On March 23, 2012, the U.S. Fish & Wildlife Service ("FWS") released final "Land-Based Wind Energy Guidelines" to guide wind energy project developers in minimizing the impact of land-based wind projects on wildlife and their habitats. Although the Obama administration's clean energy policy strongly favors the development of renewable energy sources, there has long been uncertainty surrounding the dichotomy of wind energy development and wildlife protection laws. The new guidelines represent the first clear guidance to industry on the protection of federally endangered or threatened species in connection with wind energy development activities.

The FWS touts the guidelines, together with the underlying regulatory framework, as "the best practical approach" to protecting species of concern in connection with the development and operation of wind energy projects. The stated purpose of the guidelines is to help developers identify species of concern that could be affected by a proposed project, quantify the risks of a particular project to the identified species, and evaluate those risks to make appropriate siting, construction, and operational decisions.

The guidelines seek to accomplish the FWS objectives through a tiered approach of increasing detail and involvement. This approach involves three preconstruction tiers and two post-construction tiers. Project developers are expected to utilize some or all of these tiers, as appropriate, in connection with each wind energy project:

  • Tier 1—Preliminary site evaluation conducted using publicly available data when the developer is taking a first look at a broad geographic area for potential development. Tier 1 is intended to help the developer identify a site or sites to consider for wind development.
  • Tier 2—Site characterization to be conducted when a developer has a few specific sites in mind for a project. A Tier 2 study should include at least one site visit by a biologist to adequately assess whether the potential site presents any wildlife issues.
  • Tier 3—Quantitative field studies to assess the potential risks of the selected site. The developer reports the results of such studies to the FWS, which provides written comments to identify concerns and offer recommendations.
  • Tier 4—Post-construction studies to estimate a project's impacts on wildlife, including fatality monitoring and habitat impact evaluations.
  • Tier 5—Highly individualized studies specifically suited for situations where (i) actual fatalities at a project site are greater than estimated, (ii) implemented mitigation measures are not effective, and/or (iii) estimated impacts could lead to population declines in affected species of concern. The FWS estimates that Tier 5 studies will not be necessary for most projects.

The new guidelines are "voluntary," and adherence to them will not relieve a party from compliance with applicable environmental laws, including any obligation to obtain an "incidental take" permit under the Endangered Species Act ("ESA"). If a law such as the ESA is violated, however, the FWS has indicated that it "will consider a developer's documented efforts to communicate with the Service and adhere to the Guidelines" in determining whether to take enforcement action. The guidelines generally do not address local compliance issues. States and project developers will thus need to determine how the FWS guidelines work within state regulatory frameworks.

It is expected that most developers will utilize the FWS guidelines as wind energy projects are subject to numerous wildlife protection laws, including the ESA, the Migratory Birds Treaty Act, and the Bald and Golden Eagle Protection Act. These laws carry significant civil and criminal penalties for an unauthorized "taking" of a covered species, and, in certain circumstances, a project developer can be ordered to curtail and/or stop operations or construction activities.

Under some (but not all) wildlife protection laws, permits can be obtained that provide a level of protection against penalties for an authorized taking of a protected species. Even where available, however, such permits are not easily obtained, and it may take several years before a permit is issued. Furthermore, the preoperational and operating restrictions that could be imposed by such permits are difficult to predict. As a consequence, there has been little consistency in the industry on the process for determining when take permits are necessary in connection with wind energy projects. Rather than obtaining permits, many wind energy developers have instead relied on mitigation plans and FWS enforcement discretion to manage the risks associated with an unauthorized taking in this context.

Environmental groups, such as the National Fish & Wildlife Foundation, are generally in favor of the new FWS guidelines. The American Wind Energy Association has also come out in support of the guidelines. While it remains to be seen how and to what extent wind project developers will ultimately embrace them, the guidelines provide at least some structure for dealing with wildlife issues at wind project sites where none previously existed.

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