On February 8, 2011, Secretary of the Interior Ken Salazar announced a number of long-anticipated initiatives designed to encourage rapid and responsible development of renewable energy on public lands. The draft guidance from the United States Fish and Wildlife Service (“FWS”) and the final guidance from the Bureau of Land Management (“BLM”) provide direction to the agencies and industry on navigating the many permitting and compliance requirements faced by solar and wind energy developers.
The FWS released two draft guidance documents. The first, “Draft Land-Based Wind Energy Guidelines,” is designed to provide wind energy developers with information to consider in selecting sites for wind energy facilities to avoid and minimize negative effects to fish, wildlife, plants, and their habitats. Click here to view these guidelines on the U.S. Fish and Wildlife Service website. The second, “Draft Eagle Conservation Plan Guidance,” explains the FWS’ approach to issuing programmatic eagle take permits under the Bald and Golden Eagle Protection Act (“BGEPA”) and provides guidance on conservation practices and adaptive management recommended to facilitate issuance of these permits and compliance with BGEPA. Click here to view this guidance on the U.S. Fish and Wildlife Service website. Both guidance documents will be available for public comment for 90 days following publication in the Federal Register.
BLM issued three final policy memoranda to provide guidance to field managers in evaluating, screening, and processing applications for utility-scale solar and wind energy projects on BLM-managed lands. Click here to view these memoranda on the Bureau of Land Management website. Instruction Memorandum No. 2011-059, “National Environmental Policy Act Compliance for Utility-Scale Renewable Energy Right-of-Way Authorizations,” reiterates and clarifies existing BLM National Environmental Policy Act (“NEPA”) policy for analyzing the potential environmental impacts of utility-scale renewable energy projects. Instruction Memorandum No. 2011-60, “Solar and Wind Energy Applications – Due Diligence,” provides updated guidance on the due diligence requirements of right-of-way applicants for solar and wind energy development projects on BLM-managed lands. Finally, Instruction Memorandum No. 2011-061, “Solar and Wind Energy Applications – Pre-Application and Screening,” provides updated guidance on the pre-application and screening processes BLM will employ in review of right-of-way applications for solar and wind energy development projects on BLM-managed lands. These policies developed in response to “lessons learned” from last year’s fast-track renewable energy initiatives are not subject to review and comment.
Draft Land-Based Wind Energy Guidelines
The Draft Land-Based Wind Energy Guidelines (“Wind Guidelines”) are designed to be used for all utility-scale and community-scale land-based wind energy projects located on private or public lands. The Guidelines describe the information needed to identify (1) sites with low risk to wildlife, and (2) to assess, mitigate, and monitor the potential adverse effects of wind energy projects on fish, wildlife, and their habitats. The Guidelines employ a “tiered approach,” described as an iterative decisionmaking process for collecting information in increasing detail, quantifying the possible risks of proposed wind energy projects on fish, wildlife, and habitats, and evaluating those risks to make siting, construction, and operation decisions. Subsequent tiers refine and build upon issues identified by efforts undertaken in previous tiers.
Although the Guidelines are considered voluntary, the FWS urges developers to adhere to the Guidelines. The FWS states that it will regard such voluntary adherence as evidence of due care with respect to avoiding, minimizing, and mitigating significant negative impacts to species protected under the Migratory Bird Treaty Act (“MBTA”) and BGEPA, and will take that into account when exercising its enforcement discretion related to the death of or injury to any such species.
The Guidelines will not take effect until after the public comment period and final Guidelines are published in the Federal Register. Specifically, the FWS has asked for comment on the following:
(1) The approach, utility, consistency, detail, and scientific validity of the Guidelines.
(2) Use of the Guidelines as regulatory requirements for wind facility development on all Federal lands, or, at a minimum, requirements for all Department of Interior jurisdictional lands where commercial wind projects are being/might be constructed (e.g., National Wildlife Refuges, Bureau of Land Management and National Park Service lands).
(3) Use and application of the Guidelines for a residential/farm-sized turbine.
(4) Use of the draft Guidelines, once finalized, as regulatory obligations versus a voluntary process on all lands, public and private.
Draft Eagle Conservation Guidance
The Draft Eagle Conservation Guidance (“Eagle Guidance”) was prompted by the FWS’ Final Eagle Permit Rule (74 Fed. Reg. 46836 (Sept. 11, 2009)) under BGEPA, which authorized the issuance of permits of take of bald and golden eagles where the take is associated with, but not the purpose, of an otherwise lawful activity. The FWS believes that many of the current and planned wind facilities should obtain permits to be in compliance with BGEPA because of the risk of both direct and indirect impacts to eagles.
The Guidance recommends that wind energy developers prepare Eagle Conservation Plans (“ECPs”), which assess the risk of their projects to eagles and how siting, design, and operational modifications can mitigate that risk. ECPs are to be developed in five stages, with each stage building on the prior stage, such that together the process is a progressive, increasingly intense look at likely effects of the development and operation of particular sites and turbine configurations on eagles. Development of ECPs is intended to support issuance of eagle programmatic take permits for wind facilities under the BGEPA. Programmatic take permits will authorize limited, incidental mortality and disturbance of eagles at wind facilities, provided effective offsetting conservation measures that meet regulatory requirements are carried out.
The Guidance is not binding, but provides instruction for the wind industry on how to make use of existing permit regulations (50 C.F.R. § 22.26) to achieve compliance with BGEPA. The Guidance will not take effect until after the public comment period and final Guidance is published in the Federal Register.
During the public comment period,the FWS seeks information and comment on the following:
(1) How could the Guidance better address issues related to wind power development?
(2) The substance of the Guidance, particularly on advanced conservation practices (“ACPs”), compensatory mitigation, and new or expanded definitions.
(3) What additional requirements may be necessary to ensure that wind-energy programmatic permits comply with BGEPA?
(4) Should the Guidance be voluntary or mandatory?
(5) If the Guidance should not be binding in its entirety, which provisions should be binding?
(6) How could the Guidance better address the responsibilities of Tribal, State and Federal agencies?
(7) How could the Guidance be applied to other industries or activities?
Both the Eagle Conservation Plan Guidance and the Land-Based Wind Energy Guidelines create significant new requirements for wind energy developers planning new wind facilities on public lands. The new guidance calls for increased consultation with the FWS and greater planning to avoid and minimize impacts to fish, wildlife, plants, and their habitats at all stages of wind energy development and operation. Wind energy developers and others concerned about the costs, delays, and other potential consequences of the new guidance, and about liability under the MBTA and BGEPA, should carefully review and consider commenting on the guidance.