Foley & Lardner LLP: U.S. Fish and Wildlife Service Issues Voluntary Land-Based Wind Energy Guidelines

Foley & Lardner LLP

By Tanya C. O'Neill and Sarah A. Slack, Attorneys, Foley & Lardner LLP

The U.S. Fish and Wildlife Service (FWS) issued final Land-Based Wind Energy Guidelines on March 23, 2012 (Guidelines). The Guidelines, which became effective immediately, replaced interim guidelines issued by FWS in 2003, and were developed in coordination with a variety of stakeholders, including federal and state agencies, tribal nations, members of the wind energy industry, and environmental and conservation groups. The goal of the Guidelines is to provide a structured set of best management practices that will allow wind energy developers to work efficiently with FWS to ensure that wind energy projects are protective of species of concern, such as migratory birds, bats, and bald and golden eagles. These Guidelines also are intended to facilitate new wind energy developments consistent with the Obama administration's clean energy initiative.

Avoidance of Impacts to Species

The FWS has identified a number of adverse impacts to species that may result from wind energy projects, including collisions with wind turbines and related infrastructure, fragmentation of habitat, displacement of species, and other indirect effects. By implementing these Guidelines, FWS hopes to assist developers with avoiding these types of adverse impacts to species. FWS hopes to prevent over-investment by developers in project sites that will not be acceptable either because of the impacts to species or due to the costs to avoid, minimize, and mitigate impacts to species.

Tiered Approach

The Guidelines are structured in a tiered approach, as an iterative process for gathering and evaluating risks to species and habitats as part of the siting, construction, and operation of wind energy projects. The Guidelines include five tiers: Tiers 1 through 3 are preconstruction tiers in which developers will work with FWS to identify, avoid, minimize, and mitigate risks to species, Tiers 4 and 5 are post-construction tiers where developers will assess the success of their avoidance, minimization, and mitigation efforts. Not all tiers or elements will apply to a project, which allows for efficient use of developer and agency resources. Briefly, the five tiers are:

Tier 1 -Preliminary site evaluation, including a landscape-level assessment of potential project sites
Tier 2 - A more detailed site characterization of one or more potential project sites
Tier 3 - Focus is on a single site and uses field studies to document species and to estimate and predict the impacts to the species from the potential project
Tier 4 - Studies are conducted to estimate impacts to species from the as-built project
Tier 5 - Additional post-construction studies and research

Because the Guidelines provide for an iterative process, a potential project site will only proceed to the next tier of analysis if the data from each tier demonstrates an acceptable risk to species of concern. Again, early consultation and consideration allows for the greatest opportunity to avoid impacts to wildlife and allow incorporation of conservation mitigation measures in the project siting, design, and development stages.

Voluntary Nature of the Guidelines

The Guidelines are voluntary, and adherence to them does not relieve either a developer or an agency of its obligations to comply with all applicable laws and regulations, such as the National Environmental Policy Act (NEPA) and the Endangered Species Act. However, if a violation of law occurs during construction or operation of a wind energy project, and a developer can document that it followed the Guidelines, FWS will consider a developer's communications with FWS and adherence to the Guidelines.

Continued Focus on Early Involvement

Consistent with its prior guidance and practices, the Guidelines make clear FWS's long-standing position that early involvement of the agency is an important factor in the development of wind energy projects. By consulting with FWS early in the siting process, a developer may avoid areas where development would be precluded, or where impacts to species are high and difficult or costly to remedy or mitigate. Early consultation may help protect developers from investment in a project site at which mitigation of impacts to species is either not possible, or is economically unfeasible.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues. If you have any questions about this Alert or would like to discuss the topic further, please contact your Foley attorney or:

Tanya C. O'Neill
Milwaukee, Wisconsin
414.297.5836
toneill@foley.com

Sarah A. Slack
Madison, Wisconsin
608.258.4239
sslack@foley.com

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