ROSS & DEPAULO ATTORNEYS AT LAW PROFESSIONAL LIMITED LIABILITY COMPANY
ALEXANDER J. ROSS 151 DUDDING AVENUE TEL 304-562-9045 WILLIAM V. DEPAULO HURRICANE, WV 25526-1417 FAX: 304-562-9093 [email protected]
November 17,2000
Ms. Sandra Squire Executive Director I Public Service Commission L " i P. 0. Box 8 12 201 Brooks Street Charleston, WV 25323
Re: Case No. 00- 1209-E-CN Backbone Mountain Windpower, LLC
Dear Ms. Squire:
On behalf of the West Virginia Highlands Conservancy, I have enclosed for filing in the above referenced matter, the original and 12 copies of the following documents:
1. a December 5, 2000 email from Ronald Canterbury, Ph.D. to Frank Young, President of the W. Va. Highlands Conservancy suggesting that additional avian studies are required prior to issuance of a certificate of convenience in this proceeding;
2. a November 21, 2000 new release pertaining to a September 14, 2000 interim guideline adopted by the U. S. Fish & Wildlife Service relating to bird kills at communications towers;
) I 3. a projection of the economic impact on Tucker County which would flow from I the incorporation of the Blackwater Falls State Park into the National Park system, and a discussion of the manner in which DO1 evaluates sites for inclusion into the National Park system. With these submissions, the West Virginia Highlands Commission believes that it has sustained its position that a complete and independent environmental impact statement is required for this project in order to adequately assess avian impact, and that the nocturnal light visible from the lower two arrays of the project jeopardize the recreational value of the Blackwater State Falls Park.
We reiterate our position that, apart from the foregoing matters, the Conservancy does not oppose this project and supports the diversification of energy generation sources in the state.
Very truly yours,
r- William V. DePiulo cc: Robert Rodeker, Esq. Don Gasper Received: 12/ 6/00 12:49; -> ROSS & DePAULO-PLLC; Page 3 .'P-lLL-4995 G:31PM FROM ,", P. 3
From: Ron Canterbury
Dear Frank,
I am writing in response to your letter dated 30 November 2000 and inquiry regarding my opinion of the migration study on Backbone Mountain to assess the potential impacts of a proposed wind power project. Befo~elaunching
\ into my views, I will first explain my connection with the project. As a leading state ornithologist, t was interviewed by Or. Paul Kertinger, the lead consultant on the migration impad study, to project my estimate of potential impacts on migratory songbirds and raptors. This interview, if I recall correctly, was conducted about a year ago. At that time, I also indicated that I would be willing to assist with any needed studies. This, however, did not happen. I am Chair of the WV Partners In Flight Research (PIF) and Monitoring and have seen numerous discussions of this project within W PIF. I have camfully read Dr. Kerlinger's report and understand that twcr graduate students conducted the migration field study. Although I have the highest respect for Dr. Kerlinger, 1 do have a few mncems about the study. Dr. Kerlinger is considered a national expert on avian migration ecology and is well published in the national literature. My concerns, hourever, involve the length and nature of the study. I am not necessarily convinced that
I Backbone Mountain is a poor, or moderate, area for migrant birds. I conclude this from several reasons. Bird banding was NOT conducted by experts in the field to adequately assess what migrants were using the area. "Snap-shot" visual counts will surely miss some secretive andlor non-vocal species. Nor, did the study attempt to determine abundance of migrants. Yearly variation in migration is also NOT considered. For example, it was a poor fall migration season at the Allegheny Front Migration Observatory (AFMO) in Grant County (Hall, pes. comm.), which is close to the site studied in Kerlinger's report. Thus, it was likely a poor migration this fall along Backbone Mountain, too. Other areas experienced a good migration pattern. For example, it ms a fairly good migration season in southern West Virginia (Canterbury in press). Thus, the study did not deal with temporal and spatial varidon in avian migration. Backbone Mountain could be a good site for migrants in some years. West Virginia is a key state for many threatened and endangered migrant landbirds, as well as for many declining species and species of special concern. Northeast PIF and Cornelt Laboratory of Ornithology have advocated the importance of West Virginia to Golden-winged and Cerulean Warblers, for example. 12/6/00 Received: 12/ 6/00 12:50; -> ROSS & DePAULO-PLLC; Page 4 ' . ~a-i~1-1995G:~~PM FROM P. 4 Page 2. of 3
By my 14 years of research on birds in West Virginia, and especially that of eight years of migration studies using mist-netting and bird banding, I know that birds show remarkable variation within and between years and among habitats. A particutar area may have a(n) good or excellent flight of migrants one year, but not the next. I highly encourage more detailed studies on the site over longer periods of time. I recommend the use of bird-banding and use of experts in West Virginia. These suggestions are likely to provide a clearer picture of avian migration along Backbone Mountain, as well as a more robust assessment of use of the site by migrant tandbirds.
I don't believe we should consider the building 01 wind turbines before more detailed studies are produced. I am NOT against wind power, nor do I advocate them. I do, however, betieve we need alternatives to fossil fuels and other energy sources, but believe the appropriate studies should be I conducted beforehand. Companies investing in wind turbines can only potentially benefit from adequate environmental decisions. These will ultimately lead to an easier road to travel when the next recommended site/project becomes available. Adequate investment in more detailed environmental impact studies will redwoe the burden of permit approval, etc. during future transactions. Migratory birds are being decimated by loss of habitat through suburban sprawl and mortalities in migration by crashing into telecommunication towen, buildings, as well as great lasses due to cats. We cannot, end shoutd not, contribute to additional losses without adequate environmental studies. Many national and WV Piers are concerned about the potential loss of songbirds and raptors at this site if the towers are. constructed. However, I predicted (from the literature, location of the site, my past experience, type of towers proposed, etc.)that the site in discussion is i probably not that important to migrant landbirds and may not produce mass matalities. I would, however, not bet on this predication based on temporal and spatial variation in migration patterns and without detailed studies. I urge Dr. Keriinger and the company involved, as welt as WV Division of Natural Resources, USFWS, etc. to consider my request to do more detailed studies on the site before a decision is made on whether or not to build wind towers on Backbone Mountain. Iwoutd eagerly like to work with Dr. Kerlinger on this issue. I firmly believe my expertise with migrant songbirds and evaluation of the situation coutd provide those involved with a more detailed and adequate resolution, or at least enough data for making a sound decision here in West Virginia.
In summary, the migration study used to assess whether the projected site is a valuable area for migrants and, thus, not useful for wind turbines is (7) too short in duration, (2) lacks mist-netting and bird banding to assess the complete migration picture, and (3) does not consider temporal variation in migration patterns. One additional note is that the Golden-winged Warbler occurs in the area. This species is curtvntly being 12/6/00 -> ROSS & DePAULO-PLLC; Page 5 Received: 12/ 6/00 12:51; P. 5 , ' 4-1 4-1 995 *6: 32PM FROM Page 3 of 3
evaluated for federal endangerment status. Finally, the study does NOT consider how impacts of the wind towers OR bird populations IocaHy tie in with regional biodiversity and ecosystem structure. In other words, the concept of additivity. How does small disturbances in Wert Virginia contribute to ovetalllregional declines of migratory landbirds? Even small disturbances are likely to impact wildlife in some way, and these ace usually negative impacts. Much can be done to circumvent these impacts if continued studies are conducted or if there is long-term monitoring. These studies could be used to predict changes in bird populations, to justify application of restomtion ecology, as we\\ as to p~ediCtchanges in tower construction to minimize impacts. I do assume, however, that adequate sites for wind turbines may be present in West Virginia, but justifiable, sound environment€d studies are needed to document these areas.
Sincerely,
Ronald A. Canterbury Assistant Professor Chair, WV Partners In Flight Research and Monitoring Editor, WV Academy of Science Department of Biology The Southern WV Bird Research Center Concord College Athens, W 247 I2 Voice: (304) 384-5214 Fax: (304) 384-9044 E-mail: canterQu-=@consord-edu
i
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News Release
Office of Public Affairs 1849 C Street, NW Washington, DC 20240 202/208 5634 Fax: 202/219 2428
November 2 1,2000 Chris Tollefson 202-208-5634
1 SERVICE ISSUES GUIDELINES DESIGNED TO REDUCE FATAL BIRD COLLISIONS WITH COMMUNICATIONS TOWERS
After consulting with the telecommunications industry, academic researchers, other Federal and state agency representatives and bird conservation groups for more than a year, the U.S.Fish and Wildlife Service has published interim guidelines designed to reduce the number of birds killed in collisions with towers used to transmit wireless telephone conversations, television and radio broadcasts, and other signals.
The guidelines are interim measures representing the best scientific information presently available for reducing fatal bird collisions, These interim guidelines will be used by Service personnel in responding to requests for evaluations of new tower proposals, as the Service continues to work with industry to devise additional, more effective measures for avoiding bird strikes. The guidance they provide is voluntary and non-binding.
‘These guidelines have been developed fiom research conducted in several eastem, southern, and midwestern )ates, and provide the best scientific knowledge available on designing and siting towers to reduce the danger they present to migrating birds. We look fomard to working with indusm to implement these guidelines while conducting further research to advance our knowledge of the problem and its solutions,” said Service Director Jamie Rappaport Clark.
The guidelines include recommendations to co-locate proposed new antenna arrays on existing towers or other structures whenever possible; to build towers as short as possible and without guy wires or lighting; to site new towers in “antenna farms” away from wetlands or other known bird concenQation areas; and to USQ white strobe lights, which appear to be less attractive to birds than pulsating lights, on towers that must be lighted for aviation safety.
The Service conservatively estimates that more than 4 million birds are currently being killed every year in North America in collisions with communications towers, though more research needs to be done to document the fdl extent of the problem and to explore additional ways to minimize deaths. Towers pose a special danger to some 350 species of night-migrating songbirds, especially on foggy nights. Under these conditions, birds are attracted to towers With pilot warnixlg lights, which are required by the Federal Aviation Administration for towers taller than 200 feet, and for all towers within 3 miles of an airport. necexvea: iz/ S/UU 1-/:29; 202 219 2428 -=- ROSS & DePAULO-PLLC; Page 3 - ..* -. 1%/05/00. 16:52.- FAX 202 219 2A28 MEDIA SERVICES-FWS @I003
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Researchers have observed bird kills at communications towers for decades, w-kb one Service estimate in 1979 placing the number killed at 1.3 million per year. That estimati was based on a survey of some 500 of the 1,010 tall towers then in existence. Today, there are more than 75,000 towers registered with the Federal Communications Commission, including nearly 45,000 towers greater than 200 feet in height. Industry projections indicate there may be as many as 100,000 new towers built in the next decade. Due to a . Congressional mandate to digitize all television stations by 2003, an estimated 1. ,000 of these new towers will exceed 1,000 feet in height, creating a potentially serious threat to migrating birds.
Senrlce field stations have been involved in evaluating tower effects on birds and identifying ways to minimize losses since 1996. The Division of Migratory Bird Management began to address the issue in 1998, when it helped develop a tower risk model that gave researchers a clearer picture of the factors that contribute to fatal bird collisions. In June 1999, the Communication Tower Working Group, chaired by the Service and including 42 industry, academic, private conservation and government stakeholders, was formed to develop, help fund, and implement a nationwide research protocol assessing causes of the collision problem and researcling plutions . I In August 1999, the Service co-chaired a public‘workshop, “Avian Mortality at Coxqmnications Towers”, at Cornell University, giving researchers and policy makers a fonun to begin to assess and discuss the scope of the problem. This past summer, the Working Group reviewed and approved a nationwide reseqch protocol that sets parameters and goals for fbture studies.
The wireless telephone hdustry has been supportive of efforts to examine the problem. Southwestern Bell Wireless is discussing funding pilot studies that could begin as early as this fall. The Cellular Telecommunications Industry Association has suggested that the Working Group submit a full research proposal for a 3-tod-year nationwide monitoring effort to their Board of Directors for consideration. “We’re pleased that the wireless telecommunications industry has recognized the need to study this issue further, and is considering helping to fund the research efforts. Their support is vital as we be,@n the process of making migration safer for hundreds of species of migratory birds,” said Service Director Clark. khe US.Fish and Wildlife Service isthe principal Federal agency responsible for conserving, protecting and enhancing fish, wildlife and plants and their habitats for the continuing benefit of the American people. The Senrice manages the 93-million-acre National Wildlife Refuge System which encompasses more than 530 national wildlife refuges, thousands of small wetlands and other special management areas. It also operates 66 national fish hatcheries, 64 fishery resource offices and 78 ecological services field stations. The agency enforces Federal wildlife laws, administers the Endangered Species Act, manages migratory bird populations, restores nationally si,anificant fisberies, conserves and restores wildlife habitat such as wetlands, and helps foreign governments with their conservation efforts. It also oversees the Federal Aid program that distributes hundreds of millions of dollars in excise taxes on fishing and hunting equipment to state fish and wildlife agencies.
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United States Department of Interior Fish and Wildlife Service Washington, DC 20240
September 14,2000
To: Regional Directors From: Director /s/ Jamie Rappaport Clark , Subject: Service Guidance on the Siting, Construction, Operation and Decommissioning of Communications Towers
Construction of communications towers (including radio, television, cellular, and microwave) in the United States has been growing at an exponential.rate, increasing at an estimated 6 percent to 8 percent annually. According to the Federal ConlmunicatiollCo&nission’s 2000 Antenna 1 Structure Registry, the number of lighted towers greatcr than 199 feet above ground level (AGL) currently number over 45,000 aid the total number of towers 0ver~74,OOO. Non-compliance with the registry program is estimated at 24 percent to 38 percent, bringing the total to 92,000 to. 102,000. By 2003, all television stations must be digital, adding potentially 1,000 new towers exceeding 1,000 feet AGL.
The construction ofnew towers creates a potentially significant impact on migratory birds, especially some 3 50 species of night-migrating birds, Communications towers are estimated to kill 4-5 million birds per year, which violates the spirit and the intent ofthe Migratory Bird Treaty Act and the Code of Federal Regulations at Part 50 designed to implement the MBTA. Some ofthe species affected are also protected under the Endangekd Species Act and Bald and
Golden Eagle Act. I
I Service personnel may become involved in the review of proposed tower sitings and/or in the evaluation of tower impacts 011 migratory birds though National EnvironmentalPolicy Act review; specifically, Sections 1501.6, opportunity to be a cooperating agency, and 1503.4, duty to comment on federally-licensed’activitiesfor agencies with jurisdiction by law, in this case the MBTA, ox because of special sxpcrtise. Also, the National Wildlife Refuge System Iniprovement Act rcquires that any activity 011 Refuge lands be determined as compatible with the Refuge system mission and the Refuge purpose(s). In additioh, the Sexvice is required by the ESA to assist other Fcderal agencies in ensuring that any action they authorize, implement, or hdwill not j eopardize the continued existence of any Federally endangered or threatened species.
A CommunicationTower Working Group composed of government agencies, industry, academic researchers and NGO’s has been formed to develop and hplement a research protocol to determine the best ways to construct and operate towers to prevent bird strikes. Until the research study is completed, or until reseslrch efforts uncover significantnew mitigation measures, all Service personnel involved in the revicw of proposed tower sitings and/or the Received: 12/ 5/00 17:2G; 202 219 2428 -> ROSS & 0ePAULO.PLLC; Page 5 --* 12/05'L0Ot 16:83 FAX 202 219.2428 MEDIA SERVICES-FWS @I005
evaluation of the impacts of towers on migratory birds should use the attached interim guidelines when making recommendations to all companies, license applicants, or licensees proposing new tower sitings. These guidelines were developed by Service personnel fiom research conducted in several eastern, midwestern, and soulhem states, xiid have been refined through Regional review. They are based on the best iiiformation available at this time, and are the most pnident and effective measures for avoiding bird strikes at towers. We believe that they will provide significant protection for migratory birds pending completion of the Working Group's recommendations. As new information becomes available, the guidelines will be updated accordingly.
Implementation of these guidelines by the communications industry is voluntary, and OUT recommendations must be balanced with Federal Aviation Administration requirements and local commmity concerns where necessary. Field offices have discretion in the use of these guidelines on a case by case basis, and may also have additional recommendations to add which i are specific to their geographic area.
Also attached is a Tower Site Evaluation Fonn which may prove useful in evaluating proposed towers and in streamlinhg the evaluation process. Copies may be provided to consultants or tower companies who regularly submit requests for consultation, as well as to those who submit individual requests that do not contain sufficient information to allow adequate evaluation. This form is for discretionary use, and may be modified as necessary.
The Migratory Bird Treaty Act (16 U.S.C. 703-712) prohibits the taking, killing, possession, transportation, and importation of migratory birds, heir eggs, parts, and nests, except when specifically authorized by the Department of the Interior. Wile the Act has no provision for allowing unauthorized take, it must be recogized that some birds may be killed at structures such as cornmiinkations towers even if all reasonable measures to avoid it are implemented. The Service's Division ofLaw Enforcement carries out its mission to protect migratory birds not only through investigations and enforcement, but also though fostering relationships with individuals and industries that proactively seek to eliminate their impacts on migratory birds. While it is not possible under the Act to absolve individuals or companies from liability if they follow these recommended guidelines, the Division of Law Enforcement and Department of Justice have used enforcement and prosecutorial discretion in the past regarding individuals or companies who have made good faith efforts to avoid the take ofmigratory birds.
Please ensuxe fiat all field persoimel involved in rcview of FCC licensed communications tower proposals receive copies of this memorandum. Questions regarding this issue should be directed to Dr. Benjamin Tuggle, Chief, Division of Habitat Conscrvation, at (703)358-2161, or Jon Andrew, Chief, Division of Migratory Bird Management, at (703)358-1714. These guidelines will be incorporated in a Director's Order and placed in the Fish and Wildlife Service Manual at a future date.
Service Interim Guidelines For Recomrnehdations On Received: 12/ 5/00 17:30; 202 219 2428 -=- ROSS & DePAULO.PLLC; Page 6
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Communications Tower Siting, Construction, Operation, and Decommissioning
1. Any company/applicanVlicenseeproposing to constnict a new communications tower should be strongly encouraged to collocate the communications equipment on an existing communication tower or other structure (e-g.,billboard, water tower, or building mount). Depending on tower load factors, fiom 6 to 10 providers may collocate on an existing tower.
2. If collocation is not feasible and a new tower or towers axe to be constructed, communications service providers should be strongly encouragcd to construct towers no more than 199 feet above ground level (AGL), using construction techniques which do not require guy wires (e.g., use a lattice structure, monopole, etc.). Such towas should be unlighted if Federal Aviation Administration regulations permit.
3. If constmcting multiplc towers, providers should consider the cumulative impacts of all of those towers to migratory birds and threatened and endangered species as well as the impacts of each individual tower.
4. If at all possible, new towers should be sited within existing "aatemiafarms" (clusters of towers). Towers should not be sited in or near wetlands, other known bird concentration areas (e.g., state or Federal re.fuges, staging areas, roolterics), in hiown migratory or daily movement flyways, or in habitat of threatened or endangered species. Towers should iiot be sited in areas with a high incidence of fog, mist, and low ceilings.
5. If taller (>199 feet AGL) towers requiring lights for aviation safety must be constructed, thc minimum amount of pilot warning and obstruction avoidance lighting required by the FAA should be used. Unless otheiwise required by the FAA, only white (preferable) or red strobe lights should be used at night, and these should be the minimum iiumber, miniinurn intensity, and minimum number of flashes per minute (longest duration between flashes) allowable by the FAA. The use of solid red or pulsating red warning lights at night should be avoided. Current research indicates that solid or pulsating (beacon) red lights attract night-migrating birds at a much higher rate than white strobe lights. Rcd strobe lights have not yet been studied.
6. Tower designs using guy wires for support which are proposed to be located in known raptor or waterbird concentration areas or daily movement routes, or in major diumal migratory bird movement routes or stopover sites, should have daytime visual markers on the wires to prevent collisions by these diurnally moving species. (For guidaiice on markers, see Aviun. Power Line Interaction Committee (APLICJ. 1994. Mitigating Bird Collisions wilh Power Lines: The State of the Art in 1994. Edison Electric Institute, Washington,D. C., 78 pp, and Avian Power Line Interaction Committee (APLIC). 1996. Suggesled Practicesfor Raptor Protection on Power Lines. Edison Electric InstituteiRuplor Research Foundation, Wcrshington, D.C., 128pp. Copies can be obtained via the Internet at http://www.eei.org/resources/pubcat/enviro/,or by callkg 1-800/33 4-545 3).
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7. Towers and appendant facilities should be sited, designed and constructed so as to avoid or minimize habitat loss within and adjacent to the tower “footprint”. However, a larger tower footprint is preferable to the use of guy wires in construction. Road access and fencing should be minimized to reduce or prevent habitat fiagrnentation and disturbance, and to reduce above ground obstacles to birds in flight.
8. Ussignificant numbers of breeding, feeding, or roosting birds are known to habitually use the proposed tower construction area, relocation to an alternate site should be recommended. If this is not an option, seasonal restrictions on construction may be advisable ill order to avoid disturbance during periods of high bird activity.
9. In order to reduce the number of towers needed in the future, providers should be encouraged to design new towers structurally and electrically to accommodate the applicantdicensee’s antennas and comparable antennas for at least two additional uscrs (minimum of three users for each tower struciwe), unless this design would require the addition of lights ox guy wires to an otherwise unlighted and/or unguyed tower.
10. Security lighting for on-ground facilities and equipment should be down-shielded to keep light withjn the boundaries of the site.
11. - Ifa tower is constructed or proposed for construction, Service persoimel or researchers from the Communication Tower Working Group should be allowed access to the site to evaluate bird use, conduct dead-bird searches, to place net catchents below the towers but above the ground, and to place radar, Global Positioning System, infixed, thermal imagery, and acoustical monitoring equipment as necessary to assess and verify bird movements and to gain information on the impacts of various tower sizes, configwations, and lighting systems.
12. Towers no longer in use or determined to be obsolete should be removed within 12 months of cessation ofuse.
In order to obtain information on the extent to which these guidelines are beiig implemented, and to identify any recurring problems with their implementation which may necessitate modifications, letters pJ:ovided in response to requests for evaluation of proposed towers should contain the following request:
“In order to obtain information on the usefuhess of these guidelines in preventing bird strikes, and to identi@ any recurring problems with their implementation which may necessitate modifications, please advise us of the final location and specifications of the proposed tower, and which of the measures recommended for the protection of migratory birds were implemented. If any of the recommended measures can not be implemented, please explain why they were not feasib1.e.” [COIWOW-~,PO~.W~] Received: 12/ 5/00 17:30; 202 218 2428 -> ROSS & DePAULO.PLLO; rage tj
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TOWER SITE EVALUATION FORM
1. Location ( Provide maps if possible): State: county: Latitude/Longitude/GPS Grid: City and Highway Direction ( 2 miles W on Hwy 20, etc.)
2. Elevation above mean sea levcl:
3, Will the equipment be co-located on an existing PCC licensed tower or other existbg structure (building, billboard, etc.)? (yh) If yes, type of structure: If yes, no further informatioa is required.
4. If no, provide proposed specifications for new tower: Height: Construction type (lattice, monopole, etc.):
Guy-wired? (yh) No. bands: Total No. Wires: Lighting (Security & Aviation):
Iftower will be lighted or guy-wired, completc items 5-19. If not, complete only items 19 hd 20.
5. Area of tower footprint in acres or square feet:
6. Length and width of access road in feet:
7. General description of terrain - mountainous, rolling hills, flat to undulating, etc. Pliotogmphs of the site and surrounding area are bencficid:
8. Meteorological conditions (incidence of fog, low ceilings, etc.):
9. Soil type(s):
10. Habitat types and land use on mid adjacent to the site, by acreage and percentage of total: Received: 121 5/00 17:31; 202 219 2428 -> ROSS 8, DePAULO.PLLC; Page 9 12/05%00. 16:54 FAX 202 219 2428 MEDIA SERVICES-FWS a 009
I
11, Dominant vegetative species in each habitat type:
12, Average diameter breast height of dominant tree species in forested areas:
13. Will construction at tlis site cause fragmentation of a larger block of habitat into two or more smdler blocks? (yh) If yes, describe: i -
14. Is evidence of bird roosts or rookeries present? (yh) If yes, describe:
15. Distance to nearest wetland area (forested swamp, marsh, riparian, marine, etc.), and coastline if applicable:
16. Distance to nearest telecommunications tower:
17. Potential for co-location of antennas on existing towers or other structures:
18. Have measures been incorporated for minimizing impacts to migratory birds’? @In)- If yes, describe:
1.9. Has an evduition been macle to determine if thc proposed facility may affect listed or proposed endangered or threatened species or their habitats as required by FCC regulation at 47 CFR 1.1307(a)(3)? (yh) If yes, present findings:
20. Additiod information required: Received: 12/ 6/00 12:44; 3045629093 -> ROSS & DePAULO-PLLC; Page 2 P.02 ' DEC'y06-00, 12:17 PM ROSS & DEPAUL0,PLLC 3845629093
Projected Economic Impacts of BLACKWATER CANYON NATIONAL PARK Tucker County, OYV CURRENT STATUS
BIaACKWATER FALLS STATE PARK (1 996-97)++
Number of visitors per year 750,000
Revenue generated by park ...... ,,.,... $2,300,00.00 Average local spending of visitor to WV statc parks 13.00
Jobs provided by park 139
Blackwater Falls Statc Park spending $2,291,957.00 payroll 1,404,473.00 Hotel Motel tax 57,392.00 Total revenue generated in locd economy with multipliers* %8,623,646.00 (economic activity set in motion by park and visitor spending)
MODEL FOR FUTURE REVENUES
SHENANDOAH NATIONAL PARK+ (1 992 study)
Number of visitor trips in 1992 = 965,626 (1 998 park visitorship 2,000,000)
A. Direct spending: Average visitor spending in local area per visit: $45.54 Total visitor spending (1/3 spent within the park) $4 5,000,000.00 NPS spending in focal area(*payroll, purchase order, in-lieu) $5,500,000.00 In-lieu spending.,...... , , .. (1 48,000.00) ARA VA Skyline Co.(concessionairespending in local area) $4,500,000.00
Total direct spending $55,198,000.00
€3. *Multiplier spending (economic activity set in motion by direct visitor, agency and concessionaire spending)
Business Output $4533 1,000.00 0 Total income 26,767,000.00
(7. Total revenue generated in local economy (direct and multiplier spending combined) Business Output $85,870,000.00 Total income $42,300,000.00
Jobs created in local economy 2,250 Received: 12/ 6/00 12:44; 3045629093 -> ROSS & DePAULO.PLLC; Page 3 ,REC;@6,--00, 12: 17 PM ROSS & DEPAULO, PLLC 3045629093 P.03
NATIONAL PARK MODEL CREATES 10 TIMES WHAT STATE PARK CREATES.
Shenandoah National Park generated $85,870,000.00 in the local economy in1 992 compared to Blackwater Falls State Park’s $8,623,646.00in 1998.
Shenandoah National Park generates close to the same amount of revenue as all the state parks in West Virginia combined.
*Multipliers developed from I JSDA Forest service lmplan syitcm.
+Data taka From SHENANDOAH NATIONAL PARK: Economic Impacts and Visitor Porccplions 1992. NPS Survey. Technical Report NPS/Marshen/NTRT-93/055
+West Virginia State Park Economic Impact Study, 1998 GAI Consultants and MmhnIl University 3045629093 -> ROSS & DePAULO.PLLC; Page 4 necexvea: 1zf (J/UU 12:44; P.04 ’ pECLB6,-B@ 12:18 PM ROSS & DEPAUL0,PLLC 3045629093
HOW BLACKWATER CANYON AND ENVIRONS MEET THE NATIONcU PARKS SERVICE’S CRITERIA FOR THE ESTABLISHMENT OF A NATIONAL PAM.
WI The information below shows how the Blackwater Canyon and environs match many of the National Parks Service’s proposed park evaluation examples.
Natural Resou rce evaluation examples:
a landform or biotic area that has always been extremely uncommon in the rel;icn or Nation:
The Blackwater Canyon and the Canaan Valley wetlands the Canyon have beer1 called a bit of Canada in Appalachia, because they contain plants and animals that found rehge here during the last Ice Age. They were able to survive here until the present day, due to the cool conditions in this area of the West Virginia Highlands. Many of the plants and animals Iiving in this area are in the southernmost reach of their ranges. One animal finds its northernmost rea:h in the Canyon. t
0 a site that possesses exceptional diversity of ecological components (species, communitie$, or habitats)or geological features (landforms, observable manifestations of geologic processes):
The high mountain bogs (including the Canaan Valley Wetlands and Big Run Rag) tf.at comprise the headwaters of the Blackwater River, and its deep forested Canyon, form two distinct but related habitats and important ecologicol islands in the Northern Allegheny !%uritain Section of the Central Appalachiari Broadleaf-Coniferous Forest Meadow Province. This ecoregion, or distinct climate and vegetation zone, is perfectly reprcsented by thc Blackwater River Watershed. The high meadows, bogs and mixed hardwoodlconifcrow foreits above 3000 feet provide remote mountain habitat for a van‘ety ofspecies, including the federally endangered Virginia northern flying squirrel. This creature is a disjunct species: one ‘‘le!? ovvtr” fiorn colder days ofglaciers and decper snows, high in the red spruce and firs of Appalachia. The Cheat Mountain salamander is a species endemic to West Virginia, found nowhere
else on earth. Its habitat is similar to that of the squirrel, but on the forest floor 0- in moist, rocky, and undisturbed areas. Both spccies secm to prefer interior, old growth forests. And like the squirrel, the Cheat Mt. Salamander makes its home in the Canyon, There it has been found a; the lowest elevations in its range at 2,600 feet.
a Descending from the Eastern Continental Divide and the highest valley east of the Mississippi, the Blackwater River and its tributaries cut the Canyon over countless millennia. The Canyon landscape is peppered with limestone-karst caws. One large cave, known as thc Blackwater Pit, is on Allegheny Wood Products property. Blackwater Pit has an underpound watcrf‘afl and stream that flow the opposite direction From the river, The endangered Viryinir big-eared bat (Plecotus townsendii virginianus) and Indiana bat (myosis sodalis) have hibernacula in 3 caves nearby (within a five-mile radius), and likely use the Canyon for breecing, roosting atid foraging. Received: 12/ 6/00 12:45; 3045629093 -w ROSS €iDePAULO-PLLC; Page 5 DEC-.06-00.12:18 PM ROSS & DEPAULOSPLLC 3045629093 P.05
The larva of a rare Caddisfly species has so far has been found only in the cool sandstone seeps of the Canyon. Caddisflies play an essential role in the nutrient cycle of the strekqls, b;l shredding algae, leaves and other plant material. This detritus makes food for other aquatic species. The sensitive Appalachian shoestring fern and northern water shrew are also found i:] the Cauyon. NO surveys of the private property in the Canyon have been done and much rerr.ains to be discovered. A “new” was discovered in 1997, ’ moss Plant and animal communities abound within the Canyon environs. The Canyon is home to the er~dangeredVirginia northern flying squirrel, the endangered Indiana Bat, the tndt1ngel.d Virginia big eared bat, the threatened Cheat Mountain salamander, the seiisitive NOrthci-iI wa;er shrew, and the sensitive Appalachia11 shoestring fern. The Canyon is a stronghold of the state animal, the black bear. Expanses of inaccessible northern hardwood forests are prime habitat for both the black bear and other associated wilderness animals, such as the bobcat and fisher. West Virginia is the southernmost exiensim of the varying hare’s range, and these animals are found on the summits overlooking tha Canyon. Other mammals found in the Canyon include the red squirrel, gray squirrel, gray fox, 1 raccoon, cotton-tailed rabbit, lonptiled weasel, chipmunk, mink, opossum, and white-:ailed deer -- as well as several species of voles, mice and shrews. Of the bird species, the most well known are probably wild turkey and ruffed groiise, but close on their heels in popularity are a wide array of songbirds native to the mountain country. Visitors to the Canyon can expect to see such unusual West Virginia birds as the hermit thrush, veery, Blackburnian warbler, black-throated blue warbler, black-throatcd green warbler, winter wren, golden-crowned kinglet and the common raven. Canyon amphibians include as the red-backed salamander, slimy salamander, diisky salamander, and perhaps a spotted salamander, as well as the threatened Cheat Mountain salamander. Frog and toad species found in the area include the spring peeper, mountain Chow3 frog, gray treefiog, and American toad. Reptiles found here include the timber rattlesnake, b’xk rat snake, northern water snake and the northem ringneck snake. From just below the northern rim on the Backbone Mountain escarpment across 10 tllc: Canaan Mountain tim on the south, the Blackwater Canyon is, for the most part, a textbook example of the mixed-mesophytic forest, what silviculturists and many foresters call the ‘ken trril .) Appalachian hardwood forest” or “Allegheny hardwoods.” In West Virginia, the mixed, mesophytic forest is best characterized as a forest in which sugar maple, basswood, red oak and yellow poplar share canopy dominance. Common associates include beeoh, white oak, CUCU~lbcr tree, mountain magnolia, white ash, hemlock, and many others. This is a beautifbl forest, with i-~ towering overstory canopy; many of the trees reach from 80 to over 100 feet in heieht and measure 2 to 3 feet in diameter. In the subcanopy one finds witch hazel, American hombcnn:, eastern redbud, flowering dogwood, magnolia, beech, and sugar maple intercepting dappled light from the upper canopy. Shrubs include spicebush, viburnums, gooseberry, blackberries, raspberries, and greenbrier. The herb layer is also spectacular, particularly in sprin8 when trillium, jack-in-the-pulpit, bellwort, hepatica, bloodroot, spring beauty, trout lily, dwarfginsl:ng,
violets and many other herbs are blooming in pruhsion. Summer brings the showy flowm {if the black cohosh, along with goat’s beard, tall bellflower, impatiens, wood lilies, and tk inconspicuous small green umbel of the elusive American ginseng. In the late summer and fi.11, the woodland asters bloom, along with white snakeroot, woodland sunflowers, and the occasional goldenrod, One can see this forest by hiking anywhere at mid-elevations on the Rail- Trail or down the Limerock Trail. 3045629093 -> ROSS & DePAULO-PLLC; Page 6 Received: 12/ 6/00 12:46; DEC--.06-00 .12 : 19 PM ROSS & DEPAULO, PLLC 3045629093 P.06
Higher UP the canyon walls and nearer to the Pottsvifle sandstone caprock on the Canycjn rim, the forest is of the northern hardwood forest type. Sugar maple, beech, yellow birch, anti hemlock make up the canopy, with scattered red maple, black cherry, black birch, mountain PSI), mountain magnolia, white pine and red spruce. Trees are not as tall or as large in diameter, dgc to thc shorter growing season and different soils. The subcanopy layer is rclatively well developed compared to the mixed-mesophytic forest, and is comprised of striped maple, beech, sugar maple, mountain holly and witch hazel. Here there are numerous boulder fields aad debris slopcu, often covered in dense rhododendron and laurel thickets. Where thickcts don't occur, tbe herb layer includes wood sorrel, trillium, Canada mayflower, violets and hay-scented acd New ferns, and and liverworts are frequent on the many rocks and fallen logs. York' mosses For the most part, this forest is inaccessible and therefore excellent cover for the niure elusive species of wildlife, including fisher and black bear (see Wildlife section). This is alsc a. place in which to seek mushrooms and other fingi, due to the cool, moist atmosphere and abundance of decaying organic material. Thc hemlock varnish shelf (Ganoderma tsuga) is frequently found on hemlock snags and downed logs, and various boletes (Boletes spp.) and i russulas (Russula spp.) are common after rains in the summer and fall months. This fowt is best represented on the south side of the Canyon, from the Canaan Loop Road (FR 13) on the. rim down to approximately 2,600 A. where it blends with the mixed-mesophytic forest. Or one can hike the Canyon Rim Trail (TR 1 17) fiom just below Olson fire tower to Big Run, or anywhere in Blackwater Falls State Park where hardwoods predominate. The riparian forest along the lower stretches of the Blackwater is characterized by sycamore, slippery elm, yellow poplar and several other species common in the upland iorest Riparian forests exist, by definition, in the flood plane and thus are at least occasionally inundated by ftoodwaters. Floods scour and reniove surface soils in places and deposit !Jim1 in others, thus the riparian forest is a highly dynamic forest where niicrohabitats often change frm ' year to year. The plants that exist in the riparian forest are, generally speaking, adapted to earerne conditions; many tolerate root saturation for fairly long periods, including at le^ pa-t of the growing season. Others thrive on disturbance, and can colonize and reproduce rapidly on newly formed habitats such as sand and gravel deposits, and scoured banks. Shrubs are very comnion in the riparian forest, and include ninebark, viburnums, eIderberry, blackberries, 1 raspberries and alder, among many others. The riparian forest is oRen thick with vegetation i~~d difficult io traverse; this, of course, provides effect.ivecover for many animals that seek shcltcr during the daylight hours and forage at night.
a site that contains biotic species or communities whose natura) distribution at that location makes them unusual (for example, a relatively large population iiL the limit of its range or an isolated population): Rare and endangered Indiana bats congregate at caves near Blackwater Canyon in the fall and hibernate there in colonies during the winter months. The unique and sensitive (not yet endangered) northern water shrew (Sorex palustris punctulatis) relies on the cold water streams in the Canyon. It is found in five West Virginia counties at elevations over 2,000 feet. The rare and endangered Virginia northern flying squirrel (Glaucornys sabrinus ~~IscU:!) makes its most suufherty home in the United States in the Blackwater Canyon. The subspecit::s hscus is only found in six counties in West Virginia and one county in Virginia. ~U~~~ZYUYY-z nvss VePAULO.PLLC; Page 7 n~cies~v~u;IL/ o/UU IC:40; P.07 ROSS & DEPeUL0,PLLC 3045629093 ' .DEC:B6--BB 12:19 PM
By contrast, the threatened Cheat Mountain salamander (Plethodon nettingi) finds its most rrorfhrrly home in the Blackwater Canyon The salamander is found on only two other high mountain ridges, also in West Virginia.
a site that harbors a concentrated population of a rare plant or animal spccies, particularly one officially recognized as threatned or endangered;
The Canyon is home to the endangered Virginia northern flying squirrel, the endangcrcd Indiana Bat, the endangered Vir8inia big eared bat, the threatened Cheat Mountain salamander, the sensitive Northm water shrew, the sensitive Appalachian shoestring fern, and many 0th tr rare and unique ptants and animals.
a critical rehge that is necessary for the continued survival of8 species:
A low-level overflight of West Virginia reveals stark contrasts. The unbroken deep forest 1 cover is being eroded. It is clear that the maintenance of ecosystem health requires protection of wild areas Only SO many threads c3n bc removed befvre the blanket falls apart. Today, because of past and prescnt abuses, the Blackwater Canyon ecosystem stands out as an essential tiagrtient of a greater landscape. Given the Cheat Mountain salamander's extremely limited rang;, protection to its Canyon home is vital the species continued survival. Ecologically the Blackwater Canyon forest is just beginning to enter its most valuabll: stage, as old-growth forest. If allowed to continue to develop, it will develop into a spectacular and in many ways unique example of old-growth forest ecosystem in the higher elevatilms 0:' West Virginia, that will provide essential nesting habitat for such neotropical migrants as Blackbuniian, black-throated green and magnoIia warblers. The forests of West Viginia provide critical habitat for neotropicnl birds. The accelerating exploitation of West Virginia forests undcrway drives these birds f?om their nesting grounds. 3045629093 -> ROSS & DePAULO.PLLC; Page 8 Recelvea:‘ JlEC-,06,-@@, 721 e1100 12 :2012:47; PM ROSS & DEPAULO, PLLC 3045629093 P.08
4 an area that has outstanding scenic qualities such as dramatic topographic features, unusual contrasts in landforms or vegetation, spectacular vislas, or other special landscape featirres;
The Canyon was formed over millennia by the Blackwater River. which originates as a placid streaoi meandering through the Canaan Valley wetlands. As the Blackwater enters Blackwater Falls State Park, the tea-colored water picks up speed and cuts through sandstone rock. In the middle of the Park the Blackwater drops 57 fkr at Blackwater Falls. These ralls mark the upper end of the Blackwater Canyon, and atiract 750,000 tourists each year. Scenic views of the Canyon can be seen fiom Pendletoll Point, the Lodge at the State Park, the Park’s Gentle Trail and Lindy Point. The most spectacular view of the Canyon is from Lindy Point, 1 mile outside the Park boundary, offthe Canaan Loop Road (FS #13). The world-class panorama ofrered by this vista, of miles ofrindeveloped forested plateau, and a plummeting river Canyon, is used in official state tourism video and tourisdeconomic development litemwe shown around the world. The Blackwater River flows 2 miles through the stecp-sided Canyon, cutting 525 feet deep within the Park. One mile west of the Park boundary, the North Fork of the Blackwater River joins the main stem of the river. For the next eight miles, the . Blackwater River is one continuous rapid (highly prized by kayakers) until il it?dcheS tRc Dry Fork River at Hendricks. The Blackwater Canyon was recommended for status as a National Natiiral Landmark in the 1970s because: “The ahsence of man’s interference in the Canyon’s depths, except for the railway in the lower part of the gorge, make this gorp unique Tf e inaccessibility of thc Canyon depths gives wildlife almost complete protection We recommend this area for Landmark status because of it outstanding scenic qualities and its educational values.” (Report for Site ff39, prcpzlred by Charles Bear, WVU Professor of Biology.) The Blackwater River in the Canyon has also been recognized by governmen1 agencies and has been nominated for Wild and Scenic Rivers status. The Monongehela \ National Forest Study of Wild and Scenic Rivers (1995) states: ‘The entire Canyon olkrs outstanding scenic views related to steep topography, rock outcrops, streamside waterfalls, and the continuous cascade of the river itself.”
Recreational Area examDles:
8 a natural or cultural feature that provides a special setting for a variety of recreational activities different from those available at the local or rcgiond IeveI:
The scenic beauty of the Canyon, including views fiom Lindy Point, Pcndltton Point and the Blackwater Falls State Park Lodge, has long graced the cavers of state publications circulated to attract tourists and economic development. The view frot 11 Lindy Point is unsurpassed in the area, and justifiably famous. The Point has been the scene of numerous weddings. 3045629093 -=- ROSS & DePAULO-PLLC; Page 9 Received: 12/ 6/00 12:47; 3045429093 P.09 ROSS & DEC--84~08 .12:20 PM DEPAULO2PLLC
The Canyon itself is also famous for providing the longest continuos whitewater rapid in the West Virginia, water so wild it is only suited for expert kayakers who tlock tlJ the challenge of negotiating the Blackwater River in its Canyon stretch. In the Canitan Valley above the Canyon, the Blackwater River draws canoers who paddle its placid waters to observe wildlife. Mountain biking the Canyon's rail-trail is very popular in sunimcr. In winter the trdl is used for cross-country skiing arid snowshoeing.Fishing, camping, hiking and caving are some of the activities that attract visitors to the Canyon and the Blackwater Falls State Park, The Blackwater Canyon offers some of the most challcnging hunting in West Virginia. The size and the steepness of the canyvri walls, combined with the rocky nutcrops and dense vegetation, present a challenge that the most adept hunters crave Th: Canyon has been noted for its black bear hunting, but in this remote areas the bears definitely have the advantage, Other species hunted iii the Canyon include ruffed grouse wild turkey, and varying hare. Due to its remoteness, the Canyon is considered a trophy buck huntirig area. Blackwater Canyon offers great variety for nature study. Forest types range from the northern hardwood forest at the toy to the mixed mesophytic forest at the bottom of the Canyon. Rock outcrops, boulder fields, caves, mountain Streams and waterfalls, rhododendron hells, the riparian corridor of the Blackwater, the deep cover of the older forest and the edge ecotonc along the sunny rail trail provide a variety of habitats for plants and animals.
0 a spacious area that is located near a major population center with thc potential to provide exceptional recreational opportunities and to ser.*c visitors from around the Nation rather than solely from the immediate vicinity:
The Blackwntcr Canyon is under three hours drive from Washington, DC. 11 has the potential to be a National Park within a day's drive for millions of East Coast dwellers. The area is already very popular among mountain bikers, canoers, kayakers, i hikers, campers, hunters and others.
an area that protects a unique recreation resource that is scarce and disappearing in a rnulti-state region such as an outstanding recreational river, a uiiiqiie niariti me environment or coastline, or a unique scenic area:
The Blackwater Canyon's scenic views are unparalleled in the area, 'The view in autumn is spectacular, and serves more widespread fame.
a resource that is a unique combination of natural, cultural, and recrwtion features that collectively offer outstanding opportunities for public uxand enjoyment even though each feature might not individually be considered nationally significant: Page 10 ~04562~093-z ROSS & DePAULO.PLLC; ner;e*veu: IC/ o/uu 1z:lCu; 3045629093 P. 10 ROSS & DEPAULOIPLLC ' DECI06,-00 12:21 PM
The National Forest Service has done the research on the Coketon Industrial Sitt: within Blackwater Canyon and the Blackwater Canyon Railroad Line and has prcpared drxurnents for nomination of the Blackwater Industria1 Area to the National Register of Historic Places. The State Historic Preservation Office has agreed with their assessment of the site and reconmends nomination. The historical aspects of the Canyon Landscape coupled with the aforementioned extensive natural atid recreational resources make the Blackwater Canyon and environs highly suitable and deserving of permanent protcctiou and recognition as a National Park.