Submitted Electronically via erulemaking Portal to FWS-R5-ES

Transcription

1 March 17, 2015 Public Comments Processing Attn: FWS-R5-ES Division of Policy and Directives Management U.S. Fish and Wildlife Service, MS: BPHC 5275 Leesburg Pike Falls Church, VA Submitted Electronically via erulemaking Portal to FWS-R5-ES SUBJECT: Comments on Listing the Northern Long-Eared Bat with a Rule Under Section 4(d) of the Act; Proposed Rule, 80 Fed. Reg (January 16, 2015), Docket No. FWS-R5-ES The National Rural Electric Cooperative Association (NRECA) respectfully submits the following comments in response to the above-referenced notice and request for comment from the U.S. Fish and Wildlife Service (FWS). We appreciate the opportunity to submit comments on the proposed rule to list the Northern Long-Eared Bat (NLEB) with a rule under Section 4(d) of the Endangered Species Act of 1973, as amended (ESA). NRECA is the national service organization dedicated to representing the national interests of cooperative electric utilities and the consumers they serve. NRECA is the national service organization for more than 900 not-for-profit rural electric utilities that provide electric energy to over 42 million people in 47 states or 12 percent of electric customers. The vast majority of NRECA members are not-for profit, consumer-owned cooperatives. NRECA s members also include approximately 65 generation and transmission (G&T) cooperatives, which generate and transmit power to 668 of the 838 distribution cooperatives. The G&Ts are owned by the distribution cooperatives they serve. Remaining distribution cooperatives receive power directly from other generation sources within the electric utility sector. The typical distribution co-op is a small business that serves 13,000 consumers. Electric cooperatives own and maintain 2.5 million miles or 42 percent of the nation s electric distribution lines, covering 75 percent of the U.S. landmass. Both distribution and G&T cooperatives were formed to provide reliable electric service to their owner-members at the lowest reasonable cost. NRECA understands the FWS s concerns for the NLEB presented by the disease whitenose syndrome as outlined in the proposed listing. While there may be compelling reasons for listing the NLEB as threatened or endangered, NRECA previously has relayed our concern regarding the proposed listing of the species in our comments of August 29, 2014 in this docket. 1 NRECA is a member of the Energy and Wildlife Action 1 Our concern centers on the electric cooperatives obligations to public safety, maintaining electric reliability, and legal requirements under the Energy Policy Act of 2005 and the North American Electric Reliability Corporation Transmission Vegetation Management standards (FAC-003-3) Wilson Blvd. Arlington, VA tel:

2 Coalition (EWAC) and we support its comments on the proposed NLEB 4(d) rule and the proposed listing rule. We appreciate that the FWS has considered our comments and, based on available research, proposed this rule. Should the FWS decide that listing of the NLEB is warranted, NRECA urges the FWS to list the NLEB as a threatened species rather than an endangered species and focus on measures to control the disease white-nose syndrome to stop the population s decline. The proposed 4(d) rule takes into account that utility line maintenance, emergency response, and installation activities need not be prohibited in order to provide for the conservation of the NLEB. NRECA provides suggestions below to improve the proposed 4(d) rule to ensure that essential utility right-of-way activities, including limited expansion and new service connections, can continue without compromising the habitat of the NLEB. We are also requesting some clarifications. Clarify the Process for Changing the Documented Occurrence of White- Nose Syndrome (WNS). The proposed rule would divide the range of the NLEB into those areas within 150 miles of the documented occurrence of the disease WNS and those areas not in proximity to the documented occurrence of WNS as identified by the Service (80 Fed. Reg. 2372). Since the occurrence of the disease WNS may be changing, we recommend that a process for amending the documented occurrence of WNS be included in the proposed rule for the purpose of providing regulatory certainty and sufficient notice to those with affected activities. NRECA believes that a map of the WNS buffer zone should be included in the text of a final 4(d) rule, and any changes to the boundaries of the WNS buffer zone require a formal rule-making process, including a notice and comment period. Further, NRECA supports the use of county lines in describing delineated areas to the public consistent with WNS spread maps. Clarify the Process for Documenting the Loss of Known Hibernacula. For the purposes of the proposed rule and its proposed conservation measures, local Service Ecological Services field offices would determine specific locations of known hibernacula and known maternity roosts using records in each State s Natural Heritage database, Service records, other databases, or other survey efforts (80 Fed. Reg. 2374). Since NLEB occurrence is changing because of the disease WNS, is there a process for documenting the loss of known hibernacula or maternity roosts due to WNS in the case of 100 percent population loss? What would be the time frame? Or, is it the case that once a location is a known hibernacula or known maternity roost it is always considered occupied for the purpose of applying habitat conservation measures? Clarify Maintenance and Limited Expansion of Existing Rights-of-Way, Transmission and Distribution Corridors. NRECA supports the provision in the proposed rule that would except from prohibition incidental take that is caused by activities for the purpose of maintenance and limited expansion of existing rights-of-way and transmission corridors (80 Fed. Reg. 2375). However, we seek clarification that this provision includes rights-of-way for electric power distribution lines to meet service and reliability requirements. Electric cooperatives own and maintain 42 percent of the nation s electric distribution lines so the inclusion of these lines is critical to their operations and the maintenance of safe, reliable power. 2

3 In addition, NRECA seeks clarification that the Expansion of a corridor or ROW by up to 100 feet (30 m) from the edge of an existing cleared corridor or ROW, carried out in accordance with the previously described conservation measures, means 100 feet from each edge. NRECA supports this interpretation. Include a Provision for New Utility Line Installation, Equipment, and Service Connections. Electric cooperatives are regulated by federal and state laws, which require, among other things, the provision of utility service to new users without discrimination and the establishment of reliable electric service with adequate reach and redundancy. Utility service projects may involve installation or replacement of utility poles, stringing of electric lines, and at times, underground installation of electric cables or the expansion of substations. Most new utility services occur in existing rights-of-way, which are often co-located with highways, roads and other existing corridors. However, there are circumstances when new rights-of-way are required. This need arises primarily with respect to rural connectivity, tribal development, reliability, and safety considerations. Those requesting electric service do not all reside in areas with access to existing utility rights-of-way. New rural service connections and the provision of electric utility service to tribes in rural areas will sometimes necessitate new rights-of-way, not just the widening of existing rightsof-way. In other situations, the co-location of new utilities along existing roadways or other crowded corridors is sometimes not possible or optimal for security or safety reasons. The electric cooperatives, other utilities and the agencies that oversee power line siting decisions should not be compelled to make a siting decision without regard for security and safety. For these reasons, connecting electric supply to customers sometimes requires the addition of new utility corridors (typically less than 200 feet wide for electric corridors) or clearing of new rights-of-way for placement of utility structures or equipment. Electric cooperatives are already motivated by cost, efficiency, and other considerations to co-locate new linear projects within existing corridors when it is safe and possible to do so. But it is not always safe or possible. To avoid conscribing utility infrastructure to its current state, without room for expansion or new service connections in rural and other areas, a clarification to the scope of the "limited expansion" permitted under the proposed 4(d) rule is necessary. The 4(d) rule, as proposed, would permit "expansion of existing rights-of-way" within given parameters. According to the proposal, the permitted expansion is limited to "expansion of a corridor or ROW by up to 100 feet (30 m) from the edge of an existing cleared corridor or ROW" (80 Fed. Reg. 2375). This refers to expansion in width but not in length. NRECA agrees with the conclusion that limited right-of-way expansion would not adversely affect conservation and recovery efforts for the NLEB, but the exception is defined so narrowly that utilities could be prevented from extending service or making new service connections things we are required to do by regulation and in response to consumer service requests. To the extent the proposed rule could be read to prohibit any new utility right-of-way in forested areas within the multi-state range of the NLEB, this restriction is not workable, nor is it necessary to provide for the conservation of the species. 3

4 If adopted, a final 4(d) rule should include new rights-of-way in conjunction with the inclusion of the expansion of existing rights-of-way when co-location within existing rights-of-way is infeasible or insufficient to satisfy service, reliability, security and/or safety reasons. NRECA encourages the FWS to make such a change so that the reach of utility infrastructure does not become limited, so that new users in rural areas can receive utility services, and so that additional infrastructure needed to preserve utility reliability can be sited and constructed. Recognize the Need for Creating New Access Areas During Hazardous Tree Removal. NRECA supports the inclusion of the exception from take prohibition for hazardous tree removal included in the proposed rule (80 Fed. Reg. 2375). This provision encompasses some of the emergency response activities that electric cooperatives may need to perform within or near rights-of-way, but not all of them. For example, responding urgently to a weather-related or other outage or safety emergency could require creating access through affected forested areas and/or removal of trees to allow the disentanglement of utility lines or poles. As noted in the proposed rulemaking, the infrequent removal of hazardous trees will result in "very minimal incidental take." The same is true for any clearing activities in forested areas that may be necessary in response to emergency situations. For this reason, NRECA recommends that the final 4(d) rule, if adopted, recognize that the exception from prohibition applies to emergency response activities even if those activities must occasionally affect non-hazardous trees. This can be accomplished by revising the proposed provision, adding "and the removal of other trees as needed to respond to emergency situations." This would allow a non-hazardous tree to be trimmed or removed if necessary to permit effective response to emergency, while the effect on NLEB habitat resulting from this exception will remain minimal. The provision would then read: Therefore, the Service proposes that take incidental to the removal of hazardous trees and the removal of other trees as needed to respond to emergency situations will not be prohibited. Since the NLEB is a mobile species with a wide range and ample forested habitat, NRECA agrees with the FWS that the potential impact of utility work does not threaten the survival of the NLEB or the conservation of its habitat. Where impacts may occur, the electric cooperatives work closely with the natural resource, forestry, and fish and wildlife agencies in their respective states to ensure that vegetation management and installation field work do not harm wildlife, including the NLEB. Thank you for the opportunity to comment on this proposed species-specific rule for the NLEB. NRECA remains committed to working with the FWS and other immediate stakeholders to develop effective conservation measures that will protect the NLEB while allowing electric cooperatives to continue to deliver safe, affordable and reliable electric power. NRECA believes this listing could impact as many as 650 distribution co-ops and G&Ts within the NLEB s 39-state range. The importance and extent of this issue require a national solution for electric cooperatives. 4

5 If you have questions regarding our comments or we can otherwise be of additional assistance, please contact me at (703) or Sincerely, Carol E. Whitman, Ph.D. Senior Legislative Principal Environmental Issues cc: Mr. Gary Frazer, FWS Mr. Tony Sullins, FWS Mr. Dennis Rankin, USDA 5