BARBARA BOX(R. CAliFORNIA CHAIRMAN 

MAX BAUCUS MO,TANA 

THO'MS R CARPER OEL.t.WARE 

BENJAMIN L CARDIN MARYlANll 

BERNARD SAND< AS VERMONT 

SHLl DON WHITEHOUSE RHODliSlANO 

TOM UDALL NEW M~XICO 

Jfff MERKLEY OREGO'I 

KIRSTEN GllliBRAND. NEW YORK 

MAllE K HIRO'IO HAWAII 

DAVID VITTIR lOUISIA"A 

JAMES M INHOFE OKlAHOMA 

JOHN BARIIASSO WYOM NG 

JEFF SESSIONS, ALABAMA 

MII<E CIIAPO, IDAHO 

ROGER WICKER. MISSISSIPPI 

JOH'I BOOlMAN, ARKANSAS 

DEB ASCHER. NEBRASKA 

BETT 'I;A POIR ER MAJORITY STAFF DIRECTOR 

lAK 8AIG REI'UfJLICA/01 STAFF DIRECTOR 

Administrator Gina McCarthy 

U.S. Environmental 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 

itlnitcd ~tatcs ~cnatc COMMITIEE ON ENVIRONMENT AND PUBLIC WORKS 

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 beneficial 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 Endangered 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 1601

h Anniversary of the Department of the 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 PAPfR 
from 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, several bat species, the 

gopher tortoise, listed salamander species, and numerous other plant and animal species. 

The proposed GHG NSPS creates 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 from our energy roster, it is virtually certain that we will 

see a shift to energy sources like wind, solar, natural gas, and even nuclear. 

While power plants that generate electricity from coal, nuclear, and natural gas have some 

similarities 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 approximately 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 of the 

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 of Robert Bryce). 8 !d. (testimony of Robert 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 border12 and there are longstanding concerns 

about the impact of solar facilities on endangered desert 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 listed 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 critical 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/aJticle2560494/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 of the 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 consultation is not occurring. 

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 description 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 consultation with the EPA over future 

greenhouse gas regulations? For example, the Administration is reportedly engaged in 

interagency discussions about regulation of existing sources that emit greenhouse gases. To 

what extent has the Fish 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 

goals 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 of the 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