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October 8, 2012

Group: Bat care plan is unsound

Draft suffers from ‘various legal flaws’

OAKLAND — Multiple conservation organizations, including Save Western Maryland, an Oakland-based, grassroots community act-ion group, have filed comments in response to the Criterion Wind project’s Habitat Conservation Plan, which outlines Criterion’s proposed minimization measures to reduce harm to an endangered bat species.  

Save Western Maryland provided comments on the U.S. Fish and Wildlife Service draft Environmental Assessment and Criterion Power Partners LLC’s Incidental Take Permits application associated with a Habitat Conservation Plan.

The comments argue that the HCP and the draft EA “suffer from various legal flaws.”

Save Western Maryland believes that the HCP is not based on the best available science and is in violation of the Endangered Species Act; that a full environmental impact statement is warranted under the National Environmental Protection Act; and that the draft EA does not adequately analyze alternatives in violation of NEPA.

The comments also argue that without appropriate authorization, Criterion will violate the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act, leaving USFWS vulnerable to litigation.

“We raise various concerns with respect to the (USFWS) service’s and Criterion’s compliance with federal law, and request that the service and company address these concerns before issuance of any ITP,” states the comments.

Incidental take permits are required when non-federal activities will result in take of threatened or endangered species, according to the USFWS. The habitat conservation plan associated with the permit ensures that the effects of the authorized incidental take are adequately minimized and mitigated.

Save Western Maryland believes that Criterion is in violation of the Endangered Species Act because of the presence of the Indiana bat.

Attorneys provided documented audio of sounds of the Indiana bat during the construction phase of the wind project, said Eric Robison, co-founder of Save Western Maryland.

“Exelon is committed to operating the Criterion Wind Project in an environmentally responsible manner,” states the Exelon website.

“Special attention has been given to avoid, minimize and mitigate any potential wildlife impacts. We are also working with state and federal governmental authorities to avoid impacts to the Indiana bat, specifically working with governmental authorities in connection with the incidental take process.”

Criterion Powers Partners, which is a subsidiary of Exelon, owns the Criterion Wind Project, a 28-wind turbine project located on Backbone Mountain.

During its first full year of operation, Criterion conducted daily monitoring of all 28 turbines for bat and bird mortality between April 5 and Nov. 15, according to the comments. At least 706 bats were killed by the project, according to the monitoring.

That number didn’t include any endangered bat species, according to Robison.

In addition, according to the company’s data, there were 262 confirmed bird deaths in 2011 as a result of the project. Adjusting for searcher efficiency, scavenging and search area correction, Criterion estimates that, in 2011, the project killed 448 birds, which is described in the draft EA as the highest per-turbine bird mortality ever estimated at a studied wind project in the U.S. and as the highest per-turbine bird mortality ever documented in North America, according to the comments.

The migratory bird act protects most, if not all, birds that traverse the project on Backbone Mountain’s migratory pathway, according to comments.

“Collisions with Criterion’s wind turbines are anticipated to kill up to 448 birds annually — and each of those deaths will be a distinct violation of the MBTA in the absence of a permit because it is a strict liability statute,” states the comments.

The public comments, which were due Sept. 30, were also made on behalf of the American Bird Conservancy, Friends of Blackwater, Allegheny Highlands Alliance, Friends of Beautiful Pendleton County, Laurel Mountain Preservation Association, Allegheny Front Alliance and West Virginia Highlands Conservancy.

In 2010, the law firm of Meyer Glitzenstein & Crystal in Washington and multiple organizations, including Save Western Maryland, filed a lawsuit against Constellation Energy for violations of several federal environmental laws, according to Robison. The group decided to delay the trial so that Constellation could file an incidental take permit application with the USFWS, which it did in December 2011.

“We recognize the potential value and benefit of renewable energy in mitigating the anticipated effects of climate change,” states the comments. “We note, however, that any renewable energy project — or any energy project for that matter — must be sited, constructed and operated in a manner that is environmentally sustainable to obtain the purported benefits of that project. This includes full compliance with all federal environmental laws.”

Thus far no wind energy projects have received an incidental take permit from the USFWS, although several are in the process of trying to obtain them, said Robison. Robison is unsure of how long it will take USFWS to review the application and make a decision.

The time required to process the permit will vary depending on the size and complexity of the HCP, according to the application. The permit will expire Dec. 12, 2013.

Contact Elaine Blaisdell at eblaisdell@times-news.com.

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