[Federal Register: July 22, 2010 (Volume 75, Number 140)]
[Page 42767-42770]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

[FWS-R5-ES-2010-N132; 50120-1113-0000-F2]

Preparation of an Environmental Impact Statement for Issuance of 
an Incidental Take Permit and Associated Habitat Conservation Plan for 
the Beech Ridge Wind Energy Project, Greenbrier and Nicholas Counties, 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of intent and notice of meeting.


SUMMARY: Under the National Environmental Policy Act (NEPA), we, the 
U.S. Fish and Wildlife Service (Service or ``we''), advise the public 
that we intend to gather information necessary to prepare an 
Environmental Impact Statement (EIS) on the proposed incidental take 
permit and associated Habitat Conservation Plan for the Beech Ridge 
Wind Energy Project (HCP). The proposed HCP is being prepared under the 
Endangered Species Act of 1973, as amended (ESA). The incidental take 
permit is needed to authorize the incidental take of listed species as 
a result of implementing activities covered under the proposed HCP.
    We provide this notice to: (1) Describe the proposed action and 
possible alternatives; (2) advise other Federal and State agencies, 
affected tribes, and the public of our intent to prepare an EIS; (3) 
announce the initiation of a 30-day public scoping period; and (4) 
obtain suggestions and information on the scope of issues and 
alternatives to be included in the EIS.

DATES: An ``open-house'' public meeting will be held on August 9, 2010, 
from 6 p.m. to 9 p.m. To ensure consideration, please send your written 
comments for receipt on or before August 23, 2010.

ADDRESSES: The public meeting will be held at the Community Center, 604 
Nicholas Street, Rupert, WV 25984. Information, written comments, or 
questions related to the preparation of the EIS and NEPA process should 
be submitted to Ms. Laura Hill, Assistant Field Supervisor, by U.S. 
mail at U.S. Fish and Wildlife Service, West Virginia Field Office, 694 
Beverly Pike, Elkins, WV 26241; by facsimile at (304) 636-7824; or by 
electronic mail (e-mail) at fw5es_wvfo@fws.gov.

636-6586, extension 18. Individuals who are hearing impaired or speech 
impaired may call the Federal Relay Service at (800) 877-8337 for TTY 


Reasonable Accommodation

    Persons needing reasonable accommodations in order to participate 
in the public meeting should contact Laura Hill (ADDRESSES) at (304) 
636-6586, extension 18, no later than 1 week before the public meeting. 
Information regarding this proposed action is available in alternative 
formats upon request.


    Section 9 of the ESA and Federal regulations prohibit the ``take'' 
of fish and wildlife species listed as endangered or threatened. Under 
the ESA, the following activities are defined as take: To harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect listed 
animal species, or to attempt to engage in such conduct (16 U.S.C. 
1538). However, under section 10(a) of the ESA, we may issue permits to 
authorize ``incidental take'' of listed species. Incidental take is 
defined by the ESA as take that is incidental to, and not the purpose 
of, carrying out an otherwise lawful activity. Regulations governing 
permits for threatened and endangered species are at 50 CFR 13 and 50 
CFR 17.
    On December 8, 2009, the U.S. District Court of Maryland ruled that 
Beech Ridge Energy LLC was in violation of section 9 of the ESA for its 
potential to take endangered Indiana bats (Myotis sodalis) and its 
failure to file an application for an incidental take permit related to 
its wind energy project located in West Virginia. The Court determined 
that take of Indiana bats was likely over the life of the project via 
collision with turbines or barotrauma (i.e., hemorrhaging of bats' 
lungs in low-pressure areas surrounding operating turbine blades).
    The District Court ruled that Beech Ridge Energy LLC's construction 
and operation of wind turbines (40 in construction at the time, with a 
total of 124 hoped for by the end of 2010) would violate section 9 of 
the ESA unless and until the defendants, Beech Ridge Energy LLC, 
obtained an incidental take permit. The Court enjoined Beech Ridge 
Energy LLC from building additional turbines beyond the 40 already 
under construction, and restricted turbine operation to the bat 
hibernation season (November 15 to March 31) until Beech Ridge Energy 
LLC obtains an incidental take permit. The Court also invited the 
parties to confer on whether they could agree on terms for further 
turbine operation while Beech Ridge Energy LLC pursued an incidental 
take permit.

[[Page 42768]]

    Under the terms of a settlement agreement reached between Beech 
Ridge Energy LLC and plaintiffs (Animal Welfare Institute, Mountain 
Communities for Responsible Energy, and David G. Cowan) on January 23, 
2010, Beech Ridge Energy LLC has agreed not to build 24 of the original 
124 turbines that are closest to known bat hibernacula. While the HCP 
is under development, the plaintiffs agreed that Beech Ridge Energy LLC 
may construct an additional 27 turbines (in addition to the 40 already 
under construction) and may operate these 67 turbines during specified 
times of the day and year when bats normally are not flying about and, 
thus, would not be at risk of mortality or injury from turbine 

The Service's Proposed Action

    Consistent with the court order and settlement agreement, Beech 
Ridge Energy LLC has indicated its intent to pursue an incidental take 
permit. Section 10(a)(1)(B) of the ESA authorizes the Service to issue 
incidental take permits to non-Federal land owners for the take of 
endangered and threatened species, provided that, among other 
requirements, the take will be incidental to otherwise lawful 
activities, will not appreciably reduce the likelihood of the survival 
and recovery of the species in the wild, and will be minimized and 
mitigated to the maximum extent practicable.
    In accordance with section 10(a)(2)(A) of the ESA of 1973, as 
amended (ESA; 16 U.S.C. 1531 et seq.), Beech Ridge Energy LLC is 
preparing an HCP in support of an application for a permit from the 
Service to incidentally take endangered Indiana bats (Myotis sodalist) 
and Virginia big-eared bats (Corynorhinus townsendii virginianus) 
(covered species). The proposed permit would authorize take of covered 
species for the lifespan of the project (anticipated to be at least 20 
years) and during project decommissioning. The proposed HCP would be 
designed to avoid, minimize, and mitigate the impacts of any take that 
may occur.
    Beech Ridge did not seek incidental take coverage for the 
construction of its first 67 turbines. But it now seeks to develop an 
HCP and seek a permit for covered activities that include the 
construction of up to 33 additional turbines (including associated 
construction and upgrade of access roads, and construction of staging 
areas and collection line trenches for these turbines), operation of 
the full array of 100 turbines, maintenance of an existing transmission 
line, and maintenance and decommissioning of the Beech Ridge Wind 
Energy Project. Permit coverage may also include certain off-site 
mitigation activities such as habitat enhancement and installation of 
cave gates to benefit listed bats. Construction, operation, and 
decommissioning of the project, and actions to minimize and mitigate 
impacts, have the potential to take wildlife species protected under 
the ESA.
    The proposed HCP would describe how the effects of the covered 
activities would be minimized, mitigated, and monitored under the 
conservation program. Program components would likely include avoidance 
and minimization measures (such as studies to test and then implement 
turbine operational changes that effectively reduce mortality and 
injury of listed bats and other wildlife), long-term monitoring, 
adaptive management, and mitigation measures consisting of on-site and/
or off-site habitat protection and/or enhancement.

Beech Ridge Wind Power Project Overview

    Beech Ridge Energy LLC is developing a wind power project in 
Greenbrier and Nicholas Counties, West Virginia. The project would be 
located on approximately 32 kilometers (km) (20 miles (mi)) of ridge 
lines, approximately 8 km (5 mi) northwest of the town of Trout, about 
11 km (7 mi) north-northwest of Williamsburg, and about 14 km (9 mi) 
northeast of downtown Rupert.
    Phase 1 of the Project consists of 67 existing wind turbines and 
associated collection lines, access road, transmission lines, a 
substation, an operations and maintenance facility, temporary staging 
areas, and a concrete batch plant. Beech Ridge Energy LLC constructed 
57 of these turbines between June 2009 and March 2010 and plans to 
construct the remaining 10 Phase 1 wind turbines before August 15, 
2010. Beech Ridge Energy LLC proposes to construct an additional 33 
turbines upon issuance of an incidental take permit.
    Existing wind turbines constructed during Phase 1 of the project 
consist of 67 General Electric 1.5-Megawatt wind turbines, each with a 
77-meter (m) (253-foot (ft)) rotor diameter, and a rotor swept area of 
4,654 square m (50,095 square ft). The 33 additional wind turbines 
would have a maximum 100-m (328-ft) rotor diameter, with a rotor swept 
area of 7,875 square m (84,454 square ft).
    The wind turbine hub height for the existing 67 turbines is 80 m 
(262 ft). The additional 33 turbines would have a hub height of up to 
100 m (328 ft), for an approximate total height of 117-150 m (389-492 
ft) at the rotor apex. Installation of each individual turbine, 
including access roads, equipment laydown yards, and other supporting 
infrastructure, will temporarily impact an area of approximately 4.0 
acres, while the final footprint of each turbine will be approximately 
0.3 acre.
    In addition to wind turbines, the project would include the 
following components:
    (1) The project site is accessed using existing county public 
roadways and privately owned timber roads, plus existing upgraded or 
newly constructed all-weather access roads. The main access route for 
the project, including equipment deliveries, will be via County Road 1 
North from Rupert to Clearco. An estimated 31,245 ft of existing roads 
were upgraded and approximately 40,620 ft of new access roads were or 
will be constructed for the 100-turbine project. Access roads to the 
turbines will have a temporary width of up to 18.2 m (60 ft) during 
construction, and a permanent width of 4.9 m (16 ft).
    (2) A power collection system delivers power generated by the wind 
turbines to the project substation. Collector cables placed in trenches 
and buried underground connect the wind turbines. The underground 
collection system terminates at the project substation.
    (3) A transmission line to connect the project to the existing 
electric power grid was constructed in 2009. It extends approximately 
22.7 km (14.2 mi) northwest from the turbine strings to Allegheny 
Power's Grassy Falls Substation north of the community of Grassy Falls 
in Nicholas County, West Virginia. Temporary ground disturbance may be 
necessary during the life of the project to maintain the transmission 
    (4) An operations and maintenance (O&M) facility is currently being 
constructed to serve the project, including a main building with the 
Supervisory Control and Data Acquisition System, offices, spare parts 
storage, restrooms, a shop area, outdoor parking facilities, a 
turnaround area for larger vehicles, outdoor lighting, and a gated 
access with partial or full-perimeter fencing.
    Routine maintenance consists primarily of daily travel by 
technicians that test and maintain the wind turbines. O&M staff travel 
in pickup or other light-duty trucks. Occasionally, the use of a crane 
or equipment transport vehicles will be necessary for cleaning, 
repairing, adjusting, or replacing the rotors or other components of 
the wind turbines. Cranes used for maintenance activities

[[Page 42769]]

are not as large as the large track-mounted cranes needed to erect the 
wind turbine towers and are likely to be contracted at the time of 
service and not stored at the facility.
    Operations monitoring will be conducted from computers located in 
the base of each wind turbine tower and from the O&M building and other 
remote locations using telecommunication links and computer-based 
monitoring. Over time, it will be necessary to clean or repaint the 
blades and towers and periodically exchange lubricants and hydraulic 
fluids in the mechanisms of the wind turbines.
    Decommissioning would involve removing the wind turbines, support 
towers, transformers, substation, and the upper portion of foundations. 
Site reclamation after decommissioning would be based on site-specific 
requirements and techniques commonly employed at the time the site is 
reclaimed. Techniques could include regrading, spot replacement of 
topsoil, and revegetation of all disturbed areas with an approved 
native seed mix. Wind turbine tower and substation foundations would be 
removed to a below-ground depth as agreed upon with landowners.
    Approximately 200 workers have been or will be employed over the 
course of construction. During its year-round operation, there will be 
8 to 18 permanent full-time and/or part-time employees on the O&M 
staff. The project is expected to function for at least 20 years.
    The project is located in a rural setting, with the landscape 
primarily composed of forested areas that are actively cut for timber 
and coal mining. Several small towns (Trout, Williamsburg, Rupert) 
occur near the project area, but no homes or residential areas occur 
within the project.
    The HCP and permit will contain provisions to monitor and report on 
the impacts from the project on birds and bats, as well as the effects 
of operational changes on wildlife mortality within the wind farm. In 
addition, any required tree clearing will be conducted during winter 
when bats are hibernating, unless otherwise authorized by the Service. 
Other methods to mitigate impacts from the project that may be 
considered include, but are not limited to, protection and enhancement 
of Indiana bat habitat outside the project area.

Environmental Impact Statement

    We have selected Stantec to prepare the EIS for proposed issuance 
of an ESA incidental take permit to Beech Ridge LLC. The document will 
be prepared in accordance with requirements of NEPA, as amended (42 
U.S.C. 4321 et seq.), and NEPA implementing regulations (40 CFR parts 
1500 through 1508), and in accordance with other applicable Federal 
laws and regulations, and the policies and procedures of the Service 
for compliance with those regulations. Stantec will prepare the EIS 
under the supervision of the Service, which will be responsible for the 
scope and content of the NEPA document.
    The EIS will consider the proposed action, the issuance of a 
Section 10(a)(1)(B) permit under the ESA, no action (no permit), and a 
reasonable range of alternatives. A detailed description of the impacts 
of the proposed action and each alternative will be included in the 
EIS. We are currently in the process of developing alternatives for 
analysis. The alternatives to be considered for analysis in the EIS may 
include: Variations in the scope of covered activities; variations in 
curtailment of wind turbine operations; variations in the location, 
amount, and type of conservation; variations in permit duration; 
variations in monitoring the effectiveness of permit conditions; or a 
combination of these elements. We will consider other reasonable 
project alternatives recommended during this scoping process in order 
to develop a full range of alternatives.
    The EIS will also identify direct, indirect, and cumulative impacts 
on biological resources, land use, air quality, water quality, water 
resources, socioeconomics, and other environmental issues that could 
occur with the implementation of the proposed actions and alternatives. 
For all potentially significant impacts, the EIS will identify 
avoidance, minimization, and mitigation measures to reduce these 
impacts, where feasible, to a level below significance.
    Review of the EIS will be conducted in accordance with the 
requirements of NEPA, Council on the Environmental Quality Regulations 
(40 CFR 1500-1508), the Administrative Procedure Act (5 U.S.C. 551 et 
seq.), other applicable regulations, and the Service's procedures for 
compliance with those regulations. This notice is being furnished in 
accordance with 40 CFR 1501.7 of NEPA to obtain suggestions and 
information from other agencies and the public on the scope of issues 
and alternatives to be addressed in the EIS. The primary purpose of the 
scoping process is to identify important issues and alternatives raised 
by the public, related to the proposed action.
    We request data, comments, new information, or suggestions from the 
public, other concerned governmental agencies, the scientific 
community, tribes, industry, or any other interested party on this 
notice. We will consider all comments we receive in complying with the 
requirements of NEPA and in the development of an HCP and incidental 
take permit. We particularly seek comments concerning: (1) Biological 
information concerning the Indiana bat and Virginia big-eared bat, as 
well as unlisted bats and birds; (2) relevant data concerning wind 
power and bat and bird interactions; (3) additional information 
concerning the range, distribution, population size, and population 
trends of the Indiana bat and Virginia big-eared bat, as well as 
unlisted bats and birds; (4) current or planned activities in the 
subject area and their possible impacts on the environment and 
resources; (5) the presence of facilities within the project area that 
are eligible to be listed on the National Register of Historic Places 
or whether other historical, archeological, or traditional cultural 
properties may be present; (6) the direct, indirect, and cumulative 
effects that implementation of any reasonable alternatives could have 
on endangered and threatened species and their habitats, as well as 
unlisted bats and birds; (7) adequacy and advisability of proposed 
minimization and mitigation measures for ESA-listed species and other 
wildlife; (8) post-construction monitoring techniques; and (9) 
identification of any other environmental issues that we should 
consider with regard to the proposed development and permit action.
    Written comments from interested parties are welcome to ensure that 
the full range of issues related to the permit request is identified. 
Comments will only be accepted in written form. You may submit written 
comments at the public meeting, or by regular mail, e-mail, or 
facsimile transmission (see ADDRESSES).
    All comments and materials we receive, including names and 
addresses, will become part of the administrative record and may be 
released to the public. Comments we receive will be available for 
public inspection, by appointment, during normal business hours (Monday 
through Friday; 8 a.m. to 4 p.m.) at the Service's West Virginia Field 
Office (see ADDRESSES).
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you may 
ask us in your comment to withhold personally identifying

[[Page 42770]]

information from public review, we cannot guarantee that we will be 
able to do so.


    The primary author of this notice is Laura Hill, U.S. Fish and 
Wildlife Service, West Virginia Field Office.


    The authority for this section is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.) and National Environmental 
Policy Act, as amended, (42 U.S.C. 4321 et seq.)

    Dated: July 1, 2010.
Anthony D. L[eacute]ger,
Acting Regional Director, Region 5, U.S. Fish and Wildlife Service.
[FR Doc. 2010-17932 Filed 7-21-10; 8:45 am]