Wind Energy Development and Wildlife Management Symposium

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Wind Energy Development and Wildlife Management
Symposium March 21, 2006
North American Wildlife Natural Resources
Conference
Wind Power Birds Potential Approaches for
Progress
Mark Sinclair Clean Energy Group Clean Energy
States Alliance
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Challenges

• Some avian mortality is inevitable in wind
  projects
• Avian protection laws are strict, creating
  enforcement risk and legal challenges to project
  development
• Wildlife agencies have enormous discretion in how
  to implement avian species protection laws
• Avian mortality is caused by many structures but
  new wind projects trigger formal reviews

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Significant State Role

• Regulating wind power is largely a state and
  local responsibility
• State local agencies have limited experience in
  evaluating wildlife impacts from wind power
• Lack of specific, detailed state regulations or
  guidance on wildlife impacts from wind
• State local regulations are evolving
• Most decisions today made on case-by-case basis
• GAO Report no evidence of states adopting USFWS
  guidance but states are using to inform their
  approach

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Patchwork of Approaches

• In many states, local jurisdictions regulate wind
  under zoning ordinances and conditional use
  permits, do not specifically address wildlife
  (NY, PA)
• In some states, energy siting boards make public
  good decisions, considering input from state
  wildlife departments as one factor in balance
• State NEPAs sometimes require state and local
  governments to assess environmental impacts and
  mitigation for proposed actions (CA, NY, WA)
• State wildlife agency focus primarily on game
  species, although state natural heritage programs
  provide avian information upon request
• Most state have endangered species laws but no
  prosecution or take permits issued

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Recent State Action

• West Virginia PSC adopted 2005 regulations for
  wholesale electric facilities requiring spring
  fall avian migration studies, avian bat risk
  assessments and lighting studies
• Washington DFW Wind Power Guidelines not
  regulations but de facto binding as WDFW
  participates in county and state-level permit
  process is agency of special expertise under
  SEPA
• Oregon ODFW rules establish habitat standard
  used by PUC in state energy siting process case
  by case approach to analysis and mitigation
• Kansas DWP Wind Power Position informal,
  general guidelines for local government
• Minnesota PUC required one large-scale study,
  funded by wind developers in broad region, no
  post construction studies

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Proposed State Action

• NY NYSERDA education to local government SEQRA
  review new wind/wildlife collaborative dialogue
  created to assist environmental agency develop
  specific avian guidance
• PA Game Commission policy for wind development
  on its lands PA Wind Working Group considering
  uniform guidelines or regulations for wind siting
• CA Stakeholder group recently convened to
  discuss California Energy Commissions proposal
  to develop guidance with CDFG
• CO No specific guidance, but RPS requires
  pre-construction studies recent stakeholder
  symposium to launch formal guidance development.

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Washington State Guidelines

• WDFW developed voluntary guidelines for
  consistency
• Encourage use of disturbed lands
• Discourage use of high value habitat
• Flexible pre-project assessment requirements,
  focus on existing information
• Mitigation focus
• Mitigation ratios dependent on value of habitat
  lost no mitigation required for croplands
• Alternative mitigation fees

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Federal Legal Framework

• Migratory Bird Treaty Act
• Applies to all migratory birds, including raptors
  and songbirds
• Illegal to kill any migratory bird
• Strict Liability statute specifies that
  violations of the MBTA are criminal in nature.
  Misdemeanors for unknowing violations, felonies
  for knowing violations
• No statutory method for limiting liability no
  incidental take permits

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Concerns With USFWS Interim Guidance

• Data collection requirements impractical
• One-size-fits-all-approach ignores regional and
  species differences
• Does not recognize primary state role in wildlife
  protection
• Requirements not commensurate with modest avian
  risk posed by most wind projects
• Recommendation for pre-screening all potential
  wind sites not practical assumes that wind
  siting can be based on avian considerations alone
• Provides limited guidance on site-specific
  mitigation/compliance

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Recommendations

• Avoid state-by-state and case-by-case approaches
• Create national reference tool and/or principles
  that states can tailor to minimize avian impacts
• Identify inventory of appropriate protocols,
  techniques, and tools to assess risk
• Form state/federal partnership to ensure
  coordinated, consistent, streamlined review of
  wind projects
• USFWS should allow states to implement national
  principles to reduce inconsistency duplication
• Establish coordinated and cooperative state
  national research agenda

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Potential Approaches

• Goal Develop practical approaches for compliance
  with wildlife laws on a national, state, and
  site-specific basis
• Potential Models
• APLIC Avian Protection Plan Guidelines
• ESA Tool-kit Approach
• BLM Best Management Practices Adaptive
  Management

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Approach 1 APLIC Model

• Avian Power Line Interaction Committees 2005
  Avian Protection Plan Guidelines
• APLIC is industry group partnering with USFWS and
  Audubon Society
• Focus is education, training, research and
  development of voluntary guidelines
• Tool box approach, utility can tailor broad
  principles to specific needs
• Preparation of utility-specific document to
  reduce avian risks
• USFWS informal stamp of approval
• APLIC does not provide legal safe harbor
• However, formal corporate adoption of Plan
  reduces likelihood of prosecution

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APLIC Approach

• 12 Principles for Acceptable Avian Protection
  Plan

• Corporate Policy Commitment
• Proper Training
• Permit Compliance
• Develop Construction Design Standards
• Nest Management Procedures
• Implement Avian Reporting System
• Develop Risk Assessment Methodology

• Implement Mortality Reduction Measures
• Consider Avian Enhancement Options
• Ensure Quality Control
• Create Public Awareness
• Identify Key Resources

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Approach 2 ESA Tool-Kit

• ESA Primer

• Incidental Take Permit
• Take must be incidental to activity
• Can be lengthy process
• Requires Habitat Conservation Plan (HCP) NEPA
  evaluation

• Safe Harbor Agreements
• Limit on ESA liability in exchange for
  land-owner implemented measures to enhance
  survival of species
• Must be a net conservation benefit
• FWS reluctant to use where development on
  property is foreseeable

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ESA Tool-Kit

• USFWS works with ESA permit applicants to
  identify appropriate mitigation for incidental
  take permits
• ESA uses innovative legal and mitigation
  approaches
• Area-wide HCPs
• Protection of threatened habitat
• Mitigation banks
• Species recovery research, plans, and actions

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Lessons from ESA

• Develop a menu of mitigation approaches that are
  road-tested and validated through pilot projects
• Develop site-specific solutions based on menu of
  accepted mitigation measures
• Develop credible, common body of science and data
  of typical avian impacts and mitigation approaches

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Approach 3 Best Management Practices

• 2005 BLM Programmatic EIS for Wind Energy
  Development
• Establishes programmatic BMPs to address
  potential impacts and mitigation for all wind
  projects
• BMPs must be economically feasible and
  environmentally sound
• Require additional mitigation measures to address
  site-specific concerns
• Use of adaptive management strategies to update
  and revise BMPs as new data becomes available

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Process for Moving ForwardNew National
Collaborative

• Key stakeholders and USFWS have agreed to
  participate in national collaborative involving
  wind industry, states, and environmental NGOs
• Mission fashion recommended national principles
  and framework to reduce avian impacts
• Begin in 2006
• Establish a Policy Group to be informed by a
  Science Group
• National Collaborative to work with and receive
  input from regional state workgroups
• Outcome not predetermined!!!

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Contact Information
Mark Sinclair Clean Energy Group 50 State Street,
Suite 1 Montpelier, VT 05602 Phone [phone]
x 206 Email MSinclair_at_cleanegroup.org www.cleaneg
roup.org www.cleanenergystates.org