PETITION FOR AN ENVIRONMENTAL ASSESSMENT, PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT, AND IMPOSITION OF MITIGATION MEASURES FOR PROPOSED COMMUNICATION TOWER IN PORT CLINTON, PA NEAR HAWK MOUNTAIN SANCTUARY–FCC REFERENCE NUMBER 99-1909

From: Hawk Mountain Sanctuary Association and American Bird Conservancy

To: Ms. Cathy Seidel, Chief
Enforcement and Consumer Information Division
Federal Communications Commission, Washington, DC 20554

Subject: Communication tower to be constructed in Port Clinton, Pennsylvania by Princeton Tower_ Pennsylvania, Inc. (PTI), P.O. Box 472, 6 Church Road, Waverly, Pennsylvania 18471. Land Owner: Charles and Althea Rappert, Broad Street, Port Clinton, PA 19549.

Date: September 2, 1999

Hawk Mountain Sanctuary Association (HMSA) and American Bird Conservancy (ABC) hereby petition the Federal Communications Commission under 47 C.F.R. Sec.1.1307 to require an Environmental Assessment (EA) of the applicant, PTI, for the proposed construction of a cellular communication tower at Port Clinton, PA, as well as for the imposition of mitigation/avoidance measures. This request is made as the tower's construction and operation constitute a facility that will have a significant environmental effect and thus requires the preparation of an EA by the applicant (see Secs. 1.1308 and 1.1311) and may require further Commission environmental processing. Such an EA is required under:

(1) 47 C.F.R. Sec. 1.1307(a)(3) as a facility that: (i) May affect listed threatened or endangered species or designated critical habitats;

(2) 47 C.F.R. Sec. 1.1307(a)(4) as a facility that may affect districts, sites, buildings, structures or objects, significant in American history, architecture, archeology, engineering or culture, that are listed, or are eligible for listing, in the National Register of Historic Places. (See 16 U.S.C. 470w(5); 36 CFR 60 and 800); and

(3) 47 C.F.R. Sec.1.1307(c) as we as interested persons allege that the proposed tower will have a significant environmental effect, specifically on migratory birds, and we hereby submit to the FCC a written petition setting forth in detail the reasons justifying or circumstances necessitating environmental consideration in the decision_making process. (See Sec. 1.1313).

We further petition the FCC that under existing law:

(1) prior to FCC approval of the proposed communication tower, the FCC must conduct an Environmental Impact Assessment under the National Environmental Policy Act as this tower is located in a major migratory bird corridor of global and national significance and it may have a significant environmental impact on migratory birds and may affect endangered and threatened species;

(2) prior to FCC approval of the proposed communication tower, the FCC must require a detailed EA on the tower's potential for killing migratory birds and the FCC must conduct an EIS in order to comply with the Migratory Bird Treaty Act, (MBTA), 16 U.S.C. Section 703. Any such killing constitutes a taking under the MBTA, even if inadvertent and unintentional. Thus, the FCC would violate the MBTA and the Administrative Procedure Act in authorizing the construction of such a tower without an EA and EIS and the development of mitigation and avoidance measures to prevent the killing of migratory birds. See U.S. v. Moon Lake Electric Association, decided on January 20, 1999 in the U.S. District Court for Colorado and the cases cited therein. In Moon Lake, the defendant electric co-operative was charged under the MBTA for "taking" birds through electrocution on its power lines and poles. Despite the defendants motion to dismiss based on arguments that the MBTA was a hunting statute and applied to willful takings only, the Court disagreed and ordered the case to proceed to trial. Moon Lake subsequently pled guilty and was fined $100,000. Also see HSUS v. Glickman, decided on July 6, 1999 in the U.S. District Court for the District of Columbia. In this latter case, the Court ruled that the MBTA applies to Federal agencies and their actions. Hence, it would be unlawful for the FCC to permit the construction of a communication tower if that tower would result in the taking of migratory birds;

(3) prior to FCC approval of the proposed communication tower, the FCC must conduct a programmatic Environmental Impact Assessment under the National Environmental Policy Act as this tower, together with over 56,024 communication towers (including at least 41,958 that are lighted) together with the many more being built, have a nationally significant cumulative impact on migratory birds and may be affecting threatened and endangered species. (See the FCC Antenna Registration File for the number of extant towers). In preparing this programmatic EIS, the FCC should: (a) identify impacts to migratory birds and threatened and endangered species of existing towers, and the anticipated impacts of future towers; (b) develop alternative siting, lighting, acoustical, painting, and construction designs, as well as other avoidance measures to minimize losses; and (c) identify research needs to develop methods of determining the impact of various alternatives where information is lacking;

(4) prior to FCC approval of the proposed communication tower, the FCC must consult with the U.S. Fish and Wildlife Service under Section 7 of the Endangered Species Act of 1973, 16 U.S.C. Section 1531. This Section of the ESA requires agencies to consult with the U.S. FWS when proposals may jeopardize threatened or endangered species. Pursuant to the Act and the Commission's own environmental regulations, formal consultation should be initiated with the U.S. FWS to assess the effects of the PTI tower on the Bald Eagle, as well as other federally listed threatened or endangered species that may migrate through the area; and

(5) the FCC should add migratory birds to the list of impacts for which Environmental Assessments are required under 47 CFR 1.1307. This would mandate Environmental Assessments as a licensing requirement for construction of individual towers which may affect migratory birds.

In support of the petition and the requests above, documentation is cited below, most of which is enclosed in Appendices A and B. The materials in Appendix A amply document that the proposed location of the PTI tower at Port Clinton, Pennsylvania is on a ridge that is a major migratory bird migration route of global importance.The materials in Appendix B amply document that the proposed tower will kill migratory birds and that such kills may be substantial. We submit the following in support of our belief that an EA is required of the applicant, that the FCC should complete an EIS for this tower, that the FCC should complete a programmatic EIS for this tower and for its entire programmatic issuance of tower licenses, and in support of our other requests above including the need for the FCC to complete or require industry to complete the detailed research necessary to develop avoidance and mitigation measures on communication towers to end or greatly reduce the killing of migratory birds at these towers:

I. HAWK MOUNTAIN AND THE KITTATINNY RIDGE (WHERE THE PROPOSED TOWER WOULD BE LOCATED) ARE EXTREMELY IMPORTANT MIGRATORY BIRD ROUTES.

The proposed tower to be constructed and operated by PTI is to be a multi-tenant Personal Communications Systems and Cellular communications tower standing 265 feet above ground with three anchor cables (guy wires) on two acres of land. There will be related telecommunications buildings as well. The tower will be constructed on the slope of the Kittatinny Ridge (Blue Mountain) at 621 feet elevation. Latitude 40 degrees, 34 minutes North, Longitude 76 degrees, 01 minutes west. The tower is proposed to be sited in a gap where the Schuylkill River intersects with the Kittatinny Ridge or Blue Mountain and would be four miles from Hawk Mountain (See enclosed maps in Appendix A for exact location of the tower).

The Kittatinny Ridge/Blue Mountain is a major migratory pathway for birds during the fall and spring migration, particularly fall (see A Guide to Critical Bird Habitat in Pennsylvania by Gary J. Crossley, Chapter 2, The Kittatinny Corridor: An Important Migration Flyway [Chapter authored by Laurie Goodrich, Senior naturalist at Hawk Mountain Sanctuary], President's Council on Environmental Quality 15th Annual Report excerpt on Hawk Mountain, and other attachments in Appendix A). "The Kittatinny Corridor is one of the most important flyways for birds in the eastern United States." (Verbatim from A Guide to Critical Bird Habitat in Pennsylvania by Gary J. Crossley, Chapter 2, The Kittatinny Corridor: An Important Migration Flyway at page 37). The number of birds sighted here is second only to the Atlantic coast in total volume of migrants. Over 20,000 hawks and over 100,000 other birds, have been documented using the ridge as a migration corridor each fall season (see A Guide to Critical Bird Habitat in Pennsylvania by Gary J. Crossley, Chapter 2, The Kittatinny Corridor: An Important Migration Flyway, President's Council on Environmental Quality 15th Annual Report excerpt on Hawk Mountain and other attachments in Appendix A). The Bald Eagle, a Federally threatened species flies along this ridge and feeds and rests along the Schuylkill River during its migration twice a year. (see map, letter from National Audubon, and the book The Mountain and the Migration by James J. Brett with a detailed list of birds seen at Hawk Mountain in Appendix A). This Federally listed species may be affected by the tower and cable guy wires, thus 47 C.F.R. Sec.1.1307(a)(3) would require an EA.

Hawk Mountain Sanctuary is located four miles northeast of the proposed tower site on the same ridge. Hawk Mountain Sanctuary has been designated a National Natural Landmark by the United States Department of the Interior in recognition of the site's importance to migrant hawks and for its work to conserve hawks nationally. In the original letter (see attached letter in Appendix A), the agency noted that Hawk Mountain is a "monument to conservation at work." Hawk Mountain was also cited in 1984 by the President's Council for Environmental Quality (CEQ) for its work over 60 years as a non_profit conservation organization and as a world_renown site for watching hawk migration. Thus, under the provisions of 47 C.F.R. Sec. 1.1307(a)(4) an EA is required as Hawk Mountain is a designated site significant in American history and culture. (Please see the enclosed documents noting the designation of Hawk Mountain as a National Natural Landmark, the President's Council on Environmental Quality 15th Annual Report excerpt on Hawk Mountain's importance, and the book The Mountain and the Migration by James J. Brett detailing Hawk Mountain's historical, cultural, and environmental importance, all in Appendix A). The President's Council on Environmental Quality 15th Annual Report at page 388 notes that "It is particularly noted for its fall migration of birds of prey and many other species.....Hawk Mountain is a promontory atop the Kittatinny Ridge....The combination of prevailing winds and mountain topography make it one of the superb bird watching spots in the world....the all-time one day tally was 21,488 raptors....". Hawk Mountain is called "....one of the world's leading hawk watching sites...." and over one million raptors have been counted and recorded at Hawk Mountain on the Kittatinny Ridge. (See "Hawk Mountain's Million-Bird Database" in Birding, magazine, pp. 24 -32, February 1995, in Appendix A).

The migrant birds flying south for the winter from the eastern United States and Canada use the ridge to save energy by using the wind currents created along its slopes. They also follow the ridge to take advantage of the extensive natural habitats for resting and feeding along their journey. Most hawks fly during the day using thermals and updrafts and often hug the ridge closely, flying just above the treetops. Many of these birds fly pass Hawk Mountain Sanctuary and the Kittatinny Ridge over or near the proposed port Clinton tower site. Songbird flocks, both diurnal and nocturnal, also fly along the mountain slopes and ridge top day and night. Thus, birds sighted at Hawk Mountain, pass by the proposed Port Clinton tower site using the same Kittatinny Ridge on their journey along the mountain, both in spring and fall. Although 20,000 raptors and 100,000 other birds are counted each fall by Hawk Mountain observers, many more birds use this corridor and are not counted (e.g., nocturnal migrants or birds undetected by observers). The volume of birds sighted at Hawk Mountain, including both raptors and songbirds, led to Hawk Mountain Sanctuary being designated a Globally Important Bird Area by the American Bird Conservancy (see the attached letter from Dr. Robert Chipley, Director of ABC's IBA Program in Appendix A). As this letter notes, Hawk Mountain was chosen one of the 50 sites in the U.S. to represent IBA's in the new book being published through the Council on Environmental Cooperation under NAFTA. Dr. Chipley states "it is hard to overstate the importance of Hawk Mountain and the Kittatinny Ridge." In addition, Hawk Mountain, along with the entire Kittatinny Ridge, including the site of the proposed tower, was designated a Pennsylvania Important Bird Area in 1998 by the National Audubon Society (see attached letter from the National Audubon Society and the Pennsylvania Audubon Society in Appendix A). Both of these designations highlight the importance of this ridge as a passageway for migratory birds in the eastern United States. In the letter from the director of National Audubon's State IBA Program, Fred Baumgarten notes that the Hawk Mountain/Kittatinny Ridge site meets four of the five criteria used to identify such IBA's. These criteria met at this location include exceptional concentrations of birds and diversity of species, significant populations of one or more endangered or threatened species, significant populations of one or more species on the Pennsylvania species of concern list, and that significant research and monitoring has been conducted.

Comparisons of the numbers of birds counted on the Kittatinny Ridge surpass counts from the other Appalachian ridges to the north and west (Goodrich 1999). Over 268 species of birds have been recorded just at Hawk Mountain, as the area provides nesting and wintering habitat for many species (see attachments in Appendix A, including the Bird Check List, documenting these species).Hawk Mountain and the Kittatinny Ridge have been recognized for their national and global importance by the President's CEQ, U.S. Department of Interior, Commission on Environmental Cooperation, ABC's IBA program as a globally important site, National Audubon's State IBA program, and by researchers, ornithologists and birdwatchers all over the world. Hawk Mountain and the Kittatinny Ridge are of such importance to migratory and resident birds that over 50 research projects have been completed there. This significant avian research has been conducted at Hawk Mountain and on the Kittatinny Ridge for over 60 years. (See the enclosed Research Publications of Hawk Mountain Sanctuary, 1935-1994). The importance of Hawk Mountain and the Kittatinny Ridge (including the Port Clinton proposed tower site) to avian species and their migration is amply documented in the enclosed materials and is well known throughout the U.S.

II. COMMUNICATION TOWERS CAUSE THE DEATH OF MILLIONS OF MIGRATORY BIRDS AND THE 265 FOOT PTI TOWER, ONCE CONSTRUCTED AND LIT, WILL KILL MIGRATORY BIRDS.

Numerous publications and reports document the mortality of migratory birds caused by communication towers. Some of these documents establishing this mortality are enclosed in Appendix B. These documents include: The U.S. Fish and Wildlife Service's Bird Kills at Towers and Other Man-made Structures: An Annotated Partial Bibliography (1960-1998) by John L. Trapp; Appendix 1. of Collision Course (Sept1996); USA Towerkill Summary from the web site; Literature Survey on Tower Impacts on Birds (1996) by Paul Kerlinger; papers and abstracts from the Avian Mortality at Communication Towers Workshop at Cornell University on August 11, 1999 including Avian Mortality at Communication Towers: Background and Overview by Dr. Al Manville, U.S. FWS; and Recent Bird Mortality at a Topeka Televison Tower, Kansas Ornithological Society Bulletin (1995). Indeed, the potential construction of communication towers and other tall structures on the ridge line have been cited as primary conservation threats to birds along the Hawk Mountain/Kittatinny Ridge IBA. (See the joint letter from National Audubon's IBA coordinator and from the Executive Director of Pennsylvania Audubon; submittal from Hawk Mountain for IBA designation attached to letter from Dr. Robert Chipley, all in Appendix A). In the enclosed A Guide to Critical Bird Habitat in Pennsylvania by Gary J. Crossley, Chapter 2, The Kittatinny Corridor: An Important Migration Flyway (Appendix A), author Laurie Goodrich notes at pages 36 and 37:

"As migrant raptors and other birds course down the Kittatinny's slopes, they're often flying just above treetop level, using the favorable air currents created along the ridge line. This highway for birds can be dangerously interrupted by towers, poles, or buildings that protrude above the tree line. Such structures present dangerous hazards to migrant birds, particularly for nocturnal migrants or birds flying in inclement weather.....Lighted structures can pose a heightened threat, as birds may become confused, particularly on cloudy evenings. The cloud cover is hypothesized to capture the light and create a lighted area around the structure. Nocturnal migrants, then, are attracted to the light and tend to continue to fly toward it, thus flying in a circle until hitting wires or becoming exhausted. Of the nocturnal migrants, warblers and vireos appear particularly susceptible to tower or structure collisions, with more than 80 percent of tower or building kills being wood warblers. The literature is sprinkled with reports of notable numbers of birds killed in single nights or over a several-day period. For example, at a Tennessee television tower, 104 Gray-cheeked Thrushes were killed May 2, 1964, and 880 Palm Warblers on October 9, 1955. A building in Florida was recorded to kill 847 individuals of 21 species over a two-day period in the spring. In most cases of large kills, the numbers are largest during migration in spring or fall, and the towers or buildings with large kills are placed along migration corridors (e.g., Florida coastline).

Raptors are also regularly recorded to have collisions with power lines, towers, etc. Bald Eagle mortality summaries documented that 215 of the reported eagle kills from 1966 to 1974 were from accidents. Golden Eagles in the western United States are regularly killed in collisions with power poles and windmill facilities. As diurnal migrants, raptors may be able to avoid some of the hazards that nocturnal songbirds face. However, the wires associated with large towers are often difficult to see and can cause physical injury or even electrocution to large birds. In addition, on days with strong winds, raptors on the Kittatinny flyway may fly below treetop level, particularly species accustomed to flying amid trees such as the Sharp-shinned Hawk and Cooper's Hawk. Electrocution from power lines affects other large flying birds such as herons and cranes as well.

Management of the Kittatinny Corridor should include limiting the number of towers or other structures placed at or near the top of the mountain range. If structures are necessary, they should not exceed the height of the surrounding ridgetop vegetation. In addition, use of lighting should be limited and designed to minimize dispersion into the sky. The latest research results on minimizing songbird kills at structures should be consulted, as some lighting can have less of an effect than others. Buildings on the ridgetop should be discouraged, bu if necessary, should be designed to minimize kills on the building and window glass.

In summary, to protect the critical flyway for raptors and songbirds along the Kittatinny, conservation agencies and managers must strive to restrict the placement of structures along the ridgetop....".

Clearly, the scientists most familiar with the Kittatinny Ridge, Hawk Mountain, and the migration of birds in this area have demonstrated in the quotation above and in the other attached documents that a lighted communication tower protruding above the tree tops on the Ridge is a great threat to migratory birds. In both the publications and letters from these experts on birds and their migration, communication towers and other tall structures are cited as perhaps the greatest threat to migratory birds on the Kittatinny Ridge and at Hawk Mountain. (See again A Guide to Critical Bird Habitat in Pennsylvania by Gary J. Crossley, Chapter 2, The Kittatinny Corridor: An Important Migration Flyway, pages 36 and 37; the joint letter from National Audubon's IBA coordinator and from the Executive Director of Pennsylvania Audubon; and the submittal from Hawk Mountain for IBA designation attached to the letter from Dr. Robert Chipley, all in Appendix A). The PTI tower is located on the same Kittatinny Ridge as Hawk Mountain, right in the migratory path of the same birds passing over and around Hawk Mountain each spring and fall, and is proposed to be located only four miles from Hawk Mountain. (See the enclosed maps in Appendix A).

We will not cite and document herein the many case studies, documentation and recordings of communication towers causing avian mortality–the bibliographies, abstracts, and case studies that are enclosed in Appendix B cite these examples. These studies, abstracts, and summaries should establish that a lit, 265 foot high tower on this major bird migration route along the Kittatinny Ridge near Hawk Mountain will result in avian mortality. The evidence is strong that there would be high avian mortality if the tower is constructed as planned. On the overall issue of tower mortality, please see the statement of Dr. Al Manville of the U.S. Fish and Wildlife Service in the Background and Overview Section of the Avian Mortality at Communication Towers attachment in Appendix B. In that statement he notes a 1979 FWS special scientific report in which an estimate of bird mortality from towers of 1.4 million is made. He further notes that the current estimate by Bill Evans of Cornell of 4 million birds killed annually from communication towers could be low by an order of magnitude–that is the death toll could be 40 million birds annually. (Also see USA Towerkill Summary in Appendix B and visit the web site.) The U.S. Fish and Wildlife Service is quite concerned over tower kills and their impact on migratory birds. Please note the enclosed documents in Appendix B as to avian mortality caused by communication towers and specifically we cite:

1. A 38_year study of a single television tower in west central Wisconsin documented 121,560 birds killed representing 123 species, primarily long_distance neotropical migrants;

2. On the night of January 22, 1998, an estimated 5,000 to10,000 birds, mostly Lapland Longspurs,were killed at a 420 foot tall communications tower and nearby structures in western Kansas. Apparently a heavy snowstorm sent the birds up looking for bare ground. Dense fog caused the tower's aviation safety lights (required by the FAA on structures over 199') to reflect off water in the air and form an illuminated space, causing the birds to switch to their diurnal (visual) mode of navigation. The flock circled the lighted tower with its red blinking lights and collided with its guy wires, the tower, each other, and some birds were impaled by wheat stubble, suggesting they were so disoriented that they couldn't tell which way was up and flew into the ground at full force;

3. At the Tall Timbers Research Station in Florida, a study of a TV tower near Tallahassee showed that from 1955 to 1980, 42,384 bird carcasses were collected representing 189 species, the victims of collisions;

4. Local birders collected bird carcasses at a 290 meter TV tower near Topeka, Kansas for two days after each of four storm events occurring during fall migration in 1985, 1986, and 1994. They collected 2,808 dead birds of 91 species from this one tower during these eight days; (See the enclosed article from Recent Bird Mortality at a Topeka Televison Tower, Kansas Ornithological Society Bulletin (1995));

5. In the case of Leelanau County, Michigan, 9 FCC Rcd 6901 (1994), the FCC noted the protestant's citation of the 1979 study by Richard C. Banks, an abstract of which was provided by Leelanau County in that case. That study estimated that 2,500 migratory birds were killed annually at the towers studied.

Most of the birds reported killed at towers are neotropical migratory songbirds, many of which are in serious population declines. Commonly, warblers, vireos, thrushes, kinglets, orioles, and tanagers are found dead at the base of communication towers during spring and fall migration. (See the enclosed article from Recent Bird Mortality at a Topeka Televison Tower, Kansas Ornithological Society Bulletin (1995) and other enclosures in Appendix B). These birds tend to migrate at night in large flocks and are susceptible to tower collisions particularly in bad weather/poor visibility. Large numbers may be killed in a single night, particularly at lighted towers in their migratory path. The U.S. FWS has compiled a list, under Congressional mandate, of Nongame Species of Birds of Management Concern. These species need special action to prevent them from becoming candidates for listing under the ESA. Birds included on this Species of Concern List that migrate over Hawk Mountain and the Kittatinny Ridge and that routinely are identified as mortalities at towers include: Tennessee Warblers; Cerulean Warblers; Black-throated Blue Warblers; Chestnut-sided Warblers; Red-headed Woodpeckers; Alder Flycatchers; Yellow-billed Cuckoos; Grasshopper Sparrows; and Yellow-bellied Flycatchers. The attached article in Appendix B, Recent Bird Mortality at a Topeka Televison Tower, Kansas Ornithological Society Bulletin (1995), documents the killing of all of these Species of Concern noted above at one TV tower in Kansas that was examined on only eight days. For example, the article notes that 47 Grasshopper Sparrows were found dead during the eight days. All of these birds migrate over Hawk Mountain. (See The Mountain and the Migration by James J. Brett with a detailed list of birds seen at Hawk Mountain and the Hawk Mountain Bird List, both enclosed in Appendix A). Also, the Bald Eagle and Short-eared Owl are listed as State Endangered by the State of Pennsylvania and migrate over Hawk Mountain.

Of great importance to the FCC's consideration of avian mortality at communication towers is that all the literature and reports of dead birds at towers rely on the physical collection/and or counting of carcasses. From research conducted on the placement of 78 bird carcasses in corn fields, 77% of all such carcasses were removed by scavengers within 24 hours of their placement. By day 5, only 8% of the bird carcasses remained. See Songbird Carcasses Disappear Rapidly from Agricultural Fields by R. Balcomb in the Auk, 103:817-820. This disappearance is from such scavengers as skunks, racoons, foxes, cats, crows, ravens, and vultures taking the carcasses. Therefore, reported mortality is substantially understated in the literature and reports. Further, the vast majority of the over 56,000 communication towers in the U.S. have not been monitored for avian mortality and only a few towers have any long term monitoring. This is why it is essential for the FCC to require that tower operators conduct monitoring on a regular basis to record avian mortality on an annual basis. This monitoring should be required for all extant towers as well as new towers. Local bird clubs may be willing to volunteer to do this monitoring.

The researchers at Tall Timbers state in their enclosed (Appendix B) abstract for the August 11, 1999 Workshop on Avian Mortality at Communication Towers: "From this experience, and from other studies and the literature, we feel that R. D. Weir's 1976 quote still sums up the state of knowledge about these events: ‘Nocturnal bird kills are virtually certain wherever an obstacle extends into the air space where birds are flying in migration. The time of year, siting, height, lighting, and cross sectional area of the obstacle and weather conditions will determine the magnitude of the kill.' " We completely agree—in the tower case before you, the question is not whether birds will be killed but how substantial the mortality will be. We again would suggest that the literature and expertise available indicate that locating a 265 foot lighted tower structure with three guy wires and adjacent buildings on a major migratory bird route on a critical migratory ridge will cause substantial avian mortality, especially in bad weather at night during migration. This clearly constitutes a significant environmental effect that should require an EA, FCC EIS, and the establishment and imposition of mitigation/avoidance measures, as well as the other measures we have requested in this petition.

The research suggests that lighted towers are particularly damaging to night-migrating birds. Red lights and towers with guy wires seem to cause more kills than white lights and towers without wires, although any lights can cause problems. (See the enclosed abstract from Sidney Gauthreaux, Jr. on "Lighting Systems and Migratory Bird Behavior at Towers" in the Avian Mortality Workshop attachment in Appendix B and the other literature and abstracts enclosed in Appendix B). Also note that the nearly 10,000 birds killed on January 22, 1998 at a 420 foot tall guyed communication tower in western Kansas occurred at night, with the red blinking lights on the tower working. The wires are dangerous because the birds have difficulty in detecting them under current construction regimes. The birds tend to strike the wires and fall injured or dead to the ground. When lights attract the birds to the site, the wires become all the more deadly. The Kittatinny Ridge is a major corridor for songbirds, many of which migrate at night. Under cloudy or foggy conditions the proposed Port Clinton tower could cause significant avian mortality if the tower is constructed as planned, becoming a death spire for migratory birds.

Diurnal migrants, too, can be killed by towers and other structures, and there is no reason to believe raptors would behave differently from other birds when encountering large unmarked structures in their path. Research at wind power facilities suggests that wind towers can be hazardous to raptors flying during the daytime. Although they are not attracted to the towers, the wires or other tower features are not easily seen by the birds until it is too late for them to change their path through the air (Kerlinger 1996). Raptors on migration flying along the Kittatinny Ridge have been clocked at a rate of passage of over 25 to 40 miles per hour (Broun 1948). This may make it particularly difficult for them to navigate around guyed towers placed on a ridge. We suggest that the risk of killing Bald Eagles exists as100 to 150 eagles migrate along the ridge each autumn. This risk alone justifies placing the tower in another location and modifying it so it will not affect migratory birds. Eagles are long_lived and have low productivity, thus killing one adult has a greater impact on a population than killing some other bird species. Hawk Mountain Sanctuary, which is world-renowned for its hawk migration, is one of the most celebrated bird_watching sites in North America. 80,000 people visit the sanctuary each year, with over 40,000 visiting to view the hawk migration. The vista (see HMS Brochure in Appendix A) is spectacular and visitors often look down on the passing birds. School groups visit daily and bird watchers travel from around the country to see hawks and other birds fly past Hawk Mountain. The proposed tower would be located only four miles from the Sanctuary's main lookout.

III. REMEDIES.

As we have requested above, we urge the FCC to require an EA from the applicant to determine impacts on migratory birds and mitigation and avoidance measures. We further request an EIS be completed by the FCC on this tower, and a programmatic EIS be conducted by the FCC on the cumulative impact of the many towers the FCC is permitting to be constructed together with the 56,000 existing communication towers. The FCC should also consult with the U.S. Fish and Wildlife Service under Section 7 of the Endangered Species Act in this case because of the potential impact on Federally listed species such as the Bald Eagle.

At a minimum, the FCC should support or require research by the industry to: (a) identify impacts to migratory birds and threatened and endangered species of existing towers, and the anticipated impacts of future towers; (b) develop alternative siting, lighting, acoustical, painting, and construction designs, as well as other avoidance measures to minimize losses; and (c) identify research needs to develop methods of determining the impact of various alternatives where information is lacking. This research is absolutely critical as it is likely to establish cost-effective methodologies for avoiding avian mortality at towers.

If the FCC decides to require an EA and eventually allow the construction of the PTI tower, we urge the following:

(1) The applicant be required to demonstrate that the PCS and Cellular systems cannot be co-located on an existing structure or structures rather than constructing the 265 foot tower;

(2) The tower be located elsewhere, further from Hawk Mountain and off of the Kittatinny Ridge and away from this critical migratory bird route;

(3) The tower be built below the tree line if it is constructed in the vicinity of the Kittatinny Ridge;

(4) The tower be built at less than 200 feet to negate the need for any lighting as the FAA requires all towers to be lit that are over199 feet in height;

(5) The tower be constructed without using guy wires. If guy wires are absolutely necessary, we request they be marked prominently over their entire face to make them visible to birds;

(6) That no other towers be permitted in this important migration route along Kittatinny Ridge unless they are below the tree line and unlighted;

(7) We urge that as in the case of Leelanau County, Michigan, 9 FCC Rcd 6901 (1994), "The licensee shall conduct monitoring at the [Jurica] site on a regular basis to evaluate the impact of the tower structure and supporting guy wires on the migratory bird population. The licensee shall record any losses or other casualties of migratory birds on an annual basis to the Private Radio Bureau." We suggest that Hawk Mountain ornithologists be contracted to do this monitoring and that a scientific matrix for the collection of migratory birds be required including the recordation of species and numbers;

(8) As in the case of Leelanau County, Michigan, 9 FCC Rcd 6901 (1994), the licensee should be required to use bird-safe lighting. Preliminary research now indicates this lighting system would be a white strobe beacon lightning; and

(9) As in the case of Leelanau County, Michigan, 9 FCC Rcd 6901 (1994), the applicant should be required to install other appropriate markings such as balls and/or streamers at the tower for the protection of migratory bird population, such measures to be determined by avian tower specialists.

Hawk Mountain Sanctuary is a nonprofit conservation organization with 10,000 members from throughout the U.S. It is dedicated to the conservation and study of raptors and other migratory birds and the protection of the Appalachian forest. (See the book The Mountain and the Migration by James J. Brett and the HMS Brochure in Appendix A ). American Bird Conservancy is a national nonprofit organization dedicated to the conservation of wild birds in the Americas. We have 78 member organizations working collaboratively through our Policy Council, including the National Audubon Society, World Wildlife Fund, Environmental Defense Fund, Defenders of Wildlife, The Wilderness Society, Wildlife Management Institute, American Ornithologists Union, National Wildlife Federation, Peregrine Fund, Hawkwatch International, Raptor Research Foundation, and Hawk Mountain Sanctuary. We have been working on the issue of tower kills of migratory birds with the U.S. Fish and Wildlife Service as well as with Bill Evans of the Cornell Lab of Ornithology together with our colleagues in the NGO community. ABC co-sponsored the recent Avian Mortality at Communication Towers Workshop at Cornell. Interest in resolving this issue is growing in the conservation community. We believe action is needed now to resolve the problem before the new wave of tower construction is completed.

Both national and local media have become increasingly interested in this issue. Please see the articles and transcripts in Appendix B from National Public Radio, The Boston Globe, The Arizona Republic, Denver Post, and Philadelphia Inquirer. There have been many other such media stories recently indicating the growing awareness of towers as threats to migratory birds.

We urge the FCC's focus and action on this issue, not only in this PTI case before you, but in all future such applications and in re-licensing procedures for companies that utilize the existing 56,000 towers to assure the protection of migratory birds.

Sincerely,

George H. Fenwick, Ph.D.
President, American Bird Conservancy Cynthia Lenhart
Executive Director, Hawk Mountain Sanctuary