January 14, 2010

Mr. John Bambacus

Frostburg, MD 21532

Dear John,

Thank you for your email of December 9 and your letter of December 16 concerning the
recent exemption from CPCN review of Synergics' Roth Rock project [Case 9191] and
the impact of this exemption on State-endangered species.

In your December 9 email you ask that DNR revisit its position on the Synergics project
in light of the ruling of Judge Roger Titus in the Beech Ridge case. That decision
concerned the Federal Endangered Species Act (ESA) and protection of the Indiana bat.
The U.S. Fish and Wildlife Service, which administers the Federal ESA, reviewed the
Synergics project in February 2004 for impacts to endangered and avian species and did
not identify any specific concerns. Nor did FWS testify in opposition to the project. In
contrast, in Beech Ridge, expert analysis of acoustic data established the presence
of Indiana bats at the specific site.

In your December 16 letter you ask about DNR's role in protecting endangered species
that could be impacted by wind projects exempted from CPCN review pursuant to Public
Utility Companies Article § 7-207.1. The requirements to receive an exemption are
narrowly defined in the law. See the March 9, 2009 letter to Sen.
Edwards from Assistant Attorney General Dan Friedman (copy attached). Essentially, a
land-based, wind-generating station producing less that 70 MW of electricity for the
wholesale market that does not affect the safety and reliability of the electric system is
exempt. The law does not give the PSC the ability to attach conditions to an exemption in
order to protect endangered species, which is why DNR did not offer any conditions in
Case 9191.

Nevertheless, the law exempting wind projects from CPCN review "may not be construed
to limit the regulatory authority of any State or local agency with respect to matters
relating to a wind-powered generating station" exempted from the CPCN requirement.
Section 3, ch. 163, Acts 2007. Thus, although neither the PSC nor DNR conducts an
environmental review of CPCN-exempt wind projects, the State Nongame
and Endangered Species Act (State ESA) continues to apply to them. The State ESA
prohibits any person from taking any wildlife deemed by DNR to be "in need of
conservation."Natural Resources Article (NR) § 10-2A-03. A person who wishes to
build a CPCN-exempt wind project is responsible for complying with the State ESA.
While DNR cannot prevent a person from moving forward with a wind-generation
project because endangered species may be taken, the penalty for violating the State ESA
includes a fine of not more than $1,000 or imprisonment for not more than one year or
both. NR §10-2A-07(a).

I hope that this letter responds to your email and letter.

Sincerely,

John R. Griffin
Secretary