[Federal Register Volume 78, Number 66 (Friday, April 5, 2013)]
[Pages 20690-20692]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07595]



Fish and Wildlife Service

[FWS-R3-ES-2013-0032: FXES11120300000F2-134-FF03E00000]

Draft Environmental Impact Statement, Draft Habitat Conservation 
Plan, Draft Programmatic Agreement, and Draft Implementing Agreement; 
Application for an Incidental Take Permit, Fowler Ridge Wind Farm, 
Benton County, Indiana

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received an application from Fowler Ridge Wind Farm LLC, Fowler Ridge 
II Wind Farm LLC, Fowler Ridge III Wind Farm LLC, and Fowler Ridge IV 
Wind Farm LLC, collectively referred to as Fowler Ridge (applicant), 
for an incidental take permit (ITP) under the Endangered Species Act of 
1973, as amended (ESA), for its Fowler Ridge Wind Farm (FRWF) 
(project). If approved, the ITP would be for a 22-year period and would 
authorize the incidental take of an endangered species, the Indiana 
bat. The applicant has prepared a draft habitat conservation plan (HCP) 
that describes the actions and measures that the applicant would 
implement to avoid, minimize, and mitigate incidental take of the 
Indiana bat. The ITP application also includes a draft implementing 
agreement (IA). We also announce the availability of a draft 
Environmental Impact Statement (DEIS), which has been prepared in 
response to the permit application in accordance with the requirements 
of the National Environmental Policy Act (NEPA), and a draft 
Programmatic Agreement (PA) that has been prepared in response to the 
permit application in accordance with the National Historic 
Preservation Act (NHPA). We request public comment on the application 
and associated documents.

DATES: Public Meeting: Thursday, April 18, 2013 from 4 to 8 p.m. local 
time (EST) at the Benton County Government Annex, 410 South Adeway, 
Suite A, Fowler, IN 47944.
    Comments: We will accept comments received or postmarked on or 
before June 4, 2013. Comments submitted electronically using the 
Federal eRulemaking Portal (see ADDRESSES section, below) must be 
received by 11:59 p.m. Eastern Time on the closing date.

ADDRESSES: Document availability:
     Internet: You may obtain copies of the documents on the 
Internet at http://www.regulations.gov (Docket Number FWS-R3-ES-2013-
0032) or http://www.fws.gov/midwest/endangered/permits/hcp/r3hcps.html.
     U.S. Mail: You can obtain the documents by mail from the 
Indiana Ecological Services Field Office (see FOR FURTHER INFORMATION 
     In-Person: To view hard copies of the documents in person, 
go to one of the Ecological Services Offices (8 a.m. to 4 p.m.) listed 
under FOR FURTHER INFORMATION CONTACT, or to one of the following 
libraries during normal business hours: Benton County Public Library, 
765-884 -1720, 102 N. Van Buren Avenue, Fowler, IN 47944; or Otterbein 
Public Library (www.otterbeinpubliclibrary.org), 765-583-2107, 23 E. 
1st Street, Otterbein, IN 47970.
    Public Meeting: See DATES.
    Comment submission: In your comment, please specify whether your 
comment addresses the draft HCP, draft EIS, draft PA, or draft IA, or 
any combination of the aforementioned documents, or other supporting 
documents. You may submit written comments by one of the following 
     Electronically: Go to the Federal eRulemaking Portal: 
http://www.regulations.gov. In the Search box, enter FWS-R3-ES-2013-
0032, which is the docket number for this notice. Then, on the left 
side of the screen, under the Document Type heading, click on the 
Notices link to locate this document and submit a comment.
     By hard copy: Submit by U.S. mail or hand-delivery to: 
Public Comments Processing, Attn: FWS-R3-ES-2013-0032; Division of 
Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 
N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all information received on http://www.regulations.gov. This generally means that we will post any

[[Page 20691]]

personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Scott Pruitt, Field Supervisor, 
Bloomington, Indiana, Ecological Services Field Office, U.S. Fish and 
Wildlife Service, 620 South Walker Street, Bloomington, IN 47403; 
telephone: 812-334-4261, extension 214; or Rick Amidon, Fish and 
Wildlife Biologist, Ecological Services, Midwest Regional Office, U.S. 
Fish and Wildlife Service, 5600 American Blvd., West, Suite 990, 
Bloomington, MN 55437-1458; telephone: 612-713-5164.

SUPPLEMENTARY INFORMATION: We have received an application from Fowler 
Ridge Wind Farm LLC, Fowler Ridge II Wind Farm LLC, Fowler Ridge III 
Wind Farm LLC, and Fowler Ridge IV Wind Farm LLC, collectively referred 
to as Fowler Ridge, for an incidental take permit (TE95012A) under the 
ESA (16 U.S.C. 1531 et seq.). If approved, the ITP would be for a 22-
year period and would authorize incidental take of the endangered 
Indiana bat (Myotis sodalis).
    The applicant has prepared a draft HCP that covers the operation of 
Phases I-IV of the project. The project consists of a wind-powered 
electric generation facility located in an approximately 72,947-acre 
area (the project area including a one-half-mile buffer around the 
outside turbines) in Benton County, Indiana. The draft HCP describes 
the following: (1) Biological goals and objectives of the HCP; (2) 
covered activities; (3) permit duration; (4) project area; (5) 
alternatives to the taking that were considered; (5) public 
participation; (6) life history of the Indiana bat; (6) quantification 
of the take for which authorization is requested; (7) assessment of 
direct and indirect effects of the taking on the Indiana bat within the 
Midwest Recovery Unit (as delineated in the 2007 Indiana Bat Draft 
Recovery Plan, Service) and rangewide; (8) a conservation program 
consisting of avoidance and minimization measures, mitigation, 
monitoring, and adaptive management; (9) funding for the HCP; (10) 
procedures to deal with changed and unforeseen circumstances; and (11) 
methods for ITP amendments.
    In addition to the draft HCP, the applicant has prepared a draft IA 
to document the responsibilities of the parties. The Service invites 
comment on the IA as well as the applicants' HCP.
    Pursuant to the NHPA (16 U.S.C. 470, 470f), the Service has 
initiated Section 106 consultation with the Indiana State Historic 
Preservation Office regarding the construction of turbines under Phase 
IV of the FRWF project and the implementation of mitigation projects in 
accordance with the terms of the HCP. Sites have not been selected for 
the Phase IV turbines or for the mitigation. Therefore, future efforts 
will be required to identify archaeological sites that may be adversely 
affected by the construction of Phase IV turbines and implementation of 
mitigation. Following siting of the Phase IV turbines and location of 
mitigation sites, archaeological surveys will be conducted, with plans 
and reports submitted to the Indiana State Historic Preservation Office 
for review. The draft PA between the Service, Fowler Ridge, and the 
Indiana State Historic Preservation Office describes the process for 
conducting the surveys, evaluating the results of the surveys, and 
determining if resources can be avoided or if additional surveys or 
mitigation are necessary before the Section 106 process is completed. 
The final PA will be signed prior to issuance of the EIS Record of 
Decision. The Section 106 process will be completed and a memorandum of 
agreement signed prior to construction or mitigation beginning. Public 
comments are solicited on the content of the draft PA.
    Under the NEPA (43 U.S.C. 4321 et seq.) and the ESA, the Service 
announces that we have gathered the information necessary to:
    1. Determine the impacts and formulate alternatives for an EIS 
related to:
    a. Issuance of an ITP to the applicant for the take of the Indiana 
bat, and
    b. Implementation of the associated HCP; and
    2. Evaluate the application for ITP issuance, including the HCP, 
which provides measures to minimize and mitigate the effects of the 
proposed incidental take of the Indiana bat.


    The Fowler Ridge application is unusual in that 355 wind turbines 
are already in place and have been operational since 2009. At the time 
of their construction, no Indiana bats had been documented to have been 
killed by a commercial wind facility (the first Indiana bat fatality 
was found at FRWF during monitoring in 2009). The turbines were 
constructed in three phases with a total energy capacity of 600 
megawatts (MW). The 301.3-MW Fowler Phase I was constructed in 2008 and 
consists of 40 Clipper Liberty wind turbine generators (WTG) with a 
capacity of 2.5 MW per turbine and 122 Vestas V82 WTGs with a capacity 
of 1.65 MW per turbine. The 199.5-MW Fowler Phase II was constructed in 
2009 and began operating later that year. The site consists of 133 GE 
WTGs, each with a 1.5-MW capacity. The 99-MW Fowler Phase III was 
constructed in 2008 and began operating in 2009. The site consists of 
60 Vestas V82 WTGs, each with a 1.65-MW capacity per turbine. Phase IV 
will consist of up to 94 GE 1.6-MW turbines for a total capacity of 
150.4 MW. Currently, Phase IV is planned for construction in 2014. The 
need for the proposed action (i.e., issuance of an ITP) is based on 
finding two dead Indiana bats at the facility, the aforementioned 2009 
fatality and another in 2010, and the potential that future operation 
of FRWF could result in additional take of Indiana bats.
    The HCP provides a detailed conservation plan to ensure that the 
incidental take caused by the operation of the project will not 
appreciably reduce the likelihood of the survival and recovery of the 
Indiana bat in the action area or in the recovery unit, and provides 
mitigation to fully offset the impact of the taking. Further, the HCP 
provides a long-term monitoring and adaptive management strategy to 
ensure that the ITP terms are satisfied, and to account for changed and 
unforeseen circumstances.

Purpose and Need for Action

    In accordance with NEPA, the Service has prepared an EIS to analyze 
the impacts to the human environment that would occur if the requested 
ITP were issued and the associated HCP were implemented.

Proposed Action

    Section 9 of the ESA prohibits the ``taking'' of threatened and 
endangered species. However, provided certain criteria are met, the 
Service is authorized to issue permits under section 10(a)(1)(B) of the 
ESA for take of federally listed species when, among other things, such 
a taking is incidental to, and not the purpose of, otherwise lawful 
activities. Under the ESA, the term ``take'' means to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect endangered 
and threatened species, or to attempt to engage in any such conduct. 
Our implementing regulations define ``harm'' as an act which actually 
kills or injures wildlife, and such act may include significant habitat 
modification or degradation that results in death or injury to listed 
species by significantly impairing essential behavioral patterns, 
including breeding, feeding, or sheltering (50 CFR 17.3). Harass, as 
defined, means ``an intentional or negligent act or omission which 
creates the likelihood of injury to wildlife by

[[Page 20692]]

annoying it to such an extent as to significantly disrupt normal 
behavioral patterns which include, but are not limited to, breeding, 
feeding, or sheltering'' (50 CFR 17.3).
    The HCP analyzes, and the ITP would cover, take from harassment, 
harm, and killing of bats due to the operation of the FRWF project. If 
issued, the ITP would authorize incidental take consistent with the 
applicant's HCP and the ITP. To issue the ITP, the Service must find 
that the application, including its HCP, satisfies the criteria of 
section 10(a)(1)(B) of the ESA and the Service's implementing 
regulations at 50 CFR parts 13 and 17.22. If the ITP is issued, the 
applicant would receive assurances under the Service's No Surprises 
policy, as codified at 50 CFR 17.22(b)(5).
    The applicant proposes to construct 94 turbines under Phase IV and 
operate a maximum of 449 wind turbines and associated facilities 
(described below) for a period of 22 years in Benton County, Indiana. 
The project will consist of wind turbines, associated access roads, an 
underground and aboveground electrical collector system, four 
substations (one for each phase of the project) containing six 
transformers that feed electricity into an existing 345-kilovolt (kV) 
electrical tie-in line (roughly 200 poles carrying electricity 
approximately 50 km (31 mi) to the existing Dequine Substation in 
Tippecanoe County), seven permanent un-guyed 80-m tall meteorological 
towers, and an operations and maintenance building. Project facilities 
and infrastructure will be placed on private land via long-term 
easement agreements between the applicant and respective landowners.
    While approximately 6,400 acres are located within the Phase IV 
project area, a relatively small portion of that land, approximately 
554 acres, will be disturbed, and only 78.2 acres will be permanently 
occupied by the Phase IV facilities. The FRWF project area is 93-
percent row crop agriculture. Phases I-III have been in operation since 
2009 within this agricultural context. Beyond the area required for 
construction, Phase IV is not expected to change current land use.
    The draft HCP describes the impacts of take associated with the 
operation of the FRWF and includes measures to avoid, minimize, 
mitigate, and monitor the impacts of incidental take on the Indiana 
bat. The applicant will mitigate for take and associated impacts 
through protection of a Priority 1 hibernaculum and restoration and 
protection of maternity colony habitat at one or more documented 
maternity colonies. Maternity colony habitat mitigation, including any 
restored habitat, will occur on private land and be permanently 
protected by restrictive covenants approved by the Service. Chapter 5 
of the HCP describes the Conservation Program, including details of 
avoidance and minimization measures, compensatory mitigation, and 
adaptive management that will limit and mitigate for the take of 
Indiana bats.
    The Service is soliciting information regarding the adequacy of the 
HCP to avoid, minimize, mitigate, and monitor the proposed incidental 
take of the covered species and to provide for adaptive management. In 
compliance with section 10(c) of the ESA (16 U.S.C. 1539(c)), the 
Service is making the ITP application materials available for public 
review and comment as described above.
    We invite comments and suggestions from all interested parties on 
the draft documents associated with the ITP application (HCP, HCP 
Appendices, and IA), and request that comments be as specific as 
possible. In particular, we request information and comments on the 
following topics:
    1. Whether adaptive management and monitoring provisions in the 
Proposed Action alternative are sufficient;
    2. Any threats to the Indiana bat that may influence its population 
over the life of the ITP that are not addressed in the draft HCP or 
draft EIS;
    3. Any new information on white-nose syndrome effects on the 
Indiana bat;
    4. Any other information pertinent to evaluating the effects of the 
proposed action on the Indiana bat.

Alternatives in the Draft EIS

    The DEIS contains an analysis of four alternatives: (1) No Action 
alternative, in which all 449 turbines would be shut down (i.e., non-
operational) from sunset to sunrise from August 1 through October 15, 
the primary fall migratory period of the Indiana bat, each year during 
the operational life (22 years) of the FRWF; (2) The 3.5 m/s Cut-In 
Speed (Feathered) Alternative, including implementation of the HCP and 
issuance of a 22-year ITP; (3) the 5.0 m/s Cut-In Speed (Feathered) 
Alternative, including implementation of the HCP and issuance of a 22-
year ITP; and (4) the 6.5 m/s Cut-In Speed (Feathered) Alternative, 
including implementation of the HCP and issuance of a 22-year ITP. The 
DEIS considers the direct, indirect, and cumulative effects of the 
alternatives, including any measures under the Proposed Action 
alternative intended to minimize and mitigate such impacts. The DEIS 
also identifies five additional alternatives that were considered but 
were eliminated from consideration (detailed in Section 3.1 of the 
    The Service invites comments and suggestions from all interested 
parties on the content of the DEIS. In particular, information and 
comments regarding the following topics are requested:
    1. The direct, indirect, or cumulative effects that implementation 
of any alternative could have on the human environment;
    2. Whether or not the significance of the impact on various aspects 
of the human environment has been adequately analyzed; and
    3. Any other information pertinent to evaluating the effects of the 
proposed action on the human environment.

Public Comments

    You may submit your comments and materials concerning the notice by 
one of the methods listed in ADDRESSES. We request that you send 
comments only by one of the methods described in ADDRESSES.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as documents associated 
with the notice, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R3-ES-2013-0032, or by 
appointment, during normal business hours, at the Indiana Ecological 
Services Field Office in Bloomington, Indiana (see FOR FURTHER 


    We provide this notice under section 10(c) of the ESA (16 U.S.C. 
1531 et seq.) and its implementing regulations (50 CFR 17.22), the NEPA 
(42 U.S.C. 4371 et seq.) and its implementing regulations (40 CFR 
1506.6; 43 CFR part 46), and the NHPA (16 U.S.C. 470 et seq.) and its 
implementing regulations (36 CFR part 800).

    Dated: March 20, 2013.
Lynn Lewis,
Assistant Regional Director, Ecological Services, Midwest Region.
[FR Doc. 2013-07595 Filed 4-4-13; 8:45 am]