In Monday's post, I discussed US Fish and Wildlife Service's (FWS) Land-Based Wind Energy Guidelines. This post focuses on a second draft guidance document with implications for wind developers, FWS's Eagle Conservation Plan Guidance (pdf). The draft Eagle Guidance is intended to “interpret and clarify” the Eagle Permit Rule that went into effect in November 2009, but “not [to] impose any binding requirements beyond those specified in the regulations.” For those not familiar with this rule, the Eagle Permit Rule was enacted pursuant to BGEPA, which long had prohibited the “take” of bald and golden eagles but effectively had been dormant. Since both raptors were included on the federal endangered and threatened species list and, therefore, protected under the Endangered Species Act, an additional layer of regulation under BGEPA simply was not needed. With the recovery of the bald eagle and its federal delisting, the eagle was no longer covered by the ESA and BGEPA once again became relevant. FWS developed a permitting program under BGEPA – the Eagle Permit Rule – authorizing the unintentional “take” of bald or golden eagles under that act. Without a take permit, the unintentional killing and even disturbance of an eagle is a violation of BGEPA.
The Eagle Permit Rule itself is relatively short and provides limited assistance to developers and potential applicants about what specifically is required of them if they believe their project may result in a take. The Eagle Guidance fills some of the gaps, recommending the preparation of an Eagle Conservation Plan (ECP) to support an application for a “programmatic” take permit, one of the two types of permits established by the rule. The Eagle Guidance identifies five stages that should be competed in the course of creating an ECP. While every element of each stage may not be appropriate or necessary for an applicant seeking an individual permit, as opposed to a programmatic permit, the five stages provide relevant guidance for all potential take permit applicants, regardless of the specific type of permit being sought.
The five stages overlap the tiers in FWS's Land-Based Wind Energy Guidelines, but are different:
- Stage 1 – Initial site assessment. (This stage combines Tiers 1 and 2.)
- Stage 2 – Site-specific surveys and assessment. (During this stage project developers “should collect quantitative data through scientifically rigorous surveys designed to assess the potential risk of the proposed project to eagles at and surrounding the specific site(s) selected in Stage1.” The Eagle Guidance contains a recommended protocol for conducting these pre-construction surveys.)
- Stage 3 – Initial fatality prediction stage. (With the pre-construction survey data from Stage 2 as an input, modeling is used during this stage to estimate the risk posed by a project to eagles. If the survey protocol recommended for Stage 2 is not used, the draft document notes that FWS will need additional time to evaluate and review the data.)
- Stage 4 – Application of advanced conservation practices (ACPs) and compensatory mitigation. (During this stage, the project developer and FWS seek to identify measures that can be employed to avoid/and or minimize the predicted risk at a site. Ultimately, FWS will evaluate whether the developer has avoided and minimized risks to the maximum extent achievable.)
- Stage 5 – Risk validation. (Post-construction surveys are conducted during this stage to generate empirical data for comparison with pre-construction risk assessment predictions. FWS had developed a recommended protocol for these surveys, as well. Additional mitigation could be required based on the results.)
How the draft Land-Based Wind Energy Guidelines and draft Eagle Conservation Plan Guidance will be receive by stakeholders will become more evident after the conclusion of the comment period ending May 19, 2011. The initial reaction for the wind power industry, however, suggests that project developers will have some concerns.
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