[Federal Register Volume 77, Number 58 (Monday, March 26, 2012)]
[Notices]
[Pages 17496-17498]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7011]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS-R9-FHC-2011-N244; 94300-1122-0000-Z2]
RIN 1018-AX45
Fisheries and Habitat Conservation and Migratory Birds Programs;
Final Land-Based Wind Energy Guidelines
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of availability.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
availability of the final voluntary Land-Based Wind Energy Guidelines
(Guidelines). These Guidelines supersede the Service's 2003 voluntary
interim guidelines for land-based wind energy development. They respond
to accelerated development of land-based wind energy generation
projects in the United States. These voluntary Guidelines provide
developers and agency staff with an iterative process to make sound
decisions in selecting sites to avoid, minimize and compensate for
adverse effects to wildlife, particularly birds and bats, and their
habitats resulting from construction, operation, and maintenance of
land-based wind energy facilities.
DATES: These voluntary Guidelines are effective March 26, 2012.
ADDRESSES: The Guidelines may be downloaded from http://www.fws.gov/windenergy. To request a copy of the draft Guidelines by U.S. Mail,
write: U.S. Fish and Wildlife Service, 4401 North Fairfax Drive; Room
840, Arlington, VA 22203. You may also send an email request to:
windenergy@fws.gov. Please specify whether you want to receive a hard
copy by U.S. mail or an electronic copy by email.
FOR FURTHER INFORMATION CONTACT: Christy Johnson-Hughes, Division of
Habitat and Resource Conservation, U.S. Fish and Wildlife Service,
Department of the Interior, (703) 358-1922. Individuals who are
hearing-impaired or speech-impaired may call the Federal Relay Service
at 1-800-877-8337 for TTY assistance, 24 hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION: The mission of the U.S. Fish and Wildlife
Service is to work with others to conserve, protect, and enhance fish,
wildlife, plants, and their habitats for the continuing benefit of the
American people. As part of this mission, we implement statutes
including the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.), the
Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-711), and the Bald and
Golden Eagle Protection Act (BGEPA; 16 U.S.C. 668-668d). These statutes
prohibit taking of federally listed species, migratory birds, and
eagles unless otherwise authorized.
Increased energy demands and the nationwide goal to increase energy
production from renewable sources have intensified the development of
renewable energy facilities, including wind energy. The Service
supports renewable energy development that is compatible with wildlife
conservation.
The voluntary Guidelines will provide Service staff, developers,
landowners and other stakeholders with a tool to assist in avoiding,
minimizing, and compensating for significant adverse impacts to
wildlife and their habitats. Adherence to the Guidelines is voluntary
and does not relieve any individual, company, or agency of the
responsibility to comply with laws and regulations. However, if a
violation of law occurs, the Service will consider a developer's
documented efforts to communicate with the Service and adhere to the
Guidelines. The Guidelines include a Communications Protocol that
provides guidance to both developers and Service personnel regarding
expectations of appropriate communication and documentation.
The Service anticipates that these Guidelines, when used in concert
with appropriate regulatory tools and other existing policies, provide
the best practical approach for wildlife conservation.
Background
In July 2003, the Service released voluntary interim guidelines for
land-based wind energy projects to assist developers in avoiding,
minimizing, and/or compensating for effects to wildlife and their
habitats related to land-based wind energy facilities. In 2007, the
Secretary of the Interior (Secretary) established the Wind Turbine
Guidelines Advisory Committee (Committee) under the Federal Advisory
Committee Act (5 U.S.C. App.). The Committee submitted final
recommendations to the Secretary on March 4, 2010. The Service
appreciates all the time and effort that members of the Committee
devoted to developing their recommendations, as well as since that
time, as the Service developed these final Guidelines. The Service used
the recommendations as a basis to develop the Service's draft
Guidelines, which we circulated for comment in February 2011 (76 FR
9590, February 18, 2011).
We announced several opportunities for the public to attend
Committee meetings and to submit comments or otherwise participate in
the development of the Guidelines as follows:
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Date of
Federal Register citation publication Purpose of notice
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76 FR 18238................... April 1, 2011.... Announced Committee meeting of April 27, 2011.
76 FR 20006................... April 11, 2011... Announced availability of teleconference line for April 27,
2011, Committee meeting.
76 FR 38677................... July 1, 2011..... Announced Committee meeting of July 20-21, 2011.
76 FR 48174................... August 8, 2011... Announced Committee meeting of August 23, 2011.
76 FR 54481................... September 1, 2011 Announced Committee meeting of September 20-21, 2011.
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The Service received more than 30,000 comments (summarized below)
on the draft Guidelines from a wide range of interests, including
Federal, State, and local agencies; tribes; wind energy developers;
utilities; national and local wildlife conservation organizations;
universities; and concerned citizens. The Service made
[[Page 17497]]
subsequent revisions of draft Guidelines available on July 13, 2011,
and September 13, 2011, for additional public comment. Following
circulation of both revised drafts, we reconvened the Committee to
obtain input from Committee members as well as the public attending the
Committee meetings (July 20-21 and September 20-21, 2011).
Approximately an additional 1,000 comments were received on the revised
drafts.
The final Guidelines incorporate elements from the Committee's
recommendations, the draft Guidelines, as well as extensive public
comment received during comment periods and the public Committee
meetings. The majority of the comments focused on either the need to
make the Guidelines mandatory or to keep them strictly voluntary. The
following is a succinct summary of comments received and our responses.
Comment: The Service received a large number of comments stating
that the Guidelines should be made mandatory. We also received a large
number of comments supporting voluntary Guidelines.
Response: The Service believes that voluntary initiatives to avoid
and minimize impacts to species of concern can be effective. The wind
industry has clearly expressed its willingness to take seriously the
need to site and operate projects in a responsible manner. Furthermore,
under existing authorities, the Service cannot mandate compliance with
the Guidelines as currently written. Mandatory application would
require a significant narrowing of the scope of the Guidelines. As
currently written, the Guidelines contemplate a process in which
developers consider proposed wind energy projects in the context of the
entire landscape, focusing on species and habitats that may be
significantly impacted by their proposed project. The Guidelines
anticipate that developers will include in their review species beyond
the scope of Service jurisdiction, such as prairie chickens and non-
ESA-listed bat species, which can be negatively affected by wind energy
development. The Guidelines also contemplate that developers will
include in their review impacts to rare habitats that are currently
unprotected but that are important to conserve. The Service believes
that the comprehensive approach described by the Guidelines in
combination with use of existing tools such as Habitat Conservation
Plans, Bird and Bat Conservation Strategies, and Eagle Conservation
Plans will provide robust conservation of wildlife and their habitats.
If appropriate, based on experience gained under these Guidelines, the
Service can revisit their voluntary nature in the future.
Comment: The Guidelines should clarify consultation requirements
and Service decision-making.
Response: The final Guidelines clarify that wind energy developers
may decide to move from one tier to the next, but that this decision
should be made in two-way communication with Service field offices. The
final Guidelines commit the Service to providing feedback to wind
project developers within 60 days of receiving such communications, and
to respond in writing to developers before or during Tier 3 of a
project (prior to initiating construction) with any concerns or
recommendations.
Comment: The Service received many comments supporting a phase-in
period of 6 months to 2 years for currently operating projects and
those under development. Other comments supported immediate use of the
final Guidelines.
Response: The Service has decided not to ``phase-in'' the
implementation of the Guidelines, but rather to employ them immediately
with publication of this notice. To address concerns about the lack of
a phase-in period, the final Guidelines clarify that: (a) All projects
that commence after the effective date should apply them; (b)
developers are not expected to go back to earlier tiers for projects in
development or operation; and (c) operating projects should adhere to
Tiers 4 and 5 as appropriate. The Service believes that because the
Guidelines are voluntary, there is no need to delay implementation
beyond publication. Many developers and the Service are currently
discussing numerous wind energy projects and how to reduce the impacts
of those projects on species of concern.
Comment: The Guidelines should include species-specific science
information rather than have the information provided elsewhere, such
as on the Service's Web site.
Response: While the draft version of the Guidelines did place
species-specific information on the Service's Web site, this process
was cumbersome for reviewers and inefficient for practitioners.
Therefore, we moved the recommended methods and metrics to be used for
bird and bat species back into the Guidelines in the Chapters focused
on pre- and post-construction studies.
Comment: The Guidelines should discuss the appropriateness of the
various methods and metrics available, rather than list them.
Response: The Service agreed with commenters that providing context
and discussion of the methods and metrics within the Guidelines is
helpful to the reader. The final Guidelines provide discussion of the
various methods and metrics available for pre- and post-construction
studies, as had been recommended by the Committee.
Comment: The Guidelines should be peer reviewed, and the Committee
recommendations should also be peer reviewed.
Response: The draft Guidelines were peer reviewed by the Wildlife
Society. We have posted the peer review on the FWS Wind Energy Web
site. The Committee recommendations were not separately peer reviewed.
The Service determined that it is not necessary to conduct a peer
review on the recommendations prepared by the Committee because the
final Guidelines have evolved since the recommendations were provided
to the Secretary in 2010.
Comment: The Guidelines should differentiate between emerging
issues and established science. Commenters felt that while there may be
valid concern over certain issues such as the effects of wind turbine
noise on wildlife, these issues have not been widely studied and are
not yet understood well enough to be addressed by individual wind
energy developers.
Response: Tiers 3 and 4 (pre- and post-construction studies and
monitoring) point to topics typically considered when determining what
to study, including: Collision, habitat loss and degradation,
displacement and behavioral changes, and indirect effects. The
Guidelines include collision and habitat loss as topics for wind
project developers to assess and monitor in the tiered approach.
Others, such as the effects of sound, are mentioned in Tier 5 in the
context of research. These are topics that the Service would not expect
a developer to assess except in rare circumstances. However, the tiered
approach does not preclude them from consideration during
preconstruction studies if they are determined to be a viable concern.
Comment: Several comments pertained to how the Service should
incorporate new science as it becomes available. We received
suggestions to create an advisory panel that meets annually; open any
new information to public comment; and ensure that the addition of any
new information conforms to the principles outlined in the Committee's
recommendations.
Response: The final Guidelines do not establish an advisory panel
to incorporate new information. A process
[[Page 17498]]
for recommending which new studies or methods/metrics developers should
use is not identified in the Guidelines. The Service will consider the
best way to incorporate new science as it becomes available.
Comment: The Guidelines should adopt a risk-based approach to study
duration as opposed to requiring a minimum of 3 years of
preconstruction studies.
Response: The Service received many differing opinions on the
appropriate duration of preconstruction studies in Tier 3. While some
felt that a minimum of 3 years is prohibitive, others felt that it was
not long enough. The final Guidelines remove the default of 3 years of
preconstruction monitoring and instead recommend that studies be of
sufficient duration and intensity to ensure that adequate data are
collected to characterize wildlife use of the proposed project area as
determined in communication with the Service. This approach allows for
data collection commensurate with the level of risk, as opposed to an
across-the-board standard that does not take into consideration the
circumstances at individual sites.
Comment: The scope of the Guidelines should be ``species of
concern'' as originally used by the Committee in their recommendations,
as opposed to ``fish, wildlife and their habitats.''
Response: After reviewing the definition of ``species of concern,''
the Service agrees that this term is most appropriate as it narrows the
focus of developer's studies to species that may potentially be
significantly impacted by a wind energy project. The final Guidelines
use the term ``species of concern'' for scope of species covered.
Comment: The Guidelines should not apply to distributed and
community-scale wind energy projects. The costs associated with
adhering to the Guidelines are prohibitive for smaller scale projects
and will stall or prevent the development of small-scale wind energy.
Response: The Service recognizes that studies have not shown small-
scale wind energy projects to have significant adverse impacts to
wildlife. However, the Service also recognizes that a poorly sited
project, no matter the size, has the potential to cause significant
impacts. For this reason, distributed and community-scale projects are
not ``exempted'' from the Guidelines. The Guidelines are voluntary. No
wind energy developer is bound to follow them. The final Guidelines
clarify that, in most cases, small-scale wind energy projects will not
have significant adverse impacts, but developers should still do a Tier
1 and/or Tier 2 analysis using publicly available information (e.g.,
internet searches) to ensure that the risk for potential impacts is
low.
The final Guidelines preserve many elements from the previous
drafts including descriptions of the information needed to identify,
assess, mitigate, and monitor the potential adverse effects of wind
energy projects on wildlife and their habitats; and flexibility to
accommodate the unique circumstances of each project. The framework
helps developers understand how to avoid or minimize effects to certain
species, which is important for compliance with a number of laws,
including MBTA, BGEPA, and ESA.
The levels of surveying, monitoring, assessing, and collecting
other information will vary among different wind-energy projects due to
the diverse geographic, climatological, and ecological features of
potential wind development sites. Founded upon a ``tiered approach''
for assessing potential effects to species of concern and their
habitats, the guidelines are intended to promote: Compliance with
relevant laws and statutes; the use of scientifically rigorous survey,
monitoring, assessment, and research designs proportionate to the
potential risk to affected species; the accumulation of comparable data
across the landscape; the identification of trends and patterns of
effects; and, ultimately, the improved ability to predict and resolve
effects locally, regionally, and nationally.
Authority: The authorities for this action are the Endangered
Species Act of 1973 as amended (16 U.S.C. 1531 et seq.); the
Migratory Bird Treaty Act of 1918 as amended (16 U.S.C. 703-711);
and the Bald and Golden Eagle Protection Act of 1940, as amended (16
U.S.C. 668-668d).
Dated: March 20, 2012.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2012-7011 Filed 3-23-12; 8:45 am]
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