Re: Case No. /02-1I89-E-CN, NedPower Mount Stomt, LLC

I Dcar M. Ni&en:

I want to & Ned.Power Mount Storm UCfor providing us a copy of the draft Avian and Bat Monitoring Pian for the NWower Mount Storm Wind Energy Facility, in Grant County, West Virginia (Monitoring Plan, dated June 17,2008). The Monitoring Plan is intended to meet the requimtlents of the Wmt Virginia Public Service Commission (PSC) certificate, and to docwrenf and quantify impacts to bixds and bats from the opemtion ofthe wind turbines. This plan was delivered to us at a meeting with project representatives on June 18,2008, following a previous meedhg when wu were fkst briefed on the Monitoring Plan on April 17,2008. The basis of the discussions on April 17,2008, and June 18,2008,was informed by the PSC’s Order Conditions 13 and 14 pcltaining to post-construction studies, As was mentioned at these meetings, the pre-oonstruction studies that were conducted in 2000 to 2003 were inttsdtd to expllore conccms about’~gratory birds and bats, and threatened and endangered species.

Throuaout the phning stages, the Fish and Wildlife Senice (S.&ce) has expressed concerns about the effedss of the project on these resources. In a series of letters fiom 2001 though 2007, the West Virgi&a Field Office (WVFO) bas provided comments on impacts to thatend and endangad species, the Bat Biological Assessment and Supplanat, the Phase I Avian Risk Assessmmt, ahd the Avian Migration Study hopsal (see enclosed list of WO conespondenct). In these wmmmts, the WOexpressed concerns about study design and &nclusions drawn reports and a~sessmen~.At thc time, we were unable to comment on thc results of thc Baseline Avian Studies report completed ‘in2004. In particular, we note that the authors of the Baseline Avian Studies report concluded that the Allegheny Front is not a major migratory conidor for birds, including raptors, and bats, and therefore the project would have limited effects on wildlife. In correspondence prdngreceipt ofthe 2004 B&elim Avian Studies report, the WOnoted coneems about impacts to wildlife AUG-11-2008 17:33 US FISH AND WILDLIFE SERV 1 413 253 8482 P.003

1 2

because the Allegheny Front is a known major migration mute for birds, including raptors ' (letters dated!August 30,2002; SeptembM 13,2002; and December 3,2002). There are over 50 years of migration records &on the Allegheny Front Migration Observatory station at Beat Rocks, located on the Same ridge, and within a ;Few miles of the project. Observations have been made there nklyevcry fall since 1948 by members oftbe Brooks Bird Club and reported in thcir quarterly journal, the Redstun. Over 200,000 migrating birds have been banded at this station.

I. L Shoe 2003, when the project's baseline avian wgs were conducted, additional obs&dons by the Allegheny Front Migration Observatory (Bell and Pattison 2007) confimn that the Allegheny Front continues to be a migratory corridor for birds. Bell and Battison (22007) also reported that Iarge flights have occurred in this area on westerly winds. When clouds with fog or rain are presebt, migating birds tend to fly under them. When these clouds drop close to the pound, birdsihavt: Continued to fly under &em. Weather patterns m& as these, which result in migrating birds flying at low altitudes, are cause for conam as they inaease the risk of avian collision with structures such as wind power turbines. These obsmations emphasize the hp0-e ofmonitoring weather pattans during postsonstruction rnonitoa at the NedPower Mount Stom'facility and looking fox correlations between weather, bird behavior, and fatality events. ! I

Both bats a.n&birds(including raptors) are susceptible.to collisions with wind turbipes (Barrios and Rodriguez 2004, Hoover and Morrison 2005, Arnett et al, 2007). In 2004, birds, including raptors, were picked-up below operating wind turbines in Wcst Virginia during a &week field study (Am& 2005a). Amett et al, (2007) reported that bat fittalities have been recurded either anecdotally or'quantitativelyat every wind fkdity where post-coastruction surveys have been conducted. Reported fatalities are highest at wind facilities located on ridges in atern deciduous forests of the United States (Kuru 2006, Kum et ai. 2007). The WOthus continues to believe that wind power facilities, such as NedPower Mount Storm, will have direct impacts on individual migrating bats and birds, as well as cumulative impacts on these species,

We therefore are writing at this time to provide our rmmendations on the proposed monitoring plb, as well as fiture wildlife study needs based on limitations of part baseline studies, infomiation gaps, and current knowIedge of the &e& of wind power facilities on 1 wildlife. The Service recommends that additional idoxmation be collected during the remaining construction phape. and early years of project operation in order to supplement the post- construction iortality study. This would allow us to move beyond bird and bat mortaIity counts toward possible solutions that eEcctively avoid or reduce bird and bat mortality.

Information on bird and bat numbers in the study area, how and when they move through the area, and how fiey behave in the rotor swept area during different times of year, wind speeds and persistent weather evcnts, and operating conditions are important to assessing the significance of impacts and d&rmining how to avoid and minimize bud and bat mortality. This inforqation i ;I I

!' AUG-11-2008 17:33 US FISH AND WILDLIFE SERV i 413 253 8482 P.004

also is intended to help you understand recent recommendations made by the WVFO and to assist you wi& planning for cuffent and future wind power projects. I. We have prGared and enclosed OW camments on the pre-construCtion studies that were conducted and on the post-construction monitoring plan for the projoct in order to provide a basis for our currat recommendations and provide synthesis of past correspondence. in general, the responses include a brief overview of the type of studies conducted and previous WO reo~mm~&&ons,an analysis of the value of the data that was collected, followed by new infomation available through more recent research and the WVFO’s recent recommendations.

We currmtly,bavea cooperative working relationship with NedPower and wish to continu0 it long intathe &we. We appreciate NedPowa’s willingness to work with the WVFO and we look foward!tojointly exploring opportunities to improve on wildlife study design during thu remaining phases of project oomtmction, testing, and commercial operation.

~homas~.~fiaprmin. Field Supenisor

Enclosure (1)

cc: C0ngressman:Mollohan Shell. Win~ergy- Tait Dominion R&urces -Williams RO -Horn LE-P~I~~I’ PSC - Sandta!squire , DNR-Anwon P AUG-11-2008 17:33 US FISH AND WILDLIFE SERV 1 413 253 8482 P.005

I i Enclosure to lcttek to Eeronymus Nicssen I

Comments of the U.S. ]Fish and WildHe Service 0x1 Wildlife Studies for the NedPowor Mount Stmn Wid Energy Facility9Grant County, West Vbginb i8 Introduction

In this docuthcnt, the U.S. Fish and Wildlife Service's West Virginia Field Office (WVFO) syntl~csizesits commmts on the pre-construction Wildlife studies that were conducted on the NedPower Mount Storm Wind Energy facility (NedPower}, and on the development ofthe post- construction dyproposal for this project, Looking forward, we recommd fbture state-of-the art studies thh would inform efforts to avoid and minimizq the impacts of this project (and other similar futur@projects)on wildlife, particularly birds and bats.

Although we:have learned a great deal about wind power and its effects on wildlife since the time of the application for the NodPower siting certificate, more still needs to be known in order to effectively;avoid and minimize the mortality ofbirds and bats fiom such facilities, It is important foFtbe WVFO, NedPower, and others to work together to gather the information needed to determine feasible and effeGtivc methods to reduce coIlision risk to birds and bats.

We offer our perspective on the NedPower Mount Stom wildlife studies below.

Prc-Construkion Baseline Studics

West Virgin& Northern Flying Squirrel Study

To avoid impacts to the fedorally-listed endangered West Virginia northern flying squirrel, the WVFO recommended that presencdabsence surveys be performed, that habitat witability be assessed, and :that buffas be applied around suitable habitat on the project site (Service letters to NedPower orbc~nmltants dated December 27,2001; August 30,2002;and September 131 2002). Dr, Edward Michael performed the surveys, habitat mapping, and on-the ground flagging of suitable habiiat and buffers. Staff biologists fiom the WOsubsequmtly cmfkned the delineation of flagged suitable habitat and buf€ers in the field,

Early diswskns with NedPower included provision of D half-mile buffer around point locations where West yirginia northan flying sqdlswere captured witbin the project area. We later recognized thi~tstechnique is inaccurate because it assumes the point where a squirrel was oaptured corresponds to the center of its home range, whereas the individual may be at the edge of its home &gc when captured. Thus drawing a half-mile-radii &le around this point, without analysis of habitat suitability, can lead to errors by fkiling to protect all suitable habitat and instead protecting lqcareas of unsuitable habitat. To avoid these problems, we later agreed to implement a more conservative and accurate technique to buffw squirrel habitat. To avoid direct and indirect impacts to individual West Virjjnia northern flying squirrels and their habitat in the project area, we therefore evaluated, mapped, and protected all mitablo habitat within the project area, and placed a l5bfoot buffer (of non-habitat) around the outer edge of _. . - ._ AUG-11-200B 17:33 US FISH AND WILDLIFE SERV 1 413 253 8482 P.006

the demrcatkd suitable habitat. Thc 150-foot buffer teohnique is more protective than the odginal half-mile buffer technique bemuse it protects the entire stand of idmtified suitable habitat. Bas+ upon these protective habitat measures and our knowledge of the squirrel’s behavior, thdWW0 verified in a letter to Nedaower dated June 8,2007, that the project would have no advme off& upon the West Virginia northern flying squjxrel. I Since then, &cans have beeil raised by an envirmental group abut tower locations in particu&._ For example, Turbine #225 of Phase Ii (the central portion of the line), and a portion of the s&cc road, appear on some aerial photos to be witbin the 150-foot buffcr zone designated &squirrel habitat. In an electronic mail dated March 27,2008,with a schematic drawing, Mr.’RobatWilliams stated that the cleared foundation footprint for the tow= lies outside of the3 SO-fOOt buffor zone and that o. portion of the rotor swept area overhangs a portion of the buffcr hne. However,the rotors are at an elevation above the canopy of the trees. Bas4 on the protection and buffdng of suitable habitat, and considering the expected glide paths of the squirrel, the WVFO concludes that this turbine, and others in the project alignment, poses no risk to the West Virginia northem flying squirrel if constnmted as described above.

Bat Risk As&ment

NedPower co;httacted a bat biological assessmtnt and submitted its findings to the WOand West Vkghia~Diuisionof Natural Resources for review and comment. This assessment (dated October 8,2003 and supplemented on April 14,2004) focused on evaluating the risk of incidental take of the federally-listed endangered Indiana bat and Virginia big-eared bat during construction @ operation of the project. The assessment also summarized the then-available infomation on unlisted migratory bat species. It innduded data from da~,spotlighting, and moon-watohi& studies. Et also included a literature review of bat species’ habitat use, behavior related to risk!of collkion, and dispersal snd migration patterns. In addition, the assessment included a site-specific habitat survey, a compilation of existing data on bat species abundance and compositbn in the general area, and a review of bat mortality at then-opezational wind power facilities.

Mer considekg additional information, the WOexpressed, in a letter dated September 15;#2OO4, concam about adverse effkcts to listd and unlisted bats and inol&ed recomendat$mi to holp minimize the effects of the projectin -md43uch&--.--- - - . - stopping the blades during the main inigration season).

’ Risk assessmmt techniques have improved Since the time of this report. Many more papers on quantitative and qualitative risk assessments for wildlife have been published. la. particular, Kunz ct al. (2607) and the American Wind hRgy AssoOii&on7ssiting handbook (2008) provide a comprehensive and up-to-date synthesis of risk assessment techniques. The strengths, limhtions, anh biases of these techniques are thoroughly and objectively discussed in these d-mb. if AUG-11-2008 17:34 US FISH AND WILDLIFE SERV 1 413 253 8482 P.007

h hind-sigb$;the radar, &tIighting, and moon-watching techniques used for the Mount Stom project had several limitations, One limitation of the radar study was that it cuuld not distinguish ?idshm bats, Thm it is -own what p~~pdonafthe 300,000 nodumd mlptswere bats or birds ?hi& ff ew through the project rotor-swept area during M1. To cornpate for this limitation, the WVFO recommended complmmting the mdar study with visual observations of flock sk,*h as use of night-vision scopes and a double-counting method (letter to Ddc Strickland d&ed August 29;2003), The consultants chose to use portable bigh-power Spotlights and obsma&ns of silhouettes of flying animds against the nwr-fdl moon (as descriied in the supplement to the Bat Biological Assessment report on p. 8 and Appendix A).

Although spdtlighting and moon-watchingefforts were well-intentioned, timing const+aintS, the low degree oCsmpling e&rt, and other biases associated with these techniques reduced their effedvenessifor estimating altitudes and passage rates ofbats and birds for this project. The amount of %e that spotlighting was used for this study each night rarely exceeded 10 minutes. Use ofthc project air space by bats and birds varies over time and sparse sampling tends to under estimate that he. These techniques also were initiated late during fat1 bat and bird migration (September through October and did not capture the abundance of bats 61 17) hence birds and ' moving through or using the project area over the seasons (WVFOletter to NedPower dated September 15,2004).

A primary &tation of moon-watching is that sampliig conditions are limited to cloudless nights with a h1 moon (Kunz et aL 2007). As noted by Kunz et al. (2007), use of a spotlight can ovcrcorne this: limitation; however, the beam of Iight samples a small area relative to the available space potentially occupied by migrants. Visible light from the spotlight also tends to attract birds &d insects, and thus can lead to biased results. Detection biases associated with this method have not been quantified (Kuoz et al. 2007). Thus spotligting and moon-watching techniques provide only crude estimates of passage rates of birds and bats, io Relevant Fin&ws from Bat Research at Other Wind Facilities I. It is now knob that high numbers of bats are being Elled by wind turbines. Lfleft unchecked, such mortality could cumulatively lad to population-level impacts. Elevcn of the 45 species of bats known to occur north of Mcxico have been found killed by turbines (Johnson 2005, Kwet al. 2007). Araett et al. (2007) reported that bat fatalities have been recorded either anecdotally or quantitativdyat every wind faoility whcre post-consmction surveys have been conducted, worldwide, adross a wide range of habitats. Fourteen of the 17 studjes reporting bat fatality were conducted in open prairie, grassland, or cropland where data suggcst thc lowest fatality (Amctt et al. 2007). Thehighest fatafity numbers reported have been of mipatory tree-roosting bats killed at comercidwind power facilities, espmidly at facilities along forested ridge tops in the eastern Ur6tc$Statcs (Kunz 2006, Kmet al. 2007). Rffiently, Fiedlcr et id. (2007)reported on bat and bird fatalities at the expanded Burno Mountain wind hcility in Tennessee; Jah et al. (2007) reportc'd on bat and bud fixtalitics at the Maple Ridge wind power project in upstate New Yo&; and Brown and Hamilton (2006) reported on bat (and bird) mortality at a project in

/E AUG-11-2008 17:34 US FISH AND WILDLIFE SERV i 413 253 8482 P.008

I 4

Alberta, Canha Rescarch recently reported has focused on describing the patterns and causes of bat fataliti?. I Using thmd imaging cameras at the Mountaineer wind facility in West Virginia, Amett (2005a) documented bats foraging near and in the rotor-swept zone of the turbine bladcs and being struck by the blades, Thermal images taken between August 2,2004 and August 27,2004, indicated that:'bats appeared to be attracted to and invcstigathgboth moving and non-moving blades. The &ta.jority of bats were killcd when wind speeds wero at or below six meters pe' second (Am@ 2005a). Arnett (2005a,b) also reported that no bats were found killed at non- moving turbhes at the Mountaineer wind facility in West Virginia, and at tho Moyorsdale wind hcility in Pennsylvania Bat activity at: turbines is likely influenced by broad landscape features (such as topography, vegetation, orother faturcs), or perhaps by regionat influences dictated by weather, and prey abundancc md/or availability. For example, Coan and Veldkamp (200 1) rqmrtcd that insects prefer to fly in conditions of low wind and taperatura above about 50°F (1 0' C). This means that bats mayibe out fomging drrting nights when wind speeds am low, and thus the risk of collision is b&her. More recently, Am& et al. (2008) noted that bat fatalities appear to follow certain pattsms, such as: turbine collision fatdities seem to peak in mid-summer through Eall; fatalities are not concentrotcd at any particular turbine; habitat variables may not influence fatalities; and bat fatalities are highest during periods of low wind speed and related to weather events. Momation from other operating wind power facilities indicates that bats may be attracted to wind turbines, andor the cleared ri.ght-of-ways, increasing the risk of a bat colliding with a moringblade or being caught in the turbulence ('V&oorn and Spoelstra 1999;Diirr and Bach 2004). Assuming these adshold true, and using the regional mgeof reported mortality in the literature (Kunx et d.2007, Fielder et al,2007), such bchavior could resujtin&6JO to 12,330 batdyer killed for the Mount Stonn projcot at the 300-megawatt ievel, Or using these numbers to dculate the number of potential bat &talities over the anticipatd average life ofthe projeot (25 years), 215,250 to 308,250 bats could be Wed CumulativeIy for this project.

I It is well documented at this time that bats are killed at wind energy prajocts hWest Vk@nia, and throughout North America and Europe. However, to date, a full season (e.g,April-October) study ofthe of the project air space by bats has not been undertaken at or reported for my privately held /operatingwind plant in the United States that we are aware of. 1% R&ommendkions. Thc above discussion gives cause f,br us to reoommend the following. To augment the !@ited knowledge gained &om the finootumal radar, moon-lighting, and spbtli@ingAuiy at Mount Storm, we recommend wnduhg, as soon as possible, a spring nooturnal stud$ of thc use of the project air space by bats (and birds) using acoustic and radar survey techniques. This study would help us to understand the temporal pattems of use and potential exposure to' turbine blades, and how they axe influenced by wind speed, weather, temperature, +ect presence and other environrnmtal variables, Recent clearing of the right-of- way for the Mount Storm project may create ConditioIlS fhvorable for insects upon which bats foed. We therkfore recommend bat mist-net meysof the project weas cleared right-of-ways,

!. AUG-11-2008 17:34 US FISH AND WILDLIFE SERV 1 413 253 8482 P.009

Thesc survqs would document the composition of bats in the project &-space during the last phase of project construction and dclring early project operation. This baseline data would be uscfid for comparison with mortality data collected during post-construction monitoring. Avian Risk Assessment

During fdlZb02, NedPowa provided an Avian Risk Assessment to the WOfor revicw. The purpose ofthe study was to assess risk to bird populations and determine whether 8 migration study or other studies were needed, The assessment was based upon a July site visit, compilation of relevant literature, and interview of local and regionat expcrts. Although the authors of the:assessmmt concluded that the project posed minimal, risk to bird populations, thw recommmdd additional migration and bbitat studies.

Believing thdi-isk to bird populations was higher than stated in the assessmexlt, the WO recummended,additiod studies be conductd to better evaluate the risk to birds (letter to NedPower dated December 3,2002). Our primary recommendation was that an avian migation study should include both sp- and fall migration, and be conducted during all local climatic conditions and all daily temporal periods (see OUT analysis below titled “Spring and Fall Migration Study’). Wc also recommended that the spatial patterns of noctwmd migants be studied, and suggested use of radar, amustic, and/or infhxed detection devices (see our analyses in the sections labeled “Bat Risk Assessment‘’ and ‘‘Spring and Fall Migration Study”). In addition, we recumended raptor breeding, wintering, and migration studies (see OUT analysis in the ‘Raptor sbdies” section).

Recommendhons. We now recommend more rigorous risk assessmezlts using the best available techniques as desoribed in Kunz et al, (2007) and the American Wind Energy Association’s,sitinghandbook (2008). Arisk assessment designed to assess the cause of mortality of birds and bats should consist of examining the~eimumstanccesthat cause noch;lmal migrants to flj! near or through the rotor swept zone. Radar and acoustic monitoring should be used to ass- the numbers of birds and bats that are actually flying withixl. the rotor swept zone, and include consideration of the proportion that pass through the rotors or change trajectory to avoid the turbinodrotors. Existing studios, such as Bebr (2008), can provide a template for this typo of study. :

Spring and Fall Avian 1C.iigration Study

Ruzhg springiand fall 2003, NedPower contracted a bird mightion study (see Baseline Avian Studia datcd April 2004). The study hluded diurnal point counts of birds during spring and fall rnigrations!(late Aril through mid June and mid August through mid October, respectively). A nbdumd rddar study also was conducted during Ml migation (early September through mid

October). I

The study used didpoint counts to examine species composition and migration use areas in the project ary Unfortunately, the beginning of the spring migration season (beginning in - Maroh) was msed so that bird use was under-estimated. h addition, bird use during the fall I

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likely was underestimated because birds are not singing then and some buds are in winter plumage, xrialiing it difficult to identify them to species by sight (Service letter datcd April 14,2003). Also during the point counts, an opportunity was missed to colleot observational;data on bird flight heights and flight diredoh Thus the results did not evaluate thc potential for bird ColIisions by estimating the number of times birds flew through herotor sweptara I Whilo there was variation in spatial uc of the site, no specific location stood out as being used far greater the any other site and thertforc was not useful in terms of micro-siting oftowers. The results iqdioated that birds tended to move in a broad fiont across the landsoape. Similar results havc hcebeen reported at other locations in the Allegheny Front (Stantec Consulting 2007, Gumaccia and Kmhga 2007).

I. TO sup~lm&tthe didpoint counts, ~ed~oweralso cbntraded nocturnal raksurveys during fall 2003, The opportunity for a spring nocturnal radar study was missed at the time. Similar to the point counts, the fall radar study also noted a bmad eont migration. About half of the target$ approached and crossed the ridgeline, another 45 percent flew pddto the ridgeline, and 5 percent approached and turned in response to the ridgehe, Passage rates also varied across data, time of night, and stations, supporting the knowledge of pulsed migration events that are infludbced by species, date, and weather conditions. 'hehighest passage rates were at the centtal tadar station where 16 percent of thc targets (an estimated 300,000 individual birds and bats) were flying low enough to be within the zone of the rotor swept area.

The authots of the Baseline Avian Studios report concluded that the risk to migmtoty birds was discountable. I As explained above under the discussion of the bat risk assessment, limitations in sampling andistudy design lead us to believe the risk to migratory birds and bats in a well-known migation corkidor is h@er tbm reported. Postanstmotion studies at existing wind facilities have demonshated that thm will be avian &talities associated with collisions with moving blades. The &dative impact of wind turbine collisions on bird populations may result ovm time in population doclines when Wen into amunt with mortality associated with collisions with building& moving vehicles, power lines and cell, towem, or bird kills assooiated with contaminant exposure.

Recommendtions. me recommais hat migation studies inc~emdtip~e years of mo ..-- ---vyI pre-constructibn____-I- data collection during the full migration seasbn to detect natural vari&orrs;-in ppiGtion numbm-Gd composition caused by varying weather conditions, and other influences. For songbirds in the central Appalachians, the full migration season spans March through May and mid August through mid Ootober. (For the raptor migration season, please see

1 As honedh our cover letter, Since the late 1940's, the Allegheny Front in Wet Via;n;a, speciiidly the Vicinity of Bear Rocks, has been known as an important place in the Central AppalackLians to witnws bird mipdons, especially songb~hand raptors. Observations have been made there nearly every MI since 1948, 6 hcludinp the fa.Of 2oO5, by members of the Brooks Bird Club and mported in their quarterlyjournal, thc Rcdvtort. i. -- - .- - -- -. . AUG-11-2008 17:34 US FISH AND WILDLIFE SERV 1 413 263 6482 P.011

I 7

! the dismsion under Raptor Studies below). Didpoint wimt teCh@S, if Used, should include collecting data on flight heights and diredion, as recommended b the bex5Can Wind Enagy Assodation siting handbook (2007). We now know that radar, in combination with acoustic detectors, provides more reliable Wormation &an visual obxmttions of flock sizes. Night vision scopes are lixnited by a short range of vision which does not allow identificationof bats versus birds (American Wind Energy Association 2008). For future wind power projects, the WVFO now recommends that radar sudies be conducted during both qxhg and fall migration, hdshould be oomplanented by acoustic detectors. Acoustic detectors aUow identifications of bats versus birds, provide information on passage rates, and can aid in identification of some speoies am^^ Wind hag Association 2008).

To augment &e litations of existing baseline infomation for the NedPower project, we spt?cifiNyrbcommend ,&at spring nocturnal migration studies of birds (and bats) with acoustic detectors be conducted as soon as possible to betta understand the risk to birds and bats and perhaps to discover methods to mitigate potential or actual impaats. It is important to use experienced observers during. the radar study to moMbr and verify bird and bat flight and behavior.

Raptor studies

As p& of thidvian baseline study, a raptor nest survey also was conducted during June 2003, including broadcasting audio sounds (such as owl ds). The survey reportedno activc nests within an 8-s~pre-milevicinity of thc project. The timing (late in the nesting cycle) and short sampling peri@dlikely resulted in an underestbte of raptor presence and breeding activity, espocialty whb considering that thorough searches fivm the ground of potential. nesting habitat are di ffioult iq the project area due to vegetation and topography.

In addition, a y6trx raptor and bald eagle survey was Conducted during 2003-2004 adjacent to the proposed tower alignment. This involved 15 oooasions driving slowly about 21 milos of roads around qdnext to Mount Storm Lake and Stony River Resewoir, adjaoent to the project area Thirty raptors of 10 difforent species were obsmed, including 5 bald eagles. Unfortunstel@ds sampling effort did not include the majority of NedPower's project area and likcly underestimated raptor presenoe.

OW letter of &ember 3,2002 sp&ficaUy recommended raptor migration studies because the high elevation ridges in the project area serve as a well-known migration corridor which creates updrafts used by raptors during migrati~n.Some Momation was obtained about migrating hawks and eagles &om thepoint counts conducted &om late April to mid-June and from mid- August to rnidX)ctober 2003; however, raptors were not the focus of the point couxlts, Limited information vas obtained on migrating hawks and eagles via aeseventy 1 0-minute point corn% which were sweyed twice a week Erom May 1 to about Yme 15 and .frommid-August until mid- October 2003 .' Additionally, the Wl sampling period ended before Several important spacia of

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raptors typically complete their fall migation. This second peak of raptor migration occurs fiom August 15 through December 1: i Completed point counts detected over 1,000 individual hawks were flying in nearly 500 groups kthh or near the project a- For several reasons, raptar numbers were likely underesthtod. First, a high &ntagc of the point counts were sited within forest habitat, whioh woukl pose pblems with detecting migrating raptors by obscrvns located underneath or surrounded by vegetation. Second,the point cou~lfswere condudd during times of the day when hawk migration tqp/ically is at its lowest (near sunrise and sunset), Raptors that depend on themal soaring were’$robablyunder-sampled These birds often gain altitude by riding a column of warm air rising off the land during the warmer portion of tho day. Since the daily sampling peciod was dkng the cooler period of the day (dawn to early morning and late afimmn to dusk), rapto&hat gliddsoar - instead of flap - should not have been expcctcd to be in thc air during the sahpling period. Similarly, raptors that favor slope soaring would have been underestimatkl because escarpments were unda-sampled. Finally, the survey window did not Sampie the fulI period of the hawk migration season, In particular, Iate sawnmigrants, such as the golden ea& rough-legged hawk, northern goshawk,red-tailed hawk, and red-shouldered hawk were lecly under-smpled.

Due to the li&tations of the studies, the WVFO does not agree with, the Baschc Avian Studics report concldon under section 5.4.1 that ‘There was no evidence that the Allegheny Front was a heavily used raptor migration route.” Wc have a strong interest in protecting the integrity of major migratory bud corridors such as the Appdachian Front to ensure safe passage for a wide variety of avim speoies in route to their artdual nesting and wintering grounds.

Rocommendkions. We recommend more comprehensive raptor surveys that cover the full scason of raptor migration: spring (February through April) and fall (August 1S-Deccmbex 1). When comb@ed with knowldgo fjrom previous work (such as long-term migration studies), this information would produce a ComprehenSivc raptor risk assessment and projected mortazity forecast for thie spring and M1 migration periods. Such information could bc used in-o- siting of towers to avoid acas of high raptor use, It also would help in correlating mortality events whh how/when raptots use the area These studies should heavily Sample seas used by slopsoaring raptors. Standard protocol used by raptor experts at the National Aviary involves conducting surveys fiom high elevation locations with adear v4ew of the target area, Surveys should be conducted by multiple observers, using binoculars and spotting scopes, fbr at least 10 daydocation.:

With respect to &c NWower facility, we have dareloped a list ofkey raptor questions and concec~~sthat khould be addressed during post-construction monitoring:

tima pen$ for the second peak misation petloti was determined frhm aa analyviv of 2003 hawk count data hrntwo obeexvaticm stations north and south of beprojest arm The AIlcghmy Front Obmvatory entm this hiformatian into a national data bltxc wbsite at m.HawkCount.org, AUQ-ll-2008 17:35 US FISH AND WILDLIFE SERV 1 413 253 8482 P.013

I 9

~ 1, Whatispecks and number of raptors am fond dead or injured at NedPower wind turbines, transmission lines, substation, or other facilities? What was the cause of death or inj+, i.e., electrocution, physical strikc, intmal injury? As with any mortaiity study, ' the cause of death or injury should be det&ned by a wildlife veterinarian based upon autopsy and examination, What behavior was involved; Le., perching hunting, and migrz@g? How could these be avoided in the future? Are there partioUlar turbines that causarnoreproblems than others? 2. How does the timing and magaitude of obsenations of migrating raptors cordate with obswations at hawk watch stations nearest to the project? (e.g. Hawk Mountain in Pemsylvania and the Allegheny Observatory at Dolly Sods, West Virginia) I, Wc may pro$de additional raptor study recommend&ans in the went that raptors are killed or injured during project operation.

I* Bald Ea& 4 I The bald ea& is afforded specid protection under the Meral Bald and Golden Eaple Protection Act (1 6 USC. §$668668d,June 8,1940, as amended 1959,1962,1972, and I. 978) (Eagle Act). Since the early planning phases ofthe project, bald eagles have been known to roost and foragc in thc vicinity of Mt, Storm Lake adjaceat to the project. area, Staff at the Mount Stom power plant regularly monitors and reports to NedPower their observations of bald eades. Durhg 2006, the Sex%= reccived i.cportS Born private citizens of bald eades potentially nesting in the Vicinity of thC'NedPower wind project. YearIy surveys by the West Virginia Division of Natural Resources havc vcrified the presence of bald eagles in the vicinity of the lake but have not located a nes4within the footprint of the wind power projeot. Cunent information indicates that bald cagles +not foraging within, or flying over, the fxttprint ofthe project area, If nesting or migrating bald cages are discovered using the project area, NedPower may apply for a permit (50 CFR Parts 13 and 22; 73 Federal Register 29075-29084) to take bald and golden eagles on a limited basis wnder the Eagle Act. The regulations are applicable to golden eagles as wall as bald eagles. Take of bald or golden eagles will be authorized only where it is detemined to be compatiblo with the preservation of bald and golden eagles and motpracticably be avoided, In ahition, a new section of the Eagle Act authorizes the removal of bald and golden , eagle nests thk pose a hazard to human safety or to the welfare of eagles.

&commendations. The WVFO has submitted and discussed appropriate management guidelines for bald caglcs with NedPower (WVFOletters dated January 29,2007 and April 3, 2007) and they are ikxpomted here by reference. NedPower should contact us if a bald eagle nest is found in or near the project area or if cades arc observed foraging within, or routinely flying over the project =ea.. At that time, we will consider whether or not additional guidelines, incIuding opiating recommendations, are warranted. -. - . ..-- . .- _...... AUG-11-2008 17:35 US FISH AND WILDLIFE SERV 1 413 253 8482 P.014

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The golden 4gle'also is afforded special, protection under the federal Eagle Act. The eastem population ofthe golden eagle migrates long distances between northem Quck and a few states in the Alleghhy Mountain rangc such as West Virginia. The golden eagle is a specis of concern, gcnklly, because it is one of the raptors most frequently killed by wind turbines in the western Unitkd States, specifically at Altamont Pass, California I As was mentioned above, the avian surveys ended in mid-October, essentially pior to the golden eagle migratioa In the Est, the golden eagle is a late migrant in the fall. In the fall of 2003, only three of the, 160 goldm eagles recorded (2 percent) were seen before October 15, the last date of the Mount Stom study (data &om Goodrich 2004, Migration Report tablcs in Hawk Mountain News 100:16-27). Thus 98 percent ofthe fill mipttionpkod fox the golden eagle migration was not sampled at Mt, Storm. The spring migration of goldm eagles also likely was completed many w& before the April 29 beginning of the spring counf~at Mount Stom.

Sinsthe time of the project pm-construction studies for the Mount Stom pxojkt, the National Aviary has been tracEdng golden eagles dllring their winter stay in West Virginia, and throughout their migration cycle, Maps available on the htemet identi* their routes in Quebec, Canadq beledalong the Allegheny Mountains of Pennsylvania and the All@eny Fmnt of West Virginia Golden eagle 441, a juvenile male, briefly crossed the NedPower project site during 2007-2008 and he exhibited dispersed movements throughout the Winter that were concentrated more thsun 10 miles from the project site. "his eagle has since left West Virginia omoute to summc~habitat in CdaThis eagle's mvements can be viewed as an animation at: www.aviary.org/csr.ph~?t~~1&stason=~in&yr=7.

When tho WOfirst learned about thc golden eagle in the project vicinity, we informal NedPowcr. NedPower promptly took steps to monitor for goldm eagle use at Mount Storm Lake, in assochion with bald eagle monitoring. We appreciate NedPower's interest and efforts in tracking bald and golden eagle use in the project area.

Recomrnenditlons. We encourage NedPowcr to continue its cage monitoring at Mount Storm Meand to document the occ~exwof golden eagles and their behavior in the project area and in proximity to the turbinm, Since Qese birds can move considerable distance in a short period, we recommend that NedPower support the continud tracking of golden eagle usc in the project vicinity by thClNational Aviary, We also recommend that NedPower contract with experts in golden eagle migation in the central. Appalachian Mountains to address and toport on key questions, such as the interdisciplinary Golden. Eagle researoh group led by the National Aviary. Finally, we reFmmd that NedPower contract for modeling raptor migration pathways dong &e AUed.lany:Front, using Flightpath - a temtia-based mode1 for simulating raptor migration padways, and$kld test the model in the NedPower area The WVFO will provide additional rwrnmendathns should new information indicate that they are warranted to protect golden eagle that may we the project area. AUG-11-2008 17:35 US FISH AND WILDLIFE SERV 1 413 253 8482 P.015

Post-construction Monitoring aud Assessment of the ..,.rtali~ a Birdsan Bats

The conditions of the certificate include a requirement that NiedPOwer will. conduct post- construction &dies assessing the mortality of both bats and birds for a six month pdod in cach of three yearsand to conduct a six-month lighting study for one year after initiating operation. \ -~-

In a rnceting on April 17,2008, NcdPower representa.thes initiated discussion with the WVFO on the desigd of post-oonstruotion studies for the Mount Storm wind fadity. The WWO is committed t$working with NedPower on thc design, pr~tocbls,and conduct of these post- construction studies, as well as exploring the feasibility of additional studies during project construction, ‘testing,or operation. As discussed at the meeting, NedPower proposes to determine the number and hdof dead bats and birds, thedegree of scavenger activity in the area and its effect on recovering carcasses, and scarchcr effibcy over a six-month period for each of three years. The study plan states that topography fdr cach turbine in the study arca and weather conditions during the study period wiU bc recorded The plan also states that this infirmation wiIl help to determine if local topography and weather affects mortality. However, it is undcar haw this information on topography and weather will be analyzed or used to assess and reduce bird and bat mortality.

During our m&ting, the WVFO also discussed statistid considerations and correction factors that can improve fatality estiplates used in the NedPower mortality studies. As mentioned at the meeting, we would like to ensure that NedPower’s contractor for the monitoring study is aware that an important comparison of atistical estimators of bat (and bird) mortality at wind power 8 generation facilities has been reported by Huso (22008) of Oregon State University. Kern et al. (2005) and Arnett et d. (2008) also have reported on statistid considerations. Since our meding, we have prepared a summary of these key findings: 3) Cokonly used estimators of fatality can be highly bias& undcr realistic conditions and are not always appropriate (Huso 2008). Kerns et al. (2005) also found that the wmonlyused estimators, which assome carcass removal follows an exponential distrib&ion, fit for one site, but not another.

2) Bias is not wnskcnt, but differs with car- persistence and search interval, as well as secher effikiency (Huso 2008).

3) Hone ofthe estimators arc unbiased under dl realistic conditions, but bias is least when search intervals are short (Huso 2008). Kerns et d.(2005) noted that weekly - searches at one site tended to underestimate the fatality rate by a factor of three, Kerns et al, (ZOOS) suggest that daily swches improve the estimation of lhe fatality rate by accounting for pdodic, large fatality events and high scavenger activity. Huso (2008) also recommends daily searches if researchers want to relate mortality to wind and AUG-11-2008 17:35 US FISH AND WILDLIFE SERV 1 413 253 8482 P.016

tempmture conditions or determine mitigation efficacy. Hw(2008) indicates, however, that longer search intmais (7 days) are acoeptable for comparing across sites.

4) Variability of estimates is very high when searcher &ciency and carcass persistence are &mated using small trial sample sizes (Hw ZOOS), he?$et al. (2008) also noted that small samplc sizes may have biased estimates, and thus limited the scope of inftxdnce for two studies assessing carcass removal, particularly when using small birds as sumgates for bats. Huso (2008) recommends no less than 100 carcasses in each searckr efficiency and wws removal trial (for each separate parameter, e.g., season or size ofwass). I' 5) Reliable estimates of fablity also rely on au accoulting of habitat variation during seader efficiency and scavenging trials (Amett et al. 2008). 6)Fowl1 of the above reasons, Huso (2008) retmnmmds not usmg simple estimators of fatality.

Based on this!rmmch, estimates of fatality at wind power sites should include: more complex estimators to account for project site variations, particularly for scavenger activiv, daily sesvches at some towcr sites, as well as weekly searches at o&er towers; larger sample sizes of appropriate carcasses; and, corrections for habitat variation.

We also dis&ed at the meeting improving searcher &ciency by employing the use of dogs to find bird and bat carcasses. As demonstrated by Arnett (2006), both humans and dogs had similar result& high-visibility habitats (e.g., gavel),whereas dogs (who search for carcasses primarily wi& their noses and are not as dependent on lhwf-sight) found more carcasses in medium and low visibility habitats. We note that NcdPower has not included dogs iq the design of the Monitoijng Plan. Wc also note that NedPower plans to plant a grass seed mix mmd turbine pads to aid in locating carcasses. Even if these areas arc fkequcntly mowed, we recommend that the searcher efficiency ofhumans vecsus dogs be tested in planted to grass, or in ar& grown up in brambles or other low-growing dense vegetation, and that the most efficient searcher bo used. I &m,monts oh the MonitorinP Plan I The Draft Mokitoring Plan focuses primarily on the condition to cooduct six-month post- constmtion skudies for each phase of the project asswing the mortality of both bats and birds, €or three ycars. The Monitoring Plan includes a standdkd study design for the carcass searches, carcass removal trials, and searcher efficiency trials. The pposed studies will be conducted approximately fiom March Z 5 to June 15 and July 15 to October 15. The number of bird and bat fatalities associated with collision with turbines and associated structures will be determined arid cause of death ostablishod, ifpossible. Weather data will be used to dctotmine if a correlation between fatality events and weather patterns exists, Bat acoustic detectors will be used to estimate seasonal use and spatial use ofthe site during the carcass search study. '1 AUG-11-2008 1?:36 US FISH AND WILDLIFE SERV 1 413 253 8482 P.017

NedPower will provide a rqort to the PSC and the Service each year on thcse studies. The report also will analyze effeats of turbine lighting on bird and bat mortality.

The WO&cis that the proposed study dffign is consistent with other similar studies conducted by the contractor at other, similar wind Eacilities. The study design Will allow for collection and identification afbats and birds, However, as' discussed during our meeting, it is important to determine the circumstances associated with mortality of birds and bats and then descriic and test methods to effectvely avoid and minimize it-not just document the number of animals killed:

Recommendations. The Senice recommends that NedlPowek include in its post-construdon Monitoring Plan a comparison of searcher efficiency (humans vs, dogs) for locating dead animals in thc~ariouscover types.

I. The monito& period of July 15 to October 15 misses much of the fal1 raptor migration, including golden eagles, since species migrate at different times. Furthermore, the sprhg perid of March IS to June 15 misses the spring golden eagle migration, Raptor migration has been a major issue. ?e Service recommends that the sampling period be extended to include golden eagle migration (starting February 1 or bascd on best available data), as well as raptor late fall migration (Odober 15 through Decemk 1). I The number df turbines to be searched is the Same in Phase I and Pbase TI. It would appear that the Same turbines are to be searched in cach Phase and that there will be no incroasc in the numbcr of Wines searched as more arc: put h service, Xfwe am not COrreGt then we recornend ajbetter mplanation be provided in the text; if we have intqreted this correctly then we recomerid this be corrected so the sample size is consistent.

The Service emphasizes that post-construction assessments need to move beyond counts of dead birds and baq in order to begin identifying effective operational parameters that avoid and minimize bird and bat mortality, We recommend that the studies investigate ifbirds and bats are attracted to turbines, and how bird and bat advity and mortality varies with wind speed, direction., pkistent weather evmts, and,p&aps other fkctors,

To augment &e limited baseline information on the spatial patterns of migrating birds and bats in the project are% it is important to determine what proportion is flying low enough to collide with wind turbinai We rwmmmd that NcdPower investigate the circumStances that could cause a large proportion of nocturnal migrating birds and bats to fly near or through the rotor swept zone, the fkquency jof occurrence of those circumstances, and behavior of migrants to avoid turbines, Perhaps low ailing or other atmosph&c conditions cause birds to fly low to the ground. Ptrhaps pxvding winds cause birds channeling through valleys to rise up and merge with birds already at elevation.to pass over the ridge, This would temporarily increase the number of birds @ the rotor swcpt zone. We recommend USQ of radar and othcr monitoring techniques to assess thc numbers cf birds and bats that art: actually flying low enough to be exposed to risk of coIliding withiwind turbines, and determine what @portion are suocessfu~in passing through _. __ - AUG-11-2008 17:36 US FISH AND WILDLIFE SERV 1 413 253 8482 P.OlB

the turbine's rotors or ohange their €lighttrajectoTy to completely avoid the wind turbines. These studies should be conducted during all local climatic conditions and all pertinent daily periods. Changes in bkhavior, mortality, and how to predict this situation shdd be repsrtd.

This infomation could be used to help assess how xaptorhird migration is affected by topography apd weather events over Appalachian ridges on a landscape scale. h order to assist with our gcnerd understanding of the impact of wind power facilities on direct and indirect impacts to raptors, Neower has expressed an interest in contributing to a research project to assess bird and bat migration ovcr Appalachian Ridges. This could be aligned with our previous recommendation to contract for modeling of raptor migration pathways.

I Although theiMonitoring PIan includes the use of acovstic detectors to determine bird and bat USIS of the pkject arca, it does not, but should, provide details on how this study will be conducted, what tho anticipated outmme is (hypothesis), and how such information may be inmrporated %to the operation of the turbines to reduce bird and bat mortality. As rnentionkduring our meeting, the Monitoring Plan docs not include an adaptive mmagcment &n.v_An adaptii~manapmt$an should be developed that describesthe studics to-be Cond&ed, anticipated outcomes (hypotheses to bo tested), and then a series of responses to those outcomp. Monitoring should be conducted to determine if the responses selected reduced fataIities. Forexample, if the studies indicate that bat fatalities haease during slower wind speeds, then turbines can be shutdown or the blades fathdat those wind speeds for a period of time to exdefatality numbers, If the number of bat fatalities does not decrease, then other options can be examined. This process bkes time to complete and requires a longer monitoring period thanthree years.

The Service abcnowledges that the PSC condition only requires a minimum of 3 years of monitoring f& each phase. However, the anticipated life of the projcct (20+ years), and the likelihood of longterm bird and bat mortality, indicates that additional monitoring is warranted throughout the project Life. This is particularly important when considering bird and bat -responses to changes5 tbeir landsoape. Birds and bats may modify their migration routes or make other adjustmen& over time. Additional information 0x1 adaptive management plans can be: found on the Department of the Interior's website: http ://www .do: .gov/initiativ~A&ptiveM~ag~~~~chGui~.~f

Operational Considerations ,

Pro- and postbnstruction studies are perfomed to provide an assessment of risk to wildlife due to construction and operation of a wind power fkdity. There is mounting evidence that facilities also can be operated so as to reduce bat mortality. bemeasure to minimh mortality is to feather or stop;thc turbine blades, whichever is most effective, for the range of wind speeds when bat mortality is most prevalent. A number of studies have reported that bat activity and fatality ate highest at low wind speeds (Amett 2005a). Brown and Hamilton (2006) reported that mortality was significantly rcduced at the Summdlk Wind Powcr Project in Alberta by changing the operating parameters (start-up speed) of turbines during low-wind speeds. AUG-11-2008 17:36 US FISH AND WILDLIFE SERV 1 413 253 8482 P.019

The WVFO ki encbuxaged by these reports on thc pxttorns of fatalitics and curtailment experiments.~iThcyall point to "feathering"bxbine blades during low wind speeds as a measuTB for possibly reducing or, even eliminathg, the majority of bat mortality that may occur during operation of the Mount Storm facility.

Recommenchtions. The WVFO recommends that the; operation of the facility be conducted so as to reduce bird and bat moMty. In particular, there is mounting evidence that bat activity and mortality wcpx pzimrily at low wind spccds. Operational mitigation meaflues show promise in minimizing bat moxtdity and greatly reducing cumulative impacts to bats due to turbine . mortality. Opportunities during operation to explore the correlation between wind speed and bat mortality should be sought at the NedPower fhdity. This phenomenon may be associated with site-specific characteristics or may be applicable to all wind faoilities in the Northeast.

In addition, as a preventative measure, the WVFO recommends that turbine blades be feathered or stopped at iowa wind speeds in order to minimize the number of bat fatalities as much possibIe, if fkible. We recommend that post-construction bat fatality studies correlate wind speed with bii activity, and bat fiitdities. This part ofthe study should be des&& to definethe relationship betweem wind sped and bat mortality at operating and non-opmthg wind turbines. The results ofithis study should indude operational re;cwnmendations that assist wind power operators in rkducing bat mortality.

Conclusion ,

h conolusion; because the Allegheny Front is a known major migration route for birds and is heavily usad by migratory bats, the WVFO continues to believe that the Mount Storm wind project poses b grater risk to wildlife than was recognized by pre-construction studies and risk asses&kts. Similar to other wind power fadities in the region, it is reasonable to predict that the Mokt Storm project is likely to W11 migratory bids and unlisted bats. If 'leftunchecked, mortality could result in impacts to populations over time when combined hth mottaIity from other wind power projects and other sources ofmortality,

It should be nbted that the Migratory Bird Treaty Act (MBTA;16 U.S.C. 703-722) is a strid liability statute that protects all migratory birds. While the MBTA has no,provisions for allowing unauthorized take, we rccognkc that some birds may bo killed at strudures such as wind turbinos;evenif all reasonable measures to avoid take are implemented. The SeniCe's Officc of LawrEnforcementcarries out its mission to protect migratory birds not ody through mvestigatiod and enforcemaat, but also through fostering relationships with individuals and industries thai@roactivelyseek to eliminate their impacts on migatory birds, Although it is not possible und&othe MBTA io absolve individuals, companies, or agencies from liability (evenif they implaneit avian mowity avoidance or similar conservation measures), the: Office of Law Enforcement focuses on those individuals, companies, or agencies that take migratory birds with disregard for their actions and the law, especially when consemation measures have been developed but &e not properly implementcd. Thc -0 is availablc to assist Nedpower with -1 * AUG-11-2008 17:36 US FISH AND WILDLIFE SERV 1 413 253 8482 P.020

! 16 1: !I developing conservation measures to avoid and minimize migratory birds (and bats) colliding With &e NdPower facility,

Due to limitahons in the NedPower Mount Storm pre-csnstruction study designs, the Service has recommended throughout this letter that a number of additional studies be initiated as soon as possible to augment baseline and monitoring studies. Below is a brief categorical summary of these studicsi:

bat mist-net surveys in cleared right-of-ways; a spring nocturnal bird and bat migration radar study with acouStical devices; studit& of bat and bird behavior in the rotor swept are& studies ofhow bird and bat mortality varies with weather patametens; studiek of the effectiveness of modifying project openitions to reducc bird and bat mortality (such as modifying cut-in speeds, and fixthering or stopping blades during tho peak of migration or during high-risk weather events); inclusion of adaptive managmerit into the post-construction Monitoring Plan; and ~axiousother studies as recommtnded in this letter. I' We are well aware that Some may say that a few of the recommendations made in out letter may bc ktaddressed by the wind industry as a whole, and not just at one particular wind facility. However, these rwmmendations can be used to assist our efforts to monitor, minimize and reduce mortality at the Mt, Storm ficillity, as well as at future wind power projects in West Vk&a and the Northeast Region. I, We look forward to working with NedPowef to impIenamt the recommendations made above and as the Monitoring Plan is implemented. For fusther idonnation, pleasetmitime working with fhe WVFO staff during study design and implementation. - I? AUG-11-2008 17:36 US FISH AND WILDLIFE SERV 1 413 253 8482 P.021

I 17

References Cited

American WLd Energy Association. 2008. AWEA Sitkg handbook. Prqared for AWEA of Washington, D.C. by TetraTech EC, Inc., and Nixon Peabody LLP, with contributions from Cornsearch and Aviation System, hc. 183 pp.

Arnett, E.&, kitor, 2005a. Relatiombips between bats and wind turbines in Pennsylvania and West Virginia: an assessment of bat rataxity search protomls, patterns of fatality, and beha&xal interdons with. wind turbines, A final report submitted to the Bats and Wind Enex& Cooperative. Bat Conservation International. Austin, Tqas, USA. 187 pp+ (Available for downloading at: www,batcon,orglwindlBWEC20~~~~~.~~

Amett, E.B. 200%. Summary of findings hmthe Bats and Wind Energy Cooperative’s 2004 Field Season. Bat Conservation htexnationd, Austin, TX 6 pp. (Available for downloading at: www.batcon.orglwC2~R~o~~.pd~

Amett, E.B. 2006. A preliminary evaluation on the use of dogs to rccovcr bat fatalities at wind energ), fadititias. Wildlife Sodety Bulletin 341440-1446, I

~ Amett, E.& D.B. Inkley, D.H.Johnson, IRP. Larkin, S. Manes, A.M. Manville, J.R. Mason, M.L, Momson, M.D. Stricklmd, and R. Thresher. 2007. Impacts of wind energy fhtilities on wildlife and wildlife Mitat. Wildlife Society Technical RGV~W07-2, fie Wildlife Society, Bethesda, Maryland.

Axnett, E.B., W.K. Brown, W.P. Erickson, J. Fiedler, B.L. Hamilton, T.H. Hemy, A. Jain, G.D. Johnson, J. Kerns, R.R. Kofo& C.P. Nicholson, T. O’Connell, M. Piorkowski, and R. Tankekley. 2008. Patterns of fatality of bats at wind energy facilities in North America, Journal of Wildlife Management 72: in press. 1: BBrrios. L and,A. Rodriguez. 2004. Behavioural and environmental correlates of soaring-bird morta&ty at on-shore wind turbhes. Journal of Applied Ecology 41 :72-81.

I Behr, 0.2008.Acoustic monitoring studies and curtailment experiments in Germany. Bats and Wind Energy Cooperative (BEWC) Workshop, Austin, Texas. January 8-10,2008. Available via cIickablo link at: www,energ~cs.com/BWECWorkshop2008/agenda~~l - vie~ved3/25/08 ’. Bell, R.K. and‘J.B,Pattison. 2007. All@eny Front Migration Obseivatory. Fall 2007 Rcport. Brooks:Bird Club. Wheeling, WV. 5 pp. (Available for downloading at: www.state.sd,us/puden~/wind%2Ofact%2Oshc~.pdf - viewed 8/5/08) .., E AUG-11-2008 17:37 US FISH AND WILDLIFE SERV 1 413 253 8482 P.022

! ! 18

Brown, W.K, and B.L.Hamilton. 2006. Monitoring of Bird and Bat Collisions with Wind Turbines at the Sunmerville Wind Power Project, Alberta 2005 - 2006. Report prepared for Vision Quest Winddeotric, Calgary, AB by Terrestrial & Aqwtic Environmental Manag- Ltd. of Calgary and BLH Environmental Senti= of Pincher Creek, AB. (Available for downloading at: www~~atcon.ors/wind/bibpcWS~ervi~w.%2OAlberta%2OCanada.pdf- viewed 3/22/08)

Cortcn, G.P.' &d H.F. Vddkamp, 2001. lnsects can halve wind-turbine power, Nature 412:42-43. Bach, 2004. Bat deaths and Wind turbines - A review of current knowledge, and of idormation avaiIabie in the database for Germany. Bremer BeiHge fiir Naturkunde and Natuschutz ?:253-264. t 1' Evans, W.R, !Y.Akashi, N.S. Altman, and A.M. ManviUe, 2007, Response ofnight-migmting birds hcloud to colored and flashing light. A report to the Communications Tower Working Group.

Fielder, J.K, k.H Henry, LD.Tdersley, and C9,Nicolson. 2007. Results of bat and bird moxtality monitoring at the expanded BufYalo Mountain Windfarm, 2005. Prepared for the Tc&~.~esseeValley Authority, 38 pp.

G~amacCia,JL'and P. Kerlingm. 2007. Daytimc migation study, No& Briery Windpower PTOjeCt, Preston County, West Vkginia, Spring and Fall 2006. Report prcpared for PPM Atlantic Renewable. 45 pp: i Hw,M. ZOOS. A cornprison of estimators of bat (and bird) mortality at wind power generation facilitiss, Bats and Wind Energy Cooperative (BEWC) Workshop, Austin, Texas. Januar'y 8-10. Available at: www.energetics.cornrSWeCWorkshop2oOS/~d~h~- via didcable link - viewed 3/25/08 I( Jain, A., P. Kkhger, R. Curry, and L. Slobodnik. 2007. Annual report for the Maple Ridge Wind power projeot post-construction bird and bat fatality study-20M. Report prepared for PPy Enetgy and Horizon Center, Cape May Point, NJ. I Johnson, 0.d2005. A review of bat mortality at wind-energy developments in the U.S. Bat Research News 46:45-49,

Hoover, S.L. 'and M, L,Momson. 2005. Behavior of red-tailed hawks in a wind turbine development. Journal of Wildlife Management 69( 1): 150- 159.

Kerns, J. and P, Kerlinger. 2004. A study of bird and bat collision fatalities at the Mountain= Wind Enma Center, Tucker County, West Virginia. WLEnergy and Mountaineer Wind Ener&;Center Technical Review Committee. Curry and Kerlinger, LLC, Cape May, NJ,

I' - AUG-11-2008 1?:37 US FISH AND WILDLIFE SERV 1 413 253 8482 P.023

19 !,

Kcm~,J., W.b. Ericksoq, and E.B. Amett, 2005. Chapter 2. Bat aad bird faaty at wind eaergy faCili$es in Pennsylvania and West Virginia Pages 24-95 in Asnett, E.B. fed.), Relationship between bats and wind turbines in Pennsylvania and West Virginia: an assessment of fatality search protocols, patterns of fatality, and behavioral interactions with %ind turbines, A find report prepared for the Bats and Wind Energy Cooperative.

Km,T.H. 2006. Bats at risk why should we care. Toward WildUfc Fricndly Wind Power Conf&ence, June 27-29, Toledo, OH. (~;fivs,~ov/modw~~~~tlakes/windp.Viewed 1/15/08) Kunz, T.H., EB. Amett, W.P. Erickson, A.R. Hoar, G.D. Johnson,RP, Larkin, M.D. Strickland, RW. iT'bresher, M.D. Tuttle. 2007. Ecological.impacts of wind energy development on bats: @estions, mewch needs, and hypotheses. Frontiers in Ecology and the Environment 5(6):3 1.5-324. i Stantcc Conshting. 2007. Fall 2007 bird and bat migration survey report. A fall 2007 survey of no&d avian migration, breeding birds, raptors, and bats at the laurel. Mountain Wind Enad Project on Laurel Mountain, West Virginia. Report prepared for AES Laurel Mountain, LLC.

US.Fish and Wildlife Smicc. 2004. Implementation of Servioe voluntary guidelines to avoid and Wmhewildlife impacts from wind tufbides, US,Fish and Wildlife Sewice Diredor Memo, April 26,2004.4 pp. 1: US.Fish and&VildlifeService. 2003,Interim Guidelines to Avoid and Minimize Wildlife Impah From Wind Mines,US, Fish and Wildlife Service Director Memo, May 13, 2003. S5 pp.

.V&om, B. knd JS. Spoelstra 1999, Effkcts of food abundance and wind on the use oftree lines by an ifisectivorous bat, Pipistrellus pipistmllus. Canadian Journal of Zoology 77(9):3393-1401.' I I I NedPower Mount Storm Project Studies Cited January 2002.;:Phase I Avian Risk Assessment for the Mount Storm Wind Power project, Grant County?WedVirginia. Prepared by Curry & Kerlinger for US Wind Force, LLC. October 8,2003. Biological assessnent for the federally endangered Indiana bat (Myob sodalis) and Virginia big-eared bat (Corynorhinw townscndii virginiunus), NedPowet Mount Stom Wind project, Grant County, West Virginia. Prepared by WEST, hc,for NedPower Mount StOm,tLLC

.. - I* e RUG-11-2008 17:37 US FISH AND WILDLIFE SERV 1 413 253 6482 P.024

I* 20

April 14,2004. An assessment of potential collision mortality of migrating Indiana bats (Myotilr soduiis) and Yirghia big-eared bats (Corynorhims townsendii Virginianus) traversing between caves. SuppEement to: Biological assessment for the fdetally endangered hdiana bat (Myotzk sodalir) and Yirghia big-eared bat (Corynorhintcf townsendii virginiunus), NedPowef MOW Stonn Wind project, Orant County, West Virginia Prepared by WEST, Inc. for NedPower Mount Storm, LLC.

* April 2004. Baseline Avian Studies, Mount Stom Wind Power Project, Grant County, West Vkginia. Final report. Prepared for NedPower by WEST, hc.,Concord College, and ABR4

Scrvicc Correspondence !, 12/27/01 lettk fiom Jeffkey Towner to Paul Kerlhger, responding to a request for information on threatenedland endangered species. I 8/130/02le&& from Jefiey Towncr to Jessica Ymger, responding to a request for information On tbrtatend,'and endangered species. i: 911 3/02 leak fiom JeffjreyTowner to Paul Kerhger, responding to a request for information on threatened and endangad species. 12/3/02 letter hrnJeficy Towner to Tim Heinle, responding to receipt of phase I avian risk assessment. '

3/14/03 lettcrlftom.William Tolin to Tim Hehle, followhg up on endangered specks issues.

4/14/03lctter~fiom William Tolin to Dale St~i~Mmd;follow-up to a meeting on thc avian migration study proposal. I 08/29/03 let& fiom Thomas Chapman to Dale Strickland, regarding wmments on hefsll mdar study propod.

9/17/03letter[fiom Thomas Chapman to Hieronymus Nicssen, regarding an update on threatened and endangerid species.

!I 911 9/03,lettcr:]f+omThomas Chapman to Hieronymus Nicssen, regarding a clarification to the 911 7/03 letter.

11/26/03 froni Thomas Chapman to Himnyrnus Niessm, acknowledging rdptof the bat biological assessment

1/20/04letter&om Thomas Chapmaxl to David Young, acknowledging receipt of tbe Basehe Avian Studies'report. j. .. - .. . . - . .-. AUG-11-2008 17:37 US FISH AND WILDLIFE SERV

, 21 I 9/15/04 let& hmThomas Chapman to Hicronymus Nissen, commcn% on the bat biolagicd assessment, :*

1/19/07 lett&'&om Thomas Chapman to Tim Heide, responding to reports ofbald eagles.

4/3/07letter &n Thomas Chapman to Tim Hde, providing additional information on bald eagles, I

6/8/07ktter &m Thomas chapman to Emil Avram, wmmthg on the West Virsanorthan flying squinel.

10/3/07letteq fkom Thomas Chapman to Robert William, commenting on seasonal tree'clhg.

I . , I.. #...... ,. .. TOTAL P. 025 Attachment J

Jonathan A. Lesser, Critical Analysis of the Barclays Capital Letter Opinion Regarding Proposed Operating Restrictions for the Cape Wind Project to Comply with the Endangered Species Act (April 201 0) Critical Analysis of the Barclays Capital Letter Opinion Regarding Proposed Operating Restrictions for the Cape Wind Project to Comply with the Endangered Species Act

Prepared by:

JonathanA. Lesser, PhD Continental Economics, Inc.

April 2010

6 Real Place, Sandia Park, NM 87047 Main: 505.286.8833 DC Office: 202.446.2062 www.continentalecon.com TABLE OF CONTENTS

1. INTRODUCTION. QUALIFICATIONS. AND PURPOSE ...... 1 I1 . THE BARCLAYS LETTER ...... 2 I11. THE SEMASS WHOLESALE ELECTRIC MARKET ...... 3 A . Average Daylight Prices in the SEMASS Market ...... 3 B . Average Prices One Hour Before Sunrise in the SEMASS Market ...... 7 C . Average Prices Between Sunset and 8PM in the SEMASS Market ...... 7 IV. ESTIMATED REVENUE IMPACTS OF THE PROPOSED OPERATING RESTRICTIONS ...... 8 A . Estimated Revenue Impacts in Low Visibility Hours ...... 8 B. Estimated Revenue Impacts in Before Sunrise Hours ...... 11 C . Estimated Revenue Impacts in After Sunset Hours ...... 11 D . Summary of Lost Revenues from Operating Restrictions ...... 12 E . Other Sources of Revenue Uncertainty ...... 12 V . THE BARCLAYS LETTER CONCLUSIONS ARE UNREASONABLE ...... 13 A . Adverse Impacts on Cash Flows ...... 13 B . Project Financing Support...... 13 C . Attractiveness to Power Purchasers ...... 14 D . Ability to Generate Competitively Priced Energy ...... 15 VI. CONCLUSIONS ...... 15 I. INTRODUCTION, QUALIFICATIONS, AND PURPOSE

I have been asked by the Alliance to Save Nantucket Sound (“the Alliance”) to evaluate the assertions made by Mr. Christopher Winchenbaugh, Managing Director at Barclays Capital Inc., in a letter to Mr. jim Gordon, President of Cape ‘Wind Associates, LLC, dated 17 November 2008 (“Barclays Letter”).

I am the President of Continental Economics, Inc., an economic litigation and consulting firm. I have over 25 years of experience in the energy industry, and have worked for electric utilities, government agencies, and as a consulting economist. I have performed numerous economic valuation studies for fossil-fuel, nuclear, and renewable generating resources, including preparation of fairness opinions. I have performed cost-benefit studies of transmission, generation, and distribution investment, evaluated mergers and acquisitions, developed resource investment decision strategies under uncertainty, analyzed utility cost of capital, and performed economic impact studies of energy resource development. I have prepared expert testimony and reports in cases before utility regulatory commissions in numerous states; before the Federal Energy Regulatory Commission (FERC); before international regulators; in commercial litigation cases; and testified on energy policy and legislation before legislative committees in Connecticut, Maryland, Ohio, Texas, Vermont, and Washington State. I am also the author of numerous academic and trade press articles, and coauthored Fundamentals of Energy Regulation, which was published in 2007 by Public Utilities Reports, Inc. and the coauthor of Principles of Utility Corporate Finance, which will also be published by Public Utilities Reports, Inc., later this year.

The Barclays Letter addresses proposed operating restrictions on the Cape Wind project (“Cape Wind” or “the Project”) in conjunction with the Endangered Species Act (ESA). The operating restrictions were proposed in the Biological Opinion issued by the United States Fish and Wildlife Service (USFWS), dated 21 November 2008,l The letter concludes that the proposed operating restrictions during the 22-day period between April 24 and May 15, and the 27-day period between August 20 and September 15 will jeopardize project financing and adversely affect the Project’s ability to generate “competitively priced energy.”

The Barclays Letter is not accompanied by any supporting documentation or analysis to justify its finding that the proposed operating restrictions will have a material adverse impact on lenders and power purchasers. Thus, it is impossible to verify the material adverse impact finding. However, the statements made in the letter indicate: (1) ignorance

1 US Dept. of the Interior, Fish and Wildlife Service, Final Biolopical Opinion, Cape Wind Associates. LLC. Wind Energ Proiect, Nantucket Sound. Massachusetts, Formal Consultation # 08-F-0323, November 21, 2008 (“Cape Wind Biological Opinion”). Available at: hL 21November2008 withCovLttr.pdf.

-1- of the wholesale energy market in New England; and (2) wrongly implies that, in the absence of the proposed operating restrictions, the project will generate “competitively priced electricity.”

I performed an analysis of the potential impacts on project revenues as a result cif the operating restrictions, based on actual 2009 wholesale market electricity prices in the Southeast Massachusetts (SEMASS) zone of KO-NE (the entity that operates the transmission system grid in New England). My independent analysis shows that the financial impacts of the proposed operating restrictions are likely to be de minimus. Moreover, the Barclay’s Letter wrongly ascribes all project finance uncertainty to these operating restrictions, and fails to address the uncertainties caused by changing market conditions, changes to tax laws (e.g., potential elimination of the existing federal production tax credit for wind power), or changes in regulations that specific minimum quantities of renewable generation in Massachusetts.

Given the economic analysis that was included with the Final Environmental Impact Statement (FEIS) for the project, wholesale market prices in, and current and projected prices of natural gas, which is the fuel of choice for new fossil-fuel generation, these operating restrictions will have no impact whatsoever on the Project’s ability to generate competitively priced electricity, since the project is already uneconomic. Were it not for the federal production tax credit for wind power (or, in the alternative, a 30% grant of eligible capital costs), accelerated depreciation that will allow the Project developers to fully depreciate the Project over just 5 years, and the prospect of an above-market longterm power purchase agreement (PPA) between Cape Wind and National Grid, the Project would never be built.

11. THE BARCLAYS LETTER

The Barclays Letter concludes that these operating restrictions “will have a material adverse impact on lenders and power purchasers of the project’s total electricity production as well as the timing of that production, which in turn likely impact the economic viability of the Cape Wind project .., including its ability to generate competitively priced electricity.”

The entirety of the supporting analysis in the Barclay’s letter consists of the following statement:

“[tlhe maximum potential shut down periods represent more than 8% of the total annual operating time for the Cape Wind project. Although the project is very unlikely to be shut down for this entire period, the potential for these shut downs increases the uncertainty regarding the project’s electricity output and cash flow and will be factored into the lenders’ financial model [sic]. Furthermore, the potential shut down periods during the day are generally considered peak demand times for the same of electricity. The

-2- prospects of having the Cape Wind project shut down in an unpredictable manner during the day when visibility is low is also expected to make the Cape Wind project a less attractive power provider to electric utilities and the ISO-NE grid overall and could pose additional administrative and operating costs.”

In finding a “material adverse impact” of the proposed operating restrictions, the Barclay’s Letter ignores the inherent uncertainty of wind power generation, which arises because the wind does not always blow. It wrongly ascribes the shut down periods as “peak demand” times when, in fact, potential shutdown hours occur when demand is low. In fact, the 22- day period between April 24 and May 15 is historically a time when there is neither heating nor cooling loads and, as a result, many generator facilities have scheduled maintenance performed at this time. And, in the late summer shut down period, demand for electricity during the hour before sunrise is always low. As for the 1-2 hours from sunset to 8:00PM, while these hours are associated with higher electric demand, my analysis of 2009 market prices during these hours (see Section 3, below) shows that the average price for this period was less than the average price for all of 2009 in the SEMASS zone,

The Barclay’s Letter also provides no supporting analysis for its findings. It ignores all of the subsidies and favorable tax treatment afforded Cape Wind by the federal government, in the form of production tax credits and accelerated depreciation. It implicitly assumes that low visibility and fog will occur each and every day of the 22-day and 27-day periods where operating restrictions will be in force. And, it implicitly assumes that, at the same time there is low visibility and fog, the wind will be blowing sufficiently for the Project to be producing significant quantities of power.

111. THE SEMASS WHOLESALE ELECTRIC MARKET

To examine the potential revenue impacts associated with the proposed operating restrictions, I began by reviewing market-clearing prices in the SEMASS market, which is the specific zonal market in which the Project would be located. This analysis included estimating average daylight prices for the spring and summer restriction periods, and average prices one hour before sunrise and average prices between sunset and 8:OOPM for the summer restriction period only.

A. Average Daylight Prices in the SEMASS Market

For my analysis, I began by estimating weighted average (by hourly load) daylight prices between April 24 and May 15, when the Project would be operating restrictions during daylight hours when visibility was % mile or less. I also estimated weighted average daylight prices for the 27-day, August 20-September 15 period.

-3- The average price during daylight hours, which I defined as the 12-hour period between 6AM and 6PM,2 between April 22 and May 15 was $41.1O/MWh. Between August 20 and September 15, the average daylight price was $36.75/MWh.3 These average prices are both lower than the average daylight price over the entire year, which was $46.49/MWh and, indeed, lower than the average overall price of $44.17/MWh.4

Figure 1 shows the average daily prices for all of 2009 for the SEMASS zone, highlighting the spring and summer restricted operation periods. As can be seen, the April-May period has some of the lowest average daylight hour prices. This is expected, as there is little cooling or heating load during that time of year. Moreover, average daylight prices in the summer period were also low, as by late August average temperatures have already begun to drop from their Julylevels.

2 I assumed an average 12-hour day for the April-May period, from 6AM to 6PM to develop a consistent average of daylight prices throughout the year, as shown in Figure 1. Even though the daylight hours during the 22-day spring period are slightly over 13 hours, and would include the 5AM-6AM hour. However, adding the 5-6AM hour would have reduced the average daylight price for the period from $41.1O/MWh to $40,19/MWh, roughly 2.5% lower. Thus, my analysis of the revenue impacts is conservative.

3 The average price over the 13-plus daylight hours was $35.88/MWh, or 2.4% lower on average.

4 This is a load-weighted average price, based on hourly loads in the SEMASS zone.

-4- Figure 1: Average Daylight Real Time Electric Prices ($/MWh): SEMASS Zone

$80.00

$60.00

$40.00

Avg. daylight hour price: 541.10 Aug. 20 - Sept. 15 Avg. daylight hour price: $36.75 $- 1/1/2009 2/1/2009 3/1/2009 4/1/2009 5/1/2009 6/1/2009 7/1/2009 8/1/2009 9/1/2009 10/1/2009 11/1/2009 12/1/2009

-__I-_I_-_ -- _"I___.----_I_- ___--_I The August 20-September 15 period is notable for the $117/MWh average daylight hour clearing price, which was the highest average daylight price of the entire year. The SEMASS peak load occurred on August 18,2009. Yet, the average daylight hour price on that peak day was just $62/MWh. The price spike on August 21, 2009 indicated a potential operational issue within ISO-NE on that date. To further analyze this, I compared the hourly day-ahead (DA) prices and real time (RT). DA prices are determined by ISO-NE based on anticipated electric demand and available generating resources. Unless ISO-NE significantly underestimates the next-day demand forecast, there is a real-time operational constraint, such as a forced generator or transmission line outage, or both, RT and DA prices generally will not diverge by large amounts. Figure 2 compares the hourly DA and RT prices on both August 18,2009 and August 21,2009.

- 5-