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Regulatory: The Department of the Interior releases its final land-based wind energy guidelines

A tiered approach assesses danger of wind projects on species and their habitats

On March 23, the United States Fish and Wildlife Service (FWS) issued its Final Voluntary Land-Based Wind Energy Guidelines. The purpose of the guidelines is to provide a structured, scientific process for the evaluation and mitigation of impacts of wind energy projects on wildlife conservation at all stages of land-based wind energy development, as well as to promote more effective communication among wind energy developers and conservation agencies at all levels of government. The guidelines’ definition of “project” is broad, including “all phases of wind energy development, including, but not limited to, prospecting, site assessment, construction, operation and decommissioning, as well as all associated infrastructure and interconnecting electrical lines.”

The final guidelines have long been awaited as a necessary response to increasing wind energy development in the U.S. The FWS originally released interim guidelines in July 2003. In an effort to address the diverse concerns of a myriad of stakeholders, the Department of the Interior established a Federal Advisory Committee to provide recommendations to revise the interim guidelines with respect to land-based wind energy facilities. In March 2007, the Department of the Interior established the Wind Turbine Guidelines Advisory Committee which submitted its final recommended guidelines to the Secretary of the Interior on March 4, 2010.

This final version of the guidelines uses a tiered approach for assessing potential adverse impacts on species of concern and their habitat. During preconstruction tiers (Tiers 1-3, ranging from landscape scale screening of possible project sites through field studies to document site wildlife and habitat and forecast potential impacts), developers are working to identify, avoid or minimize risks to species of concern. During post-construction tiers (Tiers 4 and 5, including post-construction studies to estimate impacts), developers are deciding whether actions taken in earlier tiers to avoid or minimize impacts are achieving their stated goals.

Depending on the availability of necessary data at a particular step, the potential outcomes of the tiered based analysis include:

  • The project proceeds to the next tier in the development process without additional data collection
  • The project proceeds with additional data collection
  • The project requires modification, mitigation or post-construction monitoring
  • The project site is abandoned because the risk is unacceptable even with modifications or mitigation.

Finally, while the guidelines are facially voluntary, providing a carrot of collegial cooperation to potential developers, they also carry a big stick. “The guidelines are not intended nor shall they be construed to limit or preclude the [FWS] from exercising its authority under any law, statute, or regulation, or from conducting enforcement actions against any individual, company or agency.”

Applicable statutory authorities that may be enforced by the FWS include the Migratory Bird Treaty, and implementing regulations; the Bald and Golden Eagle Protection Act and implementing regulations; and the Endangered Species Act and implementing regulations.

Ultimately, although the guidelines leave decisions up to the developer, the FWS retains authority to evaluate whether developer efforts to mitigate impacts are sufficient, determine significance and refer for prosecution any unlawful act that it believes to be reasonably related to lack of incorporation of FWS recommendations or insufficient adherence to the guidelines.

Contributing Author

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Barbara Lichman

Barbara Lichman, Ph.D., is of counsel in the Orange County office of Buchalter Nemer representing public entities, land developers, airlines, airport owners/sponsors, municipalities, ports,...

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