Gamesa Energy USA
One South Broad Street, 20th Floor
Philadelphia, PA 19107
RE: USFWS Project #2007-0585
Dear Ms. Lutz:
This is in reference to our October 24 meeting, and your letter of November 2, 2007, in which you have requested our concurrence that the proposed Shaffer Mountain wind project, located in Shade and Ogle Townships, Somerset County, Pennsylvania, would meet the criteria for a "low effect" habitat conservation plan (HCP). You also requested our perspective on whether the issuance of a categorical exclusion would be sufficient to satisfy the requirements of the National Environmental Policy Act (NEPA) for this project. As will be discussed, the requirements under the Endangered Species Act (ESA) overlap to some degree with those under NEPA.
The following comments are based on: the ESA; the Fish and Wildlife Service's implementing regulations (50 C.F.R. Part 17 and 402); relevant ESA guidance, including the Service's Habitat Conservation Planning Handbook [Nov. 1996, updated June 2000, 65 Fed. Reg. 35242)]; Council on Environmental Quality (CEQ) regulations (40 C.F.R. Part 1500 et seq.); and the Department of the Interior's policy implementing NEPA (Part 516 of the Departmental Manual). We have also coordinated this response with our Regional Office.
The Service must comply with NEPA before issuing an Incidental Take Permit for a federally listed species. In doing so, we first determine whether or not a proposed project will have low effects, and therefore qualify for a categorical exclusion as a low-effect HCP. The HCP handbook details the low-effect criteria that must be met as related to federally listed species and the environment in general. The Handbook (at 1-8 through 1-9) states that:
The Service must consider each HCP on a case-by-case basis in determining whether it belongs in the low-effect category, taking into account all relevant factors including biological factors. The determination of whether an HCP qualifies for the low-effect category must be based on it anticipated impacts prior to implementation of the mitigation plan. Id. at 1-9 (emphasis in original).
The Department Manual identifies the criteria for categorical exclusions pursuant to NEPA, and further enumerates those activities for which a categorical exclusion may be claimed. Departmental categorical exclusions are listed at 516 DM 2, Appendix 1. A subset of these applicable to the Service are listed at 516 DM 8.5. Low-effect HCPs, as opposed to all other ESA Section 10 permits, are included on this list of categorically excluded activities. But the Departmental Manual, consistent with the CEQ regulations, contains a list of extraordinary circumstances to be considered when using categorical exclusions (516 DM 2, App. 2). The Departmental Manual (516 DM 2.3 (A)(3)) states that:
[a]ny action that is normally categorically excluded must be subjected to sufficient environmental review to determine whether it meets any of the extraordinary circumstances, in which case, further analysis and environmental documents must be prepared for the action.
Since we do not currently have an HCP in hand to review for this project, our comments are predicated upon our understanding of the scope, location, and anticipated effects of the proposed project, primarily its potential effects on federally listed species. Critical questions in making the low-effect determination are as follows:
1. Are the effects of the HCP minor or negligible on federally listed, proposed, or candidate species and their habitats covered under the HCP prior to implementation of the mitigation plan? (HCP Handbook, pp 1-8 and 1-9)
Two juvenile male Indiana bats were captured at a mist-net location in the Shaffer Mountain project area on August 8, 2007. The Service typically considers the capture of a reproductive female Indiana bat (pregnant, lactating, or post-lactating) or juvenile Indiana bat during the May 15 to August 15 survey window to be indicative of the presence of a maternity colony. Because the captured Indiana bats were juveniles, they were not fitted with transmitters. Therefore, with the exception of the capture location, there are no data available regarding the location of extent of Indiana bat roosting and foraging habitat, or how this relates to the project area. Nevertheless, the presence of Indiana bats in the project area raises significant concerns. Based on bat mortality at other wind facilities in the eastern United State, the risk of Indiana bat mortality at the Shaffer Mountain site cannot be discounted. Consequently, based on currently available information, we cannot conclude at this time that the project will have minor or negligible effects on the Indiana bat. 1 As discussed during our October 24 meeting, it is possible that additional data may better define the risk associated with this project, perhaps supporting Gamesa's assertion that the risk to Indiana bats is minor or negligible.
2. Are the effects of the HCP minor or negligible on other environmental values or resources prior to implementation of the mitigation plan? (HCP Handbook, pp. 1-8 and 1-9)
The project will include installation and long-term operation of 30 wind turbines. In addition, it will require the construction of 20.62 km of linear features to support the turbines, including transmission lines, turbine corridors, access roads, and cable corridors. As a result, 170 acres of land will be disturbed, most of which is currently forested. Direct impacts to streams and wetlands have been avoided or minimized, and the amount of forest clearing had been minimized to the extent practicable. However, in addition to the project's construction impacts, long-term operation of the turbines is likely to have an effect on bats, and potentially on birds, that is more than minor or negligible, as discussed below.
At this time, we do not have sufficient project information to determine whether or not effects on other environmental values or resources (e.g., geology and soils, water quality and quantity, visual resources, recreation, etc.) may also be more than minor or negligible.
[The complete letter can be accessed by clicking on the link below]