Secretary of the Interior Ken Salazar announced on February 8 that the U.S. Fish and Wildlife Service (FWS) released final drafts of two sets of guidelines impacting wind development.The land-based Wind Energy Guidelines and the Eagle Conservation Plan Guidance are intended to work together to establish processes to make the best possible decisions about the potential negative effects to wildlife from wind energy development, reports the Wildlife Management Institute. Both sets of guidelines will be open for public comment for 90 days.

"Development of wind power and other renewable energy sources is a key part of our nation's energy strategy for the future, and we are committed to facilitating that development," said Fish and Wildlife Service Acting Director Rowan Gould. "This guidance will help our employees work with the wind energy industry to minimize impacts to the environment, and I look forward to receiving comments from the public on these draft documents so the final guidance represents the best path forward."

The Wind Energy Guidelines are the result of a multi-year effort by the Wind Turbine Guidelines Advisory Committee. Organized in 2007 and authorized under the Federal Advisory Committee Act, the group was made up of diverse stakeholders from the wind energy industry, conservation organizations, and local, state and tribal governments. The Committee was tasked with developing recommendations on avoiding, minimizing and/or compensating for the impacts on wildlife from wind energy development. The recommendations were submitted to the Secretary in March 2010 and focused on a tiered approach for evaluating and reducing potential adverse effects of wind energy development on wildlife and habitat (see detailed description of recommendations in March 2010 ONB). The FWS then convened an internal working group to review the recommendations and develop draft guidelines that were released for comment this month.

The current draft guidelines contain several changes from the recommendations set forth by the advisory committee. The version submitted by the FWS has a minimum pre-construction study duration of three years and a minimum post-construction study of two years. It also eliminates a two-year phase-in process for the guidelines. In addition, the original version submitted by the advisory committee let the developer make key decisions at the end of each tier, whereas the FWS version requires the developer to make those decisions in coordination with FWS. The current draft guidelines also removed "significant" before mention of adverse effects wherever it occurred throughout the recommendations. There were several other changes to bring the recommendations more in line with Department of the Interior and FWS policies for mitigation and other legal considerations. Although many of the changes actually strengthened the recommendations from the Committee, strong, science-backed language regarding potential impacts from wind power development on sage-grouse and prairie chicken as a result of habitat fragmentation was removed from the recommendations and merely inserted as an appendix to the guidelines.

Although an important step for providing direction to wind energy developers to protect fish and wildlife resources, the Wind Energy Guidelines are voluntary, leaving developers to determine if they will make a good faith effort to follow them. The FWS claims that it will "regard such voluntary adherence and communication as evidence of due care with respect to avoiding, minimizing, and mitigating significant negative impacts to species protected under the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act, and will take that into account when exercising its discretion with respect to any potential referral for prosecution related to the death of or injury to any such species." The FWS also is clear that it should not be construed, even with voluntary adherence, that it will not take enforcement action or relieve developers from their obligation relative to any applicable federal, state, tribal, or local laws, statutes, or regulations.

In addition to the Wind Energy Guidelines, and intended to be compatible with them, guidlines also were released by the FWS to reduce the impacts of wind development on eagles. The development of wind-power facilities has increased in the core range of golden eagles in the western United States. These eagles are particularly vulnerable to collisions with wind turbines and, in some areas, such collisions are a major source of their mortality. According to the FWS, the draft Eagle Conservation Plan Guidance "provides information for wind energy developers to prepare an Eagle Conservation Plan (ECP) that assesses the risk of the project to eagles and how siting, design, and operational modifications can mitigate that risk." The guidance provides wind energy developers and operators with nonbinding recommendations on how to collect and present the information in applying for programmatic eagle take permits authorized under rules released in September 2009 (see September 2009 ONB).

A 90-day comment period is open for the public to respond to the draft guidelines and guidance. Final changes will be made based on those comments and a final version could take more than a year before going into effect. (jas)