Excerpts below are from the June 22, 2007 Order of WV PSC denying Liberty Gap's application for a CPCN (siting permit) to construct a 50 wind turbine project atop Jack Mtn in Pendleton County:
Issues For Which Evidence is Lacking or Otherwise Troubling
For the remainder of the issues, to wit: (1) the historical and cultural impact of the Project on the Jack Mountain area, (2) the likelihood and extent of noise from the turbines, (3) government concerns about the impact on endangered bat species, and (4) the potential impact upon view from recognized public sites used as scenic overlooks, the record is more problematic, and these issues become extremely troublesome, given the balancing of interests test that the Commission is required to perform under W. Va. Code 5 24-2- 1 1 c.
(b) Insufficient and Conflicting Noise Evidence
There is disparity in the evidence (and difference of opinion) on the noise levels created by the wind turbine projects. Noise levels from wind turbine projects vary or are affected by the type and nature of the turbine, weather, ground cover, distance, ambient noise, leaf and foliage cover, elevation, wind direction, state of the science as applied to wind turbines and detection of sound from wind turbine projects, and a host of other factors. The developer and the Commission are charged with estimating, in general terms, the noise level of the Project on anyone who might be a likely “noise receptor.” The growing body of evidence and experience about the possible impact from noise at other wind turbine projects, the potential impact from the Liberty Gap Project, and the issues regarding noise testing near the Project, are a concern for the Commission. Unfortunately, we cannot be certain about the noise impact until after the Project is constructed. During the Application process, we can only react to the evidence and the questions raised in the proceeding....Liberty Gap’s expert believes that in certain conditions people in Moatstown could detect a swooshing or fluctuating sound from the Project turbines and that people may be disturbed by the sound. (Tr. 111. pp. 64-65). Common sense indicates that a difference certainly exists in what a person could hear 2,030 feet from the nearest turbine compared to a person who is 4,000 feet from the nearest turbine. Thus, the Commission concludes that insufficient evidence is before us to assess the potential noise impacts at Moatstown.
(c) Government Concerns with Endangered Bat Species
The evidence clearly indicates that turbines in the eastern United States cause substantially higher rates of bat mortality than in other regions of the country. (Roy testimony, L.G. Exhibit No. 3 at p. 3; Tyrell testimony, L.G. Exhibit No. 9 at p. 5; Reynolds testimony, L.G. Exhibit No. 8 at p. 3). Morever, Liberty Gap’s experts testified that the Mountaineer wind farm in West Virginia has the highest recorded per turbine collision mortality rate in the world. (Reynolds testimony, Tr. I11 at p. 189; Tyrell testimony, Id. at 276, Kellmeyer testimony, Tr. 5 at p. 17). While the bat experts have different theories on why the turbines cause higher mortality for bats than for other avian species, the experts really do not know why bat mortality rates have been so high at the wind farms in the eastern United States, including the wind farm in West Virginia. (Tyrell testimony, L.G. Exhibit No. 24 at pp. 3, 5-6 and Tr. I11 at p. 302; Reynolds testimony, L.G. Exhibit No. 8 at p. 3).
In addition to the USFWS’s strong opinion that the Project would take endangered bat species, Liberty Gap was also on notice that expert literature and testimony unanimously indicated that too little is known about bat behavioral response to turbines to reasonably mitigate bat mortality. In light of the foregoing, the Commission does not understand (or condone) Liberty Gap’s reluctance to cooperate with state and federal wildlife agencies prior to December 8,2006, when it finally communicated its intent to commence a voluntary HCP process and application for an ITP. (USFWS letter to Mr. Cookman dated December 4, 2006; Staff Exhibit No. 2).
The Commission is faced with making the decision regarding bats and is inclined to give credence to the concerns of the USFWS and WVDNR. Even after Liberty Gap initiated talks with USFWS, it had not, as of the date of the hearing, filed a HCP or ITP application. (Tr. I11 at p. 307). Liberty Gap’s bat expert, Dr. Karen Tyrell, testified that as of April 23, 2007, Liberty Gap had not yet determined whether an implementing agreement would be appropriate. This testimony indicates that as of the hearing date, Liberty Gap had not made a commitment to complete the HCP/ITP process. (Tr. I11 at 307). Because of the Commission’s concern regarding the possible impact of the Project on endangered bats, the Commission, in its December 14, 2006 Order, required Liberty Gap to file bi-monthly progress reports as to its ITP/HCP progress. Unfortunately, the progress reports describe talks and meetings, but not concrete action on an ITP application. See bi-monthly reports in case file filed January 16,2007, March 15,2007 and May 15,2007.
Liberty Gap’s delay in filing, followed by its reluctance to commit to the HCP and ITP process, in the face of USFWS concern about the “reasonable certainty” of danger to endangered species of bats is troubling. Given the circumstances of the Jack Mountain site, the Commission believes that Liberty Gap should have made greater efforts to apply for the ITP earlier and filed the ITP as a part of the processing of the Application. The Commission, at this point, should be informed as to the final position of the USFWS on the threat to the Virginia Big-Eared Bat and the Indiana Bat. As it is, the Commission is faced with conflicting expert evidence and opinion, and the USFWS clearly indicating that it believes the Project will cause death of endangered species. (See Staff Exhibit No. 2).
These circumstances cause additional complexity in any balancing of interests and give rise to Commission concern about whether Liberty Gap’s submission of evidence with respect to bat impacts and the possible steps to ameliorate those impacts, standing alone, can be considered sufficient to balance the interests on the Project.