Five years in the making, the 82-page document took effect upon its release and is intended to broadly mitigate impacts on wildlife and habitat - while taking particular aim at bird protection. It replaces a 2003 version and represents the collaboration of a federal advisory committee of stakeholders from the wind industry, government, tribes and environmental non-governmental organisations (ENGOs).
The guidelines are intended to work in concert with the Endangered Species Act (ESA), the Migratory Bird Treaty Act and a forthcoming document specific to eagles, which is expected this year. Developers that follow the parameters of the guidelines are unlikely to face legal prosecution for wildlife mortalities, but it remains to be seen how stringent the FWS will be when projects that have not followed the guidelines result in mortalities.
"FWS included language on enforcement discretion basically saying that, if you adhere to the guidelines, you're going to be a low priority for enforcement," said Tom Vinson, director of regulatory affairs for the American Wind Energy Association (AWEA).
The document sets out a five-tiered approach to mitigating and managing the impact of wind farms on wildlife. The first three pre-construction tiers involve preliminary site evaluation, determining the probability of significant wildlife impacts and quantitative field studies to decide whether to develop or abandon a project.
The fourth tier is a post-construction study that assesses the correctness of the pre-construction evaluation. The fifth tier - likely not necessary for most projects - will be used to determine why implemented mitigation measures were inadequate. Additional guidance for operation, repowering and decommissioning is also detailed.Many of the document's key aspects are left up to wind developers, including the ability to pass from one tier to the next and the decision to begin construction. Developers that move past tiers before release of the guidelines will not have to revisit steps.
Implementation uncertainty
"But the developers won't necessarily know, just from reading the document, exactly what FWS is going to expect," Vinson said. "So having discussions and seeing how things are implemented going forward will be important in clarifying what the words on the page mean."
FWS has committed to begin training within six months of the March release. "The current plan is to train all stakeholders in one forum," Vinson said. "So you won't have separate training for Fish and Wildlife staff and a separate one for industry and a separate one for the ENGOs."
While many national conservation groups are on board with the process and participated on the federal advisory panel that formed in 2007, others are critical of the voluntary approach. "We don't see how you can enforce voluntary, optional guidelines," said Bob Johns, spokesman for the American Bird Conservancy. "We haven't seen evidence from the wind industry that voluntary guidelines are going to ensure a reasonable level of bird safety."
But the industry and its proponents believe that voluntary guidelines ensure best practice by protecting species that aren't listed under the ESA or covered by other federal wildlife laws. "The conservation benefit is larger if you go with voluntary, because the industry is agreeing to do more than we're statutorily required to do," Vinson said.
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