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 project's impacts to the 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, 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.
The significant deficiencies in the Biological Opinion demonstrate that the Service has authorized 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 ESA’s implementing regulations, and the statute’s requirement that the Service proceed with an institutionalization of 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 public’s shared resources, this simply is not one of them because, in the ESA, Congress “indicate[d] beyond doubt that Congress 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.