*Pages 1--16 from Microsoft Word - order.DA04-2990.doc* Federal Communications Commission DA 04- 2990 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of State of Ohio Department of Administrative Services - Application for Antenna Structure Registration - Deersville, OH Petition to Deny - Forest Conservation Council and the American Bird Conservancy ) ) ) ) ) ) ) ) ) File No. A0360240 MEMORANDUM OPINION AND ORDER Adopted: September 15, 2004 Released: September 16, 2004 I. INTRODUCTION 1. In this Memorandum Opinion and Order, we grant an Application for Antenna Structure Registration (“ Application”), File No. A0360240, filed by the State of Ohio Department of Administrative Services (“ State”) for a proposed tower near Deersville, Ohio (“ Deersville tower”). The Application includes an Environmental Assessment (“ EA”). The Forest Conservation Council and the American Bird Conservancy (“ Forest/ ABC”) filed a consolidated petition to deny (“ Petition”) against the Application. 1 2. For the reasons set forth herein, the Spectrum and Competition Policy Division (“ Division”) of the Wireless Telecommunications Bureau (“ Bureau”), pursuant to delegated authority, denies the Petitions, makes a Finding of No Significant Impact on the Environment (“ FONSI”) on the Deersville tower, and grants the State’s Application. II. BACKGROUND 3. In its Application, the State proposes to construct and register a self- supported, 360- foot tall tower near Deersville, Ohio. The proposed tower would replace an existing 114- foot guyed tower used by the Harrison County Sheriff (“ Sheriff”). 2 The State intends to collocate antennas for the State’s 800 MHz band public safety system, the Sheriff, and other Commission licensees on the tower. In addition to the new proposed 360- foot- tall tower, a 12x18- foot equipment building, a 1,000- gallon propane tank, and other ancillary facilities would be located within an approximate 47x66- foot fenced compound area. 3 In accordance with the Commission’s rules 4 and the criteria of the Federal Aviation Administration (FAA), the tower will be lighted. 1 Petition to Deny - The Forest Conservation Council and the American Bird Conservancy (“ Forest/ ABC”), dated February 18, 2004. 2 See EA at 1- 4. 3 Id. 1 Federal Communications Commission DA 04- 2990 2 4. In December 2003, the Division, the Ohio Department of Historical Resources (Ohio State Historic Preservation Officer or Ohio SHPO), and the State (collectively “the Parties”) signed a Memorandum of Agreement (“ MOA”) 5 to mitigate adverse effects of the proposed tower to properties in Deersville, Ohio, which are listed or eligible for listing on the National Register of Historic Places (“ historic properties”). The Parties signed the MOA in accordance with Section 106 of the National Historic Preservation Act of 1966 (“ NHPA”), 6 pursuant to the Commission’s rules 7 and the rules of the Advisory Council on Historic Preservation. 8 5. On January 10, 2004, the State filed its Application to register the proposed tower with an attached EA. The Application appeared on public notice as accepted for filing with an opportunity for members of the public to comment on or file a petition to deny the Application on January 13, 2004. 9 On February 18, 2004, Forest/ ABC filed its Petition. On March 5, 2004, the State filed an Opposition to the Petition. 10 Forest/ ABC filed a Reply to the Opposition on March 18, 2004. 11 On August 10, 2004, the State made an ex parte submission 12 to the Division and copied Forest/ ABC regarding lighting of the Deersville tower. 13 III. DISCUSSION 6. We review the EA, the Petition and other pleadings in the public record to determine whether the Deersville tower would have a significant impact on the environment. Forest/ ABC contend that the Deersville tower will have a significant impact on migratory birds and that the Deersville tower will affect species protected by the Endangered Species Act (“ ESA”). 14 Therefore, Forest/ ABC assert that the Deersville tower will have a significant impact on the environment. 15 Accordingly, Forest/ ABC argue that the Application is inconsistent with the Commission’s environmental rules 16 implementing the National Environmental Policy Act of 1969 (“ NEPA”) and the ESA. 17 Forest/ ABC assert that the EA fails to comply with NEPA, the ESA, the Migratory Bird Treaty Act (“ MBTA”), 18 the regulations of the Council on Environmental Quality (“ CEQ”) 19 and the Commission’s environmental rules. 20 Finally, Forest/ ABC challenge the Commission’s environmental rules and (... continued from previous page) 4 47 C. F. R. § 17.4. 5 See Memorandum of Agreement among Spectrum and Competition Policy Division, the Ohio Dept of Historical Resources, and the State of Ohio Department of Administrative Services, December 2003. 6 16 U. S. C. § 470f. 7 47 C. F. R. § 1.1307( a)( 4). 8 36 C. F. R. Part 800. 9 Public Notice, Application for Antenna Structure Registration Accepted for Filing, dated January 13, 2004. 10 Opposition to Petition to Deny, filed by the State, dated March 5, 2004. The State and Forest/ ABC had previously agreed to an extension of time. 11 Forest/ ABC Reply to Opposition, dated March 18, 2004. 12 47 C. F. R. § 1.1204. 13 See Memorandum from David Northrup, Esq. to Don Johnson, Esq., staff attorney, Spectrum and Competition Policy Division, dated August 10, 2004; see also Letter from Aaron Goldschmidt, Assistant Chief, Spectrum and Competition Policy Division, to John Talberth, Esq., dated September 7, 2004. 14 16 U. S. C. § 1538 et seq. 15 See Petition at 2- 4. 16 See 47 C. F. R. §§ 1. 1301– 1. 1319. 17 See Petition at 4. 18 16 U. S. C. § 703 et seq. 19 40 C. F. R.§§ 1501 et seq. 20 See Petition at 3. 2 Federal Communications Commission DA 04- 2990 3 assert that the Commission must conduct an Environmental Impact Study (“ EIS”) regarding migratory birds and communications towers. 21 7. As part of our EA review process, we first determine whether the proposed tower would implicate any environmental factors listed in Section 1.1307( a) and (b) of the Commission’s rules. 22 The proposed tower site is not in a designated wilderness area or a designated wildlife preserve. 23 Although Forest/ ABC assert generalized allegations that the Deersville tower could kill or cause adverse habitat modification to endangered species, including the Bald Eagle, Indiana Bat, and the Piping Plover, 24 the U. S. Fish and Wildlife Service (FWS) wrote a letter indicating that the proposed project would have no effect on threatened or endangered species or critical habitat in Harrison County, including the bald eagle. 25 The State sought comment from potentially affected Indian tribes. 26 The Delaware Nation commented that the State should work with the Ohio SHPO’s office in the NHPA Section 106 process, which the State did. 27 The proposed site is not in a floodplain or in a wetland. 28 The proposed tower would not use high intensity white lights. 29 Finally, before the grant of authority to operate its antenna from the tower, the State must certify compliance with the Commission’s guidelines regarding radiofrequency emissions on its Application for Wireless Radio Authorization (FCC Form 601) for an 800 MHz license at the site. 30 Because the State will mitigate the adverse effect to historic properties and the proposed facility does not fall within any of the other categories specified in Section 1.1307( a) and (b), Forest/ ABC have failed to establish the State’s noncompliance. The petitioners assert only general allegations and do not specify how the EA is deficient. 31 Therefore, we determine that the EA complies with Section 1.1307( a) and (b) of the Commission’s rules. 32 8. Forest/ ABC also assert that the proposed tower would kill migratory birds. 33 The Petition attaches an affidavit from a citizen in the community of the proposed tower, who asserts that the Deersville tower will detrimentally affect his bird watching in the area. 34 In response to the Petition and affidavit, the Division commissioned a Report that assesses the collision risk to migratory birds from the Deersville tower. 35 Avatar Environmental, LLC (“ Avatar”), a biological consulting firm, prepared the Report, which considers a number of factors, including tower configuration, location, elevation, potential species’ presence, migratory and daily movement corridors, habitats, and historical information and trends pertaining to avian collisions with communication towers. 21 See Petition at 8. Because we reject the petitions on the merits, it is not necessary to determine whether each one of the parties demonstrates standing to challenge the EA. See Friends of the Earth, Memorandum Opinion and Order, 18 FCC Rcd 23622 (2003). 22 47 C. F. R. § 1.1307( a) and (b). 23 See EA at 5; see also 47 C. F. R. § 1.1307( a)( 1) and (2). 24 See EA at 11. 25 See 47 C. F. R. § 1. 1307( a)( 3); see also Letter from Mary Knapp, Supervisor, US Fish and Wildlife Service Ohio Field Office, to GDP Associates, consultant for the State, dated March 18, 2003. 26 See EA at 6; see also 47 C. F. R. § 1.1307( a)( 4) and (5). 27 See EA at 6. 28 See EA at 7; see also 47 C. F. R. § 1.1307( a)( 6) and (7). 29 See EA at 8; see also 47 C. F. R. § 1.1307( a)( 8). 30 See 47 C. F. R. § 1. 1307( b); see also O. S. T. Bulletin No. 65. 31 See Public Employees for Environmental Responsibility, Order, RM- 9913, 16 FCC Rcd 21439, 21448 (2001) (rejecting generalized assertions of cumulative environmental effect that were not described or supported by concrete evidence). 32 47 C. F. R. §§ 1. 1307( a) and (b). 33 See Petition at 3- 7. 34 Id., Affidavit of Andrew George, Attachment B. 35 See Appendix A, Report. 3 Federal Communications Commission DA 04- 2990 4 9. The Report assesses the proposed tower’s potential effect on migratory birds. 36 The Report indicates that Avatar was unable to locate any references to important bird concentrations in the Deersville area. 37 The Report further indicates that the proposed use of a self- supporting structure and the collocation of equipment and facilities would reduce the potential for avian collisions. 38 The Report concludes that the Deersville tower’s effect would not likely be significant for migratory birds, based on the proposed tower configuration, the removal of the existing 114- foot guyed structure, the lack of known bird concentrations and daily movement corridors in the area, and the fact that no rare or listed bird species is known to occur in the vicinity. 39 Therefore, the Division finds that the Deersville tower will not have an effect on migratory birds. 40 10. Forest/ ABC also assert that the EA does not analyze the cumulative impacts associated with the proposed Deersville tower. 41 In this regard, Forest/ ABC’s sole argument consists of identifying the number of existing towers in the region and listing several types of cumulative impacts. 42 Forest/ ABC, however, provide no evidence of any synergies with existing towers that would cause them cumulatively to have significant environmental impacts that the Deersville tower would not have individually. Forest/ ABC’s generalized assertions of cumulative effects therefore do not provide a basis for challenging the Deersville tower or for determining that the Deersville tower may have a significant environmental impact on migratory birds. 11. Forest/ ABC also argue that the EA does not consider reasonable alternatives, including a “no action” alternative to not construct the Deersville tower. 43 Under Section 1.1311( a)( 4) of the Commission’s rules, applicants are required to discuss in an EA their grounds for rejecting alternatives to their proposal based on both environmental and other considerations. 44 Determining reasonable alternatives thus involves a balancing test of environmental factors and several other factors, including but not limited to cost, feasibility, technological requirements, the need for service, and the public interest. In this instance, the State has identified several compelling needs that its construction must serve. 45 The State will be collocating an 800 MHz antenna as part of a statewide interoperable public safety system. Several additional Commission licensees will also be able to collocate on the tower, including the Harrison County sheriff. 46 The State must maximize coverage to provide wide area communications while meeting site- specific interference protection requirements under the Commission’s rules. 47 12. Given the important public safety needs that the proposed tower must serve, we find that the State reasonably considered and rejected alternatives to its proposal. A “no action” alternative is not viable because the State must construct the tower to provide public safety services to the public. The 36 Id. 37 See Appendix A, Report at 5. 38 Id. at 6. 39 Id. 40 Although the Report suggests that the use of white strobe lights rather than red incandescent lights may reduce any remaining risk of collisions, the State has indicated that the use of white strobe lighting at night is not possible due to objections from the nearby residential community of Deersville, Ohio. See supra, n. 13. 41 Petition at 7. 42 Id. at 6. 43 Id. 44 47 C. F. R. § 1.1311( a)( 4); see also 40 C. F. R. §1508. 9( b); 36 C. F. R. §800. 4( a)( 3). 45 See Opposition, Attachment 22. 46 Id. 47 See In the Matter of State of Maryland, Memorandum Opinion and Order, 19 FCC Rcd 12283, 11289 (WTB: SCPD 2004). 4 Federal Communications Commission DA 04- 2990 5 record is clear that the State did consider alternatives, mitigated effects to historic properties, and implemented alternatives where feasible. 48 13. We note that many of the Petitioners’ arguments are directed not at the approval of an EA for the Deersville tower under the Commission’s existing rules, but at the rules themselves. Thus, the Petitioners argue that the Commission’s rules do not comply with NEPA, the MBTA and the ESA. They further challenge the Commission’s alleged failure to include effects on migratory birds among the factors that require an EA under Section 1.1307( a) of the Commission’s rules. These arguments are properly the focus of a rulemaking proceeding, rather than objections to individual applications. 49 14. Finally, Forest/ ABC assert that the Commission has not provided adequate public participation. 50 We disagree. The application appeared on public notice for comment for 30 days. Forest and ABC filed their Petition in response to that public notice. Prior to filing the EA, the State consulted with several agencies, including the Ohio SHPO, the FWS and the Ohio Department of Natural Resources. 51 IV. CONCLUSION 15. We deny the Petition. Upon an independent review of the EA, and based on the entire administrative record, we conclude that the construction and operation of the Deersville tower, as mitigated, will have no significant impact on the human environment, within the meaning of NEPA and Section 1. 1307 of the Commission’s rules. We further conclude that allowing the State to construct a tower needed for public safety radio communications near Deersville, Ohio, will serve the public interest, convenience, and necessity. Accordingly, we grant the State’s application. V. ORDERING CLAUSES 16. Accordingly, IT IS ORDERED that, pursuant to Section 4( i) of the Communications Act of 1934, as amended, 47 U. S. C. §154( i), and Sections 1.939( b) and 1.1313( a) of the Commission’s Rules, 47 C. F. R. §§ 1.939( b) and 1.1313( a), the Petition to Deny filed by the Forest Conservation Council and the American Bird Conservancy IS DENIED. 17. IT IS FURTHER ORDERED, pursuant to Section 303 of the Communications Act of 1934, as amended, 47 U. S. C. §303( a), and Section 17.4 of the Commission’s rules, 47 C. F. R. § 17. 4, that the Application for Antenna Structure Registration (FCC Form 854), filed by the State of Ohio Department of Administrative Services, IS GRANTED. 18. IT IS FURTHER ORDERED, pursuant to Section 4( i) of the Communications Act of 1934, as amended, 47 U. S. C. §154( i), the regulations of the Council on Environmental Quality, 40 C. F. R. §§ 1501.3, 1508.9 and 1508.13, and Sections 1.1308 and 1.1312 of the Commission’s Rules, 47 C. F. R. §§ 1.1308 and 1.1312, that the Division finds grant of the Application will have no significant impact on the environment. 19. IT IS FURTHER ORDERED, pursuant to Sections 1501.4( i) and 1506.6 of the regulations of the Council on Environmental Quality, 40 C. F. R.§§ 1501.4( i) and 1506.6, and Section 1.1308 of the 48 See EA at 6. 49 See Friends of the Earth, Memorandum Opinion and Order, 18 FCC Rcd 23622 (2003); see also In Re Effects of Towers on Migratory Birds, Notice of Inquiry, WTB Docket No. 03- 187, 18 FCC Rcd 16, 938 (2003) (initiating an inquiry to consider potential effects of towers on migratory birds). 50 See Petition at 8. 51 See EA at 2- 3. 5 Federal Communications Commission DA 04- 2990 6 Commission's Rules, 47 C. F. R. § 1.1308, that applicant State of Ohio Department of Administrative Services is to provide to the community to be served by this facility notice of the finding herein of no significant impact. 20. This action is taken pursuant to delegated authority under Section 0.331 of the Commission’s rules, 47 C. F. R. § 0.331. Federal Communications Commission Jeffrey S. Steinberg Deputy Chief Spectrum and Competition Policy Division Wireless Telecommunications Bureau 6 F E D E R A L COMMUNICATIONS C O M M I S SION P R O P O S E D DEER S V I LLE COMMUNICATIONS ANTEN NAE SUPPORT STRUCTURE AVIAN COLL ISION AS SESS MENT Prepared by Avatar Environmental LLC / EDM International, Inc. J u l y 30, 2004 Introduction In January 2004, an Environmen tal Assessment (EA) was prepared for the proposed c o n s t r u c t i o n and operation of the Multi- agenc y Radio Communications System (MARCS) Communications Antennae Support Structure near Deersville, Ohio (GPD Group 2004). The State of Ohio Department of Administrative Services (ODAS) is proposing a s e l f -supporting, 360- foot, steel- lattice tower as part of the statewide communication network for public safety and public services. The Federal Communications Commission (FCC) has requested the Av atar team to conduct a supplemental assessment of the relative collision risk to both resident and migratory birds from the proposed tower operation. This report summarizes the relative collision risk to area birds, given a number of variables, including tower configuration, location, elev ation, potential species’ presence, migratory and daily movement corridors, habitats, and historical information and trends pertaining to avian collisions with communication towe rs. The proposed tower site is located immediately north of Deersville, in Harrison County, as shown in the referenced EA (GPD Group 2004). In addition to the new proposed 360- foot- tall tower, a 12x18- foot equipment building, a 1,000- gallon propane tank, and other ancillary f a c i l i t ies would be located within an approxim ate 47x66- foot fenced compound area. An existing 114- foot, guyed tower is presently lo c a ted onsite that is owned and operated by the Harrison County Sheriff. If the new MARCS tower is permitted for c o n s t r u c t i o n , the existing 114- foot tower would be removed, and the existing equipment would be co- located on the new 360- foot tower. Red, incandescent lighting is pres ently proposed for the new tower, in accordance with current Federal Aviation Administration (FAA ) guidelines . The existi ng tower is unlit. Communications and Coordination A number of sources were either contacted or reviewed to better define the risk of future bird collisions with the proposed Deersville Comm u n i cations Antennae Support Structure. The U. S. Fish and Wildlife Service (USFWS) and Ohio D e p a r t m e n t of Natural Resources (O DNR) had been initially contacted as part of the EA analysis. These early communications focused on determining whether federally or state- listed spec ies, designated critical habitat, wildlife refuges, unique ecological sites , or wildlife concentrations occurred at or within 1 mile of the proposed tower site. Appendix D of the EA contains the response letters from both agencies (G PD G r o u p 2004). The two federally listed species initially identified by the USFWS (2003) included the bald eagle (Haliaeetus leucocephalus) and Indiana bat ( Myotis sodalis). The USFWS provided a c o n c u r r e n c e letter, dated March 18, 2003, indicating that there were no anticipated impacts to federally listed species from project implement ation. The ODNR (2003) also stated that no 7 2 records of rare or endangered species had been reported within 1 mile of the proposed project area. As part of this assessment, additional contacts were made with other applicable federal, state, and local bi o l o g i s t s . Agency and local sources were few, and direct knowledge of both resident and migratory bird use and movements was limited. However, Mr. Damon Gree r, Assistan t Wildlife Supervisor for Region 3 of the Ohio Division of Wildlife (ODOW) headquartered in Akron, Ohio, was familiar with the project area and was able to prov ide input on possible w i l d l i f e -r e l a t ed conflicts (see attached Telecommunication Summary). Habitat Characterization The proposed project site is l o c a t e d in northeastern Ohio in the Ironton Plateau physiographic region immediately north of Deersville in Harrison County and is heavily fo rested. The elevation in the immediate vicinity ranges from 900 feet at Tappan La ke (approximately 0.75 to 2 miles to the north of the tower si te) to the 1,240- foot promontory where the proposed tower would be situated on the highest point in the region. With the addition of the 360- foot tower, the antennae would be approximately 1,600 feet above the ground (see EA maps, GPD G r o u p 2004). The topography is steep and hilly. Fog and reduced ceilings frequently occur in the region during migration, particularly in the vicinity of Tappan La ke. The extensive forested canopy tends to disperse birds. There are no known habitats, such as agricultural areas that might attract foraging birds, and no daily flight corridors were reported. Nearby Tappan Lake does attract waterfowl and other species as sociated with lacustrine environments. Although a few scattered wetlands occur to the south of the Deersville site (GPD Group 2004), no daily movement corridors between these wet meadow habitats and Tappan Lake have been documented (Greer 2004). A power line traverses the region from northwest to southeast. The power line and resulting cleared right- of way (ROW) may act as a leading line for some diurnal migrants that traverse the forested canopy. Avian Presence Following is a list of sensitive avian species that may occur in the vicinity of the project (ODNR 2004). Common Name Scientific Name Status Bald eagle Haliaeetus leucocephalus Federal Threatened, State Endangered Kirtland’s warbler Dendroica kirtlandii Federal Endangered, State Endangered Piping plover Charadrius melodus Federal Endangered, State Endangered Osprey Pandion haliaetus State Endangered Peregrine falcon Falco peregrinus State Endangered Northern harrier Circus cyaneus State Endangered King rail Rallus elegans State Endangered Sandhill crane Grus canadensis State Endangered 8 3 Common Name Scientific Name Status Common tern Sterna hirundo State Endangered Black tern Chlidonias niger State Endangered Yellow- bellied sapsucker Sphyrapicus varius State Endangered Bewick’s wren Thyomanes bewickii State Endangered Loggerhead shrike Lanius ludovicianus State Endangered Golden- winged warbler Vermivora chrysoptera State Endangered Lark sparrow Chondestes grammacus State Endangered Trumpeter swan Cygnus buccinator State Endangered Snowy egret Egretta thula State Endangered Little blue heron Egretta caerulea State Endangered The species listed either breed or pass through the region. Bald eagles and ospreys are discussed in greater detail, sinc e both raptor species breed immediately north of the project at Tappan Lake (Greer 2004). Bald Eagle Following the national trend, breeding bald eagles have increased throughout Ohio over the past decade. A pair has attempted to breed at Tappan Lake for several years. They laid eggs in 2004, but were unsuccessful. Nest failures typically occur with new breeders and are not of too much concern. The potential risk of eagle collisions with the proposed tower is unlikely. Although birds of prey spend considerable time in the air, collisions occur relatively infrequently compared to other species (Bev anger 1998). Aerial hunters like raptors possess excellent flying abilities along with binocular vision. Raptors also do not fly in rest rictive flocks. Additionally, the resident eagles would habituate to the tower as a daily obstacle to their flight. It is even possible that they may perch on the structure on occasion. Eagles are not nocturnal fliers and generally remain perched when visibility is obscured. As stated above for agency communications, the USFW S concurred in their March 18, 2003 letter that no impacts to the federally threatened bald eagle would be anticipated from project construction and operation (USFWS 2003). Ospre y Ospreys were released at Tappan Lake by the O D O W in previous years, and at least one pair currently breeds on the lake. Recently, they had to be relocated off of a transmission line that passes over the lake. It is unlikely that the resident ospreys would collide with the tower for the same reasons as described for bald eagles. It is possibl e that as the population expands, ospreys may use the to wer as a nest site. They are attracted to po wer poles and lattice structures that provide a dominant view of their surroundings. H o w e v e r , given a num b er of site- spe cific factors, it is unlikely that ospreys would nest on this tower for several reasons. Ospreys almost exclusively nest on the apex of the structure since their wingspread keeps them from accessing the confined spaces. The great height above the 9 4 surrounding forest is a deterrent to the birds and higher wind velocity at the top of the tower may affect nest material. Fi nally, human activity in the immediate vicinity may not be tolerated. Should nesti ng occur on the tower, several actions cou l d be taken, from nest removal to relocation (in accordance with applicable permits required from the USFW S and ODOW). The potential risks to the other sensitive species that may occur in or move through the area are discussed in general, as they pertain to historical reports of avian mortalities at c o m m u n i c a t i o n tower sites. No species- specific information was available for these other rare or sensitive species l i s t e d in the summary table. Migration Corridor The site occurs in a region where the Atlantic Fl y w a y is constricted by the funneling effects of the Great Lakes (see attached map). Northern migrants following the Atlantic Flyway are funneled by the Great Lakes and large numbers converge at Point Pelee on the north shore of Lake Erie immediately north of Cleveland (USFWS 2004). From the Point Pelee bottleneck, they strike south across Lake Erie. Once reaching landfall, the birds spread southward depending on frontal systems, climatic conditions, and prevailing winds. Given the known extent of the Atlantic Fl yway (see attached map), it is assumed that a number of migrants move through the Deersville region. However, we were unable to locate any references to the importance of the Deersville area for bird concentrations or viewing. Assessment of Avian Collision Risks Avian mortalities at t r i b uted to colliding with communication towers have been reported throughout North Americ a sinc e communication structures were first constructed. Bird kills at tower sites have been documented in the U. S. from the late 1940s and continue to the present (Towerkill. com 2004). It can be assumed the constructio n and operation of tall structures will likely result in increased bird coll i s i o n s and possible mortalities. This possibility is an unavoidable consequence of any tower construction. However, not all towers present the same collision hazard, and the same tower may result in markedly different mortality rates from night to night or season to season. Two mechanisms contri buting to av ian mortalities at communication towers appear to be prevalent. “B lind coll i s i ons” typically occur when there is reduced visibility and flyi ng birds do not see the structure or its support guy wires in time to av oid c o l l i d ing with these features. Blind collision applies more to fast- flying species (e. g., waterfowl, shorebirds, falcon species) that are passing in close proximity to a structure. Thi s mechanism can occur during the day or night and can be associated with unlit towers (T o w e r k i l l .c o m 2003). The second mechanism that is attributed to the larger “mass kills” of birds recorded ov er the last five decades generally occurs with lighted towers during inclement weather (e. g., foggy conditions, low cloud ceilings) at night. Under thes e conditions, light on the tower refracts off the water pa rticles in the air, i n c r e a sing the illumination surrounding the tower. It is theorized that when these migrating birds enter this sphere of light, they either switch some navigational cues and become disori ented or are attracted to the tower lights, remaining within this area of i n f l u e n c e ; continuing to c i r c l e the tower; and inadvertently and eventually striking the tower or its 10 5 supporting guy wires, resulting in significant a v i a n mortalities (Towerkill. com 2003; Ogden 1996; Avery et al. 1976). Although a number of unknowns exist as to the spec ifics of bird c o l l i s i o ns with c o m m u n i c a t i o n towers, there are a number of factors that help to define the relative risk of bird collisions. These factors include: 1) tower configuration, 2) height, 3) lighting, 4) location, 5) elevation, 6) surrounding and adjac ent habitats , 7) migratory pathways, 8) daily movement corridors, and 9) species’ potential for occurrence. All of thes e factors were taken into consideration when assessing the relative c o l l i sion risk of the proposed Deersville Communications Antennae Support Structure. The following factors t h at identify el ements that either inc r ease or help mitigate bi rd collision with the proposed tower are based on many av ian mortality studies completed in the United States at communication tower sites (Kerlinger 2000) and are in accordance with the USFWS’ 2000 tower siting voluntary guidelines. The USFWS developed these guidelines entitled, U. S. Fish and Wildlife Service Interim Guidelines for Recommendations on Communication Tower Siting, Construction, Operation, and Decommissioning, in October 2000. These guidelines and the associated Tower Site Evaluation Form are available at: h t t p ://m i g r a t o r y b i r d s .f w s .g o v /i s s u e s /t o w e r s /c o m t o w .h t m l Four factors are associated with the proposed Deersville Te lecommunication Communications Antennae Support Structure that may increase the risk of avian collisions : 1. Alt h o u g h the critical th res hol d for towe r heigh t has not bee n de f i nit e l y de t e rmi n e d (Crawford and En gst r o m 20 0 1 ), Kemp er (199 6 ) pr oj ect e d this thres h old to be ar ou nd 400 feet . Alt h o u g h the Dee r s v i lle t o wer would be 369 feet, th e propos ed place m e n t on t h e hi ghe st p r omon t o ry a d d s seve r a l hund re d add i t i on a l feet to t h e t o we r he igh t , ther eby, increa sing the collis ion risk for area birds. 2. The pr o pos e d pr o j ec t is lo ca ted alon g the west ern ed g e of th e Atl a n t ic Fl ywa y , ass u mi ng tha t migrat o r y co nce n t r ati ons of birds a r e present duri ng t he s p ri ng and f a ll migr ati o n periods. However, as other tower co llisi on st udies have shown, it is di ffi cult to predict bird mov e me nt and as so ciat ed bird co n c en t r a t io ns. 3. Cli m atic condi tio n s (lo w ceilin gs and fo g) occur th rou g hou t the regio n duri ng avian mi gration periods (fall and sp ri ng ). The largest bi rd kills tend to occu r on nights with l o w v i sib i lity cond it io n s , e s pecia lly fog or o t he r over cast cond it io ns with tail w i nd s. 4. Re d in ca nd e scen t ligh tin g is pr o p o s e d for the to we r, whic h ma y at t r ac t birds to a great er e x t ent t h a n the white stro be lights (Ga u th re au x a n d Bels e r 1999). Both li gh tin g regi me s are p r esen t l y au th o r ized fo r use by th e FCC an d FAA. Three factors would help mitigate the increased risk of avian collisions with the proposed tower: 1. The removal of the existing 114- foot guyed structure and replacement with a self- supporting tower would reduce the risk to a certain extent. Based on many of the studies and a s s o c i a t ed theories on bird collisions at communication tower sites, towers with guy wires present a higher risk to birds than self- supporting towers. Therefore, c o l l o c a t i on of equipment and facilities is always encouraged and the use of a self- supporting structure would reduce the potential for collisions. 11 6 2. No daily concentrated movement of either resident or migratory birds are known to occur in the area. Daily m o v e ment between foraging, roosting, and/ or seasonal areas would increase the collision risk, if the tower were located among those areas. Although some daily movement of local birds likely occu r in the general area, no concentrations have been reported. 3. No rare or sensitive bird species h a s been docum ented in the project vicinity that could be prone to collisions. The ODOW was not aw are of any bird strikes with the existing 114- foot guyed tower, but cautioned that birds may have struck the tower and were not reported (Greer 2004). In reference to the Indiana bat that was of initial concern relative to the proposed tower project, no bat hibernacula or other concentrations (e. g., nursery colonies or b a c h elor roosts) are known to occur in the project vicinity (Greer 2004). In addition, although incidental reports of bat mortalities have been reported at communication tower sites (Stoddard 1962), the number of bat mortalities has been low and the propensity of bat collisions is not thought to approach near the number of bird mortalities reported. Summar y and Recommendations In summa ry, the opera t io n of th e propos ed De ers v ill e Co mmu nic a t i ons An te nn ae Sup p o r t St ruc t u r e wo uld in c r e m e n ta ll y in crea se the po ten t ial fo r bo t h reside n t and mi grat ory bird collisi ons . This ass e ss men t is bas ed on to we r heigh t, site ele v ati o n , habi tat s , cl i m atic con d i t io ns, mig r at or y p a t hw ay, and th e prop ose d ligh t i ng re gim e . Howev e r , t h is incre a s e d risk would not likel y b e sign ific an t fo r ar e a bird s. This sta t e m ent is ba se d on th e propose d towe r confi gurat io n, th e re mo va l o f the ex is ti ng 114- f oo t guyed struc t u r e , th e lack o f know n b i rd concen trati o ns and d a il y mo ve men t co rrid ors in th e area, and the fa ct tha t no rare or listed bird spe c ies is kn o w n to occu r in the vici ni t y . Although the proposed tower likel y woul d not signif i c antl y in c r ease the co llis i on risk for area bi rds , replacing the proposed incandescent red flashing tower lighting with white strobes, as currently recommended by the USFWS, wo ul d furt he r redu ce the risk of av ia n colli sion , pa rtic ul arl y du ri ng incl e m e n t weat he r and sto r m ev ent s. Presen tl y, the choi c e of to wer li gh tin g is volu nt ary, in acco rd anc e with F AA reg u l a ti ons , and pr oj ect autho riz a ti o n woul d no t be co n t in g ent on this rec o mmend ati on. Howe ve r, the re co mmend at i on to modi f y the t o we r lig hti ng is prov id ed for consi d erati o n, based on the “best availabl e informatio n” relative to the pote ntial for avian collisions wi th commu nica tio n s t ru ctu r es . Reference s Avery, M. L., P. F. Springer, and J. F. Cassel. 1976. The effects of a tall tower on nocturnal migration - a portable ceilometer study. Auk, 93: 281- 291. Bevanger, K. 1994. Bird interactions with utility structures: collision and electrocution, causes and mitigating measures. Ibis 136: 412- 425. 12 7 Crawford, R. L. and R. T. Engstrom. 2001. Characteristics of avian mortality at a north Florida television tower: A 29- year study. Journal of Fiel d Ornitholog y 72( 3): 380- 388. G a u t h r e a u x , S. A., Jr. and C. G. Belser. 1999. The behavioral responses of migrating birds to different lighting systems on Tall Towers. Abstract Only: 1 p. in W. R. Evans and A. M. Manville II (editors). Tran scripts of the proceedings of the wo rkshop on avian mortality at communication towers, August 11, 1999, Cornell University, Ithaca, NY, P u b l i s h e d e l e c t r o n i c a lly at: h t t p ://m i g r a t o r y b i r d s .f w s .g o v /i s s u e s /t o w e r s / a g e n d a .h t m l GPD G r o u p. 2004. Environmen tal Assessment (EA) – MARCS Proposed Deersville T e l e c o m m u nications Ce ll Site. Prepared for: The State of Ohio Department of Administrative Services. January 2004. Greer, D. 2004. Assistant Wildlife Supervisor, Region 3, Ohio Division of Wildlife. Personal communication with J. Craig, EDM International, In c. July 15, 2004. Kemper, C. A. 1996. A study of bird mortality at a west central Wiscons in TV tower from 1957- 1995. The Passenger Pigeon 58: 219- 235. Kerlinger, P. 2000. Avian mortality at communication towers: A review of recent literat ure, research, and methodology. Prepared for U. S. Fish and Wildlife Service, Office of Migratory Bi rd Management. Ogden, L. J. E. 1996. Collision course: The hazards of li ghted structures and windows to migrating birds. World Wildlife Fund Canada and the Fatal Light Awareness Program. Tortonto, Ontario. September 1996. 46 pp. Ohio Department of Natural Resources (ODNR). 2003. Division of Natural Areas an d Preserves. Response letter on the proposed Deersville Telecommunications Cell Site E n v i r o n m e n tal Assessment, dated January 30, 2003. _____. 2004. Databa se of avian species that may potentially occur in the project vicini ty located at: w w w .d n r .s t a t e .o h .u s /e n d a n g e r e d / Stoddard, H. L. Sr. 1962. Bird casualties at a Leon County, Florida TV Tower, 1955- 1961. Tall Timbers Research Station, Tallahassee, Florida. Bulletin No. 1, 1- 94. T o w e r k i l l .c o m. 2003. h t t p ://w w w .t o w e r k i l l .c o m /i s s u e s /i n tr o . ht m l T o w e r k i l l .c o m. 2004. h t t p ://w w w .t o w e r k i l l .c o m /i s s u e s /i n tr o . ht m l U. S. Fish and Wildlife Service (USFWS). 2000. Interim Guidelines For Recommendations On Communications Tower Siting, Construction, Operation, and D e c o m m i s s i o n i n g . _____. 2003. Response letter on the proposed Deersville Telecommunications Cell Site E n v i r o n m e n tal Assessment, dated March 18, 2003. _____. 2004. Atlantic Fl yway Map at h t t p ://p a c i f i c f l y w a y .g o v /D o c u m e n t s /A t l a n t i c _m a p .p d f 13 14 9 EDM In t e rna t io na l, In c . 400 1 Autom a ti on Way Fort Colli ns, CO 8 0 5 2 5 - 3 479 USA Tel ep hon e: (97 0 ) 20 4 - 4 0 01 Fa x: (970 ) 2 04- 40 07 Em ail: info@ e dm lin k . c om www .e dm link. c om TELECOMMUN ICATION SUMMARY DA TE: 7/ 1 5 / 04 FROM: Jerry Crai g ASSOCIA T ION: EDM Inte rn a t io nal , Inc. TO : D a mo n Gree r ASSOCIA T ION: Oh io Di v i sion of Wi ld lif e PHON E: 330 /6 44 -3 80 2 PRO J EC T: De ers v ill e Ass e ss ment SUB J EC T: Po te nti a l bi rd pr e s en ce in pr o j ec t vi ci nit y . Mr. Gree r is the Assis t a n t Wild li fe Supe rvi s o r fo r Regi on 3, he a dqu arte re d in Akron , OH. He is very fa mi lia r wi th th e cu rrent 114’ hi gh commun i ca t i on tower at De ers v ill e. The to we r’s l o ca tio n is cr i t ica l since it is loca t e d o n t h e h i gh est poin t in the region and is p a r t of the stat ewid e commun ica t ion syst em used by law e n f o rceme n t a n d othe r stat e agen cies. He said that n o rm ally his off i ce comme nt s o n cell towe rs, bu t h e wa s n o t aw ar e that a ne w to we r wa s to be const r uc te d at the site . The regi on is he a v i l y fo rest ed an d h e ch a r ac te riz ed th e top o g r ap h y as ste ep an d hill y. A po wer lin e tr a v e r ses the ar e a fro m the North w e s t to th e So ut he ast . Tap pa n Lak e is ad jac e n t to th e site a nd is an attract ant fo r wa te rf o w l and o t h e r sp eci e s associ a t e d with the l a ke. Ospre y s an d a pair of b a ld e a g l es ne st at T a p pan L a ke , the y ar e bo t h on th e st a t e’s en da ng e r ed speci e s l i st. Os pre y s have be en in trod uce d to the area ov er th e pas t dec ade an d a coup le of pa irs ar e ne sti ng on the lak e . Th e y recent l y rel o c a t ed a pai r of osp r e y s th a t nes ted on a p o w e r l i n e that trav e r se s th e area. He e x press e d c onc er n that t hey migh t be attr a c t ed to the larg e r cell towe r in t h e futu re . A pair of b a l d eagle s at t e mp te d t o nest on T a p pan Lake over t h e past couple of ye ar s. They la id e g g s this seas on , bu t we re un su cc essf ul. He di d not feel th at th e to we r wo ul d be a p r ob le m fo r th e ea g l es , es peci a ll y sin c e it did not h a ve g u y w i r e s. He ha d no kn o w l edg e of an y othe r th reat en ed or e nda ng ered speci e s th at ma y occ u r in the area . No Indi an a Ba t hib e rnac ula ar e kn own in th e ar e a . He beli e ve d th a t the ce l l to wer wo ul d no t be de t r imen tal to ba ts. The re is a fair mo ve me nt of mi grat ory birds th rou g h th e ar e a , e s peci a ll y in t he fal l . He no te d th at mo st th e pass e ri ne s a r e noctu r n a l migran ts and would n o t be seen ofte n. Since the to wer is on t he highe st po in t, its’ additi o nal height may incr eas e the vulner abili ty to collisions by higher- fl y i n g migrants. He was unaware of any a v ia n co ll isio ns wi th the p r es en t to we r, bu t said no speci f ic inve stig ati ons ha d be e n co n d u ct ed to his kn ow le dg e . In th e fall an d win t e r , th e reg i o n is su b j ect to lo w ce ili ngs and f og, espec ial l y asso ci at ed with co ld fr o n ts. Tap pa n Lak e al so create s loca l fog when th e surf ace temp era t ure is warmer than t he at mos p h e re. The o v erall h e i g h t of t he cell towe r is 7 0 0 feet above the lake and may put it abov e the fog . 15 10 TELECOMMUN ICATION SUMMARY The re a r e n o wetl an ds or agricul tu ra l fields in t h e vicini t y that might a t t r ac t forag i n g birds. Co un t y ro ad #2 whic h is immed i at el y sou t h of th e pro j ec t is de s ign a t e d as a sceni c by wa y and it run s alon g the rid gel in e. D I STRIBU TION: L. Ni els e n - EDM 16