Fisheries and Habitat Conservation and Migratory Birds Programs; Final Land-Based Wind Energy Guidelines, 17496-17498 [2012-7011]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[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 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 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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