The U.S. Fish and Wildlife Service (FWS) has issued final, voluntary guidelines, which take effect immediately, to assist developers of “utility-scale” land-based wind energy projects to reduce potential impacts to species of concern and their habitats. These Land-Based Wind Energy Guidelines (Guidelines) are the result of extensive discussion, analysis, critique and input from federal and state agencies, tribes, the wind energy industry, conservation organizations and the public. The Guidelines maintain the same tiered approach proposed in last year’s draft Guidelines, but the final Guidelines include many nuanced revisions that address issues raised by the recommendations of the Wind Turbine Guidelines Federal Advisory Committee and by comments from others.
The Guidelines, which replace FWS’s 2003 interim voluntary guidelines, emphasize communication and are designed to promote compliance with various environmental statutes, including the Endangered Species Act (ESA), the Migratory Bird Treaty Act (MBTA), and the Bald and Golden Eagle Protection Act (BGEPA), through a tiered evaluation approach that imposes pre- and post-construction obligations on developers to collect information in increasing detail to evaluate risk and make siting and operational decisions that will minimize impacts to species of concern. Throughout the Guidelines, FWS reiterates that early consultation offers the greatest opportunity to incorporate wildlife conservation measures and monitoring into project siting, design and operation decisions. Although the Guidelines are voluntary, FWS indicates that adherence to the Guidelines will be taken “fully into account when exercising discretion” to pursue an enforcement action, thus potentially reducing the risk of MBTA or BGEPA liability. However, compliance with the Guidelines does not relieve developers of the obligation to obtain a take permit when necessary under existing law, and no take permit is available under the MBTA.
The Guidelines’ Tiered Approach
The Guidelines are based on a “tiered approach” to wind energy development, described by FWS as “an iterative decision-making process for collecting information in increasing detail; quantifying the possible risks of proposed wind energy projects to species of concern and their habitats; and evaluating those risks to make siting, construction, and operation decisions.” Five procedural tiers guide developers through increasingly narrow and detailed inquiries to determine the appropriateness of a particular site for development, as well as identify any needed mitigation measures. The tiers are: (1) Preliminary site evaluation (landscape-scale screening of possible project sites); (2) Site characterization (broad characterization of one or more potential project sites); (3) Field studies to document site wildlife and habitat and predict project impacts; (4) Post-construction studies to estimate impacts; and (5) Other post-construction studies and research. To guide the inquiry at each tier, FWS poses questions that developers should answer.
FWS intends for each tier to build on the findings of previous tiers in order to evaluate and respond to risks to affected species. One goal of the tiered approach is to lead to an appropriate amount of evaluation in proportion to the anticipated level of risk a project entails. It is not intended to be a one-size-fits-all process. Rather, the duration and scope of each tier should be commensurate to the level of identified risk. A project with little or no risk may not need to go through each tier, although FWS recommends coordination with the agency before the process is stopped.
The Guidelines are to be used by developers for projects at all phases of development and operation. FWS recognizes that, depending on where the project is in the development process, certain tiers may not be applicable. Thus, for projects initiated after publication of the Guidelines, all five tiers would likely apply; for projects initiated prior to publication of the Guidelines, “the developer should consider where they are in the planning process relative to the appropriate tier and inform [FWS] of what actions they will take to apply the guidelines;” and for projects operating at the time of publication, “the developer should confer with [FWS] regarding the appropriate period of fatality monitoring consistent with Tier 4, communicate and share information with [FWS] on monitory results, and consider Tier 5 studies and mitigation options where appropriate.” FWS has provided “communication protocols” for each tier, thus providing developers a framework for the minimum level of information required to be submitted during each tier, and FWS’s role in responding to and evaluating that information.
Based on the information and evaluation developed at each tier, developers can determine the best manner in which to develop the site and what mitigation factors may be required, or, if significant risks are identified, whether a project should be abandoned.
As Compared to the draft Guidelines
FWS touts early consultation under the Guidelines as offering the greatest opportunity for avoiding areas where development would be precluded or where wildlife impacts are likely to be high and difficult or costly to remedy or mitigate at a later stage in the planning process. However, commenters critiqued the draft Guidelines for being unworkable and predicted that without significant revisions the Guidelines would remain largely unused. The final Guidelines seem to respond to many (but not all) of the recommendations from the wind industry that would balance a workable set of Guidelines with reduction and mitigation of environmental impacts.
The final Guidelines narrow the scope of covered species from “fish, wildlife and their habitat” to “species of concern.” The final Guidelines also create the opportunity for projects currently operating or under development to skip to the appropriate tier in the planning process. This site-specific approach is carried through many other aspects of the Guidelines. The final Guidelines remove language requiring a minimum number of years of pre- and post-construction monitoring, simply noting that high risk site may warrant additional years of monitoring and studies. Likewise, the Guidelines note that compensatory mitigation may be appropriate “to address significant site-specific concerns and pre-construction study results.”
Even though the final Guidelines appear to respond to the need for a workable document, the final Guidelines do not implement all of the industry’s recommendations on this point. For example, the cost of extensive pre-construction consultation and monitoring could seem prohibitive to some developers, especially if FWS does not provide adequate enforcement assurances. The final Guidelines retain a paragraph recommended by the Federal Advisory Committee and negotiated with FWS confirming that adherence to the Guidelines and communication will be taken into account when FWS refers cases for prosecution. However, in the middle of this paragraph, the Guidelines add a new provision which explains that “While it is not possible to absolve individuals or companies from MBTA or BGEPA liability, the Office of Law Enforcement focuses its resources on investigating and prosecuting those who take migratory birds without identifying and implementing reasonable and effective measures to avoid the take.” In addition, the final Guidelines retain limiting language from the draft Guidelines:
These Guidelines are not intended nor shall they be construed to limit or preclude the Service from exercising its authority under any ale, statues, or regulation, or from conducting enforcement action against any individual, company or agency. They are not meant to relieve any individual, company, or agency of its obligations to comply with any applicable federal, state, tribal, or local laws, statutes or regulations.
The final Guidelines also narrow the scope of covered impacts from “adverse impacts” to “significant adverse impacts” in most, but not all cases. Developers are still encouraged to assess “adverse impacts” potentially caused by development for those species most likely to be negatively affected by the development. The breadth of these, and other, assessments recommended by the Guidelines add to the cost of following the process.
Wind energy project developers and investors should therefore carefully consider the Guidelines and the potential costs and benefits of voluntary compliance as part of their project evaluation process.
Other Renewable Energy Project Plans/Studies
The Guidelines are only one of several nationwide and regional plans/studies that renewable energy project developers should consider as they begin the planning process. Concurrent with the release of the draft Guidelines last year, FWS also released its Draft Eagle Conservation Plan (DECP) and draft Eagle Guidance for wind energy projects. The draft Eagle Guidance compliments the Guidelines by providing non-binding recommendations for mitigation measures specific to bald and golden eagles and a similar five-stage consultation process through which each wind project developer applying for a programmatic take permit can work with FWS to develop an Eagle Conservation Plan. Preparation of the DECP Guidance is ongoing.
With a goal of establishing similar environmental policies and mitigation strategies for solar energy projects, the Office of Energy Efficiency and Renewable Energy (EERE), the Department of Energy (DOE), the Bureau of Land Management (BLM) and the Department of the Interior (DOI) are preparing the Solar Energy Development Programmatic Environmental Impact Study (Solar PEIS) to evaluate utility-scale solar energy development and to amend relevant BLM land use plans with the consideration of establishing a new BLM Solar Energy Program. The Solar PEIS relies on the same concept of early identification of the “right places” to build renewable projects (i.e., places where wildlife impacts are not likely to be high or difficult/costly to mitigate). The Final Solar PEIS is expected to be available later this summer.
On a regional level, FWS is considering the Great Plains Wind Energy Habitat Conservation Plan, which may include the Whooping Crane, the Lesser prairie-chicken, the Interior Least Tern, and the Piping Plover. Additionally, FWS is developing Species Take Avoidance Measures for many other species.
In California, to compliment the 2011 Renewables Portfolio Standard (RPS), which calls for 33 percent of all utility energy procured be from renewables by 2020, Executive Order # S-14-08 mandated the development of the Desert Renewable Energy Conservation Plan (DRECP). The DRECP, when completed, is expected to provide long-term endangered species permit assurances while facilitating the review and approval of renewable energy projects in the Mojave and Colorado deserts in California. Preparation of the DRECP is ongoing.
All renewable energy project developers should be familiar with the Guidelines and the similar five-step approach proposed in the draft Eagle Guidelines because a similar approach to environmental policies and mitigation strategies for other renewable energy projects may be forth coming.
Implication of the Guidelines
Compliance with the Guidelines is voluntary and the decision to accept or reject FWS advice or recommendations is left solely to the developer. Based on the tiered approach with the site specific tailored determinations throughout the process, some developers may find that the cost of adhering to the Guidelines is an acceptable price for the potential protection the Guidelines afford.
Developers whose projects may have resulted in unpermitted takes of protected species may be able to obtain relief from enforcement, if they can demonstrate that they have made good faith efforts to comply with the Guidelines. In the event of a take, FWS will evaluate whether a developer’s efforts to mitigate impacts were sufficient and will refer for prosecution any unlawful take that it believes to be reasonably related to lack of incorporation of FWS recommendations or insufficient adherence with the Guidelines. If protected species are harmed, FWS states that it will “regard a developer’s or operator’s adherence to the Guidelines, including communication with [FWS], as appropriate means of identifying and implementing reasonable and effective measures to avoid the take of species protected under the MBTA and BGEPA,” provided that with regard to eagles, the project is not likely to result in take. Therefore, adherence to the Guidelines and cooperation with FWS can present wind project developers with significant benefits, in particular potentially a reduced risk of liability under the MBTA.
In addition, following the Guidelines may result in greater certainty for wind project developers and investors, expedite the permitting process, and help demonstrate environmental compliance to reassure funding sources. For these reasons, developers of new wind energy projects are recommended to review the Guidelines and consider early adherence. Developers of previously initiated projects and operating facilities are encouraged to review the Guidelines and determine whether begin the process at the appropriate later tiers.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:Gannon-Ella
 U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines (March 23, 2012), available at http://www.fws.gov/windenergy/docs/WEG_final.pdf (hereinafter “Guidelines”).
 Guidelines at 6.
 Guidelines at vi.
 Guidelines at 4.
 Guidelines at 4.
 Guidelines at 4.
 Guidelines at 49 and 54.
 Guidelines at 6.
 Guidelines at 1-2.
 Guidelines at 32; see also Guidelines at 10, 17, 49, 53 and 55.
 Guidelines at 6.
This article was originally published by Bingham McCutchen LLP.