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April 16, 2012
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U.S. Fish and Wildlife Service Issues Final Land-Based Wind Energy Guidelines


By Jerry Webberman, Leonard Dougal, and Benjamin Rhem

On March 23, 2012, U.S. Fish and Wildlife Service ("the Service") issued the Final Land-Based Wind Energy Guidelines ("Guidelines"). The Guidelines are the culmination of a five-year process, during which the Service received input from developers, environmental groups, and individual citizens. The Guidelines, which are effective immediately, have received shows of support from both industry and environmental groups alike, including the American Wind Energy Association and the National Audubon Society.

Compliance with the newly issued guidelines is strictly voluntary, but following these guidelines will help developers avoid and minimize impacts on wildlife and their habitats and maintain compliance with federal statutes such as the Endangered Species Act, the Bald and Golden Eagle Protection Act, and the Migratory Bird Treaty Act. The guidelines also note that if a violation does occur, the Service will consider a developer's documented efforts to communicate with the Service and adhere to the Guidelines when determining whether to initiate enforcement action.

The guidelines provide a "tiered approach" that will allow developers to identify any potential risk to wildlife, as well as provide mitigation and monitoring methods for any adverse effects that do occur.

Tier 1 – Developers are to conduct preliminary site evaluations of all possible project locations to assess whether endangered species or high value habitats are present.

Tier 2 – Once the developer has narrowed consideration down to specific sites, the developers should conduct a more detailed assessment of the existence of species of concern and critical habitat areas (i.e. nesting sites, migration stopovers), and whether a potential for significant adverse impact to a species of concern exists.

Tier 3 – Developers are to conduct field studies to document any wildlife or habitat at the proposed location and predict project impacts. The Guidelines do not prescribe a specific length of time developers should study a particular site, but suggest "pre-construction studies may need to occur over multiple years" to account for changes in meteorological conditions, biological factors, and other variables.

Tier 4 – After construction is complete developers are to evaluate the accuracy of their assessments under the first three tiers. If adverse impacts have occurred, developers should determine whether and how those impacts can be mitigated.

Tier 5 – Developers should conduct additional post-construction studies when observed fatalities are higher than expected, mitigation activities are not effective, or impacts are likely to lead to population declines.

The Guidelines also provide Best Management Practices (BMPs) for site development, construction, retrofitting, repowering, and decommissioning. Between the various tiers and the BMPs, the Guidelines describe in great detail what a developer is expected to do during each step of the process, but the Service is clear to point out that "[t]he most important thing a developer can do is consult with the Service as early as possible in the development of a wind energy project."

If you have any questions regarding this e-Alert, please contact Jerry Webberman (512.236.2270 or jwebberman@jw.com), Leonard Dougal (512.236.2233 or ldougal@jw.com) or Benjamin Rhem (512.236.2012 or brhem@jw.com).


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