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Ms. Kathleen Bolton 48725-0429 The
Kirtland’s warbler (Dendroica
kirtlandii) is a federally endangered bird that nests almost
exclusively in northern The Eastern massasauga rattlesnake (Sistrurus catenatus catenatus), a candidate species, may occur near the proposed action area. Eastern massasauga rattlesnake habitat is typically associated with open shallow wetland systems. The rattlesnake prefers habitat with an open canopy and sedge or grass ground cover. The ESA does not extend protection to candidate species, but we encourage their consideration in resource planning. If early evaluation of the project indicates that it may impact this species, you may request technical assistance from this office. Avoidance of unnecessary impacts to candidate species will reduce the likelihood that they will require the protection of the ESA in the future. Similar
to other types of development, wind power generation facilities may
cause “take” to federally-listed species that is subject to the
prohibitions under section 9 of the ESA (16 U.S.C. 1531-1544).
Take of listed species is defined as to harm, harass, pursue,
hunt, shoot, wound, kill, trap, capture or collect or attempt to engage
in and such conduct. If
this project involves a federal action (e.g., funding) or
activity (e.g., permits), the federal agency (e.g., Department of
Energy, Federal Aviation Administration) must obtain an exemption for the take that is incidental to an otherwise
lawful activity through initiation of formal consultation pursuant to
section 7 of the ESA. If
there is no federal nexus associated with the project and take is likely
to occur, an incidental take permit pursuant to section 10(a)(1)(B) of
the ESA may be obtained upon completion of a satisfactory habitat
conservation plan for the listed species.
However, note that any provision for take, via sections 7 or 10,
must be obtained prior its occurrence and that there is no mechanism for
authorizing incidental take after it has occurred.
Additional information regarding sections 7 and 10 of the ESA may
be obtained by contacting this office.
Migratory Birds: The Migratory Bird Treaty Act (16 U.S.C. 703-712; MBTA) implements four treaties that provide for international protection of migratory birds. The MBTA prohibits taking, killing, possession, transportation, and importation of migratory birds, their eggs, parts, and nests, except when specifically authorized by the Department of the Interior. Bald and golden eagles are afforded additional legal protection under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d). Unlike the ESA, neither the MBTA nor its implementing regulations at 50 CFR Part 21 provide for permitting of “incidental take” of migratory birds. While
the MBTA has no provision for allowing unauthorized take, the Service
recognizes that some birds may be killed at structures such as wind
turbines even if all reasonable measures to avoid it are implemented. While
it is not possible under the MBTA to absolve individuals, companies or
agencies from liability if they follow our recommended guidelines, the
Service’s Office of Law Enforcement has used enforcement and
prosecutorial discretion in the past regarding individuals, companies or
agencies who have made good faith efforts to avoid the take of migratory
birds. Any
construction activity (e.g., road construction, site clearing) should
occur only during the non-nesting season from September 1 through April
1 to avoid any nest destruction or abandonment of active nests in
violation of MTBA. Wetlands: The
Service recommends that impacts to streams and wetlands be avoided and
buffers surrounding these systems be preserved.
Streams and wetlands provide valuable habitat for fish and
wildlife resources, and the filtering capacity of wetlands helps to
improve water quality. Naturally
vegetated buffers surrounding these systems are also important in
preserving their wildlife-habitat and water quality-enhancement
properties. The proposed
activities do not constitute a water-dependent activity as described in
the Section 404(b)(1) guidelines, 40 CFR 230.10.
Practicable alternatives that do not impact the special aquatic
site (i.e., wetlands) are presumed to be available unless clearly
demonstrated otherwise. Therefore,
before applying for a Section 404 permit, you should closely evaluate
all project alternatives that do not affect streams or wetlands, and if
possible, select an alternative that avoids impacts to the aquatic
resource. If streams and/or
wetlands are proposed to be impacted, the Detroit District of the U.S.
Army Corps of Engineers should be contacted to determine if permits are
necessary. Service
Guidance for Minimizing Wildlife Impacts: Research into the actual causes of bat and bird collisions with wind turbines is limited. To assist Service field staffs in review of wind farm proposals as well as aid wind energy companies in developing best practices for siting and monitoring of wind farms, the Service published Interim Guidelines to Avoid and Minimize Wildlife Impacts from Wind Turbines (2003). We encourage any company/licensee proposing a new wind farm to consider the following excerpted suggestions from the guidelines in an effort to minimize impacts to migratory birds and bats: 1) Pre-development evaluations of potential wind farm sites to be conducted by a team of federal and/or state agency wildlife professions with no vested interest in potential sites; 2) Rank potential sites by risk to wildlife; 3) Avoid placing turbines in documented locations of federally-listed species; 4) Avoid locating turbines in known bird flyways, migration pathways or near areas of high bird concentrations (i.e., rookeries, leks, refuges, riparian corridors, etc.); 5) Avoid locating turbines near known bat hibernacula, breeding or maternity colonies, in migration corridors or in flight paths between colonies and feeding areas;
6) Configure turbine arrays to avoid potential avian mortality where feasible. Implement storm water management practices that do not create attractions for birds and maintain contiguous habitat for area-sensitive species; 7) Avoid fragmenting large, contiguous tracts of wildlife habitat; 8) Use tubular supports with pointed tops rather than lattice supports to minimize bird perching and nesting opportunities;
9) If taller turbines (top of rotorswept area is greater than 199 feet above ground level) require lights for aviation safety, the minimum amount of lighting specified by the Federal Aviation Administration (FAA) should be used. Unless otherwise requested by the FAA, only white strobe lights should be used at night and should be of the minimum intensity and frequency of flashes allowable. Red lights should not be used as they appear to attract night-migrating birds at a higher rate than white lights; 10) Adjust tower height to reduce risk of strikes in areas of high risk for wildlife. The full text of the guidelines is available at http://www.fws.gov/habitatconservation/wind.pdf. The guidelines contains a pre-development site evaluation and ranking process to assess potential project impacts, as well as recommendations for conducting post-construction monitoring. The guidance also contains more information on the applicable laws and permitting aspects, in Appendices 3 and 5. The Service believes that implementing these guidelines may help reduce mortality caused by wind turbines. We encourage you to consider these guidelines in the planning and design of the project. We
particularly encourage placement of turbines away from any large
wetland, stream corridor, or wooded areas, including the areas mentioned
previously, and avoid placing turbines between nearby habitat blocks.
If this proposal proceeds, we strongly recommend that on-the-ground surveys using radar, infrared, and/or acoustic monitoring be conducted during the peak of spring and fall bird migrations and during the breeding season over a period of three years (consistent with the Service’s Interim Guidelines to Avoid and Minimize Wildlife Impacts from Wind Turbines (2003) to identify breeding and feeding areas. Observations made from greater than ¼ mile of target areas are likely to be insufficient to accurately assess bird use of the landscape, particularly if the observer is moving. Generalized ground research survey protocols such as those followed in the Waterfowl Breeding Population and Habitat Survey (Smith 1995) and the North American Breeding Bird Survey (Pardieck 2001) among others, often do not accept observations made at greater than ¼ mile from the observer due in part to high probabilities of missed detections. We strongly suggest that any on-the-ground survey protocols are consistent with the Service’s Interim Guidelines (2003), and be coordinated with this office prior to implementation. Thank
you for the opportunity to provide comments on the proposed wind
turbines in
Sincerely,
Craig. A. Czarnecki Field Supervisor
cc:
MDNR, Wildlife Division,
MDNR, Wildlife Division, References
http://www.pwrc.usgs.gov/bbs/participate/instructions.html. Smith, G.W. 1995. A critical review of the aerial and ground surveys of breeding waterfowl in North
US Fish and Wildlife Service. 2003. Interim Guidelines to Avoid and Minimize Wildlife Impacts from Wind Turbines. http://www.fws.gov/habitatconservation/wind.pdf.
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