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Habitat Conservation Plan in Developement - Indiana Bat
Fowler Ridge Wind Energy Facility, Benton County, Indiana
Overview and Background
The Fowler Ridge Wind Farm is collectively owned by BP Wind Energy, Sempra Generation, and Dominion Energy and currently consists of 355 wind turbines constructed through three development phases located in Benton County, Indiana (Figure 1.1). The overall proposal for the Fowler Ridge Wind Farm is to develop five phases for a total of 1,000 megawatts (MW); however, planning has only occurred through Phase IV at present.
Post-construction monitoring studies of birds and bats were conducted within the existing development (Phases I, II and III) during 2009 and 2010 by Western EcoSystems Technology, Inc. A casualty of an Indiana bat (Myotis sodalis), a federally endangered species, was found by Fowler Ridge Wind Farm personnel during the fall of 2009, and a second Indiana bat casualty was discovered during the monitoring studies in 2010. As a result of these discoveries, Fowler Ridge Wind Farm is applying for an incidental take permit under Section 10(a)(1)(B) of the Endangered Species Act.
The Habitat Conservation Plan (HCP), a requirement of the incidental take permit application process, will outline the anticipated impacts of the proposed taking of Indiana bat and how those impacts will be minimized and mitigated to the maximum extent practicable. In addition, the HCP will identify how the conservation plan will be monitored and funded, and will explore alternatives to the taking during HCP development.
The purpose of the ESA is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved….” ESA § 2(b). ESA § 9 prohibits the "take" of any species of fish or wildlife listed under the ESA as endangered or threatened. Under the ESA “the term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect species listed as endangered or threatened, or to attempt to engage in any such conduct.”
ESA § 10(a)(1)(B) of the ESA provides that the Secretary may authorize, under certain terms and conditions, “any taking otherwise prohibited if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” To obtain this incidental take authorization, a non-Federal landowner or land manager must apply for an incidental take permit, and develop, fund, and implement a USFWS-approved HCP to minimize and mitigate the effects of the proposed taking.
As outlined in the ESA and its implementing regulations, an applicant must submit an HCP with its application for a permit. The HCP must specify:
An incidental take permit will be issued if, after a specified public comment period, it is found that the permit application and related HCP meets the following issuance criteria outlined in the ESA:
As stated in ESA, an incidental take permit may be issued only if the proposed take is incidental to an otherwise lawful activity. For this reason, all other laws must be complied with before the permit can be issued.
National Environmental Policy Act (NEPA)
The National Environmental Policy Act (NEPA), passed in 1969, requires Federal agencies to examine environmental impacts of their actions and provide for public participation. Issuance of an incidental take permit is a Federal action subject to compliance with NEPA. To comply with NEPA, the USFWS must conduct detailed analyses of all direct, indirect, and cumulative impacts of issuing the permit on the human environment, not just on the covered species or resources. The Service has concluded that the project is likely to have a significant impact and issued a Notice of Intent (NOI) on May 25, 2011, (76 FR 30384-30386) to prepare an Environmental Impact Statement (EIS), which involves a detailed evaluation of the effects of the Federal action and alternatives to mitigate these effects.
Other Regulatory Requirements
The Bald and Golden Eagle Protection Act of 1940, (Eagle Act), and its implementing regulations, provides additional protection to bald and golden eagles. In this statute the definition of “take” is to “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest, or disturb.” In September 2009 the USFWS issued a rule to “authorize limited take of bald eagles and golden eagles under the Eagle Act, where the take to be authorized is associated with otherwise lawful activities.” The USFWS is currently developing the permitting procedure for authorizing incidental take under Eagle Act. In the interim, guidelines provided by USFWS recommend developing an Eagle Conservation Plan for projects that may potentially take eagles.
The Migratory Bird Treaty Act of 1918 prohibits the take of migratory birds, including any part, nest, or eggs of these birds. Currently, the MBTA has no permit provisions for take of migratory birds incidental to otherwise lawful activities. As with Eagle Act, the USFWS has developed draft wind energy guidelines to avoid and minimize potential take of migratory birds from development of wind energy facilities. To avoid and minimize impacts to MBTA-listed species, Fowler Ridge Wind Farm will develop and implement Avian Protection Plan (APP) to describe the measures it will take to conserve avian species.
The Indiana Nongame and Endangered Species Conservation Act (IC 14-22-34) is maintained by the Office of Code Revision Indiana Legislative Services Agency. Any species or subspecies of wildlife whose survival or reproductive parameters are in jeopardy or are likely within the foreseeable future and any species or subspecies designated under the federal ESA are deemed Endangered Species under the Indiana Nongame and Endangered Species Conservation Act (IC 14-22-34-1). According to IC 14-22-34-15, “the director may permit, under the terms and conditions that are prescribed by rule, the taking, possession, transportation, exportation, or shipment of species or subspecies of wildlife that have been designated by rule as in need of management or appear on the: State list of endangered species; federal ESA; list of wildlife added under section 13 of this Act; and the U.S. list of endangered foreign fish and wildlife; for scientific, zoological, or educational purposes, for propagation in captivity or the wildlife, or for other special purposes. There is no general provision under the Act for an incidental take permit.
At this time, the proposed term of the incidental take permit is 25 years. A 25-year incidental take permit term would provide for a minimum 20-year functional operation life of all turbines (Phases I, II, III, and IV), a 3-year window for construction of Phase IV of the Fowler Ridge Wind Farm, plus a 2-year window for decommissioning of the project. If, at the end of the 20-year operational life of the project, Fowler Ridge Wind Farm decides that it will continue to operate the facility it may apply for a new permit or for a permit amendment/renewal.
The proposed permit area for the incidental take permit includes those lands leased by Fowler Ridge Wind Farm for the operation of the Project (Figure 1.2). The turbines constructed for the Project are the primary component that may cause take of the Indiana bat; therefore, the permit area includes the locations of all 355 of the existing turbines of Phases I, II, and III, plus the proposed area in which Phase IV will be located (Figure 1.2). In addition, the permit area includes land leased for other facilities associated with the Project, such as the collection system, switchyard, meteorological tower, and connector lines.
The total area under lease for the Fowler Ridge Wind Farm is 54,880 acres (approximately 86 square miles). The landcover/vegetation type in which the Fowler Ridge Wind Farm is located is agriculture, primarily corn and soybean fields. All temporarily disturbed areas from construction and all areas above underground facilities (e.g., collector lines) for Phases I, II, and III were restored to the agricultural vegetation type post construction. Phase IV will also be restored to agriculture post construction.
Fowler Ridge Wind Farm is applying for an Incidental Take Permit for the Indiana bat (Myotis sodalis) for the covered activities. Indiana bat is currently listed as endangered under the Endangered Species Act.
Currently no other listed, proposed, or candidate species are known to occur within the project area. While the proposed HCP is for the endangered Indiana bat, the conservation plan that will be implemented by Fowler Ridge Wind Farm will also apply to other species of bats, including species that may be listed in the future. The potential future listing of additional species of bats is considered a foreseeable changed circumstance and will be addressed further in the HCP.
Last updated: June 10, 2014