Allegheny Front Alliance 94 Orchard Street Keyser, WV 26726 304 788-5112 Alleghenyfrontalliance@frontier.

com

"To protect the Allegheny Fronts cultural and natural environment" Reference:
Comments for Eastern Small-Footed Bat and the Northern Long-Eared Bat 90 Day Finding. Docket No. [FWS-RF ES-2011-0024] Attention US FWS, 4401 N. Fairfax Drive, MS 2042PDM, Arlington, VA 22203

Allegheny Front Alliance (AFA) represents interested community members concerned over the construction and proposed development of industrial wind turbine projects. Allegheny Front Alliance, created in January 2009, opposed the development of two West Virginia Projects, AES New Creek Project and the Pinnacle Project, now approved by the West Virginia Public Service Commission. AFA offers comments and recommendations. Pre-construction field studies identified the smallfooted bat at the Pinnacle Wind Project, LLC and AES New Creek Projects. These projects are located in Mineral County and Grant County West Virginia. AFA believes there are serious environmental issues industrial wind corporations ignore. Effective regulation is critical to protect and conserve unique biological, ecological resources surrounding these projects. In February 2011, AFA co-supported with Friends of Blackwater to seek and urge companies developing and operating the Mount Storm and New Creek wind power facilities, and the U.S. Fish and Wildlife Service (FWS or Service), the federal agency entrusted with enforcing the Endangered Species Act, 16 U.S.C. 1531 et seq., (ESA), the Migratory Bird Treaty Act, 16 U.S.C. 703-11 (MBTA), and the Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d (Eagle Act), to take concrete, expeditious measures to avoid, minimize, and mitigate these projects impacts to wildlife.1
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Available at: http://www.saveblackwater.org/documents/Mount%20Storm%20& %20AES%20New%20Creek%20Wind%20Energy%20Projects_Letter%202-9-11.pdf. This document references other wind project studies, developers letters, and historical background. Letter source is Meyer Glitzenstein & Crystal 1601 Connecticut Avenue, N.W. Suite 700 Washington, D.C. 20009-1056. Also at: http://www.psc.state.wv.us/scripts/WebDocket/ViewDocument.cfm? CaseActivityID=319047&NotType='WebDocket' 1

The threat posed by wind power facilities is particularly concerning because huge numbers of bats are now dying from White-Nose Syndrome (WNS). WNS has emerged as a significant threat to bat populations. In some hibernacula, the FWS reported mortality rates of 90 % or more. The effects of this disease, the cause of which is unknown, have been observed in West Virginia, and the neighboring states of Virginia, Pennsylvania, and Maryland. In fact, the West Virginia Department of Natural Resources has reported that WNS is present in Hellhole Cave, West Virginias largest bat cave. Press Release, W.V. Dept of Natural Res. West Virginias Most Important Bat Cave Has White-Nose Syndrome (Feb 23, 2010).2 AFA supports the US FWS listing the eastern small-footed and northern long-eared bats as threatened or endangered under the authority of the Endangered Species Act (ESA). At the core of scientific management of fish and wildlife is science supported by theory, methods and findings. Rarely does only one study produce unequivocal and robust results. The National Academia of Science represents distinguished scholars dedicated to furtherance of science and technology and to their use for the general welfare. Through Congressional mandate, the Academy requires to advise federal government on scientific and technical matters. Six guiding principles underlie all scientific inquiry.3 1. Pose significant questions that can be investigated empirically. 2. Conduct and link research to relevant theory. 3. Use methods that permit direct investigation of the question. 4. Provide a coherent an explicit chain of reasoning. 5. Replicate and generalize across studies. 6. Disclose research to encourage professional scrutiny and critique. Kuntz (2007) recommends, Results of scientifically sound research and monitoring studies are needed to inform policy makers during the sitting, permitting, and operation of renewable energy sources. Although bat fatalities at wind turbines have been reported at nearly every wind energy facility where post-construction surveys have been conducted, few of these studies were designed to estimate bat fatalities and only a few included a full season or more of monitoring. Rigorous protocols should include reliable estimates of searcher efficiency and scavenger removal to correct fatality estimates for potential biases. 4

Available at, http://www.wvdnr.gov/2010news/10news031.shtm Shavelson, R.J, & Towne, L (Eds.) 2002 Scientific Research in Education. Washington, D.C; National Academy Press. Executive Summary & Introduction, pp. 1-16. Access on line, http://www.nap.edu/catalog.php?record_id=10236
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AFA is concerned how developers and hired consultants interpret study results towards wildlife protection. AFA asserts developers too often make a number of scientifically and misleading and inaccurate statements regarding bat endangerment. In this petition, AFA cites and reference several documents that US FWS should review and examine concerning these species, including habitat destruction and degradation, disturbance of hibernation areas and maternity roosts and impacts related wind turbine construction and operation and impacts related to White Nose Syndrome. Existing regulations of these activities may be inadequate to protect these two species. These documents are crucial for providing additional information for a status review. This includes additional data related to existing habit, feeding and sheltering, historical and current range, counts, critical habitat and supporting data and studies. AES New Creek Project
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(1) Study: Fall 2007, Bird and Bat Migration Survey Report, Visual radar, and acoustic bat surveys for the New Creek Mountain Project, WV. Prepared for AES New Creek, LLC, 4300 Wilson Blvd., Arlington, VA 22203. Prepared by Stantec Corporation, (formerly Woodlot) March 2008.6 Findings: The consistently high nightly number of recordings at the talus detector may indicate the presence of a valuable and frequently used habitat within the Project area. This could be habitat used for roosting by eastern small-footed Myotis and foraging habitat for a variety of species. Furthermore, the documentation of the highest Myotis detection rate at the talus detector suggests a potential presence of valuable foraging and roosting small-footed bat habitat.
(2) Study: New Creek Mountain Bird and Bat Risk Assessment: A Weight-of-Evidence

Approach to Assessing Risk to Birds and Bats at the Proposed New Creek Mountain.7
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Kunzi, T. H., Arnettz, Edward B., Erickson, Wallace P., (2007). Ecological impacts of wind energy development on bats: questions, research needs, and hypotheses. Front Ecol Environ, 5(6), 315-324.

AES New Creek, LLC Case 08-2105 E-CS Available at: http://www.psc.state.wv.us/WebDocket/default.htm Use case number 08-2105
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Available at: http://www.psc.state.wv.us/WebDocket/default.htm Use case number 08-2105

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Available at: http://www.psc.state.wv.us/WebDocket/default.htm Use case number 08-2105 3

Project, West Virginia. Prepared for: AES New Creek, LLC 4300 Wilson Boulevard Arlington, VA 22203. Prepared by: Stantec Consulting 30 Park Drive Topsham, ME 04086 Stantec December 2008. Findings: Two West Virginias bat species are federally listed as endangered, and four other species are classified as either imperiled (S2) or critically imperiled (SI) by West Virginias Natural Heritage Program. West Virginia does not have state endangered species legislation; species listed as imperiled or critically imperiled are not provided any legal protection in the state. Eastern Small footed bat is an S-1 status or critically imperiled. Results of the risk assessment suggest that potential impacts to bats consist largely of collision mortality during the spring and fall migration seasons. The documentation of collision mortality at operational wind facilities is during the summer, and bats likely reside within the Project area year-round, bats seem most vulnerable to collision during the fall migration period based on results from post-construction surveys at existing facilities. Long distance migratory species are most vulnerable to collision mortality, as they appear more vulnerable than other species and were well represented in the results of acoustic surveys. Onsite mist-netting surveys suggest that members of the genus Myotis, including the uncommon small-footed Myotis (Myotis leibii), are the most abundant bats within the Project area. Acoustic surveys documented an apparent peak in migratory bat activity during the fall. No Threatened or Endangered bat species were documented within the Project area. As such, the risk to bats from the Project will vary by species and time of year but is expected to consist primarily of collision mortality to long distance migratory bats, particularly during the fall migration period. (3) Letter: To Mr. Trevor Peterson, Stantec Consulting, 30 Park Drive Topsham, Maine 04086. Letter from Deborah Carter, West Virginia Field Office (US FWS), 694 Beverly Pike Elkins, West Virginia 26241, dated September 30, 2009.8 Twenty-one pages, Remarks and recommendations: Data collected during surveys and radio-telemetry work indicated that the project area provides important habitat for the small-footed bat (a state-listed sensitive species), as well as foraging habitat for other bat species, including the hoary bat, the red bat, and state-listed sensitive silver haired bat. In addition, these rocky slopes and cliff faces support a variety of other sensitive wildlife species in the region (e.g., Allegheny woodrat). To protect these sensitive resources, the Service recommends avoiding impacts to talus and rocky outcrop areas that may be used as roost sites by small-footed bats and other sensitive species. However, because of variability in populations and detection rates due to a variety of local and regional factors, one year of data does not necessarily reflect overall species composition or abundance at a site. Thus, the Service recommends .Available at: http://www.psc.state.wv.us/scripts/webdocket/ViewDocument.cfm? CaseActivityID=280976&NotType='WebDocket'
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multiple years of pre-construction surveys in order to establish a more complete data set (Service 2003). Multiple years of pre-construction data can account for natural variations in population numbers and composition caused by varying weather conditions and other influences. Depending on the spread of white-nose syndrome in coming years and the susceptibility of these endangered bats to the disease, assessments of cumulative impacts to both these species and the status of many other bat species, could change dramatically including possible listing of new species under the Endangered Species Act. Bats tend to reproduce slowly and have longer life spans than birds; rates of collision mortality at existing wind farms tend to be higher for bats than for raptors, nocturnally migrating passerines, or breeding birds; and other risks to populations (e.&.. white-nose syndrome) are currently high for this group. We offer the following recommendations to avoid and reduce anticipated impacts to birds and bats and to document any mortality events or changes to the species populations and diversity due to construction and operation of the proposed New Creek wind power facility. These recommendations are based on currently available best scientific information. As new information becomes available, we reserve the right to modify these recommendations. (4) WV PSC _ Order, September 30, 2009 granting AES New Creek Project Approval 9 The potential impacts to bats are expected to generally follow patterns similar to those documented at other facilities, and will consist largely of collision mortality during the spring and particularly the fall migration seasons, with bat mortality potentially higher on warm, calm nights when long distance migratory species are expected to be the most vulnerable to collision mortality. AES New Creek Ex. TP-D pp. 25-26. To reduce the potential for impact on calm nights, the blades of the New Creek turbines will be feathered so as not to operate when wind speeds are less than 24 meters per second. Tr. I., p. 60 (Mr. Colman).10
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Available at http://www.psc.state.wv.us/WebDocket/default.htm September 30, 2009, AES New Creek, LLC, Commission Final Order granting AES New Creek a Siting Certificate for the Project summarized in this order and more fully described in the Application, subject to certain conditions, Use Case Number: 082105
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On November 04, 2009, AES New Creek, LLC filed for change in the commission order. Commission Final Order deleting the last sentence of the paragraph on page 22, of 9/30/2009 Order beginning Bats, and which reads, To reduce the potential for impact on calm nights, the blades of the New Creek turbines will be feathered so as not to operate when wind speed are less than 24 meters per second. Tr. 1, p. 60, etc. AES New Creek suggested that the Commission incorrectly interpreted Mr. Colmans hearing testimony appearing on page 60 of the Hearing Transcript. AES New Creek stated that the Commission could correct the error by deleting the last sentence of the paragraph. The order was granted November 4, 2009.

 AES New Creek also noted that eastern small-footed Myotis were detected during each of the three survey periods. Although rare throughout the State, eastern smallfooted Myotis appear to be common on New Creek Mountain. To understand the behavior of the eastern small-footed Myotis, Stantec conducted radio telemetry surveys to document roosting habits of this species on New Creek Mountain. Through the radio telemetry, Stantec detected a number of eastern smallfooted Myotis roosts on the western slope of New Creek Mountain, in the cleared transmission line corridor to the south of the Project, and in vertical rock cliff faces within Greenland Gap. Given their current presence, following construction, eastern small-footed Myotis are still expected to forage within the Project area. However, these species are thought to primarily feed and fly below the tree canopy based on their small size and foraging habits. Therefore, Stantec suggested that collision mortality for the eastern small-footed Myotis is not expected to constitute as great a risk in comparison to migratory species. (5) Virginia Highlands Grotto Report entitled "The Proposed New Creek Mountain Wind Project's Proximity to Regional Endangered Bat Habitats and Possible Cumulative Effects", Prepared by Rick Lambert of the Virginia Highlands Grotto Of the National Speleological Society P. O. Box 151 Monterey, Virginia 24465 Prepared for: Allegheny Front Alliance 94 Orchard Street Keyser, WV 26726, January 29, 2009. 29 pages.11 Findings: The study purpose offers a regional perspective on the endangered bat habitat within migratory range of the proposed Project. Explain why there was a lack of endangered bat captures during mist-net surveys. Highlight the potential for impact to RTE species and common bats. Highlight the expected high mortality. Show the cumulative effects of multiple wind projects in the area. The proposed location for the New Creek Mountain Wind Project is located in this endangered bat recovery area and migratory corridor. The existing data summarized in this report suggests that Stantec has under estimated the impact to RTE bats and that Stantecs reports contain unreliable information. It is likely that the New Creek Mountain Wind Project will have a strong adverse effect on the populations of endangered bats and will impede their conservation and recovery.
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Available at: http://www.psc.state.wv.us/WebDocket/default.htm Use Case Number: 08-2105 Virginia Highlands Grotto Report entitled "The Proposed New Creek Mountain Wind Project's Proximity to Regional Endangered Bat Habitats and Possible Cumulative Effects", filed by Rick Lambert. Also at: http://www.psc.state.wv.us/Scripts/WebDocket/ViewDocument.cfm? CaseActivityID=258580&Source=OrderSearch

 The USFWS (2008) warned AES that if the predicted 78,250 to 112,125 bats deaths anticipated over the life of the New Creek Mountain Wind Project went unchecked, it could lead to population level-impacts to many species. At wind projects Kuntz et al. (2007), reports that no publically available post construction mortality surveys have documented fatalities of small-footed Myotis. Kuntz concluded that that large mortality rates across the species range could not be expected since the eastern small foot is uncommon.12 It is believed they migrate very small distances. (Best and Jennings 1997, Johnson and Gates 2008) 13 This is not the case of the AES New Creek Project. The largest documented numbers for small-footed bat are located at this project site. Bats do not have to migrate to be endangered. At the AES New Creek Project, risk increases because greater foraging time is within the turbine project site. Recent dietary studies of the eastern small-footed Myotis suggest the species gleans prey off vegetation (Johnson and Gates 2007); however, no published data of foraging behavior supports or refutes this statement. (Johnson and Gates 2008)14. The Allegheny Front Alliance fully supports the position to raise the level of the small-footed bat and northern long ear bat as threatened or endangered under the authority of the Endanger Species Act. This issue is extremely important to our members. We join others in requesting you not delegate enforcement of controls critical to the protection of wildlife to the businesses, which, by their very function, place wildlife and habitat in serious jeopardy. It is counter intuitive to think that profit making organizations which now ignore your requests will somehow hold themselves to higher standards should you decide to permit voluntary enforcement of rules so vital to the protection of these creatures. One needs look no further than the AES New Creek in West Virginia to see how voluntary enforcement requested by the wind lobby will play out in real life. Tony Colman, Vice President of AES wrote, May 18, 2011 the following statement concerning US FWS response for comments on Land-Based Wind Energy Guidelines If the Fish & Wildlife Service's Draft Land-Based Wind Energy Guidelines (FWS Guidelines) are implemented, they will quite simply prevent the creation of tens of thousands of jobs, result in the loss of tens of thousands of jobs, and have a negative impact on wildlife as other less wildlife friendly technologies will remain or will be built instead of wind. The flaws in the FWS Guidelines are significant, and I leave it to the
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Kunz, T.H., E.B. Arnett, W.P. Erickson, A.R. Hoar, G.D. Johnson, R.P. Larkin, M.D. Strickland, R.W. Thresher, and M.D. Tuttle. 2007a. Ecological impacts of wind energy development on bats: questions, research needs, and hypotheses. Frontiers in Ecology and the Environment 531 5-324. 13 Johnson, J.B., and E. Gates. 2007. Food habits of Myotis leibii during fall swarming in West Virginia. Northeastern Naturalist 14:317-322. Johnson, J.B., and E. Gates. 2008. Spring migration and roost selection of female Myotis leibii in Maryland. Northeastern Naturalist 15453-460.
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many others in the wind industry who will ably identify them and offer alternatives and solutions that the FWS should adopt. I urge you to reconsider the guidelines and change them to match the Wind Turbine Guidelines Advisory Committee Recommendations (FAC Guidelines). A failure to make substantial modifications to the FWS Guidelines will have serious negative consequences and quite candidly would be counter productive to the FWS' mission to "work with others, to conserve, protect and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the American people." The role of the USFWS is not to promote business, but to protect wildlife. The goal of the wind developer is to make as much money as possible. 15 Proper scientific inquiry and assessment requires that truly defensible scientific evaluations are independent16, comprehensive17, transparent18 and empirical19. AFA is concerned that AES New Creek project has submitted a package that does not offer protection to Eastern Small Footed bat or other wildlife. Any failure to satisfy all of these four fundamental criteria can render an assessment biased, incomplete, or flawed and will ultimately compromise the assessments conclusions and credibility. As with any truly objective review and evaluation process, the burden of proof rests on the proponents who seek approval or endorsement of their projects, and Federal regulators should conscientiously seek verification of the benefits before endorsing such strategies. This need is especially great for industrial wind energy, about which so little thorough and credible research (relative to the body of political debate on the subject) has been conducted. AFA appreciates the opportunity to comment upon the 90 Day Findings. Our organization sincerely hopes that the Service will consider its perspective in finalizing these important rules and safeguards for the Eastern Small Footed Bat and Northern Long Ear Bat. Frank OHara & Greg Trainer Co Chair Allegheny Front Alliance

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Available at: (http://online.wsj.com/article/SB10001424052748704629104576190812458488694.html 16 conducted by impartial and qualified researchers who wont benefit from one outcome or another. 17 addressing qualitatively the technical, economic, and environmental aspects of the proposed strategy. 18 presenting all supporting assumptions and data for public scrutiny. 19 based on real world evidence, not a chain of assumptions or modeled data.