notice of violations of section 7 of the endangered species act and the

8/3/2019 Notice of Violations of Section 7 of the Endangered Species Act and The

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Meyer Glitzenstein & Crystal1601 Connecticut Avenue, N.W.

Suite 700Washington, D.C. 20009-1056

Katherine A. Meyer Telephone (202) 588-5206Eric R. Glitzenstein Fax (202) 588-5049Howard M. Crystal [email protected] S. Eubanks IIJessica Almy

November 3, 2011

Via Certified Mail

Kenneth Salazar, Secretary

U.S. Department of the Interior

1849 C Street, N.W.

Washington DC 20240

Daniel M. Ashe, Director

U.S. Fish and Wildlife Service

1849 C Street, N.W.

Washington DC 20240

Major General Merdith W.B. Temple

Acting Commanding General

U.S. Army Corps of Engineers

441 G. Street, NW

Washington, DC 203141000

Shaffer Mountain Wind LLC

10 Penn Center

1801 Market Street

Suite 2700

Philadelphia, PA 19103

Gamesa Energy USA

c/o Alyssa Edwards

Atlantic Region

1 South Broad Street, 20th Floor

Philadelphia, PA 19107


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Re: Notice Of Violations Of Section 7 Of The Endangered Species Act And The

Acts Implementing Regulations In Connection With The Proposed Shaffer

Mountain Wind Project.

On behalf of the Allegheny Plateau Audubon Society, the Allegheny Front Hawk Watch,

Sensible Wind Solutions, the Mount Laurel Chapter of Trout Unlimited, Jack Buchan, andThomas Dick, we hereby provide formal notice, pursuant to section 11(g) of the Endangered

Species Act (ESA), 16 U.S.C. 1540(g), that the U.S. Fish and Wildlife Service (FWS or

Service) has violated section 7 of the ESA, 16 U.S.C. 1536(a)(2), by rendering a Biological

Opinion that failed to rely on the best available scientific evidence, and that authorizes lethal

turbine operation in an extremely sensitive biological location for the imperiled Indiana bat,

which directly contravenes the Services duty to act under the ESAs institutionalization of

caution mandate when addressing impacts to a highly endangered species. In the event that the

U.S. Army Corps of Engineers relies in any way upon this scientifically and legally

impermissible Biological Opinion in granting a Clean Water Act section 404 permit to Shaffer

Mountain Wind LLC (or Gamesa Energy USA), the Corps too will be in violation of the ESA

and its implementing regulations.

The coalition submitting this letter represents a broad spectrum of conservation interests,

and has previously provided various formal notice letters and comments bearing on agency

decisionmaking for the Shaffer Mountain Wind Project (the project). Those prior letters and

comments which you all have in your records include the February 9, 2011 Comments on

FWSs Draft Biological Opinion; June 29, 2010 Comments on the developers application for a

section 404 permit under the Clean Water Act; the April 5, 2010 Notice Letter; the March 10,

2010 Notice Letter; the February 23, 2009 Notice Letter; the October 21, 2008 Notice Letter;

and the April 15, 2008 Notice Letter, as well as all attachments to those letters and comments.

Those letters are hereby incorporated by reference.

INTRODUCTION

Shaffer Mountain Wind LLC proposes to develop a 30-turbine industrial wind energy

project in Somerset and Bedford Counties in Pennsylvania. That project cannot lawfully proceed

without various federal authorizations, including a section 404 permit from the Corps and a

supporting Biological Opinion from the Service.

Because this project will likely kill and otherwise take the highly imperiled Indiana bat

(Myotis sodalis), the Corps and the Service entered into formal consultation under section 7 of

the Endangered Species Act (ESA), 16 U.S.C. 1536, and, on September 27, 2011, the

Service issued to the Corps a final Biological Opinion (BO) analyzing the projects impacts tothe species. The Biological Opinion strongly reinforces our comments to date that have

explained the significant and severe effects that the proposed project will inevitably have on

Indiana bats, by introducing a persistent source of additive mortality to a landscape occupied by

an Indiana bat maternity colony. BO at 74. However, the Biological Opinion does not account

for highly pertinent scientific evidence that necessarily should have been considered before

rendering a Biological Opinion, nor does the Biological Opinion in any way address serious

biological concerns raised by expert bat scientists in declarations attached to our February 9,


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3

2011 letter. Accordingly, the Biological Opinion is unlawful as currently written, and we

request that the Service retract the Opinion, and that the Corps not rely on the Opinion in any

way, until and unless the Service addresses these vitally important issues in a legally permissible

manner as mandated by the ESA and its implementing regulations.

DISCUSSION

I. THE FINAL BIOLOGICAL OPINION IS NOT BASED ON THE BEST

AVAILABLE SCIENCE, AND FAILED TO PROVIDE THE

INSTITUTIONALIZATION OF CAUTION REQUIRED BY THE ESA.

In the ESA, Congress mandated that the Services consultation efforts including the

preparation of a Biological Opinion must be based on the best scientific . . . data available.

16 U.S.C. 1536(a)(2). Based on a review of the Services September 27, 2011 Biological

Opinion, it is clear that several key pieces of available scientific evidence have been entirely

overlooked or discarded by the Service in rendering its authorization for this project to proceed

in a way that will be lethal not only for thousands of non-listed birds and bats, but also fordozens of members of an endangered bat species already threatened by a rapidly spreading and

catastrophic disease in White-Nose Syndrome (WNS). Accordingly, at bare minimum, the

Service must reinitiate consultation to address the errors identified below. 50 C.F.R. 402.16.

A. The Service Failed To Consider Macrositing Or Micrositing Changes To The

Project Layout, And Thus Disregarded Without Explanation Persuasive

Declarations By Leading Bat Biologists.

At the outset, the glaring omission ofany discussion in the Biological Opinion about

potential macrositing or micrositing changes to the projects layout and design runs counter to

the ESAs best available science mandate in section 7. See 16 U.S.C. 1536(a)(2). In ourFebruary 9, 2011 letter, we explained at length that it was legally inappropriate for the Service to

sidestep[] . . . a vital wildlife conservation option the avoidance, relocation, or significant

modification of the proposed siting location and determin[e] to instead jump immediately to

the implicit conclusion that minimization and mitigation of take is the preferred manner of

addressing the devastating effects to an Indiana bat maternity colony (not to mention male

Indiana bats). Circumventing the critical threshold question of whether a wind power project

should be located at this site at all in light of the exigent risks the project poses to an Indiana bat

maternity colony undermines accepted principles within the independent scientific community,

but also directly contravenes section 7 of the ESA and the federal governments own insistence

that critical wildlife resources must play a vital role in threshold siting decision for wind

projects. The following are examples of extremely crucial scientific evidence that was madeavailable to the Service bearing on this issue that the Service apparently discarded, and certainly

afforded no consideration or discussion in the Biological Opinion, in violation of the ESA.

As leading bat ecologist Dr. Thomas H. Kunz opined in a June 27, 2010 declaration,

wind project developers should not site projects in or near known Indiana bat maternity


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1 Department of Interior, Wind Turbine Guidelines Advisory Committee Recommendations to

the Secretary of the Interior at 17-18, http://www.fws.gov/habitatconservation/windpower/

Wind_Turbine_ Guidelines_Advisory_Committee_Recommendations_Secretary.pdf

(recommending that consideration of the area [as a siting location] may be abandoned if a

maternity roost[] is found to be present on a site); Pennsylvania Game Commission, Wind

Energy Voluntary Cooperative Agreement at 31, http://www.portal.state.pa.us/portal/

server.pt?open=514&objID=613068&mode=2 (recommending site abandonment as a key

practice to avoid high-risk harms to bats and other wildlife); American Society of

Mammalogists, Unanimous Resolution, available at http://www.mammalogy.org/committees

/commresolutions/WindEnergyResolution.pdf (strongly recommending [s]iting and placement

that avoids bat hibernation, breeding, and maternity colonies) (emphases added; Association of

Fish and Wildlife Agencies, Wind Position, available at http://jjcdev.com/~fishwild/?section=

pdfs/WindPower/ AFWA_wind_position_2008.pdf ([d]iscourag[ing] the siting of wind

facilities in biologically significant areas); Wildlife Society, Wind Position Statement, available

at http://joomla.wildlife.org/documents/ positionstatements/Wind_Energy.pdf ([a]dvocat[ing]

for the avoidance of siting wind facilities in high-risk areas that are determined based on the best

available science) (emphasis added); North American Society for Bat Research, Resolution on

Wind (emphasis added), available at http://www.nasbr.org/resolution3.html (recommending

[a]voiding wind energy development at sites proposed by developers that are identified as high-

risk by bat experts using the best science available).

4

colonies because those colonies are the key to the species survival and potential recovery [from

WNS]. Attachment 1 6. Dr. Kunz further opined that the scientific evidence indicates that

this project as planned is very likely to jeopardize the survival of the Indiana bat, [and thus] the

developer should consider various alternate locations that do not present such exigent risks to

Indiana bats. Id. 7 (emphases added). In addition, bat biologist Dr. Michael R. Gannon, who

has extensive expertise regarding Indiana bats and other bat species in Pennsylvania, opined thatthere is an unprecedented risk to Indiana bats at the Shaffer Mountain project site.

Attachment 2 4 (emphasis added). Dr. Gannon also concluded that this project would

jeopardize the species survival and recovery efforts . . . [and therefore] less environmentally

damaging alternate locations should be considered and ultimately adopted. Id. 7-8

(emphases added); see also Attachment 3 6 (opining that a wind power project that poses

substantial risks to a maternity colony, as this one does, likely jeopardizes the continued

existence of the species and certainly retards its recovery). A third independent bat biologist,

Dr. Lynn Robbins, concurred with the concerns of Drs. Kunz and Gannon, opining that there is

no serious discussion [in the draft Biological Opinion] of the need to at least consider and

compare alternative sites with less risk. Attachment 4 3a (emphases added).

The views of these leading biologists that siting should not occur in the midst of at least

one known Indiana bat maternity colony is in accord with the positions staked out by

independent scientific organizations, as well as the federal and state wildlife agencies involved

here.1 As previously explained, the clear import of these various pronouncements and

recommendations from the scientific community, the PGC, and even the Service itself is that,


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2 In a deposition during a recent federal trial under the ESA examining the impacts of a proposed

wind energy project in West Virginia on Indiana bats, even Dr. Michael Lacki a hired expert

testifying on behalf of the wind energy developer explained that a single death of a female

Indiana bat would be biologically unacceptable because of the importance of maternity colonies,

and that, in his opinion, a single female death would require [s]hutting down turbines entirely.

Attachment 5 at 111-112. Here, not only does the Service purport to authorize the construction

of this project on a site with a known maternity colony, but in doing so the Service adopted an

Adaptive Management Plan developed in conjunction with the developer which allows dozens of

female Indiana bats (and their offspring) to be killed during the life of the project. The Services

conclusion cannot be squared with even the more conservative views of bat biologists within the

scientific community that workfor wind companies, as exemplified by Dr. Lackis testimony on

this subject.

3 Based on our extensive review of various wind projects sited throughout the United States and

particularly within the Appalachian corridor, the proposed project is the only one to pose this

level of risk to Indiana bats by threatening extirpation of a maternity colony. If the exigent

wildlife risks inherent in this project are not enough to compel the Service and the PGC to

require or strongly recommend avoidance of a site to a developer, it is difficult to fathom any

circumstances that would reach the level of urgency to convince the agencies to actually

implement and enforce the strong rhetoric contained in their various guidance documents.

5

while minimization and mitigation measures might be an appropriate response to reduce wildlife

impacts at lower-riskwind energy sites, higher-risksites (such as those with documented

maternity colonies of listed bat species) are simply not appropriate locations for wind turbines at

all because of the magnitude of the harm to listed species that will inevitably result.2

Therefore, at a site which the Service clearly recognizes to be a very high-risk site forIndiana bats, see BO at 43 (finding that this [is] a high-risk zone for bats due to turbine

operation) and the first wind project in the country to threaten the extirpation of a critical

maternity colony for an imperiled species thefirststep in the process should have been, and

still should be, the consideration ofavoidance of this particular site for a wind project altogether.

The Service appeared to recognize this important step in the process in 2007 when [t]he Service

recommendedthat the project be moved to a different location due to the presence of Indiana

bats. BO at 5 (emphases added). However, presumably at the urging of the developer, the

Service quickly jettisoned that biologically defensible approach in favor of a mitigation-only

approach designed merely to mitigate the effects of a project at a patently unacceptable site an

apparently outcome-driven decision which, if implemented without further ESA consultation,

will lead to lethal turbines in an extremely biologically sensitive location with grave impacts tolisted wildlife.3

Indeed, not only would rejection of the proposed site comport with the Services own

policy statements to date recommending avoidance of high-risk locations as well as the Services

2007 explicit recommendation urging that the project be moved elsewhere, but it would also


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6

serve other key public interest purposes in ensuring that this wind project, if built, would have

substantially less impact to wildlife, wetlands, and other ecological resources than currently

anticipated. For example, as we have long pointed out, neither the developer, nor any federal

agency, has ever seriously considered a logical siting alternative located in what appears to be a

less biologically sensitive area several miles from the proposed project, and which is owned by

the same corporation that owns the proposed project area. More detailed information about thatalternate site can be found in our prior letters.

In sum, by failing to expressly consider avoidance of the proposed site as a step in the

section 7 process, the Service has failed to fully assess in the Biological Opinion the impacts of

this project on Indiana bats, and in particular on the on-site maternity colony. This patent legal

violation is underscored by the Services complete failure to consider at all the detailed

declarations of undisputed leading bat biologists (Drs. Kunz, Gannon, and Robbins) who all

independently concluded that this project will in fact cause jeopardy to the on-site maternity

colony, and who therefore recommended that macrositing changes be considered and

implemented to accord with the best available science on Indiana bats and wind energy. That

stark omission which is highlighted by the Biological Opinions Literature Cited section thatdoes not mention any of those declarations, see BO at 81-88 alone requires the Service to

reinitiate consultation to consider and address the serious biological concerns raised by leading

biologists with respect to macrositing and micrositing of this project in a manner that would

significantly alleviate the inherent risk of this project as currently planned. 50 C.F.R.

402.16(b) (requiring reinitiation of consultation where new information reveals effects of the

action that may affect listed species or critical habitat in a manner or to an extent not previously

considered) (emphasis added).

B. The Service Did Not Rely On The Best Available Science In Rendering Its

Biological Opinion, And In Turn, Failed To Explain How The Adaptive

Management Plan Will Ensure Against Jeopardy Of The On-site MaternityColony.

In rendering its Biological Opinion and finding that jeopardy to the on-site maternity

colony will not result from the additive mortality from the Shaffer Mountain Wind Project, the

Service has relied heavily on several key assumptions that the agency concedes are entirely

uncertain, and has also adopted an Adaptive Management Plan developed in conjunction with

the developer that proposes to implement monitoring and other measures that will be wholly

ineffective in measuring the impacts of turbine operation to the on-site maternity colony. By

proceeding based solely on highly speculative and uncertain science, the Service has turned the

ESAs presumption of institutionalized caution on its head, see Tenn. Valley Auth. v. Hill, 437

U.S. 154, 194 (1978), authorizing a project with unknown consequences for a critical maternitycolony of endangered Indiana bats that itself is of unknown size, in violation of the ESA.

In the Biological Opinion, the Service acknowledges that there is indisputable evidence

of a maternity colony in the action area for the project. See, e.g.,BO at 12-13. Indeed, maps

included in the Opinion show that the presumed maternity colony roost tree cluster is adjacent to


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4 The Service appears to recognize that the extirpation of a critically important maternity colony

especially in light of the dramatic decline of Indiana bat populations due to WNS would

result in jeopardy, as that term is defined by the ESA. 50 C.F.R. 402.02 (defining jeopardy as

engag[ing] in an action that reasonably would be expected, directly or indirectly, to reduce

appreciably the likelihood of both the survival and recovery of a listed species in the wild by

reducing the reproduction, numbers, or distribution of that species). That proposition is

supported by leading bat biologists, who have previously opined that adverse impacts to this on-

site maternity colony from turbine operation would jeopardize the species survival and

recovery. Attachment 1 6; Attachment 2 7-8.

7

certain of the proposed turbine locations, and very close in proximity (less than 3 miles) to all of

the proposed turbines, presenting a grave risk to female and juvenile Indiana bats. Id. at 13, 38,

40. At the same time, the Service also explains that, because of the significant threat of WNS,

the Indiana bat summer population in Pennsylvania is expected to decline commensurate with

the decline in regional hibernating populations, [which will] result in a decline in the size and/or

number of maternity colonies. Id. at 37. The Service further acknowledges that [t]urbines willbe distributed in two strings within a heavily-forested, 2x4 mile area, making this a high-risk

zone for bats due to turbine operation. Id. at 43 (emphasis added). As a result, the Service

rightfully concedes that, without operational measures designed to minimize Indiana bat deaths,

turbine operation would probably lead to [the maternity colonys] extirpation, see BO at 60-

61, which would constitute jeopardy to the species and its Appalachian Mountains Recovery

Unit. Cf.id. at 34.4

The Service purports to reconcile these patently contradictory facts with its authorization

to construct the project by relying on an Adaptive Management Plan (AMP) developed in

conjunction with the developer, which requires the wind developer to reduce the risk of

maternity colony extirpation by implementing nondiscretionary take minimization measures,habitat conservation measures, post-construction monitoring, and specified turbine cut-in speeds.

Id. at 94. In the Services apparent view, the developers compliance with the AMP will reduce

mortality levels to the point where the maternity colony will not face extirpation. Seeid. at 74-

79. Despite the Services conclusion that jeopardy will not result to the on-site maternity colony,

the assumptions and methodologies relied on by the Service in rendering that opinion are legally

and scientifically groundless, as explained below.

1. The Service Failed To Consider The Best Available Scientific

Evidence In Estimating The Starting Maternity Colony Population Size.

The Services tenuous non-jeopardy conclusion hinges heavily on the arbitrary andunsupported assumption that there are 50 (or more) adult female Indiana bats that constitute the

on-site maternity colony each summer. As the Service states in several places in the Biological

Opinion, the fatality rate [may] not exceed 2% of the maternity colony annually, which is the

equivalent of one Indiana bat mortality each year, assuming, as the Service did, a starting

maternity colony size of 50. E.g., id. at 11 n.1, 61-62, 63 n.15. The only rationale provided for


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8

assuming that this maternity colony contains 50 adult females is that [t]he average maternity

colony size is 50 to 80 adult females, according to a single pre-WNS study in Indiana where the

speciess population is the densest of any place in the species range. Id. at 16.

However, this assumption of a starting maternity colony size of 50 adult females was not

only adopted in a vacuum absent any site-specific evidence gathered by the developer, its hiredconsultants, or the Service suggesting in any way that there exists a starting size of 50 females,

but it also contradicts well-established scientific principles indicating that maternity colony

populationsfrequently have less than 50 adult females. See, e.g., Attachment 6, J.O. Whitaker &

V. Brack, Jr.,Distribution and Summer Ecology in Indiana, in The Indiana Bat: Biology and

Management of an Endangered Species, at 51-52 (2002) (explaining that some observed

maternity colonies have as few as 16 adult females even in Indiana, which at that time

harbor[ed] ca. 173,000 hibernating Indiana bats, which is 45% of the rangewide total)

(emphasis added); Attachment 7, E.R. Britzke, M.J. Harvey, & Susan C. Loeb,Indiana Bat

Maternity Roosts in the Southern United States, 2 Southeastern Naturalist 235, 235 (2003)

(noting that evidence from band recoveries suggests that most females move north from

hibernacula to establish maternity colonies of 25-100 individuals) (emphasis added);Attachment 8, W.J. Chandler,Audubon Wildlife Report(1989) (explaining that maternity

colonies are composed of several to 50 adult females and their young) (emphasis added).

Moreover, the Services unfounded assumption of a starting population size of 50 adult

females is even more baseless in view of scientific evidence suggesting that maternity colonies

tend to consist offewerIndiana bats as the species populations move away from the population

center of its range in Indiana, Illinois, and Missouri. Indeed, in the few studies to address

maternity colony size in more peripheral areas of the species range, biologists have found

colonies as small as 23, 25, and 30, respectively. See Attachment 7, Britzke, Harvey, & Loeb

(2003) (finding maternity colony sizes of 23 and 25 in the Appalachian region of western North

Carolina and eastern Tennessee); Attachment 9, A. Kurta, S.W. Murray, & D.H. Miller,RoostSelection and Movements Across the Summer Landscape, in The Indiana Bat: Biology and

Management of an Endangered Species, at 118, 118 (2002) (explaining that the [n]umber of

adults at southern roosts [in Indiana and Missouri] frequently exceeded 40 bats, but emergence

counts at northern trees [in Michigan] typically yielded fewer than 30 animals) (emphasis

added). Therefore, considering that the entire state-wide Pennsylvania population of Indiana

bats is relatively small (approximately 1,031 bats), see BO at 22, and because the Shaffer

Mountain Wind Project is proposed for Appalachian ridges very similar to the locations where

one peer-review study observed maternity colonies of only 23 and 25 adult females respectively,

see Attachment 7, Britzke, Harvey, & Loeb (2003), it is highly unlikely based on the best

available scientific evidence that the starting size of the on-site maternity colony here is 50 adult

females.

Indeed, based on FWSs own estimated population number of 1,031 Indiana bats in

Pennsylvania of which it must be presumed that 50%, or 515 bats, are females it would be

impossible to assume a starting population of 50 females because FWS acknowledges that there

are eleven known maternity colonies in Pennsylvania, see BO at 37, which would mean an


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5 The best available scientific evidence also suggests that there are Indiana bat maternity colonies

on the landscape in Pennsylvania that have not yet been located due to limited surveying effort

and financial constraints. See BO at 25 (Because maternity colonies are widely dispersed

during the summer and difficult to locate, it is presumed that all the combined summer survey

efforts have found only a small fraction of the maternity colonies that are thought to exist.).

Assuming, as the Service must in rendering its Biological Opinion, that maternity colonies likely

exist in Pennsylvania in addition to the eleven that have been discovered to date, the average

maternity colony size in Pennsylvania would necessarily decrease proportionately in relation to

the expected number of maternity colonies throughout the State.

9

average of no more than 46 females per colony even with 100% summer residency in the State,

which evidence has proven notto be the case since several Pennsylvania females have been

tracked to maternity colonies in Maryland and West Virginia. Id.5

Accordingly, because an accurate starting colony size is extremely crucial from a

biological perspective in determining how the anticipated additive mortality from the projectswind turbines will impact the maternity colonys long-term survival and recovery, and thus will

determine what level, if any, of additive mortality is acceptable to avoid jeopardy of this

maternity colony, the Services wholesale failure to consider and rely upon the best available

evidence in determining the starting colony size was scientifically erroneous and constitutes a

flagrant violation of section 7 of the ESA.

2. The Services Reliance On The AMP As A Basis For Monitoring

Long-term Surival And Recovery Efforts Of The On-site Maternity

Colony Is Scientifically and Legally Erroneous.

Even assuming the Service had put forth a legitimate scientific rationale for a startingmaternity colony size of 50 adult females which it did not the Biological Opinion is still

invalid because the AMP that the Service relies on to avoid jeopardy does not provide any

assurance that it will in fact be adequate to monitor the size and health of the on-site maternity

colony, and to consequently address any problems before the colony reaches its unknown tipping

point toward jeopardy.

Pursuant to the AMP, the developer is required to conduct certain monitoring (mist

netting and radio-telemetry) of Indiana bats for at least the first five years of turbine operation in

order to account for turbine impacts on the maternity colony. BO at 92. Because Indiana bats

are expected to suffer mortality due to turbine operation, id., the developer must conduct such

monitoring in an attempt to determine to what extent the project affects Indiana bats . . .[including by determining] maternity colony size. Id. at 93. The Service concedes that these

types of monitoring provide no guarantee, much less a reasonable assurance, that they will be

adequate to document and track subtle but vitally important changes to the maternity colonys

population: Monitoring studies have the potential to identify the extent of these effects, and


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6 Because of fission-fusion behavior within a colony, as well as defections to other maternity

colonies, it will be impossible to gauge whether this maternity colony is in fact declining, staying

stable, or growing yearly based on monitoring results. This is an especially precarious situation

because, while the Service has authorized a bat death annually on the assumption of a starting

colony size of 50, that same mortality rate might result in jeopardy if the actual starting size is

10

serve as a means to determine whether the effects of the project on Indiana bats and their habitat

are consistent with those anticipated. Id. (emphasis added).

While mist netting and radio-telemetry can of course provide some valuable information

about bat species in the area and potentially even information about Indiana bats, it is

unreasonable to assume that these monitoring activities will lead to precise information on thematernity colonys population size, and in turn will somehow provide information sufficient to

determine whether the developer has in fact complied with the AMP, and thus the Biological

Opinion, by killing no more than a single adult female each year.

To be clear, the developer has already conducted relatively extensive mist netting and

radio-telemetry on the project site in 2007 and 2008, and yet still does not even know the

location of the maternity colony, much less the size of the maternity colony that will inevitably

be impacted by operating turbines. Id. at 46-47 (noting that the location of the maternity

colony primary roosts remains unknown). That fact alone compels the conclusion that mist

netting and radio-telemetry, while providing crucial information concerning Indiana batpresence

on the site, are inadequate for assessing the subtle population changes that will almost certainlyresult to the maternity colony, specifically where those same monitoring efforts have proven

insufficient to document the precise location of the maternity colony.

Furthermore, assuming the location of the primary maternity roosts were in fact known,

the developer would still have serious difficulty, if not total futility, in accurately measuring the

size of the maternity colony in order to determine long-term effects to the colony as well as

compliance with the AMP. As the scientific literature makes clear, [a]n added difficulty is that

the fission-fusion society of [female Indiana] bats causes population size to fluctuate

unpredictably, even at preferred trees, and determining actual size of a colony will demand

more than a single emergence count at one tree. A. Kurta, S.W. Murray, & D.H. Miller at 128.

Therefore, it is seemingly impossible for the developer here to accurately account for thematernity colonys population from one year to another given the known difficulty of

measuring Indiana bat maternity colony population size in light of the species fission-fusion

behavior and other species characteristics which undermines the entire basis for relying on the

AMP in the first instance. If, as appears to be the case, the impacts to the maternity colony will

not be readily apparent to the Service and the public in real time (or ever) as turbines and WNS

affect the maternity colony population on the ground, it will be impossible for the Service to

reinitiate consultation in a timely manner, in the event that the authorized amount of take is

exceeded. Such a result flies in the face of the ESA, and cannot withstand scrutiny under section

7, and therefore must be revisited.6


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less than 50 or if the colony size drops below 50 at some point in the future but goes undetected

by mist netting and radio-telemetry. Where such a high level of uncertainty exists even when

employing the Services preferred monitoring techniques the Service must decide in favor of

the species by applying an institutionalization of caution and ensuring against jeopardy, but

here has instead decided to roll the dice with a critically imperiled species in a known

biologically sensitive location.

11

3. The Services Arbitrary Imposition Of Take Minimization Measures Is

Not Based On Biological Factors And Therefore Violates The Section 7

Best Available Science Requirement.

Setting aside the glaring errors with respect to the starting maternity colony size and the

inadequacy of post-construction monitoring to ensure against jeopardy of the colony, the Servicehas taken a fundamentally arbitrary approach to minimization measures intended to reduce take

of Indiana bats. During the nighttime period when Indiana bats forage and otherwise use the

landscape, the AMP proposes to entirely shut down the 3 turbines closest to the anticipated

location of the maternity colony. BO at 58 (The three turbines closest to the identified roost

tree cluster would not be operational at all during this period.); see also id. at 61, 91-92. The

other 27 turbines, however, will be operational and will use cut-in speeds of 5.5 meters per

second, which even the Service acknowledges will result in Indiana bat deaths. E.g., id. at 58,

91.

Nowhere in the Biological Opinion did the Service provide any biological evidence or

other justification for why, at the least, more turbines should not be shut down to minimizeIndiana bat mortality and reduce impacts on the on-site maternity colony during nighttime from

April 1 to October 15. Indeed, the maps provided in the Biological Opinion demonstrate the

close proximity of the presumed maternity colony to all 30 turbines, with all turbines falling

within three miles of the colony, and at least 15 turbines (or half the project) falling within

approximately one mile of the colony. Seeid. at 13. But, without explanation, the Service

authorized a more protective measure (non-operation) for the three closest turbines to the

maternity colony, while at the same time authorizing a less protective measure (operation with a

cut-in speed) for the remaining 27 turbines, or 90% of the overall project. There is absolutely

nothing in the Biological Opinion or pertinent scientific literature to suggest that female Indiana

bats (or their offspring) are any less likely to forage a half-mile or mile from their colony than a

quarter-mile from their colony. Indeed, the Service acknowledges that 2.5 miles is themaximum distance that females typically travel from their roosting area to forage. Id. at 57.

Accordingly, considering that 27 turbines (90% of the project) fall within the distance of the

maternity colony that the Service expects to be the typical foraging distance, it is biologically

indefensible to only require non-operation of 3 turbines, or merely 10% of the project when bats

are on the landscape and at risk of mortality.

The arbitrary and wholly unsupported nature of this conclusion is underscored by the fact

that the Biological Opinion and AMP are written so as to neverrequire more than 3 non-


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7 As leading bat biologists have explained, the preservation of every Indiana bat maternity

colony is crucial especially in view of the threat presented by WNS. E.g., Attachment 1 6

([I]t is my scientific opinion that, while each and every Indiana bat might prove critical for

survival and recovery of the species [in light of WNS], maternity colonies are the most

important resource to be protected to further efforts to save this unique and ecologically

beneficial species.) (emphasis added).

12

operational turbines during the period when Indiana bats are active, even if the maternity colony

shifts in the future and is directly adjacent to more than three turbines. Id. at 92. Conversely, if

the maternity colony shifts farther away from the project, the applicant still must retain non-

operational status for the 3 turbines closest to the maternity colony at night between April 1 and

October 15, which we fully support, although we note it to further illustrate the arbitrariness of

selecting the number of turbines based not on factors that are supported by any biologicalevidence of species behavior, but instead on a limited number with no scientific basis. Because

section 7 explicitly requires the Service to avoid jeopardy to listed species by imposing

nondiscretionary terms and conditions in a Biological Opinion that will achieve a non-jeopardy

result in light of available scientific evidence, it was a violation of the Services duties to instead

select take minimization measures that are simply most convenient for a developer but which the

Service has not determined to be biologically adequate to avoid jeopardy based on the available

scientific evidence.

4. The Services Modeling Is Far Too Uncertain To Authorize Routine

Deaths Of Indiana Bats, In Violation Of The ESAs Requirement Of An

Institutionalization Of Caution.

The Services modeling and extrapolation efforts in the Biological Opinion are highly

speculative and fail to take the cautious approach to protecting listed species that is required by

the ESA. Even assuming that the Services use of a starting colony size of 50 adult females was

proper which, again, it was not the Services models are seriously flawed because they fail to

account for the wide range of uncertainty that exists with the recent onset of WNS and the

unknown future of Indiana bats generally, and of this on-site maternity colony specifically. 7

In attempting to determine the appropriate baseline against which to judge impacts of the

proposed project, the Service implemented a basic deterministic model to assess the likely

impacts of turbine operation on the maternity colony. BO at 58-71. The bulk of its modeling which used a simple design . . . [with] the inability to incorporate stochasticity

focused primarily on what are akin to (1) the worst case scenario in which WNS extirpates the

colony in 8-10 years, and (2) the best case scenario in which WNS has no measurable effects on

the colony. Id. at 65-71. In the worst case scenario, FWS concluded that, if WNS has a severe

effect, the colony may face extirpation in eight to ten years in the absence of any turbine-

related fatalities, meaning that the projects additive Indiana bat mortality can be authorized

because [o]peration of the Shaffer Mountain wind farm in accordance with the AMP does not

appear to accelerate maternity colony extirpation because the additive mortality from turbine


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8 To provide a concrete example of what the Service should have, but neverconsidered in

modeling its worst case scenario, assume that there is a starting colony population of 50 and that

additive mortality of one potentially pregnant female bat is authorized each year, and such

mortality in fact occurs, of course in full compliance with the AMP. Under that scenario,

extirpation might happen in Year 6, instead of Year 8 or Year 10 as anticipated in the absence of

any additive mortality from wind turbines, see BO at 68, because it would remove six adult

females by that point (12% of the starting population, and a much larger percentage of the

colony as the population declines over time) and potentially six fetal bats that would have

otherwise been born and added potential resistance to the maternity colony population. See BO

at 64 (explaining that an adult female mortality would automatically result in the loss of her

13

operation is masked by the magnitude of the WNS-related effects on survivorship and

fecundity. Id. at 68. On the other hand, in the best case scenario where WNS does not impact

the colony in any way, the Service concluded that the maternity colony would gradually

increase over time under the curtailment scheme detailed in the Adaptive Management Plan,

although the Service noted that the models failure to account for stochasticity means that instead

of increasing in size the maternity colony would probably stay stable while experiencing nogrowth due to stochastic events. Id. at 66-67.

There are several glaring errors with the Services modeling, which presents a legally and

scientifically groundless baseline upon which to judge the impacts of turbine operation. See 50

C.F.R. 402.02, 402.14(g). First, with respect to the worst case scenario model, the Service

reached a conclusion after reviewing that model to authorize lethal turbine operation that cannot

be reconciled with the ESAs institutionalization of caution, Tenn. Valley Auth. v. Hill, 437

U.S. at 194, or the Services own statements elsewhere in the Biological Opinion. Specifically,

assuming, as the worst case scenario model does, that WNS will devastate Indiana bat

populations in Pennsylvania and could lead to extirpation to this maternity colony in 8-10 years,

see BO at 68, the Service cannot rationally conclude that turbine operation (i.e., additivemortality of one potentially pregnant female Indiana bat each year) will have no effect on the

long-term survival and recovery of the maternity colony because that mortality would be

masked by the magnitude of the WNS-related effects on survivorship and fecundity. Id. at 68.

This illogical conclusion is contradicted by statements elsewhere in the Biological Opinion that

suggest that some subset of WNS-affected Indiana bats are likely to develop resistance over

time, id. at 67-68, and also scientific evidence suggesting that pathologists are working

diligently to better understand, and ultimately find a cure for, WNS. E.g., J. M. Lorch, et al.,

Experimental Infection of Bats with Geomyces Destructans Causes White Nose Syndrome, 10

Nature 1038 (2011), available at http://www.nature.com/nature/journal/vaop/ncurrent/full/

nature10590.html. Thus, to entirely discount the impact of killing one (potentially pregnant)

female per year for up to ten years assuming the model correctly predicted extirpation in Year10 as irrelevant because of the magnitude of WNSs effect on the maternity colony misses the

importance of both ensuring the protection and survival of WNS-resistant female bats at this

colony, as well as the need to conserve as many members of the species as possible (and

particularly females), until a WNS cure or treatment is discovered.8


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offspring). This is problematic because, had the additive turbine mortality not been authorized

by the Service, and a WNS cure or treatment is developed in Years 7-9, the colony would have

had a chance of survival and recovery. But, in authorizing this level of additive mortality, there

is no colony in Years 7-9, meaning that the Service has summarily eliminated a significant period

of time under which this highly imperiled species would otherwise have an opportunity to wait

out WNS for a total or partial cure. This error is exacerbated because the few remaining

individuals in Years 5 and 6 under the Services scenario would most likely be those who

developed WNS resistance, and by authorizing their deaths by additive turbine mortality, the

Service effectively would toll the death knell of not only this maternity colony, but potentially

the strongest bats critical for survival of the recovery unit and species as a whole.

14

Second, the Services best case scenario also cannot pass muster under the ESAs

requirement that Biological Opinions and their conclusions be based on the best available

science. In the unlikely event that WNS does not impact the size and health of the on-site

maternity colony, the Service has concluded that turbine operation pursuant to the AMP (i.e., one

death of a pregnant female Indiana bat each year) will appear to allow for growth of the

maternity colony, but in actuality the colony will most likely stay stable without any growth dueto the models failure to account for any stochasticity. Id. at 66-67. While the Service provides

a conclusory and self-serving assurance that the results obtained were conservative . . . [because

of] the inability to incorporate stochasticity, id. at 66, the inherent inability of the Services

model to factor in stochastic events is problematic from a scientific standpoint since such events

will invariably occur during the life of the wind project. Because there is a wide data gap here

about the level of impact to be expected from stochastic events and how those impacts would

affect the long-term survival and recovery of the on-site maternity colony, it was legal and

biological error for the Service to nonetheless conclude that, based on this simple model, the

death of one Indiana bat per year in conjunction with entirely unknown stochastic events

would be reasonably certain notto directly or indirectly . . . reduce appreciably the likelihood of

both the survival and recovery of this maternity colony. 50 C.F.R. 402.02; BO at 73. Since itis impossible for the Service to render that conclusion with reasonable confidence based on the

model employed, the Service should have instead used a different model that is biologically

sound, or alternatively proceeded with an institutionalization of caution by determining that

the data gaps compel the Service to protect the maternity colony by, at minimum, requiring non-

operation ofall turbines during nighttime when bats are on the landscape.

Third, while much of the Services modeling discussion in the Biological Opinion

focused on the worst case and best case scenarios, the available scientific evidence suggests that

a very plausible, if not the most likely scenario is something in the middle of those two ( i.e.,

WNS has some level of impact short of extirpation, but significant enough that additive mortality

must either be prohibited or very cautiously authorized). See id. at 68 ([I]t is possible that WNSwill have a moderate rather than severe effect on Indiana bats.). Yet, again, the Service

somehow concludes with reasonable certainty that compliance with the AMP (i.e., one Indiana

bat mortality per year in addition to WNS deaths) will notdirectly or indirectly . . . reduce

appreciably the likelihood of both the survival and recovery of this maternity colony, id. at 73,


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15

but the entirety of the Services discussion of this third scenario concedes that it is merely

speculation without any scientific basis. As stated in the Biological Opinion,

Without knowing how and to what degree demographic parameters may change

over time, to what degree WNS-resistance may develop, and to what degree

recovery efforts may mitigate the effects of WNS, the results of modeling effortswould be highly speculative. While AMP implementation wouldprobably allow

for maternity colony persistence and growth in the absence of WNS, the effects of

AMP implementation in conjunction with WNS are much more difficult to predict.

Therefore, monitoring over the life of the project is proposed to ensure turbine-

related mortality is low enough to allow for maternity colony survival and

recovery.

BO at 69 (emphases added); see also id. at 74 (There is a great deal of uncertainty about the

manner in which the maternity colony will be affected by WNS over the 30-year life of the

project.) (emphasis added). As already explained above, since the post-construction monitoring

is virtually certain to be ineffective at accurately documenting the turbine-specific effects to thematernity colony, the Service has provided no permissible scientific rationale in light of the vast

uncertainty of this modeling scenario for deciding in favor of turbine operation and regular

additive mortalities of female Indiana bats, in lieu of species-protective measures that would

better ensure maternity colony survival and recovery, in stark violation of the ESAs

institutionalization of caution.

5. The Service Has Not Explained Why Non-discretionary Minimization

Measures Should Stop Each Year On October 15.

In its Biological Opinion, the Service required the developer, pursuant to the AMP, to

implement certain take minimization measures (cut-in speeds of 27 turbines and non-operationof 3 turbines) at nighttime between April 1 and October 15. The Service provides no scientific

rationale for the use of those dates. Indeed, the Service seems to indicate that some Indiana bats

are expected to remain in their summer habitat as late as September or mid-October before

engaging in a process called swarming that occurs each fall. BO at 59. Moreover, the only

operating project to our knowledge to have taken similar measures due to the risks posed to

Indiana bats implemented measures (in that case, non-operation of all 67 turbines) from April 1

toNovember 15, based on scientific literature indicating that the last Indiana bats enter

hibernacula in mid-November. E.g., Stipulation, Beech Ridge Wind Project, available at

http://www.windaction.org/documents/25382. Therefore, at minimum, the Service was

obligated to consistently apply the temporal constraints at the Shaffer Mountain Wind Project, or

explain why Indiana bats that will use this particular project site are somehow biologicallydifferent than other Indiana bats throughout the species range in terms of when they enter

hibernation. The failure to consider the best available science on the Indiana bat, particularly as

applied by other wind projects where the Service is overseeing operational impacts to Indiana

bats, is a violation of section 7.


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C. The Service Failed To Consider The Cumulative Effects Of Wind Energy On

Indiana Bats, Particularly In Conjunction With WNS.

In every Biological Opinion, the Service is required to consider all cumulative effects in

conjunction with the effects of the action. See 50 C.F.R. 402.14(g)-(h). Cumulative effects are

those effects of future State orprivate activities , not involving Federal activities, that arereasonably certain to occur within the action area of the Federal action subject to consultation.

Id. 402.02 (emphases added). As the Service acknowledges, the action area typically extends

some distance beyond the project footprint, and here necessarily includes flight path

disruption for any Indiana bats within migratory distance. See BO at 12. The Service also

notes the long distances that Indiana bats fly in this region, illustrated by two recent female

Indiana bats that migrated 84 and 92 miles respectively from near the project site to summer

habitat in Maryland and West Virginia. Id. at 37.

The Services brief Cumulative Effects section in the Biological Opinion only looked

at timber operations and potential oil and gas development in the vicinity. Id. at 72. There is no

discussion about other wind projects within the migratory distance of the bats that will forage at,migrate through, or otherwise use the Shaffer Mountain project site or its airspace during the

projects lifespan. At present, there are 17 operating wind projects in Pennsylvania with 450

total turbines. See Penn Future, Wind Farms in PA, available at http://www.pennfuture.org/

content.aspx?SectionID =192&MenuID=. Of those, 12 projects consisting of 254 total turbines

are in very close proximity to the proposed location of the Shaffer Mountain Wind Project

(which is proposed to sit on the border between Somerset and Bedford Counties), as illustrated

by the following map:


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17

Penn Future, Map of PA Wind Farms, available at http://www.pennfuture.org/ content.aspx

?SectionID=192&MenuID=.

Moreover, in nearby West Virginia and Maryland there are several wind projects along

the Indiana bat migratory corridor that the Service has documented Pennsylvania bats to traverse

in spring and fall from nearby hibernacula. See BO at 37. For example, the Mount Storm WindProject in Grant County, West Virginia has 132 turbines; the Mountaineer Wind Project in

Tucker County, West Virginia has 44 turbines; the AES Laurel Mountain Wind Project in

Barbour and Randolph Counties, West Virginia has 61 turbines; and the Criterion Wind Project

in Garrett County, Maryland has 28 turbines. In addition, several additional nearby projects are

planned for construction in the very near future (e.g., the Pinnacle Wind Project in Mineral

County, WV with 23 turbines, and the Roth Rocks Wind Project in Garrett County, Maryland

with 20 turbines).

The failure of the Service to consider and analyze at all the cumulative effect of the

Shaffer Mountain Wind Project on both male and female Indiana bats, in conjunction with the

anticipated impacts from the hundreds of lethal turbines impeding and disrupting Indiana batflights paths each spring and fall, fails to comport with the best available scientific evidence

regarding cumulative effects, and was contrary to section 7 and the ESAs implementing

regulations. 16 U.S.C. 1536(a)(2); 50 C.F.R. 402.14(g)-(h).

D. The Service Did Not Consider The Recent Mortality Of An Indiana Bat At

A Nearby Wind Project.

On September 27, 2011 the same day the Biological Opinion was issued to the Corps

the Service was informed that an Indiana bat had been killed at the North Allegheny Wind

Project, located in Blair and Cambria Counties, Pennsylvania, which are directly adjacent to

Somerset and Bedford Counties where this project is currently proposed. See FWS,Indiana BatFatality at Pennsylvania Wind Facility, available at http://www.fws.gov/northeast/pafo/. The

carcass was located during voluntary post-construction mortality monitoring, which is known

to overlook many, and often a substantial majority of, bats depending on the timing, search

intervals, and search methods employed, and which makes finding a rare endangered bat even

more difficult under the circumstances. Therefore, the fact that an Indiana bat was found at all in

light of these searcher inefficiencies on a project site where there is not a maternity colony or

other significant concentration of Indiana bats is highly pertinent to the Services analysis of

projected impacts here where there is a maternity colony, substantially increasing the risk of

mortality at this site. Said differently, the fact that the North Allegheny Wind Project which

necessarily presents less risk to Indiana bats than the Shaffer Mountain Wind Project due to the

Shaffer Mountain on-site maternity colony killed at least one Indiana bat, which is themaximum allowable limit under the AMP at the Shaffer Mountain Wind Project, means that the

Service should consider whether and how the correlative levels of risk at the two projects in light

of this confirmed death might affect the anticipated level of take at certain cut-in speeds at the

Shaffer Mountain Wind Project. Until that analysis is conducted, the Biological Opinion has

failed to incorporate a key piece of scientific evidence that has a direct bearing on whether the


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18

Services conclusion of expected impacts under the AMP is factually and biologically accurate.

For this and the other reasons set forth above, the Service (and the Corps) cannot lawfully

proceed without, at minimum, reinitiating consultation to account for the deficiencies identified

above. 50 C.F.R. 402.16.

II. There Are Serious Risks To Migratory Birds, But The Developer Has NotEvidenced Its Intent To Comply With The MBTA Or BGEPA.

Setting aside the ESA issues identified above, we continue to express concerns that the

project, as planned, will have substantial impacts on migratory birds, and particularly on Golden

eagles that will migrate through the project site in large numbers and at heights that will result in

death and injury from turbines. Indeed, this migratory pathway has been designated as an

Important Bird Area by the Audubon Society a designation that the Service-appointed

advisory committee defines as hav[ing] been recognized according to scientifically credible

information as having high wildlife value, and a designation which the advisory committee used

as itsprime example of an area which is inappropriate for large scale development of wind

energy. Wind Turbine Guidelines Advisory Committee Recommendations to the Secretary ofthe Interior at 16, http://www.fws.gov/habitatconservation/windpower/Wind_Turbine_

Guidelines_Advisory_Committee_Recommendations_Secretary.pdf (emphases added).

As we have explained in past letters and comments, the Powdermill Nature Reserve and

the National Aviary have confirmed through research that a significant portion of the entire

population of Golden eagles in the eastern U.S. regularly migrates over and through the project

site (i.e., it is their primary migration path), and that the eagles routine travel pattern takes them

within the projected rotor swept area of the proposed Shaffer Mountain Wind Project turbines.

There are only approximately 500-800 pairs of Golden eagles in the eastern U.S., which migrate

between eastern Canada and the Allegheny front in Pennsylvania. A scientific analysis is

presently being conducted to determine whether this population is sufficiently geneticallydistinct to qualify as a subspecies. In any case, there is no doubt, based on the available

research, that a large percentage of the entire east coast population migrates across, through, and

otherwise uses, the Shaffer Mountain project site, and hence faces exceptionally high risks from

the project.

Shaffer Mountain Wind LLC has not sought, and evidently does not intend to seek,

authorization from the Secretary of the Interior to permit the killing of birds listed under the

Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703-11. The MBTA strictly prohibits

killing listed birds without such authorization. Enacted to fulfill the United States treaty

obligations, the MBTA provides that [u]nless and except as permitted by regulations made as

hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in anymanner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory

bird. Id. 703(a) (emphasis added).

Most, if not all, birds that traverse the Somerset and Bedford County migratory pathway

are protected by the MBTA. See 50 C.F.R. 10.13 (listing the birds protected by the MBTA);


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Final List of Bird Species to Which the MBTA Does Not Apply, 70 Fed. Reg. 12710 (Mar. 15,

2005). Collisions with Shaffer Mountains wind turbines are anticipated to kill many birds each

year; the construction and operation of the wind power facility will result in habitat loss and

fragmentation adversely affecting migratory birds; and the presence of wind turbines will very

likely present a barrier to the flight path of migrating birds. In granting a section 404 permit to

an industrial wind power facility that is reasonably certain to kill many birds each year that is notseeking authorization from the Secretary of the Interior, the Corps would be authorizing

unlawful activity. See Humane Socy of the US v. Glickman, 217 F.3d 882, 884-88 (D.C. Cir.

2000) (holding that federal agencies must obtain authorization from the Department of the

Interior before they kill birds protected by the MBTA); see also City of Sausalito v. ONeill, 386

F.3d 1186, 1204 (9th Cir. 2004) (holding that anyone who is adversely affected or aggrieved

by an agency action alleged to have violated the MBTA has standing to seek judicial review of

that action).

In addition, Shaffer Mountain Wind LLC has not sought, and evidently does not intend

to seek, authorization from the Secretary of the Interior to permit the killing or disturbing of

eagles under the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. 668-668(c).BGEPA strictly prohibits taking any bald or golden eagles without such authorization from the

Secretary, id. 668, and taking is defined broadly under the Act to encompass all activities

that pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturbeagles.

Id. 668(c) (emphases added). As federal courts have recognized, [a] permit to take a bald or

golden eagle can only be issued if the FWS determines that the kill is compatible with the

[eagles] preservation . . . [and] only [after] the Director of FWS has the authority to grant such a

permit. United States v. Jim, 888 F. Supp. 1058, 1060-61 (D. Or. 1995) (citations omitted).

Moreover, the Service recently came out with its Eagle Conservation Plan Guidance, which

defines [eagle] migration corridors such as the Shaffer Mountain ridges as important eagle-

use areas. FWS, Draft Eagle Conservation Plan Guidance at 13, available at

http://www.fws.gov/windenergy/docs/Final_ECP_draft_guidance_2.8.CLEAN.pdf. In suchareas, a project cannot lawfully proceed without first completing an eagle conservation plan, and

obtaining permission from the Service to proceed with the project. See id.

Here, once again, based on the available research, there is no question that a large

percentage of the entire Golden eagle population in the eastern U.S. will migrate through the

proposed project site each year and will do so at a height that will bring them into direct contact

with the turbines; thus Golden eagles will inevitably be subject to death, injury, and disruption of

essential biological functions if the project is constructed as proposed. Moreover, the best

available evidence clearly demonstrates that eagles are susceptible to turbine collisions resulting

in death. See http://www.oregonlive.com/environmentlindex.ssf/2009/05/first_golden_eagle

killed_by a.html (describing death of Golden Eagle from wind project in Washington);http://www.eastcountymagazine.org/node/3146 (describing various eagle mortalities from

western wind turbines). Therefore, because there exists an enormous risk to Golden eagles here

and the absence of a BGEPA permit, the project cannot proceed at least until and unless the

developer brings itself into compliance with the MBTA and BGEPA.


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20

III. The Biological Opinion And Other Factors Strongly Support, At Minimum,

Preparation Of An EIS.

As we have previously stated, the best available scientific evidence counsels in favor of

the Corps denying Shaffer Mountain Wind LLCs application for a section 404 permit under the

Clean Water Act (CWA), 33 U.S.C. 1251-1387. Not only does this project pose, to ourknowledge, the gravest risk to an Indiana bat maternity colony of any operating or proposed

facility in the nation and pose a substantial risk to migratory birds and the eastern U.S.

population of Golden Eagles, but this project also subverts the public interest as that term is

defined under the Clean Water Act regulations, including because the developer (i.e., the CWA

permit applicant) has consistently failed to seriously consider more practicable siting

alternatives.

More specifically, as a non-water dependent activity, the permit for wind turbine

construction and operation cannot be granted unless the applicant clearly demonstrate[s] that

there are not more practicable and less damaging alternatives something which Shaffer

Mountain Wind LLC has entirely failed to demonstrate by insisting on moving forward with aproject site and design layout that threatens the continued existence of the Indiana bat and

Golden Eagles, as well as other species of migratory birds and bats despite repeated calls from

conservation organizations and the Service to abandon this high-risk project site. Accordingly,

because the Biological Opinion firmly reinforces the extremely acute risk to listed bats, see BO

at 43 (calling this a high-risk zone for bats due to turbine operation), the Clean Water Act and

its implementing regulations dictate denial of Permit 2007-119.

Nonetheless, even if the Corps somehow determines that the developers application can

pass the statutory and regulatory muster of the CWA something which is very unlikely on this

factual and scientific record the Biological Opinion and risks to Golden eagles, along with

other impacts, plainly bolster the need for preparation of an EIS here by the Corps, pursuant tothe National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370. Although only one

Council on Environmental Quality significance factor need be triggered to require preparation of

an EIS, many significance factors are implicated here that compel that conclusion. Accordingly,

because the Biological Opinion recognizes the severe and unprecedented risks that this project

poses to an Indiana bat maternity colony, and the project also threatens many of the Golden

eagles that migrate on the East Coast, an EIS is the only legally permissible way under NEPA in

which the Corps could assess the projects impacts.

CONCLUSION

The significant deficiencies in the Biological Opinion demonstrate that the Service hasauthorized construction and operation of the Shaffer Mountain Wind Project without consulting

the best available scientific evidence with respect to Indiana bats and wind energy, and by

adopting a process for evaluating the threats to the Indiana bat built almost entirely on

uncertainty and speculation, in violation of section 7's requirements, the ESAs implementing

regulations, and the statutes requirement that the Service proceed with an institutionalization of


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9 While we recognize the Interior Departments commitment to renewable energy and believe

that to be an important goal, that commitment cannot and should not undermine the ESA process

for a renewable energy project, particularly one that is proposed for siting in the riskiest location

for a listed species of any wind project in the United States. Had this been a non-renewable

energy project, for example a coal-fired power plant or a nuclear reactor, that threatened the

survival and recovery of a vital maternity colony for a listed species being decimated by disease,

we doubt that, based on this record and available scientific evidence, the Service would have

reached a non-jeopardy conclusion. The evaluation of this project must be based on the best

available science as the ESA dictates, and cannot be predetermined based on the kind of energy

project it is.

21

caution in making decisions affecting list species. Indeed, rather than proceeding cautiously to

protect a critically important maternity colony of the highly imperiled Indiana bat that is being

decimated by WNS, the Service has opted to roll the dice and hope for the best, all so that the

Shaffer Mountain Wind Project may proceed. While there might be scenarios under which

Congress has authorized federal agencies to gamble with the publics shared resources, this

simply is not one of them because, in the ESA, Congress indicate[d] beyond doubt thatCongress intended endangered species to be afforded the highest of priorities since their value

is incalculable. Tenn. Valley Auth. v. Hill, 437 U.S. at 174, 187.9

Please do not hesitate to contact us if you wish to discuss this matter or have any

questions concerning this letter. If we do not hear from you in the near future, we will assume

that you are not interested in a collaborative resolution and we will consider all available

avenues, including litigation, to conserve endangered Indiana bats in accordance with the

requirements of the ESA and its implementing regulations.

Sincerely,

William S. Eubanks II

Eric R. Glitzenstein

cc:

Clint Riley/Carole Copeyon

U.S. Fish and Wildlife Service

Pennsylvania Field Office315 South Allen Street, Suite 322

State College, PA 16801

[email protected]; [email protected]


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22

Allen R. Edris

Regulatory Branch

U.S. Army Corps of Engineers, Pittsburgh District

1000 Liberty Avenue

Suite 2200

Pittsburgh, PA [email protected]

Tracy Librandi Mumma

Wind Project Coordinator

Pennsylvania Game Commission

2001 Elmerton Avenue

Harrisburg, PA 17110

[email protected]

Michael Bean, Counselor

US Department of the Interior1849 C Street N.W.

Washington, DC 20240

[email protected]

notice of violations of section 7 of the endangered species act and the

Documents