From our colleague Eric Martin:
After over two years of work, the federal Wind Turbine Guidelines Advisory Committee (“Committee”) recently released its final policy recommendations on how wind energy developers and operators can best assess and prevent adverse impacts to wildlife. Comprised of government, environmental, and wind industry stakeholders, the Committee recommends a five-tier approach that begins with the preliminary evaluation of potential wind energy sites and continues through post-construction studies. These consensus recommendations are designed to cover all elements of wind energy facilities—from access roads through transmission line connections. Following Secretary of the Interior Ken Salazar’s review, the U.S. Fish and Wildlife Service (“USFWS”) will use the Committee’s recommendations as the basis for new guidelines replacing the problematic interim guidance that the USFWS had issued back in 2003.
Compliance with the voluntary guidelines could have significant legal benefits for developers and operators. Perhaps most importantly, in the event of death or injury to species protected under the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act, the Committee recommends that the USFWS exercise its enforcement discretion by not prosecuting developers and operators that have complied with its recommendations. The Committee has identified the implementation of company- or project-specific Avian and Bat Protection Plans as one way to evidence compliance. This alone, however, would not shield developers and operators from liability for the “take” of species protected by the Endangered Species Act.
The Committee’s recommendations are available here. For more information on these recommendations and their potential effects, please contact: