Fisheries and Habitat Conservation and Migratory Birds Programs; Draft Land-Based Wind Energy Guidelines, 9590-9592 [2011-3699]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 76, Number 34 (Friday, February 18, 2011)]
[Notices]
[Pages 9590-9592]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3699]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R9-FHC-2011-N013; 94300-1122-0000-Z2]
RIN 1018-AX45


Fisheries and Habitat Conservation and Migratory Birds Programs; 
Draft 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 for public comment of draft Wind Energy Guidelines 
(Guidelines). These draft Guidelines are intended to supersede the 
Service's 2003 voluntary, interim guidelines for land-based wind 
development. Additionally, they are intended to respond to accelerated 
development of land-based, wind energy generation projects in the 
United States. These draft voluntary Guidelines provide developers and 
agency staff with an iterative process to make the best possible 
decisions in selecting sites to avoid and minimize negative effects to 
fish, wildlife and their habitats resulting from construction, 
operation and maintenance of land-based, wind energy facilities.

DATES: These voluntary draft Guidelines are effective February 18, 
2011. We must receive any comments by the end of the day on May 19, 
2011.

ADDRESSES: The draft Guidelines may be downloaded from https://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 e-mail 
request to: windenergy@fws.gov. Please specify whether you want to 
receive a hard copy by U.S. mail or and electronic copy by e-mail. To 
submit your comments, see ``Request for Public Comments'' under 
SUPPLEMENTARY INFORMATION.
    You may submit e-mail comments to windenergy@fws.gov. Please 
include ``Wind Energy Guidelines Comments'' in the subject line of the 
message, and your full name and return address in the body of your 
message. Please note that the e-mail address will be closed when the 
public comment period closes. Alternatively, you may submit comments or 
recommendations by mail to: Attention: Wind Energy Guidelines; Division 
of Fisheries and Habitat Conservation; U.S. Fish and Wildlife Service; 
4401 North Fairfax Drive, Mail Stop 4107; Arlington, VA 22203-1610.

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, we are charged with implementing 
statues including the Endangered Species Act, the Migratory Bird Treaty 
Act, and the Bald and Golden Eagle Protection Act. 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 
energy facilities, including wind energy. The Service supports 
renewable energy development that is compatible with fish and wildlife 
conservation.

[[Page 9591]]

    These draft Guidelines provide recommendations that are intended 
to:
    (1) Promote compliance with relevant wildlife laws and statutes;
    (2) Encourage scientifically rigorous survey, monitoring, 
assessment, and research designs proportionate to the risk to affected 
species;
    (3) Produce potentially comparable data across the Nation;
    (4) Avoid, minimize, and/or compensate for potential adverse 
effects on fish, wildlife and their habitats; and,
    (5) Improve the ability to predict and resolve effects locally, 
regionally, and nationally.
    The Service encourages project proponents to use the process 
described in these draft voluntary Land-based Wind Energy Guidelines 
(draft Guidelines) to address risks to fish and wildlife resources. The 
Service anticipates that these draft Guidelines, when used in concert 
with the appropriate regulatory tools and other existing policies, will 
provide the best practical approach for conservation of species of 
Federal trust responsibility. The Service will initiate a peer review 
of the draft Guidelines during the public comment period.

Background

    In July 2003, the Service released for public comment a set of 
voluntary, interim guidelines for land-based, wind energy projects to 
assist developers in avoiding, minimizing and/or compensating for 
effects to fish, wildlife, and their habitats related to land-based, 
wind energy facilities. Following a 2-year public comment period, and 
receipt of 25 public comments for the record, in March 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. Appx 2). 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. The Service convened an 
internal working group representing several Service programs to review 
the Committee Recommendations and used the Recommendations as a basis 
to develop the Service's draft wind energy Guidelines.
    The draft voluntary Guidelines describe the information needed to 
identify, assess, mitigate, and monitor the potential adverse effects 
of wind energy projects on fish, wildlife, plants and their habitats, 
using a consistent and predictable approach, while providing 
flexibility to accommodate the unique circumstances of each project. 
The framework within the draft Guidelines is intended to standardize 
methods and metrics, resulting in greater consistency of information, 
and aid in understanding future effects of these projects. The 
framework also helps developers understand how to avoid or minimize 
effects to certain species, which is important for compliance with a 
number of laws, including: the Migratory Bird Treaty Act (MBTA; 16 
U.S.C. 703-711), the Bald and Golden Eagle Protection Act (BGEPA or 
Eagle Act; 16 U.S.C. 668-668d), and the Endangered Species Act (ESA; 16 
U.S.C. 1531 et seq.).
    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 fish, wildlife, 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.
    These draft Guidelines are not intended nor shall they be construed 
to limit or preclude the Service from exercising its authority under 
any law, statute, or regulation; to limit or preclude the Service from 
taking enforcement action against any individual, company, or agency; 
or to relieve any individual, company, or agency of its obligations to 
comply with any applicable Federal, State, Tribal, or local laws, 
statutes, or regulations. The methods described in the draft Guidelines 
are intended to provide information for assessment of effects, as well 
as information to guide the creation of avoidance, minimization, and 
compensatory measures. Developers that use and follow the draft 
Guidelines also demonstrate a good-faith effort to develop and operate 
projects consistent with the intent of local, Tribal, State, and 
Federal laws. The Service will regard such voluntary adherence and 
communication as evidence of due care with respect to avoiding, 
minimizing, and mitigating significant adverse impacts to species 
protected under the MBTA and BGEPA.

Comparison of Committee Recommendations With the Resulting Draft 
Guidelines

    The responsibility of the Service is to protect and conserve fish, 
wildlife, and their habitat (fish and wildlife). With the development 
of these draft Guidelines, the Service is providing a clear and readily 
usable path for the protection and conservation of fish and wildlife. 
Although voluntary, the Service hopes developers will utilize the final 
Guidelines to reduce the impacts wind energy facilities can have on 
fish and wildlife, while enabling the Nation to increase its renewable 
energy portfolio. The Guidelines encourage the wind industry to 
coordinate early and often with the Service to avoid, minimize, and/or 
compensate for potential adverse effects on fish, wildlife and their 
habitats.
    As the Service developed these draft Guidelines based on the 
Committee Recommendations it modified, accentuated, and reduced some 
sections. The Department has co-equal responsibilities to promote 
sustainable renewable energy development and conserve wildlife. In the 
draft Guidelines, the Service addresses issues of utmost importance to 
meet our conservation goals and conform to statutes, regulations, and 
policies. The following is an overview of some of the differences 
between the Recommendations and the draft Guidelines.
    Study Duration and Intensity: The Committee Recommendations did not 
mention specific study duration. The draft Guidelines recommend 3 years 
for pre-construction studies and 2 years minimum for post-construction 
studies because these timelines should be of sufficient duration and 
intensity to ensure adequate data are collected to accurately 
characterize wildlife use of the area.
    Decision Process: The Committee Recommendations noted that the 
developer makes key decisions. The draft Guidelines recommend that the 
developer coordinate early and often with the Service when making 
decisions about when and whether to proceed to the next tier to gain 
joint understanding of data analysis and project planning.
    Implementation: The Committee recommended that the Service delay 
implementation of the Guidelines for 24 months to account for projects 
that are in planning or under construction and to have an opportunity 
for Service and wind industry personnel to learn about them. The draft 
Guidelines accommodate projects that are in various stages of 
development, from

[[Page 9592]]

early planning to operational. The Service has committed to developing 
and providing training to practitioners on the final Guidelines to 
assure uniform interpretation.
    Adverse Effect: The Committee Recommendations use a threshold of 
``significant adverse effect'' for those impacts that need to be 
studied or addressed. The draft Guidelines removed ``significant'' from 
the phrase. Because the Service intends to use the term in a manner 
similar to that described in the Committee Recommendations, the 
inclusion of the word ``significant'' would be redundant.
    Use of Project Descriptors and Other Terms: The Committee 
Recommendations used the terms ``area of interest,'' ``project area,'' 
``project site,'' ``species of concern, and species of fragmentation 
concern.'' The draft Guidelines modified the terms to be consistent 
with Service practices and policies. The terms are now ``area of 
influence, project site, extent of direct effects, extent of indirect 
effects, affected species, and species sensitive to habitat 
fragmentation.''
    Adaptive Management: The Committee Recommendations used Adaptive 
Management concepts from a variety of sources. The Service uses the 
Department of the Interior Adaptive Management Handbook.
    Noise: The Committee Recommendations do not include a discussion of 
noise impacts to wildlife. The draft Guidelines include a discussion on 
noise and incorporates noise in the tier questions based on comments 
and recommendations received from other Federal agencies.
    Habitat Fragmentation: The Committee Recommendations include an 
extensive discussion on the effects of habitat fragmentation on sage 
grouse and prairie chickens. The draft Guidelines expanded the 
discussion to include habitat loss and degradation and moved the sage-
grouse-specific discussion to the Service Wind Energy Web site. 
Extensive species-specific references were moved to the Web site to 
focus on process.
    Tiers 4 and 5: The Committee Recommendations separate post-
construction fatality studies into Tier 4 and habitat studies into Tier 
5. The draft Guidelines expanded Tier 4 to assure comprehensive 
fatality monitoring (Tier 4a) and monitoring other effects, including 
habitat (Tier 4b). We also included in Tier 5 research to address gaps 
in knowledge, evaluate the effectiveness of best management practices, 
address questions that exist across multiple projects, and as a 
component of an adaptive management program.
    Mitigation: The Committee Recommendations included a brief 
discussion of general mitigation considerations. The draft Guidelines 
include an expanded discussion on mitigation under the Migratory Bird 
Treaty Act and Bald and Golden Eagle Protection Act because mitigation 
may be an important component of site planning for many projects.
    Conflict Resolution: The Committee Recommendations identified a 
specific individual in the Headquarters Office to respond to conflicts. 
The draft Guidelines modified this to the standard chain of command for 
the Service because Service policies call for resolving issues at the 
lowest appropriate level.
    Legal White Paper: The Committee Recommendations included a Legal 
White Paper that discussed statutes, as well as various options such as 
``bird letters,'' migratory bird permits, conservation banking and 
other ideas. The draft Guidelines include a discussion of the Service's 
legal authorities and statutes.

Web Site

    The Service has established a public Web site that will provide 
support to developers and stakeholders as they use the draft 
Guidelines. Information on the Web site will be reviewed periodically 
to ensure that it remains current and applicable. The Web site 
currently includes: the Committee Recommendations, the Service's 2003 
interim wind guidelines, and supporting documents for the draft 
Guidelines. Future additions to the Web site will include: 
recommendations on risk assessment tools, survey and monitoring 
protocols, research designs, applicable policies and regulations, best 
management practices, best available technologies, recommendations for 
reducing adverse effects; map-based risk-assessment products, 
information on buffers and noise effects, and other pertinent 
literature.
    The Web site is still being developed, but the Service welcomes 
public review and comment of its progress: visit https://www.fws.gov/windenergy to review and comment. We also welcome comments on how to 
improve the applicability of this Web site.

Request for Public Comments

    We request comments on the draft Guidelines. We are particularly 
seeking comments regarding the cost effectiveness of these draft 
Guidelines for all wind turbines, including community scale operations. 
All comments we receive by the date specified above in DATES will be 
considered during preparation of the final guidelines. We prefer to 
receive comments via e-mail, but you may alternately submit your 
comments by any one of the other methods mentioned above. If you submit 
your comment by e-mail, please include ``Draft Land-Based Wind Energy 
Guidelines Comments'' in the subject line of your message, and your 
full name and return U.S. mailing address in the body of your message. 
Please note that e-mail address windenergy@fws.gov will be closed when 
the public comment period closes. We will take into consideration the 
relevant comments, suggestions, or objections that we receive by the 
comment due date indicated above in DATES. These comments, suggestions, 
or objections, and any additional information we received, may lead us 
to adopt final guidelines that differ from these draft Guidelines. 
Comments merely stating support of or opposition to the draft 
Guidelines without providing supporting data or rationale are not as 
helpful.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. You can ask us 
in your comment to withhold your personal identifying information from 
public review, but we cannot guarantee that we will be able to do so.
    As published elsewhere in today's Federal Register, the Service is 
simultaneously soliciting comments on the draft Eagle Conservation Plan 
Guidance.

    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: January 31, 2011.
Rowan Gould,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-3699 Filed 2-17-11; 8:45 am]
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