In March, the U.S. Fish and Wildlife Service (USFWS) released its “Final Land-Based Wind Energy Guidelines,” which are intended to help wind energy project developers avoid and minimize impacts of land-based wind projects on wildlife and their habitats.
These Guidelines are the culmination of work that began nearly five years ago with then-Secretary of the Interior Dirk Kempthorne’s appointment of 22 individuals to serve as members of a Wind Turbine Guidelines Advisory Committee. With members drawn from a number of interested entities across the country, the Advisory Committee was tasked with drafting recommendations for the Department of Interior to facilitate use of effective measures to avoid or minimize impacts of land-based wind energy facilities on wildlife and their habitats.
After several years of consideration, the Advisory Committee provided recommendations to the Department of the Interior on March 4, 2010, which ultimately served as the basis for the Final Land-Based Wind Energy Guidelines that were released in March.
The Guidelines, which take effect immediately, have two related but distinct objectives. First, they provide a “tiered” decision-making framework for developers to assess and mitigate a proposed project’s potential environmental impact. Second, the Guidelines provide Best Management Practices for site development, construction, retrofitting, repowering, and decommissioning for wind projects across the country. With this broad overview in mind, we can turn to a more detailed description of the two objectives.
The Guidelines first objective is to set forth a uniform tiered approach for evaluating and mitigating a potential project’s environmental impact. This essentially entails an escalating series of reviews (the tiers) which developers can use to collect information in increasing detail as the proposed project advances, quantify potential impacts on species of concern and their habitats, and evaluate those risks in the context of the project’s siting, construction, and operation decisions. In more detail, they include:
Tier 1: Preliminary site evaluations. The first tier is intended to locate potential sites for a wind projects that have the least potential for negative environmental impacts. As part of the Tier 1 review process, USFWS asks developers to begin with a broad geographic area for its potential location, and then eliminate areas where environmental sensitivity is particular high due to the presence of large blocks of intact native landscapes, intact ecological communities, habitats for fragmentation-sensitive species, or other important landscape-scale wildlife values.
The Guidelines indicate that developers may conduct this Tier 1 evaluation based primarily upon existing public or readily available landscape-level maps and databases from sources such as federal, state, or tribal wildlife or natural heritage programs, the academic community, conservation organizations, or the developers’ or consultants’ own information.
Tier 2: Site characterization. After the developer works through the Tier-1 process, it is then necessary to systematically evaluate the risk of the proposed project on any species of concern and their habitats within the proposed site. According to the Guidelines, Tier 2 studies should include three elements. First, the developer must review existing information about the site, including published literature, databases and maps of topography, wildlife, habitats, plant distribution, land use, and land cover. Second, the developer must contact agencies and organizations with relevant scientific information to help identify bird, bat, or other wildlife concerns. Finally, because Tier 2 evaluation is site-specific, there should be at least one site visit by a biologist and, if there are issues relating to varying conditions or seasonal changes, additional site visits might be necessary.
Tier 3: Field studies to document wildlife and predict project impacts. Once the site has been selected and its characteristics have been evaluated, the developer will need to attempt to identify on a more granular level the number, distribution, and behavior of any species of concern on the site and then estimate the potential risk of the project in light of those considerations.
Accordingly, Tier 3 evaluations begin with a determination of whether additional studies are needed to decide whether the developer should proceed with construction or abandon the site. To answer this question, the developer will have to gather the data necessary to predict post-construction impacts on species of concern and their habitats, design the project in a way that minimizes those foreseeable impacts, and identify any compensatory mitigation efforts that may be required to offset any adverse impacts that cannot be otherwise avoided or minimized.
Once data gaps are identified and sufficient information has been gathered, the Tier 3 evaluation will primarily focus on these issues:
- Assessing whether species of concern are likely to be present in the project area during the life of the project
- Monitoring the site to determine the types of species present and how those species are making use of the site, and
- Determining the consequences of the proposed project on those species, especially in light of the information gathered and known potential risks such as collisions with turbines, habitat loss and degradation, habitat fragmentation, displacement and behavioral changes, and other indirect effects.
If the surveys conducted in Tier 3 indicate that no species of concern are present, or the developer is able to successfully mitigate the impact on any species of concern, the evaluation process effectively ends at Tier 3.
Two more tiers
Depending on the results of the previous tier studies, it is possible that additional post-construction studies will be required to determine whether the predictions of the environmental impacts of the project were correct. Two more may include:
Tier 4: Post-construction studies to estimate impact. The Guidelines suggest it may be necessary to conduct fatality and habitat studies.
First, the Guidelines recommend conducting fatality monitoring on large projects for at least one year after project construction completes. Monitoring activities should provide developers with answers to the following seven questions:
- What are the bird and bat fatality rates for the project?
- What are the fatality rates for species of concern?
- How do the estimated fatality rates compare to those predicted?
- Do bird and bat fatalities vary within the project site in relation to site characteristics?
- How do fatality rates compare to fatality rates from existing projects in similar landscapes with similar species composition and use?
- What is the composition of fatalities in relation to migrating and resident birds and bats at the site?
- Do fatality data suggest the need for measures to reduce impacts?
The Guidelines also suggest that developers may need to conduct studies of the direct and indirect loss of habitat caused by the project. These studies may focus on issues such as habitat fragmentation and reduction in habitat resources, as necessary depending on the circumstances of the particular project.
Tier 5: Other post-construction studies. Finally, in rare cases the Guidelines suggest that Tier 5 studies will be required for projects where the environmental impacts have been particularly significant and any mitigation measures have been inadequate. USFWS indicates that this level of evaluation will be extremely complex and time consuming, but it anticipates that the evaluations undertaken in Tiers 1 through 4 will steer most projects away from sites that might require this detailed level of review.
Best management practices
The Guidelines also set forth a large number of Best Management Practices for all phases of a wind project’s development, from site construction and operation to mitigation, retrofitting, repowering, and decommissioning. USFWS anticipates that use of the practices should reduce the potential for adverse impacts on most species of concern and their habitats. Though the complete list is quite long and covers many issues, a few examples provide a sense of the types of practices that are proposed:
- “Minimize, to the maximum extent practicable, roads, power lines, fences, and other infrastructure associated with a wind-development project. When fencing is necessary, construction should use wildlife compatible design standards.”
“Use native species when seeding or planting during restoration. Consult with appropriate state and federal agencies regarding native species to use for restoration.”
- • “Retrofit designs should prevent nests or bird perches from being established in or on the wind turbine or tower.”
- • “Decommissioning methods should minimize new site disturbance and removal of native vegetation, to the greatest extent practicable.”
Benefits of the guidelines
Although voluntary, these Guidelines provide incentives for developers to implement the recommended practices. USFWS has stated that, if a violation occurs, it will take a developer’s documented efforts to communicate with USFWS and comply with the Guidelines into consideration when determining what corrective or disciplinary actions are required. Additionally, USFWS will regard a developer’s adherence to the Guidelines, including communication with the Service, as appropriate means of identifying and implementing reasonable and effective measures to avoid the take of species protected under the Migratory Bird Treaty and Bald and Golden Eagle Protection Acts.
Accordingly, it is important that wind developers across the country take note of these new guidelines and implement them into their existing environmental evaluation procedures. Though the requirements may seem burdensome, it is ultimately beneficial for developers to know exactly what issues USFWS will be emphasizing in pre and post-construction meetings, and to have some level of regulatory certainty regarding how particularly troublesome environmental issues will be handled in the future. WPE
By: Alan Claus Anderson (left) and Luke Hagedorn of Polsinelli Shughart’s National Renewable Energy Practice.
Filed Under: Uncategorized