Fish and Wildlife Service Issues New Siting Guidelines For Wind Projects

On March 23, 2012, the U.S. Fish and Wildlife Service (the “Service”), an entity within the Department of Interior, issued final siting guidelines for land-based wind projects (“Guidelines”).  These new Guidelines are based upon recommendations issued by an advisory committee drawn from the public sector, the private sector, universities, and various environmental groups.  Ultimately, these Guidelines should help wind developers in choosing and evaluating potential sites for new projects.

Site selection for wind projects involves consideration of particular physical and geophysical characteristics, such as space constraints, soil types, climate, and of course adequate wind.  But once the ideal location is identified, wind developers must evaluate a project’s compliance with a multitude of state, federal, and local laws.

Understandably, in confronting permitting and licensing issues, many developers focus initially on local land use and zoning requirements.  Yet various federal statutes also may govern the siting and operation of wind projects.  Several of those statutes are administered by the Service, including the Migratory Bird Treaty Act (MBTA), the Bald and Golden Eagle Protection Act (BGEPA), and the Endangered Species Act (ESA).  These statutes prohibit the “take” of specified eagles, migratory birds, and threatened or endangered species.  A take under these statutes is universally defined to include killing or wounding of a subject species, and in the case of the BGEPA, the disturbance of eagles to a degree that is likely to injure the bird or cause it to abandon its nest.  The MBTA, BGEPA, and ESA are strict liability statutes, meaning that proof of intent or negligence is not required in order to establish a violation.  However, the BGEPA and ESA allow the Service to authorize the incidental taking of endangered species or eagles under certain circumstances.

There is no federal permitting process specific to the construction of private land-based wind projects; however, the Service’s new Guidelines were drafted to give wind developers a roadmap to aid in avoiding violations of the MBTA, BGEPA, and ESA (particularly the MBTA as there are no permitted exceptions for incidental takes under that Act).  Although developed for larger “utility-scale” projects, the Service suggests that developers of distributed or community scale projects “may find it useful to consider the general principles of the tiered approach” and are advised to communicate with the Service when siting such a project.  The Service considers a “project” to encompass all associated infrastructure and interconnecting transmission lines.

The Guidelines give instruction on the investigation and evaluation of a project’s impact on “species of concern,” and suggest steps to mitigate any identified impacts.  Species of concern are those protected by the MBTA, BGEPA, and ESA.  The agency’s tiered approach allows a developer to consider risks at each phase of analysis and to make an informed decision on whether to abandon the project or proceed and manage project risks.  Analysis begins with a broad review of publicly available information to determine whether a covered species of concern is or may be present at the proposed site.  Tier 1 of the Guidelines is intended to be used as an initial screening tool to narrow or eliminate potential sites from consideration.  A Tier 1 analysis will result either in a decision to abandon the project or to proceed to Tier 2, even if public information does not indicate a species of concern is known to be present at the project site.  In other words, there is no recommended mechanism to proceed with project construction at this stage.

A Tier 2 assessment is conducted when a particular project location has been identified.  Tier 2 studies require gathering site-specific information to assess whether a species of concern is in fact present at the project site, and whether there is potential for significant adverse impacts to the species.  This inquiry is not intended to be quantitative.  Many small scale projects may not need to progress further than a Tier 2 review.  If there is a low probability of significant impacts, construction of the project may proceed following the Service’s suggested best management practices (BMPs); however, the developer must first notify the Service that it intends to proceed and must allow the Service to comment on the project before construction begins.  If project impacts are moderate, high, or unknown, a developer can choose to abandon the project or move to a Tier 3 analysis and mitigate the

Tier 3 applies where the quantitative risk assessment is completed, mitigation measures are designed, and post-project construction monitoring plans are developed if necessary.  Tier 4 requires completion of post construction fatality studies to determine whether Tier 3 estimates of fatalities or habitat destruction were accurate.  The duration and level of effort of these studies is determined by the outcome of Tiers 1 through 3.

In view of the significant costs associated with conducting Tier 5 studies, the Service hopes to discourage development of land that might require Tier 5 analysis.  Projects where actual fatalities of a species of concern reach a level considered significantly adverse may require Tier 5 studies.  Similarly, Tier 5 requirements are also triggered when there is potential for significant fatalities or significant adverse impacts on habitat for species of concern, and there is uncertainty over how the impacts will be mitigated.

Even after concluding an analysis under the relevant Tiers and implementing the Service’s suggested BMPs, it is still impossible to guarantee that a taking of a covered species will not occur in the construction or operation of a wind project, and a developer is not absolved from MBTA or BGEPA liability by following the Guidelines.  The Service has indicated, however, that it will focus its enforcement resources on those who harm or kill a protected species without implementing reasonable and effective measures to avoid a take.  Accordingly, the Service will recognize a developer’s or operator’s adherence with the Guidelines as an appropriate means of implementing reasonable and effective measures to prevent a take.

Notably, this limited enforcement assurance applies only to an incidental take under the MBTA or the BGEPA, and developers are provided no assurance as to liability for the incidental take of an endangered species.  The Service’s consideration of the Guidelines in BGEPA enforcement is also inapplicable to a project if a Tier 2 or 3 analysis identifies a potential to take eagles.  In this case, as with the identification of a listed or endangered species at the project site, developers are encouraged to consider applying for an incidental take permit under the applicable statute.

In addition to the Service’s Guidelines, projects proposed on lands managed by the Bureau of Land Management or by the Forest Service, must follow the respective agency siting regulations and policies.  As the Guidelines’ title implies, the new standards do not apply to offshore wind projects.  The Federal Energy Regulatory Commission, the National Marine Fisheries Service, and the U.S. Army Corps of Engineers oversee the offshore permitting system using their respective authorities under the Federal Power Act, the National Environmental Policy Act, the Coastal Zone Management Act, and the ESA.

Finally, as might be expected, the Service encourages developers to consult with the agency early in the development of a wind project.  The Service has explained that early consultation offers the greatest opportunity to avoid areas where development is precluded or where costly mitigation may be required.  As the Service suggests, through early consultation and careful planning, developers may be able to incorporate appropriate protective measures into their decisions relating to design, siting, and operation.

Andrea E. Hayden, Esq.

Marc Machlin, Esq.

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