U.S. Fish and Wildlife Service Issues Land-Based Wind Energy Guidelines

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On March 23, 2012, the U.S. Fish and Wildlife Service (USFWS) released its highly anticipated final Land-Based Wind Energy Guidelines. The Guidelines present a tiered approach for the consideration and analysis of potential impacts to wildlife and habitat from onshore wind energy development. The five-tier process and other guidance found in the Guidelines aim to efficiently avoid and minimize impacts to wildlife and habitat by guiding the decisions of developers from the initial stages of site selection through the development of project design and the ultimate construction and operation of a project. While the Guidelines are voluntary, this new publication represents the informal rulebook by which the USFWS will judge the appropriateness of a site or project design and the adequacy of mitigation, including for purposes of enforcement. The new Guidelines replace the interim guidance published by the USFWS in 2003 and are effective immediately. The final version of the Guidelines does not significantly differ from the September 2011 draft version that was issued for public comment.

The Land-Based Wind Energy Guidelines are voluntary recommendations providing guidance to private developers, state and federal agencies, and tribes in the development of utility-scale, community-scale, and distributed wind projects. The USFWS's new tiered process is intended to help identify sites with low risk to wildlife, assess potential adverse effects to species of concern and their habitat, and mitigate and monitor these impacts. This approach provides information to the developer at several key decision points, influencing whether to abandon a potential project site, proceed with development, or collect additional information to further evaluate a project.

Communications between developers and USFWS staff and input from the USFWS are key components of the Guidelines. In particular, the USFWS recommends that a developer consult with USFWS staff as early in the project development process as possible and prior to completing the site-specific studies within Tier 3 that will determine whether a site is developed and how the project will be designed to avoid or mitigate potential impacts. The USFWS aims to provide project recommendations within 60 days of receiving information from a developer. The USFWS underscores that the Guidelines are voluntary and decisions are ultimately in the hands of the developer, but the USFWS retains authority to evaluate whether a developer's efforts to mitigate impacts are sufficient, to determine significance, and to refer for prosecution any unlawful take the USFWS believes is reasonably related to a failure to incorporate USFWS recommendations or insufficient adherence to the Guidelines.

The Guidelines delineate five tiers. Tiers 1, 2, and 3 are pre-construction steps to help identify, avoid, and minimize risks to species of concern. Tiers 4 and 5 provide post-construction guidance to assess whether actions taken in earlier tiers to avoid or minimize impacts are successful and to determine whether additional steps are necessary to compensate for impacts. Each tier includes a set of three to seven key questions and a list of decision points, as well as recommended study designs, methods, or metrics to guide the investigation and ultimate decisions associated with that tier. The USFWS anticipates that it will likely not be necessary to implement all of the tiers, or every element of a given tier, for each project.

Tier 1 – Preliminary Site Evaluation. A preliminary site evaluation involves screening of a broad geographical area to avoid areas of high sensitivity and to determine if species of concern or their habitat are present at specific potential sites. Tier 1 provides a discussion of methods and metrics.

Tier 2 – Site Characterization. Tier 2 calls for a relatively broad characterization of one or more potential project sites to determine the probability of significant adverse impacts. This tier includes at least one reconnaissance-level site visit and investigation of previously conducted studies, databases, or other published information for the area. Tier 2 includes a discussion of methods and metrics.

Tier 3 – Field Studies to Document Site Wildlife and Habitat and Predict Project Impacts. In Tier 3, the developer evaluates the probability of significant adverse impacts through quantitative site-specific field studies. Based on this information, the developer will decide to develop or abandon a specific site and, if development goes forward, potentially make decisions to design or operate the project to avoid or minimize significant adverse impacts. Tier 3 includes recommended study design considerations and technical resources.

Tier 4 – Post-Construction Studies to Estimate Impacts. Post-construction studies will be implemented according to the outcome of the investigations and studies in Tiers 1, 2, and 3; some level of post-construction study is anticipated for the majority of projects. Tier 4 studies are designed to assess whether predictions of fatality risk and direct and indirect impacts to habitat were correct. Studies to evaluate habitat impacts such as species of habitat fragmentation concern will be necessary only when Tier 3 studies indicate the potential for significant adverse impacts for such species. Tier 4 provides protocol design considerations and study objectives.

Tier 5 – Other Post-Construction Studies. Tier 5 involves additional site-specific studies that may be called for based on Tier 4 studies. The Guidelines note that Tier 5 studies will not be necessary for most projects, and underscore that the tiered decision-making process is designed to steer projects away from sites where Tier 5 studies would be necessary. Tier 5 studies are intended to analyze factors associated with potentially significant impacts indicated in Tier 4 analyses, identify why mitigation measures implemented for a project were not adequate, and assess demographic effects on local populations of species of concern when demographic information is important. Tier 5 also provides study design considerations.

In addition to the tiers, the Guidelines provide a discussion of mitigation and best management practices for both construction and operation, as well as repowering and decommissioning of projects. Recommended mitigation strategies include the USFWS Mitigation Policy published in 1981, guidance issued by the Council on Environmental Quality in February 2011 related to compliance with the National Environmental Policy Act (NEPA), compensatory mitigation, the USFWS draft Eagle Conservation Plan Guidance, and, where applicable, mitigation associated with an Incidental Take Permit Habitat Conservation Plan. The USFWS emphasizes that compensation is appropriate for habitat loss under limited circumstances or for direct take of wildlife. The USFWS Mitigation Policy places the highest priority on on-site mitigation, with off-site mitigation generally a secondary priority.

In the Guidelines, the USFWS also recommends the development of project-specific Bird and Bat Conservation Strategies (BBCS), instead of an Avian and Bat Protection Plan, to document actions taken to avoid, minimize, and compensate for potential adverse impacts. The Guidelines provide that typically a project-specific BBCS will explain the analyses, studies, and reasoning that support progressing from one tier to the next. The Guidelines emphasize that any review or discussion of the BBCS with USFWS is advisory only, and will not result in approval or disapproval that constitutes an agency action under NEPA.

If you have any questions about the issues raised in this alert, please contact a key contributor.

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Key Contributors

Barbara D. Craig
Allison C. Smith
Ryan P. Steen
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