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BETT 'I;A POIR ER MAJORITY STAFF DIRECTOR lAK 8AIG REI'UfJLICA/01 STAFF DIRECTOR

Administrator Gina McCarthy U.S. Environmenta l Protection Agency 1200 Pennsylvania Ave, NW Washington, DC 20460
Director Dan Ashe U.S. Fish and Wildlife Service U.S. Department of the Interior 1849 C. Street, NW Washington, DC 20240 

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**~tatcs ~cnatc**  COMMITIEE ON ENVIR O NMEN T AND PUBLI C W O RKS WASHINGTON, DC 20511>-0175 March 6 , 2014

Dear Administrator McCarthy and Director Ashe,
On March 3, 2009, President Obama signed a Presidential Memorandum that restored a process of "broad interagency consultation to ensure the application of scientific and technical expertise to decisions that may affect threatened or endangered species." 1 In a speech at the Department of the Interior, he noted the memorandum would "restore the scientific process to its rightful place at the heart of the Endangered Species Act, a process undermined by past administrations." 2 We write today to ensure that your agencies are acting in a manner that is consistent with the President's demand that " (t]he work of scientists and experts

...be respected." 3
At a hearing in the Senate Environment and Public Works Committee (EPW) on February 25, 2014, Director Ashe confirmed that the Environmental Protection Agency (EPA) and Fish and Wildlife Service (FWS) are engaged in consultation under Section 7 of the Endangered Species Act (ESA) on the EPA's proposed §316(b) Cooling Water Intake Structures rule, 4 which is expected to have only benefi cial impacts for threatened and endangered species over the current baseline. While we question the benefits of formal consultation in the context of §3 16(b) because of the beneficial nature of the rule, we understand that the implementing regulations for 7(a)(2) of the ESA require consultation for any action that "may affect" a listed species or designated critical habitat. 5
Information was requested at the hearing about whether ESA consultation is occurring between the EPA and the FWS on the EPA's Standards ofPerformancefor Greenhouse Gas (GHG) Emissions

1 Memorandum for the Heads of Executive Departments and Agencies, Subject: The Endanger ed Species Act, (Mar. 3, 2009) available at http: //www.wh itehouse.gov /the _press
_ office /Memorandum- for-the-Heads-of-ExecutiveDepartments-and-Agencies. 2 President Barack Obama, Remarks to Commemorate the 1601h Anniversa ry ofthe Departmen t ofthe Interior (Mar. 3, 2009), available at http://www.whitehouse.gov/the-press-office/remarks-president-commemorate- 160th

-anniversarydepartment-interior. 3 !d. 4 National Pollutant Discharge Elimination System

- Cooling Water Intake Structures at Existing Facilities and Phase I Facilities, 76 Fed. Reg. 139 (July 20, 2011), Docket ID No. EPA-HW-OW-2008-0067. 5 50 CFR 402.14(a)

Pfl "ITO ON RECYClED PAPfRfrom New Stationary Sources: Electric Utility Generating Units, 6 more commonly known as the GHG New Source Performance Standards (NSPS) for power plants. We believe the proposed NSPS for power plants will have a significant impact on federal and private land use, largely from changes in our nation's energy portfolio, and will therefore have a dramatic impact on threatened and endangered species, including but not limited to the California Condor, severa l bat species, the gopher tortoise, listed salamander species, and numerous other plant and animal species.
The proposed GHG NSPS crea tes an unachievable standard for new coal-fired power plants without the use of carbon capture and sequestration (CCS). While we are hopeful that CCS will one day be commercially viable, we will continue to see new electric generating sources developed to provide the additional energy needed to power our economy. Because the NSPS effectively removes the option of building a coal-fired power plant f rom our energy roster, it is virtually certain that we will see a shift to energy sources li ke wind, solar, natural gas, and even nuclear

. While power plants that generate electricity from coal, nuclear, and natural gas have some similari ties in terms of land use required, wind and solar energy have decidedly larger footprints. Testimony before the EPW Committee made clear that replacing the San Onofre Nuclear Generating Station in Southern California, which sits on 214 acres, with wind turbines would require a land area the size of Sacramento County, which is approximat ely 2502 square kilometers. 7 Similarly, replacing our nation 's existing coal-fired power plants with wind energy would require a land mass similar to the country ofltaly. 8 This massive shift caused by the GHG NSPS regulation may affect a number of listed species throughout the United States, and could easily have a detrimental impact on their habitat. The shift in energy production caused by the proposal could conceivably push other species with currently robust populations to the brink of extinction. In raising this issue, we believe it is important to note that habitat loss was " universally cited as the major cause for extinction of species worldwide" when the ESA was passed in 1973. 9

In addition to the tremendous land use requirements, we note that wind and solar energy have negative impacts on endangered species like the California condor and other protected bird species, such as bald eagles. The American Bird Conservancy expressed concern about the impact ofthe Alta East Wind Project in California on the endangered condor, of which fewer than 250 exist in the wild. 10 Furthermore, the FWS 's own biologists estimated annual bird mortality from wind energy production at approximately 440,000 in 2009. 11 More recently, we were made aware of potential

6 Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430 (January 8 , 2014), Docket lD No. EPA-HQ-OAR-20 13-0495. 7 Natural Resources Adaptation: Protecting Ecosystems and Economies Before the S. Comm

. on Env't and Pub

. Works, I 13th Cong. (2014) (statement ofRobert Bryce)

. 8 !d. (testimony ofRobert Bryce). 9 H.R. Rep. No. 95-1628, at 5 (1975), reprinted in 1978 U.S.C.C.A.N 9453,9455. 10 Press Release , Am. Bird

. Conservancy, Feds Decision to Allow Wind Farm to Kill California Condor Threatens Recovery Effort, Says Leading Bird Group, available at http://www .abcbirds.org/newsandreports/releases/130524.html. 11 Fiscal Year 2013 Budget Justification, U .S. Fish and Wildlife Serv. available at http ://www. fws.gov/budget/20 13/FY%2020 13%20FWS%20Greenbook%20Final.pdf.bird kills near a solar facility on the California-Nevada border 12 and there are longstanding concerns about the impact ofsolar facilities on endangered deser t tortoises. 13

We do not presume to know the exact impacts of the EPA's proposed NSPS to listed species and their designated critical habitat, but it is certain that the issuance of the rule will shift some energy production to energy sources that require additional habitat and have a proven history of harm to endangered and threatened species. Because it is obvious that the proposed GHG NSPS may affect a li sted species or designated critical habitat, and given the fact that Director Ashe made clear in his February 25 , 2014 testimony before the Senate EPW Committee that an agency "has an obligation" to consult on these known impacts, we request you provide thorough answers to the following questions:
1

. Does the law require the EPA to consult on their proposed rules if the rule "may affect" a listed species? 2. Are the EPA and the FWS currently engaged in Section 7 consultation under the ESA in regard to the proposed GHG NSPS for power plants? 3. If consultation is occurring, when did that consultation begin? 4. Has the EPA conducted a biological assessment on the proposed rule? If so, was the FWS consulted on that assessment? If such a biological assessment has been developed, please provide us with a copy. 5. Have the EPA and FWS determined the "effects ofthe action" to listed species or critical habitat, including the "indirect effects" of the action and the "cumulative effects" ofthe action? 14 6. Have you detennined the geographic area that will be affected directly or indirectly by the proposed rule? If so, please provide a description of such area. 7. If you have not yet determined the geographic area that will be affected, directly or indirectly, by the proposed action how would the FWS recommend the EPA identify which listed species may be affected? Would the FWS require that all affected species be considered? 8. If you have not yet determined the geographic area that will be affected directly or indirectly, how would the FWS suggest the EPA assess potential critical habitat that may be adversely affected? 9. How would the FWS suggest the EPA allocate the impacts to species and critica l habitat due to relative shifting of our nation's energy portfolio from its current 

### mix of oil and gas, coal, solar, wind, and nuclear energy sources to a portfolio that includes more wind and solar power which have a demonstrated impact on endangered and threatened species and critical habitat? 10. If the EPA has developed a biological assessment, has the FWS developed any biological opinion(s) related to the impacts of the GHG NSPS for power plants on endangered and

12 Horror at the world's largest solar farm days after it opens as it is revealed panels are SCORCHING birds that fly over them, Daily Mail (Feb

. 16, 2014,9:05 AM), available at http: //www.dailymail.co.uk/news/aJticle

2560494/ Worlds-largest-solar-farm

-SCORCHING-BIRDS-tly-it.html#ixzz2tg6eU3ZG. 13 Christopher Weber, Environmentalists say solar projects will endanger desert tortoises, The Desert Sun, (Feb. 23, 20 14), available at http;//www.mydesert.com/viewart/20 140223 /BUSINESS/3022300 14 /Solar-projects-endangerdesert-tortoises 14 Memorandum from the Solicitor, Guidance on the Applicability ofthe Endangered Species Act's Consultation Requirements to Proposed Actions Involving the Emission of Greenhouse Gases, (Oct. 3, 2008).threatened species? If such a biological opinion(s) has/have been developed, please provide us with a copy. 11. If the EPA and FWS are not engaged in consultation, please provide a detailed reason for why consu ltation is not occur ring
. 12. If consultation is not occurring, please provide us with both a legal and scientific explanation for why the EPA chose not to initiate consultation on the 

### GHG NSPS, but has initiated consultation on the §316(b) rulemaking. 13. If the EPA and FWS engaged only in informal consultation, please provide us with a detailed descr iption of the contents of that informal consultation, including all records, electronic or otherwise , of meetings , conversations , e-mails , letters, and /or other communications or documents between the EPA and FWS. 14. If the EPA and FWS engaged only in informal consultation, please provide us with a copy of the "no effect" letter issued by the FWS tHat would obviate the need for formal consultation. 15. If no consultation has occurred between the EPA and FWS , do you anticipate that the EPA will request consultation? When do you anticipate such a request will be made? 16. If formal consultation occurs, will you provide affected parties and the public an opportunity to comment on the biological opinion(s) that is/are developed? 17. Do you anticipate that you will engage in formal consulta tion with the EPA over future greenhouse gas regulations? For example, the Administration is reportedly engaged in interagency discussions about regulation ofexisting sources that emit greenhouse gases. To what extent has the Fis h and Wildlife Service been involved in those discussions? We believe that such a comprehensive and far-reaching change as proposed in the EPA's rule is reasonably certain to adversely affect listed species. We are concerned that in its zeal to fulfill the goal s of the President's Climate Action Plan the Administration may be tempted to overlook the existing protections for the environment embodied in the ESA. Any failure to appropriately conduct an ESA consultation may have dire results for protected species and their habitat, and result in even more species being endangered.
We look forward to your answers to these important questions as the beginning of a dialogue regarding the process of assessing the impact ofthe 

### GHG NSPS for power plants on America's environment particularly with respect to endangered species. Sincerely,

CC: Secretary Sally Jewell, U .S. Department of the Interior