By John McFerrin
The United States Department of the Interior has issued the U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines. According to the Department’s press release, these voluntary guidelines are supposed to “help wind energy project developers avoid and minimize impacts of land-based wind projects on wildlife and their habitats. The voluntary guidelines will help shape the smart siting, design and operation of the nation’s growing wind energy economy.”
The Guidelines recognize the threats to wildlife posed by wind turbines. These impacts include threats to “migratory birds; bats; bald and golden eagles and other birds of prey; prairie and sage grouse; and listed, proposed, or candidate endangered and threatened species.”
The Guidelines are supposed to address these threats:
- Collisions with wind turbines and associated infrastructure; loss and degradation of habitat from turbines and infrastructure;
- Fragmentation of large habitat blocks into smaller segments that may not support sensitive species;
- Displacement and behavioral changes; and
- Indirect effects such as increased predator populations or introduction of invasive plants.
The idea of the Guidelines is to encourage developers to consult with the U.S. Fish and Wildlife Service early in the planning of the wind farm. The Fish and Wildlife Service can then work with the developer to help plan, site, and develop the operation in a way that helps avoid the threats that are possible at an industrial wind site. The guidelines also provide for data collection, including fatality monitoring, after the wind turbines are installed to determine gather data on how the Guidelines are working.
The Fish and Wildlife Service is involved in this issue because of its general duty to promote and protect the interests of wildlife. More specifically, it is involved because it is supposed to enforce as the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act and the Endangered Species Act. The voluntary guidelines are supposed to help developers identify additional steps, review processes and permits that may be needed to ensure compliance with these acts. If the project may affect one or more species protected by the ESA or their habitat, for example, developers may need to develop a Habitat Conservation Plan and apply for an Incidental Take Permit.
The Guidelines also provide Best Management Practices for site development, construction, retrofitting, repowering, and decommissioning.
The Guidelines are voluntary. While having followed them might help a developer who later runs afoul of the law, failing to follow them doesn’t result in anything unpleasant happening to a developer. The Guidelines say:
Adherence to the Guidelines is voluntary and does not relieve any individual, company, or agency of the responsibility to comply with laws and regulations. However, if a violation occurs the Service will consider a developer’s documented efforts to communicate with the Service and adhere to the Guidelines.
The issuance of the Guidelines has produced some controversy; most of it comes from the fact that they are voluntary.
Audubon takes the position that these guidelines are a worthwhile step forward. Its view is that a cooperative approach in planning and siting wind turbines will result in superior wildlife protection than what had been a more combative approach in the past. It describes the Guidelines as “a game-changer and big win for both wildlife and clean energy.”
The American Bird Conservancy is not so sure. It points out that The U.S. Fish and Wildlife Service estimated that in 2009, the wind industry was killing about 440,000 birds per year. With the Federal Government targeting a 12-fold increase in wind generated electricity by the year 2030, annual bird mortality is expected to increase into the millions absent meaningful changes in the industry. Species of conservation concern appear to be particularly at risk including the Golden Eagle, Greater Sage-Grouse and the endangered Whooping Crane.
The American Bird Conservancy does not think that voluntary guidelines are the way to address these threats. It points out that the guidelines allow companies to decide whether or not they will comply.
They also provide companies with a tool to avoid prosecution under regulatory statutes which are mandatory. Should a developer violate such statutes as the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act and the Endangered Species Act having consulted with the Fish and Wildlife Service during the development of the project would be considered by the Service in determining whether prosecution is warranted.
The ABC finds this discouraging in light of the Fish and Wildlife Service’s past record of reluctance to prosecute. It points to a wind farm in California which is estimated to have killed over 2,000 eagles without any prosecution of anyone.
To download a copy of the final guidelines and for other ackground information on the Fish and Wildlife Service’s role in wind energy development, please visit http://www.fws.gov/windenergy/.