United States Department of the Interior

Transcription

1 United States Department of the Interior March 31, 2011 FISH AND WILDLIFE SERVICE Maine Field Office Ecological Services 17 Godfrey Drive, Suite #2 Orono, ME (207) Fax: (207) Nicholas D. Livesay Pierce Atwood One Monument Square Portland, ME Dear Mr. Livesay: On March 14, 2011, the U. S. Fish and Wildlife Service (Service) received the Fox Island Wind, LLC (P1W) wind project s eagle and avian mortality monitoring report and preliminary Project Description Outline for an incidental take permit under the Bald and Golden Eagle Protection Act (BGEPA). We last corresponded in November 2010 when you inquired about the process for receiving an incidental take permit for bald eagles under BGEPA. The Service has repeatedly expressed concerns about what we believe to be high risk to bald eagles, migratory birds and bats at the F1W project a 3 turbine (1.5 MW) project located on Vinathaven Island in the middle of Penobscot Bay. We summarize the history of our concerns below: On December 16, 2008 the USDA submitted a copy of a biological report for the Vinaihaven Wind proposal. We had no contact with the applicant and thus, no input on the methodology used in this report. On January 5, 2009 the Service provided our initial formal comments to the USDA Rural Development Utilities Program. In our letter we expressed concern about the location of this project in respect to migratory birds and bats, federally-listed species (migrating piping plovers and roseate terns), and in particular bald eagles. We commented on the inadequacy of pre-construction spring and fall bird and bat migration studies. We provided maps documenting one of the densest nesting eagle concentrations in Maine located within 4 miles of the proposed project. The closest known nests were 0.8, 1.2 and 1.3 miles distant. We also commented on the P1W pre-construction report concerning the large number of bald eagle observations during the fall 2008 migration, nearly all occurring in the potential rotor swept zone. Based on this information we concluded that this project, if built, would represent a substantial risk to bald eagles. In meetings with the Island Institute and P1W on February 9, 2009 and April 16, 2009 we strongly reiterated our many concerns about the high risk of this project to birds and bats, and requested further studies and risk assessment for these species. Because of the high bald eagle use of the area, we requested further documentation of resident and migratory bald eagles before application for construction permits. We requested a risk assessment be conducted to model projected take of eagles and whether avoidance mechanisms could reduce risk. We provided information concerning sea eagle mortality at coastal wind TAKE PR1DE ~tf INAM ER1CA~,<

2 projects in Norway, Japan, and Australia. We requested that radar and other studies be done to document migratory bird and bat use of this location. We requested development of an Avian and Bat Protection Plan among other measures to avoid and minimize impacts to migratory birds, bats, and eagles. Similar concerns and requests were raised by Maine Department of Inland Fisheries and Wildlife biologists who attended these same meetings. On March 20, 2009 USDA provided a pre- and post-construction monitoring plan to the Service and MDIPW for review. On April 16, 2009 the Service provided extensive comments. Because of the high risk to trust resources, we recommended two full seasons of radar studies, raptor surveys and acoustic surveys for bats. We recommended an analysis of other wind generating technology and locations. We recommended bald eagle nesting surveys to fully understand the nest locations and population at risk. We recommended that site use by resident eagles be evaluated in the summer. We sunmiarized information on sea eagle mortality at coastal wind projects worldwide and requested an eagle risk assessment be done. We recommended that P1W evaluate site avoidance measures and post construction operational avoidance measures to reduce risk to eagles. We recommended monitoring measures and advised that the applicant would likely be required to pursue a BGEPA permit if construction was being contemplated. Given these serious concerns, we were surprised to learn that USDA funded the project in early June, USDA informed us that P1W approval was based on continued coordination with MDIFW and USFWS, completing an Avian and Bat Protection Plan, and implementing the appropriate level of mitigation to reduce impacts to bald eagles and migratory birds (this would include seasonal shutdowns). To date, these plans and mitigation measures have not been provided to the Service. There were no wetland impacts for the project, thus no Army Corps of Engineers (ACOE) permits, and the ACOE was not required to consult with the Service under the Endangered Species Act (ESA). USDA did not request Section 7 consultation with the Service even though we raised concerns in our letter concerning the federally-listed piping plover and roseate terns that could fly through the project area. On June 29, 2009 we were surprised to learn that groundbreaking for the project occurred despite the many concerns that we raised concerning this project. The reports you sent recently represents the first communication concerning bird studies between FIW and the Service since August, In s dated August 3 and 10, 2009 from FIW project environmental consultant Richard Podolsky we learned that larger numbers of eagles were being seen, possible juveniles from a local nest were observed in the project location, and summary reports would be provided to the Service and IvIDIFW after each season. In an dated August 4, 2009 to Mr. Podolsky we stated We are concerned that the project is proceeding on Vinalhaven despite concerns raised about eagles. There has been no communication from the applicant concerning your data or how they plan to avoid, minimize, and mitigate effects to eagles. We continue to have concerns about the siting of this project and its potential impacts to eagles and migratory birds. We have not seen any eagle data since your original draft report months ago and look forward to discussing this with you and the applicant. The absence of migratory bird surveys associated with this project is also of concern. These plans and reports were not provided to the Service until March In November 2010 Pierce Atwood contacted the Service to inquire about procedures for obtaining a BGEPA take permit.

3 Comments concerning the March 2011 bald eagle and bird mortality report We have reviewed your March, 2011 report Observation of Bald Eagle and Osprey Passage and Avian Mortality Observed at the Fox Islands Wind Power Project Site and at Old Harbor, Vinalhaven Maine. Field Data Summary Through December 31, We have appended our comments concerning this report. In January, 2011, the Service released Draft Eagle Conservation Plan Guidance and U. S. Fish and Wildlife Service Draft Wind-based Energy Guidelines Given the high density of nesting and migratory eagles, large concentration of migratory birds and bats on the Maine coast, and long periods of low visibility (fog) that occur along Maine we believe the P1W project has a high probability of adverse effects to birds and bats. The P1W did not conduct pre-construction radar surveys to document migratory bird and bat use of the site, however, there is considerable scientific information documenting concentration of migratory bird flyways along the coast of Maine. FIW has not provided the Service with a draft Avian and Bat Protection Plan. We recommend that a plan be developed with the Service following the guidelines referenced above. Our primary concerns with your report are: That methods used in your preliminary eagle collision risk assessment need to be more rigorous and better defined. We request that you evaluate whether the methods you used and data collected can be applied to the Service s eagle risk analysis for wind power projects (see Appendices C and D of the Draft Eagle Conservation Plan Guidance ( We suggest at least an additional 3 years of eagle surveys using methods outlined in the Draft Eagle Conservation Plan, focusing effort on high use periods of the year. We also recommend nest monitoring within 10 miles of the project as outlined in the Plan. The methods you used in your evaluation of bird and bat mortality need to be more rigorous and better described. Your finding of only two birds killed at the project could be low because a) your bird and bat mortality survey was not frequent enough (your own quail data suggest many birds could be scavenged), b) the search grid did not cover a substantial portion of the area between 200 to 500 feet, and c) the searcher efficiency may be biased because large quail carcasses are easier to find than small birds and bats. We suggest searches be more frequent (at least once a week throughout the year, preferably twice a week during peak migration and high bat mortality periods, and daily during adverse weather conditions during peak spring and fall migration). A search grid should cover the entire area of concern, and that searcher bias methodology be reassessed. Methods should follow the Service s recommendations in the U. S. Fish and Wildljfe Service Draft Wind-based Energy Guidelines gov/windenergy/ We still lack basic information concerning coastal migration of birds and bats at this site. Further studies using radar and anabat detectors in conjunction with other studies currently ongoing along the coast of Maine could better document potential risk of the FIW project to these species. We encourage further studies that could help FBV identify times of high risk and avoid and minimize take of migratory birds and bats. An adaptive management component could be developed as part of an Avian and Bat Protection Plan. See U. S. Fish and Wildlife Service Draft Wind-based Energy Guidelines for additional guidance on how this can be done. Response to a request to initiate an incidental take permit under the Bald and Golden Eagle Protection Act (BGEPA). We are in receipt of the FIW Project Description Outline and are currently reviewing whether a BGEPA permit can be issued. Eagle passage rates at this site seem to be high (estimated 964

4 passes within ½ mile/year), and are much greater than for many wind projects that we have reviewed inland. Permits under BGEPA (50 CFR 22.26) can be authorized for limited, incidental mortality and disturbance of bald eagles. The BGEPA allows for take of bald eagles only after a full evaluation of the take likely to occur, assessing whether take can practicably be avoided, whether take would be compatible with the preservation of the bald eagle, and whether a take permit could be issued based on permit thresholds. Any permit issued requires that conservation measures be implemented to avoid and minimize take of eagles to the maximum degree possible such that any remaining take is unavoidable. We recommend coordination with the Service prior to submitting a permit application in order to identify and implement these conservation measures. Mitigation may be required to compensate for any remaining unavoidable take. Wind project applicants are encouraged to apply for a programmatic permit under 50 CFR As part of the application, project proponents will be asked to provide data on eagle home ranges, nesting, foraging and migration within the project area, as well as methods employed to reduce risk to the point where any remaining take is unavoidable. The Service s Draft Eagle Conservation Plan Guidance provides detailed information for data collection, risk assessment, examples of appropriate avoidance and minimization measures and Advanced Conservation Practices (ACPs). The collection of biological data for programmatic permits is the responsibility of the applicant and must include information regarding the dynamics of the local area populations. A minimum of 3 years of survey data should be included to evaluate the probability and magnitude of take. The evaluation should determine if there are breeding territories, communal roosts, or important foraging areas within 10 miles. The location of migration corridors in relation to the proposed site may also have critical implications. Project proponents are encouraged to develop an Eagle Conservation Plan (ECP) in order to address the required components. In order to process a permit application, the Service will need to assess the project in terms of proposed risk to bald and golden eagles, conservation measures applied, monitoring of fatalities and other effects, and future efforts to reduce mortality if take exists at unacceptable levels. In order to accomplish this, the Service will need additional information on eagle populations, proposed efforts to reduce on-going risk to eagles, conservation measures to be implemented, proposed monitoring plan for the life of the project, and proposed mitigation to compensate for unavoidable take. The information currently provided is not sufficient to accurately assess risk to eagles at the project site. We recommend that you supplement this information with up-to date surveys of eagle nest locations, within 10 miles of the project area, and eagle exposure surveys as described in App. C and D of the Draft Eagle Conservation Plan Guidance. Once this information has been provided, we can conduct a risk assessment, determine whether risk at this project is consistent with permit requirements and pursue a permit application.

5 We look forward to working with you to reduce risk to migratory birds, bats, and eagles at the FIW Vinalhaven Wind Power Project. Please notify our office to discuss the next steps needed to pursue an incidental take permit under the Bald and Golden Eagle Protection Act and to avoid take under the Migratory Bird Treaty Act. Please contact Mark McCollough (Maine Field Office ext. 115) and Sarah Nystrom (Region 5 Eagle Act Coordinator ). Sincerely, Laury Zicari Project Leader cc: Sarah Nystrom, USFWS Charlie Todd, MDIFW Steve Timpano, USFWS Lauren McGee, USDA

6 Comments on the FIW Observation of Bald Eagle and Osprey Passage and Avian Mortality Observed at the Fox Islands Wind Power Project Site and at Old Harbor, Vinalhaven Maine. Field Data Summary Through December 31, 2010:. P. 4 The Service s Draft Eagle Conservation Plan Guidance for wind power (January 2011) documents why migratory and transient bald eagles and eagles nesting within 10 miles of wind project are potentially at risk of mortality. Our data indicate there are at least 33 known nests (- 16 territories) within a 10 mile radius of the project and 12 nests (~-7 territories) within4 miles of the project. MDIFW has not conducted nest surveys since There could be more nests and territories in the project area and some nesting pairs may have new nesting locations. Per our Eagle Conservation Plan Guidance, we recommended that P1W conduct nest surveys annually within 10 miles of the project. Sample sizes (3 to 6 days of passage rates per month) of eagle surveys are small. Increased sampling during specific time frames (spring and fall migration, nesting, and possibly wintering) would provide better estimates of eagle use. It would have been particularly useful in the post-construction phase to document how many eagles actually flew through the rotor swept zone. What was their behavior upon encountering the turbines? Was flying through the rotor swept zone proportional to the total passing within ½ mile or was there evidence of avoidance? Eagle passes through the project area were not described well. For example, were eagles with soaring/circling flight patterns counted as a single pass? Eagle behavior at the site is of particular concern. Soaring flight patterns considerably lengthen the time eagles are in the project area and thus increase risk vs. short-duration flights through the project area. Were observations made during periods of inclement weather (fog) when turbines may not be as visible to eagles? What portion of time are the Vinalhaven turbines enshrouded in fog or poor weather conditions? These factors should be considered when evaluating risk to eagles, birds, and bats. What is the projected life of the project? Models to project increasing eagle populations (both nesting and migration) may help predict how probability of risk may increase with Maine s (and the region s) growing eagle population. P1W did not present data for spring and fall raptor migration of all raptor species, which would have been useful. Were all raptor passes documented during eagle and osprey surveys? Was there focused effort on raptor surveys during spring and fall migration? The coast of Maine is known to funnel large numbers of migrating raptors. Questions similar to the previous bullet should be addressed for all raptors. Methods of estimating avian mortality are questionable. Survey frequency (once per month, except for twice monthly during spring and fall migration) is very infrequent compared to other wind projects in Maine (for example weekly and twice a week during peak migration or to check searcher efficiency). The transect pattern (radial vs. grid) could have left large areas of the grid unsurveyed (it is unlikely for observers to detect small bird and bat carcasses >2 m. from a transect). It would be helpful to indicate the rotor swept, cleared, and forested areas for each turbine in Fig. 1 to understand how the transects relate to the position of the turbine blades and habitats. The radial method may have concentrated searching closer to the tower where birds and bats are most likely to be found, but is less efficient in areas further from the turbine. Quail are large (i.e. conspicuous) birds to use for efficiency trials. Most other wind projects use small birds and bats provided by wildlife care facilities. The methods (number of trials, placement methods, blind trials or just eye-balling how far carcasses could be seen) is not well documented in the report. It is not reported how frequently and

7 what time of year efficiency trials were conducted. Appendix 4 was not included with the report. The Service did not recommend an alternative (control) survey site, (Old Harbor) for eagle survey, but the state of Maine apparently did. We would have preferred this effort was focused on the project location, thus potentially doubling the amount of observation time. p. 18 The last statewide bald eagle survey conducted by MDIFW was in Bald eagle nest surveys conducted by USFWS and MDIFW in 2009 and 2010 are of limited scope and part of a coastal contaminant study conducted by USFWS. These surveys do not include a comprehensive search of shoreline for new nests. Surveys were not conducted in There could be more eagle nests within the vicinity of the P1W project. There has been no attempt to assess eagle productivity pre- and postconstruction, which is of particular concern for the nests closest to the FIW project. P. 23 carcass removal trials are conducted on a daily basis at other wind projects. By checking carcasses less frequently, the trials did not yield data from which to refine your bird mortality survey method. For example, at another wind power project in Maine, bird and bat carcasses remained an average of 7.4 days (birds 6.1, bats 9.5 days). Your conclusion that the 24 quail simply decomposed off the site is not convincing, especially given that all 9 quail placed in May, 2009 were gone within 19 days and 9 quail placed in winter of 2009 were gone (not decomposed) on site (the length of time present being extended because they were buried in snow for much of the trial period). Conversely, one may use the same data to argue that there was substantial removal of carcasses occurring at the site and your sampling frequency (once or twice a month) was not sufficient to detect many birds and bats that may have been killed. p. 23 Searcher efficiency may have been lower if smaller birds and bats had been used instead of quail. It was not clear whether these were blind trials (i.e. did observers know quail carcasses had been placed or not). P. 24. Although it may be useful to condense eagle data into averages, averages may obscure particular times of year and situations when vulnerability is particularly high (i.e. mid-day hours, November migration, certain weather conditions, presence of juvenile birds from nearby nests). There also seemed to be considerable annual variation. Variance would likely be reduced with increased eagle survey frequency. These factors should be considered in future risk analyses. Were pre- and post-construction passage rates of eagles significantly different (after normalizing data for various factors)? P. 25. It is unclear how you calculated an area of 500 acres airspace within ½ mile of the turbines. (For example, a rectangular area 1.5 miles long by 500 feet high is 91 acres and the rotor swept area of 3 acres would represent 3% of the rectangle). A diagram would be helpful. The text implies a ½ mile diameter circle, but how does this relate to how the towers are spaced on the hilltop? Is the airspace polygon an arc, or a rectangle, and of what height and dimensions? How are the dimensions of this polygon informed by the eagle flight data that you measured? The analysis assumes a random distribution of eagles, but the field data suggest their height above ground level is not random (the majority flying under 500 feet above ground level). How does the estimate of 6 eagles flying through the rotor swept zone per year compare with the actual observations of eagles flying through the rotor swept zone? The Podolsky (2008) article is not available to us. Can you provide a copy? Is this publication (a patent application) peer reviewed? Again, statistics presented as averages, although useful, can obscure certain times of year, weather situations, and species differences eagles, warblers, and bats obviously have different risk when encountering the rotor swept zone because of different flight speeds, flight behaviors, avoidance behaviors, and size. These calculations are very

8 sensitive to the percentage of birds that avoid the rotor swept zone and avoid rotors when in the zone and there is little field data to support these critical measures. It would seem some of this critical data may have been collected for eagles in this study. We need to see the assumptions that accompany your model before we can comment fully on its applicability. p. 26. We do not concur with some of the statements made comparing FIW to Smola Island Norway, where there has been significant mortality of white-tailed sea eagles. There are 60 to 70 pairs of eagles in the whole Smola Island archipelago, an area covering approximately 30 X 40km (see Fig. 23, Bevanger et al Pre- and postconstruction conflicts between birds and wind turbines in coastal Norway. NINA Report p.). A comparable area in Penobscot Bay in coastal Maine has at least 40 territories (see attached figure). Thus the density of eagles in Maine and Norway are similar. The Smola Island wind project is much larger than Vinalhaven and bad 13 pairs of eagles within the project area or within 500 m, which has been reduced to only 4 pairs by 2010 because of mortality from turbines. The proportional analyses presented on page 26 are inappropriate to compare the risk between these two disparate projects. Our point in raising the Smola and other wind projects is that sea eagles are vulnerable to take. Each wind project is different. Your own data suggests high use of the Vinalhaven site by bald eagles and we are concerned about potential take. p. 27 Your findings of only two dead birds during the first year of operation could be low because a) your bird mortality survey was not frequent enough (your own quail data suggests many birds could be scavenged), b) the search grid did not cover a substantial portion of the area between 200 to 500 feet, and c) the searcher efficiency may be biased because large quail carcasses are easier to find than small birds and bats. We suggest that searches be more frequent (at least once a week and preferably twice a week during peak migration and high bat mortality periods), a search grid cover the entire area of concern, and that bias methodology be improved.

9 Vinalhaven wind project and eagle nest locations j~ / Lincolnville.7 -- a / -ookli Camden N Islesboro Deer isiehaflcotk County Island N a. C / a..,_~ a... // a,. a-. / St~rtington I I / / I * I / a., / sle au Hau Legend bcd poly RTE po nts-2006 RTE polys-2006 MDIFW Heritage State legal status(sprot) Endangered Threatened Special Concern Other coastline a county - state town water land scie Ridge Shoals Twp t PIt Island 4-41 I 4i~le. io ~,Ia r~ak.s Vinaihaven Miles Data from USFWS. MDIFW & MNAP. Maine Area of detail a mao made: file name: map maker