U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service

 
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service
U.S. Fish & Wildlife Service

U.S. Fish and Wildlife Service
Land-Based Wind Energy Guidelines
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service
Cover Photo:

Wind Turbine. Photo by Stefanie Stavrakas, USFWS
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

                                                                     OMB Control No, 1018-0148
                                                                     Expiration Date: 12/31/2014

U.S. Fish and Wildlife Service
Land-Based Wind Energy Guidelines

March 23, 2012
                                                                                                   i
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

Acknowledgements

The U.S. Fish and Wildlife Service (Service) would like to recognize and thank the Wind Turbine Guidelines
Advisory Committee for its dedication and preparation of its Recommendations. The Recommendations have served
as the basis from which the Service’s team worked to develop the Service’s Land-Based Wind Energy Guidelines.
The Service also recognizes the tireless efforts of the Headquarters, Regional and Field Office staff that helped to
review and update these Guidelines.

Paperwork Reduction Act Statement: The Land-Based Wind Energy Guidelines contain reporting and recordkeeping
requirements that require Office of Management and Budget approval in accordance with the Paperwork Reduction
Act of 1995. Your response is voluntary. We collect this information in order to provide technical assistance related
to addressing wildlife conservation concerns at all stages of land-based wind energy development. For each
response, we estimate the time necessary to provide the information as follows:

        Tier 1 – 83 hours
        Tier 2 – 375 hours
        Tier 3 – 2,880 hours
        Tier 4 – 2,550 hours
        Tier 5 – 2,400 hours

The above estimates include time for reviewing instructions, gathering and maintaining data, and preparing and
transmitting reports. Send comments regarding these estimates or any other aspect of the requirements to the
Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, MS 2042-
PDM, Arlington, VA 22203.

We may not conduct and you are not required to respond to a collection of information unless it displays a currently
valid OMB control number.
ii
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

Table of Contents
Executive Summary……………………………………………………………………………………………… vi

Chapter 1 - General Overview…………………………………………………………………………………… 1

       Statutory Authorities……………………………………………………………………………………… 1

		Migratory Bird Treaty Act……………………………………………………………………… 2
		Bald and Golden Eagle Protection Act………………………………………………………… 2
		Endangered Species Act……………………………………………………………………………3

       Implementation of the Guidelines………………………………………………………………………… 4

		Consideration of the Guidelines in MBTA and BGEPA Enforcement……………………… 6
		Scope and Project Scale of the Guidelines……………………………………………………… 6
		Service Review Period…………………………………………………………………………… 7

       Introduction to the Decision Framework Using a Tiered Approach…………………………………… 7

       Considering Risk in the Tiered Approach………………………………………………………………… 10

       Cumulative Impacts of Project Development…………………………………………………………… 10

       Other Federal Agencies…………………………………………………………………………………… 10

       Relationship to Other Guidelines…………………………………………………………………………                                    11

Chapter 2: Tier 1 – Preliminary Site Evaluation………………………………………………………………… 12

       Tier 1 Questions……………………………………………………………………………………………                                             13

       Tier 1 Methods and Metrics………………………………………………………………………………                                        13

       Tier 1 Decision Points……………………………………………………………………………………… 13

Chapter 3: Tier 2 – Site Characterization………………………………………………………………………… 14

       Tier 2 Questions ………………………………………………………………………………………………14

       Tier 2 Methods and Metrics…………………………………………………………………………… 15

       Tier 2 Decision Points……………………………………………………………………………………… 18

Chapter 4: Tier 3 – Field Studies to Document Site Wildlife and Habitat and Predict Project Impacts………… 19

       Tier 3 Questions ……………………………………………………………………………………………                                            19

       Tier 3 Study Design Considerations……………………………………………………………………… 24

		Assessing Presence………………………………………………………………………………                                                     24
		Assessing Site Use/Behavior……………………………………………………………………                                                24
		Duration/Intensity of Studies……………………………………………………………………                                              25
		Assessing Risk to Species of Concern……………………………………………………………                                          25

       Tier 3 Technical Resources………………………………………………………………………………… 26

		Tier 3, Question 1………………………………………………………………………………… 26
		Tier 3, Question 2………………………………………………………………………………… 27
                                                                                                             iii
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

		Tier 3, Question 3………………………………………………………………………………… 28

      Tier 3 Decision Points……………………………………………………………………………………… 33

Chapter 5: Tier 4 – Post-construction Studies to Estimate Impacts……………………………………………                     34

      Tier 4a – Fatality Studies…………………………………………………………………………………                                        34

		Tier 4a Questions………………………………………………………………………………… 35
		Tier 4a Protocol Design Considerations……………………………………………………… 35

      Tier 4a Study Objectives…………………………………………………………………………………… 37

      Tier 4b – Assessing direct and indirect impacts of habitat loss, degradation, and fragmentation…… 40

		Tier 4b Protocol Design Considerations………………………………………………………… 41
		Tier 4b Decision Points………………………………………………………………………… 41

Chapter 6: Tier 5 – Other Post-construction Studies ……………………………………………………………                            43

      Tier 5 Questions ……………………………………………………………………………………………                                             43

      Tier 5 Study Design Considerations……………………………………………………………………… 44

		Tier 5 Examples…………………………………………………………………………………                                                       44
		Tier 5 Studies and Research……………………………………………………………………                                                46

Chapter 7: Best Management Practices………………………………………………………………………… 49

      Site Construction and Operation…………………………………………………………………………                                      49

      Retrofitting, Repowering, and Decommissioning………………………………………………………                               51

		Retrofitting………………………………………………………………………………………  51
		Repowering……………………………………………………………………………………… 51
		Decommissioning………………………………………………………………………………… 52

Chapter 8: Mitigation…………………………………………………………………………………………… 53

      NEPA Guidance on Mitigation……………………………………………………………………………                                         53

      Compensatory Mitigation…………………………………………………………………………………                                           54

      Migratory Birds and Eagles………………………………………………………………………………                                         54

      Endangered Species………………………………………………………………………………………                                              54

Chapter 9: Advancing Use, Cooperation and Effective Implementation………………………………………… 55

      Conflict Resolution………………………………………………………………………………………… 55

      Bird and Bat Conservation Strategies (BBCS)…………………………………………………………                                55

      Project Interconnection Lines……………………………………………………………………………                                       55

      Confidentiality of Site Evaluation Process as Appropriate……………………………………………                       56

      Collaborative Research……………………………………………………………………………………                                           56

      Service - State Coordination and Cooperation…………………………………………………………                               56

iv
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

        Service Tribal Consultation and Coordination…………………………………………………………                         57

		Tribal Wind Energy Development on Reservation Lands…………………………………… 57
		Tribal Wind Energy Development on Lands that are not held in Trust……………………… 57
		Non-Tribal Wind Energy Development – Consultation with Indian Tribal Governments… 57

        Non-Governmental Organization Actions………………………………………………………………                              58

        Non-Governmental Organization Conservation Lands………………………………………………… 58

Appendix A: Glossary…………………………………………………………………………………………… 59

Appendix B: Literature Cited…………………………………………………………………………………… 64

Appendix C: Sources of Information Pertaining to Methods to Assess Impacts to Wildlife…………………… 70

List of Figures and Tables

        Table 1. Suggested Communications Protocol…………………………………………………………… 5

        Figure 1. General Framework of Tiered Approach……………………………………………………… 9

        Table 2. Decision Framework for Tier 4a Fatality Monitoring of Species of Concern.………………   39

        Table 3. Decision Framework to Guide Studies for Minimizing Impacts to Habitat and Species of
        Habitat Fragmentation (HF) Concern.…………………………………………………………………… 42

                                                                                                        v
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

Executive Summary

As the Nation shifts to renewable                    golden eagles and other birds of                       • Tier 2 – Site characterization
energy production to supplant the                    prey; prairie and sage grouse;                           (broad characterization of one
need for carbon-based fuel, wind                     and listed, proposed, or candidate                       or more potential project sites)
energy will be an important source                   endangered and threatened
of power. As wind energy production                  species. Wind energy development                       • Tier 3 – Field studies to
increases, both developers and                       in some areas may be precluded                           document site wildlife and
wildlife agencies have recognized                    by federal law; other areas may                          habitat and predict project
the need for a system to evaluate                    be inappropriate for development                         impacts
and address the potential negative                   because they have been recognized
impacts of wind energy projects on                   as having high wildlife value based                    • Tier 4 – Post-construction
species of concern. These voluntary                  on their ecological rarity and                           studies to estimate impacts1
Guidelines provide a structured,                     intactness.
scientific process for addressing                                                                           • Tier 5 – Other post-
wildlife conservation concerns at all                The Guidelines use a “tiered                             construction studies and
stages of land-based wind energy                     approach” for assessing potential                        research
development. They also promote                       adverse effects to species of concern
effective communication among wind                   and their habitats. The tiered                      The tiered approach provides the
energy developers and federal, state,                approach is an iterative decision-                  opportunity for evaluation and
and local conservation agencies and                  making process for collecting                       decision-making at each stage,
tribes. When used in concert with                    information in increasing detail;                   enabling a developer to abandon or
appropriate regulatory tools, the                    quantifying the possible risks of                   proceed with project development,
Guidelines form the best practical                   proposed wind energy projects                       or to collect additional information
approach for conserving species                      to species of concern and their                     if required. This approach does
of concern. The Guidelines have                      habitats; and evaluating those risks                not require that every tier, or
been developed by the Interior                       to make siting, construction, and                   every element within each tier, be
Department’s U.S. Fish and Wildlife                  operation decisions. During the                     implemented for every project.
Service (Service) working with the                   pre-construction tiers (Tiers 1, 2,                 The Service anticipates that many
Wind Turbine Guidelines Advisory                     and 3), developers are working to                   distributed or community facilities
Committee. They replace interim                      identify, avoid and minimize risks to               will not need to follow the Guidelines
voluntary guidance published by the                  species of concern. During post-                    beyond Tiers 1 and 2. Instead, the
Service in 2003.                                     construction tiers (Tiers 4 and 5),                 tiered approach allows efficient use
                                                     developers are assessing whether                    of developer and wildlife agency
The Guidelines discuss various                       actions taken in earlier tiers to                   resources with increasing levels of
risks to “species of concern” from                   avoid and minimize impacts are                      effort.
wind energy projects, including                      successfully achieving the goals and,
collisions with wind turbines and                    when necessary, taking additional                   If sufficient data are available
associated infrastructure; loss                      steps to compensate for impacts.                    at a particular tier, the following
and degradation of habitat from                      Subsequent tiers refine and build                   outcomes are possible:
turbines and infrastructure;                         upon issues raised and efforts
fragmentation of large habitat                       undertaken in previous tiers. Each                      1. The project proceeds to the
blocks into smaller segments that                    tier offers a set of questions to help                     next tier in the development
may not support sensitive species;                   the developer evaluate the potential                       process without additional
displacement and behavioral                          risk associated with developing a                          data collection.
changes; and indirect effects such                   project at the given location.
as increased predator populations                                                                            2. The project proceeds to the
or introduction of invasive plants.                  Briefly, the tiers address:                                next tier in the development
The Guidelines assist developers                                                                                process with additional data
in identifying species of concern                       • Tier 1 – Preliminary site                             collection.
that may potentially be affected by                       evaluation (landscape-scale
their proposed project, including                         screening of possible project                      3. An action or combination
migratory birds; bats; bald and                           sites)                                                of actions, such as project

1
    The Service anticipates these studies will include fatality monitoring as well as studies to evaluate habitat impacts.

vi
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

     modification, mitigation,             avoiding areas where development         provides guidance to both developers
     or specific post-construction         is precluded or where wildlife           and Service personnel regarding
     monitoring, is indicated.             impacts are likely to be high            appropriate communication and
                                           and difficult or costly to remedy        documentation.
   4. The project site is abandoned        or mitigate at a later stage. By
      because the risk is considered       consulting early, project developers     The Guidelines also provide
      unacceptable.                        can also incorporate appropriate         Best Management Practices for
                                           wildlife conservation measures and       site development, construction,
If data are deemed insufficient            monitoring into their decisions about    retrofitting, repowering, and
at a tier, more intensive study is         project siting, design, and operation.   decommissioning. For additional
conducted in the subsequent tier                                                    reference, a glossary of terms and
until sufficient data are available        Adherence to the Guidelines is           list of literature cited are included in
to make a decision to modify the           voluntary and does not relieve any       the appendices.
project, proceed with the project, or      individual, company, or agency of
abandon the project.                       the responsibility to comply with
                                           laws and regulations. However, if
The most important thing a                 a violation occurs the Service will
developer can do is to consult with        consider a developer’s documented
the Service as early as possible in        efforts to communicate with
the development of a wind energy           the Service and adhere to the
project. Early consultation offers         Guidelines. The Guidelines include
the greatest opportunity for               a Communications Protocol which

         Wind Resource Map. Credit: NREL

                                                                                                                          vii
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines - U.S. Fish & Wildlife Service
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

viii
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

Chapter 1 - General Overview

The mission of the U.S. Fish and                (3)		     Produce potentially                   reducing adverse effects to fish and
Wildlife Service (Service) is working                     comparable data across the            wildlife resources from wind energy
with others to conserve, protect and                      Nation;                               projects for public comment in July
enhance fish, wildlife, plants and                                                              2003. After the Service reviewed the
their habitats for the continuing               (4)		     Mitigate, including avoid,            public comments, the Secretary of
benefit of the American people. As                        minimize, and compensate              the Interior (Secretary) established
part of this, the Service implements                      for potential adverse effects         a Federal Advisory Committee2 to
statutes including the Endangered                         on species of concern and             provide recommendations to revise
Species Act, Migratory Bird Treaty                        their habitats; and,                  the guidelines related to land-
Act, and Bald and Golden Eagle                                                                  based wind energy facilities. In
Protection Act. These statutes                  (5)		     Improve the ability to                March 2007, the U.S. Department
prohibit taking of federally listed                       predict and resolve effects           of the Interior established the
species, migratory birds, and eagles                      locally, regionally, and              Wind Turbine Guidelines Advisory
unless otherwise authorized.                              nationally.                           Committee (the Committee).
                                                                                                The Committee submitted its
Recent studies have documented                  As the United States moves to                   final Recommended Guidelines
that wind energy facilities can kill            expand wind energy production,                  (Recommendations) to the Secretary
birds and bats. Mortality rates                 it also must maintain and protect               on March 4, 2010. The Service used
in fatalities per nameplate MW                  the Nation’s wildlife and their                 the Recommendations to develop
per year vary among facilities and              habitats, which wind energy                     its Land-Based Wind Energy
regions. Studies have indicated that            production can negatively affect.               Guidelines.
relatively low raptor (e.g., hawks,             As with all responsible energy
eagles) fatality rates exist at most            development, wind energy projects               The Service encourages project
modern wind energy developments                 should adhere to high standards                 proponents to use the process
with the exception of some facilities           for environmental protection. With              described in these voluntary Land-
in California and Wyoming. Turbine-             proper diligence paid to siting,                based Wind Energy Guidelines
related bat deaths have been                    operations, and management of                   (Guidelines) to address risks to
reported at each wind facility to               projects, it is possible to mitigate            species of concern. The Service
date. Generally, studies in the West            for adverse effects to wildlife,                intends that these Guidelines, when
have reported lower rates of bat                and their habitats. This is best                used in concert with the appropriate
fatalities than facilities in the East.         accomplished when the wind energy               regulatory tools, will form the best
There is still much uncertainty                 project developer communicates as               practical approach for conservation
regarding geographic distribution               early as possible with the Service              of species of concern.
and causes of bat fatalities (NWCC              and other stakeholders. Such
2010).                                          early communication allows for the              Statutory Authorities
                                                greatest range of development and
These Guidelines are intended to:               mitigation options. The following               These Guidelines are not intended
                                                website contains contact information            nor shall they be construed to
(1)		     Promote compliance                    for the Service Regional and Field              limit or preclude the Service from
          with relevant wildlife laws           offices as well as State wildlife               exercising its authority under any
          and regulations;                      agencies: http://www.fws.gov/offices/           law, statute, or regulation, or from
                                                statelinks.html.                                conducting enforcement action
(2)		     Encourage scientifically                                                              against any individual, company,
          rigorous survey, monitoring,          In response to increasing wind                  or agency. They are not meant to
          assessment, and research              energy development in the United                relieve any individual, company, or
          designs proportionate to the          States, the Service released a set              agency of its obligations to comply
          risk to species of concern;           of voluntary, interim guidelines for            with any applicable federal, state,

2
  Committee membership, from 2008 to 2011, has included: Taber Allison, Massachusetts Audubon; Dick Anderson, California Energy
Commission; Ed Arnett, Bat Conservation International; Michael Azeka, AES Wind Generation; Thomas Bancroft, National Audubon; Kathy
Boydston, Texas Parks and Wildlife Department; René Braud, EDP Renewables; Scott Darling, Vermont Fish and Wildlife Department; Michael
Daulton, National Audubon; Aimee Delach, Defenders of Wildlife; Karen Douglas, California Energy Commission; Sam Enfield, MAP Royalty;
Greg Hueckel, Washington Department of Fish and Wildlife; Jeri Lawrence, Blackfeet Nation; Steve Lindenberg, U.S. Department of Energy;
Andy Linehan, Iberdrola Renewables; Rob Manes, The Nature Conservancy, Kansas; Winifred Perkins, NextEra Energy Resources; Steven
Quarles, Crowell & Moring; Rich Rayhill, Ridgeline Energy; Robert Robel, Kansas State University; Keith Sexson, Association of Fish and
Wildlife Agencies; Mark Sinclair, Clean Energy States Alliance; David Stout, U.S. Fish and Wildlife Service; Patrick Traylor, Hogan Lovells.

                                                                                                                                               1
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

tribal, or local laws, statutes, or      hunt, shoot, wound, kill, trap,              either a decrease in productivity or
regulations. The Guidelines do not       capture, or collect, or attempt to           nest abandonment by substantially
prevent the Service from referring       pursue, hunt, shoot, wound, kill, trap,      interfering with normal breeding,
violations of law for enforcement        capture, or collect.” 50 CFR 10.12.          feeding, or sheltering behavior. 50
when a company has not followed the                                                   CFR 22.3. BGEPA authorizes the
Guidelines.                              The MBTA provides criminal                   Service to permit the take of eagles
                                         penalties for persons who commit             for certain purposes and under
Ultimately it is the responsibility      any of the acts prohibited by the            certain circumstances, including
of those involved with the planning,     statute in section 703 on any of the         scientific or exhibition purposes,
design, construction, operation,         species protected by the statute.            religious purposes of Indian tribes,
maintenance, and decommissioning         See 16 U.S.C. 707. The Service               and the protection of wildlife,
of wind projects to conduct relevant     maintains a list of all species              agricultural, or other interests, so
wildlife and habitat evaluation and      protected by the MBTA at 50 CFR              long as that take is compatible with
determine, which, if any, species        10.13. This list includes over one           the preservation of eagles. 16 U.S.C.
may be affected. The results of          thousand species of migratory birds,         668a.
these analyses will inform all efforts   including eagles and other raptors,
to achieve compliance with the           waterfowl, shorebirds, seabirds,             In 2009, the Service promulgated
appropriate jurisdictional statutes.     wading birds, and passerines. The            a final rule on two new permit
Project proponents are responsible       MBTA does not protect introduced             regulations that, for the first
for complying with applicable state      species such as the house (English)          time, specifically authorize the
and local laws.                          sparrow, European starling, rock             incidental take of eagles and eagle
                                         dove (pigeon), Eurasian collared-            nests in certain situations under
Migratory Bird Treaty Act                dove, and non-migratory upland               BGEPA. See 50 CFR 22.26 &
                                         game birds. The Service maintains            22.27. The permits authorize
The Migratory Bird Treaty Act            a list of introduced species not             limited, non-purposeful (incidental)
(MBTA) is the cornerstone of             protected by the Act. See 70 Fed.            take of bald and golden eagles;
migratory bird conservation and          Reg. 12,710 (Mar. 15, 2005).                 authorizing individuals, companies,
protection in the United States. The                                                  government agencies (including
MBTA implements four treaties that       Bald and Golden Eagle Protection             tribal governments), and other
provide for international protection     Act                                          organizations to disturb or
of migratory birds. It is a strict                                                    otherwise take eagles in the course
liability statute, meaning that proof    Under authority of the Bald and              of conducting lawful activities such
of intent, knowledge, or negligence      Golden Eagle Protection Act                  as operating utilities and airports.
is not an element of an MBTA             (BGEPA), 16 U.S.C.
violation. The statute’s language        668–668d, bald eagles and
is clear that actions resulting in a     golden eagles are afforded
“taking” or possession (permanent        additional legal protection.
or temporary) of a protected species,    BGEPA prohibits the take,
in the absence of a Service permit       sale, purchase, barter,
or regulatory authorization, are a       offer of sale, purchase, or
violation of the MBTA.                   barter, transport, export
                                         or import, at any time or
The MBTA states, “Unless and             in any manner of any bald
except as permitted by regulations       or golden eagle, alive or
… it shall be unlawful at any time,      dead, or any part, nest, or
by any means, or in any manner           egg thereof. 16 U.S.C. 668.
to pursue, hunt, take, capture, kill     BGEPA also defines take
… possess, offer for sale, sell …        to include “pursue, shoot,
purchase … ship, export, import …        shoot at, poison, wound,
transport or cause to be transported     kill, capture, trap, collect,
… any migratory bird, any part,          molest, or disturb,” 16
nest, or eggs of any such bird ….        U.S.C. 668c, and includes
[The Act] prohibits the taking,          criminal and civil penalties
killing, possession, transportation,     for violating the statute.
import and export of migratory           See 16 U.S.C. 668. The
birds, their eggs, parts, and nests,     Service further defined the
except when specifically authorized      term “disturb” as agitating
by the Department of the Interior.”      or bothering an eagle to a
16 U.S.C. 703. The word “take” is        degree that causes, or is
defined by regulation as “to pursue,     likely to cause, injury, or   Bald Eagle, Credit:   USFWS

2
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

Removal of active eagle nests would
usually be allowed only when it is
necessary to protect human safety or
the eagles. Removal of inactive nests
can be authorized when necessary
to ensure public health and safety,
when a nest is built on a human-
engineered structure rendering it
inoperable, and when removal is
necessary to protect an interest
in a particular locality, but only if
the take or mitigation for the take
will provide a clear and substantial
benefit to eagles.

To facilitate issuance of permits
under these new regulations,
the Service has drafted Eagle
Conservation Plan (ECP) Guidance.
The ECP Guidance is compatible
with these Land-Based Wind
Energy Guidelines. The Guidelines
guide developers through the
process of project development and
operation. If eagles are identified
as a potential risk at a project site,
developers are strongly encouraged
to refer to the ECP Guidance. The            Indiana bat. Credit: USFWS
ECP Guidance describes specific           are not likely to jeopardize the        actions on their lands to benefit both
actions that are recommended              continued existence of these species    listed and non-listed species.
to comply with the regulatory             or destroy or adversely modify their
requirements in BGEPA for an eagle        critical habitat. Federal agencies      Section 9 of the ESA makes it
take permit, as described in 50 CFR       are encouraged to do the same with      unlawful for a person to “take” a
22.26 and 22.27. The ECP Guidance         respect to “candidate” species that     listed species. Take is defined as “...
provides a national framework for         may be listed in the near future. The   to harass, harm, pursue, hunt, shoot,
assessing and mitigating risk specific    law is administered by the Service      wound, kill, trap, capture, or collect
to eagles through development of          and the Commerce Department’s           or attempt to engage in any such
ECPs and issuance of programmatic         National Marine Fisheries Service       conduct.” 16 U.S.C. 1532(19). The
incidental takes of eagles at wind        (NMFS). For information regarding       terms harass and harm are further
turbine facilities. The Service           species protected under the ESA,        defined in our regulations. See 50
will make its final ECP Guidance          see: http://www.fws.gov/endangered/.    CFR 17.3. However, the Service
available to the public through its                                               may authorize “incidental take”
website.                                  The Service has primary                 (take that occurs as a result of an
                                          responsibility for terrestrial and      otherwise legal activity) in two ways.
Endangered Species Act                    freshwater species, while NMFS
                                          generally has responsibility            Take of federally listed species
The Endangered Species Act (16            for marine species. These two           incidental to a lawful activity may
U.S.C. 1531–1544; ESA) was enacted        agencies work with other agencies       be authorized through formal
by Congress in 1973 in recognition        to plan or modify federal projects      consultation under section 7(a)(2) of
that many of our Nation’s native          so that they will have minimal          the ESA, whenever a federal agency,
plants and animals were in danger of      impact on listed species and their      federal funding, or a federal permit
becoming extinct. The ESA directs         habitats. Protection of species is      is involved. Otherwise, a person may
the Service to identify and protect       also achieved through partnerships      seek an incidental take permit under
these endangered and threatened           with the states, through federal        section 10(a)(1)(B) of the ESA upon
species and their critical habitat, and   financial assistance and a system of    completion of a satisfactory habitat
to provide a means to conserve their      incentives available to encourage       conservation plan (HCP) for listed
ecosystems. To this end, federal          state participation. The Service        species. Developers not receiving
agencies are directed to utilize          also works with private landowners,     federal funding or authorization
their authorities to conserve listed      providing financial and technical       should contact the Service to obtain
species, and ensure that their actions    assistance for management               an incidental take permit if a wind
                                                                                                                        3
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

                                                   information with the Service and      should contemporaneously document
                                                   considered its advice.                with reasoned justification why they
                                                                                         did so. Although the Guidelines
                                                 • For projects initiated prior to       leave decisions up to the developer,
                                                   publication, the developer should     the Service retains authority to
                                                   consider where they are in the        evaluate whether developer efforts
                                                   planning process relative to the      to mitigate impacts are sufficient,
                                                   appropriate tier and inform the       to determine significance, and to
                                                   Service of what actions they will     refer for prosecution any unlawful
                                                   take to apply the Guidelines.         take that it believes to be reasonably
                                                                                         related to lack of incorporation
                                                 • For projects operating at the         of Service recommendations or
                                                   time of publication, the developer    insufficient adherence with the
                                                   should confer with the Service        Guidelines.
                                                   regarding the appropriate period
                                                   of fatality monitoring consistent
                                                   with Tier 4, communicate and
                                                   share information with the
                                                   Service on monitoring results,
                                                   and consider Tier 5 studies
                                                   and mitigation options where
                                                   appropriate.
Utility-Scale Wind turbine with an anemometer
tower in the background. Credit: University of
Minnesota College of Science and Engineering
                                                 Projects that are already under
                                                 development or are in operation
energy project is likely to result               are not expected to start over or
in take of listed threatened or                  return to the beginning of a specific
endangered wildlife species. For                 tier. Instead, these projects should
more information regarding formal                implement those portions of the
consultation and the requirements                Guidelines relevant to the current
of obtaining HCPs, please see the                phases of the project per the bullets
Endangered Species Consultation                  above.
Handbook at http://www.fws.gov/
endangered/esa-library/index.                    The Service is aware that it will
html#consultations and the                       take time for Service staff and
Service’s HCP website, http://www.               other personnel, including wind
fws.gov/endangered/what-we-do/                   energy developers and their
hcp-overview.html.                               biologists, to develop expertise
                                                 in the implementation of these
Implementation of the Guidelines                 Guidelines. Service staff and many
                                                 staff associated with the wind
Because these Guidelines are                     energy industry have been involved
voluntary, the Service encourages                with developing these Guidelines.
developers to use them as soon                   Therefore, they have a working
as possible after publication. To                knowledge of the Guidelines. To
receive the considerations discussed             further refine their training, the
on page 6 regarding enforcement                  Service will make every effort to
priorities, a wind energy project                offer an in-depth course within 6
would fall into one of three general             months of the final Guidelines being
categories relative to timing and                published.
implementation:
                                                 The Communications Protocol on
• For projects initiated after                   page 5 provides guidance to Service
  publication, the developer has                 staff and developers in the exchange
  applied the Guidelines, including              of information and recommendations
  the tiered approach, through site              at each tier in the process. Although
  selection, design, construction,               the advice of the Service is not
  operation and post-operation                   binding, a developer should review
  phases of the project, and has                 such advice, and either accept or
  communicated and shared                        reject it. If they reject it, they

4
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

Table 1. Suggested Communications Protocol
This table provides examples of potential communication opportunities between a wind energy project developer and
the Service. Not all projects will follow all steps indicated below.

      TIER                    Project Developer/Operator Role                               Service Role
Tier 1:                 • Landscape level assessment of habitat for         • Provide lists of data sources and references,
Preliminary site          species of concern                                  if requested
evaluation              • Request data sources for existing information
                          and literature
Tier 2: Site            • Assess potential presence of species of           • Provide species lists, for species of concern,
characterization          concern, including species of habitat               including species of habitat fragmentation
                          fragmentation concern, likely to be on site         concern, for general area, if available
                        • Assess potential presence of plant                • Provide information regarding plant
                          communities present on site that may provide        communities of concern, if available
                          habitat for species of concern                    • Respond to information provided about
                        • Assess potential presence of critical               findings of biologist from site visit
                          congregation areas for species of concern         • Identify initial concerns about site(s) based
                        • One or more reconnaissance level site visit by      on available information
                          biologist                                         • Inform lead federal agencies of
                        • Communicate results of site visits and other        communications with wind project
                          assessments with the Service                        developers
                        • Provide general information about the size
                          and location of the project to the Service
Tier 3: Field           • Discuss extent and design of field studies to     • Respond to requests to discuss field studies
studies and impact        conduct with the Service                          • Advise project proponent about studies to
prediction              • Conduct biological studies                          conduct and methods for conducting them
                        • Communicate results of all studies to Service     • Communicate with project proponent(s)
                          field office in a timely manner                     about results of field studies and risk
                        • Evaluate risk to species of concern from            assessments
                          project construction and operation                • Communicate with project proponents(s)
                        • Identify ways to mitigate potential direct and      ways to mitigate potential impacts of
                          indirect impacts of building and operating the      building and operating the project
                          project                                           • Inform lead federal agencies of
                                                                              communications with wind project
                                                                              developers
Tier 4: Post            • Discuss extent and design of post-construction    • Advise project operator on study design,
construction              studies to conduct with the Service                 including duration of studies to collect
studies to estimate     • Conduct post-construction studies to assess         adequate information
impacts                   fatalities and habitat-related impacts            • Communicate with project operator about
                        • Communicate results of all studies to Service       results of studies
                          field office in a timely manner                   • Advise project operator of potential
                        • If necessary, discuss potential mitigation          mitigation strategies, when appropriate
                          strategies with Service
                        • Maintain appropriate records of data collected
                          from studies
Tier 5: Other           • Communicate with the Service about the need       • Advise project proponents as to need for
post-construction         for and design of other studies and research to     Tier 5 studies to address specific topics,
studies and               conduct with the Service, when appropriate,         including cumulative impacts, based on
research                  particularly when impacts exceed predicted          information collected in Tiers 3 and 4
                          levels                                            • Advise project proponents of methods and
                        • Communicate with the Service about ways             metrics to use in Tier 5 studies
                          to evaluate cumulative impacts on species         • Communicate with project operator and
                          of concern, particularly species of habitat         consultants about results of Tier 5 studies
                          fragmentation concern                             • Advise project operator of potential
                        • Conduct appropriate studies as needed               mitigation strategies, when appropriate,
                        • Communicate results of studies with the             based on Tier 5 studies
                          Service
                        • Identify potential mitigation strategies to
                          reduce impacts and discuss them with the
                          Service

                                                                                                                               5
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines

Consideration of the Guidelines in
MBTA and BGEPA Enforcement

The Service urges voluntary
adherence to the Guidelines and
communication with the Service
when planning and operating a
facility. While it is not possible to
absolve individuals or companies
from MBTA or BGEPA liability, the
Office of Law Enforcement focuses
its resources on investigating
and prosecuting those who take
migratory birds without identifying
and implementing reasonable and
effective measures to avoid the
take. The Service will regard a
developer’s or operator’s adherence
to these Guidelines, including
communication with the Service, as
appropriate means of identifying                    Communication with Christy Johnson-Hughes. Credit: Rachel London, USFWS
and implementing reasonable and
effective measures to avoid the                     energy projects to reduce potential                  The tiered approach is designed
take of species protected under the                 impacts to species of concern,                       to lead to the appropriate amount
MBTA and BGEPA.3 The Chief of                       regardless of whether they are                       of evaluation in proportion to
Law Enforcement or more senior                      proposed for private or public                       the anticipated level of risk that
official of the Service will make                   lands. A developer of a distributed                  a project may pose to species
any decision whether to refer for                   or community scale wind project                      of concern and their habitats.
prosecution any alleged take of such                may find it useful to consider the                   Study plans and the duration and
species, and will take such adherence               general principles of the tiered                     intensity of study efforts should
and communication fully into account                approach to assess and reduce                        be tailored specifically to the
when exercising discretion with                     potential impacts to species of                      unique characteristics of each site
respect to such potential referral.                 concern, including answering Tier                    and the corresponding potential
Each developer or operator will be                  1 questions using publicly available                 for significant adverse impacts
responsible for maintaining internal                information. In the vast majority                    on species of concern and their
records sufficient to demonstrate                   of situations, appropriately sited                   habitats as determined through
adherence to the Guidelines and                     small wind projects are not likely to                the tiered approach. This is why
response to communications from                     pose significant risks to species of                 the tiered approach begins with
the Service. Examples of these                      concern. Answering Tier 1 questions                  an examination of the potential
records could include: studies                      will assist a developer of distributed               location of the project, not the size
performed in the implementation of                  or community wind projects, as well                  of the project. In all cases, study
the tiered approach; an internal or                 as landowners, in assessing the need                 plans and selection of appropriate
external review or audit process; a                 to further communicate with the                      study methods and techniques may
bird and bat conservation strategy;                 Service, and precluding, in many                     be tailored to the relative scale,
or a wildlife management plan.                      cases, the need for full detailed                    location, and potential for significant
                                                    pre-construction assessments or                      adverse impacts of the proposed site.
If a developer and operator are not                 monitoring surveys typically called
the same entity, the Service expects                for in Tiers 2 and 3. If landowners                  The Service considers a “project”
the operator to maintain sufficient                 or community/distributed wind                        to include all phases of wind
records to demonstrate adherence to                 developers encounter problems                        energy development, including,
the Guidelines.                                     locating information about specific                  but not limited to, prospecting, site
                                                    sites they can contact the Service                   assessment, construction, operation,
Scope and Project Scale of the                      and/or state wildlife agencies to                    and decommissioning, as well as
Guidelines                                          determine potential risks to species                 all associated infrastructure and
                                                    of concern for their particular                      interconnecting electrical lines.
The Guidelines are designed for                     project.                                             A “project site” is the land and
“utility-scale” land-based wind                                                                          airspace where development occurs

3
 With regard to eagles, this paragraph will only apply when a project is not likely to result in take. If Tiers 1, 2, and/or 3 identify a potential to
take eagles, developers should consider developing an ECP and, if necessary, apply for a take permit

6
You can also read