Documents
Staff recommends WV PSC deny siting permit for Liberty Gap Wind Force
May 16, 2007
by West Virginia Public Service Commission
Summary:
Excerpts below are from the May 16, 2007 Proposed Order of WV PSC denying Liberty Gap's application for CPCN (siting permit) for 50 wind turbine project atop Jack Mtn in Pendleton County:
Excerpts below are from the May 16, 2007 Proposed Order of WV PSC denying Liberty Gap's application for CPCN (siting permit) for 50 wind turbine project atop Jack Mtn in Pendleton County:
There are four main issues developed on the record in this proceeding which the Commission believes need to be examined when considering the Project's impact the community and the local vicinity's, the surrounding region's and State's environment: impact on viewshed, impact from noise, impact on non-listed and endangered bats, and impact on hydrology. It is the cumulative impact of these four issues which tilts the scales against issuing a siting certificate to Liberty Gap. Moreover, it is the Commission's determination that adding conditions to Liberty Gap's siting certificate will not in and of itself sufficiently keep the Project's negative impacts from being as minimally disruptive as possible. The Commission will address each of the issues separately below, but makes clear again that it is the cumulative impact of the four issues that leads the Commission to conclude that the Liberty Gap Project should not be granted a siting certificate. [pages 14-15]
The Commission finds Liberty Gap's experts' testimonies that pre-construction studies to date have not been predictive of bat mortality at wind turbine sites to be persuasive. While the Commission shares Dr. Gannon's concerns that good pre-construction studies would provide us with important information, the Commission believes that postconstruction studies are needed to assist with developing pre-construction studies which will reveal useful correlations between the wind turbine collision mortality of bats at wind turbine sites. [page 23]
The Commission agrees with Liberty Gap's expert Mr. Roy that there will be an impact on bats from the Project. The Commission also agrees with Liberty Gap witness Dr. Reynolds statement that the Liberty Gap site is very likely to impact non-listed bats on the same order of magnitude as at the Mountaineer and Meyersdale wind farms based on the information currently known. The Commission also find persuasive Dr. Gannon's concern that the number of bats being killed at wind turbine projects in the northeast on a day-to-day basis could damage the population and could ultimately devastate the bats in the region given that bats only produce one offspring per year. Accordingly, the Commission concludes that evidence shows that the Liberty Gap project will likely have a negative impact on non-listed bats generally. [page 25]
The following is extracted in total from pages 26-28:
While the evidentiary record is clear that the concentration of the Virginia big-eared bats and the Indiana bats is high in Pendleton County-in fact-even higher than the endangered bat species concentrations at the Meyersdale, Mountaineer and Buffalo wind farm sites, Liberty Gap's experts do not believe that proximity of bat hibernacula is a reliable predictor of bat mortality. (Dr. Tyrell's testimony, L.G. Ex. No. 9 at p. 4; Dr. Reynold's testimony, L.G. Ex. No. 23 at p. 7; Dr. Reynolds' testimony, L.G. Ex. No. 23 at p. 7). Liberty Gap's experts provided testimony as to why they did not believe the Project would impact the Virginia big-eared and/or Indiana bats. Such evidence included the fact that there have been no reported identifications of dead endangered bats at other wind farm sites. (Dr. Tyrell's testimony, L.G. Ex. No. 9 at p. 4). It also included an opinion that the site features specific to Liberty Gap indicate that endangered bats are not likely to be killed by collision with the turbines since the Virginia big-eared bats are likely to forage below the rotor-swept area. (Dr. Tyrell's testimony, L.G. Ex. No. 9 at p. 4; Dr. Reynolds' testimony, L.G. Ex. No. 23 at p. 8). Liberty Gap experts believe the distance in elevation between the nearby tree top levels and the lower edge of the rotor-sweep at the Liberty Gap facility will be much greater than at existing wind farms like the Mountaineer site in Tucker County and the Meyersdale site in Somerset County, Pennsylvania. (Dr. Tyrell's testimony, L.G. Ex. No. 9 at p. 4). Additionally, other facilities have been constructed on clear forest openings along tops of relatively wide ridgelines, but Liberty Gap will be located on a narrow non-forested ridgelines. (Dr. Tyrell's testimony, L.G. E.x No. 9 at p. 4). Additionally, it appears that migratory bats are more susceptible to wind turbine mortality than resident hibernating bats like the two endangered species of bats. (Dr. Reynolds' testimony, L.G. Ex. No. 23 at p. 7).
However, Liberty Gap expert Dr. Tyrell agreed that the WVDNR did not accept her theory on the difference in the geography of the Liberty Gap site compared to the Mountaineer and Meyersdale wind farm sites, would mean that a lower bat mortality is projected for the Liberty Gap site. (Tr. I11 at pp. 283-284). Dr. Tyrell agreed that both WVDNR and USFWS concluded that the larger proximity of bat hibernacula in close proximity to the Liberty Gap site leads to projections of higher bat mortality at the Liberty Gap site. (Tr. I11 at pp. 284-285). Dr. Tyrell agreed that in earlier letters, WVDNR and USFWS rejected her theory that based on the foraging patterns of the Virginia big-eared bat and the Indiana bat that the bats will not fly above the tree canopy, and thus, the likelihood of mortality would be less at Liberty Gap. (Tr. I11 at pp. 286-287). Dr. Tyrell agreed that USFWS in its September 28 letter (part of Staff Ex. No. 2) concluded that the risk of mortality of listed bats is significantly higher at the Liberty Gap site than at other study sites in the eastern forest region. (Tr. I11 at p. 290). Indeed, USFWS's September 28,2006 letter concluded "with reasonable certainty that during the operational life of the project, federally listed species will be taken." (Staff Ex. No. 2, September 28, 2006 letter at p. 7). The Commission notes that since USFWS denied Staffs Touhy request to appear and testify at the evidentiary hearing, the parties were not able to cross-examine USWFS's conclusions. (See Staff Ex. No. l(USWFS letter denying Touhy request).
Liberty Gap expert Dr. Tyrell stated that she could not predict the potential for bat mortality at the Liberty Gap site because so little is known about the factors contributing to bat-turbine collisions. ( L.G. Ex. No. 9 at p. 10). Dr. Tyrell agreed that under the Endangered Species Act if there is a taking, which can be a killing of just one endangered species, then the Act has been violated unless someone holds an incidental take permit. (Tr. I11 at pp. 302-303). Dr. Tyrell stated that she could not as an expert tell the Commission that there would not be a taking of either of the two endangered species of bats at or near the Liberty Gap site during the operational life of the Liberty Gap Project. (Tr. I11 at p. 303). Indeed, Liberty Gap is working to develop a habitat conservation plan and to obtain an incidental take permit from USFWS. (Tr. I11 at p. 303). Dr. Tyrell explained that it is common with incidental take permits to have a certain number or a limitation on the number of endangered species that can be taken by a Project. (Tr. I11 at p. 306). If a Project should go above the limit in the incidental take permit, then the Project would need to re-enter the analysis and re-permit the Project with USFWS. (Tr. I11 at p. 306). Dr. Tyrell stated that they are in the process of putting together the habitat conservation plan documentation and assisting USFWS with some of the sections of the environmental assessment. (Tr. I11 at p.307). In response to Chairman McKinney asking whether Liberty Gap has made a commitment to complete this process, Dr. Tyrell stated that "it certainly has not yet determined whether or not implementing the agreement would be appropriate or not in this case." (Tr. I11 at p. 307). Currently, Dr. Tyrell would describe the ongoing conversations with USFWS as proactive and positive. (Tr. I11 at p. 308). WVDNR has not been part of the process yet since the habitat conservation plan only addresses endangered species, but will be brought in when Liberty Gap addresses the non-listed species in the habitat conservation plan. (Tr. I11 at p. 308). Typically such a process with USFWS takes 18-rnonths, but in the Liberty Gap case UWFSWS has agreed to try to expedite the process and accomplish it with the environmental assessment within a 9 to 12 month window. (Tr. I11 at p. 3 10).
The Commission is very concerned about the potential impact of the Liberty Gap Project on the Virginia big-eared and Indiana bats. While the evidence indicates that the experts do not know whether the endangered bats will collide with the turbines on the Liberty Gap site, the Commission believes the evidence in this case indicates there is much greater potential for there to be collision mortalities of the endangered species of bats at this site compared to the Mountaineer and Meyersdale wind farm sites. The Endangered Species Act clearly states that one taking (or killing) of an endangered species violates the act. 16 USCA 8 1538. A violation of the Endangered Species Act may lead to the imposition of both civil and criminal penalties. 16 USCA 5 1540. An exception to the prohibition against a taking is if a person or entity holds an incidental take permit from USFWS. 16 USCA 5 1539. Liberty Gap is in the process of working with USFWS to develop a habitat conservation plan and obtain an incidental take permit, and, thus, has requested that the Commission grant Liberty Gap a siting certificate conditioned on Liberty Gap obtaining the incidental take permit. While the Commission believes Liberty Gap's efforts are a step in the right direction, Dr. Tryell has indicated that while talks with USFWS were positive, it has not yet been determined that entering into an agreement with USFWS is appropriate for this Project. The Commission believes the potential significant impacts to the endangered bats at this site given the Endangered Species Act is too great to issue a siting certificate at this time conditioned on Liberty Gap obtaining an incidental take permit. The Commission is concerned about pulling the endangered bat species issue out and holding it in abeyance until the USFWS determines whether or not it will issue an incidental take permit as the Commission does not know for certain that non-listed bats will be included in the habitat conservation plan. Nor does the Commission know what types of studies will need to be conducted for post-construction monitoring. While USFWS may have requirements regarding this issue, which the Commission would respect, the Commission may want to impose additional and/or different requirements in addition to USFWS requirements to ensure that information is being gathered over a long period of time that will enable bat experts to determine how to predict bat mortality at future sites and to determine how to mitigate bat mortality. The Commission has serious concerns about the potential impacts to both non-listed and listed bats at this particular site.
There are four main issues developed on the record in this proceeding which the Commission believes need to be examined when considering the Project's impact the community and the local vicinity's, the surrounding region's and State's environment: impact on viewshed, impact from noise, impact on non-listed and endangered bats, and impact on hydrology. It is the cumulative impact of these four issues which tilts the scales against issuing a siting certificate to Liberty Gap. Moreover, it is the Commission's determination that adding conditions to Liberty Gap's siting certificate will not in and of itself sufficiently keep the Project's negative impacts from being as minimally disruptive as possible. The Commission will address each of the issues separately below, but makes clear again that it is the cumulative impact of the four issues that leads the Commission to conclude that the Liberty Gap Project should not be granted a siting certificate. [pages 14-15]
The Commission finds Liberty Gap's experts' testimonies that pre-construction studies to date have not been predictive of bat mortality at wind turbine sites to be persuasive. While the Commission shares Dr. Gannon's concerns that good pre-construction studies would provide us with important information, the Commission believes that postconstruction studies are needed to assist with developing pre-construction studies which will reveal useful correlations between the wind turbine collision mortality of bats at wind turbine sites. [page 23]
The Commission agrees with Liberty Gap's expert Mr. Roy that there will be an impact on bats from the Project. The Commission also agrees with Liberty Gap witness Dr. Reynolds statement that the Liberty Gap site is very likely to impact non-listed bats on the same order of magnitude as at the Mountaineer and Meyersdale wind farms based on the information currently known. The Commission also find persuasive Dr. Gannon's concern that the number of bats being killed at wind turbine projects in the northeast on a day-to-day basis could damage the population and could ultimately devastate the bats in the region given that bats only produce one offspring per year. Accordingly, the Commission concludes that evidence shows that the Liberty Gap project will likely have a negative impact on non-listed bats generally. [page 25]
The following is extracted in total from pages 26-28:
While the evidentiary record is clear that the concentration of the Virginia big-eared bats and the Indiana bats is high in Pendleton County-in fact-even higher than the endangered bat species concentrations at the Meyersdale, Mountaineer and Buffalo wind farm sites, Liberty Gap's experts do not believe that proximity of bat hibernacula is a reliable predictor of bat mortality. (Dr. Tyrell's testimony, L.G. Ex. No. 9 at p. 4; Dr. Reynold's testimony, L.G. Ex. No. 23 at p. 7; Dr. Reynolds' testimony, L.G. Ex. No. 23 at p. 7). Liberty Gap's experts provided testimony as to why they did not believe the Project would impact the Virginia big-eared and/or Indiana bats. Such evidence included the fact that there have been no reported identifications of dead endangered bats at other wind farm sites. (Dr. Tyrell's testimony, L.G. Ex. No. 9 at p. 4). It also included an opinion that the site features specific to Liberty Gap indicate that endangered bats are not likely to be killed by collision with the turbines since the Virginia big-eared bats are likely to forage below the rotor-swept area. (Dr. Tyrell's testimony, L.G. Ex. No. 9 at p. 4; Dr. Reynolds' testimony, L.G. Ex. No. 23 at p. 8). Liberty Gap experts believe the distance in elevation between the nearby tree top levels and the lower edge of the rotor-sweep at the Liberty Gap facility will be much greater than at existing wind farms like the Mountaineer site in Tucker County and the Meyersdale site in Somerset County, Pennsylvania. (Dr. Tyrell's testimony, L.G. Ex. No. 9 at p. 4). Additionally, other facilities have been constructed on clear forest openings along tops of relatively wide ridgelines, but Liberty Gap will be located on a narrow non-forested ridgelines. (Dr. Tyrell's testimony, L.G. E.x No. 9 at p. 4). Additionally, it appears that migratory bats are more susceptible to wind turbine mortality than resident hibernating bats like the two endangered species of bats. (Dr. Reynolds' testimony, L.G. Ex. No. 23 at p. 7).
However, Liberty Gap expert Dr. Tyrell agreed that the WVDNR did not accept her theory on the difference in the geography of the Liberty Gap site compared to the Mountaineer and Meyersdale wind farm sites, would mean that a lower bat mortality is projected for the Liberty Gap site. (Tr. I11 at pp. 283-284). Dr. Tyrell agreed that both WVDNR and USFWS concluded that the larger proximity of bat hibernacula in close proximity to the Liberty Gap site leads to projections of higher bat mortality at the Liberty Gap site. (Tr. I11 at pp. 284-285). Dr. Tyrell agreed that in earlier letters, WVDNR and USFWS rejected her theory that based on the foraging patterns of the Virginia big-eared bat and the Indiana bat that the bats will not fly above the tree canopy, and thus, the likelihood of mortality would be less at Liberty Gap. (Tr. I11 at pp. 286-287). Dr. Tyrell agreed that USFWS in its September 28 letter (part of Staff Ex. No. 2) concluded that the risk of mortality of listed bats is significantly higher at the Liberty Gap site than at other study sites in the eastern forest region. (Tr. I11 at p. 290). Indeed, USFWS's September 28,2006 letter concluded "with reasonable certainty that during the operational life of the project, federally listed species will be taken." (Staff Ex. No. 2, September 28, 2006 letter at p. 7). The Commission notes that since USFWS denied Staffs Touhy request to appear and testify at the evidentiary hearing, the parties were not able to cross-examine USWFS's conclusions. (See Staff Ex. No. l(USWFS letter denying Touhy request).
Liberty Gap expert Dr. Tyrell stated that she could not predict the potential for bat mortality at the Liberty Gap site because so little is known about the factors contributing to bat-turbine collisions. ( L.G. Ex. No. 9 at p. 10). Dr. Tyrell agreed that under the Endangered Species Act if there is a taking, which can be a killing of just one endangered species, then the Act has been violated unless someone holds an incidental take permit. (Tr. I11 at pp. 302-303). Dr. Tyrell stated that she could not as an expert tell the Commission that there would not be a taking of either of the two endangered species of bats at or near the Liberty Gap site during the operational life of the Liberty Gap Project. (Tr. I11 at p. 303). Indeed, Liberty Gap is working to develop a habitat conservation plan and to obtain an incidental take permit from USFWS. (Tr. I11 at p. 303). Dr. Tyrell explained that it is common with incidental take permits to have a certain number or a limitation on the number of endangered species that can be taken by a Project. (Tr. I11 at p. 306). If a Project should go above the limit in the incidental take permit, then the Project would need to re-enter the analysis and re-permit the Project with USFWS. (Tr. I11 at p. 306). Dr. Tyrell stated that they are in the process of putting together the habitat conservation plan documentation and assisting USFWS with some of the sections of the environmental assessment. (Tr. I11 at p.307). In response to Chairman McKinney asking whether Liberty Gap has made a commitment to complete this process, Dr. Tyrell stated that "it certainly has not yet determined whether or not implementing the agreement would be appropriate or not in this case." (Tr. I11 at p. 307). Currently, Dr. Tyrell would describe the ongoing conversations with USFWS as proactive and positive. (Tr. I11 at p. 308). WVDNR has not been part of the process yet since the habitat conservation plan only addresses endangered species, but will be brought in when Liberty Gap addresses the non-listed species in the habitat conservation plan. (Tr. I11 at p. 308). Typically such a process with USFWS takes 18-rnonths, but in the Liberty Gap case UWFSWS has agreed to try to expedite the process and accomplish it with the environmental assessment within a 9 to 12 month window. (Tr. I11 at p. 3 10).
The Commission is very concerned about the potential impact of the Liberty Gap Project on the Virginia big-eared and Indiana bats. While the evidence indicates that the experts do not know whether the endangered bats will collide with the turbines on the Liberty Gap site, the Commission believes the evidence in this case indicates there is much greater potential for there to be collision mortalities of the endangered species of bats at this site compared to the Mountaineer and Meyersdale wind farm sites. The Endangered Species Act clearly states that one taking (or killing) of an endangered species violates the act. 16 USCA 8 1538. A violation of the Endangered Species Act may lead to the imposition of both civil and criminal penalties. 16 USCA 5 1540. An exception to the prohibition against a taking is if a person or entity holds an incidental take permit from USFWS. 16 USCA 5 1539. Liberty Gap is in the process of working with USFWS to develop a habitat conservation plan and obtain an incidental take permit, and, thus, has requested that the Commission grant Liberty Gap a siting certificate conditioned on Liberty Gap obtaining the incidental take permit. While the Commission believes Liberty Gap's efforts are a step in the right direction, Dr. Tryell has indicated that while talks with USFWS were positive, it has not yet been determined that entering into an agreement with USFWS is appropriate for this Project. The Commission believes the potential significant impacts to the endangered bats at this site given the Endangered Species Act is too great to issue a siting certificate at this time conditioned on Liberty Gap obtaining an incidental take permit. The Commission is concerned about pulling the endangered bat species issue out and holding it in abeyance until the USFWS determines whether or not it will issue an incidental take permit as the Commission does not know for certain that non-listed bats will be included in the habitat conservation plan. Nor does the Commission know what types of studies will need to be conducted for post-construction monitoring. While USFWS may have requirements regarding this issue, which the Commission would respect, the Commission may want to impose additional and/or different requirements in addition to USFWS requirements to ensure that information is being gathered over a long period of time that will enable bat experts to determine how to predict bat mortality at future sites and to determine how to mitigate bat mortality. The Commission has serious concerns about the potential impacts to both non-listed and listed bats at this particular site.
Filed under
:
Impact on Bats
:
Impact on Wildlife
:
Impact on Views
:
Erosion
:
Noise
:
West Virginia
:
General
:
Zoning/Planning
| < prev | next > |
Note: this article may be subject to the Fair Use Notice.