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

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1 Meyer Glitzenstein & Crystal 1601 Connecticut Avenue, N.W. Suite 700 Washington, D.C Katherine A. Meyer Telephone (202) Eric R. Glitzenstein Fax (202) Howar M. Crystal William S. Eubanks II Jessica Almy (license in New York) Via Electronic Mail Ms. Laura Hill Assistant Fiel Supervisor U.S. Fish an Willife Service West Virginia Fiel Office 694 Beverly Pike Elkins, WV (304) (fax) September 13, 2010 RE: Scoping Comments On The Fish An Willife Service s Consieration Of An Inciental Take Permit An Habitat Conservation Plan For The Beech Rige Win Project We are writing on behalf of the Animal Welfare Institute ( AWI ) an Davi G. Cowan with regar to the construction an operation of turbines at the Beech Rige win energy facility (the project ) in Greenbrier an Nicholas Counties, West Virginia. More specifically, we are writing to submit comments to the U.S. Fish an Willife Service ( FWS or Service ) on the scoping process that FWS is unertaking in connection with its preparation of an Environmental Impact Statement ( EIS ) analyzing the significant environmental impacts of the Beech Rige project uner the National Environmental Policy Act ( NEPA ), 42 U.S.C AWI an Mr. Cowan brought suit against Beech Rige Energy, LLC an its parent corporation Invenergy, LLC in June Juge Roger Titus of the U.S. District Court for the District of Marylan rule on December 8, 2009 that Beech Rige Energy s win turbine operation was virtually certain to kill an otherwise take feerally enangere Iniana bats in violation of section 9 of the Enangere Species Act ( ESA ), 16 U.S.C Animal Welfare Inst. v. Beech Rige Energy, 675 F. Supp (D. M. 2009). Pursuant to a

2 As a preliminary matter, AWI an Mr. Cowan respectfully urge the Service to conuct its review uner NEPA with respect to the entire Beech Rige win facility s impacts on willife, incluing any alreay operating turbines, as well as all aspects of the project incluing turbines, transmission lines, substations, roas, transformers, an any other relate invasive infrastructure that i not exist prior to Beech Rige Energy s acquisition of the lan on which this project is locate. Likewise, alternative means of accomplishing the project purposes with fewer willife impacts a critical part of the NEPA analysis shoul be consiere for all phases of the project. The alternatives analysis shoul be base on extensive on-site (an potentially off-site) surveying (mist netting, acoustic monitoring, spring emergence stuies, etc.), an shoul consier, among other things, post-construction monitoring, aaptive management techniques, an alternate turbine locations within the project s bounaries that woul result in less significant willife an environmental impacts. I. NEPA Requires That The Service Consier All Direct, Inirect, an Cumulative Impacts of the Beech Rige Win Project. In unertaking its NEPA review, the Service must analyze all irect, inirect, an cumulative impacts on willife. See, e.g., 42 U.S.C. 4332(2)(c); TOMAC v. Norton, 433 F (D.C. Cir. 2006). Direct effects are cause by the action an occur at the same time an place. 40 C.F.R (a). Inirect effects are cause by the action an are later in time or farther remove in istance, but are still reasonably foreseeable. I (b). Cumulative impacts are impact[s] on the environment which result[] from the incremental impact of the action when ae to other past, present, an reasonably foreseeable future actions regarless of what agency (Feeral or non-feeral) or person unertakes such other actions... [an] can result from iniviually minor but collectively significant actions taking place over a perio of time. I Direct willife impacts implicate by the Beech Rige win project inclue significant impacts to various unliste bat species (Hoary bat, Eastern re bat, Silver-haire bat, Tri-colore bat, Big brown bat, Little brown bat, Eastern small-foote bat, an Northern long-eare bat) because of the well-ocumente mortality of bats ue to turbine collision an barotrauma. In aition to unliste species, there is particular concern here about irect impacts to feerally enangere Iniana bats, whose presence on the project site has been confirme through acoustic ata, see, e.g., 675 F. Supp , an there might be similar impacts to feerally enangere Virginia big-eare bats (which coul be etermine through rigorous on-site monitoring). Special emphasis shoul be place on the Beech Rige project s effects on cave-welling species, incluing Iniana bats an little brown bats, because of the precipitous ecline in their subsequent stipulation between the parties, AWI an Davi Cowan may participate in this NEPA process an relate processes uner section 10 of the ESA to ensure that willife impacts are fully analyze an appropriately mitigate an minimize before further construction an operation procees. 2

3 population numbers ue to White Nose Synrome ( WNS ). See, e.g., Frick, et al., An Emerging Disease Causes Regional Population Collapse of a Common North American Bat Species, SCIENCE, Vol. 329, pp (Aug. 6, 2010). It shoul also be note that a petition has been submitte to list the Eastern small-foote bat an the Northern long-eare bat uner the ESA, which might have some impact on the Service s analysis of bat impacts here. See Center for Biological Diversity (Jan. 21, 2010), otisleibii-myotisseptentrionalis.pf. 2 Further, there is much evience in the scientific literature inicating that birs, an particularly eagles an other raptors, are kille an otherwise harme by win turbines. If surveys or historical FWS or WVDNR recors inicate presence of such bir species on this project site, the irect an inirect impacts implicate by the project must be analyze in the Service s NEPA ocumentation. In aition, assuming evience inicates the presence of bir species on the project site, the Service shoul analyze in its NEPA review compliance with other environmental statutes uner its jurisiction incluing the Migratory Bir Treaty Act an the Bal an Golen Eagle Protection Act. Not only shoul irect impacts to all bat (an bir) species resiing in this area be consiere an analyze in an EIS, but so too shoul the impacts to their habitat that is critical to proper ecosystem functioning an species survival by avoiing isruption of essential biological behaviors. Within the project footprint, for example, many acres of foreste habitat were cleare to make way for the project s turbines, roas, an relate infrastructure activities that likely impacte (an still impact) bats an birs in the area through averse moification an fragmentation. In aition to irect an inirect effects, there exist significant cumulative impacts with respect to the Beech Rige win project that must be evaluate thoroughly in an EIS. Most importantly, the Service shoul analyze the cumulative impacts of the Beech Rige win project on bats an migratory birs when viewe in conjunction with all other existing an planne win projects in the eastern Unite States, an particularly in the Appalachian corrior. There are currently hunres of win projects operating in this region, an many more planne for construction, but the net effect of the rapi proliferation of win energy in this region (which unisputely has the highest turbine-bat mortality in the nation) is manifest in a aunting gauntlet of win turbines that bats, birs, an other migratory species must traverse each year uring spring an fall migration. This ever-more-ifficult migration path poses grave risks to bat 2 Even a conservative estimate by the eveloper s own environmental consultant projecte approximately 6,746 annual bat eaths from the Beech Rige win project, an leaing bat biologists expect the actual bat mortality rate to be approximately ouble that amount (assuming no effective aaptive management an other mitigation measures are in place). 675 F. Supp. 2 at 550 n.12. 3

4 an bir populations, an such a significant impact must be analyze an mitigate here particularly consiering that the estimate bat mortality preicte by the eveloper s own consultant was the highest estimate for any win project ever propose in the Unite States. 3 Other cumulative impacts that must necessarily be evaluate as part of the Beech Rige EIS inclue non-win energy projects (e.g., timber projects, strip mines, resiential or commercial evelopment, etc.) in the region that impact bats, birs, an other Beech Rigeaffecte willife, an the effects of those projects on willife an species habitat. Aitionally, with respect to bats, WNS an its evastating effects must be thoroughly consiere in evaluating the level of acceptable take for any liste bat species affecte by the isease to ensure that species jeopary is not likely to occur uner the emergency WNS circumstances. This is of particular concern because WNS-affecte bats are much more susceptible to turbine collisions an barotrauma ue to compromise flying ability an increase fatigue. The effects of WNS, in conjunction with an array of win turbines throughout the region, coul have evastating effects on local an regional bat populations, an thus effective mitigation of these impacts is crucial. II. Alternatives, Monitoring, an Mitigation Measures NEPA requires the Service to rigorously an objectively evaluate all reasonable alternatives to the propose action, an the alternatives analysis is consiere the heart of the environmental impact statement. 40 C.F.R In aition, the EIS shoul [i]nclue appropriate mitigation measures not alreay inclue in the propose action or alternatives. I (f). The Service has inicate that [t]he alternatives to be consiere for analysis in the EIS may inclue: Variations in the scope of covere activities; variations in curtailment of win turbine operations; variations in the location, amount, an type of conservation; variations in permit uration; variations in monitoring the effectiveness of permit conitions; or a combination of these elements. We will consier other reasonable project alternatives recommene uring this scoping process in orer to evelop a full range of alternatives. 75 Fe. Reg , AWI an Mr. Cowan concur with the Service that all of these propose variations an alternatives shoul be consiere in the EIS. Inee, AWI an Mr. Cowan provie preliminary 3 Juge Titus recognize the long istances travele by enangere Iniana bats, an relie on that as one basis for his ruling, citing Hellhole Cave (more than 70 miles from the project site) as an example of a cave with bats that coul be harme by this project. 675 F. Supp. 2 at 568. Accoringly, it is imperative that an EIS here fully consier the implications of longistance migratory travel an how the current an future configuration of turbines throughout the region will impact bats an birs, an what mitigation measures must be taken here to ensure the continue viability of these species. 4

5 comments to the Service on May 19, 2010 relate to many of these topics (monitoring, conservation, etc.), an will again inclue these comments as part of this letter. See Attachment 1. The comments were create in conjunction with leaing bat biologists an the comments incorporate the best available science in the fiel of bat biology an ecology (as of late May 2010). That attachment is hereby incorporate by reference as part of these scoping comments. Specifically, in aition to the alternatives ientifie by the Service in the Feeral Register notice, AWI an Mr. Cowan urge the Service to analyze the implementation of rigorous an inepenent bat an bir presence monitoring using technologies incluing acoustic etection (AnaBat), mist netting, springtime emergence stuies, an other tools for etecting presence of bats, birs, an other species on the project site. Such surveys an stuies woul necessarily inform the Service s ecisionmaking on an ITP/HCP, an woul ensure that all environmental impacts an reasonable alternatives are consiere in an EIS. Also, preconstruction monitoring is essential for aequately ientifying where on the project site the highest levels of bat an bir presence occur in orer to minimize risks to willife. 4 Moreover, various aaptive management an post-construction monitoring regimes shoul be analyze in the alternatives section of the EIS, an ultimately aopte to minimize an mitigate the impact of expecte takes. As our May 19 comments highlight, there are various willife-protective mechanisms incluing, but not limite to, curtailment of turbines uring migration perios, the application of ifferent cut-in spees than those that woul otherwise be use, an the implementation of time-of-year an/or time-of-ay turbine operational restrictions (similar to those impose by Juge Titus), etc. that must be consiere in minimizing the impacts to liste an unliste bats, birs, an other willife species in the area. See, e.g., Attachment Pursuant to a stipulation entere into by AWI, Mr. Cowan, Beech Rige Energy, an Invenergy, the project s bounaries have been restricte in orer to ameliorate impacts on Iniana bats. See Attachment 2. As such, there are certain turbine lines that were originally consiere by the eveloper where, pursuant to stipulation by the parties, no turbine construction can now occur, meaning that any turbine construction an operation authorize uner an ITP must fall within the project s bounaries as efine by the stipulation an any attachments. Within these agree-on bounaries, the Service shoul evaluate a full range of siting an other alternatives for minimizing an mitigating project impacts on willife, an on Iniana bats in particular. 5 AWI an Mr. Cowan recently consulte with the bat biologists who serve as experts at trial about various alternatives that shoul be consiere in the NEPA an ESA review here. Of particular importance, the biologists explaine that alternative cut-in spees consiere particularly uring spring an fall migration shoul focus heavily on cut-in spees of 5 meters/secon or higher, which appear to better minimize bat impacts than lower cut-in spees. 5

6 Not only are such timing restrictions an other minimization an mitigation measures expressly contemplate in the Congressional manate for ITPs uner the ESA, see 16 U.S.C. 1539(a)(2)(A)(ii), (iv), but they are also an important part of the NEPA process. E.g., 40 C.F.R (explaining that [m]itigation an other conitions establishe in the [EIS]... shall be implemente by the lea agency... [as] appropriate conitions in grants, permits or other approvals ). Accoringly, the EIS shoul consier appropriate mitigation measures base on scientifically efensible an inepenently create protocols to minimize the risk of harm to bats, birs, an other willife in the region. The Service shoul also analyze other means of offsetting unavoiable impacts, incluing but not limite to funing research on WNS an purchasing an protecting important off-site bat habitat. CONCLUSION Please let us know if you have any questions about the comments provie herein. We look forwar to continuing to work with the Service an the permit applicant in a cooperative an collaborative manner throughout this process. Sincerely, /s/ William S. Eubanks II Eric R. Glitzenstein 6

7 ATTACHMENT 1

8 Meyer Glitzenstein & Crystal 1601 Connecticut Avenue, N.W. Suite 700 Washington, D.C Katherine A. Meyer Telephone (202) Eric R. Glitzenstein Fax (202) Howar M. Crystal Joshua R. Stebbins William S. Eubanks II Jessica Almy (license in New York) By U.S. Mail & Electronic Mail Dave Groberg, Vice Presient Invenergy LLC 51 Monroe Street, Suite 1604 Rockville, MD Laura Hill U.S. Fish an Willife Service West Virginia Fiel Office 694 Beverly Pike Elkins, WV May 19, 2010 Re: The Inciental Take Permit Process For The Beech Rige Win Project Dear Mr. Groberg an Ms. Hill: Pursuant to the parties January 26, 2010 Stipulation, which provies that Plaintiffs Animal Welfare Institute ( AWI ) an Davi Cowan may participate in the Inciental Take Permit/Habitat Conservation Plan process ( ITP process ), an that they will use best efforts to play a constructive, cooperative role in the [p]rocess by making their views on pertinent issues (e.g., monitoring, aaptive management) known to Defenants an/or the Service as early in the ITP Process as practicable, Stipulation 7, we are proviing the following initial views on behalf of AWI an Mr. Cowan. These are preliminary comments on primary issues of concern that Plaintiffs believe shoul be consiere by the Service in processing any ITP/HCP application for the Beech Rige Win Project. They were evelope in consultation with the bat experts who testifie at the trial in this case, an are base on the best available science known at this time.

9 The Following Pre-ITP/HCP Surveys Shoul Be Conucte To Determine Bat Concentrations On The Project Site. A minimum of one full year (spring, summer, an fall) of surveys shoul be conucte on the project site to etermine a baseline of bat activity; 1 Surveys shoul incorporate appropriate technologies, incluing mist netting, acoustic etection, an springtime emergence raiotracking from nearby hibernacula; Such technologies shoul be eploye in all available habitats to analyze habitat use; If Iniana bat roost trees are locate on the project site, such trees shoul be monitore for one year to etermine the extent of Iniana bat use of those trees; Such surveys shoul be conucte by, or at a minimum shoul incorporate, inepenent scientists not retaine as full-time environmental consultants. 2 The Following Monitoring An Carcass Searches Shoul Be Implemente During The ITP/HCP Process. Beech Rige Energy shoul conuct regular bir an bat carcass searches; Searches shoul be conucte on at least 50% of currently operating turbines to ensure an aequate sample size; Searches shoul be conucte on selecte turbines at least every four ays, but searches shoul be conucte at least every two ays uring the fall migration perio when more eaths are known to occur; 1 If temperatures an/or precipitation for the baseline year surveye eviate significantly from averages for the region, a secon year of baseline surveys shoul also be conucte to account for the well-ocumente shifts in temporal an spatial istribution of bats base on meteorological isturbances. 2 Plaintiffs recommenation of only one year of pre-construction surveys here shoul not be consiere an inication of Plaintiffs expectation for pre-construction surveys at other win facilities. Rather, Plaintiffs strongly believe that a minimum of three years of pre-construction surveys shoul typically be conucte before a win project begins construction consistent with the Service s 2003 Guielines an the Service s formal recommenations to Beech Rige Energy in 2006 an However, Plaintiffs recommen only one year (spring, summer, an fall) of pre-construction surveys here because of the unique timing an other consierations pertinent to this project, incluing that some turbines are alreay operating, the Court has alreay rule that the project will take Iniana bats, an an ITP process is being pursue. 2

10 An appropriate carcass removal/preation stuy shoul be conucte to etermine the number of bir an bat carcasses remove by terrestrial an avian preators; If any bat carcasses are foun, they shoul be sent for external ientification by Craig Stihler or similar qualifie inepenent bat biologist; If any bir carcasses are foun, they shoul be positively ientifie by a qualifie ornithologist or institution (e.g., West Virginia Department of Natural Resources). If FWS Conclues That The Level Of Take Will Not Jeoparize The Species, The Following Conservation Measures Shoul Be Implemente To Offset Takes In An HCP. Beech Rige Energy shoul provie aequate funing to qualifie scientists an/or acaemic institutions to research white-nose synrome ( WNS ) an to stuy how WNS in combination with win turbine mortalities impacts bat population health, viability, ynamics, survival, an recovery potential; Beech Rige Energy shoul lease an/or purchase property near local Iniana bat hibernacula an plant potential roost trees to provie bats with alternate habitat that may reuce the use of roost trees at the project site an nearer the operational turbines; Beech Rige shoul purchase existing property that contains appropriate roost trees an, through conservation easements or similar instruments, ensure that such habitat is protecte in perpetuity (at least until the project is no longer operational); Any other conservation measures that may be appropriate an/or that are recommene by the Service an/or inepenent an qualifie bat experts to offset anticipate Iniana bat eaths an injuries shoul be consiere. If FWS Conclues That The Level Of Take Will Not Jeoparize The Species, The Following Post-ITP Monitoring an Carcass Searches Shoul Be Implemente. The ITP shoul require a minimum of three years of post-itp monitoring, with the possibility of extening such monitoring, epening on the number of ocumente bir an bat eaths, an, in particular, Iniana bat eaths; Carcass searches shoul occur on at least 50% of operating turbines; 3 In Year 1, carcass searches shoul occur at least every three ays, reuce to aily searches uring fall migration, unless the previously conucte carcass removal/preation stuy inicates that more frequent searches are necessary; 3 While our experts believe that 50% is the absolute minimum number of turbines that shoul be searche to ensure an aequate sample size, Plaintiffs an their experts hope that Beech Rige Energy commits to searching all turbines for bat carcasses if it obtains an ITP consiering the rarity of Iniana bats an the low searcher efficiency. 3

11 After Year 1, a searcher efficiency shoul be establishe base on Year 1 ata, an a per-species mortality estimate shoul be etermine (triggering aaptive management regimes if mortality rates meet or excee levels set in the ITP); Areas immeiately ajacent to turbines shoul either be plante in short grass, or covere with gravel, making carcass ientification more feasible; Turbines selecte in Year 1 shoul, to the extent practicable, come from ifferent areas an turbine lines within the project; Carcass searches will continue in Years 2-3, but the sample size an frequency shoul be epenent on the finings of Year 1 an on the carcass removal/preation stuy previously conucte; Because bats move frequently, a selecte turbine in a given year shoul be monitore for that entire year because of geographical movement; If any bat carcasses are foun, they shoul be sent for external ientification by Craig Stihler of the West Virginia Department of Natural Resources or similar qualifie inepenent bat biologist, an if any bir carcasses are foun, incluing birs potentially protecte uner the ESA or the MBTA, such carcasses shoul be positively ientifie by a qualifie ornithologist. If An ITP Is Grante, It Shoul Contain The Following Post-ITP Operational Constraints. An appropriate cut-in spee, to be etermine base on the best available peer-reviewe scientific evience, shoul be implemente in spring, summer, an fall uring nighttime hours to minimize bat mortalities. If An ITP Is Grante, It Shoul Require The Following Post-ITP Aaptive Management Measures. In the event that Beech Rige Energy excees the inciental take number authorize by the Service in an ITP, if grante, or in the event of unreasonably high bat or bir mortality in general, Beech Rige Energy shoul be require to implement further operational constraints to reuce bat an bir mortality (i.e., curtailing all operation uring nighttime hours in the fall migration perio, ajusting operational times an turbine spee uring bat an bir migrations, or moifying cut-in spee as recommene above). 4 4 Plaintiffs note that these primary issues of concern are base on what is currently known at this time. However, in the event that new information arises in the course of the Service s review of the ITP/HCP (for example, new an important biological ata on Iniana bats or other willife species affecte by this project), Plaintiffs will make their views known on 4

12

13 ATTACHMENT 2

14 Printing Date: Friay, January 15, 2010 Case 8:09-cv RWT Document 75-2 File: G:\ProjectFiles\US\WV\BeechRige\beechrige_turbine_summary_ mx File 01/19/10 Page 1 of 1 3 C Jack o The Lo Pole R Clearc o p G-8 G-7 G-14 G-13 G-6 M G-15 Ol F-3 F-4 D-5 B-8 CR-5 /7 Legen e Ch u stn -9 CR /3 Phase 1 Turbine Layout (57 Turbines) R Delta Phase 2 Turbine Layout (32 Turbines) Abanone Turbine Post-ITP Turbine Area R ob thers Kn -5-5 Beech Rige Win Energy Center, Greenbrier County, West Virginia 3 Cou nty CR Exhibit A D-6 ay W A-15 A-14 A-13 A-14 A-12 A-11 A-10 A-9 A-8 A-7 A-6 A-5 A-4 A-3 A-2 A-1 Kyle R e CR Les Mc c lun g Ol Fi el Fie l B-7 B-6 B-5 B-4 F-8 A-19 A-18 B-3 F-7 A-16 A-17 B-1 B-2 F-5 F-6 Kyle y Sk Pe Seconary Roa Local Roa Lu - ss Le CR - 1 r cc l Ka y D-8 D-7 Gl icks e G-10 G-11 G-12 ung R Ry G-9 D-9 3 / G-4 G-5 le Po 1 CR G-1 G-2 H-6 H-7 H-7 G-3 H-4 H-8 H-5 H-9 H-3 H-1 H-2 D-11 CR -5/6 J-6 J-7 y Wa J-5 D-13 Ri ge J-9 J-3 D-12 D-2 D-4 D-3 t J-4 n son R u J-8 2,500 CR-5/3 J-1 J-2 J-10 Kessler Eck Trap 0 Feet 1 0/ Rige R J-11 2,500 5/ I-2 I-1 Eu ke Co le 39 /3 un ty -1 / 1 W Wolf Pen 9/3 CR Co I-5 I-6 I-4 R an m I-3 D-16 D-15 D-14 Sky R-3 E-22 E-20 E-21 E-18 E-19 E-17 E-16 E-15 CR -1 E-13 E-14 E-12 E-25 E-26 E-11 E-11 E-24 E-23 C-6 E-10 E-9 E-7 C-5 E-8 E-5 E-6 E-1 E-2 C-4 E-3 C-1 C-2 E-4 C-3 I-7 Delta CR44 / Prepare By: K. Hanusiak Rev. 03 January 15, 2010 One South Wacker Drive Suite 1900 Chicago, Illinois (312)