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1 Submitted electronically to: May 19, 2011 Eagle Conservation Plan Guidance Division of Migratory Bird Management US Fish and Wildlife Service 4401 North Fairfax Drive Mail Stop 4107 Arlington, VA Re: Comments on the Draft Eagle Conservation Plan Guidance, 76 Fed. Reg (February 18, 2011) To the US Fish and Wildlife Service: The Avian Power Line Interaction Committee (APLIC) is pleased to submit comments on the US Fish and Wildlife Service s (FWS) Draft Eagle Conservation Plan (ECP) Guidance. APLIC leads the electric utility industry in protecting avian resources while ensuring reliable energy delivery. We work in partnership with utilities, resources agencies and the public to: develop and provide educational resources; identify and fund research; develop and provide cost-effective management options; and serve as the focal point for electric utility avian interaction issues. APLIC was formed in 1989 to address whooping crane collisions with power lines. Since its inception, APLIC has expanded to address a variety of avian power line interactions including electrocutions, collisions, and nests. At present, APLIC membership includes 43 electric utilities, the Edison Electric Institute (EEI), FWS, National Rural Electrical Cooperative Association (NRECA), and Rural Utilities Service (RUS). Although a member of APLIC, the FWS did not participate in the preparation of these comments. APLIC has developed guidance documents identifying causes and minimization methods for avian electrocutions and collisions, and released national Avian Protection Plan (APP) Guidelines in conjunction with the FWS in In partnership with the FWS, APLIC presents APP training courses throughout the US, and funds research related to avian power line interactions and conservation.

2 2 APLIC s focus is on power lines, both transmission and distribution. While the Draft ECP Guidance is directed towards wind energy developers, it has significant implications for electric utilities transmission and distribution lines. Therefore, APLIC has a direct interest in the Draft ECP Guidance and how it is to be implemented. APLIC and FWS have over a two decade history of cooperation to find solutions to avian electrocutions and collisions with power lines. The 2005 APP Guidelines were developed in close cooperation with FWS. The Suggested Practices for Avian Protection on Power Lines: State of the Art in 2006 (2006 Suggested Practices) and Mitigating Bird Collisions with Power Lines (Mitigating Collisions) manuals were produced with input and review by the FWS. In light of this history of cooperation, APLIC is very disappointed that it was not consulted as part of the drafting prior to the release of the Draft ECP Guidance. There are major problems in the Draft ECP Guidance that could have been avoided if APLIC had been consulted. APLIC has numerous concerns with the power pole retrofitting component as compensatory mitigation within the Draft ECP Guidance, and does not support this component as it is written in the draft. Specific comments on the document are provided with this letter. However, the general concerns that APLIC has with the power pole retrofitting and compensatory mitigation component are: 1. It is not clear that the FWS has thoroughly investigated the legal implications associated with the pole retrofitting/compensatory mitigation program. APLIC recommends that the FWS consult with electric utilities, the Federal Energy Regulatory Commission (FERC), state and regional Public Utility Commissions (PUCs), and the Internal Revenue Service (IRS) to identify possible new tariffs or tax liability incurred by program participants. 2. The cost per pole ($1000) included in the pole retrofitting/compensatory mitigation example only provides an average cost for initial retrofitting, and does not include the cost of the additional maintenance, monitoring, and other requirements identified in the document. In addition, the frequency of follow-up monitoring identified in the document is excessive, and would not be required if poles are retrofitted using current 2006 Suggested Practices recommendations. APLIC recommends that the FWS work with APLIC to identify activities that would be needed to implement a retrofitting program (e.g., risk pole identification, retrofitting or reframing, retrofit inspection, and maintenance) and the associated costs for these activities. In addition, APLIC recommends that the post-retrofitting monitoring component be removed for power poles that are retrofitted in accordance with current 2006 Suggested Practices guidelines. 3. The pole retrofitting/compensatory mitigation program creates an unfair playing field, in which utilities that do not respond to eagle mortalities are rewarded with compensatory mitigation funds, while companies that quickly respond to eagle

3 3 mortalities do so at their own cost. This new approach contradicts previous FWS communications regarding electric utility responses to bird electrocutions, in which electric utility companies were responsible for retrofitting their power poles where eagle or other protected bird mortalities have occurred, and may face enforcement action for not doing enough proactive retrofitting. APLIC recommends that individual utilities remain responsible for retrofitting eagle mortality power poles (and associated adjacent poles as appropriate) with their own funds, and that the FWS prioritize the use of compensatory mitigation funds, as proposed in the Draft ECP Guidance, for proactive efforts. Consequently, APLIC supports the use of compensatory mitigation funds to proactively retrofit other poles identified by a utility s APP that have not had eagle electrocutions but pose a possible electrocution risk due to habitat, eagle populations, pole configuration, and other factors. 4. There are many details in the document regarding the power pole retrofitting model and program that need to be re-evaluated with the current best data and expertise. APLIC encourages the FWS to work with APLIC member utilities to revise the power pole retrofitting model and program so that it can be implemented in a practical manner. In addition, APLIC recommends that the FWS develop an industry stakeholder group to address program challenges and create solutions that are feasible for the electric utility industry, responsible wind companies, and the FWS. In closing, APLIC recommends a retraction of the pole retrofit option as currently laid out in the Draft ECP Guidance. Furthermore, APLIC recommends FWS make a thorough revision to the Draft ECP Guidance and that FWS engage utility stakeholders as soon as possible to discuss the potential impacts of the proposed compensatory mitigation strategy. APLIC proposes a meeting with FWS and other stakeholders to discuss cost-effective mitigation to protect eagles in a collaborative approach. If you have questions regarding these comments, please contact Peggy Jelen, of Arizona Public Service and APLIC Chair, peggy.jelen@aps.com, or Rick Loughery, rloughery@eei.org. APLIC looks forward to working with FWS to find a reasonable approach to compensatory mitigation as part of the Draft ECP Guidance. Sincerely, Peggy Jelen Forestry Section Leader Arizona Public Service Company APLIC Chair

4 4 COMMENTS OF THE AVIAN POWER LINE INTERACTION COMMITTEE (APLIC) ON THE FWS DRAFT EAGLE CONSERVATION PLAN (ECP) GUIDANCE GENERAL COMMENTS The Draft ECP Guidance Executive Summary identifies the document as Draft Eagle Conservation Plan Guidance Module 1: Wind Energy Development. However, Module 1: Wind Energy Development is not included on the cover page of the document. Inclusion of this in the title on the cover page may reduce confusion and misapplication to other types of industry. The Draft ECP Guidance states the first module will focus on wind. What will the other modules be? Will power pole retrofits be considered a source of compensatory mitigation for other industries in the other modules? If so, the electric utility industry, particularly APLIC, should be involved in the development of the power pole compensatory mitigation process to ensure that its implementation would be feasible and cost-effective. APLIC would like to make it clear that not all wind generating companies own or operate transmission and distribution infrastructure. Often, separate companies are solely responsible for the transmission and distribution lines and subsequent operating systems coming from the wind generating facility. The wind generating company owns a small amount of transmission lines within their collection grid. Once the energy has been sent through a switching yard or sub-station, the adjacent electric utility then has lines that connect to the station and deliver the energy to the nearest metropolitan area. Therefore, a separate transmission and distribution operator should not be required to mitigate for another industry s deleterious interactions with wildlife. There are serious flaws in the power pole retrofitting compensatory mitigation process outlined in the Draft ECP Guidance that discourage electric utility support and participation. If the electric utility industry is to be a provider of mitigation for wind facilities and potentially other industries, we must be involved in the development process to ensure that it is feasible. In addition, APLIC members offer a tremendous amount of expertise and diverse experience for different geographic regions and avian species. The FWS should use APLIC as a resource in the development of the power pole retrofitting program.

5 5 How does FWS intend to train staff and make implementation consistent throughout the country? At present, APLIC members experience a great variation between FWS regions, within regions, and between local offices within a state. The FWS is not realistically equipped to administer this new expanded responsibility given its inability to maintain consistency in current avian protection programs. The Draft ECP Guidance uses the term eagles throughout the document to refer to two species that are both ecologically and phylogentically dissimilar. Bald eagles nest near water, feed primarily on fish and waterfowl, and often roost communally, while golden eagles occur in terrestrial habitats and prey primarily on mammals. The lumping of the requirements of these two disparate species makes it difficult for the project developer to understand the primary focus of required surveys and mitigation. Also since bald eagle populations have rarely been affected by wind developments, it is not clear why the two species are mixed together in the document. It appears that in most cases the Draft ECP Guidance is addressing the needs of golden eagles, since bald eagles have rarely been affected by wind developments, and it would therefore be helpful to make that distinction throughout the document, preferably by creating separate sections for the two species. Although the Draft ECP Guidance technically is not required, it will likely be treated as a requirement by local field offices as well as other federal and state regulatory and natural resources agencies. The document needs to strongly and clearly state that ECP Guidance is not required under law or regulation. Based on staff use of previous guidance published by agencies, this guidance that is specifically meant to apply to wind development is likely to be misapplied to other industries and projects, unless specific language is included regarding when and how to apply these recommendations. Has FWS determined that the preferred compensatory mitigation is a legal alternative for mitigation, i.e., using a regulated utility as a mitigation bank? Were any state PUCs consulted on the proactive retrofit compensatory mitigation? We recommend that FWS consult with FERC and state PUCs to investigate the legality of the compensatory mitigation program. The definition of the project footprint should be clarified. Under the current definition, existing main grid transmission lines could be interpreted as any associated infrastructure, including utility lines. This should be reworded so that only power lines that are within the wind facility area boundary are included in the project footprint, and power lines beyond the wind facility area are not considered part of the project footprint. Overall, the Draft ECP Guidance indicates very little understanding of the US electric transmission and distribution system functions. We recommend that FWS send personnel for training at the annual Electric Systems Short Course held at the US Bureau

6 6 of Land Management National Training Center. In addition, APLIC proposes to assist the FWS in presenting a similar training course at the National Conservation Training Center. Since the 1970s, the electric utility industry has provided guidance for retrofitting power poles to prevent electrocutions of eagles and other birds. APLIC recommendations for configuration and retrofitting power poles are based on research and data that have demonstrated their effectiveness. Risk assessment surveys conducted by an APLIC member since 2001 at over 100,000 poles have verified that APLIC design recommendations are effective in preventing bird electrocutions. If poles that are retrofitted as compensatory mitigation apply the current APLIC recommendations as contained in 2006 Suggested Practices, little or no follow-up monitoring would be needed. INTRODUCTION AND PURPOSE Page 7: The first sentence of the section states The mission of the U.S. Fish and Wildlife Service (Service) is to work with others to conserve, protect, and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people. We find there to be little, if any evidence of, FWS working with others in the development of the Draft ECP Guidance, especially the proposed power pole retrofit compensatory mitigation program. Page 7: The document states Although significant numbers of bald eagle mortalities have not yet been reported at North American wind facilities (emphasis added). Is this anticipated to change? The recommendations in the Draft ECP Guidance seem excessive for take that has not been realized or documented. Page 10: The NEPA requirement for programmatic permits put additional cost, monitoring, and time delay burdens on companies that are attempting to make proactive efforts. It is unclear why this would require NEPA analysis since FWS issues other permits to utilities (e.g., eagle nest removal permits under BGEPA and special purpose permits under MBTA) that do not require NEPA analysis. Page 12: Additionally, disturbances near areas that are important for roosting or foraging might stress eagles to a degree that leads to reproductive failure or mortality elsewhere; these impacts are of concern as well as they would likely amount to prohibited take. How can this be measured and attributed to one specific source

7 7 (considering the large home ranges of eagles)? Disturbance outside of nesting may or may not lead to decreased reproduction or mortality; how can this be predicted? Page 12: No-net-loss means that additional mortality caused by the permitted activities is offset by compensatory mitigation that reduces another, ongoing form of mortality by an equal or greater amount. A listing of ongoing causes of mortality should be included in the document. Overall, the Draft ECP Guidance fails to specifically address other sources of mortality that should be evaluated as part of a wind developer s mitigation options. The Guidance should document that there needs to be a better understanding of the other mortality factors for eagles in the US. This guidance focuses solely on power line impacts and barely acknowledges other factors contributing to population declines and how these could also be addressed as part of a compensatory mitigation strategy. Habitat fragmentation or loss, lead poisoning, poaching, recreational activities, residential and industrial developments have all resulted in impacts to eagles. FWS should identify and incorporate compensatory mitigation strategies to address these other important mortality factors. ASSESSING RISKS AND EFFECTS Page 13: (2 nd paragraph), Project proponents should identify the location and type of all important eagle use areas on and within a 10-mile perimeter of a project footprint (the project footprint is the minimum convex polygon that encompasses the wind facility area inclusive of a 100 meter-radius of all turbines and any associated infrastructure, including utility lines, outbuildings, roads, etc.). APLIC recommends changing the wording to: including utility lines connecting the project to the grid, otherwise this is too vague and could be interpreted to include utility lines built prior to the project that are not a part of the project or utility lines being built nearby that are not solely for the purpose of connecting the project to the grid. Page 19: Stage 1 discusses evaluation of broad geographic areas. This should be further defined, e.g., is this intended to refer to Bird Conservation Regions (BCR), FWS Regions, states, counties, etc.? Page 24: Figure 1, should be printed so that text is more legible (currently blurry). What is an important eagle-use area? How does population density correlate with important eagle-use areas? If one nest is located within the project area, is this considered an important eagle-use area?

8 8 Page 26 (paragraph 1) discusses population-wide models for continental eagle populations. Is this national dataset only coming from permit holders or will FWS also collect eagle population data (particularly for golden eagles)? See next comment. COMPENSATORY MITIGATION AND APPENDIX G As a trust resource agency, FWS is responsible for the tracking and monitoring of bald and golden eagle populations in the US. The proposed eagle guidance places the burden of responsibility for collecting scientific information on eagle populations as well as monitoring efforts on the wind project developer and electric utilities. Utilities and wind developers are not research-based organizations and do not always have the expertise, staff, or budgets to fund these research efforts. There is also the question as to whether or not the FWS will accept data that have been collected by industry and its consultants, because data that are currently being collected through our APP processes do not appear to have been utilized in establishing the REA analysis. We recommend that the FWS consult with FERC and state PUCs to determine if a new tariff is necessary to allow regulated utilities to accept payment from a third party to complete retrofits on regulated transmission and distribution infrastructure. If a tariff is required, it should be negotiated between FWS and FERC/affected state PUC. All tariff development activities should be paid for by FWS through their Service-established BGEPA account. From a budgeting perspective, utilities plan their capital construction and operation and maintenance budgets on an annual basis. It will be difficult to plan for maintenance resources and monitoring costs associated with another company s compensatory mitigation requirements totally outside of the utility s knowledge. In addition, many rural electric cooperatives borrow money for all of their capital construction projects from the RUS, which is a federal funding source. It is unlikely utilities could apply for loan assistance for compensatory mitigation associated with another developer/utility that is not identified in their capital construction budgets. We also recommend that FWS consult with the IRS and state taxing authorities to assure that any funds received from developers or the BGEPA account for the construction, installation, or retrofitting of electric power poles will not be considered taxable income and will not impose a tax liability on the utility or its customers. Navigating the complex regulatory environment within which investor-owned utilities, municipalities, and rural electric cooperatives are required to operate can be challenging. We recommend that FWS assemble a utility industry stakeholder group to

9 9 help the Service identify and work through the challenges that the compensatory mitigation program presents. The Service could potentially work with APLIC participants to facilitate establishing this stakeholder group. Page 30: For new projects, compensatory mitigation will be required upfront before project operations commence. We interpret this statement to mean that the project may be built, but the turbines will not be allowed to operate until the mitigation is complete. Although the construction period may allow some project proponents the time to complete the mitigation, others may require more time. Regulated utilities are subject to state and federal regulations and mandates to complete scheduled work and emergency work on both transmission and distribution infrastructure. Proactive retrofit work needs to be arranged around other legal and safety requirements and is often rescheduled due to emergencies. In addition, there may be times or locations when an electric utility is not allowed by the system operators to take a line out of service to perform retrofit work, e.g. during peak customer use, for major commercial or industrial customers, or for lines that serve as the sole power supply to rural communities. In addition, environmental restrictions such as migratory bird nesting, big game winter range or calving, can seasonally prohibit retrofit work. Some areas also may require pre-work clearance surveys to identify endangered plants or animals, or cultural/archaeological remains. FWS needs to add language to the Draft ECP Guidance stating it will work in coordination with the utility, and other regulatory agencies, to develop the appropriate proactive retrofit schedule in consideration of all regulatory requirements. As such, FWS should consult with FERC, APLIC, and Regional Transmission Operators to learn these requirements. Retrofitting utility infrastructure takes time and appropriate resources, including highly trained personnel to complete the work safely. FWS should not stipulate a date by which the proactive retrofits should be completed; or put the utility in a position of being a bottleneck to the issuance of an eagle take permit for a wind energy facility. At a minimum, the FWS should allow sufficient time after the start of operations to complete the mitigation, secured by a bond or letter of credit. APLIC is concerned that the Draft ECP Guidance specifically states that proactively retrofitting power poles does not absolve any utility company of liability associated with eagle or other migratory bird mortality. As a result, there is little incentive for utility companies to participate in any compensatory mitigation program with wind farm developers if: 1) The utility assumes liability for retrofits on power lines not associated with the proposed action and retrofit of these structures does not lower the utilities overall liability for prosecution under the BGEPA and MBTA; and 2) Utilities have to bear the burden of cost (maintenance and monitoring) for retrofits, which may or may not be connected to the wind farm itself.

10 10 There are significant legal implications that the Draft ECP Guidance fails to address. Under NEPA, it is unclear how FWS can enforce retrofits on power lines that are not subject to a federal permit requirement, do not have a connection to a wind energy facility, and/or are not owned or operated by the wind energy developer. The legal implications of electric utilities taking on mitigation costs and liability from another entity s proposed project must be determined prior to the finalization of the ECP Guidance. This is a potential major red flag issue that must be addressed by FWS. Page 31 Compensatory Mitigation and Page 92, Appendix G: The Draft ECP Guidance document refers to four different options for compensatory mitigation, but on Page 32 states that the initial focus will be on proactive power pole retrofits with no further discussion or analysis of any other type of mitigation. This option for compensatory mitigation was developed without any input from electric utilities and is not feasible, particularly as proposed. APLIC requests that within the ECP Guidance FWS evaluates and addresses other compensatory mitigation options; including the funding of research on avian interactions with wind farms and other energy infrastructure. The guidance should stress the importance of using sound science to ensure the actions taken to mitigate risks are effective. The FWS would likely agree that there is a significant need to collect scientifically sound data on the impacts of wind development and electric transmission and distribution lines on eagles and other migratory birds as well as the effectiveness of approved mitigation strategies. Mitigation through the funding of independent research should be a permitted form of compensatory mitigation for wind developers. It is only through scientifically sound research and monitoring efforts that we will gain a better understanding of how energy development affects eagle and other migratory bird populations and identify the most effective mitigation strategies to minimize these impacts. Page 32: The Draft ECP Guidance refers to high-risk transmission infrastructure, and Appendix G refers to transmission poles. Actually, transmission lines pose very low risk to eagles. Most eagle (and other bird) electrocutions occur on distribution lines (35kV or less). Electric transmission structures generally do not pose a significant electrocution hazard because they are designed with sufficient spacing. Electric distribution lines carry lower voltages and have closer line spacing which presents a greater electrocution hazard to eagles and other avian species. The Draft ECP Guidance does not distinguish between these types of power poles. Please substitute distribution infrastructure to be more accurate.

11 11 Page 92: In particular, Golden Eagles are electrocuted more than any other raptor in North America. Although this is what is stated in the study cited, this is not true based on information provided by the electric utilities in western North America. Redtailed Hawks are by far the most commonly electrocuted raptor in North America, and Common Ravens are the most commonly electrocuted bird. The utilities with FWS permits are required to report their mortality numbers. An inquiry to the Migratory Bird Permit Offices administering these permits would confirm that eagles are not the most commonly electrocuted raptor. In addition, the 2006 Suggested Practices manual contains data on electrocution frequency for North American bird species. Page 92: These poles are often responsible for the high incidence of eagle mortality Is there a citation for this statement? Eagles are likely reported more often when electrocuted than when killed through other causes due to the potential for an outage caused by the incident and the subsequent patrolling of the line by the utility. Other forms of mortality, such as lead poisoning, would not be frequently discovered in comparison, but this does not mean they are not an equally or more significant cause of mortality to eagles. The Draft ECP Guidance states that FWS is responsible for identifying lethal or problem poles. Page 92: Specific utility poles and line spans in need of retrofit due to known mortalities of eagles and other large raptors will be reviewed by the Service and selected for retrofit based on criteria specified below. Without a working knowledge of the utility industry and how eagles interact with power lines, how will this be reasonably and efficiently accomplished? How will this additional workload affect renewable energy projects collectively meeting the portfolio standards required by states? This would be a labor intensive endeavor and would require a great deal of knowledge of the electric utility s system, as well as thorough knowledge of avian power line interaction issues. If a utility has performed a risk assessment of their poles as part of an APP, the poles identified as highest priority may not coincide with the poles FWS selects. If a utility has yet to complete their risk assessment, they would not have this information yet to provide to the FWS to aid in the selection. We suggest that this be more of a collaborative effort between the individual utility and FWS, and APLIC can help in this regard. Appendix G, page 92, #4: Power pole and/or span of line has not received retrofit action since its initial construction. This assumes that all poles pose equal risk, which is not the case. Power pole electrocution risk varies with pole configuration and a variety of biological and environmental factors influencing eagle use. Appendix G, page 92, #6: Power poles occur in same Bird Conservation Region as take is occurring. Retrofitting poles within the same BCR may not be an effective use of

12 12 resources. BCRs are large areas and BCR maps may not contain enough detail to identify high risk poles. Appendix G, pages 92-93: The Draft ECP Guidance states FWS must pre-approve any and all monitoring activities. This can pose a problem for electric utilities that have been conducting post-retrofitting effectiveness surveys for multiple prior years, or have previous agreements with FWS as part of APPs. The recommendations in this Draft Guidance document should not replace existing agreements electric utilities have with FWS through permits, APPs, or other agreements/documents. How will FWS monitor compliance with compensatory mitigation and effectiveness monitoring? Will FWS staff be trained on APLIC 2006 Suggested Practices? Retrofitting products and methods are frequently evolving and can be complex. APLIC member utilities may be the best resource to develop and evaluate retrofitting methods. Appendix G, page 93, states that photos of each power pole retrofitted must be provided to FWS. Due to the complexity of power pole retrofitting, it is unlikely that FWS personnel would be properly trained to assess whether or not a pole is properly retrofitted. Retrofitted poles should be assessed by inspectors that are thoroughly trained in avian protection retrofitting procedures. Before and after photos (not just after photos) should be taken of each retrofitted power pole. Many APLIC members have developed extensive training for company employees and inspectors on avian retrofitting procedures and would be able to provide guidance to FWS on inspection programs. We recommend that FWS work with APLIC member utilities, particularly those that are conducting effectiveness monitoring of retrofitted poles, to develop appropriate monitoring recommendations. Electric utility companies that follow APLIC 2006 Suggested Practices recommendations for power pole retrofitting should be exempt from excessive follow-up monitoring. Monthly post-retrofit monitoring for 24 months is unwarranted and unnecessary. The 2006 Suggested Practices document, which was developed in collaboration with FWS, is the national guidance document for designing and retrofitting power poles for avian safety. The designs and methods in this manual have been tested and proven effective, therefore, conducting follow-up surveys at the frequency identified in the draft eagle guidelines is not needed. We recommend that FWS consult with APLIC member utilities to obtain data on pole retrofit follow-up survey results and methods. Electric utility companies are responsible for retrofitting their poles where eagle or other protected bird mortalities have occurred. Assuming that this is being done, high risk poles would already be retrofitted, leaving lower risk poles available for compensatory mitigation. If power companies are provided with funds to retrofit poles that are electrocuting eagles, this may provide a disincentive for some companies to

13 13 retrofit mortality poles on their own. Consequently, this gives a perception that companies that do not conduct expedient retrofits in response to eagle mortalities are rewarded with compensatory mitigation funds, while companies that quickly respond to eagle mortalities do so at their own cost. APLIC has a history of voluntary collaboration with FWS, and supports FWS s past approach of Education, Exchange of information, and Enforcement. The FWS s new approach seems to remove the enforcement piece by providing funding, rather than issuing violations to, unresponsive companies. This approach is discouraging to utilities that have been proactive and responsive to bird electrocutions. The electric utilities are being asked to take on the responsibility of mitigation for wind projects when we are already attempting to mitigate for our impacts through APPs. There is a serious disconnect between the Draft ECP Guidance and APPs. Reframing of poles should entirely take away the burden of monitoring. A pole that is reconfigured to have 60 inches of horizontal separation and 40 inches of vertical separation would not require monitoring to ensure it remains safe. The cost per pole would greatly exceed the retrofitting cost, but would then not burden the utility with the post retrofit costs of monitoring and cover maintenance. On page 94, the Draft ECP Guidance document states that a utility company would also be responsible for monitoring and maintaining the retrofitted poles over their lifespan insuring that the retrofit maintains its effectiveness over a period of at least 25 years. The Draft ECP Guidance makes reference to both 25-year and 30-year periods for which power pole retrofits must be maintained. The Draft ECP Guidance should only include one period, not both. The FWS compensatory mitigation requirement for retrofitting poles puts a substantial burden on the utilities to maintain and monitor retrofitted structures through the life of the wind farm. These requirements present a substantial cost to the utility and in many cases, the FWS would be placing mitigation costs onto a transmission or distribution provider that is not the owner/operator of the wind facility or even connected to the wind facility. The utilities that provide wind power to their customers frequently purchase this power through power purchase agreements and do not necessarily own, construct, permit, or operate the wind farm itself. In these cases, the utility will provide an interconnection to the facility only. If the retrofits are completed using the APLIC model, the utility industry has demonstrated that the retrofits are effective at reducing raptor mortality and therefore do not require ongoing monitoring. However, maintenance may be required during equipment life to keep the structure bird-safe. For example, a rebuild of a pole or

14 14 tower will likely not need maintenance, but guards and covers will. While periodic inspection of the retrofit may be necessary, effectiveness monitoring is not. Therefore, remove all references to effectiveness monitoring of retrofitted infrastructure, as the action is unnecessary. FWS should grant electric utilities the flexibility to use technical and institutional knowledge to analyze its transmission and distribution infrastructure and determine where to complete the retrofits to maximize benefits to eagle populations. This approach would be consistent with the existing APP model. FWS should augment the Draft ECP Guidance to state that it will work in coordination with the utility, and other regulatory agencies, to determine the type and location of retrofit to be performed. The table in the Executive Summary (page 6) under Stage 5 Objective states when appropriate, monitor effectiveness of compensatory mitigation (emphasis added). This conflicts with monitoring requirements detailed in Appendix G (page 94), which states the utility will be responsible for monitoring the effectiveness of power pole retrofits monthly surveys for no less than 24 months to identify any post retrofit mortalities. The document should be clear and consistent on whether this monitoring is a requirement or a recommendation. COST The term power pole retrofit covers a wide array of remedial actions that can be taken by electric utilities to modify existing electric transmission and distribution facilities to minimize avian mortalities and injuries due to electrocution and collision. The array of options are found in the 2006 Suggested Practices and Mitigating Collisions manuals produced by APLIC with input and review from FWS. If the utility is required to pay for monitoring and maintenance costs associated with the retrofits, that cost will be passed along to the customer base, which may or may not benefit from the wind energy that requires the mitigation. The public needs to be aware of the ramifications the FWS compensatory mitigation strategy will have on their electric rates. If the FWS is going to focus compensatory mitigation requirements on utilities alone, mitigation should be a fully loaded cost to the wind developer, including the type of retrofit, monitoring, and maintenance activities. Monitoring and maintenance costs for these retrofits should not be passed along to the utility. For companies that are owner/operators of wind and transmission/distribution facilities, compensatory mitigation funds across platforms (within the same company) should be encouraged so that they impact and benefit the same customer base. In addition, this would allow for mitigation funds to target eagle populations within the same geographic area of impact.

15 15 Appendix G, page 94: The Draft ECP Guidance requires reporting of all mortalities within 48 hours to the FWS Bird Injury and Mortality Reporting System (BIMRS). The 48- hour reporting timeframe should be required for eagles only. Reporting all bird mortalities within 48 hours and using BIMRS may put additional resource burdens on utilities, particularly if they currently do not use BIMRS. The $1000/pole cost does not account for this level of reporting. The FWS unit cost estimate of $1000 per pole is too low and needs to be modified to a range of costs. The unit cost assumption, at a minimum, needs to include direct labor, non-labor, and taxes; covering activities, such as, but not limited to, field review of existing infrastructure by trained personnel, engineering and design of the retrofit, materials, labor, scheduling and any environmental related permitting or constraints. The unit cost will vary widely by infrastructure type, materials needed, the region of the US, the surrounding geography of the pole, and many other factors. Again, we recommend that FWS develop an industry steering group, including APLIC-member utilities, that can provide more realistic cost estimates. The unit cost estimate also needs to include the full costs of implementing the effectiveness monitoring requirements that the Service specifies on page 31 of the Draft ECP Guidance. This includes the full costs of developing a program to monitor the retrofitted poles, including but not limited to: field review of retrofits by trained personnel; establishing an information technology solution within the utility to capture and monitor data; staffing a program manager to oversee the program and monitoring/reporting commitments; and labor and materials associated with reporting. This level of monitoring would not be needed if poles are retrofitted to APLIC 2006 Suggested Practices recommendations; rather, a post-retrofit inspection would be more appropriate. FWS needs to involve experienced utilities in the development of any unit cost estimates to support development of a Service-established BGEPA account or a thirdparty mitigation account identified by the project proponent and approved by the Service (page 31). As recommended above, the FWS should develop a utility industry stakeholder group to address these kinds of challenges and create solutions that work for both the utility industry and the FWS. The requirements for 24 months of monitoring and maintenance for the life of the pole are an expense that would deter utilities from wanting to take part in this program and these costs are not factored into the $1,000 per pole suggested mitigation cost to the wind developer.

16 16 Instead of expending time and money monitoring retrofitted infrastructure, we recommend applying compensatory mitigation funds to study and analyze the conditions around utility infrastructure where eagle mortality has occurred. To ensure effectiveness of retrofits, efforts would be better spent at inspecting poles as they are retrofitted to ensure that all necessary parts are covered and that the products are installed properly. APLIC member companies experience with retrofitting tens of thousands of poles indicates this is a key step in quality assurance and would be a better use of funds than an excessive frequency of post retrofit monitoring. RESOURCE EQUIVALENCY ANALYSIS (REA) MODEL The REA model does not appear to include thorough or representative data on electrocution rates. For example, the number of poles to retrofit for compensatory mitigation for one eagle (4.2 poles per eagle, see Table F-10) conflicts with retrofitting needs in response to eagle mortalities as documented by electric utility risk assessment data analysis. We suggest that FWS work with APLIC member utilities to obtain more complete and accurate data. In particular, one APLIC member company has extensive unpublished data on electrocution rates and retrofitting effectiveness from 10 years of detailed surveys in five states. The company has evaluated eagle electrocution rates within geographic areas and pole retrofitting needs to achieve meaningful reductions in eagle mortality rates. Summaries of these data are provided annually to FWS Office of Law Enforcement (OLE). APLIC is interested in working with FWS to apply such data towards refining pole retrofitting/compensatory mitigation guidance. APLIC reviewed the REA model and it is unclear to the committee, where the data came from that allowed the FWS to extrapolate the number of poles to be retrofitted to equal no net loss to eagle populations from wind farm development. Is Table F-3 a summary of all eagle mortality or mortality from power lines specifically? If these data are not specific to power line mortalities alone, how did the FWS extrapolate the number of power poles to be retrofitted to obtain no net population loss? How were other mortality factors incorporated into the analysis? APLIC is also concerned that the Draft ECP Guidance does not address how we can assume no net population loss from power pole retrofits alone. The REA does not appear to include any quantification of mortality to eagles from other environmental, land use, man-made changes and impacts to the environment. The Draft ECP Guidance

17 17 and the model do not include any other forms of compensatory mitigation to address these other sources of mortality. The Draft ECP Guidance will permit wind energy developers to take a certain number of eagles identified through the risk assessment model. The utilities, however, are being asked to retrofit poles to compensate for the mortality caused by a generation source. If wind development results in greater eagle mortality, it is assumed the utility will have to retrofit additional poles to compensate for this loss. The Draft ECP Guidance identifies utilities alone as being responsible for mitigating eagle mortality from wind generation through power pole retrofits, but there are insufficient data and analyses to support the assumption that retrofits alone will ensure a no net loss of eagle populations. How are survival rates calculated in the REA model? Are they calculated at each project site or is there a generic, national framework that would be used? Page 79, Golden Eagle REA Inputs this section states that the best available peerreviewed, published data and information from North American Golden Eagle experts were used. APLIC and its member utilities are a source of experts and data with regard to golden eagle electrocutions, yet they were not consulted to provide data or input on the REA model. We recommend that FWS work collaboratively with APLIC and its member utilities in the refinement of the compensatory mitigation guidance. The Draft ECP Guidance defines the relative productivity of retrofitting lethal power poles as the effectiveness in avoiding the loss of golden eagles by electrocution as a mitigation offset. Based on discussion amongst APLIC member utilities, it appears that FWS did not request from APLIC or any other utility, any mortality data that have been collected over the years as part of their APPs. FWS never requested any information from utilities specific to electrocutions on distribution and transmission lines or the relative success of power pole retrofits. The Draft ECP Guidance references a study from Florida showing electrocution with distribution lines was the primary source of mortality for bald eagles in the area. This number appears to have been used to assume mortality rates for the remainder of the bald and golden eagle s range. A larger sample size and data for both species would be appropriate in understanding electrocution caused mortality rates throughout the country and the success of retrofits by region. The sole citation used for electrocution rates in the REA analysis (Table F-3, page 81) was an unpublished source of data that is not from an electric utility company and does not consider factors influencing electrocution rates. Electric utility companies that collect comprehensive mortality data are the most accurate source of information on power line-related mortality rates for various species in different geographic areas.

18 18 We recommend that the FWS work with APLIC to obtain data from various utilities on electrocution rates in different habitats and geographic regions. The various factors influencing electrocution rates (habitat, pole configuration, prey populations, eagle use, etc.) should be included in electrocution rate analyses. Individual APLIC member utilities may have extensive unpublished data on eagle electrocution rates in various locations and habitats. Most APLIC member utilities submit annual summaries of these data to FWS OLE, and we would be interested in working with FWS to use these data to guide the Draft ECP Guidance document. APLIC was only able to identify one unpublished study referenced in the Draft ECP Guidance that addresses the relative efficacy of retrofitting power poles. If FWS intends to move forward with power pole retrofits as the primary form of compensatory mitigation, APLIC requests that all scientifically sound data available from the utilities and other public and private entities be used to determine if retrofits can truly offset wind farm mortality and if so, what is the appropriate method for retrofitting structures. The REA model should take into account other factors such as structure type and design, landscape, environmental, and land use factors that might also affect electrocution risk in any given area. The REA model identifies that poles would need retrofitting to compensate for one eagle. This number seems low in comparison to what many APLIC member utilities already retrofit in response to eagle mortalities. The REA model should differentiate between high, medium, and low risk power poles. Because electric utility companies are already retrofitting high risk poles associated with eagle electrocutions, a higher number of medium or lower risk poles may require retrofitting to meet REA model criteria. APPENDIX H Page 96: In this section the focus is on mortality monitoring at the turbines. However, the Draft ECP Guidance also mentions monitoring electrocution and collision with utility lines. Some clarity around proposed requirements and methodology for monitoring mortality in these locations would be useful. Please expand the discussion to include the electric utility lines or remove them from the fatality monitoring section. Again, APLIC can provide FWS with electrocution monitoring methods currently used by its members.

19 19 PRE-CONSTRUCTION SURVEYING The Draft ECP Guidance calls for three years of pre-construction surveys and analysis prior to the construction of new wind facilities. In the past several years, state and federal targets for renewable energy production have increased. The Draft ECP Guidance does not have a reasonable timeline or approach to addressing the balance between the public s demand for renewable energy and protection of bald and golden eagles. Pre-construction population monitoring within 10 miles of the project footprint for three years seems excessive and the document should clarify that this is not intended to apply to power lines. Projects could be postponed up to five years or greater through this process. POST-CONSTRUCTION MONITORING For disturbance monitoring (paragraph 1), if changes in occupancy, nest success, or productivity occur, how would these be correlated directly with the project? It would require intense and long-term research to determine cause and effect, particularly to eliminate other factors that may be contributing to population changes. CONCLUDING RECOMMENDATIONS In closing, APLIC recommends a fundamental rethinking of the power pole retrofit option as currently described in the Draft ECP Guidance. Furthermore APLIC recommends FWS make a thorough revision to the Draft ECP Guidance and that FWS engage utility stakeholders as soon as possible to discuss the potential impacts of the proposed compensatory mitigation strategy. APLIC would like to work cooperatively with FWS, leveraging our extensive institutional knowledge, to devise a compensatory mitigation program that meets the needs of bald and golden eagle protection, FWS, responsible wind energy project developers, and electric utilities.