WindTurbineGuidelinesAdvisoryCommitteeEstablishedundertheFederalAdvisoryCommitteeAct October26,2007COMMI7TEEMEMBERS:March4,2010TaberAllisonMassachusettsAudubonSocietyDickAndersoncalUbrniaEnergy commissionTo:SecretaryoftheInteriorEdArnettBatConservatjonInternationalThrough:ActingDirector,U.S.FishandWildlifeServiceMichaelAzekaAESWindGenerationG.ThomasBancroftFrom:Chairman,WindTurbineGuidelinesAdvisoryCommitteeNationalAudubonSocietyKathyBoydstonTexasParksand WildlifeDepartmentAttachedpleasefindtheWindTurbineGuidelinesAdvisoryCommitteeReneBraudHorizonWindEnergy(Committee)recommendations.In2007,theCommitteewasScottDarlingestablishedundertheFederalAdvisoryCommitteeAct,toprovideVermontFish&WildlifeDepartment.adviceandrecommendationsondevelopingeffectivemeasurestoA7ejJelachWildlfavoidorminimizeimpactstowildlifeandtheirhabitatsrelatedto landSamEnfleldbasedwindenergyfacilities. OurCommitteeiscomprisedof22MAPRoyalty,Inc.membersrepresenting the federal,state,andtribal governments,WashingtonStateDepartmentofFish&wildlifeconservation organizations,andthewind industry.WildlifeJeriLawrenceWearepleasedtoprovide theserecommendations.WehavedividedBlackfeetNationourreportintotwosections:policyrecommendations,andSteveLindenberg. ..US.DepartmentofEnergyrecommendedvoluntaryguidelinesforwind sitingandoperationstoRobManesavoidorminimizepotentialimpactstowildlifeandhabitatfromwindTheNatureGonservancyenergydevelopment.WeappreciateyourconsiderationoftheseWinifredPerkinsNextEra EnergyResourcesrecommendations.SteveQuarlesCrowell&Maring,LLPTheCommitteehasworkeddiligentlytounderstandeachother’sRichRayhillinterestsandbelievesthisproductishighlyprofessionalandRidgelineEnergyRobertRobelscientificallycredible.ThemembersremaincommittedtofurtherassistKansasStateUniversityinimplementingguidelinesthatwillachieve minimalimpactstowildlifeKeithSexsonandhabitatswhileprovidingtheflexibilitytodevelopthenation’sAssociationofFishandWildlifeAgencieswindenergyresources.PleasecontactDaveStout,CommitteeMarkSinclair.... .CleanEnergyGroupChairperson, at703-358-2161,ifyourequireanyadditionalinformationDaveStoutabouttheCommittee’srecommendations.U.S.Fish&WildflfeServicePatrickTraylorHogan&Hartson,LLP~~~WindTurbineGuidelinesAdvisoryCommitteeRecommendationsCover Letter

Wind Turbine Guidelines Advisory Committee RecommendationsCover Letter

Wind Turbine Guidelines Advisory Committee RecommendationsCover Letter

Wind Turbine Guidelines Advisory Committee Recommendations

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P r e a m b l e t o t h e C o m m i t t e e R e c o m m e n d a t i o n s





## C o m m i t t e e P o l i c y R e c o m m e n d a t i o n s





## C o m m i t t e e R e c o m m e n d e d G u i d e l i n e s

Submitted to the Secretary of the Interior

March 4, 2010

By the Wind Turbine Guidelines Advisory Committee

Wind Turbine Guidelines Advisory Committee RecommendationsDedication



## Andy Linehan, formerly with Iberdrola Renewables, was a

Committee Member from October 2007 to December 2009. The

Committee recognizes Andy's contributions to the Committee's

Guidelines and his tireless efforts to build agreement on many

issues related to wind and wildlife. In honor of Andy's

leadership and inspiration, this agreement is dedicated in his

memory.

Wind Turbine Guidelines Advisory Committee Recommendations

### U.S. Fish and Wildlife Service

Wind Turbine Guidelines Advisory Committee



## O v e r v i e w T a b l e o f C o n t e n t s

Executive Summary

............................................................................................ i

Section I. Preamble to the Committee Recommendations

........................... vii

Section II. Committee Policy Recommendations

............................................ xi

Section III. Committee Recommended Guidelines............................................1

This document is a recommendation to the

Secretary of the Interior. As such, any legal

conclusions in these recommendations or its

attachments do not necessarily reflect the

legal position of the United States.

Wind Turbine Guidelines Advisory Committee RecommendationsWind Turbine Guidelines Advisory Committee Recommendations

## E E x

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The Wind Turbine Guidelines Advisory Committee (Committee) was established in 2007

under the Federal Advisory Committee Act to provide advice and recommendations to the

Secretary of the Interior (Secretary) on developing effective measures to avoid or minimize

impacts to wildlife and their habitats related to land

‐ based wind energy projects. The

USFWS chairs the Committee, which includes 22 members representing governments,

wildlife conservation organizations, and the wind industry.

This Committee’s recommendations to the Secretary (Guidelines) contain the Committee’s

advice regarding policy issues, as well as science

‐ based technical advice on how best to

assess and prevent adverse impacts to wildlife and their habitats while allowing for the

development of the Nation’s wind energy resources. The Committee recognizes that the

environmentally

‐ friendly development of wind energy and the protection of the Nation’s

natural resources are priorities for both the Administration and the American people. For

example, on March 11, 2009, the Secretary issued Executive Order 3285, making the

production and delivery of renewable energy a priority for the Department of the Interior.

The Committee therefore developed a set of premises and principles that recognize the

delicate balance between wind resource development and the protection of wildlife and

habitats. Those principles guided the Committee’s discussions and are the basis upon which

its advice is founded.

The Committee recognizes that these Guidelines require new activities and increased effort

by the USFWS. The Committee urges that the necessary resources to fulfill these

responsibilities be made available to the USFWS. In addition to these new USFWS activities,

the Committee recognizes that wind energy developers who voluntarily adhere to these

Guidelines will be undertaking a robust level of wildlife impact analysis, and a shared

responsibility with USFWS to ensure that the scientific standards of the Guidelines are

upheld and used to make wise development decisions. To further demonstrate a

commitment to wildlife conservation, the Committee recognizes and encourages the wind

energy industry’s participation and support of partnerships such as the American Wind

Wildlife Institute, National Wind Coordinating Collaborative, Grassland Shrub

‐ Steppe Species

Collaborative, and the Bats and Wind Energy Cooperative to promote needed research

about wildlife and wind energy interactions. The Committee encourages USFWS to seek

partnerships among the wind energy industry, federal, state, and tribal governments, and

conservation organizations, to continue the relationships formed and strengthened through

this process, and to assist in fulfilling new and existing responsibilities.

The Committee’s Guidelines are founded upon a “tiered approach” for assessing potential

impacts to wildlife and their habitats. The tiered approach is an iterative decision

‐ making

process for collecting information in increasing detail, quantifying the possible risks of

proposed wind energy projects to wildlife and habitats, and evaluating those risks to make

siting, construction, and operation decisions. Subsequent tiers refine and build upon issues

Wind Turbine Guidelines Advisory Committee RecommendationsExecutive Summary

raised and efforts undertaken in previous tiers. At each tier, a set of questions is provided to

help the developer identify potential problems associated with each phase of a project, and

to guide its decision process. The tiered approach is designed to assess the risks of project

development by formulating questions that relate to site

‐ specific conditions regarding

potential species and habitat impacts. The tiers are outlined briefly as:

 Tier 1

– Preliminary evaluation or screening of sites (landscape

‐ level screening of

possible project sites)

 Tier 2

– Site characterization (broad characterization of one or more potential project

sites)

 Tier 3

– Field studies to document site wildlife conditions and predict project impacts

(site

‐ specific assessments at the proposed project site)

 Tier 4

– Post

‐ construction fatality studies (to evaluate direct fatality impacts)

 Tier 5

– Other post

‐ construction studies (to evaluate direct and indirect effects of

adverse habitat impacts, and assess how they may be addressed)

This framework allows the developer to determine whether he or she has sufficient

information, whether and/or how to proceed with development of a project, or whether

additional information gathered at a subsequent tier is necessary to make those decisions.

The Committee agrees that incentives should be available to those developers who

demonstrate due care by voluntarily implementing the tiered approach and through

coordination with USFWS early and throughout the tiered process.

The Guidelines provide best

‐ available methods and metrics to help answer the questions

posed at each tier. The Committee recognizes that substantial variability exists among

project sites and recommends methods and metrics that should be applied with the

flexibility to address the varied issues that may occur on a site

‐ by

‐ site basis, while

maintaining consistency in the overall tiered process. As research expands and provides

new information, these methods and metrics will be updated to reflect current science.

Other elements in the Guidelines include a full discussion of mitigation policies and

principles; the applicability of adaptive management, including the potential use of

operational modifications; and considerations related to cumulative impacts, habitat

fragmentation, and landscape

‐ level analysis. Finally, the Guidelines discuss the need for

additional research and collaboration related to potential wind energy

‐ wildlife impacts, and

offer some alternatives for accomplishing the needed research.

The Committee also wishes to present policy advice germane to its Charter but separate

from its recommended Guidelines. First, the Committee unanimously recommends that the

Secretary adopt the Committee’s Guidelines to evaluate and minimize the potential risk of

Wind Turbine Guidelines Advisory Committee Recommendations iiExecutive Summary

wind energy projects to wildlife and habitats. Additional policy recommendations support

the implementation of the Guidelines, including that the Secretary:

 Develop landscape

‐ level tools and provide analysis to assist in implementation of the

Guidelines.

 Provide and/or support adequate, meaningful incentives for industry’s voluntary

adoption of the Guidelines.

 Advance the use, cooperation, and effective implementation of the Guidelines.

 Assure that the USFWS has an adequate budget and staff resources to implement

the Guidelines as necessary, including training of Regional and Field staff and other

interested stakeholders.

 When making policy decisions, address both the threat to birds and other wildlife

from climate change, and the effects of other stressors.

 Work with other federal and tribal agencies, stakeholders, and states to develop a

national research plan that identifies and implements research priorities to reduce

impacts to wildlife resources while allowing wind energy development.

 Revise the Guidelines regularly.

 Improve DOI’s capability to assess cumulative impacts by developing data that can be

used to conduct regional or landscape level analysis.

The Committee believes that the recommended Guidelines reflect a comprehensive and

user

‐ friendly wildlife and habitat risk assessment and decision

‐ making tool that supports DOI

priorities related to renewable energy development, federal, state and tribal trust

responsibilities, developer cost and confidentiality concerns, and the needs of federal

‐ or

state

‐ listed wildlife and habitats, without creating new regulations. The policy

recommendations outlined above are offered to promote and support the successful

voluntary adoption and implementation of the recommended Guidelines.

Wind Turbine Guidelines Advisory Committee Recommendations iiiWind Turbine Guidelines Advisory Committee Recommendations iv

## U.S. Fish and Wildlife Service

Wind Turbine Guidelines Advisory Committee



# P r e a m b l e a n d

P o l i c y R e c o m m e n d a t i o n s

March 4, 2010

Wind Turbine Guidelines Advisory Committee Recommendations vWind Turbine Guidelines Advisory Committee Recommendations vi

## I. r P e l b e the Commi the Commi e Recommenda e Recommenda ons am to tte ti

A. Establishment of Wind Turbine Guidelines Advisory Committee

In response to interest in the development of wind energy in the United States, the U.S. Fish

and Wildlife Service (USFWS) in July 2003 released for public comment a set of voluntary,

interim guidelines for developing wind energy projects. After USFWS reviewed the public

comments, the Secretary of the Interior (Secretary) established a Federal Advisory

Committee to provide recommendations to avoid or minimize impacts to wildlife and their

habitats related to land

‐ based wind energy facilities. In March of 2007, USFWS announced

the establishment of the Wind Turbine Guidelines Advisory Committee (the Committee) in

the Federal Register

.

Pursuant to the requirements of the Federal Advisory Committee Act, the Committee

Charter was signed by the Secretary on October 26, 2007, and was renewed on October 26,

2009, effective for two years. The Charter states the Committee’s scope and objective:

“The Committee will provide advice and recommendations to the Secretary of

the Interior (Secretary) on developing effective measures to avoid or minimize

impacts to wildlife and their habitats related to land

‐ based wind energy

facilities.”

The attached Recommended Guidelines (Guidelines) are the result of more than two years

of deliberation by the Committee.



### Committee Members

Committee Members were carefully selected by the Secretary from a large pool of

candidates to represent a balance of stakeholder groups with the necessary policy,

technical, and scientific expertise to address minimization of wildlife impacts associated with

the development of the Nation’s wind energy potential:

Taber Allison, Massachusetts Audubon Society

Dick Anderson, California Energy Commission

Ed Arnett, Bat Conservation International

Michael Azeka, AES Wind Generation

G. Thomas Bancroft, National Audubon Society

Kathy Boydston, Texas Parks and Wildlife Department

René Braud, Horizon Wind Energy

Scott Darling, Vermont Fish & Wildlife Department

Aimee Delach, Defenders of Wildlife

Sam Enfield, MAP Royalty

Greg Hueckel, Washington State Department of Fish & Wildlife

Wind Turbine Guidelines Advisory Committee RecommendationsPreamble

Jeri Lawrence, Blackfeet Nation

Steve Lindenberg, U.S. Department of Energy

Rob Manes, The Nature Conservancy

Winifred Perkins, NextEra Energy

Steve Quarles, Crowell & Moring, LLP

Rich Rayhill, Ridgeline Energy

Robert Robel, Kansas State University

Keith Sexson, Association of Fish and Wildlife Agencies

Mark Sinclair, Clean Energy Group

Dave Stout, U.S. Fish & Wildlife Service

Patrick Traylor, Hogan & Hartson, LLP



### B. Background on Context and Need for the Recommended Guidelines

Wind development in the United States broke all previous records in 2009, with close to

10,000 megawatts (MW) of new generating capacity installed. 1 This rate of development is

expected to continue, and perhaps accelerate, as United States energy policy emphasizes

independence from foreign oil and reduction of carbon emissions. USFWS and the

Committee Members recognize that wind

‐ generated electrical energy is renewable, and is

considered to be a generally environmentally

‐ friendly technology.

Wind energy produces electricity without air pollution, greenhouse gas emissions, water

consumption, mining, drilling, refining, waste storage and other problems associated with

many traditional forms of energy generation. Wind energy has recently received increased

attention because it is a domestic source of energy, and because carbon dioxide emissions

from fossil fuel combustion is the leading cause of anthropogenic climate change, which is

likely to have serious negative impacts on ecosystems and wildlife. 2 The U.S. Department of

Energy (DOE) reports that a single 1.5 MW wind turbine displaces 2700 metric tons of CO

2

per year compared with the current U.S. average utility fuel mix. 3 In some locations, wind

prevents urban and suburban encroachment into traditional greenbelts. Given these

advantages, wind is expected to play an increasingly important role in meeting the nation's

energy goals in the coming years.

Nevertheless, as the United States moves to expand wind energy production, it also must

maintain and protect the nation's wildlife and habitats, which wind energy production can

negatively affect. As with all responsible energy development, wind energy projects should

adhere to high standards for environmental protection. With proper diligence paid to siting,

operations, and management of projects, it is possible to mitigate for significant adverse

impacts to wildlife and their habitats. Mitigation is defined in this document as avoiding or

1 http://www.awea.org/publications/reports/4Q09.pdf

2 Intergovernmental Panel on Climate Change 2007

3 20% Wind Energy by 2030 (2008).

Wind Turbine Guidelines Advisory Committee Recommendations: Preamble viiiPreamble

minimizing significant adverse impacts, and when appropriate, compensating for

unavoidable significant adverse impacts, as determined through the tiered approach

described in the recommended Guidelines (Section III attached).



### C. Committee Premises and Guiding Principles

Committee Premises

1. The Committee acknowledges the USFWS definition of wildlife (see Appendix A:

Glossary). The Committee recognizes that different species and species groups

have different levels of protection under tribal authority and federal and state

wildlife statutes (see Appendix B: Legal White Paper).

It is the Committee’s intention to identify, evaluate and recommend approaches

to assessing risk and impacts to wildlife associated with wind energy

development that are useful regardless of the regulatory status of any particular

species, and that are particularly focused on those species most likely to be

affected by wind energy development.

2. The Committee recognizes that, among different wind energy projects, there will

be varying degrees of potential impact to wildlife as well as varying degrees of

certainty associated with the assessments of that potential impact. Thus, varying

levels of effort will be appropriate in assessing the risk of potential projects and

determining how or whether the projects are developed.

3. The Committee recognizes that it is possible and essential to mitigate negative

impacts on wildlife populations and habitats while balancing expected impacts

with the costs of undertaking necessary studies and monitoring.



### Committee Guiding Principles

The Guidelines should:

1. Provide a consistent methodology for conducting pre

‐ construction risk

assessments and post

‐ construction impact assessments to guide siting decisions

by developers and agencies.

2. Encourage communication and coordination between the developer and relevant

state and federal agencies during all phases of wind energy project development.

3. Provide mechanisms to encourage the adoption and use of the Guidelines by all

federal agencies, as well as the wind energy industry, while recognizing the

primary role of the lead agency in coordinating specific project assessments.

Wind Turbine Guidelines Advisory Committee Recommendations: Preamble ixPreamble

4. Complement state and tribal efforts to address wind/wildlife interactions and

provide a voluntary means for these entities to coordinate and standardize

review of wind projects with the USFWS.

5. Provide a clear and consistent approach that increases predictability and reduces

the risk of liability exposure under federal wildlife laws.

6. Provide sufficient flexibility to accommodate the diverse geographic and habitat

features of different wind development sites.

7. Present mechanisms for determining compensatory mitigation, when

appropriate, in the event of unforeseen impacts to wildlife during construction or

operation of a wind energy project.

8. Define scientifically rigorous and cost

‐ effective study designs that improve the

ability to predict direct and indirect wildlife impacts locally and regionally.

9. Include a formal mechanism for revision in order to incorporate experience,

technological improvements, and scientific advances that reduce uncertainty in

the interactions between wind energy and wildlife.

Wind Turbine Guidelines Advisory Committee Recommendations: Preamble x

## I I

. C o m m i t t e e P o l i c y R e c o m m e n d a t i o n s

A. Adoption and Use of the Guidelines

Adopt and consistently implement the voluntary Guidelines recommended in this

document. The Committee gave considerable attention to the production of a suggested

protocol for wildlife assessment and siting decisions at wind energy projects. This protocol,

described in detail in Chapter Three of this document, uses a tiered approach to evaluate,

predict, and minimize the risk of potential wind energy projects to wildlife and habitat, and

to assess and, as appropriate, provide compensatory mitigation for significant adverse post

‐

construction impacts. The Committee believes that the final product reflects a

comprehensive and user

‐ friendly risk assessment and decision

‐ making tool that supports

Department of the Interior (DOI) priorities with respect to renewable energy development,

federal and state trust responsibilities, developer cost and confidentiality concerns, and the

needs of federal or state listed wildlife and habitats, without creating new regulations. The

Committee recommends that the Secretary of the Interior (Secretary) direct the U.S. Fish

and Wildlife Service (USFWS) to promptly adopt the recommended voluntary Guidelines

developed by the Committee.

In adopting and implementing the Guidelines, use the premises and principles adopted by

the Committee, as set forth in the Preamble.



### B. Tools and Support for Implementation

Develop landscape tools and provide analysis to assist in implementation of the Guidelines.

The Committee recommends that the Secretary instruct USFWS, in consultation with the

U.S. Geological Survey and state agencies, to assemble and maintain a comprehensive

national scale landscape database based on scientifically credible sources. This database will

assist in identifying and assessing development risks to ecosystems, large

‐ scale habitats,

and migratory and resident species that rely on large

‐ landscape or specialized habitats. In

developing this database, the USFWS should consult and assess existing and on

‐ going

landscape analysis and mapping efforts focused on renewable energy, including, but not

limited to: the California Renewable Energy Transmission Initiative, Western Governors’

Association Wildlife Habitat Council, The Nature Conservancy, National Audubon Society,

and American Wind and Wildlife Institute activities. Such a database should have broad

applicability to help guide decisions regarding other types of development, including other

energy sources. However, the Committee stresses that the lack of landscape

‐ level tools

should not in any way delay the use and application of the recommended Guidelines.

Provide and/or support adequate, meaningful incentives for industry’s voluntary adoption

of the Guidelines

. The Committee has explored a suite of incentives to encourage universal

adoption of the recommended voluntary Guidelines. The Committee recommends that DOI

implement incentives within DOI’s purview simultaneously with adoption and

implementation of the Guidelines. The Committee also recommends that DOI engage

Wind Turbine Guidelines Advisory Committee RecommendationsPolicy Recommendations

constructively to support potential incentives that are outside the purview of DOI (for

instance, those that would require statutory changes) and encourage their timely adoption

and implementation.

Advance the use, cooperation, and effective implementation of the Guidelines. Coordinate

with DOI and other federal agencies, Tribes, states, wind developers and stakeholders to

maximize the use and effectiveness of the Guidelines. To do this, the Committee

recommends the Secretary consider the following:

• Encourage collaboration and coordination with other federal and state agencies and

Tribes to ensure timely and consistent review of wind energy projects and resolve

conflicts among and within agencies.

• Develop best management practices based on the Guidelines.

• Promote use of the Guidelines by federal and state agencies, as well as by the private

sector.

• Provide training to USFWS and other federal or tribal agency field personnel on

effective use of the Guidelines.

• Advance the involvement and cooperation of non

‐ governmental organizations with

an interest in improving siting and compensatory mitigation for wind energy projects.

Assure that the USFWS has an adequate budget and staff resources to implement the

Guidelines as necessary, including training of Regional and Field staff and other interested

stakeholders.

When making policy decisions, address both the threat to birds and other wildlife from

climate change, and the effects of other stressors. When conducting its review of wind

energy development pursuant to the Guidelines, the Secretary is encouraged to make

management, policy, project

‐ specific assessment, siting, and mitigation decisions with

appropriate consideration of wind energy's air pollution, greenhouse gas, water

consumption, and other benefits. According to the USFWS Climate Change Strategic Plan

(Strategic Plan), climate change is the greatest challenge USFWS has ever faced in

conserving fish, wildlife and their habitats. The Strategic Plan outlines a joint commitment to

mitigation 4 (reducing the sources or enhancing the sinks of carbon dioxide) and adaptation 4

(management to reduce the impacts of climate change on fish, wildlife and habitats). The

Committee urges the Secretary to keep both of the following commitments in mind when

making management decisions related to wind development: recognizing both the

important role that wind energy, as a carbon

‐ free energy source, will play in climate change

mitigation 4

, while also delivering wind energy projects on the landscape in a manner that

supports wildlife adaptation 4 to climate change, namely by minimizing wind energy

development's potential to itself be a non

‐ climate stressor.

4 As defined by the Intergovernmental Panel on Climate Change (IPCC).

Wind Turbine Guidelines Advisory Committee Recommendations: Policy Recommendations xiiPolicy Recommendations



### C. Future Application

Work with other federal and tribal agencies, stakeholders, and states to develop a national

research plan that identifies and implements research priorities to reduce impacts to

wildlife resources while allowing wind energy development. Research should be

conducted collaboratively, wherever possible, and should include appropriate stakeholders

and peer review.

Revise the Guidelines. Review and revise the Guidelines, as justified, at least once every five

years to incorporate new knowledge on wildlife interactions with wind energy and the

rapidly advancing technology of commercialized wind energy production. The Secretary

should use the Committee’s premises and principles to assist in revisions of the Guidelines.

DOI should improve its capability to assess cumulative impacts by working with the USFWS

Regions to:

• Review the range of development

‐ related significant adverse impacts.

• Review species of concern and/or their habitats within the landscape at the most risk

of significant impacts from wind development, in conjunction with other reasonably

foreseeable significant adverse impacts.

• Develop data that can be used to conduct regional or landscape level analysis.

The product of regional analyses of cumulative impacts should be available to inform Tier 1

preliminary site assessment or Tier 2 site characterization and may be useful for designing

Tier 3 wildlife surveys. However, the Committee stresses that the lack of tools for cumulative

impact analysis should not in any way delay the use and application of the recommended

Guidelines. 5

5 The Committee also recommends that in developing the scope of this cumulative effects analysis, the USFWS review the

conclusions of the white paper on cumulative effects analysis developed by the USFWS, Oregon Department of Fish and

Wildlife, and other stakeholders during the development of the Oregon Columbia Ecoregion Wind Energy Siting and

Permitting Guidelines (September 29, 2008). The white paper reviewed multistate cumulative effects analyses prepared by

WEST, Inc. in the Pacific Northwest and made recommendations on how such analyses could be more effective.

Recommendations included:

• Collaborative funding and management of regional cumulative effects analysis

• Focus on a limited number of key regional indicator species and habitats most likely to be affected by wind energy

• Studies to better understand the population dynamics of the key indicator species and to develop “impact levels

of concern”

• Development of an action plan for impacts to key species and habitats that are above “threshold of concern”

levels

Wind Turbine Guidelines Advisory Committee Recommendations: Policy Recommendations xiiiWind Turbine Guidelines Advisory Committee Recommendations

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. R e c o m m e n d e d G u i d e l i n e s

Recommendations on developing effective measures

to mitigate impacts to wildlife and their habitats

related to land

‐ based wind energy facilities

Submitted to the Secretary of the Interior

March 4, 2010

By the Wind Turbine Guidelines Advisory Committee

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines

### This document is a recommendation to the

Secretary of the Interior. As such, any legal

conclusions in these recommendations or its

attachments do not necessarily reflect the

legal position of the United States.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines

## A c k n o w l e d g m e n t s

The Chairman would like to note the following individuals who offered their assistance to the

Committee. With an impressively broad range in expertise and interests, their hard work and dedication

contributed to and ensured the success of this process and the quality of the final report:

Brenda Aird, U.S. Department of the Interior

George T. Allen, U.S. Fish and Wildlife Service

John M. Anderson, Jr., BP Wind Energy, N.A.

Bryan Arroyo, U.S. Fish and Wildlife Service

Rose Bacon, Landowner

Lianne Ball, U.S. Geological Survey

Michael Bean, Environmental Defense Fund

Luke Bell, U.S. Fish and Wildlife Service

Robert Blohm, U.S. Fish and Wildlife Service

Ray Brady, Bureau of Land Management

David Brandes, Lafayette College/Hawk Migration

Association of North America

Lisa Brown, U.S. Fish and Wildlife Service

Jim Burruss, Pacificorp, T&D Environmental Services

Cindy Cafaro, U.S. Department of the Interior

Donald A. Carr, Pillsbury, Winthrop, Shaw, & Pittman, LLP

L. Caitlin Coberly, Merlin Environmental, LLC

Karyn Coppinger, Invenergy

Paul Cryan, United States Geological Survey

Eugene Degayner, U.S. Forest Service

Julett Denton, U.S. Forest Service

Jim Eisen, BP Alternative Energy

Michael Erickson, U.S. Fish and Wildlife Service

John J. Fay, U.S. Fish and Wildlife Service

Jerome Ford, U.S. Fish and Wildlife Service

Darryl Francois, Bureau of Indian Affairs

Gary Frazer, U.S. Fish and Wildlife Service

Lyle Friesen, Canadian Wildlife Service, University of

Guelph

Richard Fristik, U.S. Department of Agriculture

Michael Fry, American Bird Conservancy

Kevin Garlick, U.S. Fish and Wildlife Service

Dave Gayer, U.S. Department of the Interior

Greer Goldman, National Audubon Society

Elena Gonzalez, U.S. Department of the Interior

Jeff Gosse, U.S. Fish and Wildlife Service

Robin Gregory, Value Scope Research

Joseph F. Grennan, Renewable Energy Systems Americas

Inc.

Blayne Gunderman, Acciona Energy, N.A.

Deb Hahn, Association of Fish and Wildlife Agencies

Gerard L. Hawkins, Elias, Matz, Tiernan & Herrick, LLP

Doug Holy, USDA

‐ Natural Resources Conservation Service

Benjamin Jesup, U.S. Department of the Interior

Laurie Jodziewicz, American Wind Energy Association

Paul Johnson, USDA Forest Service

Doug Johnson, United States Geological Survey

Christy Johnson

‐ Hughes, U.S. Fish and Wildlife Service

Gina Jones, U.S. Fish and Wildlife Service

Vanessa Kauffman, U.S. Fish and Wildlife Service

Megan Kelhart, U.S. Fish and Wildlife Service Richard Ker, Department of Homeland Security, U.S. Coast

Guard

Warren Lasher, ERCOT

Sheri Lewin, National Mitigation Banking Association

Ed Lewis, U.S. Fish and Wildlife Service

Graham Long, Compass Resource Management

Albert Manville, U.S. Fish and Wildlife Service

Jina Mariani, U.S. Forest Service

Lelaina Marin, National Park Service

Joel Martin, Landowner

Kevin Martin, Acciona

Ned Meister, Texas Farm Bureau

Jo Ann Mills, U.S. Fish and Wildlife Service

Michael Morrison, Texas A&M University

James Mosher, Alliance for the Chesapeake Bay

Marjorie Nelson, U.S. Fish and Wildlife Service

Christopher M. O'Meilia, U.S. Fish and Wildlife Service

Bonnie Ram, Energetics Incorporated

Gil Randell, Hawk Migration Association of North America

Dennis Rankin, U.S. Department of Agriculture

Derek Reiman, Horizon Wind Energy

Clint Riley, U.S. Fish and Wildlife Service

Mary Romero, U.S. Army Corps of Engineers

Jerry Roppe, Iberdrola

Jason Rylander, Defenders of Wildlife

Susan Savitt Schwartz, Consultant (Editor)

Rick Sayers, U.S. Fish and Wildlife Service

Paul Schmidt, U.S. Fish and Wildlife Service

Megan Seymour, U.S. Fish and Wildlife Service

Lynn Sharp, Tetra Tech EC, Inc.

Shayla Simmons, U.S. Department of the Interior

Stephen Simpson, U.S. Department of the Interior

Karin Sinclair, National Renewable Energy Laboratory

Bill Sproul, Landowner

Peggy Stolworthy, Landowner

Shirley Stout

Dale Strickland, Western EcoSystems Technology, Inc.

Tim Sullivan, U.S. Fish and Wildlife Service

Chris Taylor, Element

Edith Thompson, U.S. Fish and Wildlife Service

Steven M. Ugoretz, Wisconsin Department of Natural

Resources

Sally Valdes, Minerals Management Service

Janine Van Norman, U.S. Fish and Wildlife Service

Rafael Villegas

‐ Patraca, Instituto de Ecología A.C.

Bill Vogel, U.S. Fish and Wildlife Service

Matt Wagner, DTE Energy

Wayne Walker, OG&E Energy Services

Wendy Wallace, Energetics Incorporated

Randy Wilgis, National Mitigation Banking Association

James R. Woehr, Minerals Management Service

State fish and wildlife agencies that provided comments

USFWS Regional Offices that provided comments

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesWind Turbine Guidelines Advisory Committee Recommendations: Guidelines

### U.S. Fish and Wildlife Service

Wind Turbine Guidelines Advisory Committee

Recommended Guidelines

Table of Contents

Committee Members and Alternates

List of Acronyms

Chapter One : Introduc tion

................................................................................................ 1

A. Background

............................................................................................................... 1

B. Premises and Guiding Principl es

.............................................................................. 1

Premis es

............................................................................................................ 1

Principl es

........................................................................................................... 2

C. Purpose of the Guidelines

........................................................................................ 3

D. Benefits of Using the Guideline s

............................................................................. 3

Chapter Two : Summary of the Guidelines and General Considerations

........................ 7

A. Intended Use of the Guideline s

............................................................................... 7

Project Scale and Location

............................................................................... 7

Project Interconnection Lines

.......................................................................... 7

B. Introduction to the Decision Framework Using a Tiered Approach

..................... 8

Application of the Tiered Approach and Possible Outcomes

....................... 8

Application of the Tiered Approach and Risk Assessment

............................ 9

Applicability of Adaptive Manageme nt

.......................................................... 11

C. Other Elements of the Guideline s

.......................................................................... 12

Use of Mitigation Policies and Principl es

....................................................... 12

Confidentiality of Site Evaluation Process as Appropriate

........................... 12

Cumulative Impacts of Project Developm ent

............................................... 12

Landscape Considerat ions

............................................................................. 13

D. Resear ch

.................................................................................................................. 14

Chapter Three : The Tiered Approach for Wildlife Assessment and

Siting Decision s

........................................................................................................... 15

A. Tier 1: Preliminary Evaluation or Screening of Potential Sites

............................. 15

Tier 1 Questions

............................................................................................... 17

Tier 1 Methods and Metric s

............................................................................ 17

Use of Tier 1 Informat ion

................................................................................ 18

B. Tier 2: Site Characteri zation

................................................................................... 19

Tier 2 Questions

............................................................................................... 19

Tier 2 Methods and Metrics

........................................................................... 20

Tier 2 Decision Process

................................................................................... 24

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesTable of Contents

C. Tier 3: Field Studies to Document Site Wildlife Conditions and

Predict Project Impacts

........................................................................................ 25

Tier 3 Questions

.............................................................................................. 25

Tier 3 Study Design Issues

............................................................................. 26

Tier 3 Methods and Metrics

............................................................................ 27

Bird distribution, abundance, behavior and site use

................................ 32

Bat survey methods

.................................................................................. 36

Other bat survey techniques

.................................................................... 38

Other wildlife

............................................................................................ 39

Tier 3 Decision Point

....................................................................................... 42

D. Site Construction: Site Development and Construction

Best Management Practice s

............................................................................... 44

E. Tier 4: Post

‐ Construction Fatality Studies

............................................................ 47

Tier 4 Questions

............................................................................................. 48

Tier 4 Protocol Design Issues

........................................................................ 49

Frequency of carcass searches

.................................................................. 49

Number of turbines to monitor

................................................................ 50

Delineation of carcass search plots, transects, and habitat mapping

..... 50

General search protocol guidance

............................................................. 51

Field bias and error assessment

................................................................. 52

Estimators of fatality

................................................................................. 52

Tier 4 Methods and Metrics

.......................................................................... 54

F. Tier 5: Other Post

‐ construction Studies

................................................................ 56

Tier 5 Questions

............................................................................................. 56

Tier 5 Study Design Issues

............................................................................. 58

Tier 5 Examples

.............................................................................................. 59

Tier 5 Studies and Research

........................................................................... 61

G. Retrofitting, Repowering, and Decommissioning

Best Management Practices

............................................................................... 64

Retrofi tting

..................................................................................................... 64

Repowering Existing Wind Projects

............................................................. 64

Decommissi oning

........................................................................................... 65

Chapter Four : Mitigati on

................................................................................................. 67

Chapter Five : Advancing Use, Cooperation, and

Effective Implementation of the Guidelines

........................................................... 69

A. USFWS Adoption and Implementation of Guidelines

......................................... 69

Process and Timeline for Developing Final USFWS Guidelines

................... 69

General Considerat ions

................................................................................. 70

Phase

‐ in for using Committee’s Recommended Guidelines

........................ 71

B. Project Development and Coordination with the USFWS

................................... 72

Coordination and/or Consultation with USFWS

............................................ 72

Ensuring Timely Project Review

..................................................................... 72

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesTable of Contents

Conflict Resoluti on

.......................................................................................... 73

Consideration of the Guidelines in MBTA and BGEPA Enforcement

........... 73

Optional Use of Avian and Bat Protection Plan (ABPP)

.............................. 74

C. Federal Interagency Coordination and Cooperat ion

........................................... 74

D. USFWS

‐ State Coordination and Cooperat ion

....................................................... 75

E. USFWS

‐ Tribal Coordination and Cooperat ion

...................................................... 76

Authorities for Federal

‐ Tribal Coordina tion

.................................................. 77

Tribal Coordina tion

......................................................................................... 77

F. NGO Actions

........................................................................................................... 80

NGO Conservation Lands

................................................................................ 81

Appendices

..................................................................................................................... .. 83

Appendix A : Glossary

.............................................................................................. A1

‐ 8

Appendix B : Legal White Paper ( presented and adopted at

October 21

‐ 23, 2008 Committee Meeting) ........................................................B1

‐ 24

Appendix C : Landscape

‐ Level Mapping Tools for Assessing Wildlife and

Habitat Impacts, from the Landscape/Habitat Subcommittee (presented

at October 21

‐ 23, 2008 Committee Meeting) ......................................................C1

‐ 4

Appendix D : Literature Cited ................................................................................D1

‐ 10

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesCommittee Members



## A d v i s o r y C o m m i t t e e M e m b e r s

Chair

Dave Stout

U.S. Fish and Wildlife Service

Taber Allison

Massachusetts Audubon Society

Dick Anderson

California Energy Commission

Ed Arnett

Bat Conservation International

Michael Azeka

AES Wind Generation

G. Thomas Bancroft

National Audubon Society

Kathy Boydston

Texas Parks and Wildlife Department

René Braud

Horizon Wind Energy

Scott Darling

Vermont Fish & Wildlife Department

Aimee Delach

Defenders of Wildlife

Sam Enfield

MAP Royalty

Greg Hueckel

Washington State Department of

Fish & Wildlife

Jeri Lawrence

Blackfeet Nation Steve Lindenberg

U.S. Department of Energy

Rob Manes

The Nature Conservancy

Winifred Perkins

NextEra Energy

Steve Quarles

Crowell & Moring, LLP

Rich Rayhill

Ridgeline Energy

Robert Robel

Kansas State University

Keith Sexson

Association of Fish and Wildlife

Agencies

Mark Sinclair

Clean Energy Group

Patrick Traylor

Hogan & Hartson, LLP

Facilitators :

Abby S. Arnold, Sr. Mediator, and Elana

Kimbrell, Associate, Kearns & West; Cheryl

Amrani, U.S. Fish and Wildlife Service; Susan

Goodwin, U.S. Department of the Interior,

Office of Collaborative Action and Dispute

Resolution; Rachel London, U.S. Fish and

Wildlife Service

The Committee would like to acknowledge the contributions of former Committee

Members Michael Daulton, National Audubon Society, Karen Douglas, California Energy

Commission, and Andrew Linehan, Iberdrola Renewables, to this process.

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesCommittee Alternates



## A d v i s o r y C o m m i t t e e A l t e r n a t e s

2 0 0 7

‐ 2 0 0 9

John M. Austin

Vermont Department of Fish & Wildlife

Panama Bartholomy

California Energy Commission

Joseph Carpenter

New Jersey Department of

Environmental Protection

Brian R. Chappell

Hogan & Hartson, LLP

Caroline Kennedy

Defenders of Wildlife

Curt Leigh

Washington State Department of Fish

& Wildlife James Lindsay

Florida Power & Light Co.

Jay Pruett

The Nature Conservancy

Barry Sweitzer

AES Wind Generation

Chris Taylor

Element Power

Robert Thresher

National Renewable Energy

Laboratory

Jeff Underwood

U.S. Fish and Wildlife Service

Julie C. Wicker

Texas Parks and Wildlife Department

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesList of Acronyms



### Acronyms:

ABPP

– Avian and Bat Protection Plan

APLIC

– Avian Power Line Interaction Committee

APWRA

– Altamont Pass Wind Resource Area

BA

– Before

‐ After analysis

BACI

– Before

‐ After Control

‐ Impact study design

BGEPA

– Bald and Golden Eagle Protection Act

BLM

– Bureau of Land Management

BMP

– Best Management Practice

CRP

– Conservation Reserve Program

CWA

– Clean Water Act

ESA

– Endangered Species Act

FAA

– Federal Aviation Administration

FACA

– Federal Advisory Committee Act

FRPP

– Farm and Ranchlands Protection Program

DOE

– U.S. Department of Energy

DOI

– U.S. Department of the Interior

GIS

– Geographic Information System

GRP

– Grasslands Reserve Program

GS3C

– Grassland Shrub

‐ Steppe Species Collaborative

MBTA

– Migratory Bird Treaty Act

NEPA

– National Environmental Policy Act

NWCC

– National Wind Coordinating Collaborative

RETI

– Renewable Energy Transmission Initiative

RSF

– Resource Selection Function

USDA FSA

– U.S. Department of Agriculture Farm Services Agency

USDA

‐ NRCS U.S. Department of Agriculture

– Natural Resource Conservation Service

USFS

– U.S. Forest Service

USFWS

– U.S. Fish and Wildlife Service

USGS

– U.S. Geological Survey

WRP

– Wetlands Reserve Program

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines

## C h a p t e r O n e : I n t r o d u c t i o n

A. Background

In response to the United States’ growing demand for production of electricity by wind

energy and in recognition of the U.S. Fish and Wildlife Service (USFWS) mission “Working

with others to conserve, protect, and enhance fish, wildlife, and plants and their habitats for

the continuing benefit of the American people,” the Secretary of the Interior (Secretary)

authorized the Wind Turbine Guidelines Advisory Committee (Committee), chaired by

USFWS, to recommend effective measures to avoid or minimize impacts to wildlife and their

habitats related to land

‐ based wind energy facilities.

Herein are the Committee’s Recommended Guidelines (Guidelines). They are based on more

than two years of deliberations and judgments regarding the siting and operation of large

wind energy developments while minimizing adverse impacts to wildlife and their habitats.

The Committee is composed of a broad array of representatives, among the most informed

in the country, selected for their outstanding experience on these issues. These Guidelines

are the Committee’s best attempt to present the most effective, feasible, practicable, and

appropriate approaches available to the Department of the Interior (DOI), Tribes, states,

local jurisdictions, and the wind industry to address their respective responsibilities to

protect wildlife resources while encouraging responsible siting and operation of wind

energy projects.



### B. Premises and Guiding Principles

In its development of these Guidelines, the Committee accepted by consensus 6 the

following premises and principles and recommends these be incorporated into the final

guidance published by the USFWS.



### Premises

1. The Committee acknowledges the USFWS definition of wildlife (see Appendix A:

Glossary). The Committee recognizes that different species and species groups

have different levels of protection under tribal authority and federal and state

wildlife statutes (see Appendix B: Legal White Paper).

It is the Committee’s intention to identify, evaluate and recommend approaches

to assessing risk and impacts to wildlife associated with wind energy

development that are useful regardless of the regulatory status of any particular

species, and that are particularly focused on those species most likely to be

affected by wind energy development.

6 March 26, 2009

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesChapter One: Introduction

2. The Committee recognizes that, among different wind energy projects, there will

be varying degrees of potential impact to wildlife as well as varying degrees of

certainty associated with the assessments of that potential impact. Thus varying

levels of effort will be appropriate in assessing the risk of potential projects and

determining how or whether the projects are developed.

3. The Committee recognizes that it is possible and essential to mitigate negative

impacts on wildlife populations and habitats while balancing expected impacts

with the costs of undertaking necessary studies and monitoring.



### Principles

The Guidelines should:

1. Provide a consistent methodology for conducting pre

‐ construction risk

assessments and post

‐ construction impact assessments to guide siting decisions

by developers and agencies.

2. Encourage communication and coordination between the developer and relevant

state and federal agencies during all phases of wind energy project development.

3. Provide mechanisms to encourage the adoption and use of the Guidelines by all

federal agencies, as well as the wind energy industry, while recognizing the

primary role of the lead agency in coordinating specific project assessments.

4. Complement state and tribal efforts to address wind/wildlife interactions and

provide a voluntary means for these entities to coordinate and standardize

review of wind projects with the USFWS.

5. Provide a clear and consistent approach that increases predictability and reduces

the risk of liability exposure under federal wildlife laws.

6. Provide sufficient flexibility to accommodate the diverse geographic and habitat

features of different wind development sites.

7. Present mechanisms for determining compensatory mitigation, when

appropriate, in the event of unforeseen impacts to wildlife during construction or

operation of a wind energy project.

8. Define scientifically rigorous and cost

‐ effective study designs that improve the

ability to predict direct and indirect wildlife impacts locally and regionally.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 2Chapter One: Introduction

9. Include a formal mechanism for revision in order to incorporate experience,

technological improvements, and scientific advances that reduce uncertainty in

the interactions between wind energy and wildlife.



### C. Purpose of the Guidelines

The primary purpose of these Guidelines is to describe the information typically needed to

identify, assess, and monitor the potentially adverse impacts of wind energy projects on

wildlife and their habitats, especially migratory birds and bats, to:

• Guide the wind energy industry to make the best possible choices on the location,

design and operation of projects to avoid or minimize the risks to wildlife and their

habitats.

• Ensure that the responsible federal action agency for any wind energy installation is

aware of and considers the appropriate factors that present risks to wildlife and their

habitats and the full range of options to avoid, minimize and, as appropriate, provide

compensation for unavoidable significant adverse impacts.

• Specify the types and amount of baseline information required for adequate review

of a project, and describe the likely extent of follow

‐ up that would be necessary after

construction.

Additional purposes of the Guidelines are to:

• Promote responsible development of wind energy facilities across the country.

• Enable states, Tribes, USFWS, developers and stakeholders to share information and

data regarding avian and bat studies, avoidance, minimization, and, as appropriate,

compensatory mitigation, siting practices, and monitoring of habitat/species impacts,

to increase understanding of risks and the effectiveness of siting and operating

decision

‐ making.

• Develop effective, consistent and cost

‐ effective methods and protocols to guide

project

‐ specific studies, to improve assessment of risk and impacts by producing

comparable data.

• Allow for comparison among field studies from around the country.



### D. Benefits of Using the Guidelines

As the United States moves to achieve its renewable energy commitments, it must also

maintain and protect its wildlife resources. The Committee’s recommended Guidelines will

facilitate wind energy development while protecting wildlife and their habitats. The

Guidelines provide best management practices to address wind energy

‐ wildlife interactions

and, although voluntary, will result in greater regulatory certainty for the wind energy

developer (developer), resulting in the following four types of benefits.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 3Chapter One: Introduction

1. Reduced Ecological Impacts

The Guidelines offer a science

‐ based reference for use by industry, federal, state, tribal and

local agencies, and other stakeholders in the siting and permitting of wind energy projects.

The Guidelines describe the kind of information needed to adequately identify, assess,

mitigate, and monitor wind energy

‐ wildlife impacts when developing new projects and

repowering existing facilities. The Guidelines will promote scientifically sound and cost

‐

effective study designs, produce comparable data among studies throughout the country,

allow for analyses of trends and patterns of impacts at multiple sites, and ultimately improve

the ability to estimate and resolve impacts to wildlife and habitats both locally and

regionally.

2. Increased Compliance and Reduced Regulatory Risk

The Guidelines are a tool for facilitating compliance with relevant laws and regulations by

recommending methods for conducting site

‐ specific, scientifically sound biological

evaluations. Following the Guidelines is consistent with the National Environmental Policy

Act (NEPA), namely, to provide full and fair discussion of significant adverse impacts of wind

energy development upon wildlife arising from potential federal actions. The Guidelines are

also consistent with the intent of NEPA to ensure full disclosure and consideration of any

damage to the environment. The Guidelines facilitate achieving the NEPA objective of

ensuring that environmental resources are given appropriate consideration in planning and

decision

‐ making processes. Using the methods described in the Guidelines will provide

information for impact assessment and mitigation. Mitigation is defined in this document as

avoiding or minimizing significant adverse impacts, and when appropriate, compensating for

unavoidable significant adverse impacts, as determined through the tiered approach

recommended in the Guidelines. When used hereafter in this document, the term

“mitigation” includes, collectively, the concepts of avoidance, minimization, and, as

appropriate, compensatory mitigation (see Chapter Four). Using the Guidelines also

demonstrates a good faith effort to develop and operate projects consistent with the intent

of local, state, and federal laws. Using the Guidelines, however, does not by itself provide

authorization to take wildlife under any applicable statute. If take were to occur, and if

appropriate authorization is available under the applicable wildlife statute, the developer

should obtain that authorization.

3. Improved Predictability of Wildlife and Habitat Impact

The goal of the Guidelines is to provide a consistent, predictable approach to assessing

impacts to wildlife and habitats from projects, while providing flexibility to accommodate

the unique circumstances of each project. As comparable information using consistent and

common methods and protocols becomes available from projects around the nation, meta

‐ analysis will continue to provide information that allows better predictive modeling. The

growing body of information will assist in providing valuable information on “use” of wind

energy sites by and potential impacts to wildlife. Over time, the growing knowledge base

should decrease the need for some monitoring studies.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 4Chapter One: Introduction

4. Cost Savings

The Guidelines will promote scientifically sound, cost

‐ effective study designs proportionate

to the risk to wildlife and their habitats, produce comparable data among studies within the

nation, allow for analyses of trends and patterns of impacts at multiple sites, and ultimately

improve the ability to predict and resolve impacts locally, regionally and nationally. This will

reduce the need for some studies, thereby reducing project costs. Initiating pre

‐ construction

surveys early will help avoid unnecessary and costly delays during permitting. The Guidelines

advise that the costs and the resulting benefits be considered when developing the

monitoring efforts needed for each project site. Some monitoring methods and/or

technologies are expensive and should be recommended only when necessary.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 5Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 6

## C h a p t e r T w o :

S u m m a r y o f t h e G u i d e l i n e s a n d G e n e r a l C o n s i d e r a t i o n s

A. Intended Use of the Guidelines

These Guidelines are intended to be voluntary. Although voluntary, the Guidelines described

in this report are designed to be used by all prospective developers of wind energy projects

and by USFWS field staff reviewing such projects. The Guidelines also are intended to

suggest a useful approach for local, state and tribal officials, and other interested

stakeholders.

The Committee wrote the Guidelines to be as specific as possible with regard to the

expectations, recommendations, and appropriate assessments for developing a project.

They must, however, apply to a large diversity of projects in many different habitats. The

Guidelines are intended to provide flexibility in their application and in consideration of

project

‐ specific factors, and are not to be rigidly applied in every situation. The Guidelines

are designed to address current commercial technology.



### Project Scale and Location

The tiered approach is designed to lead to the appropriate amount of evaluation in

proportion to the anticipated level of risk that a project may pose to wildlife and their

habitats. Study plans and the duration and intensity of study efforts should be tailored

specifically to the unique characteristics of each site and the corresponding potential for

significant adverse impacts on wildlife and their habitats as determined through the tiered

approach. In particular, the risk of adverse impacts to wildlife and their habitats tends to be

a function of site location, not necessarily the size of the project. A small project may pose

greater risk to wildlife than a larger site in a less sensitive location, and would therefore

require more pre

‐ and post

‐ construction studies than the larger site. This is why the tiered

approach begins with an examination of the potential location of the project, not the size of

the project. In all cases, study plans and selection of appropriate study methods and

techniques should be tailored to the relative scale, location and potential for significant

adverse impacts of the proposed site.



### Project Interconnection Lines

The Guidelines are designed to address all elements of a wind energy facility, including the

turbine string or array, access roads, ancillary buildings, and the above

‐ and below

‐ ground

electrical lines which connect a project to the transmission system. It is recommended that

the project evaluation include consideration of the wildlife

‐ and habitat

‐ related impacts of

these electrical lines, and that the developer include measures to reduce impacts of these

lines, such as those outlined in the Avian Power Line Interaction Committee (APLIC)

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesChapter Two: Summary & General Considerations

Suggested Practices for Avian Protection on Power Lines (2006). The Guidelines are not

designed to address transmission beyond the point of interconnection to the transmission

system. The national grid and proposed smart grid system are beyond the scope of these

Guidelines.



### B. Introduction to the Decision Framework Using a Tiered Approach

The Committee recommends using a tiered approach, an iterative process for evaluating the

risks and minimizing the impacts to wildlife of a wind energy project. The tiered approach

provides a decision framework for collecting information in increasing detail to evaluate risk

and make siting and operational decisions. It provides the opportunity for evaluation and

decision

‐ making at each tier, enabling a developer to abandon or proceed with project

development, or to collect additional information if required. This approach does not require

that every tier, or every element within each tier, be implemented for every project. Instead,

it allows efficient use of developer and wildlife agency resources with increasing levels of

effort until sufficient information and the desired precision is acquired for the risk

assessment.



### Application of the Tiered Approach and Possible Outcomes

The flow chart on page 10 (“General Framework for Minimizing Impacts of Wind

Development on Wildlife in the Context of the Siting and Development of Wind Energy

Projects”) illustrates the tiered approach, which consists of up to five iterative stages, or

tiers:

Tier 1

– Preliminary evaluation or screening of potential sites

Tier 2

– Site characterization

Tier 3

– Field studies to document site wildlife conditions and predict project impacts

Tier 4

– Post

‐ construction fatality studies

Tier 5

– Other post

‐ construction studies

At each tier, potential issues associated with developing or operating a project are identified

and questions formulated to guide the decision process. Chapter Three outlines the

questions to be posed at each tier, and describes recommended methods and metrics for

gathering the data needed to answer those questions.

If sufficient data are available at a particular tier, the following outcomes are possible based

on analysis of the information gathered:

1. The project is abandoned because the risk is considered unacceptable.

2. The project proceeds in the development process without additional data collection.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 8Chapter Two: Summary & General Considerations

3. An action or combination of actions, such as project modification, mitigation, or

specific post

‐ construction monitoring, is indicated.

If data are deemed insufficient at a tier, more intensive study is conducted in the subsequent

tier until sufficient data are available to make a decision to abandon the project, modify the

project, or proceed with and expand the project.



### Application of the Tiered Approach and Risk Assessment

Risk is defined as the likelihood that adverse impacts will occur to individuals or populations

of species of concern as a result of wind energy development and operation. In this context,

collision risk can be defined for individuals of a species or groups of species (such as raptors)

as the estimated number of collision fatalities (impact), divided by the number of individuals

in the zone of risk (exposure). Estimates of fatality risk can be used in a relative sense,

allowing comparisons among projects, alternative development designs, and in the

evaluation of potential risk to populations. Because there are relatively few methods

available for direct estimation of risk, a weight

‐ of

‐ evidence approach is often used

(Anderson et al. 1999). Until such time that reliable risk predictive models are developed,

estimates of risk would typically be qualitative, but would be based upon quantitative site

information.

Risk can also be defined in the context of populations, but the calculation is more

complicated as it could involve estimating the reduction in population viability as indicated

by demographic metrics such as growth rate, size of the population, or survivorship, either

for local populations, metapopulations, or entire species. For most populations, risk cannot

easily be reduced to a strict metric, especially in the absence of population viability models

for most species. Consequently, estimating the quantitative risk to populations is usually

beyond the scope of project studies due to the difficulties in evaluating these metrics, and

therefore risk assessment will be qualitative. Risk to habitat is a component of the

evaluation of population risk. In this context, the estimated loss of habitat is evaluated in

terms of the potential for population level effects (e.g., reduced survival or reproduction).

The assessment of risk should synthesize sufficient data collected at a project to estimate

exposure and predict impact for individuals and their habitats for the species of concern,

with what is known about the population status of these species, and in communication

with the relevant wildlife agency and industry wildlife experts. Predicted risk of these

impacts could provide useful information for determining appropriate mitigation measures if

determined to be necessary. In practice in the tiered approach, risk assessments conducted

in Tiers 1 and 2 require less information to reach a risk

‐ based decision than those conducted

at higher tiers.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 9Chapter Two: Summary & General Considerations

General Framework for Minimizing Impacts of Wind Development on Wildlife in the Context

of the Siting and Development of Wind Energy Projects

Begin Permitting

Process? NO

NO

YES Problem Formulation:

Question/Issues

More Information

Needed?

Select and Implement Tier 3 Studies:

• Studies Required for Prediction of Impact and/or Risk

• Pre

‐ Construction Component of Studies Required to

Estimate Impact and/or Risk

Develop Plan to Mitigate Impacts TIER 1:

Preliminary

Site Screening

TIER 2:

Site

Characterization

Studies TIER 3:

Field Studies

to Predict

Wildlife

Impacts

End TIERS 4 & 5:

Post

‐

construction

fatality and

other impact

studies

Continue current phase(s)

and reclaim site at the end of

the p ro j ect life YES NO

Significant Impacts

Identified?

NO YE S NO

NO YES YES Construct and Operate

First/Additional Phases of

Wind Facility

YE S YES NO

YES Develop Plan to Mitigate Impact,

if Needed

Expand, or Modify

Wind Facilit y ?

More

Information

Needed?

Permit

Granted? More Information

N eede d ?

NO YES YES

NO

Continue Working

with the Site End End

NO NO

End Site(s)

Suitable?

Problem Formulation:

Q uestions/Issues

More Data

Needed? Look for

Other Site? Preliminary

Wildlife/Landscape

Evaluation of Potential

Site(s) Problem

Formulation:

Q uestion / Issues

YE S

‐ Problem Formulation:

Question/Issues

Site Characterization with

Available Data and Site Visit ( s )

Look for

Other Site?

Site(s)

Suitable? YES Impacts can be

miti g ated?

YES NO

Operate Project

N O

Note : Mitigation is defined in this document as avoiding or

minimizing significant adverse impacts, and when appropriate,

compensating for unavoidable significant adverse impacts, as

determined through the tiered approach. Continue Tier 5

Studies Begun

During PreConstruction Start Tier 4

Fatality

Studies Start New

Tier 5

Studies as

Needed

10 Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesChapter Two: Summary & General Considerations

Applicability of Adaptive Management

Adaptive management (AM) can be categorized into two types: "passive" and "active"

(Walters and Holling 1990, Murray and Marmorek 2003). In passive AM, alternatives are

assessed and the management action deemed best is designed and implemented.

Monitoring and evaluation then lead to adjustments, as necessary. In active AM, managers

explicitly recognize that they do not know which management approaches are best, so they

select several alternative management approaches to design and implement. 7 Active AM, if

necessary, should be explored and applied only when substantial uncertainty exists

regarding the approaches to avoiding or minimizing significant adverse impacts. With the

possible exception of evaluating project

‐ specific mitigation measures, these Guidelines do

not recommend that active AM be implemented at projects. Active AM may be appropriate

if there is a specific research objective that is probably applicable to multiple projects;

however, these Guidelines recognize that accomplishing such objectives is outside this

decision framework, and would involve multiple stakeholders and funding sources.

Adaptive management, whether active or passive, is not typically applied to projects

because in the majority of instances, the impacts and the level of uncertainty do not warrant

its use. Nevertheless, the tiered approach is designed to accommodate AM if warranted. In

the pre

‐ construction environment, analysis and interpretation of information gathered at a

particular tier influence the decision to proceed further with the project or the project

assessment. If the project is constructed, information gathered in the pre

‐ construction

assessment guides possible project modifications, mitigation or the need for and design of

post

‐ construction studies. Analysis of the results of post construction studies can test design

modifications and operational activities to determine their effectiveness in avoiding or

minimizing significant adverse impacts. When there is considerable uncertainty over the

appropriate mitigation for a project, active AM is the preferred approach to testing the

effectiveness of alternative approaches.

For AM to work, there must be agreement to adjust management and/or mitigation

measures if monitoring indicates that goals are not being met. The agreement should

include a timeline for periodic reviews and adjustments as well as a mechanism to consider

and implement additional mitigation measures as necessary after the project is developed.

Passive and active AM as described above are similar to the process described in the DOI

Adaptive Management Technical Guide (Williams et al 2007). As described in the Technical

Guide, application of AM includes five key elements: stakeholder involvement, management

objectives, management alternatives, predictions of the effects of potential management

actions, and monitoring protocols and plans. These elements are folded into the structured

process of decision

‐ making, monitoring, and assessment. Passive AM, and its use in the

tiered approach, is consistent with the technique outlined in the Technical Guide.

7 In active adaptive management, monitoring and evaluation of each alternative helps in deciding which alternative is more

effective in meeting objectives, and adjustments to the next round of management decisions can be based on those

lessons.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 11Chapter Two: Summary & General Considerations



### C. Other Elements of the Guidelines

Use of Mitigation Policies and Principles

These Guidelines contain valid, economic, technically feasible and effective methods and

metrics intended to evaluate risk and estimate impacts to wildlife, inform permitting

decisions, and satisfy environmental assessment processes. The objective is to avoid or

minimize significant adverse impacts and when appropriate, to provide compensatory

mitigation for unavoidable significant adverse impacts, as identified in the tiered approach

recommended in the Guidelines. When used alone in this document, the term “mitigation”

includes avoiding or minimizing significant adverse impacts, and when appropriate,

compensating for unavoidable significant adverse impacts. Several tools are available to

determine appropriate mitigation, including the USFWS Mitigation Policy (USFWS Mitigation

Policy, 46 FR 7656 (1981)). The USFWS policy provides a common basis for determining how

and when to use different mitigation strategies, and facilitates earlier consideration of

wildlife values in wind energy project planning. While the USFWS uses the Mitigation Policy

for project reviews, developers may also use other tools to determine appropriate

mitigation. Chapter Four includes additional information regarding the use of mitigation and

elements considered by the USFWS during mitigation development. Wind energy

developers also should consult with appropriate state agencies to ensure compliance with

state mitigation requirements.



### Confidentiality of Site Evaluation Process as Appropriate

Some aspects of the initial pre

‐ construction risk assessment, including preliminary screening

and site characterization, occur early in the development process, when land or other

competitive issues limit developers’ willingness to share information on projects with the

public and competitors. Any consultation or coordination with agencies at this stage may

include confidentiality agreements.



### Cumulative Impacts of Project Development

Cumulative impacts are the comprehensive effect on the environment that results from the

incremental impact of a project when added to other past, present, and reasonably

foreseeable future actions. Consideration of cumulative impacts should be incorporated into

the wind energy planning process as early as possible to improve decisions. To achieve that

goal, it is important that agencies and organizations take the following actions to improve

cumulative impacts analysis: review the range of development

‐ related significant adverse

impacts, determine which species of concern or their habitats within the landscape are most

at risk of significant adverse impacts from wind development in conjunction with other

reasonably foreseeable significant adverse impacts, and make that data available for

regional or landscape level analysis. The magnitude and extent of the impact on a resource

depends on whether the cumulative impacts exceed the capacity for resource sustainability

and productivity.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 12Chapter Two: Summary & General Considerations

Federal agencies are required to include a cumulative impacts analysis in their NEPA review,

including any energy projects that require a federal permit or have any other federal nexus.

The federal action agency coordinates with the developer to obtain the necessary

information for the NEPA review and cumulative impacts analysis. To avoid project delays,

federal and state agencies are encouraged to use existing wildlife data for the cumulative

impacts analysis until improved data are available.

Where there is no federal nexus, individual developers are not expected to conduct their

own cumulative impacts analysis. However, a cumulative impacts analysis would help

developers and other stakeholders better understand the significance of potential impacts

on wildlife and habitats. Developers are encouraged to coordinate with federal and state

agencies early in the project planning process to access any existing information on the

cumulative impacts of individual projects on species and habitats at risk, and to incorporate

it into project development and any necessary wildlife studies.



### Landscape Considerations

One important component of the comprehensive landscape database is the identification of

large blocks of intact habitat for species of habitat fragmentation concern (see Glossary).

Development of this database and identification of these intact habitats is the shared

responsibility of the various stakeholders (not developers), with a key leadership role to be

played by USFWS.

The Secretary of the Interior recently directed USFWS, in cooperation with other DOI

agencies, to stimulate the development of a network of collaborative “Landscape

Conservation Cooperatives.” These cooperatives are one approach to identifying large,

intact habitats for species of habitat fragmentation concern.

Within identified intact habitats for species of habitat fragmentation concern, it is essential

that the anthropogenic factors that may lead to harmful loss and fragmentation be

identified. Where possible, best management practices (BMPs) should be developed to

avoid or minimize the effects of habitat loss and fragmentation. It may be possible to

develop other mitigation measures to offset unavoidable significant adverse impacts.

The identification of intact habitats for species of habitat fragmentation concern, and

development of mitigation measures, should be accomplished through a collaborative

process, beginning after the USFWS publishes final guidelines and continuing as more is

learned about the potential habitat impacts of wind energy development. Through the

implementation of these Guidelines, individual companies can provide valuable information

that will assist in the collaborative landscape analysis. However, the lack of a landscape

database and BMPs should not in any way delay the use and application of these Guidelines.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 13Chapter Two: Summary & General Considerations



### D. Research

Much uncertainty remains about predicting risk and estimating impacts of wind energy

development on wildlife. Thus there is a need for additional research to improve

scientifically based decision

‐ making when siting wind energy facilities, evaluating impacts on

wildlife and habitats, and testing the efficacy of mitigation measures. More extensive

studies are needed to further elucidate patterns and test hypotheses regarding possible

solutions to wildlife and wind energy impacts.

It is in the interests of wind developers and wildlife agencies to improve these assessments

to better avoid or minimize the impacts of wind energy development on wildlife and their

habitats. The Committee recommends that research to improve predictions of pre

‐

construction risk and estimates of post

‐ construction impacts be a high priority. Research can

provide data on operational factors (e.g. wind speed, weather conditions) that are likely to

result in fatalities. It could also include studies of cumulative impacts of multiple wind

energy projects, or comparisons of different methods for assessing avian and bat activity

relevant to predicting risk. Monitoring and research should be designed and conducted to

ensure unbiased data collection that meets technical standards such as those used in peer

review. Research projects may occur at the same time as project

‐ specific Tier 4 and Tier 5

studies.

Research would usually result from collaborative efforts involving appropriate stakeholders,

and is not the sole or primary responsibility of any developer. Research partnerships (e.g.,

Bats and Wind Energy Cooperative (BWEC) 8

, Grassland and Shrub Steppe Species

Collaborative (GS3C) 9 ) involving diverse players will be helpful for generating common goals

and objectives and adequate funding to conduct studies (Arnett and Haufler 2003). The

National Wind Coordinating Collaborative (NWCC) 10

, the American Wind Wildlife Institute

(AWWI) 11

, and the California Energy Commission (CEC)’s Public Interest Energy Research

Program 12 all support research in this area.

Study sites and access will be required to design and implement research, and developers

are encouraged to participate in these research efforts when possible. Subject to

appropriations, the USFWS also should fund priority research and promote collaboration

and information sharing among research efforts to advance science on wind energy

‐ wildlife

interactions, and to improve these Guidelines.

8 www.batsandwind.org

9 www.nationalwind.org

10 www.nationalwind.org

11 http://www.awwi.org

12 http://www.energy.ca.gov/research

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 14

## C h a p t e r T h r e e :

T h e T i e r e d A p p r o a c h f o r W i l d l i f e A s s e s s m e n t a n d S i t i n g D e c i s i o n s

This chapter describes in detail the suggested process for each stage of the tiered approach,

with additional sections outlining BMPs during site construction, retrofitting, repowering

and decommissioning phases of a project.

The first three tiers correspond to the pre

‐ construction evaluation phase of wind energy

development. At each of the three tiers, the Guidelines provide a set of questions that the

Committee recommends developers attempt to answer, followed by recommended

methods and metrics to use in answering the questions. Some questions are repeated at

each tier, with successive tiers requiring a greater investment in data collection to answer

certain questions. For example, while Tier 2 investigations may discover some existing

information on federal or state

‐ listed species and their use of the proposed development

site, it may be necessary to collect empirical data in Tier 3 studies to determine the presence

of federal or state

‐ listed species.

The decision to proceed to the next tier is made by the developer. The decision is based on

whether all questions identified in the tier have been adequately answered and whether the

methods for arriving at the answers were appropriate for the site selected and the risk

posed to species of concern and their habitats. Answers indicating little or no risk for all

questions in a tier may lead the developer to conclude that the tiered approach may end in

that tier, without the necessity to proceed to the next tier. The developer is encouraged to

communicate early in the tiered approach with relevant agencies and stakeholders.



### A. Tier 1: Preliminary Evaluation or Screening of Potential Sites

For developers taking a first look at a broad geographic area, a preliminary 

## Tier 1

evaluation of the general ecological context of a potential site or sites can

serve as useful preparation for coordination with the federal, state, tribal,

and/or local agencies. USFWS is available to assist wind energy project developers to identify

potential wildlife and habitat issues and should be contacted as early as possible in the

company's planning process. The Committee encourages the USFWS to respond

expeditiously and substantively. With this internal screening process, the developer can

begin to identify broad geographic areas of high sensitivity due to the presence of: 1) large

blocks of intact native landscapes, 2) intact ecological communities, 3) fragmentation

‐

sensitive species' habitats, or 4) other important landscape

‐ scale wildlife values.

Tier 1 may be used in any of the following three ways:

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesChapter Three: The Tiered Approach/Tier 1, Preliminary Evaluation

1. To identify regions where wind energy development poses substantial risks to species of

concern or their habitats, including the fragmentation of large

‐ scale habitats and threats

to regional populations of federal

‐ or state

‐ listed species.

2. To “screen” a landscape or set of multiple potential sites to avoid those with the highest

habitat values.

3. To begin to determine if a single identified potential site poses serious risk to species of

concern or their habitats.

Tier 1 can offer early guidance about the sensitivity of the site within a larger landscape

context; it can help direct development away from sites that will be associated with higher

study, mitigation costs, and uncertainty; or it can identify those sensitive resources that will

need to be studied further to determine if the site can be developed without significant

adverse impacts to the species of concern or local population(s). This may facilitate

discussions with the federal, state, tribal, and/or local agencies in a region being considered

for development. In some cases, Tier 1 studies could reveal serious concerns indicating that a

site should not be developed.

Development in some areas may be precluded by federal law. This designation is separate

from a determination through the tiered approach that an area is not appropriate for

development due to feasibility, ecological reasons, or other issues. Developers are

encouraged to visit USFWS databases or other available information during Tier 1 or Tier 2 to

see if a potential wind energy area is precluded from development by federal law. Some

areas may be protected from development through state or local laws or ordinances, and

the appropriate agency should be contacted accordingly. It may be appropriate to

coordinate with the local USFWS office if there are questions regarding the designation and

how it may apply to wind energy development

.

It should be noted that some areas may be inappropriate for large scale development

because they have been recognized according to scientifically credible information as having

high wildlife value, based solely on their ecological rarity and intactness (e.g., Audubon

Important Bird Areas, The Nature Conservancy portfolio sites, state wildlife action plan

priority habitats). It is important to identify such areas through the tiered approach, as

reflected in Tier 1, Question 2 below; evaluating the potential to mitigate for significant

adverse impacts is the key facet of a Tier 1 evaluation. Many of North America's native

landscapes are greatly diminished, with some existing at less than 10 percent of their pre

‐

settlement occurrence. Herbaceous sub

‐ shrub steppe in the Pacific Northwest and old

growth forest in the Northeast are representative of such diminished native

resources. Important remnants of these landscapes are identified and documented in

various databases held by private conservation organizations, state wildlife agencies, and, in

some cases, by USFWS. Developers should collaborate with such entities specifically about

such areas in the vicinity of a prospective project site.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 16Chapter Three: The Tiered Approach/ Tier 1, Preliminary Evaluation



### Tier 1 Questions

Suggested questions to be considered in Tier 1 include:

1. Are there species of concern present on the proposed site, or is habitat (including

designated critical habitat) present for these species?

2. Does the landscape contain areas where development is precluded by law or areas

designated as sensitive according to scientifically credible information? Examples of

designated areas include, but are not limited to: “areas of scientific importance;” “areas

of significant value;” federally

‐ designated critical habitat; high

‐ priority conservation

areas for non

‐ government organizations (NGOs); or other local, state, regional, federal,

tribal, or international categorizations.

3. Are there known critical areas of wildlife congregation, including, but not limited to:

maternity roosts, hibernacula, staging areas, winter ranges, nesting sites, migration

stopovers or corridors, leks, or other areas of seasonal importance?

4. Are there large areas of intact habitat with the potential for fragmentation, with respect

to species of habitat fragmentation concern needing large contiguous blocks of habitat?



### Tier 1 Methods and Metrics

Developers who choose to conduct Tier 1 investigations would generally be able to utilize

existing public or other readily available landscape

‐ level maps and databases from sources

such as federal, state, or tribal wildlife or natural heritage programs, the academic

community, conservation organizations, or the developers’ or consultants’ own information.

It is recommended that developers conduct a review of the publicly available data. The

analysis of available sites in the region of interest will be based on a blend of the information

available in published and unpublished reports, wildlife range distribution maps, and other

such sources. Currently available data sources useful for this analysis are listed in Appendix

C. It is recommended that the developer check with the USFWS Field Office for data specific

to wind energy development and wildlife.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 17Chapter Three: The Tiered Approach/Tier 1, Preliminary Evaluation



### Use of Tier 1 Information

The objective of the Tier 1 process is to help the developer identify a site or sites to consider

further for wind energy development. Possible outcomes of this internal screening process

include the following:

1. One or more sites are found within the area of investigation where the answer to

each of the above Tier 1 questions is “no,” indicating a low probability of significant

adverse impact to wildlife. The developer proceeds to Tier 2 investigations and

characterization of the site or sites, answering the Tier 2 questions with site

‐ specific

data to confirm the validity of the preliminary indications of low potential for

significant adverse impact.

2. A “Yes” answer to one or more of the Tier 1 questions indicates a higher probability

of significant adverse impacts to wildlife. Consideration of the area may be

abandoned, or effort may be devoted to identifying possible means by which the

project can be modified to avoid or minimize significant adverse impacts.

3. The data available in the sources described above are insufficient to answer one or

more of the Tier 1 questions. The developer proceeds to Tier 2, with a specific

emphasis on collecting the data necessary to answer the Tier 2 questions, which are

inclusive of those asked at Tier 1.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 18Chapter Three: The Tiered Approach/ Tier 2, Site Characterization



### B. Tier 2: Site Characterization

At this stage, the developer has narrowed consideration down to specific 

## Tier 2 sites, and additional data may be necessary to systematically and

comprehensively characterize a potential site in terms of the risk wind

energy development would pose to species of concern and their habitats.

In the case where a site or sites have been selected without the Tier 1 preliminary evaluation

of the general ecological context, Tier 2 becomes the first stage in the site selection process.

The developer will address the questions asked in Tier 1; if addressing the Tier 1 questions

here, the developer will evaluate the site within a landscape context. However, a

distinguishing feature of Tier 2 studies is that they focus on site

‐ specific information and

should include at least one visit to each of the prospective site(s). Because Tier 2 studies are

preliminary, normally one reconnaissance level site visit will be adequate as a “ground

‐ truth”

of available information. Notwithstanding, if key issues are identified that relate to varying

conditions and/or seasons, Tier 2 studies should include enough site visits during the

appropriate times of the year to adequately assess these issues for the prospective site(s).



### Tier 2 Questions

Questions suggested for Tier 2 can be answered using credible, publicly available

information that includes published studies, technical reports, databases, and information

from agencies, local conservation organizations, and/or local experts. Developers or

consultants working on their behalf should contact the federal, state, tribal, and local

agencies that have jurisdiction or management authority and responsibility over the

potential project.

1. Are there known species of concern present on the proposed site, or is habitat

(including designated critical habitat) present for these species?

2. Does the landscape contain areas where development is precluded by law or

designated as sensitive according to scientifically credible information? Examples of

designated areas include, but are not limited to: “areas of scientific importance;”

“areas of significant value;” federally

‐ designated critical habitat; high

‐ priority

conservation areas for NGOs; or other local, state, regional, federal, tribal, or

international categorizations.

3. Are there plant communities of concern present or likely to be present at the site(s)?

4. Are there known critical areas of congregation of species of concern, including, but

not limited to: maternity roosts, hibernacula, staging areas, winter ranges, nesting

sites, migration stopovers or corridors, leks, or other areas of seasonal importance?

5. Using best available scientific information, has the relevant federal, state, tribal,

and/or local agency independently demonstrated the potential presence of a

population of a species of habitat fragmentation concern? If not, the developer need

not assess impacts of the proposed project on habitat fragmentation.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 19Chapter Three: The Tiered Approach/ Tier 2, Site Characterization

6. Which species of birds and bats, especially those known to be at risk by wind energy

facilities, are likely to use the proposed site based on an assessment of site

attributes?



### Tier 2 Methods and Metrics

Obtaining answers to Tier 2 questions will involve a more thorough review of the existing

site

‐ specific information than in Tier 1. Tier 2 site characterizations studies will generally

contain three elements:

1. A review of existing information, including existing published or available literature

and databases and maps of topography, land use and land cover, potential wetlands,

wildlife, habitat, and sensitive plant distribution. If agencies have documented

potential habitat for species of habitat fragmentation concern, this information can

help with the analysis.

2. Contact with agencies and organizations that have relevant scientific information to

further help identify if there are bird, bat or other wildlife issues. It is recommended

that the developer make contact with federal, state, tribal, and local agencies that

have jurisdiction or management authority over the project or information about the

potentially affected resources. In addition, because key NGOs and relevant local

groups are often valuable sources of relevant local environmental information, it is

recommended that developers contact key NGOs, even if confidentiality concerns

preclude the developer from identifying specific project location information at this

stage. These contacts also provide an opportunity to identify other potential issues

and data not already identified by the developer.

3. One or more reconnaissance level site visits by a wildlife biologist to evaluate current

vegetation/habitat coverage and land management/use. Current habitat and land use

practices will be noted to help in determining the baseline against which potential

impacts from the project would be evaluated. The vegetation/habitat will be used for

identifying potential bird and bat resources occurring at the site and the potential

presence of, or suitable habitat for, species of concern. Vegetation types or habitats

will be noted and evaluated against available information such as land use/land cover

mapping. Any sensitive resources located during the site visit will be noted and

mapped or digital location data recorded for future reference. Any individuals or

signs of species of concern observed during the site visit will be noted. If land access

agreements are not in place, access to the site will be limited to public roads.

Specific resources that can help answer each Tier 2 question include:

1. Are there known species of concern present on the proposed site, or is habitat

(including designated critical habitat) present for these species?

Information review and agency contact: locations of state and federally listed,

proposed and candidate species and species of concern are frequently documented

in state and federal wildlife databases. Examples include published literature such as:

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 20Chapter Three: The Tiered Approach/ Tier 2, Site Characterization

Natural Heritage Databases, State Wildlife Action Plans, NGOs publications, and

developer and consultant information, or can be obtained by contacting these

entities.

Site Visit: to the extent practicable, the site visit(s) should evaluate the suitability of

habitat at the site for species identified and the likelihood of the project to adversely

affect the species of concern that may be present.

2. Does the landscape contain areas where development is precluded by law or

designated as sensitive according to scientifically credible information? Examples of

designated areas include, but are not limited to: “areas of scientific importance;”

“areas of significant value;” federally

‐ designated critical habitat; high

‐ priority

conservation areas for NGOs; or other local, state, regional, federal, tribal, or

international categorizations.

Information review and agency contact such as: maps of political and administrative

boundaries; National Wetland Inventory data files; USGS National Land Cover data

maps; state, federal and tribal agency data on areas that have been designated to

preclude development, including wind energy development; State Wildlife Action

Plans; State Land and Water Resource Plans; Natural Heritage databases;

scientifically credible information provided by NGO and local resources; and the

additional resources listed in Appendix C of this document, or through contact of

agencies and NGOs, to determine the presence of high priority habitats for species of

concern or conservation areas.

Site Visit: to the extent practicable, the site visit(s) should characterize and evaluate

the uniqueness of the site vegetation relative to surrounding areas.

3. Are plant communities of concern present or likely to be present at the site(s)?

Information review and agency contact such as: Natural Heritage Data of state

rankings (S1, S2, S3) or globally (G1, G2, G3) ranked rare plant communities.

Site Visit: to the extent practicable, the site visit should evaluate the topography,

physiographic features and uniqueness of the site vegetation in relation to the

surrounding region.

4. Are there known critical areas of wildlife congregation, including, but not limited

to, maternity roosts, hibernacula, staging areas, winter ranges, nesting sites,

migration stopovers or corridors, leks, or other areas of seasonal importance?

Information review and agency contact such as: existing databases, State Wildlife

Action Plan, Natural Heritage Data, and NGO and agency information regarding the

presence of Important Bird Areas, migration corridors or stopovers, leks, bat

hibernacula or maternity roosts, or game winter ranges at the site and in the

surrounding area.

Site Visit: to the extent practicable, the site visit should evaluate the topography,

physiographic features and uniqueness of the site in relation to the surrounding

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 21Chapter Three: The Tiered Approach/ Tier 2, Site Characterization

region to assess the potential for the project area to concentrate resident or

migratory birds and bats.

5. Using best available scientific information, has the relevant federal, state, tribal,

and/or local agency independently demonstrated the potential presence of a

population of a species of habitat fragmentation concern? If not, the developer need

not assess impacts of the proposed project on habitat fragmentation.

Habitat fragmentation is defined as the separation of a block of habitat for a species

into segments, such that the genetic or demographic viability of the populations

surviving in the remaining habitat segments is reduced; and risk, in this case, is

defined as the probability that this fragmentation will occur as a result of the project.

Site clearing, access roads, transmission lines and turbine tower arrays remove

habitat and displace some species of wildlife, and may fragment continuous habitat

areas into smaller, isolated tracts. Habitat fragmentation is of particular concern

when species require large expanses of habitat for activities such as breeding and

foraging.

Consequences of isolating local populations of some species include decreased

reproductive success, reduced genetic diversity, and increased susceptibility to

chance events (e.g. disease and natural disasters), which may lead to extirpation or

local extinctions. In addition to displacement, development of wind energy

infrastructure may result in additional loss of habitat for some species due to “edge

effects” resulting from the break

‐ up of continuous stands of similar vegetation

resulting in an interface (edge) between two or more types of vegetation. The extent

of edge effects will vary by species and may result in adverse impacts from such

effects as a greater susceptibility to colonization by invasive species, increased risk of

predation, and competing species favoring landscapes with a mosaic of vegetation.

If the answer to Tier 2 Question 5 is yes, it is recommended the developer use the

general framework for evaluating habitat fragmentation at a project site in Tier 2

outlined below. Developers and USFWS may use this method to analyze the impacts

of habitat fragmentation at wind development project sites on species of habitat

fragmentation concern. USFWS offices can provide the available information on

habitat types, quality and intactness. Developers may use this information in

combination with site

‐ specific information on the potential habitats to be impacted

by a potential development and how they will be impacted.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 22Chapter Three: The Tiered Approach/ Tier 2, Site Characterization

General Framework for Evaluating Habitat Fragmentation at a Project Site (Tier 2)

A. The developer should define the study area. The study area should include the

Project Site (see Glossary) for the proposed project. The extent of the study

area should be based on the distribution of habitat for the local population of

the species of habitat fragmentation concern.

B. The developer should analyze the current habitat quality and spatial

configuration of the study area for the species of habitat fragmentation

concern.

i. Use recent aerial and remote imagery to determine distinct habitat

patches, or boundaries, within the study area, and the extent of existing

habitat fragmenting features (e.g., highways).

ii. Assess the level of fragmentation of the existing habitat for the species of

habitat fragmentation concern and categorize into three classes:

 High quality: little or no apparent fragmentation of intact habitat

 Medium quality: intact habitat exhibiting some recent disturbance

activity (e.g., off

‐ road vehicle (ORV) trails, roadways)

 Low quality: Extensive fragmentation of habitat (e.g., row

‐ cropped

agricultural lands, active surface mining areas)

C. The developer should determine potential changes in quality and spatial

configuration of the habitat in the study area if development were to proceed

as proposed using existing site information.

D. The USFWS should use the collective information from steps A

‐ C for all

potential developments to assess whether the habitat impacts, including

habitat fragmentation, are likely to affect population viability of the

potentially affected species of habitat fragmentation concern.

6. Which species of birds and bats, especially those known to be at risk by wind energy

facilities, are likely to use the proposed site based on an assessment of site

attributes?

Information review and agency contact: existing published information and

databases from NGOs and federal and state resource agencies regarding the

potential presence of:

• Raptors: species potentially present by season

• Prairie grouse and sage grouse: species potentially present by season and

location of known leks

• Other birds: species potentially present by season that may be at risk of

collision or adverse impacts to habitat, including loss, displacement and

fragmentation

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 23Chapter Three: The Tiered Approach/ Tier 2, Site Characterization

• Bats: species likely to be impacted by wind energy facilities and likely to occur

on or migrate through the site

Site Visit: To the extent practicable, the site visit(s) should identify landscape features

or habitats that could be important to raptors, prairie grouse, other birds that may be

at risk of adverse impacts, and bats, including nesting and brood

‐ rearing habitats,

areas of high prey density, movement corridors and features such as ridges that may

concentrate raptors. Raptors, prairie grouse, and other presence or sign of species of

concern seen during the site visit should be noted, with species identification if

possible.



### Tier 2 Decision Process

Possible outcomes of Tier 2 include the following:

1. The most likely outcome of Tier 2 is that the answer to one or more Tier 2 questions is

inconclusive to address wildlife risk, either due to insufficient data to answer the

question or because of uncertainty about what the answers indicate (for example,

Tier 2 site characterization may capture the presence of features indicating wildlife

congregation, but may not capture seasonality and spatial variation of wildlife use).

The developer proceeds to Tier 3, formulating questions, methods, and assessment

of potential mitigation measures based on issues raised in Tier 2 results.

2. Sufficient information is available to answer all Tier 2 questions, and the answer to

each Tier 2 question indicates a low probability of significant adverse impact to

wildlife (for example, infill or expansion of an existing facility where impacts have

been low and Tier 2 results indicate that conditions are similar, therefore wildlife risk

is low). The developer may then decide to proceed to permitting (if required), design,

and construction following best management practices (see Chapter Three, section

D).

3. The answers to one or more Tier 2 questions indicate a high probability of significant

adverse impacts to species of concern or their habitats that cannot be mitigated. The

proposed site should be abandoned.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 24Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies



### C. Tier 3: Field Studies to Document Site Wildlife Conditions

and Predict Project Impacts 

## Tier 3

Tier 3 is the first tier in which quantitative and scientifically rigorous

studies would be conducted to assess the potential risk of the proposed

project. Specifically, these studies provide pre

‐ construction information to:

• Further evaluate a site for determining whether the wind energy project should be

developed or abandoned

• Design and operate a site to avoid or minimize significant adverse impacts if a

decision is made to develop

• Design compensatory mitigation measures if significant adverse habitat impacts

cannot acceptably be avoided or minimized

• Determine if post

‐ construction studies are necessary

• If warranted, provide the pre

‐ construction component of Tier 5 studies necessary to

estimate impacts

Not all Tier 3 studies will continue into Tiers 4 or 5. For example, surveys conducted in Tier 3

for species of concern may indicate one or more species are not present at the proposed

project site, or siting decisions could be made in Tier 3 that remove identified concerns, thus

removing the need for continued efforts in later tiers. Additional detail on the design of Tier

5 studies that begin in Tier 3 is provided in the discussion of methods and metrics in Tier 5.



### Tier 3 Questions

Tier 3 begins as the other tiers begin, with problem formulation: what additional studies are

required to enable a decision as to whether the proposed project can proceed to

construction or operation or should be abandoned? This step includes an evaluation of data

gaps identified by Tier 2 studies as well as the gathering of data necessary to:

• Design a project to avoid or minimize predicted risk

• Evaluate predictions of impact and risk through post

‐ construction comparisons of

estimated impacts (i.e., Tier 4 and 5 studies)

• Identify compensatory mitigation measures, if appropriate, to offset unavoidable

significant adverse impacts

The decision to conduct a Tier 3 study depends on whether additional data are necessary to

answer the questions listed below. The duration, seasonality, and level of effort required to

answer each Tier 3 question depends on several factors, including but not limited to: the

question being addressed; site sensitivity; amount and quality of existing data from nearby

comparable sites with similar species and their habitats; seasons of occupancy; variability

within and between seasons and years where such variability is likely to substantially affect

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 25Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

answers to the Tier 3 questions; and affected species of concern. Existing state and federal

agency protocols will have established study duration and level of effort for some species.

When such established protocols are not available, or the developer believes it has good

cause not to apply them, the developer should communicate with federal or state natural

resource agencies, or other credible experts as appropriate, on project

‐ specific conditions,

and design studies that collect sufficient data to answer Tier 3 questions.

If, for example, adequate data are available from nearby sources or from studies of the site

being evaluated, then additional studies may be unnecessary. A reduced level of survey

effort may be warranted for certain projects, such as infill development, projects with low

potential risk for significant adverse impacts, some repowering projects, or projects

contiguous to existing low

‐ impact wind energy facilities

– provided these projects have

sufficient credible information regarding impacts. More effort and longer duration may be

needed for uncommon or rare species of concern, when there is little existing information,

or when deviation from normal environmental conditions (e.g., drought years) or variability

in the metric(s) of interest (e.g., bat activity) is considered so high that it is not otherwise

possible to categorize risk as high, moderate or low.

The problem formulation stage for Tier 3 also will include an assessment of which species

identified in Tier 1 and/or Tier 2 will be studied further in the site risk assessment. This

determination is based on analysis of existing data from Tier 1 and existing site

‐ specific data

and Project Site (see Glossary) visit(s) in Tier 2, and on the likelihood of presence and the

degree of adverse impact to species or their habitat. If the habitat is suitable for a species

needing further study and the site occurs within the historical range of the species, or is near

the existing range of the species but presence has not been documented, additional field

studies may be appropriate. Additional analyses should not be necessary if a species is

unlikely to be present or is present but adverse impact is unlikely or of minor significance.

Tier 3 studies address many of the questions identified for Tiers 1 and 2, but Tier 3 studies

differ because they attempt to quantify the distribution, relative abundance, behavior, and

site use of species of concern. Tier 3 data also attempt to estimate the extent that these

factors expose these species to risk from the proposed wind energy facility. Therefore, in

answering Tier 3 questions 1

‐ 3, developers should collect data sufficient to analyze and

answer Tier 3 questions 4

‐ 6.



### Tier 3 Study Design Issues

Tier 3 studies should be designed to answer the following questions:

1. Do field studies indicate that species of concern are present on or likely to use the

proposed site?

2. Do field studies indicate the potential for significant adverse impacts on the affected

population of the species of habitat fragmentation concern?

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 26Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

3. What is the distribution, relative abundance, behavior, and site use of species of

concern identified in Tiers 1 or 2, and to what extent do these factors expose these

species to risk from the proposed project?

4. What are the potential risks of adverse impacts of the proposed project to individuals

and local populations of species of concern and their habitats? (In the case of rare or

endangered species, what are the possible adverse impacts to entire species and

their habitats?)

5. If significant adverse impacts are predicted to species of concern, can these impacts

be mitigated?

6. Are there studies that should be initiated at this stage that would be continued in

either Tier 4 or Tier 5?



### Tier 3 Methods and Metrics

If Tier 3 studies are warranted, the Committee encourages the use of methods and metrics

that are common to all similar Tier 3 studies for measuring wildlife activity and habitat

features. Common methods and metrics provide great benefit over the long

‐ term, allowing

for comparisons among projects and for greater certainty regarding what will be asked of

the developer for a specific project. Deviation from commonly used methods should be

carefully considered, scientifically justifiable and discussed with federal, tribal, or state

natural resource agencies, or other credible experts, as appropriate. It may be useful to

consult other scientifically credible information sources.

Tier 3 studies will be designed to accommodate local and regional characteristics. The

specific protocols by which common methods and metrics are implemented in Tier 3 studies

depend on the question being addressed, the species or ecological communities being

studied and the characteristics of the study sites. Federally

‐ listed threatened and

endangered species, and some other species of concern and their habitats, may have

specific protocols required by local, state or federal agencies. The need for special surveys

and mapping that address these species and situations should be discussed with the

appropriate stakeholders.

In some instances, a single method will not adequately assess potential collision risk or

habitat impact. For example, when there are moderate to high levels of concern about risk

to nocturnally active species, such as migrating passerines and local and migrating bats, a

combination of remote sensing tools such as radar, and acoustic monitoring for bats and

indirect inference from diurnal bird surveys during the migration period may be necessary.

Answering questions about habitat use by songbirds may be accomplished by relatively

small

‐ scale observational studies, while answering the same question related to wide

‐ ranging species such as prairie grouse and sage grouse may require more time

‐ consuming

surveys, perhaps including telemetry.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 27Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

Because of the points raised above and the need for flexibility in application, the Committee

does not make specific recommendations on protocol elements for Tier 3 studies. The peer

‐

reviewed scientific literature (such as the articles cited throughout this section) contains

numerous recently published reviews of methods for assessing bird and bat activity, and

tools for assessing habitat and landscape level risk. Details on specific methods and

protocols for recommended studies are or will be widely available and should be consulted

by industry and agency professionals.

Many methods for assessing risk are components of active research involving collaborative

efforts of public

‐ private research partnerships with federal, state and tribal agencies, wind

energy developers and NGOs interested in wind energy

‐ wildlife interactions (e.g., Bats and

Wind Energy Cooperative and the Grassland Shrub Steppe Species Cooperative). Thus, while

acknowledging the value of utilizing common methods, the Committee also recognizes the

need to integrate the results of research that improves existing methods or describes new

methodological developments.

The remainder of this section outlines the methods and metrics that may be appropriate for

gathering data to answer Tier 3 questions. Each question is considered in turn, followed by a

discussion of the methods and their applicability.

1. Do field studies indicate that species of concern are present on or likely to use the

proposed site?

In many situations, this question can be answered based on information accumulated in Tier

2. Specific presence/absence studies may not be required, and protocol development will

focus on answering the remaining Tier 3 questions. Nevertheless, it may be necessary to

conduct field studies to determine the presence, or likelihood of presence, when little

information is available for a particular site. The level of effort normally contemplated for

Tier 3 studies should detect common species and species that are relatively rare, but which

visit a site regularly (e.g., every year). In the event a species of concern is very rare and only

occasionally visits a site, a determination of “likely to occur” would be inferred from the

habitat at the site and historical records of occurrence on or near the site.

State, federal and tribal agencies often require specific protocols be followed when species

of concern are potentially present on a site. The methods and protocols for determining

presence of species of concern at a site are normally established for each species and

required by federal, state and tribal resource agencies. Surveys should sample the wind

turbine sites and applicable disturbance area during seasons when species are most likely

present. Normally, the methods and protocols by which they are applied also will include an

estimate of relative abundance. Most presence/absence surveys should be done following a

probabilistic sampling protocol to allow statistical extrapolation to the area and time of

interest.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 28Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

Acoustic monitoring can be a practical method for determining the presence of threatened,

endangered or otherwise rare species of bats throughout a proposed project (Kunz et al.

2007). There are two general types of acoustic detectors used for collection of information

on bat activity and species identification: the full

‐ spectrum, time

‐ expansion and the zero

‐ crossing techniques for ultrasound bat detection (see Kunz et al. 2007 for detailed

discussion). Full

‐ spectrum time expansion detectors provide nearly complete species

discrimination, while zero

‐ crossing detectors provide reliable and cost

‐ effective estimates of

total bat use at a site and some species discrimination. Myotis species can be especially

difficult to discriminate with zero

‐ crossing detectors (Kunz et al. 2007). Kunz et al. (2007)

describe the strengths and weaknesses of each technique for ultrasonic bat detection, and

either type of detector may be useful in most situations except where species identification

is especially important and zero

‐ crossing methods are inadequate to provide the necessary

data. Bat acoustics technology is evolving rapidly and study objectives are an important

consideration when selecting detectors. When rare or endangered species of bats are

suspected, sampling should occur during different seasons and at multiple sampling stations

to account for temporal and spatial variability.

Mist

‐ netting for bats is required in some situations by state agencies, Tribes, and the USFWS

to determine the presence of threatened, endangered or otherwise rare species. Mist

‐ netting is best used in combination with acoustic monitoring to inventory the species of bats

present at a site, especially to detect the presence of threatened or endangered species.

Efforts should concentrate on potential commuting, foraging, drinking, and roosting sites

(Kuenzi and Morrison 1998, O'Farrell et al. 1999). Mist

‐ netting and other activities that

involve capturing and handling threatened or endangered species of bats will require

permits from state and/or federal agencies.

Determining the presence of diurnally or nocturnally active mammals, reptiles, amphibians,

and other species of concern will typically be accomplished by following agency

‐ required

protocols. Most listed species have required protocols for detection (e.g., the black

‐ footed

ferret). State, tribal and federal agencies should be contacted regarding survey protocols for

those species of concern. See Corn and Bury 1990, Olson et al. 1997, Bailey et al. 2004,

Graeter et al. 2008 for examples of reptile and amphibian protocols, survey and analytical

methods.

2. Do field studies indicate significant adverse impacts on species of habitat

fragmentation concern?

If the answer to Tier 2 Question 5 was yes, but existing information did not allow for a

complete analysis of potential impacts and decision

‐ making, then additional studies and

analyses should take place in Tier 3.

As in Tier 2, the particulars of the analysis will depend on the species of habitat

fragmentation concern and how habitat block size and fragmentation are defined for the life

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 29Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

cycles of that species, the likelihood that the project will adversely affect a local population

of the species and the significance of these impacts to the viability of that population.

To assess habitat fragmentation in the project vicinity, developers should evaluate

landscape characteristics of the proposed site prior to construction and determine the

degree to which habitat for species of habitat fragmentation concern will be significantly

altered by the presence of a wind energy facility.

A general framework for evaluating habitat fragmentation at a project site, following that

described in Tier 2, is outlined below. This framework should be used in those circumstances

when the USFWS, or a relevant federal, state, tribal and/or other local agency demonstrates

the potential presence of a population of a species of habitat fragmentation concern that

may be adversely affected by the project. Otherwise, the developer need not assess the

impacts of the proposed project on habitat fragmentation. This method for analysis of

habitat fragmentation at project sites must be adapted to the local population of the species

of habitat fragmentation concern potentially affected by the proposed development.

The developer should:

1. Define the study area. The study area for the site should include the “footprint” for

the proposed facility plus an appropriate surrounding area. The extent of the study

area should be based on the area where there is potential for significant adverse

habitat impacts, including displacement, within the distribution of habitat for the

species of habitat fragmentation concern.

2. Determine the potential for occupancy of the study area based on the guidance

provided for the species of habitat fragmentation concern described above in

Question 1.

3. Analyze current habitat quality and spatial configuration of the study area for the

species of habitat fragmentation concern.

a. Use recent aerial or remote imagery to determine distinct habitat patches or

boundaries within the study area, and the extent of existing habitat fragmenting

features.

i. Assess the level of fragmentation of the existing habitat for the species

of habitat fragmentation concern and categorize into three classes:

 High quality: little or no apparent fragmentation of intact

habitat

 Medium quality: intact habitat exhibiting some recent

disturbance activity (e.g., timber clearing, ORV trails,

roadways)

 Low quality: extensive fragmentation of habitat (e.g., row

‐ cropped agricultural lands, active surface mining areas)

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 30Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

ii. Determine edge and interior habitat metrics of the study area:

 Identify habitat, non

‐ habitat landscape features and

existing fragmenting features relative to the species of

habitat fragmentation concern, to estimate existing edge

 Calculate area and acres of edge

 Calculate area of intact patches of habitat and compare to

needs of species of habitat fragmentation concern

b. Determine potential changes in quality and spatial configuration of the habitat in

the study area if development proceeds as proposed using existing site

information and the best available spatial data regarding placement of wind

turbines and ancillary infrastructure:

i. Identify, delineate and classify all additional features added by the

development that potentially fragment habitat for the species of

habitat fragmentation concern (e.g., roads, transmission lines,

maintenance structures, etc.)

ii. Assess the expected future size and quality of habitat patches for

the species of habitat fragmentation concern and the additional

fragmenting features, and categorize into three classes as

described above

iii. Determine expected future acreages of edge and interior habitats

iv. Calculate the area of the remaining patches of intact habitat

c. Compare pre

‐ construction and expected post

‐ construction fragmentation

metrics:

i. Determine the area of intact habitat lost (to the displacement

footprint or by alteration due to the edge effect)

ii. Identify habitat patches that are expected to be moved to a lower

habitat quality classification as a result of the development

4. Assess the likelihood of a significant reduction in the demographic and genetic viability of

the local population of the species of habitat fragmentation concern using the habitat

fragmentation information collected under item 3 above and any currently available

demographic and genetic data. Based on this assessment, the developer makes the

finding whether or not there is significant reduction. The developer is encouraged to

share the finding with the relevant agencies. If the developer finds the likelihood of a

significant reduction, the developer should consider items a, b or c below:

a. Consider alternative locations and development configurations to minimize

fragmentation of habitat in communication with species experts, for all species

of habitat fragmentation concern in the area of interest.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 31Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

b. Identify high quality habitat parcels that may be protected as part of a plan to

limit future loss of habitat for the impacted population of the species of habitat

fragmentation concern in the area.

c. Identify areas of medium or low quality habitat within the range of the

impacted population that may be restored or improved to compensate for

losses of habitat that result from the project (e.g., management of unpaved

roads and ORV trails).

This protocol for analysis of habitat fragmentation at project sites should be adapted to the

species of habitat fragmentation concern as identified in response to Question 5 in Tier 2 and

to the landscape in which development is contemplated.

3. What is the distribution, relative abundance, behavior, and site use of species of

concern identified in Tiers 1 or 2, and to what extent do these factors expose these

species to risk from the proposed wind energy project?

For those species of concern that are considered at risk of collisions or habitat impacts, the

questions to be answered in Tier 3 include: where are they likely to occur (i.e., where is their

habitat) within a project site or vicinity, when might they occur, and in what abundance. The

spatial distribution of species at risk of collision can influence how a site is developed. This

distribution should include the airspace for flying species with respect to the rotor

‐ swept

zone. The abundance of a species and the spatial distribution of its habitat can be used to

determine the relative risk of impact to species using the sites, and the absolute risk when

compared to existing projects where similar information exists. Species abundance and

habitat distribution can also be used in modeling risk factors.

Surveys for spatial distribution and relative abundance require coverage of the wind turbine

sites and applicable site disturbance area, or a sample of the area using observational

methods for the species of concern during the seasons of interest. As with

presence/absence (see Tier 3, question 1, above) the methods used to determine

distribution, abundance, and behavior may vary with the species and its ecology. Spatial

distribution is determined by applying presence/absence or using surveys in a probabilistic

manner over the entire area of interest.



### Bird distribution, abundance, behavior and site use

Diurnal Avian Activity Surveys

The commonly used data collection methods for estimating the spatial distribution and

relative abundance of diurnal birds includes counts of birds seen or heard at specific

survey points (point count) or along transects (transect surveys). Both methods result in

estimates of bird use, which are assumed to be indices of abundance in the area

surveyed. Absolute abundance is difficult to determine for most species and is not

necessary to evaluate species risk. Surveys for raptor and other large bird use should be

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 32Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

done using point counts. Depending on the characteristics of the area of interest and the

bird species potentially affected by the project, additional pre

‐ construction study

methods may be necessary. Point counts or line transects should collect vertical as well

as horizontal data to identify levels of activity within the rotor

‐ swept zone.

Avian point counts should follow the general methodology described by Reynolds et al.

(1980) for point counts within a fixed area, or the line transect survey similar to Schaffer

and Johnson (2008), where all birds seen within a fixed distance of a line are counted.

These methods are most useful for pre

‐ and post

‐ construction studies to quantify avian

use of the project site by habitat, determine the presence of species of concern, and to

provide a baseline for assessing displacement effects and habitat loss. Point counts for

large birds (e.g., raptors) follow the same point count method described by Reynolds et

al. (1980).

Point count plots or transects should allow for statistical extrapolation of data and be

distributed throughout the area of interest using a probability sampling approach (e.g.,

systematic sample with a random start). For most projects, the area of interest is the

area where wind turbines and permanent meteorological (met) towers are proposed or

expected to be sited. Alternatively, the centers of the larger plots can be located at

vantage points throughout the potential area being considered with the objective of

covering most of the area of interest. Flight height should also be collected to focus

estimates of use on activity occurring in the rotor

‐ swept zone.

Sampling duration and frequency will be determined on a project

‐ by

‐ project basis and by

the questions being addressed. The most important consideration for sampling

frequency when estimating abundance is the amount of variation expected among

survey dates and locations and the species of concern.

The use of comparable methods and metrics should allow data comparison from plot to

plot within the area of interest and from site to site where similar data exist. The data

should be collected so that avian activity can be estimated within the rotor

‐ swept zone.

Relating use to site characteristics requires that samples of use also measure site

characteristics thought to influence use (i.e., covariates such as vegetation and

topography) in relation to the location of use. The statistical relationship of use to these

covariates can be used to predict occurrence in unsurveyed areas during the survey

period and for the same areas in the future.

Surveys should be conducted at different intervals during the year to account for

variation in expected bird activity with lower frequency during winter months if avian

activity is low. Sampling frequency should also consider the episodic nature of activity

during fall and spring migration. Standardized protocols for estimating avian abundance

are well

‐ established and should be consulted (e.g., Dettmers et al. 1999). If a more

precise estimate of density is required for a particular species (e.g., when the goal is to

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 33Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

determine densities of a special

‐ status breeding bird species), the researcher will need

more sophisticated sampling procedures, including estimates of detection probability.

Raptor Nest Searches

An estimate of raptor use of the project site is obtained through the point counts, but if

potential impacts to breeding raptors are a concern on a project, raptor nest searches

are also recommended. These surveys provide information to predict risk to the local

breeding population of raptors, for micro

‐ siting decisions, and for developing an

appropriate

‐ sized non

‐ disturbance buffer around nests. Surveys also provide baseline

data for estimating impacts and determining mitigation requirements.

Searches for raptor nests or raptor breeding territories on projects with potential for

impacts to raptors should be conducted in suitable habitat during the breeding season.

While there is no consensus on the recommended buffer zones around nest sites to

avoid disturbance of most species (Sutter and Jones 1981), a nest search within at least

one mile of the wind turbines and transmission lines should locate most raptor nests

potentially affected by the development.

Methods for these surveys are fairly common and will vary with the species, terrain, and

vegetation within the survey area. It is recommended that draft protocols be discussed

with biologists from the lead agency, USFWS, state wildlife agency, and Tribes where

they have jurisdiction. It may be useful to consult other scientifically credible information

sources. At minimum, the protocols should contain the list of target raptor species for

nest surveys and the appropriate search protocol for each site, including timing and

number of surveys needed, search area, and search techniques.

Prairie Grouse and Sage Grouse Population Assessments

Sage grouse and prairie grouse merit special attention in this context for three reasons:

1. The scale and biotic nature of their habitat requirements uniquely position them as

reliable indicators of impacts on, and needs of, a suite of species that depend on sage

and grassland habitats, which are among the nation’s most diminished ecological

communities (Vodehnal and Haufler 2007).

2. Their ranges and habitats are highly congruent with the nation’s richest inland wind

resources.

3. They are species for which some known impacts of anthropogenic features (e.g., tall

structures, buildings, roads, transmission lines, wind energy facilities, etc.) have been

documented.

Populations of prairie grouse and sage grouse generally are assessed by either lek counts

(a count of the maximum number of males attending a lek) or lek surveys (classification

of known leks as active or inactive) during the breeding season (e.g., Connelly et al.

2000). Methods for lek counts vary slightly by species but in general require repeated

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 34Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

visits to known sites and a systematic search of all suitable habitat for leks, followed by

repeated visits to active leks to estimate the number of grouse using them.

Recent research indicates that viable prairie grouse and sage grouse populations are

dependent on suitable nesting and brood

‐ rearing habitat (Connelly et al. 2000, Hagen et

al. 2009). These habitats generally are associated with leks. Leks are the approximate

centers of nesting and brood

‐ rearing habitats (Connelly et al. 2000, but see Connelly et

al. 1988; Becker et al. 2009,). High quality nesting and brood rearing habitats surrounding

leks are critical to sustaining viable prairie grouse and sage grouse populations (Giesen

and Connelly 1993, Hagen et al. 2004, Connelly et al. 2000). A population assessment

study area should include nesting and brood rearing habitats that may extend several

miles from leks. For example, greater and lesser prairie

‐ chickens generally nest in

suitable habitats within one to two miles of active leks (Hagen et al. 2004), whereas the

average distances from nests to active leks of non

‐ migratory sage grouse range from 0.7

to four miles (Connelly et al. 2000), and potentially much more for migratory populations

(Connelly et al. 1988).

While surveying leks during the spring breeding season is the most common and

convenient tool for monitoring population trends of prairie grouse and sage grouse,

documenting available nesting and brood rearing habitat within and adjacent to the

potentially affected area is recommended. Suitable nesting and brood rearing habitats

can be mapped based on habitat requirements of individual species. The distribution

and abundance of nesting and brood rearing habitats can be used to help in the

assessment of adverse impacts of the proposed project to prairie grouse and sage

grouse.

Mist

‐ Netting for Birds

Mist

‐ netting is not recommended as a method for assessing risk of wind development

for birds. Mist

‐ netting cannot generally be used to develop indices of relative bird

abundance, nor does it provide an estimate of collision risk as mist

‐ netting is not

feasible at the heights of the rotor

‐ swept zone and captures below that zone may not

adequately reflect risk. Operating mist

‐ nets is expensive and requires considerable

experience, as well as state and federal permits.

Occasionally mist

‐ netting can help confirm the presence of rare species at documented

fallout or migrant stopover sites near a proposed project. If mist

‐ netting is to be used, it

is recommended that procedures for operating nets and collecting data be followed in

accordance with Ralph et al. (1993).

Nocturnal Bird Survey Methods

Additional studies using different methods will be required if characteristics of the

project site and surrounding areas potentially pose a high risk of collision to night

migrating songbirds and other nocturnally active species. For most of their flight,

songbirds and other nocturnal migrants are above the reach of wind turbines, but they

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 35Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

pass through the altitudinal range of wind turbines during ascents and descents and

may also fly closer to the ground during inclement weather (Able, 1970; Richardson,

2000). Factors affecting flight path, behavior, and “fall

‐ out” locations of nocturnal

migrants are reviewed elsewhere (e.g., Williams et al., 2001; Gauthreaux and Belser,

2003; Richardson, 2000; Mabee et al., 2006).

In general, pre

‐ construction nocturnal studies are not recommended unless the site has

features that might strongly concentrate nocturnal birds, such as along coastlines that

are known to be migratory songbird corridors. Biologists knowledgeable about

nocturnal bird migration and familiar with patterns of migratory stopovers in the region

should assess the potential risks to nocturnal migrants at a proposed project site. No

single method can adequately assess the spatial and temporal variation in nocturnal bird

populations or the potential collision risk. Following nocturnal study methods in Kunz et

al. (2007) is recommended to determine relative abundance, flight direction and flight

altitude for assessing risk to migrating birds, if warranted. If areas of interest are within

the range of nocturnal species of concern (e.g., marbled murrelet, northern spotted

owl, Hawaiian petrel, Newell’s shearwater), surveyors should use species

‐ specific

protocols recommended by state wildlife agencies, Tribes or USFWS to assess the

species’ potential presence in the area of interest.

In contrast to the diurnal avian survey techniques previously described, considerable

variation and uncertainty exist on the optimal protocols for using acoustic monitoring

devices, radar, and other techniques to evaluate species composition, relative

abundance, flight height, and trajectory of nocturnal migrating birds. While an active

area of research, the use of radar for determining passage rates, flight heights and flight

directions of nocturnal migrating animals has yet to be shown as a good indicator of

collision risk. Pre

‐ and post

‐ construction studies comparing radar monitoring results to

estimates of bird and bat fatalities will be required to evaluate radar as a tool for

predicting collision risk. Additional studies are also needed before making

recommendations on the number of nights per season or the number of hours per night

that are appropriate for radar studies of nocturnal bird migration (Mabee et al., 2006).



### Bat survey methods

It is recommended that all techniques discussed below be conducted by biologists

trained in bat identification, equipment use, and the analysis and interpretation of data

resulting from the design and conduct of the studies. Activities that involve capturing

and handling bats may require permits from state and/or federal agencies.

Acoustic Monitoring

Acoustic monitoring provides information about bat presence and activity, as well as

seasonal changes in species occurrence and use, but does not measure the number of

individual bats or population density. The goal of acoustic monitoring is to provide a

prediction of the potential risk of bat fatalities resulting from the construction and

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 36Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

operation of a project. Our current state of knowledge about bat

‐ wind turbine

interactions, however, does not allow a quantitative link between pre

‐ construction

acoustic assessments of bat activity and operations fatalities. Discussions with experts,

state wildlife trustee agencies, Tribes, and USFWS will be needed to determine whether

acoustic monitoring is warranted at a proposed project site.

The predominance of bat fatalities detected to date are migratory species and acoustic

monitoring should adequately cover periods of migration and periods of known high

activity for other (i.e., non

‐ migratory) species. Monitoring for a full year is

recommended in areas where there is year round bat activity. Data on environmental

variables such as temperature and wind speed should be collected concurrently with

acoustic monitoring so these weather data can be used in the analysis of bat activity

levels.

The number and distribution of sampling stations necessary to adequately estimate bat

activity have not been well established but will depend, at least in part, on the size of

the project area, variability within the project area, and a Tier 2 assessment of potential

bat occurrence.

The number of detectors needed to achieve the desired level of precision will vary

depending on the within

‐ site variation (e.g., Arnett et al. 2006, Weller 2007, E.B. Arnett,

Bat Conservation International, unpublished data). The Committee recommends placing

acoustic detectors on existing met towers, approximately every two kilometers across

the site where turbines are expected to be sited. Acoustic detectors should be placed at

high positions (as high as practicable, based on tower height) on each met tower

included in the sample to record bat activity at or near the rotor swept zone, the area of

presumed greatest risk for bats. Developers should evaluate whether it would be cost

effective to install detectors when met towers are first established on a site. Doing so

might reduce the cost of installation later and might alleviate time delays to conduct

such studies.

If sampling at met towers does not adequately cover the study area or provide

sufficient replication, the Committee recommends that additional sampling stations be

established at low positions (~1.5

‐ 2 meters) at a sample of existing met towers and one

or more mobile units (i.e., units that are moved to different locations throughout the

study period) to increase coverage of the proposed project area. When practical, the

Committee recommends some acoustic monitoring of features identified as potentially

high bat use areas within the study area (e.g., bat roosts and caves) to determine use of

such features.

There is growing interest in determining whether “low” position samples (~1.5

‐ 2 meters)

can provide equal or greater correlation with bat fatalities than “high” position samples

(described above) because this would substantially lower cost of this work. Developers

could then install a greater number of detectors at lower cost resulting in improved

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 37Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

estimates of bat activity and, potentially, improved qualitative estimates of risk to bats.

This is a research question that is not expected to be addressed at a project.



### Other bat survey techniques

Occasionally, other techniques may be needed to answer Tier 3 questions and

complement the information from acoustic surveys. Kunz et al. (2007), NAS (2007),

Kunz and Parsons (2009) provide comprehensive descriptions of bat survey techniques,

including those identified below that are relevant for Tier 3 studies at wind energy

facilities.

Roost Searches and Exit Counts

Pre

‐ construction survey efforts may be recommended to determine whether known or

likely bat roosts in mines, caves, bridges, buildings, or other potential roost sites occur

within the project vicinity, and to confirm whether known or likely bat roosts are

present and occupied by bats. If active roosts are detected, it may be appropriate to

address questions about colony size and species composition of roosts. Exit counts and

roost searches are two approaches to answering these questions, and Rainey (1995),

Kunz and Parsons (2009), and Sherwin et al. (2009) are resources that describe options

and approaches for these techniques. Roost searches should be performed cautiously

because roosting bats are sensitive to human disturbance (Kunz et al. 1996). Known

maternity and hibernation roosts should not be entered or otherwise disturbed unless

authorized by state and/or federal wildlife agencies. Internal searches of abandoned

mines or caves can be dangerous and should only be conducted by trained researchers.

For mine survey protocol and guidelines for protection of bat roosts, see the appendices

in Pierson et al. (1999). Exit surveys at known roosts generally should be limited to non

‐

invasive observation using low

‐ light binoculars and infrared video cameras.

Multiple surveys will be required to determine the presence or absence of bats in caves

and mines, and the number of surveys needed will vary by species of bats, sex (maternity or bachelor colony) of bats, seasonality of use, and type of roost structure

(e.g., caves or mines). For example, Sherwin et al. (2003) demonstrated that a minimum

of three surveys are needed to determine the absence of large hibernating colonies of

Townsend’s big

‐ eared bats ( Corynorhinus townsendii ) in mines (90 percent probability),

while a minimum of nine surveys (during a single warm season) are necessary before a

mine could be eliminated as a bachelor roost for this species (90 percent probability).

An average of three surveys was needed before surveyed caves could be eliminated as

bachelor roosts (90 percent probability). It is recommended that decisions on level of

effort follow discussion with relevant agencies and bat experts.

Activity Patterns

If active roosts are detected, it may be necessary to answer questions about behavior,

movement patterns, and patterns of roost use for bat species of concern, or to further

investigate habitat features that might attract bats and pose fatality risk. For some bat

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 38Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

species, typically threatened, endangered, or state

‐ listed species, radio telemetry or

radar may be recommended to assess both the direction of movement as bats leave

roosts, and the bats’ use of the area being considered for development. Kunz et al.

(2007) describe the use of telemetry, radar and other tools to evaluate use of roosts,

activity patterns, and flight direction from roosts.

Mist

‐ Netting for Bats

While mist

‐ netting for bats is required in some situations by state agencies, Tribes, and

the USFWS to determine the presence of threatened, endangered or other bat species

of concern, mist

‐ netting is not generally recommended for determining levels of activity

or assessing risk of wind energy development to bats for the following reasons: 1) not

all proposed or operational wind energy facilities offer conditions conducive to

capturing bats, and often the number of suitable sampling points is minimal or not

closely associated with the project location; 2) capture efforts often occur at water

sources offsite or at nearby roosts and the results may not reflect species presence or

use on the site where turbines are to be erected; and 3) mist

‐ netting isn’t feasible at the

height of the rotor

‐ swept zone, and captures below that zone may not adequately

reflect risk of fatality. If mist

‐ netting is employed, it is best used in combination with

acoustic monitoring to inventory the species of bats present at a site.



### Other wildlife

While the above guidance emphasizes the evaluation of potential impacts to birds and

bats, Tier 1 and 2 evaluations may identify other species of concern. Developers are

encouraged to assess adverse impacts potentially caused by development for those

species most likely to be negatively affected by such development. Impacts to other

species are primarily derived from potential habitat loss or displacement. The general

guidance on the study design and methods for estimation of the distribution, relative

abundance, and habitat use for birds is applicable to the study of other wildlife.

Nevertheless, most methods and metrics will be species

‐ specific and developers are

advised to work with the state, tribal, or federal agencies, or other credible experts, as

appropriate, during problem formulation for Tier 3.

4. What are the potential risks of adverse impacts of the proposed wind energy project to

individuals and local populations of species of concern and their habitats? (In the case

of rare or endangered species, what are the possible impacts to entire species and their

habitats?)

Methods used for estimating risk will vary with the species of concern. For example,

estimating potential bird fatalities in Tier 3 may be accomplished by comparing exposure

estimates (described earlier in estimates of bird use) at the proposed site with exposure

estimates and fatalities at existing projects with similar characteristics (e.g., similar

technology, landscape, and weather conditions). If models are used, they may provide an

additional tool for estimating fatalities, and have been used in Australia (Organ and

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 39Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

Meredith 2004), Europe (Chamberlin et al. 2006), and the United States (Madders and

Whitfield 2006). As with other prediction tools, model predictions should be evaluated and

compared with post

‐ construction fatality data to validate the models. Models should be

used as a subcomponent of a risk assessment based on the best available empirical data. A

statistical model based on the relationship of pre

‐ construction estimates of raptor

abundance and post

‐ construction raptor fatalities is described in Strickland et al. (in review)

and promises to be a useful tool for risk assessment.

Collision risk to individual birds and bats at a particular wind energy facility may be the result

of complex interactions among species distribution, relative abundance, behavior, weather

conditions (e.g., wind, temperature) and site characteristics. Collision risk for an individual

may be low regardless of abundance if its behavior does not place it within the rotor

‐ swept

zone. If individuals frequently occupy the rotor

‐ swept zone but effectively avoid collisions,

they are also at low risk of collision with a turbine (e.g. ravens). Alternatively, if the behavior

of individuals frequently places them in the rotor

‐ swept zone, and they do not actively avoid

turbine blade strikes, they are at higher risk of collisions with turbines regardless of

abundance. For a given species (e.g., red

‐ tailed hawk), increased abundance increases the

likelihood that individuals will be killed by turbine strikes, although the risk to individuals will

remain about the same. The risk to a population increases as the proportion of individuals in

the population at risk to collision increases.

At some projects, bat fatalities are higher than bird fatalities, but the exposure risk of bats at

these facilities is not fully understood (National Research Council (NRC) 2007). Horn et al.

(2008) and Cryan (2008) hypothesize that bats are attracted to turbines, which, if true,

would further complicate estimation of exposure. Further research is required to determine

if bats are attracted to turbines and if so, to evaluate 1) the influence on Tier 2 methods and

predictions, and 2) if this increased individual risk translates into higher population

‐ level

impacts for bats.

The estimation of displacement risk requires an understanding of animal behavior in

response to a project and its infrastructure, and a pre

‐ construction estimate of

presence/absence of species whose behavior would cause them to avoid areas in proximity

to turbines, roads and other components of the project. The amount of habitat that is lost to

indirect impacts will be a function of the sensitivity of individuals to the project and to the

activity levels associated with the project’s operations. The population

‐ level significance of

this habitat loss will depend on the amount of habitat available to the affected population. If

the loss of habitat results in habitat fragmentation, then the risk to the demographic and

genetic viability of the isolated animals is increased. Quantifying cause and effect may be

very difficult, however.

5. If significant adverse impacts are predicted to species of concern, can these impacts be

mitigated?

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 40Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

Results of Tier 3 studies should provide a basis for identifying measures to mitigate

significant adverse impacts predicted for species of concern. Information on wildlife use of

the proposed area is most useful when designing a project to avoid or minimize significant

adverse impacts. In cases of uncertainty with regard to impacts to species of concern,

additional studies may be necessary to quantify significant adverse impacts and determine

the need for mitigation of those impacts.

The following discussion of prairie grouse and sage grouse as species of concern describes

the present state of scientific knowledge relative to these species, which should be

considered when designing mitigation measures. The extent of the impact of wind energy

development on prairie grouse and sage grouse leking activity (e.g., social structure, mating

success, persistence, etc.) and the associated impacts on productivity (e.g., nesting, nest

success, chick survival, etc.) is poorly understood (Arnett et al. 2007, NRC 2007, Manville

2004). However, recent published research documents that anthropogenic features (e.g.,

tall structures, buildings, roads, transmission lines, etc.) can adversely impact vital rates

(e.g., nesting, nest success, leking behavior, etc.) of lesser prairie

‐ chickens (Pruett et al.

2009, Pitman et al. 2005, Hagen et al. 2009, Hagen et al. In press) and greater prairie

‐

chickens (Robel, Pers Comm.) over long distances. Pitman et al. (2005) found that

transmission lines reduced nesting of lesser prairie chicken by 90 percent out to a distance

of 0.25 miles, improved roads at a distance of 0.25 miles, a house at 0.3 miles, and a power

plant at >0.6 miles. Reduced nesting activity of lesser prairie chickens may extend farther,

but Pitman et al. (2005) did not analyze their data for lower impacts (less than 90 percent

reduction in nesting) of those anthropogenic features on lesser prairie chicken nesting

activities at greater distances. Hagen et al. (In press) suggested that development within 1 to

1 1⁄2 miles of active leks of prairie grouse may have significant adverse impacts on the

affected grouse population. It is not unreasonable to infer that impacts from wind energy

facilities may be similar to those from these other anthropogenic structures. Kansas State

University, as part of the NWCC GS3C, is undertaking a multi

‐ year telemetry study to

evaluate the effects of a proposed wind

‐ energy facility on displacement and demographic

parameters (survival, nest success, brood success, fecundity) of greater prairie

‐ chickens in

Kansas. 13

The distances over which anthropogenic activities impact sage grouse are greater than for

prairie grouse. Based primarily on data documenting reduced fecundity (a combination of

nesting, clutch size, nest success, juvenile survival, and other factors) in sage grouse

populations near roads, transmissions lines, and areas of oil and gas

development/production (Holloran 2005, Connelly et al. 2000), development within three to

five miles (or more) of active sage grouse leks may have significant adverse impacts on the

affected grouse population. Lyon and Anderson (2003) found that in habitats fragmented by

natural gas development, only 26 percent of hens captured on disturbed leks nested within

1.8 miles of the lek of capture, whereas 91 percent of hens from undisturbed areas nested

within the same area. Holloran (2005) found that active drilling within 3.1 miles of sage

13 www.nationalwind.org

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 41Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

grouse lek reduced the number of breeding males by displacing adult males and reducing

recruitment of juvenile males. The magnitudes and proximal causes (e.g., noise, height of

structures, movement, human activity, etc.) of those impacts on vital rates in grouse

populations are areas of much needed research (Becker et al. 2009). Data accumulated

through such research may improve our understanding of the buffer distances necessary to

avoid or minimize significant adverse impacts to prairie grouse and sage grouse populations.

When significant adverse impacts cannot be fully avoided or adequately minimized, some

form of compensatory mitigation may be appropriate to address the loss of habitat value.

For example, it may be possible to mitigate habitat loss or degradation for a species of

concern by enhancing or restoring nearby habitat value comparable to that potentially

influenced by the project. More detail is provided on this topic in Chapter Four.

6. Are there studies that should be initiated at this stage that would be continued in either

Tier 4 or Tier 5?

During Tier 3 problem formulation, it is necessary to identify the studies needed to address

the Tier 3 questions. Consideration of how the resulting data may be used in conjunction

with post

‐ construction Tier 4 and 5 studies is also recommended. The design of post

‐

construction impact or mitigation assessment studies will depend on the specific impact

questions being addressed. Tier 3 predictions of fatalities will be evaluated using data from

Tier 4 studies designed to estimate fatalities. Tier 3 studies may demonstrate the need for

compensatory mitigation of significant adverse habitat impacts or for measures to avoid or

minimize fatalities. Where significant adverse habitat impacts are of major concern, Tier 5

studies will provide data that evaluate the predicted impacts and the effectiveness of

avoidance, minimization and mitigation measures. Evaluation of the impact of a project on

demographic parameters of local populations, habitat use, or some other parameter(s),

typically will require data on these parameters prior to and after construction of the project.



### Tier 3 Decision Point

At the end of Tier 3, the developer and potentially the permitting authority will make a

decision regarding whether and how to develop the project. The decision point at the end of

Tier 3 involves three potential outcomes:

1. Development of the site has a high probability of acceptable environmental impact

based on existing and new information.

There is little uncertainty regarding when and how development should proceed, and

adequate information exists to satisfy any required permitting. The decision process

proceeds to permitting, when required, and/or development, and pre

‐ construction

surveys are terminated.

2. Development of the site has a relatively high probability of unacceptable significant

adverse impacts without proper measures being taken to mitigate those impacts. This

outcome may be subdivided into two possible scenarios:

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 42Chapter Three: The Tiered Approach/ Tier 3, Pre

‐ Construction Field Studies

a. There is certainty regarding how to develop the site to adequately mitigate

significant adverse impacts. A decision to develop the site is made, conditional on

the proper mitigation measures being adopted, with appropriate follow

‐ up

fatality studies (Tier 4) and habitat studies, if necessary (Tier 5).

b. There is uncertainty regarding how to develop the site to adequately mitigate

significant adverse impacts, or a permitting process requires additional

information on potential significant adverse wildlife impacts before permitting

future phases of the project. A decision to develop the site is made conditional on

the proper mitigation measures being taken and with appropriate follow up post

‐

construction studies (Tier 4 and 5).

3. Development of the site has a high probability of unacceptable environmental impact

that cannot be satisfactorily mitigated.

Site development is delayed until plans can be developed that satisfactorily avoid, minimize

or provide compensatory mitigation for the significant adverse impacts. Alternatively, the

site is abandoned in favor of known sites with less potential for environmental impact, or

the developer begins an evaluation of other sites or landscapes for more acceptable sites to

develop.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 43Chapter Three: The Tiered Approach/ Construction BMPs



### D. Site Construction: Site Development and Construction Best Management

Practices

During site planning and development, careful attention to reducing risk of adverse impacts

to species of concern from wind energy projects, through careful site selection and facility

design, is recommended. The following BMPs can assist a developer in the planning process

to reduce potential impacts to species of concern. Use of these BMPs should ensure that the

potentially adverse impacts to most species of concern and their habitats present at many

project sites would be reduced, although compensatory mitigation may be appropriate at a

project level to address significant site

‐ specific concerns and pre

‐ construction study results.

These BMPs will evolve over time as additional experience, learning, monitoring and

research becomes available on how to best minimize wildlife and habitat impacts from wind

energy projects. USFWS should work with the industry, stakeholders and states to evaluate,

revise and update these BMPs on a periodic basis, and the USFWS should maintain a readily

available publication of recommended, generally accepted best practices.

1. Minimize, to the extent practicable, the area disturbed by pre

‐ construction site

monitoring and testing activities and installations.

2. Avoid locating wind energy facilities in areas identified as having a demonstrated and

unmitigatable high risk to birds and bats.

3. Use available data from state and federal agencies, and other sources (which could

include maps or databases), that show the location of sensitive resources and the results

of Tier 2 and/or 3 studies to establish the layout of roads, power lines, fences, and other

infrastructure.

4. Use native species when seeding or planting during restoration.

5. To reduce avian collisions, place low and medium voltage connecting power lines

associated with the wind energy development underground to the extent possible,

unless burial of the lines is prohibitively expensive (e.g., where shallow bedrock exists)

or where greater adverse impacts to biological resources would result:

a. Overhead lines may be acceptable if sited away from high bird crossing locations,

to the extent practicable, such as between roosting and feeding areas or

between lakes, rivers, prairie grouse and sage grouse leks, and nesting habitats.

To the extent practicable, the lines should be marked in accordance with Avian

Power Line Interaction Committee (APLIC) collision guidelines.

b. Overhead lines may be used when the lines parallel tree lines, employ bird flight

diverters, or are otherwise screened so that collision risk is reduced.

c. Above

‐ ground low and medium voltage lines, transformers and conductors

should follow the 2006 or most recent APLIC “Suggested Practices for Avian

Protection on Power Lines.”

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 44Chapter Three: The Tiered Approach/ Construction BMPs

6. Avoid guyed communication towers and permanent met towers at wind energy project

sites. If guy wires are necessary, bird flight diverters or high visibility marking devices

should be used.

7. Use construction and management practices to minimize activities that may attract prey

and predators to the wind energy facility.

8. Employ only red, or dual red and white strobe, strobe

‐ like, or flashing lights, not steady

burning lights, to meet Federal Aviation Administration (FAA) requirements for visibility

lighting of wind turbines, permanent met towers, and communication towers. Only a

portion of the turbines within the wind project should be lighted, and all pilot warning

lights should fire synchronously.

9. Keep lighting at both operation and maintenance facilities and substations located

within half a mile of the turbines to the minimum required:

a. Use lights with motion or heat sensors and switches to keep lights off when not

required.

b. Lights should be hooded downward and directed to minimize horizontal and

skyward illumination.

c. Minimize use of high

‐ intensity lighting, steady

‐ burning, or bright lights such as

sodium vapor, quartz, halogen, or other bright spotlights.

10. Establish non

‐ disturbance buffer zones to protect sensitive habitats or areas of high risk

for species of concern identified in pre

‐ construction studies. Determine the extent of the

buffer zone in consultation with USFWS and state, local and tribal wildlife biologists, and

land management agencies (e.g., U.S. Bureau of Land Management (BLM) and U.S.

Forest Service (USFS)), or other credible experts as appropriate.

11. Locate turbines to avoid separating bird and bat species of concern from their daily

roosting, feeding, or nesting sites if documented that the turbines’ presence poses a risk

to species.

12. Avoid impacts to hydrology and stream morphology, especially where federal or state

‐

listed aquatic or riparian species may be involved.

13. Although it is unclear whether tubular or lattice towers reduce risk of collision, when

practical use tubular towers or best available technology to reduce ability of birds to

perch and to reduce risk of collision.

14. Minimize the number and length of access roads; use existing roads when feasible.

15. Minimize impacts to wetlands and water resources by following all applicable provisions

of the Clean Water Act (33 USC 1251

‐ 1387) and the Rivers and Harbors Act (33 USC 301 et

seq.); for instance, by developing and implementing a storm water management plan

and taking measures to reduce erosion.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 45Chapter Three: The Tiered Approach/ Construction BMPs

16. Reduce vehicle collision risk to wildlife by instructing project personnel to drive at

appropriate speeds, be alert for wildlife, and use additional caution in low visibility

conditions.

17. Instruct employees, contractors, and site visitors to avoid harassing or disturbing

wildlife, particularly during reproductive seasons.

18. Reduce fire hazard from vehicles and human activities (instruct employees to use spark

arrestors on power equipment, ensure that no metal parts are dragging from vehicles,

use caution with open flame, cigarettes, etc.).

19. Follow federal and state measures for handling toxic substances to minimize danger to

water and wildlife resources from spills.

20. Reduce the introduction and spread of invasive species by following applicable local

policies for noxious weed control, cleaning vehicles and equipment arriving from areas

with known invasive species issues, using locally sourced topsoil, and monitoring for and

rapidly removing noxious weeds at least annually.

21. Utilize pest and weed control measures as specified by county or state requirements, or

by applicable federal agency requirements (such as Integrated Pest Management) when

federal policies apply.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 46Chapter Three: The Tiered Approach/ Tier 4, Post

‐ Construction Fatality Studies



### E. Tier 4: Post

‐ Construction Fatality Studies

Following the tiered decision process, the outcome of Tier 1 to 3 studies 

## Tier 4

will determine the need for Tier 4 studies.

Tier 4 studies focus specifically on post

‐ construction fatality monitoring.

Activities involve searching for bird and bat carcasses beneath turbines to estimate the

number and species composition of fatalities. This information may be useful in answering

other questions such as relationships with site characteristics, comparison of fatalities

among facilities, and comparison of actual and predicted fatality rates estimated in previous

tiers.

Fatality studies should be considered for all wind energy projects. Fatality studies should

occur over all seasons of occupancy for the species being monitored, based on information

produced in previous tiers. The number of seasons and total length of the study may be

determined separately for bats and birds, depending on the pre

‐ construction risk

assessment, results of Tier 3 and Tier 4 studies from comparable sites (see Glossary), and the

results of first year fatality studies

. It may be appropriate to conduct studies using different

durations and intervals depending on the species of concern. For example, if raptors occupy

an area year

‐ round, it may be appropriate to monitor for raptors throughout the year (12

months). It may be warranted to monitor for bats when they are active (spring, summer and

fall or approximately eight months). It may be appropriate to increase the search frequency

during the months bats are active and decrease the frequency during periods of inactivity.

All fatality studies should include estimates of carcass removal and carcass detection bias

likely to influence those rates.

The developer’s decision about the number of years of study should follow discussions with

relevant agencies. The decision should be based on the table below. The number of years of

monitoring is indicated by outcomes of both Tier 3 and Tier 4 analysis as indicated in the

table below:

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 47Chapter Three: The Tiered Approach/ Tier 4, Post

‐ Construction Fatality Studies

Number of

years of

monitoring Outcomes of Tier 3 Outcomes of Tier 4

0 • Tier 3 studies conducted at Project

Site per Guidelines and predict risk

is low

• Comparable Tier 3 studies indicate

low risk

• No ESA species likely to be at risk • Comparable Tier 4 studies indicate low

fatalities and uncertainty is low

1 • No ESA species likely to be at risk

• Tier 3 studies conducted at the site

per Guidelines

• Tier 3 studies at Project Site predict

risk is medium

• No comparable Tier 3 studies

indicate high risk • Tier 4 study conducted per Guidelines

• Tier 4 study indicates low fatalities

• No comparable Tier 4 studies indicate

high fatalities

• No ESA fatalities at the Project Site

1 • No ESA species likely to be at risk

• Tier 3 studies conducted at the site

per Guidelines

• Tier 3 studies at Project Site predict

risk is low

• No comparable Tier 3 studies

indicate high risk • Tier 4 study conducted per Guidelines

• Tier 4 study indicates low or medium

fatalities

• No comparable Tier 4 studies indicate

high fatalities

• No ESA fatalities at the Project Site

2 or more • Did not meet all conditions above • Did not meet all conditions above AND



### Tier 4 Questions

Post

‐ construction fatality monitoring activities are designed to answer the following

questions as appropriate for the individual project:

1. What are the bird and bat fatality rates for the project?

2. What are the fatality rates of species of concern?

3. How do the estimated fatality rates compare to the predicted fatality rates?

4. Do bird and bat fatalities vary within the project site in relation to site characteristics?

5. How do the fatality rates compare to the fatality rates from existing projects in similar

landscapes with similar species composition and use?

6. What is the composition of fatalities in relation to migrating and resident birds and bats

at the site?

7. Do fatality data suggest the need for measures to reduce impacts?

Fatality monitoring results should be of sufficient statistical validity to answer Tier 4

questions, allow comparisons with pre

‐ construction impact predictions and comparisons

with other sites, and provide a basis for determining if corrective management or mitigation

measures at the site are appropriate.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 48Chapter Three: The Tiered Approach/ Tier 4, Post

‐ Construction Fatality Studies



### Tier 4 Protocol Design Issues

The basic method of measuring fatality rates is the carcass search. Search protocols should

be standardized to the greatest extent possible, especially for common objectives and

species of concern, and they should include methods for adequately accounting for

sampling biases (searcher efficiency and scavenger removal). However, some situations

warrant exceptions to standardized protocol, and the responsibility of demonstrating that

an exception is appropriate and applicable should be on the stakeholder attempting to

justify increasing or decreasing the duration or intensity of operations monitoring.

Some general guidance is given below with regard to the following fatality search protocol

design issues:

• Duration and frequency of monitoring

• Number of turbines to monitor

• Delineation of carcass search plots, transects, and habitat mapping

• General search protocol

• Field bias and error assessment

• Estimators of fatality

More detailed descriptions and methods of fatality search protocols can be found in the

California (California Energy Commission 2007) and Pennsylvania (Pennsylvania Game

Commission 2007) state guidelines and in Kunz et al. (2007) and Smallwood (2007).



### Frequency of carcass searches

Frequency of carcass searches (search interval) may vary for birds and bats, and will vary

depending on the questions to be answered, the species of concern, and their seasonal

abundance at the project site. The carcass searching protocol should be adequate to

answer applicable Tier 4 questions at an appropriate level of precision to make general

conclusions about the project, and is not intended to provide highly precise

measurements of fatalities. Except during low use times (e.g. winter months in northern

states), it is recommended that protocols be designed such that carcass searches occur

at some turbines within the project area most days each week of the study.

The search interval is the interval between carcass searches at individual turbines, and

this interval may be lengthened or shortened depending on the carcass removal rates. If

the primary focus is on fatalities of large raptors, where carcass removal is typically low,

then a longer interval between searches (e.g., 14

‐ 28 days) is sufficient. However, if the

focus is on fatalities of bats and small birds and carcass removal is high, then a shorter

search interval will be necessary.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 49Chapter Three: The Tiered Approach/ Tier 4, Post

‐ Construction Fatality Studies

There are situations in which studies of higher intensity (e.g., daily searches at individual

turbines within the sample) may be appropriate. These would be considered only in Tier

5 studies or in research programs because the greater complexity and level of effort

goes beyond that recommended for typical Tier 4 post construction monitoring. Tier 5

and research studies could include evaluation of specific measures that have been

implemented to mitigate potential significant adverse impacts to species of concern

identified during pre

‐ construction studies.



### Number of turbines to monitor

If available, data on variability among turbines from existing projects in similar

conditions within the same region are recommended as a basis for determining needed

sample size (see Morrison et al., 2008). If data are not available, it is recommended that

a sufficient number of turbines be selected via a systematic sample with a random start

point. Sampling plans can be varied (e.g., rotating panels [McDonald 2003, Fuller 1999,

Breidt and Fuller 1999, and Urquhart et al. 1998]) to increase efficiency as long as a

probability sampling approach is used. If the project contains fewer than 10 turbines, it

is recommended that all turbines in the area of interest be searched unless otherwise

agreed to by the permitting or wildlife resource agencies. When selecting turbines, it is

recommended that a systematic sample with a random start be used when selecting

search plots to ensure interspersion among turbines. Stratification among different

habitat types also is recommended to account for differences in fatality rates among

different habitats (e.g., grass versus cropland or forest); a sufficient number of turbines

should be sampled in each strata.



### Delineation of carcass search plots, transects, and habitat mapping

Evidence suggests that greater than 80 percent of bat fatalities fall within half the

maximum distance of turbine height to ground (Erickson 2003 a, b), and a minimum plot

width of 120 meters from the turbine should be established at sample turbines. Plots will

need to be larger for birds, with a width twice the turbine height to ground. Decisions

regarding search plot size should be made in discussions with the USFWS, state wildlife

agency, permitting agency and Tribes. It may be useful to consult other scientifically

credible information sources.

It is recommended that each search plot should be divided into oblong subplots or belt

transects and that each subplot be searched. The objective is to find as many carcasses

as possible so the width of the belt will vary depending on the ground cover and its

influence on carcass visibility. In most situations, a search width of 6 meters should be

adequate, but this may vary from 3

‐ 10 meters depending on ground cover.

Searchable area within the theoretical maximum plot size varies, and heavily vegetated

areas (e.g., eastern mountains) often do not allow surveys to consistently extend to the

maximum plot width. In other cases it may be preferable to search a portion of the

maximum plot instead of the entire plot. For example, in some landscapes it may be

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 50Chapter Three: The Tiered Approach/ Tier 4, Post

‐ Construction Fatality Studies

impractical to search the entire plot because of the time required to do an effective

search, even if it is accessible (e.g., croplands), and data from a probability sample of

subplots within the maximum plot size can provide a reasonable estimate of fatalities. It

is important to accurately delineate and map the area searched for each turbine to

adjust fatality estimates based on the actual area searched. It may be advisable to

establish habitat visibility classes in each plot to account for differential detectability,

and to develop visibility classes for different landscapes (e.g., rocks, vegetation) within

each search plot. For example, the Pennsylvania Game Commission (2007) identified

four classes based on the percentage of bare ground.

The use of visibility classes requires that detection and removal biases be estimated for

each class. Fatality estimates should be made for each class and summed for the total

area sampled. Global positioning systems (GPS) are useful for accurately mapping the

actual total area searched and area searched in each habitat visibility class, which can be

used to adjust fatality estimates. The width of the belt or subplot searched may vary

depending on the habitat and species of concern; the key is to determine actual

searched area and area searched in each visibility class regardless of transect width. An

adjustment may also be needed to take into account the density of fatalities as a

function of the width of the search plot.



### General search protocol guidance

Personnel trained in proper search techniques should look for bird and bat carcasses

along transects or subplots within each plot and record and collect all carcasses located

in the searchable areas. A complete search of the area should be accomplished and

subplot size (e.g., transect width) should be adjusted to compensate for detectability

differences in the search area. Subplots should be smaller when vegetation makes it

difficult to detect carcasses; subplots can be wider in open terrain. Subplot width also

can vary depending on the size of the species being looked for. For example, small

species such as bats may require smaller subplots than larger species such as raptors.

Data to be recorded include date, start time, end time, observer, which turbine area was

searched (including GPS coordinates) and weather data for each search. When a dead

bat or bird is found, the searcher should place a flag near the carcass and continue the

search. After searching the entire plot, the searcher returns to each carcass and records

information on a fatality data sheet, including date, species, sex and age (when

possible), observer name, turbine number, distance from turbine, azimuth from turbine

(including GPS coordinates), habitat surrounding carcass, condition of carcass (entire,

partial, scavenged), and estimated time of death (e.g., < 1 day, 2 days). A digital

photograph of the carcass should be taken. Rubber gloves should be used to handle all

carcasses to eliminate possible transmission of rabies or other diseases and to reduce

possible human scent bias for carcasses later used in scavenger removal trials. Carcasses

should be placed in a plastic bag and labeled. Fresh carcasses (those determined to have

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 51Chapter Three: The Tiered Approach/ Tier 4, Post

‐ Construction Fatality Studies

been killed the night immediately before a search) should be redistributed at random

points on the same day for scavenging trials.



### Field bias and error assessment

It has long been recognized that during searches conducted at wind turbines, actual

fatalities are incompletely observed and that therefore carcass counts must be adjusted

by some factor that accounts for imperfect detectability. Important sources of bias and

error include: 1) fatalities that occur on a highly periodic basis; 2) carcass removal by

scavengers; 3) differences in searcher efficiency; 4) failure to account for the influence

of site (e.g. vegetation) conditions in relation to carcass removal and searcher

efficiency; and 5) fatalities or injured birds and bats that may land or move outside

search plots.

Some fatalities may occur on a highly periodic basis creating a potential sampling error (number 1 above). It is recommended that sampling be scheduled so that some turbines

are searched most days and episodic events are more likely detected, regardless of the

search interval. To address bias sources 2

‐ 4 above, it is strongly recommended that all

fatality studies conduct carcass removal and searcher efficiency trials using accepted

methods (Anderson 1999, Kunz et al. 2007, Arnett et al. 2007, NRC 2007). Bias trials

should be conducted throughout the entire study period and searchers should be

unaware of which turbines are to be used or the number of carcasses placed beneath

those turbines during trials. Carcasses or injured individuals may land or move outside

the search plots (number 5 above). With respect to Tier 4 fatality estimates, this

potential sampling error is considered to be small and can be ignored.

Prior to a study’s inception, a list of random turbine numbers and random azimuths and

distances (in meters) from turbines should be generated for placement of each bat or

bird used in bias trials. Data recorded for each trial carcass prior to placement should

include date of placement, species, turbine number, distance and direction from

turbine, and visibility class surrounding the carcass. Trial carcasses should be distributed

as equally as possible among the different visibility classes throughout the study period

and study area. Studies should attempt to avoid “over

‐ seeding” any one turbine with

carcasses by placing no more than one or two carcasses at any one time at a given

turbine. Before placement, each carcass must be uniquely marked in a manner that does

not cause additional attraction, and its location should be recorded. There is no agreed

upon sample size for bias trials, though some state guidelines recommend from 50 ‐ 200

carcasses.



### Estimators of fatality

If there were a direct relationship between the number of carcasses observed and the

number killed, there would be no need to develop a complex estimator that adjusts

observed counts for detectability, and observed counts could be used as a simple index

of fatality. But the relationship is not direct and raw carcass counts recorded using

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 52Chapter Three: The Tiered Approach/ Tier 4, Post

‐ Construction Fatality Studies

different search intervals and under different carcass removal rates and searcher

efficiency rates are not directly comparable. It is strongly recommended that only the

most contemporary equations for estimating fatality be used, as some original versions

are now known to be extremely biased under many commonly encountered field

conditions (Strickland et al. In review, Erickson et al. 2000b, Erickson et al. 2004,

Johnson et al. 2003, Kerns and Kerlinger 2004, Fiedler et al. 2007, Kronner et al. 2007,

Smallwood 2007).



### Tier 4 Methods and Metrics

In addition to the monitoring protocol, the metrics used to estimate fatality rates must be

selected with the Tier 4 questions and objectives in mind. Metrics considerations for each of

the Tier 4 questions are discussed briefly below. Not all questions will be relevant for each

project, and which questions apply would depend on Tier 3 outcomes.

1. What are the bird and bat fatality rates for the project?

The primary objective of fatality searches is to determine the overall estimated fatality rates

for birds and bats for the project. These rates serve as the fundamental basis for all

comparisons of fatalities, and if studies are designed appropriately they allow researchers to

relate fatalities to site characteristics and environmental variables, and to evaluate

mitigation measures. Several metrics are available for expressing fatality rates. Early studies

reported fatality rates per turbine. However, this metric is somewhat misleading as turbine

sizes and their risks to birds vary significantly (NRC 2007). Fatalities are frequently reported

per nameplate capacity (i.e. MW), a metric that is easily calculated and better for comparing

fatality rates among different sized turbines. Even with turbines of the same name plate

capacity, the size of the rotor swept area may vary among manufacturers, and turbines at

various sites may operate for different lengths of time and during different times of the day

and seasons. With these considerations in mind, it is recommended that fatality rates be

expressed on a per turbine and per nameplate MW basis until a better metric becomes

available.

2. What are the fatality rates of species of concern?

This analysis simply involves calculating fatalities per turbine of all species of concern at a

site when sample sizes are sufficient to do so. These fatalities should be expressed on a per

nameplate MW basis if comparing species fatality rates among projects.

3. How do the estimated fatality rates compare to the predicted fatality rates?

There are a several ways that predictions can be assigned and later evaluated with actual

fatality data. During the planning stages in Tier 2, predicted fatalities may be based on

existing data at similar facilities in similar landscapes used by similar species. In this case, the

assumption is that use is similar, and therefore that fatalities may be similar at the proposed

facility. Alternatively, metrics derived from pre

‐ construction assessments for an individual

species or group of species

– usually an index of activity or abundance at a proposed project

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 53Chapter Three: The Tiered Approach/ Tier 4, Post

‐ Construction Fatality Studies

– could be used in conjunction with use and fatality estimates from existing projects to

develop a model for predicting fatalities at the proposed project site. Finally, physical

models can be used to predict the probability of a bird of a particular size striking a turbine,

and this probability, in conjunction with estimates of use and avoidance behavior, can be

used to predict fatalities.

The most current equations for estimating fatality should be used to evaluate fatality

predictions. Several statistical methods can be found in the revised Strickland et al. (in

review) and used to evaluate fatality predictions. Metrics derived from Tier 3 pre

‐

construction assessments may be correlated with fatality rates, and (using the project as the

experimental unit), in Tier 5 studies it should be possible to determine if different

preconstruction metrics can in fact accurately predict fatalities and, thus, risk.

4. How do the fatality rates compare to the fatality rates from existing facilities in similar

landscapes with similar species composition and use?

Comparing fatality rates among facilities with similar characteristics is useful to determine

patterns and broader landscape relationships, as is discussed in some detail above for

predicting fatalities at a proposed project site. Fatality rates should be expressed on a per

nameplate MW or some other standardized metric basis for comparison with other projects,

and may be correlated with site characteristics

– such as proximity to wetlands, riparian

corridors, mountain

‐ foothill interface, or other broader landscape features

– using

regression analysis. Comparing fatality rates from one project to fatality rates of other

projects provides insight into whether a project has relatively high, moderate or low

fatalities.

5. Do bird and bat fatalities vary within the project site in relation to site characteristics?

Turbine

‐ specific fatality rates may be related to site characteristics such as proximity to

water, forest edge, staging and roosting sites, known stop

‐ over sites, or other key

resources, and this relationship may be estimated using regression analysis. This information

is particularly useful for evaluating micro

‐ siting options when planning a future facility or, on

a broader scale, in determining the location of the entire project.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 54Chapter Three: The Tiered Approach/ Tier 4, Post

‐ Construction Fatality Studies

6. What is the composition of fatalities in relation to migrating and resident birds and bats

at the site?

The simplest way to address this question is to separate fatalities per turbine of known

resident species (e.g., big brown bat, prairie horned lark) and those known to migrate long

distances (e.g. hoary bat, red

‐ eyed vireo). These data are useful in determining patterns of

species composition of fatalities and possible mitigation measures directed at residents,

migrants, or perhaps both, and can be used in assessing potential population effects.

7. Do fatality data suggest the need for measures to reduce impacts?

It is recommended that the wind project operator and the relevant agencies discuss the

results from Tier 4 studies to determine whether these impacts are significant. If fatalities

are considered significant the wind project operator and the relevant agencies develop a

plan to mitigate these impacts.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 55Chapter Three: The Tiered Approach/ Tier 5, Other Post

‐ Construction Studies



### F. Tier 5: Other Post

‐ construction Studies

Tier 5 studies will not be necessary for most wind energy projects. Tier 5

studies can be costly, complex and time consuming, and the Committee 

## Tier 5

anticipates that the tiered approach will steer projects away from sites

where Tier 5 studies would be necessary.

When Tier 5 studies are conducted, they will be site

‐ specific and intended

to: 1) evaluate the direct and indirect effects (e.g., displacement) of significant adverse

habitat impacts on species of concern; 2) analyze factors associated with impacts,

particularly direct impacts, in those cases in which impacts significantly exceed pre

‐

construction predictions; 3) identify additional actions as warranted when mitigation

measures implemented for a project are not adequate; and 4) assess demographic effects

on local populations of species of concern.



### Tier 5 Questions

Tier 5 studies are intended to answer questions that fall in three major categories; answering

yes to any of these questions might indicate a Tier 5 study is needed:

1. Are post

‐ construction impacts significantly higher than pre

‐ construction estimates

for direct and indirect impacts on species of concern and their habitat determined to

be of interest in Tier 3?

For example, in the Tier 3 risk assessment, predictions of collision fatalities and

habitat impacts (direct and indirect) are developed. Post

‐ construction studies in Tiers

4 and 5 evaluate the accuracy of those predictions by estimating impacts. If post

‐

construction studies demonstrate an unacceptably high level of adverse impact, Tier

5 studies may also be warranted. Such Tier 5 studies will be unusual and will not apply

to most projects.

2. Have habitat mitigation measures implemented (other than fee in lieu) been

effective? If habitat restoration is conducted, it may be desirable to monitor the

restoration efforts to determine if there is replacement of habitat conditions.

Have measures undertaken to reduce collision fatalities been significantly less

effective than anticipated?

One objective of Tier 4 studies is to assess the effectiveness of measures undertaken

to reduce fatalities as part of the project and to identify such alternative or additional

measures as are necessary. If Tier 4 studies indicate that collision fatalities and

adverse habitat impacts are unacceptably high, there may be additional or alternative

mitigation measures which should be explored. The effectiveness of these additional

measures would be evaluated using Tier 5 studies.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 56Chapter Three: The Tiered Approach/ Tier 5, Other Post

‐ Construction Studies

3. Are the estimated impacts of the proposed project likely to lead to population

declines in the species of concern?

Impacts of a project will have population level effects if the project causes a

population decline in the species of concern (lambda ( λ ) is significantly less than 1).

For non

‐ listed species, this assessment will apply only to the local population. For

listed species, the assessment may include impact assessments for the local or

regional population, or the entire species.

Circumstances in which Tier 5 studies may be conducted include:

1) When realized fatality levels for individual species of concern reach a level at which

they are considered significant adverse impacts by the relevant agencies.

For example, if Tier 4 fatality studies document that a particular turbine or set of

turbines exhibits unacceptably higher bird or bat collision fatality than predicted,

adaptive management (as defined in Chapter Two

‐ B) may be useful in evaluating

alternative measures to avoid or minimize future fatalities at that turbine/turbine

string.

2) There is the potential for significant fatality impacts or significant adverse impacts to

habitat for species of concern, there is a need to assess the impacts more closely, and

there is uncertainty over how these impacts will be mitigated.

3) The rare occasion when fatality and/or significant adverse habitat impacts suggest

the potential for a reduction in the viability of an affected population, in which case

studies on the potential for population impacts may be warranted.

4) When a developer evaluates the effectiveness of a risk reduction measure before

deciding to continue the measure permanently or whether to use the measure when

implementing future phases of a project.

In the event additional turbines are proposed as an expansion of an existing project,

results from Tier 4 and Tier 5 studies and the decision

‐ making framework contained

in the tiered approach can be used to determine whether the project should be

expanded and whether additional information should be collected. It may also be

necessary to evaluate whether additional measures are warranted to reduce

significant adverse impacts to species.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 57Chapter Three: The Tiered Approach/ Tier 5, Other Post

‐ Construction Studies



### Tier 5 Study Design Issues

Because Tier 5 studies will be highly variable and unique to the circumstances of the

individual project, these Guidelines do not provide specific guidance on all potential

approaches, but make some general statements about study design. Specific Tier 5 study

designs will depend on the types of questions, the specific project, and practical

considerations. The most common practical considerations include the area being studied,

the time period of interest, the species of concern, potentially confounding variables, time

available to conduct studies, project budget, and the magnitude of the anticipated impacts.

In the context of wind energy development, when it is possible to collect data both pre

‐ and

post

‐ construction in the areas of interest and reference areas are available, then the Before

‐

After

‐ Control

‐ Impact (BACI) is the most statistically robust design. The BACI design is most

like the classic manipulative experiment. 14 In the absence of a suitable reference area, the

design is reduced to a Before

‐ After (BA) analysis of effect where the differences between

pre

‐ and post

‐ construction parameters of interest are assumed to be the result of the

project, independent of other potential factors affecting the assessment area. With respect

to BA studies, the key question is whether the observations taken immediately after the

incident can reasonably be expected within the expected range for the system (Manly

2009). Reliable quantification of impact usually will include additional study components to

limit variation and the confounding effects of natural factors that may change with time.

In most situations, the timeline for the development of a wind energy facility does not allow

for the collection of pre

‐ construction data and suitable reference areas are lacking.

Furthermore, alterations in land use or disturbance over the course of a multi

‐ year BACI or

BA study may complicate the analysis of study results.

When pre

‐ construction data are unavailable and/or a suitable reference area is lacking, the

reference Control Impact Design (Morrison et al. 2008) is the recommended design. The lack

of a suitable reference area also can be addressed using the Impact Gradient Design, when

habitat and species use are homogenous in the assessment area prior to development.

When applied both pre

‐ and post

‐ construction, the Impact Gradient Design is a suitable

replacement for the classic BACI (Morrison et al. 2008).

In the study of habitat impacts, the resource selection function (RSF) study design (see

Anderson et al 1999; Morrison et al. 2008; Manly et al. 2002) is a statistically robust design,

either with or without pre

‐ construction and reference data. Habitat selection is modeled as a

function of characteristics measured on resource units and the use of those units by the

animals of interest. The RSF allows the estimation of the probability of use as a function of

the distance to various environmental features, including wind energy facilities, and thus

14 In this context, such designs are not true experiments in that the treatments (project development and

control) are not randomly assigned to an experimental unit, and there is often no true replication. Such

constraints are not fatal flaws, but do limit statistical inferences of the results.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 58Chapter Three: The Tiered Approach/ Tier 5, Other Post

‐ Construction Studies

provides a direct quantification of the magnitude of the displacement effect. RSF could be

improved with pre

‐ construction and reference area data. Nevertheless, it is a relatively

powerful approach to documenting displacement or the effect of mitigation measures

designed to reduce displacement even without those additional data.



### Tier 5 Examples

As described earlier, Tier 5 studies will not be conducted at most projects, and the specific

Tier 5 questions and methods for addressing these questions will depend on the individual

project and the concerns raised during pre

‐ construction studies and during operational

phases. Rather than provide specific guidance on all potential approaches, these Guidelines

offer the following case studies as examples of studies that have attempted to answer Tier 5

questions.

1. Habitat impacts

‐ displacement and demographic impact studies

Studies to assess impacts may include quantifying species’ habitat loss (e.g., acres of lost

grassland habitat for grassland songbirds) and habitat modification. For example, an

increase in edge may result in greater nest parasitism and nest predation. Assessing indirect

impacts may include two important components: 1) indirect effects on wildlife resulting

from displacement, due to disturbance, habitat fragmentation, loss, and alteration and 2)

demographic effects that may occur at the local, regional or population

‐ wide levels due to

reduced nesting and breeding densities, increased isolation between habitat patches, and

effects on behavior (e.g., stress, interruption, and modification). These factors can

individually or cumulatively affect wildlife, although some species may be able to habituate

to some or perhaps all habitat changes. Indirect impacts may be difficult to quantify but

their effects may be significant (e.g., Stewart et al. 2007, Pearce

‐ Higgins et al. 2008, Bright et

al. 2008, Drewitt and Langston 2006, Robel et al. 2004, Pruett et al. 2009).

Example: in southwestern Pennsylvania, development of a project is proceeding at a site

located within the range of a state

‐ listed terrestrial species. Surveys were performed at

habitat locations appropriate for use by the animal, including at control sites. Post

‐

construction studies are planned at all locations to demonstrate any displacement effects

resulting from the construction and operation of the project.

The Committee recognizes that displacement studies may not be appropriate for most

individual projects. Consideration should be given to developing collaborative research

efforts with industry, government agencies, and NGOs to conduct studies to address

displacement as discussed in Chapter Two

‐ D.

Displacement is considered a potentially significant adverse impact to species such as prairie

grouse (prairie chickens, sharp

‐ tailed grouse), and sage grouse, and displacement studies

may be necessary to determine the extent of these impacts and the need for mitigation.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 59Chapter Three: The Tiered Approach/ Tier 5, Other Post

‐ Construction Studies

Displacement studies may use any of the study designs describe earlier. The most

scientifically robust study designs to estimate displacement effects are BACI, RSF, and

impact gradient. RSF and impact gradient designs may not require specialized data

gathering during Tier 3.

Telemetry studies that measure impacts of the project development on displacement,

nesting, nest success, and survival of prairie grouse and sage grouse in different

environments (e.g., tall grass, mixed grass, sandsage, sagebrush) will require spatial and

temporal replication, undisturbed reference sites, and large sample sizes covering large

areas, and will be expensive. Examples of study designs and analyses used in the studies of

other forms of energy development are presented in Holloran et al. (2005), Pitman et al.

(2005), and Robel et al. (2004). Anderson et al. (1999) provides a thorough discussion of the

design, implementation, and analysis of these kinds of field studies and should be consulted

when designing the BACI study.

Studies are being initiated to evaluate effects of wind energy development on greater sage

grouse in Wyoming. In addition to measuring demographic patterns, these studies will use

the RSF study design (see Sawyer et al. 2006) to estimate the probability of sage grouse use

as a function of the distance to environmental features, including an existing and a proposed

project.

In certain situations, such as for a proposed project site that is relatively small and in a more

or less homogeneous landscape, an impact gradient design may be an appropriate means to

assess impacts of the wind energy facility on resident populations (Strickland et al., 2002).

For example, Leddy et al. 1999 used the impact gradient design to evaluate grassland bird

density as a function of the distance from wind turbines. Data were collected at various

distances from turbines along transects.

This approach provides information on whether there is an effect, and may allow

quantification of the gradient of the effect and the distance at which the effect no longer

exists

– the assumption being that the data collected at distances beyond the influence of

turbines are the reference data (Erickson et al., 2007). An impact gradient analysis could also

involve measuring the number of breeding grassland birds counted at point count plots as a

function of distance from the wind turbines (Johnson et al. 2000).

2. Unacceptable levels of fatalities (beyond those predicted)

More intensive post

‐ construction fatality studies may be used to determine relationships

between fatalities and weather, wind speed or other covariates, which usually require daily

carcass searches. Fatalities determined to have occurred the previous night can be

correlated with that night’s weather or turbine characteristics to establish important

relationships that can then be used to evaluate the most effective times and conditions to

implement measures to reduce collision fatality at the project.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 60Chapter Three: The Tiered Approach/ Tier 5, Other Post

‐ Construction Studies

3. Measures to address fatalities

The efficacy of operational modifications (e.g. changing turbine cut

‐ in speed) of a project to

reduce collision fatalities has only recently been evaluated (Arnett et al. 2009, Baerwald et al

2009). Operational modifications and other measures to address fatalities should be applied

only at sites where collision fatalities are predicted or demonstrated to be high.



### Tier 5 Studies and Research

The Committee recognizes that developers may be asked to conduct a study on an

experimental mitigation technique, such as differences in turbine cut

‐ in speed to reduce bat

fatalities. Such techniques may show promise in mitigating the impacts of wind energy

development to wildlife, but may have not been shown to have broad applicability for

mitigation. Such techniques should not be routinely applied to projects, but application at

appropriate sites will contribute to the breadth of knowledge regarding the efficacy of such

measures in addressing collision fatalities. In addition, studies involving multiple sites and

academic researchers can provide more robust research results, and such studies take more

time and resources than are appropriately carried out by one developer at a single site.

Examples below demonstrate collaborative research efforts to address displacement,

operational modifications, and population level impacts.

1. Displacement Studies

Researchers at Kansas State University, as part of the NWCC GS3C, have begun a multi

‐ year

telemetry study to evaluate the effects of three proposed projects on displacement and

demographic parameters (survival, nest success, brood success, fecundity) of greater prairie

chickens ( Tympanuchus cupido ) in Kansas. Studies are intended to evaluate whether: 1) lek

attendance is affected by wind energy development, 2) greater prairie

‐ chickens avoid wind

turbines and/or other anthropogenic features, and 3) wind energy development reduces

nest success or chick survival.

The study combines use of data collected at three proposed projects and reference areas,

and the BACI design has been used to assess impacts on demographic parameters. Several

hundred birds have been radio marked on all sites combined to obtain baseline data on both

the reference areas and project sites. Birds are located frequently to determine home ranges

and habitat use prior to project development so that displacement can be measured once

the facilities are constructed. In addition, data are collected on survival of radio

‐ marked birds

as well as nest success, fledgling success, and fecundity (the number of female offspring

produced per adult female). The first year of post

‐ construction data were collected in 2009.

Erickson et al. (2004) evaluated the displacement effect of a large wind energy facility in the

Pacific Northwest. The study was conducted in a relatively homogeneous grassland

landscape. Erickson et al. (2004) conducted surveys of breeding grassland birds along 300

meter transects perpendicular to strings of wind turbines. Surveys were conducted prior to

construction and after commercial operation. The basic study design follows the Impact

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 61Chapter Three: The Tiered Approach/ Tier 5, Other Post

‐ Construction Studies

Gradient Design (Morrison et al. 2008) and in this application, conformed to a special case of

BACI where areas at the distal end of each transect were considered controls (i.e., beyond

the influence of the turbines). In this study, there is no attempt to census birds in the area,

and observations per survey are used as an index of abundance. Additionally, the impact

‐ gradient study design resulted in less effort than a BACI design with offsite control areas.

Erickson et al. (2004) found that grassland passerines as a group, as well as grasshopper

sparrows and western meadowlarks, showed reduced use in the first 50 meter segment

nearest the turbine string. About half of the area within that segment, however, had

disturbed vegetation and separation of behavior avoidance from physical loss of habitat in

this portion of the area was impossible. Horned larks and savannah sparrows ( Passerculus

sandwichensis ) appeared unaffected. The impact gradient design is best used when the

study area is relatively small and homogeneous.

2. Operational Modifications to Reduce Collision Fatality

Arnett et al. (2009) conducted studies on the effectiveness of changing turbine cut

‐ in speed

on reducing bat fatality at wind turbines at the Casselman Wind Project in Somerset County,

Pennsylvania. Their objectives were to: 1) determine the difference in bat fatalities at

turbines with different cut

‐ in

‐ speeds relative to fully operational turbines, and 2) determine

the economic costs of the experiment and estimated costs for the entire area of interest

under different curtailment prescriptions and timeframes. Arnett et al. (2009) reported

substantial reductions in bat fatalities with relatively modest power losses.

In Kenedy County, Texas, investigators are refining and testing a real

‐ time curtailment

protocol. The projects use an avian profiling radar system to detect approaching “flying

vertebrates” (birds and bats), primarily during spring and fall bird and bat migrations. The

blades automatically idle when risk reaches a certain level and weather conditions are

particularly risky. Based on estimates of the number and timing of migrating raptors,

feathering (real

‐ time curtailment) experiments are underway in Tehuantepec, Mexico,

where raptor migration through a mountain pass is extensive.

Other tools, such as thermal imaging (Horn et al. 2008) or acoustic detectors (Kunz et al.

2007), have been used to quantify post

‐ construction bat activity in relation to weather and

turbine characteristics for improving operational mitigation efforts. For example, at the

Mountaineer project in 2003, Tier 4 studies (weekly searches at every turbine) demonstrated

unanticipated and high levels of bat fatalities (Kerns and Kerlinger 2004). Daily searches

were instituted in 2004 and revealed that fatalities were strongly associated with low

‐

average

‐ wind

‐ speed nights, thus providing a basis for testing operational modifications

(Arnett 2005, Arnett et al. 2008). The program also included behavioral observations using

thermal imaging that demonstrated higher bat activity at lower wind speeds (Horn et al.

2008).

Studies are currently underway to design and test the efficacy of an acoustic deterrent

device to reduce bat fatalities at wind facilities (E.B. Arnett, Bat Conservation International,

under the auspices of BWEC). Prototypes of the device have been tested in the laboratory

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 62Chapter Three: The Tiered Approach/ Tier 5, Other Post

‐ Construction Studies

and in the field with some success. Spanjer (2006) tested the response of big brown bats

( Eptesicus fuscus ) to a prototype eight speaker deterrent emitting broadband white noise at

frequencies from 12.5–112.5 kHz and found that during non

‐ feeding trials, bats landed in the

quadrant containing the device significantly less when it was broadcasting broadband noise.

Spanjer (2006) also reported that during feeding trials, bats never successfully took a

tethered mealworm when the device broadcast sound, but captured mealworms near the

device in about 1/3 of trials when it was silent. Szewczak and Arnett (2006, 2007) tested the

same acoustic deterrent in the field and found that when placed by the edge of a small pond

where nightly bat activity was consistent, activity dropped significantly on nights when the

deterrent was activated. Horn et al. (2007) tested the effectiveness of a larger, more

powerful version of this deterrent device on reducing nightly bat activity and found mixed

results. In 2009, a new prototype device was developed and tested at a project in

Pennsylvania. Ten turbines were fitted with deterrent devices, daily fatality searches were

conducted, and fatality estimates were compared with those from 15 turbines without

deterrents (i.e., controls) to determine if bat fatalities were reduced. This experiment found

that estimated bat fatalities per turbine were 20 to 53 percent lower at treatment turbines

compared to controls. More experimentation is required. At the present time, there is not

an operational deterrent available that has demonstrated effective reductions in bat kills (E.

B. Arnett, Bat Conservation International, unpublished data).

3. Assessment of Population

‐ level Impacts

The Altamont Pass Wind Resource Area (APWRA) has been the subject of intensive scrutiny

because of avian fatalities, especially for raptors, in an area encompassing more than 5,000

wind turbines (e.g., Orloff and Flannery 1992; Smallwood and Thelander 2004, 2005). To

assess population

‐ level effects of long lived raptors, Hunt (2002) completed a four

‐ year

telemetry study of golden eagles at the APWRA and concluded that while the population is

self

‐ sustaining, fatalities resulting from wind

‐ energy production were of concern because

the population apparently depends on floaters from the local population and/or immigration

of eagles from other subpopulations to fill vacant territories. Hunt conducted follow

‐ up

surveys in 2005 (Hunt and Hunt 2006) and determined that all 58 territories occupied by

eagle pairs in 2000 were also occupied in 2005.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 63Chapter Three: The Tiered Approach/ Retrofitting, Repowering & Decommissioning



### G. Retrofitting, Repowering, and Decommissioning: Best Management

Practices

As with project construction, these Guidelines offer BMPs for the retrofitting, repowering,

and decommissioning phases of wind energy projects.



### Retrofitting

Retrofitting is defined as replacing portions of existing wind turbines or project facilities so

that at least part of the original turbine, tower, electrical infrastructure or foundation is

being utilized. Retrofitting BMPs include:

1. Retrofitting of turbines should use installation techniques that minimize new site

disturbance, soil erosion, and removal of vegetation of habitat value.

2. Retrofits should employ shielded, separated or insulated electrical conductors that

minimize electrocution risk to avian wildlife per APLIC (2006).

3. Retrofit designs should prevent nests or bird perches from being established in or on

the wind turbine or tower.

4. FAA visibility lighting of wind turbines should employ only red, or dual red and white

strobe, strobe

‐ like, or flashing lights, not steady burning lights

5. Lighting at both operation and maintenance facilities and substations located within

half a mile of the turbines should be kept to the minimum required:

a. Use lights with motion or heat sensors and switches to keep lights off when

not required.

b. Lights should be hooded downward and directed to minimize horizontal and

skyward illumination.

c. Minimize use of high intensity lighting, steady

‐ burning, or bright lights such as

sodium vapor, quartz, halogen, or other bright spotlights.

6. Remove wind turbines when they are no longer cost effective to retrofit.



### Repowering Existing Wind Projects

Repowering may include removal and replacement of turbines and associated

infrastructure. BMPs include:

1. To the greatest extent practicable, existing roads, disturbed areas and turbine strings

should be re

‐ used in repower layouts.

2. Roads and facilities that are no longer needed should be stabilized and re

‐ seeded

with native plants appropriate for the soil conditions and adjacent habitat and of

local seed sources where feasible, per landowner requirements and commitments.

3. Existing substations and ancillary facilities should be re

‐ used in repowering projects

to the extent practicable.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 64Chapter Three: The Tiered Approach/ Retrofitting, Repowering & Decommissioning

4. Existing overhead lines may be acceptable if located away from high bird crossing

locations, such as between roosting and feeding areas, or between lakes, rivers and

nesting areas. Overhead lines may be used when they parallel tree lines, employ bird

flight diverters, or are otherwise screened so that collision risk is reduced.

5. Above

‐ ground low and medium voltage lines, transformers and conductors should

follow the 2006 or most recent APLIC “Suggested Practices for Avian Protection on

Power Lines.”

6. Guyed structures should be avoided unless guy wires are treated with bird flight

diverters or high visibility marking devices, or are located where known low bird use

will occur.

7. FAA visibility lighting of wind turbines should employ only red, or dual red and white

strobe, strobe

‐ like, or flashing lights, not steady burning lights.

8. Lighting at both operation and maintenance facilities and substations located within

1⁄2 mile of the turbines should be kept to the minimum required.

a. Use lights with motion or heat sensors and switches to keep lights off when not

required.

b. Lights should be hooded downward and directed to minimize horizontal and

skyward illumination.

c. Minimize use of high intensity lighting, steady

‐ burning, or bright lights such as

sodium vapor, quartz, halogen, or other bright spotlights.



### Decommissioning

Decommissioning is the cessation of wind energy operations and removal of all associated

equipment, roads, and other infrastructure. The land is then used for another activity.

During decommissioning, contractors and facility operators should apply BMPs for road

grading and native plant re

‐ establishment to ensure that erosion and overland flows are

managed to restore pre

‐ construction landscape conditions. The facility operator, in

conjunction with the landowner and state and federal wildlife agencies, should restore the

natural hydrology and plant community to the greatest extent practical.

1. Decommissioning methods should minimize new site disturbance and removal of native

vegetation, to the greatest extent practicable.

2. Foundations should be removed to a depth of two feet below surrounding grade, and

covered with soil to allow adequate root penetration for native plants, and so that

subsurface structures do not substantially disrupt ground water movements.

3. If topsoils are removed during decommissioning, they should be stockpiled and used as

topsoil when restoring plant communities. Once decommissioning activity is complete,

topsoils should be restored to assist in establishing and maintaining pre

‐ construction

native plant communities to the extent possible, consistent with landowner objectives.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 65Chapter Three: The Tiered Approach/ Retrofitting, Repowering & Decommissioning

4. Soil should be stabilized and re

‐ vegetated with native plants appropriate for the soil

conditions and adjacent habitat, and of local seed sources where feasible, consistent

with landowner objectives.

5. Surface water flows should be restored to pre

‐ disturbance conditions, including removal

of stream crossings, roads, and pads, consistent with storm water management

objectives and requirements.

6. Surveys should be conducted by qualified experts to detect invasive plants, and

comprehensive approaches to controlling any detected plants should be implemented

and maintained as long as necessary.

7. Overhead pole lines that are no longer needed should be removed.

8. After decommissioning, erosion control measures should be installed in all disturbance

areas where potential for erosion exists, consistent with storm water management

objectives and requirements.

9. Fencing should be removed unless the landowner will be utilizing the fence.

10. Petroleum product leaks and chemical releases should be remediated prior to

completion of decommissioning.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 66

## C h a p t e r F o u r : M i t i g a t i o n

During the communication process between the project developer and USFWS, USFWS, the

developer, and other relevant agencies will identify important species of concern and their

habitats that may occur in the area which might be impacted by project development. As

noted in Chapter Two

‐ C, the objective is to avoid or minimize significant adverse impacts to

species of concern, and when appropriate, to provide compensatory mitigation for

unavoidable significant adverse impacts, as identified in the tiered approach recommended

in the Guidelines. All recommendations regarding avoidance, minimization and

compensatory mitigation are voluntary on the part of the developer. However, it is the

expectation that the developer will work with USFWS and other appropriate entities and

sources of expertise to agree on mitigation strategies. It is in the best interest of all parties

to cooperate early in the project design process to identify where mitigation may be

necessary. This will avoid unnecessary project delays and allows for incorporation of the

mitigation into the project design.

If significant adverse impacts to species of concern and their habitats cannot be avoided,

then opportunities to minimize significant adverse impacts to the fullest extent practicable

are pursued. For example, it may not be possible to avoid removing some forested habitat

for a turbine string, but it may be possible to reduce the total amount of forest habitat

removed through alternative placement of access roads and support structures. In addition,

anticipated direct mortalities may be reduced by the application of operational adjustments.

In cases where significant adverse impacts cannot be avoided or minimized, it may be

possible to offset all, or a portion, of these impacts through additional minimization

strategies or compensatory mitigation. One tool, used by the USFWS, is the USFWS

Mitigation Policy which describes steps for addressing habitat loss in detail and includes

information on Resource Categories 15 to assist in considering type and amount of

compensatory mitigation to offset losses of habitat.

For example, the resource goals for the following habitat resource categories are:

Resource Category 1: Avoid habitat loss

Resource Category 2: No net loss of in

‐ kind habitat value

Resource Category 3: No net loss of out

‐ of

‐ kind habitat value

Resource Category 4: Minimize loss of habitat value

Other tools to determine appropriate compensatory mitigation may be used by developers

and in coordination with USFWS and States. Recommended measures may include on

‐ or

off

‐ site habitat improvement, and may consist of in

‐ kind or out

‐ of

‐ kind compensatory

mitigation. Compensatory measures may be project

‐ specific or may be part of a mitigation

15 http://www.fws.gov/policy/501fw2.html

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesChapter Four: Mitigation

banking scenario. It is recommended that the method for implementing compensatory

mitigation (e.g. fee title acquisition, in

‐ lieu fee, conservation easement) be determined early

in the process, if possible.

It may be possible to offset direct impacts of habitat loss to individuals, but this does not

apply to federally listed threatened and endangered species. If a federal nexus exists, or if a

developer chooses to seek an Incidental Take Permit (ITP), then impacts to listed species

should be evaluated through the processes of Section 7 or 10 of the Endangered Species Act.

Additional mitigation for significant adverse impacts from operations should be requested

and implemented only if Tier 4 or Tier 5 studies determine that significant adverse impacts

cannot be adequately addressed by existing mitigation measures. Because in certain

circumstances a project’s impacts cannot be forecast with precision, the developer and the

agencies may be unable to make some mitigation decisions until post

‐ construction data

have been collected. Mitigation measures implemented post

‐ construction, whether in

addition to those implemented pre

‐ construction or whether they are new, are appropriate

elements of the tiered approach. The general terms and funding commitments for future

mitigation and the triggers or thresholds for implementing such compensation should be

developed prior to or upon project operation and/or construction when possible. Mitigation

beyond that implemented prior to or upon project operation should be well defined,

bounded, and technically feasible, and commensurate with the project impacts.

It is anticipated that developers will take steps to avoid or minimize significant adverse

impacts to species of concern and their habitats to the greatest extent practicable for that

project. It is generally the case that project

‐ impact assessment is a cooperative effort

involving the developer, USFWS, Tribes, and state wildlife agencies, and therefore,

recommended mitigation measures will be consensus measures, and will not be additive.

The state, Tribe, and the USFWS may have different species or habitats of concern, however,

according to their responsibilities and statutory authorities.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 68

## C h a p t e r F i v e :

A d v a n c i n g U s e , C o o p e r a t i o n , a n d

E f f e c t i v e I m p l e m e n t a t i o n o f t h e G u i d e l i n e s

A. USFWS Adoption and Implementation of Guidelines

Process and Timeline for Developing Final USFWS Guidelines

The Secretary, through the Director of the USFWS (Director), anticipates using the

Committee’s recommendations as the basis of his or her guidance to the maximum extent

possible, consistent with DOI’s legal obligations. Following is an anticipated process and

timeline for USFWS guidance development after the Committee transmits its recommended

Guidelines to the Secretary. The timeline is optimistic and the USFWS intends to make every

effort to meet the goals as outlined barring unforeseen delays.

1. Recommendations to Secretary of the Interior

Consistent with its Charter, the Committee is submitting to the Secretary these

recommended Guidelines for “developing effective measures to avoid or minimize impacts

to wildlife and their habitats related to land

‐ based wind energy facilities.” The Committee

understands that the Secretary will review the recommended Guidelines and will consider

how to use them in developing final guidelines, but that the recommended Guidelines are

not binding on the Secretary. The Committee appointed a Legal Subcommittee to prepare a

summary of the applicable wildlife laws (MBTA, BGEPA, and ESA). This summary, entitled

“White Paper,” describes salient aspects of those laws as of October 22, 2008. The full

Committee reviewed the White Paper and voted to include it in the appendix to the

Guidelines as a useful reference paper (see Appendix B).

2. Step

‐ down to the Director of the USFWS

It is anticipated that the Secretary will transmit to the Director the full set of recommended

Guidelines, together with direction for their use in developing final guidelines. While it is

uncertain when this will occur, the Committee requests that the Secretary review the

recommendations as soon as possible.

3. USFWS develops draft guidelines

The Committee recommends that the Secretary direct the USFWS to use the Committee’s

recommended Guidelines to develop its final guidelines. The Committee recommends that

the Guidelines be adopted in full. The Secretary retains full discretion to alter or modify the

recommended Guidelines, especially in the event that new information or public comments

warrant changes.

Wind Turbine Guidelines Advisory Committee Recommendations: GuidelinesChapter Five: Advancing Use, Cooperation, Implementation

The Committee understands that the final guidelines will be developed by a USFWS Task

Force to be convened as soon as possible following the step

‐ down from the Secretary. The

Task Force will be comprised of key USFWS staff from Regional and Field Offices with

knowledge, skills, and experience related to wind energy development. The Committee

requests that the Task Force complete their work as soon as possible, depending on when

the Secretary forwards his direction to the Director.

4. Publication/Solicitation of comments

The Committee understands that a Notice of Proposed Guidance will be published in the

Federal Register and made available for public comment. The Committee understands that

the USFWS anticipates a 90

‐ day comment period.

5. Comment review and response

The Committee anticipates that USFWS will review and respond to all comments received

during the comment period. The response time will depend upon the quantity and detail of

the comments received. However, USFWS anticipates that it will require at least 60 days to

respond to comments and make the necessary changes to the guidelines.

6. Publication of final guidelines

The Committee anticipates that USFWS will publish the final guidelines and response to

comments in the Federal Register as soon as possible.



### General Considerations

1. Consistent Application

The Committee recommends that USFWS inform all Regional and Field staff of the Premises

and Principles from which these Guidelines were developed. USFWS should provide

guidance and training to all USFWS staff involved in wind energy development for

implementation of final USFWS guidelines to promote their consistent application, provide

direction on how to accommodate flexibility in addressing site specific conditions, and

facilitate agency and industry understanding of recommended actions. Guidance should

include the need for flexibility to address diverse geographic regions, habitat types, and

wind energy projects. USFWS should ensure that Regional and/or Washington Office staff is

available to provide guidance to the field staff for consistent application of the guidelines.

Guidance also will be provided to assist in addressing developer concerns that cannot

otherwise be resolved in a timely fashion at the field level.

USFWS, environmental, and industry representatives should continue to be involved with

the development of BMPs for project design, operation and compensatory mitigation, based

on best available science, to minimize significant adverse impacts to species of concern and

their habitats from projects. USFWS will review BMPs periodically and revise as necessary to

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 70Chapter Five: Advancing Use, Cooperation, Implementation

reflect new knowledge gained from current science, monitoring results, and experience with

projects. All USFWS staff involved in review of projects should be trained in use of BMPs.

2. Training

USFWS should provide training to ensure that all Regional and Field staff have the

knowledge, skill, and ability to implement the USFWS guidelines. The Committee

recommends that training be provided through hands

‐ on workshops conducted in each

USFWS Region, with priority for the first workshops to be scheduled in areas of high wind

energy development activity. Each workshop should be planned in consultation with and

open to participants from USFWS, industry, states, Tribes, NGOs and other appropriate

participants, with the goal of developing partnerships to minimize adverse impacts to

species of concern and their habitat while allowing flexibility for projects.

3. Staff Support

The Committee recommends that the USFWS Chief of Division of Habitat and Resource

Conservation be designated lead on development and implementation of these guidelines.

The Committee recommends that the USFWS set a priority to work within its budget

constraints and provide staff support to review projects in a timely and efficient manner. To

supplement its staff efforts, USFWS should encourage state cooperative arrangements and

participation in review of potential projects. USFWS encourages developers to communicate

early in the project development process to facilitate timely involvement and feedback.

USFWS should also explore the collocation of additional staff in BLM Pilot Offices for

renewable energy, and the creation of new co

‐ located renewable offices. USFWS should

continue to explore new technologies and research findings to improve its ability to avoid

wildlife detriments while streamlining the review process.



### Phase

‐ in for Using Committee’s Recommended Guidelines

The recommended tiered approach in these Guidelines may not be immediately applicable at

projects in the development or operational phase because the tiered approach requires

many months or years to plan and implement. Accordingly, the recommendations contained

in Tiers 1 through 5 become effective 24 months after the date USFWS publishes final

guidelines (the “Effective Date”). This will allow USFWS and state wildlife

‐ agency managers

and Field Office personnel, wildlife consultants, developers, NGOs, and other government

agencies time for training and adjustments.

An important incentive to voluntary adoption of the tiered approach is that after the

guidelines are published, USFWS will take a developer’s adherence to the guidelines and

communication with USFWS fully into account as evidence of due care when exercising its

enforcement discretion under the MBTA and BGEPA. A benefit of following the approach

recommended in the Guidelines is that in the event of later adverse environmental impacts,

the developer will be able to demonstrate that it adhered to the guidelines, communicated

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 71Chapter Five: Advancing Use, Cooperation, Implementation

with USFWS, and considered the advice of USFWS in project siting, construction and

operation.

USFWS encourages use of the guidelines and adoption of the tiered approach by future and

existing projects. Accordingly, all projects that commence after the Effective Date should

apply the tiered approach to all phases of the project. However, projects that have already

commenced are not expected to start over or return to the beginning of a specific tier.

Instead, these projects should implement those portions of the guidelines relevant to the

continuing phases of the project. For projects that are already operational prior to the

Effective Date, they should adhere to the recommendations in Tier 4, and, if applicable, Tier

5.

For projects commencing after the Effective Date of the guidelines, “voluntary adherence

and communication” shall mean that the developer has applied the guidelines, including the

tiered approach, through site selection, design, construction, operation and post

‐ operation

phases of the project, and has communicated with USFWS and considered its advice. For

projects commencing prior to the Effective Date of the guidelines, “voluntary adherence

and communication” shall mean that the developer has communicated with USFWS early in

the process and can produce records that demonstrate that they have applied

recommendations of the tiered approach relevant to activities at the project which occur

after the date the USFWS publishes final guidelines. In either case, USFWS will take such

adherence and communication fully into account when exercising its discretion with respect

to any potential referral for prosecution under the MBTA and BGEPA. USFWS retains its

existing authority to inspect and assess the sufficiency of these records.



### B. Project Development and Coordination with the USFWS

Coordination and/or Consultation with USFWS

The Committee recommends that the Secretary direct the USFWS to consider the varying

circumstances in which a wind energy project may be developed, and provide clear

explanation and expectations to users of the guidelines as to how the guidelines will be

applied in each instance. Explanation should include guidance for projects developed with or

without a federal nexus.



### Ensuring Timely Project Review

The Committee recommends that the USFWS:

• Work within its budget constraints to provide staff support in order to review

projects in a timely and efficient manner.

• Encourage state cooperative arrangements and participation in review of proposed

projects to supplement its staff efforts.

• Encourage developers to communicate early in the project development process to

facilitate timely involvement and feedback.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 72Chapter Five: Advancing Use, Cooperation, Implementation

• Explore agreements with other federal agencies to help fund staff positions, such as

the BLM Pilot Project Offices for oil and gas or the BLM Renewable Offices.

• Continue to explore cutting edge technology to further streamline the review

process, such as the Information, Planning, and Consultation (IPaC) system.



### Conflict Resolution

Conflict resolution under the provisions of the Guidelines needs to be expeditious and

effective. To increase use of the guidelines, conflict resolution should be applied consistently

across USFWS regions. USFWS and developers should attempt to resolve any conflicts

arising from use of the guidelines at the Field Office level. Deliberations should be in the

context of the intent of the Guidelines and be based on the site

‐ specific conditions and the

best available data. However, if there is an issue that cannot be resolved within a standard

time frame, the developer should have the option to bring the issue to a designated

individual/team in the Regional Office. The designated individual/team USFWS Regional

Office representative should work with the field staff and the developer to ensure that a

resolution is obtained in a timely manner. If the issue is unresolved, the Regional Office

representative will facilitate resolution if it requires further elevation within USFWS. The

Committee recommends that the USFWS shepherd the disputed issue(s) up the USFWS

chain of command, if necessary.



### Consideration of the Guidelines in MBTA and BGEPA Enforcement

The Committee recommends that DOI adopt the following statement:

Consideration of the Guidelines in MBTA and BGEPA Enforcement

“USFWS urges voluntary adherence to the guidelines and communication with

USFWS when planning and operating a facility. USFWS 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, and will take such adherence and communication fully into

account when exercising its discretion with respect to any potential referral for

prosecution related to the death of or injury to any such species. Each developer will

be responsible for maintaining internal records sufficient to demonstrate adherence

to the guidelines. Examples of these records could include: studies performed in the

implementation of the tiered approach; an internal or external review or audit

process; an Avian and Bat Protection Plan; or a wildlife management plan. USFWS

retains its existing authority to inspect and assess the sufficiency of those records.”

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 73Chapter Five: Advancing Use, Cooperation, Implementation



### Optional Use of Avian and Bat Protection Plan (ABPP)

An Avian and Bat Protection Plan (ABPP) is a company

‐ or project

‐ specific document that

provides a description of actions to responsibly address the applicable wildlife issues

associated with wind energy development; the avoidance, minimization and (as

appropriate) mitigation measures; and the management activities that a company or project

owner will conduct to protect birds and bats. Although the details of each company’s or

project’s ABPP will be different, the overall goals of any ABPP include describing the actions

and/or processes to implement and demonstrate adherence to the guidelines in the

development, construction and operation of projects.

Corporate ABPP

A corporate ABPP documents the processes a company uses to implement the guidelines for

all of its projects. Key elements usually include a corporate policy commitment to minimize

adverse impacts to wildlife; specific processes to be used to reduce impacts to birds and

bats during each stage of project development, construction, and operations; permit

compliance systems; and implementation tools, including training, auditing, and reporting.

Project

‐ specific ABPP

Companies that adopt corporate ABPPs may in many cases also “step down,” or implement

the corporate ABPP for some or all of its projects via project

‐ specific ABPPs. In other cases, a

company may develop only the project

‐ specific ABPP.

A project

‐ specific ABPP documents the bird and bat impact avoidance, minimization and (if

applicable) mitigation measures for a specific site. Typically a project

‐ specific ABPP will

document the analyses, studies, and reasoning that have supported progressing from one

tier to the next in the tiered approach laid out in the Guidelines. A project

‐ specific ABPP will

often be a plan developed in stages, over time, as the analysis and studies are undertaken

for each tier.



### C. Federal Interagency Coordination and Cooperation

The Committee recommends that the Chief of Division of Habitat and Resource

Conservation, USFWS, employ the following strategies to ensure the timely and consistent

review of wind energy projects by federal agencies:

1. USFWS, together with other federal agencies, should establish an interagency

working group to optimize federal coordination and use of the USFWS national

guidelines to the greatest extent possible, advance consistency, and avoid

duplication in the federal review and permitting process as it relates to wind

development.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 74Chapter Five: Advancing Use, Cooperation, Implementation

2. USFWS should work with other federal agencies to provide incentives for adopting

and using USFWS national guidelines, encourage early coordination for projects that

may affect wildlife resources, and use interagency meetings to promote consistency.

3. USFWS should establish and maintain a readily accessible national repository of BMPs

for wind/wildlife interactions to increase efficiency, interagency coordination, and

state and industry use of best management practices.

4. USFWS should assist public lands management agencies in identifying landscapes

that include important habitats and ecosystem components that merit special

attention in considering wind energy development.

5. USFWS should cooperate with U.S. Department of Agriculture (USDA)

‐ Natural

Resource Conservation Service and USDA Farm Service Agency to ensure that

agricultural conservation programs

– including, but not limited to, the Conservation

Reserve Program, Wetland Reserve Program, Grassland Reserve Program, and Farm

and Ranchland Protection Program

– are implemented and managed in a manner

consistent with the guidelines.

USFWS should coordinate with other agencies that require data collection at a wind energy

site to promote consistent methodology and reporting requirements, while also

accommodating individual site conditions and practical limitations.



### D. USFWS

‐ State Coordination and Cooperation

USFWS should encourage states to increase compatibility between state guidelines and

these voluntary guidelines, protocols, data collection methods, and recommendations

relating to wildlife and wind energy. While these Guidelines contain recommendations that

are generally applicable at the federal, state and local levels across the country, some

specific recommendations contained herein may not be standard practice in all states.

States that desire to adopt, or those that have formally adopted, wind energy siting,

permitting or environmental review regulations or guidelines are encouraged to cooperate

with USFWS to develop consistent state level guidelines. USFWS should confer, coordinate

and share its expertise with interested states when a state lacks its own guidance or

program to address wind energy

‐ wildlife interactions. The USFWS should also use states’

technical resources as much as possible and appropriate.

USFWS should establish a voluntary state/federal program to advance cooperation and

compatibility between USFWS and interested state and local governments for coordinated

review of projects under both federal and state wildlife laws. USFWS and interested states

are encouraged to reach agreements to foster consistency in review of projects using the

following tools:

• Cooperation agreements with interested state governments.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 75Chapter Five: Advancing Use, Cooperation, Implementation

• Joint agency reviews to reduce duplication and increase coordination in project

review.

• A communication mechanism:

 To share information about prospective projects

 To coordinate project review

 To ensure that state and federal regulatory processes, and/or mitigation

requirements are being adequately addressed

 To ensure that species of concern and their habitats are fully addressed

• Establishing consistent and predictable joint protocols, data collection

methodologies, and study requirements to satisfy project review and permitting.

• Designating a USFWS management contact within each Regional Office to assist Field

Offices working with states and local agencies to resolve significant wildlife

‐ related

issues that cannot be resolved at the field level.

• Cooperative state/federal/industry research agreements relating to wind energy

‐

wildlife interactions.

• States without their own guidelines should consider waiting for the USFWS

guidelines in order to ensure compatibility with those guidelines.

USFWS Role:

• Provide training to states.

• Foster development of a national geographic data base that identifies development

‐

sensitive ecosystems and habitats.

• Support a national database for reporting of mortality data on a consistent basis.

• Establish national BMPs for wind energy development projects.

• Develop recommended guidance on study protocols, study techniques, and

measures and metrics for use by all jurisdictions.

• Assist in identifying and obtaining funding for national research priorities.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 76Chapter Five: Advancing Use, Cooperation, Implementation



### E. USFWS

‐ Tribal Coordination and Cooperation

Tribal coordination is important not only in federal discussions. Many tribal traditional lands

and tribal rights extend outside federal lands onto state regulated lands. In addition, tribal

interests are impacted in even private land developments. A discussion of tribal input to all

projects is important.



### Authorities for Federal

‐ Tribal Coordination

The federal government maintains a special trust relationship with Tribes pursuant to

treaties, statutes, Executive Orders, regulations, and judicial decisions. The federal

government and USFWS affirmed these obligations to Tribes in Executive Order 13175

“Consultation and Coordination with Indian Tribal Governments,” and Presidential

Memorandum “Government

‐ to

‐ Government Relations with Native American Tribal

Governments” (April 29, 1994), Joint Secretarial Order 3206 “American Indian Tribal Rights,

Federal Tribal Trust Responsibilities, and the Endangered Species Act” (updated January 16,

2008), and the USFWS Native American Policy (June 28, 1994).



### Tribal Coordination

Accordingly, the USFWS shall seek to establish and maintain effective government

‐ to

‐

government working relationships with Tribes to achieve the common goal of promoting

and protecting the fish, wildlife and their habitats. Whenever USFWS is aware that its

actions and activities may impact tribal trust resources, the exercise of tribal rights, or Indian

lands (both lands held in trust for Tribes and individual Indians, and lands owned by Tribes or

individual Indians subject to restrictions on alienation), the USFWS shall consult and

coordinate with, and seek the participation of, the affected Tribes to the maximum extent

practicable. This shall include providing affected Tribes adequate opportunities to

participate in data collection, consensus seeking, comment, and associated processes. To

facilitate the government

‐ to

‐ government relationship, the USFWS may coordinate their

discussions with a representative from an intertribal organization, if so designated by the

affected Tribe(s).

Jurisdiction on Tribal Lands

The USFWS recognizes that Tribes value and take responsibility for the management of their

lands and resources. Indian lands, whether held in trust by the United States for the use and

benefit of Indians or owned exclusively by a Tribe, are not subject to the controls or

restrictions set forth in federal public land laws. Indian lands are not federal public lands or

part of the public domain, but are rather retained by Tribes or set aside for tribal use

pursuant to treaties, statutes, court orders, executive orders, judicial decisions, or

agreements. Accordingly, Tribes manage Indian lands in accordance with tribal goals and

objectives, within the framework of applicable laws.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 77Chapter Five: Advancing Use, Cooperation, Implementation

Except when determined necessary for investigative or prosecutorial law enforcement

activities, or when otherwise provided in a federal/tribal agreement, the USFWS, to the

maximum extent practicable, shall obtain permission from Tribes before knowingly entering

Indian reservations and tribally

‐ owned fee lands and shall communicate as necessary with

the appropriate tribal officials. If a Tribe believes this section has been violated, such Tribe

may file a complaint with the Secretary, who shall promptly investigate and respond to the

Tribe.

Tribal Conservation and Management Plans

The USFWS acknowledges that Tribes value, and exercise responsibilities for, management

of Indian lands and tribal trust resources. As such, the USFWS shall give deference to tribal

conservation and management plans for tribal trust resources that: 1) govern activities on

Indian lands, including, for purposes of these plans, tribally

‐ owned fee lands, and 2) address

the conservation needs of tribal resources. The USFWS shall conduct government

‐ to

‐

government consultations to discuss the extent to which tribal resource management plans

for tribal trust resources outside Indian lands can be incorporated into actions to address

the conservation needs of tribal resources.

Communication with other Agencies

USFWS will encourage and facilitate communication and cooperation among tribal

governments, states, federal agencies and others to identify and delineate respective roles

and responsibilities and to ensure that issues of common interest and concern are discussed.

This may include such activities as taking the initiative, as lead federal agency in this process,

to provide the biological or managerial expertise necessary for resolution of conflicts about

fish and wildlife resource issues. This may include, but is not limited to, coordination and

cooperation with other fish and wildlife management agencies, such as the National Marine

Fisheries Service.

Intergovernmental Agreements for Sensitive Species

The USFWS shall, when appropriate and at the request of a Tribe, pursue intergovernmental

agreements to formalize arrangements for federal candidate, proposed, and listed species

such as, but not limited to, land and resource management, multi

‐ jurisdictional partnerships,

cooperative law enforcement, and guidelines to accommodate Indian access to, and

traditional uses of, natural products. Such agreements shall strive to establish partnerships

that harmonize the USFWS mission with the Tribe's own ecosystem management objectives.

Coordination on Cultural Resources Issues

Tribes and the USFWS both recognize the relationship between habitat resources and

cultural and historic resources. USFWS and its Cultural Resources Program manage the array

of cultural resources under its jurisdiction. Therefore the USFWS shall consult with

appropriate Tribe(s) to identify the cultural or religious interests, the traditional practices,

aboriginal use areas, historic and sacred sites, artifacts, archeological sites, and treaty rights

that could be affected by USFWS actions on Indian lands held in trust by the federal

government. USFWS will be guided in this respect by such legislation as the National Historic

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 78Chapter Five: Advancing Use, Cooperation, Implementation

Preservation Act, Native American Graves Protection and Repatriation Act, Archaeological

Resources Protection Act, and the American Indian Religious Freedom Act.

USFWS should work with Tribes with the goal to promote compatibility between tribal and

federally recommended wildlife protocols, data collection methods, and requirements

relating to wildlife and wind energy. These wind energy Guidelines contain

recommendations that may be generally applicable at the federal, state, tribal and local

levels across the country, as well as policies, measures and incentives that are focused on

USFWS policies, procedures, goals and regulations, and those of other federal

agencies. Some of the specific recommendations may not be applicable at the tribal

government level. Those Tribes that desire to or that have formally adopted wind energy

siting, permitting or environmental review regulations or guidelines may contact USFWS for

technical assistance (including consultation, as necessary, with the Office of the Solicitor) in

order to minimize conflicting or unnecessary requirements resulting from different tribal

versus federal practices. In addition, USFWS should confer, coordinate and share its

expertise with interested Tribes when a Tribe lacks its own guidance or program to address

wind and wildlife interactions.

The Committee recommends that USFWS establish a voluntary tribal/federal cooperation

program to promote cooperation and compatibility between USFWS and interested tribal

governments for coordinated review of projects under applicable federal wildlife laws.

Formal agreements between USFWS and Tribes may be explored. Cooperation between

Tribes and USFWS may include the following elements:

• Strengthening a cooperative approach to the management of fish and wildlife

habitat on Indian lands through potential mutually cooperative agreements,

memoranda of understanding, or memoranda of agreement with interested tribal

governments to promote coordinated, consistent review of projects for compliance

with applicable federal wildlife laws.

• Provision for voluntary joint agency reviews and other appropriate measures to

reduce duplication and increase coordination between tribal governments and

USFWS in reviewing projects.

• Fostering of communication between Tribes and USFWS to ensure that the party first

obtaining the information about a prospective project will notify the other party to

enable joint planning on how to coordinate review of the project.

• Identification of representatives of a Tribe who is responsible to work with the

USFWS Regional Office to coordinate review of proposed wind activities under

applicable wildlife laws.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 79Chapter Five: Advancing Use, Cooperation, Implementation

• Establishment of consistent and predictable joint protocols, data collection

methodology, and study requirements that can be used by USFWS and Tribes to

satisfy project permitting and environmental review requirements.

• Designation of a USFWS management contact within each Regional Office who is

available as a resource to the Field Offices to work with Tribes to resolve significant

wildlife

‐ related issues that may arise at projects that cannot be resolved at the Field

Office.

• Establishment of cooperative tribal/federal/industry research agreements relating to

wind energy

‐ wildlife interactions.

• Tribes must have the confidence that developers are considering tribal resources that

may be at risk and ensure that tribal regulatory processes or mitigation requirements

are being addressed in project development.

Additional Optional Arrangements between Indian Tribes and USFWS:

• USFWS should support and promote the establishment of negotiated agreements

with interested Tribes that specify additional coordination, review and compliance

responsibilities for ensuring project compatibility with applicable wildlife laws.

• In administering this tribal/federal partnership program, the Committee recommends

that USFWS and the Tribes provide differing but complementary services.

USFWS Services:

• Provide training to Tribes.

• Support and/or manage a national database for reporting of mortality data on a

consistent basis.

• Establish and maintain national “best management practices” for project siting and

operation based on project experience and learning.

• Establish and revise recommended guidance on study protocols, study techniques,

and measures and metrics for use by all jurisdictions.

• Assist in identification and pursuit of funding for national research priorities.

Indian Tribes Services:

• Consider the voluntary national guidelines as the minimum foundation of a Tribe’s

approach to wind energy and wildlife review.

• Consider sharing information by reporting project monitoring data and results

received from the project developer to national database at USFWS.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 80Chapter Five: Advancing Use, Cooperation, Implementation



### F. NGO Actions

If a specific project involves actions at the local, state, or federal level that provide

opportunities for public participation, non

‐ governmental organizations (NGOs) can provide

meaningful contributions to the discussion of biological issues associated with that project,

through the normal processes such as scoping, testimony at public meetings, and comment

processes. In the absence of formal public process, there are many NGOs that have

substantial scientific capabilities and may have resources that could contribute productively

to the siting of wind energy projects. Several NGOs have made significant contributions to

the understanding of the importance of particular geographic areas to wildlife in the United

States. This work has benefited and continues to benefit from extensive research efforts

and from associations with highly qualified biologists. NGO expertise can

– as can scientific

expertise in the academic or private consulting sectors

– serve highly constructive purposes.

These can include:

• Providing information to help identify environmentally sensitive areas, during the

screening phases of site selection (Tiers 1 and 2, as described in this document)

• Providing feedback to developers and agencies with respect to specific sites and site

and impact assessment efforts

• Helping developers and agencies design and implement mitigation or offset

strategies

• Participating in the defining, assessing, funding, and implementation of research

efforts in support of improved predictors of risk, impact assessments and effective

responses

• Articulating challenges, concerns, and successes to diverse audiences



### NGO Conservation Lands

Implementation of these Guidelines by USFWS and other state agencies will recognize that

lands owned and managed by non

‐ government conservation organizations represent a

significant investment that generally supports the mission of state and federal wildlife

agencies. Many of these lands represent an investment of federal conservation funds,

through partnerships between agencies and NGOs. These considerations merit extra care in

the avoidance of wind energy development impacts to these lands. In order to exercise this

care, the Committee recommends that the USFWS and allied agencies coordinate and

consult with NGOs that own lands or easements which might reasonably be impacted by a

project under review.

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 81Wind Turbine Guidelines Advisory Committee Recommendations 82

## U.S. Fish and Wildlife Service

Wind Turbine Guidelines Advisory Committee



# A p p e n d i c e s

Wind Turbine Guidelines Advisory Committee Recommendations: Guidelines 83

## Appendices

Appendix A: Glossary..........................................................................A1

‐ 8

Appendix B: Legal White Paper ( presented and adopted at

October 21

‐ 23, 2008 Committee Meeting)



### .............................................. B1

‐ 24

Appendix C: Landscape

‐ Level Mapping Tools for Assessing Wildlife

and Habitat Impacts

, from the Landscape/Habitat Subcommittee

(presented at October 21

‐ 23, 2008 Committee Meeting)



### ........................... C1

‐ 4

Appendix D: Literature Cited

........................................................... D1

‐ 10

Wind Turbine Guidelines Advisory Committee Recommendations 84Appendix A: Glossary



## A p p e n d i x A :

G l o s s a r y

Acceptable/unacceptable

– In the tiered approach described in these Guidelines, the

individuals and institutions involved in the decision process agree that risk and/or impacts

are acceptable or unacceptable.

Accuracy

– The agreement between a measurement and the true or correct value.

Adaptive management

– An iterative decision process that promotes flexible decision

‐ making that can be adjusted in the face of uncertainties as outcomes from management

actions and other events become better understood. The term as used in the

recommendations and the Guidelines specifically refers to “passive” adaptive management,

in which alternative management activities are assessed, and the best option is designed,

implemented, and evaluated.

Anthropogenic

– Resulting from the influence of human beings on nature.

Area of interest

– For most projects, the area where wind turbines and meteorological (met)

towers are proposed or expected to be sited, and the area of potential impact.

Avian

– Pertaining to or characteristic of birds.

Avoid

– To not take an action or parts of an action to avert the potential effects of the action

or parts thereof. First of three components of “mitigation,” as defined in USFWS Mitigation

Policy. ( See mitigation .)

Before

‐ after/control

‐ impact (BACI)

– A study design that involves comparisons of

observational data, such as bird counts, before and after an environmental disturbance in a

disturbed and undisturbed site. This study design allows a researcher to assess the effects of

constructing and operating a wind turbine by comparing data from the “control” sites

(before and undisturbed) with the “treatment” sites (after and disturbed).

Best management practices (BMPs)

– Methods that have been determined by the

stakeholders to be the most effective, practicable means of avoiding or minimizing

significant adverse impacts to individual species, their habitats or an ecosystem, based on

the best available information.

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices A1Appendix A: Glossary

Buffer zone

– A neutral zone surrounding a resource designed to protect the resource from

adverse impact, and/or a zone surrounding an existing or proposed wind energy project for

the purposes of data collection and/or impact estimation.

Comparable site

– A site similar to the project site with respect to topography, vegetation,

and the species under consideration.

Compensatory mitigation

– Replacement of project

‐ induced losses to fish and wildlife

resources. Substitution or offsetting of fish and wildlife resource losses with resources

considered to be of equivalent biological value.

- In

‐ kind

– Providing or managing substitute resources to replace the value of the

resources lost, where such substitute resources are physically and biologically the same

or closely approximate to those lost.

- Out

‐ of

‐ kind

– Providing or managing substitute resources to replace the value of the

resources lost, where such substitute resources are physically or biologically different

from those lost. This may include conservation or mitigation banking, research or other

options.

Cost effective

– Economical in terms of tangible benefits produced by money spent.

Covariate

– Uncontrolled random variables that influence a response to a treatment or

impact, but do not interact with any of the treatments or impacts being tested.

Critical habitat

– For listed species, consists of the specific areas designated by rule making

pursuant to Section 4 of the Endangered Species Act and displayed in 50 CFR § 17.11 and

17.12.

Cumulative impacts

– See impact

.

Displacement

– The loss of habitat as result of an animal’s behavioral avoidance of

otherwise suitable habitat. Displacement may be short

‐ term, during the construction phase

of a project, temporary as a result of habituation, or long

‐ term, for the life of the project.

Ecosystem

– A system formed by the interaction of a community of organisms with their

physical and chemical environment. All of the biotic elements (i.e., species, populations, and

communities) and abiotic elements (i.e., land, air, water, energy) interacting in a given

geographic area so that a flow of energy leads to a clearly defined trophic structure, biotic

diversity, and material cycles. USFWS Mitigation Policy adopted definition from E. P. Odum

1971 Fundamentals of Ecology.

Endangered species

– See listed species

.

Extirpation

– The species ceases to exist in a given location; the species still exists

elsewhere.

A2 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix A: Glossary

Fatality

– An individual instance of death.

Fatality rate

– The ratio of the number of individual deaths to some parameter of interest

such as megawatts of energy produced, the number of turbines in a wind project, the

number of individuals exposed, etc, within a specified unit of time.

Feathering

– A form of curtailment for wind turbines that involves either reducing the angle

of individual blades into the wind, thereby reducing rotor speed, or turning the whole unit

out of the wind. When rotors are feathered, they are pitched parallel to the wind, essentially

making them stationary.

Federal action agency

– A department, bureau, agency or instrumentality of the United

States which plans, constructs, operates or maintains a project, or which reviews, plans for

or approves a permit, lease or license for projects, or manages federal lands.

Federally listed species

– See listed species

.

Footprint

– The geographic area occupied by the actual infrastructure of a project such as

wind turbines, access roads, substation, overhead and underground electrical lines, and

buildings.

G1 (Global Conservation Status Ranking) Critically Imperiled

– At very high risk of extinction

due to extreme rarity (often five or fewer populations), very steep declines, or other factors.

G2 (Global Conservation Status Ranking) Imperiled

– At high risk of extinction or elimination

due to very restricted range, very few populations, steep declines, or other factors.

G3 ( Global Conservation Status Ranking) Vulnerable

– At moderate risk of extinction or

elimination due to a restricted range, relatively few populations, recent and widespread

declines, or other factors.

Guy wire

– Wires used to secure wind turbines or meteorological towers that are not self

‐ supporting.

Habitat

– The area which provides direct support for a given species, including adequate

food, water, space, and cover necessary for survival.

Habitat fragmentation

– The separation of a block of habitat for a species into segments,

such that the genetic or demographic viability of the populations surviving in the remaining

habitat segments is reduced.

Impact

– An effect or effects on natural resources and on the components, structures, and

functioning of affected ecosystems.

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices A3Appendix A: Glossary

- Cumulative

– Changes in the environment caused by the aggregate of past, present and

reasonably foreseeable future actions on a given resource or ecosystem.

- Direct

– Effects on individual species and their habitats caused by the action, and occur

at the same time and place.

- Indirect impact

– Effects caused by the action and are later in time or farther removed in

distance, but are still reasonably foreseeable.

Infill

– Add an additional phase to the existing project, or build a new project adjacent to

existing projects.

In

‐ kind compensatory mitigation

– See compensatory mitigation.

Intact habitat

– An expanse of habitat for a species or landscape scale feature, unbroken

with respect to its value for the species or for society.

Intact landscape

– Relatively undisturbed areas characterized by maintenance of most

original ecological processes and by communities with most of their original native species

still present.

Lambda ( λ ) – Population growth rate; a lamba of 1.0 = stable population, less than 1.0 = declining population, and greater than 1.0 = increasing population.

Lattice design

– A wind turbine support structure design characterized by horizontal or

diagonal lattice of bars forming a tower rather than a single tubular support for the nacelle

and rotor.

Lead agency

– Agency that is responsible for federal or non

‐ federal regulatory or

environmental assessment actions.

Lek

– A traditional site commonly used year after year by males of certain species of birds

(e.g., greater and lesser prairie

‐ chickens, sage and sharp

‐ tailed grouse, and buff

‐ breasted

sandpiper), within which the males display communally to attract and compete for female

mates, and where breeding occurs.

Listed species

– Any species of fish, wildlife or plant that has been determined to be

endangered or threatened under section 4 of the Endangered Species Act (50 CFR §402.02),

or similarly designated by state law or rule.

Local population

– A subdivision of a population of animals or plants of a particular species

that is in relative proximity to a project.

Loss

– As used in this document, a change in wildlife habitat due to human activities that is

considered adverse and: 1) reduces the biological value of that habitat for species of

concern; 2) reduces population numbers of species of concern; 3) increases population

A4 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix A: Glossary

numbers of invasive or exotic species; or 4) reduces the human use of those species of

concern.

Megawatt (MW)

– A measurement of electricity

‐ generating capacity equivalent to 1,000

kilowatts (kW), or 1,000,000 watts.

Migration

– Regular movements of wildlife between their seasonal ranges necessary for

completion of the species lifecycle.

Migration corridor

– Migration routes and/or corridors are the relatively predictable

pathways that a migratory species travel between seasonal ranges, usually breeding and

wintering grounds.

Migration stopovers

– Areas where congregations of birds assemble during migration, and

supply high densities of food, such as wetlands and associated habitats.

Minimize

– To reduce to the smallest practicable amount or degree.

Mitigation

– ( Specific to these Guidelines) Avoiding or minimizing significant adverse impacts,

and when appropriate, compensating for unavoidable significant adverse impacts.

Monitoring

– A process of project oversight. Also, making measurements of uncontrolled

events at one or more points in space or time with space and time being the only

experimental variable or treatment.

Mortality rate

– Population death rate, typically expressed as the ratio of deaths per 100,000

individuals in the population per year (or some other time period).

Operational modification

– Deliberate changes to wind energy project operating protocols,

such as the wind speed at which turbines “cut in” or begin generating power, undertaken

with the object of reducing collision fatalities.

Passerine

– Describes birds that are members of the Order Passeriformes

, typically called

“songbirds.”

Population

– A demographically and genetically self

‐ sustaining group of animals and/or

plants of a particular species.

Practicable

– Capable of being done or accomplished; feasible.

Prairie grouse

– A group of gallinaceous birds, includes the greater prairie

‐ chicken, the

lesser prairie

‐ chicken, and the sharp

‐ tailed grouse, occurring in the Great Plains and

northwestern areas of North America.

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices A5Appendix A: Glossary

Project area

– The area that includes the project site as well as contiguous land that shares

relevant characteristics.

Project commencement

– The point in time when a developer begins its preliminary

evaluation of a broad geographic area to assess the general ecological context of a potential

site or sites for wind energy project(s). For example, this may include the time at which an

option is acquired to secure real estate interests, an application for federal land use has

been filed, or land has been purchased.

Project Site

– The land that is included in the project where development occurs or is

proposed to occur.

Project transmission lines

– Electrical lines built and owned by a project developer.

Raptor

– As defined by the American Ornithological Union, a group of predatory birds

including hawks, eagles, falcons, osprey, kites, owls, vultures and the California condor.

Relative abundance

– The number of organisms of a particular kind in comparison to the

total number of organisms within a given area or community.

Risk

– The likelihood that adverse effects may occur to individual animals or populations of

species of concern, as a result of development and operation of a wind energy project. For

detailed discussion of risk and risk assessment as used in this document see Chapter Two

‐ B.

Rotor

– The part of a wind turbine that interacts with wind to produce energy. Consists of

the turbine’s blades and the hub to which the blades attach.

Rotor

‐ swept area

– The area of the circle or volume of the sphere swept by the turbine

blades.

Rotor

‐ swept zone

– The altitude within a wind energy project which is bounded by the

upper and lower limits of the rotor

‐ swept area and the spatial extent of the project.

S1 (Subnational Conservation Status Ranking) Critically Imperiled

– Critically imperiled in

the jurisdiction because of extreme rarity or because of some factor(s) such as very steep

declines making it especially vulnerable to extirpation from the jurisdiction.

S2 (Subnational Conservation Status Ranking) Imperiled

– Imperiled in the jurisdiction

because of rarity due to very restricted range, very few populations, steep declines, or other

factors making it very vulnerable to extirpation from jurisdiction

.

S3 (Subnational Conservation Status Ranking) Vulnerable

– Vulnerable in the jurisdiction

due to a restricted range, relatively few populations, recent and widespread declines, or

other factors making it vulnerable to extirpation.

A6 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix A: Glossary

Sage grouse

– A large gallinaceous bird living in the sage steppe areas of the intermountain

west, including the greater sage grouse and Gunnison’s sage grouse.

Significant

– (For purposes of impacts to species of concern, as used in these Guidelines;

adopted from The Council on Environmental Quality Definitions, 40 CFR 1500

‐ 1508) Significant

shall be defined to include both context and intensity. Context means that the significance

of an action may consider the affected region and the locality. In the case of a site

‐ specific

action, significance would usually depend upon the effects in the locale rather than in the

state or the country as a whole. Both short

‐ and long

‐ term effects are relevant. Intensity

refers to the severity of impact, and would often include consideration of the degree to

which the proposed action affects wetlands, wildlife populations, wild and scenic rivers, and

ecologically critical areas. Considerations of significance include the following:

• Whether the action threatens a violation of federal, state, or local law or

requirements imposed for the protection of the environment.

• The degree to which the action may adversely affect an endangered or threatened

species or its habitat that has been determined to be critical under the Endangered

Species Act of 1973.

• Whether the action is related to other actions with individually insignificant but

cumulatively significant impacts. Significance exists if it is reasonable to anticipate a

cumulatively significant impact on the environment

.

Species of concern

– For a particular wind energy project, any species which 1) is listed as an

endangered, threatened or candidate species under the Endangered Species Act, is subject

to the Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act, or is designated by

law, regulation or other formal process for protection and/or management by the relevant

agency or other authority, or has been shown to be significantly adversely affected by wind

energy development, and 2) is determined to be possibly affected by the project.

Species of habitat fragmentation concern

– Species of concern whose genetic or

demographic viability is reduced by separation of their habitats into smaller blocks, thereby

reducing connectivity, and for which habitat fragmentation from a wind energy project may

create significant barriers to genetic or demographic viability of the affected population.

String

– A number of wind turbines oriented in close proximity to one another that are

usually sited in a line, such as along a ridgeline.

Strobe

– Light consisting of pulses that are high in intensity and short in duration.

Threatened species

– See listed species

.

Tubular design

– A type of wind turbine support structure for the nacelle and rotor that is

cylindrical rather than lattice.

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices A7Appendix A: Glossary

Turbine height

– The distance from the ground to the highest point reached by the tip of the

blades of a wind turbine.

Voltage (low and medium)

– Low voltages are generally below 600 volts, medium voltages

are commonly on distribution electrical lines, typically between 600 volts and 110 kV, and

voltages above 110 kV are considered high voltages.

Wildlife

– Birds, fishes, mammals, and all other classes of wild animals and all types of

aquatic and land vegetation upon which wildlife is dependent.

Wildlife management plan

– A document describing actions taken to identify resources that

may be impacted by proposed development; measures to mitigate for any significant

adverse impacts; any post

‐ construction monitoring; and any other studies that may be

carried out by the developer.

Wind turbine

– A machine for converting the kinetic energy in wind into mechanical energy,

which is then converted to electricity.

A8 Wind Turbine Guidelines Advisory Committee Recommendations: Appendices

## A p p e n d i x B : L e g a l W h i t e P a p e r

Department of the Interior Wind Turbine Guidelines Advisory Committee

October 22, 2008

The Charter for the U.S. Department of the Interior (“DOI”) Wind Turbine Guidelines

Advisory Committee (the “Committee”) directs the Committee to provide advice and

recommendations to the Secretary of the Interior (the “Secretary”) concerning wind turbine

guidelines that “avoid and minimize impacts to wildlife and their habitat related to land

‐

based wind energy facilities.” The Charter describes the authority of the Committee to act

in furtherance of the Migratory Bird Treaty Act (“MBTA”), 1 the Bald and Golden Eagle

Protection Act (“BGEPA”), 2 the Endangered Species Act (“ESA”), 3 and the National

Environmental Policy Act (“NEPA”). 4 The Charter also directs the Committee to consider

wildlife impacts, costs of information acquisition, scientific approaches, and compliance

with State and Federal laws. In order to assist the Committee with regard to these

directives, the Legal Subcommittee has prepared and the full Committee has unanimously

adopted 5 this memorandum summarizing: (1) the authority under the above

‐ noted

environmental laws to protect wildlife and habitat and regulate the impacts of land

‐ based

wind energy facilities; (2) the consequences of noncompliance with these laws; and (3) the

means by which a person or entity may avoid or reduce liability and avoid, minimize, and

mitigate adverse effects on wildlife or habitat under these laws.



### I. SCOPE OF AUTHORITY TO PROTECT WILDLIFE AND HABITAT UNDER FEDERAL LAW

AND CONSEQUENCES OF NONCOMPLIANCE



### A. Endangered Species Act

By delegation of authority from the respective Secretaries of the Interior and

Commerce, the ESA is administered by the U.S. Fish and Wildlife Service (“FWS”) and the

National Marine Fisheries Service (“NMFS”), with the former having primary responsibility

for terrestrial and freshwater species and the latter having primary responsibility for marine

life. The purpose of the ESA is to “provide a means whereby the ecosystems upon which

endangered species and threatened species depend may be conserved, to provide a

program for the conservation of such endangered species and threatened species, and to

take such steps as may be appropriate to achieve the purposes of [certain] treaties and

conventions

. . . .” 6 In furtherance of this purpose, Sections 7 and 9 of the ESA contain

independent provisions that may set species

‐ and habitat

‐ related standards relevant to wind

energy projects.

1. Section 7(a)(2) Requirements

Section 7(a)(2) requirements relate to Federal agency actions. Section 7(a)(2)

requires that:

each Federal agency shall, in consultation with

. . . the

Secretary, insure that any action authorized, funded or carried

out by such agency

. . . is not likely to jeopardize the continued

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B1Appendix B: Legal White Paper

existence of any endangered species or threatened species or

result in the destruction or adverse modification of [designated

critical] habitat of such species. 7

The broad statutory description of agency action means that the Section 7(a)(2) standards

apply to private actions that require Federal permits, licenses, or other forms of

authorization, or that receive federal grants or other forms of federal funding.

Section 7(a)(2) contains two relevant standards: the “jeopardy standard” and the

“critical habitat standard.” FWS has defined both standards in terms of “survival and

recovery” of the endangered species or threatened species (“listed species”). 8 However,

several courts have described as invalid the regulatory definition of the critical habitat

standard. 9 Critical habitat—as with listed species—is designated by rulemaking under

Section 4 of the ESA. Section 3 defines critical habitat in terms of conservation (“features”

or “areas” that are “essential to the conservation of the species”). 10 Section 3 also defines

“conservation” in terms of recovery of the listed species to the point that it no longer needs

the protection of the ESA. 11 Based on those statutory definitions, some courts have opined

that the regulatory definition of “survival” in the critical habitat standard is inappropriate.

Although the courts have not provided a substitute definition for the standard, they have

determined that, where a listed species’ critical habitat is involved in an agency action, 12 the

FWS must at least consider the effect of the action on conservation (and not just survival) of

that species (even though, when designating critical habitat, the FWS can exclude all habitat

for economic or other reasons up to the point that extinction would result from a failure to

designate). 13 The FWS also has not adopted a new or modified definition of the critical

habitat standard; instead, it has declared it will not use its existing regulatory definition of

the standard and will apply the standard solely in accordance with the statutory wording

( i.e.

, “destruction or adverse modification”). 14

2. Section 9 Requirements

Section 9 sets a standard applicable to all persons, whether they are subject to any

Federal agency action. 15 Section 9(a)(1)(B) prohibits the “take” of endangered species of

fish and wildlife within the United States or its territorial waters. 16 A “take” is defined with

extraordinary breadth to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or to attempt to engage in any such conduct.” 17 A “take” of individual

members of a listed endangered or threatened species of fish or wildlife (“wildlife”)

constitutes a violation of the ESA.

With regard to the impacts of habitat modification on listed species covered by the

Section 9 take prohibition, the FWS has by regulation defined “harm” as “an act which

actually kills or injures wildlife,” which “may include significant habitat modification or

degradation where it actually kills or injures wildlife by significantly impairing essential

behavioral patterns, including breeding, feeding or sheltering.” 18 Injury or death to a listed

wildlife species can be the direct or indirect result of habitat modification or degradation,

such that the act “impair[s] essential behavioral patterns, including breeding, feeding or sheltering.” 19 To be actionable, habitat modification or degradation must be “significant,” 20

and land use activities that result in habitat modification or degradation are not sufficient in

themselves to constitute a “take” of listed wildlife under Section 9 and the “harm”

B2 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

regulation. 21 Instead, only a land use activity that “actually kills or injures wildlife” will

constitute a “take” of a listed wildlife species. 22 Accordingly, “harm” requires proof of

actual injury—the mere potential for injury to listed wildlife is not “harm.” 23 Moreover, the

regulation determines “harm” by reference to an individual member of a listed wildlife

species. 24

The FWS also by regulation defined “harass,” but has—unlike the regulatory

definition of “harm”—excluded consideration of habitat modification in the context of

“harass.” 25 While “harm” requires “actual” injury to wildlife, the definition of “harass”

includes a “negligent act or omission which creates the likelihood of injury to wildlife by

annoying it” to a significant extent. Under the regulatory intent, instead of covering

physical modifications of habitat, the “harass” rule addresses the annoying effects of

persistent noise, light, or motion. In promulgating the definition, the FWS stated:

The concept of environmental damage being considered a

“taking” has been retained but is now found in a new definition

of the word “harm”

. . . . By moving the concept of

environmental degradation from the proposed definition of

“harass” to the definition of “harm,” potential restrictions on

environmental modifications are expressly limited to those

actions causing actual death or injury to a protected species of

fish or wildlife. 26

The only role that habitat modification might play in the “harass” form of take might be the

act of habitat modification (where the presence of, and noise from, heavy equipment and

construction crews are involved). However, courts have been extremely reluctant to find

violations of the “harass” form of take.

There are three notable differences between the standards of Section 9 and

Section 7(a)(2). Unlike the Section 7(a)(2) jeopardy standard, the Section 9 take standard

only considers injuries to an individual member of a listed species. The take standard applies

only to listed wildlife species, while the Section 7(a)(2) standards apply to all listed species,

plants as well as wildlife. Moreover, the Section 9 standard applies to any habitat of listed

wildlife species, while the Section 7(a)(2) critical habitat standard applies only to designated

critical habitat of listed species.

As discussed in Section II, because most methods of compliance—or securing

immunity for noncompliance—with the Section 9 take standard require at least some form

of permit from, or agreement with, the FWS, and because that FWS permit or agreement

itself constitutes a Federal agency action subject to Section 7(a)(2), the standards of

Section 9 and Section 7(a)(2) are often applied together when private land uses or projects

are involved. 27

3. Enforcement

Three general types of enforcement actions are available under Section 11 for

violations of the ESA. First, Section 11(a) authorizes the government to pursue civil penalties

against violators, and Section 11(b) authorizes the government to seek criminal penalties. 28

Second, Section 11(e)(6) authorizes the government to bring suits to enjoin violations. 29 And

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B3Appendix B: Legal White Paper

third, Section 11(g) authorizes private citizens to bring actions to enjoin violations of the ESA

by any person and to force certain compliance with the ESA by the Secretary. 30 The ESA

provides significant penalties only for “knowing” acts, 31 but it is a general intent statute

which requires only that a violator knew that it was taking a particular action and not that

the action was illegal. 32 Anyone who violates the ESA generally may be fined up to $25,000

for a civil violation and up to $100,000 ($200,000 for an organization) and/or imprisoned for

not more than one year for a criminal violation. 33



### B. Migratory Bird Treaty Act

The MBTA is a criminal environmental law which implements four international

treaties that the United States has entered into in order to protect over eight hundred

species of birds that migrate across the United States and its territories. 34 The MBTA states

as follows:

Unless and except as permitted by regulations

. . . it shall be

unlawful at any time, by any means, or in any manner to pursue,

hunt, take, capture, kill, attempt to take, capture, or kill,

possess, offer for sale, sell

. . . offer to purchase, purchase

. . . ship, export, import...transport or cause to be

transported...any migratory bird, any part, nest, or eggs of any

such bird, or any product

. . . composed in whole or in part, of

any such bird or any part, nest, or egg thereof. 35

FWS regulations broadly define “take” to mean “pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or

collect.” 36 An unauthorized “take” of any one of the protected bird species constitutes a

violation of the MBTA. By delegation of authority from the Secretary, the FWS administers

the MBTA.

The MBTA’s applicability to habitat modification and destruction is unclear. Unlike

the ESA, the definition of “take” in the MBTA does not include “harm” (or “harass”). And

the MBTA itself is silent in regard to habitat modification and destruction. In Seattle

Audubon Society v

. Evans

, 37 which involved a claim that the MBTA prohibited the U.S. Forest

Service from logging activities that may provide habitat for a protected bird, the Ninth

Circuit Court of Appeals concluded that the MBTA covers only direct, though unintended,

bird deaths, and that habitat destruction leading indirectly to bird deaths was not a take for

purposes of the MBTA. 38 In contrast to this and similar cases involving timber activities,

there are several cases which have found MBTA liability in connection with the discharge of

extra

‐ hazardous materials or the misapplication of pesticides. 39

Reconciling these cases or determining what may constitute prohibited direct harm

to migratory birds from habitat modification or destruction is not easy. 40 A case which

attempted to provide some order to the evaluation of claims under the MBTA is United

States v

. Moon Lake Elec

. Ass’n

, 41 which is noteworthy for the wind energy industry because

the court found the defendant electrical association liable under the MBTA and the BGEPA

for the killing of protected birds resulting from its failure to install inexpensive protective

equipment on its power poles. In Moon Lake

, the district court disagreed with the

distinction in Seattle Audubon between direct and indirect take, finding that the MBTA’s

B4 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

misdemeanor provision may apply to unintended bird deaths which are a probable

consequence of a defendant’s actions. The court also ruled that the MBTA is not limited

simply to physical conduct associated with hunting or poaching. 42 Although Moon Lake did

not involve habitat modification, the court’s extensive analysis of incidental take under the

MBTA could influence subsequent decisions. Based on the case law and other precedent, 43

it appears that incidental take of a protected bird can subject one to liability under the MBTA

in some contexts, but the precise scope of the MBTA in connection with habitat

modification or destruction and wind energy projects remains to be determined.

Unlike the ESA, the MBTA has no provision which expressly authorizes the issuance

of permits by the FWS authorizing incidental take. The MBTA does authorize the Secretary

to determine when, to what extent, if any, and by what means it is compatible with the

terms of the related treaties “to allow hunting, taking, capture, killing, possession, sale,

purchase, shipment, transportation, carriage, or export of any

. . . [protected] bird, or any

part, nest, or egg thereof” and to adopt regulations governing the same. 44 Pursuant to this

authority the FWS has promulgated regulations which set forth requirements for the

issuance of permits for a wide variety of specific purposes, including falconry, scientific

collecting, conservation education, taxidermy, and waterfowl sale and disposal, as well as

for the hunting of migratory waterfowl. 45 To date, however, the FWS has not issued rules

expressly providing for a permitting program for incidental take (although the FWS, in very

limited circumstances, has granted individual permits). As discussed in Section I(C), the FWS

recently began—and has partially completed—a rulemaking under a similar statute, the

BGEPA, which authorizes incidental takes of bald and golden eagles in certain

circumstances. As discussed in Section II(C)(2), the FWS believes it has the authority to do

the same under the MBTA.

The MBTA is enforced by the FWS through the U.S. Department of Justice (“DOJ”)

and there is no private cause of action enabling others to bring suit to enforce this law. 46

The MBTA imposes only criminal penalties on those who violate the MBTA. The general

misdemeanor provision of the MBTA is likely to be the most applicable provision in a wind

energy context. Under this provision, a violator may be fined up to $15,000 and/or

imprisoned for up to six months for an unauthorized take of a protected bird, regardless of

intent. Under the felony provision of the MBTA, anyone who “shall knowingly (1) take by

any manner

. . . any protected bird with intent to sell, barter or offer to barter such bird, or (2) sell, offer for sale, barter or offer to barter, any protected bird” is subject to a felony

violation and may be fined up to $250,000 ($500,000 for organizations) and/or imprisoned

for up to two years. Neither this provision, nor a misdemeanor provision which imposes

fines and/or penalties for placing or directing the placement of bait for a protected bird, is

expected to be applicable in a wind energy context. 47

To date no actions under the MBTA or the BGEPA have been brought against the

developer of a wind energy project. The FWS has stated that it carries out its mission to

protect migratory birds through investigations and enforcement and by fostering

relationships with individuals, companies, and industries that have programs to minimize

their impacts on migratory birds. 48 Because, the FWS has not promulgated regulations

expressly providing for the issuance of permits for unintentional take, the FWS exercises

enforcement discretion and focuses on those individuals, companies, or agencies that take

migratory birds without regard for their actions and the law, especially when conservation

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B5Appendix B: Legal White Paper

measures have been developed and not implemented. 49 Although two authors recently

questioned whether the exercise of enforcement discretion and lack of enforcement by the

FWS and State agencies effectively results in an exemption from the MBTA for wind energy

developers, 50 it is possible that in the appropriate circumstances the FWS would pursue an

action against a wind energy developer under the MBTA or the BGEPA. 51



### C. Bald and Golden Eagle Protection Act

The BGEPA provides specific protections to bald and golden eagles. Under the

BGEPA, it generally is unlawful for anyone to “take, possess, sell, purchase, barter, offer to

sell, purchase or barter, transport, export or import, at any time or in any manner, any bald

eagle

. . . or any golden eagle, alive or dead, or any part, nest, or egg thereof

. . . .” 52 As

defined in the BGEPA, “take” for this purpose includes “pursue, shoot, shoot at, poison,

wound, kill, capture, trap, collect, molest or disturb.” 53 Recently, the FWS clarified the

meaning of the word “disturb” in the BGEPA in anticipation of the ultimate removal of the

bald eagle from the list of threatened species and thus loss of protection under the ESA. 54

Under the new regulation, “disturb” means

to agitate or bother a bald or golden eagle to a degree that

causes, or is likely to cause, based on the best scientific

information available, (1) injury to an eagle, (2) a decrease in its

productivity, by substantially interfering with normal breeding,

feeding, or sheltering behavior, or (3) nest abandonment, by

substantially interfering with normal breeding, feeding, or

sheltering behavior. 55

Although there are differences in the meaning of these terms, as noted by the FWS, the

term “disturb” in the BGEPA significantly overlaps with the terms “harm” and “harass” in

the ESA. 56 An unauthorized “take” of any one of the protected eagles constitutes a

violation of the BGEPA and MBTA. By delegation of authority from the Secretary, the FWS

administers the BGEPA.

The United States Supreme Court has described BGEPA as both “exhaustive” and

“consistently framed to encompass a full catalog of prohibited acts.” 57 Relying on this

language, one court has held that the BGEPA prohibits electrocutions of eagles. 58 Such a

decision suggests that the “taking” of a bald or golden eagle by a wind turbine could be

prosecutable under the BGEPA.

Unlike the ESA—but like the MBTA—the definition of “take” in the BGEPA does not

include “harm” or any other term that has been interpreted by the FWS to encompass death

or injury arising from habitat modification. 59

The BGEPA provides that the Secretary may authorize certain otherwise prohibited

activities through promulgation of regulations. Specifically, the Secretary is authorized to

prescribe regulations permitting the

taking, possession, and transportation of [bald and golden

eagles]

. . . for the scientific or exhibition purposes of public

museums, scientific societies, and zoological parks, or for the

religious purposes of Indian tribes, or

. . . for the protection of

B6 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

wildlife or agricultural or other interests in any particular locality

[provided such permits are] compatible with the preservation

of the bald eagle or the golden eagle. 60

Unlike the ESA but like the MBTA, the BGEPA does not contain an express incidental take

permit program. In connection with the removal of the bald eagle as a listed species under

the ESA, however, the FWS recently adopted regulations which authorize incidental takes of

eagles under BGEPA that had previously been authorized under the ESA, and has indicated

that it intends to adopt an additional regulation concerning certain incidental takes under

BGEPA in the near future. 61

Like the MBTA, the FWS enforces the BGEPA through the DOJ and there is no private

cause of action enabling others to bring suit to enforce this law. The BGEPA imposes both

civil and criminal penalties on those who violate the BGEPA. In order to be criminally liable, a

violator “shall knowingly, or with wanton disregard for the consequences of his act take,

possess, sell, purchase, barter

. . . transport

. . . at any time or in any manner any [eagle]

. . .

or any part, nest, or egg thereof.” If convicted of a criminal violation under the BGEPA, the

first offense is a misdemeanor for which the violator may be fined up to $100,000 ($200,000

for an organization) and/or imprisoned for up to one year, and in the case of a second or

subsequent conviction for such a violation the offense becomes a felony for which the

violator may be fined up to $250,000 ($500,000 for an organization) and/or imprisoned up to

two years. Civil penalties may be imposed regardless of intent up to a maximum of $5,000

for each violation. 62



### D. National Environmental Policy Act

NEPA and its implementing rules require that before any discretionary major Federal

agency action with significant environmental consequences can be adopted, an

environmental impact statement (“EIS”) that assesses the environmental effects of the

proposed action and alternatives must be prepared. 63 Additionally, NEPA rules require an

environmental assessment before a Federal agency can take many actions that do not rise

to the level of environmental significance requiring an EIS. 64 NEPA is an information

‐

disclosure law that is procedural only, and does not limit the agency’s substantive range of

decision. 65 But NEPA compliance process, by obtaining and disclosing environmental impact

information and allowing public comment, often affects the substance of the agency’s

decision. If a wind power project needs any federal permit (such as a Clean Water Act

Section 404 permit, a permit for use of federal lands, or an ESA incidental take permit), this

can trigger NEPA analysis duties. NEPA can be useful in analyzing the impacts of a proposed

wind power project, and potential alternatives, on species and habitat, and in providing

mitigation recommendations. That is, NEPA can add to the analytic rigor in considering wind

power impacts.



### E. Laws Relating to Native Americans

In contrast to the straightforward application of Federal and State wildlife laws to

private land or public (State or Federal) land, the application of such laws to Indian land is

more complex. Not only are the general rules applicable to jurisdiction in Indian country

different, but Congress has also passed specific legislation for particular reservations or

States that change even those general rules. Federal law applies everywhere in Indian

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B7Appendix B: Legal White Paper

country just as it does across the rest of the United States. State regulatory law generally

does not apply on land held by the United States in trust for Indian tribes or individual

Indians, unless Congress has provided otherwise. The major exceptions are in portions of

Oklahoma and lands of certain tribes in the Northeast, especially in Maine. If a State is

administering Federal law elsewhere, e.g.

, a delegated program under the Clean Water Act,

the Federal agency will generally still administer that law on trust land within the State.

Tribal law applies within the boundaries of the tribe’s reservation (which is not necessarily

the same as the land held in trust for the tribe or individuals). Tribal law also applies to non

‐

Indians doing business with the tribe ( e.g.

, lessees), and to air and water flowing across the

reservation.



### II. METHODS FOR COMPLIANCE OR AVOIDANCE/REDUCTION OF LIABILITY FOR NON

‐

COMPLIANCE

The Committee charged the Legal Subcommittee with identifying all existing

methods for compliance and avoidance or reduction of liability for noncompliance with

these four statutes. For each of the primary wildlife statutes identified in the Committee’s

Charter—the ESA, MBTA, and the BGEPA—we have identified all potentially relevant

statutory, regulatory, judicial, and informal techniques.



### A. Compliance with Section 7(a)(2) of the Endangered Species Act

Except in the extremely rare circumstance where a specially convened committee of

cabinet members excuses compliance, 66 there is no method for avoiding compliance with

Section 7(a)(2), although typically only the relevant Federal agencies are liable for

noncompliance. As noted above, Section 7(a)(2) addresses Federal agency actions, but

private landowners or project proponents frequently encounter Section 7(a)(2)’s

requirements in the context of federal permitting or licensing actions, particularly “wetland

permits” issued under Section 404 of the Clean Water Act.

Regulations establish three different processes for compliance with Section 7(a)(2)

based on the degree of impact the Federal agency action may have on listed species or

designated critical habitat. The FWS and NMFS also have published comprehensive

guidance on the Section 7(a)(2) processes in the form of a detailed handbook. 67 If the

Federal agency finds that the proposed agency action (in the case of federal permits, both

the permit issuance and the private land use or project authorized by the permit) will not

affect a listed species or critical habitat, the action may proceed without involvement of the

FWS in a consultation process. 68 Otherwise, the Federal agency typically prepares a

biological assessment to determine the effects of the proposed agency action. If the

Federal agency finds that the action is “not likely to adversely affect” a listed species or

critical habitat, the action may proceed if the FWS concurs in writing (termed “informal

consultation”). 69 If the Federal agency determines that the action is likely to affect

adversely a listed species or critical habitat (or the FWS does not concur in the agency’s not

‐ likely

‐ to

‐ adversely

‐ affect determination), the Federal agency and the FWS engage in what is

termed “formal consultation” as prescribed in Section 7(b). 70 The formal consultation

process begins with submission of the biological assessment to the FWS and proceeds under

statutory and regulatory deadlines. 71

B8 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

The initial product of formal consultation is a biological opinion issued by the FWS. If

the FWS finds that the proposed action passes the Section 7(a)(2) standards (jeopardy to

the species or adverse modification of critical habitat is not likely), it will so advise the

Federal agency in the biological opinion and then typically suggest “reasonable and prudent

measures” to minimize any impacts of “takes” that might occur. Unlike the voluntary

mechanisms for avoidance of take liability discussed below, the FWS is limited under

Section 7(a)(2) to proposing measures to “minimize” take impacts and may not propose

measures to mitigate for those impacts. 72 If the FWS finds instead that the action would

result in jeopardy or adverse modification, it will suggest to the Federal agency “reasonable

and prudent alternatives” to the proposed agency action. 73 FWS regulations limit the

degree to which the reasonable and prudent measures or alternatives may alter the agency

action. 74

Federal agencies engaged in formal consultation are not required to follow the

biological opinions and reasonable and prudent measures or alternatives; 75 however, the

agencies seldom depart significantly from them. If the Federal agencies incorporate

reasonable and prudent measures or a reasonable and prudent alternative in permits,

licenses, and the like, then the authorized parties and certain other affected parties ( e.g.

, the

owner of land leased to a permitted project) are also covered (including, as discussed below,

granted immunity from certain possible take of listed species). 76

Regulations require reinitiation of the Section 7(a)(2) process for a Federal agency

action in certain circumstances. 77 The principal circumstances calling for reinitiation occur: (1) when the scientific understanding of the action’s impacts on listed species or critical

habitat covered by the original Section 7(a)(2) process changes significantly and results in

harsher impacts than those analyzed in that process; (2) when a new species is listed or new

critical habitat is designated that would be impacted by the agency action; or (3) when

(described in Section II(B)(1) below) the amount of incidental take allowed by an incidental

take statement is exceeded. The reinitiation of the Section 7(a)(2) process may lead to the

FWS proposing new reasonable and prudent measures or alternatives for the proposed

agency action.



### B. Avoidance of Liability for Noncompliance with the Section 9 “Take” Prohibition in

the Endangered Species Act

The ESA has a well

‐ developed array of techniques for avoidance of liability for certain

types of “take” otherwise prohibited under Section 9. Because the Section 9 standard is

violated if an agency action or private land use or project takes even a single member of a

listed wildlife species, it is quite stringent. Because the standard applies to all persons, it is

also quite pervasive. In 1982 Congress enacted amendments to the ESA that established the

basis for these take

‐ liability

‐ avoidance techniques. In so doing, Congress recognized that

few agency actions or private land uses or projects that occur in the vicinity of a listed

wildlife species could be designed to avoid entirely the possibility of take of even a single

member of that species. The FWS has developed several additional techniques by regulation

or practice. These statutory provisions, regulations, and practices apply to takes that are

“incidental” to an otherwise lawful activity—commonly referred to as an “incidental

take.” 78 In the following ten subsections, the subcommittee has described one technique

under Section 7(b)(4) for avoiding take liability in connection with Federal agency actions

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B9Appendix B: Legal White Paper

and multiple techniques under Sections 10(a)(1)(A) and (B) for avoiding take liability for

private land uses or projects.

1. Incidental Take Statements

The single technique for take liability avoidance for Federal agency actions under

Section 7 is limited to those actions that undergo formal consultation ( i.e.

, actions for which

a no effect or “not likely to adversely affect” listed species or critical habitat finding cannot

be made). Section 7(b)(4) provides that, if the biological opinion issued by the FWS

concludes that the proposed Federal agency action complies with the Section 7(a)(2)

jeopardy and critical habitat standards, the FWS will issue an incidental take statement

(“ITS”) to the agency. 79 The ITS will allow a specified amount of incidental take (stated

either in number of species members or in acreage or other measurement of occupied or

suitable habitat) over a specified term, if the Federal agency complies with the reasonable

and prudent measures recommended by the FWS. Should the biological opinion find that

the Federal agency action would violate either the jeopardy standard or the critical habitat

standard, the FWS may still issue an ITS if the agency adopts a reasonable and prudent

alternative offered by the FWS. In the case of federal permits, licenses, or other

authorizations, the ITS will grant immunity for the specified incidental takes not only to the

applicable Federal agencies, but also to the permittees, licensees, and certain other

associated parties ( e.g.

, the owner of land leased to the permitted or licensed project). 80

The principal differences between the ITS for Federal agency actions under

Section 7(b)(4) and the permits and agreements with private landowners or project

proponents under Section 10(a)(1)(A) and (B) of the ESA described in the next sections

below, are that: (1) the latter techniques provide critical “No

‐ Surprises” assurances (also

described below) and the ITS does not; (2) the ITS has statutory and regulatory deadlines

and the latter techniques do not; and (3) the Federal agencies assume more of the costs in

the formal consultation process that produces the ITS (even when private land or projects

are involved) than in the latter techniques.

2. Habitat Conservation Plans and Incidental Take Permits

Section 10(a)(1)(B) of the ESA 81 authorizes the Secretary to issue an Incidental Take

Permit (“ITP”) that will authorize take of a listed wildlife species by a non

‐ federal landowner

engaged in an otherwise lawful activity covered by a Habitat Conservation Plan (“HCP”).

The ITP will allow a specified amount of incidental take (stated either in number of wildlife

species members or in acreage or other measurement of occupied or suitable habitat) over a

specified term, if the permittee continues to comply with the ITP. The incidental taking of a

listed species must be covered by the HCP and identified in the ITP. An HCP must be

included in every application for an ITP.

In approving an HCP and issuing an ITP, the FWS or NMFS, as applicable, must find

that the taking will be incidental, that the applicant will minimize and mitigate to the

maximum extent practicable the impacts of the taking, that the applicant will ensure proper funding for the plan, and that the taking will not appreciably reduce the likelihood of the

survival and recovery of the species in the wild. 82 The FWS and NMFS have published

comprehensive guidance on HCPs and the incidental take permitting process in the form of a

B10 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

detailed handbook, including an addendum which sets forth a five

‐ point policy that provides

clarifying guidance of these agencies for those applying for an incidental take permit under

Section 10 of the ESA. 83 The so

‐ called “No

‐ Surprises” rule allows a permit holder to

negotiate assurances that additional mitigation in the form of land, property interests, or

financial compensation will not be required beyond the level of mitigation provided for

under the HCP, regardless of a change in circumstance during the period covered by the

ITP. 84 However, the trade

‐ off for these regulatory assurances is that the ITP/HCP application

process is lengthy. Because granting an ITP is a final Federal agency action subject to the

Section 7 consultation requirement and NEPA, the FWS must consult with itself and comply

with NEPA. 85 This may add significant time to the period it takes for a landowner to submit

a HCP and obtain an ITP.

3. General Conservation Plans

A general conservation plan (“GCP”) allows the FWS to develop a Section 10(a)(1)(B)

conservation plan suitable for the needs of a local area, complete all NEPA requirements for

a Section 10(a)(1)(B) ITP issuance, and then issue individual permits to landowners who wish

to apply for an ITP and demonstrate compliance with the terms and conditions of the GCP.

The development of a GCP is undertaken by the FWS, rather than an individual applicant, and

is ideally based upon a conservation strategy for the species and addresses the needs of the

local community. Basically, the GCP has everything that is contained in a traditional HCP,

including No

‐ Surprises assurances, except the names of the applicant and future permittees.

The GCP is not a substitute for a regional multiple action HCP which a county or other

jurisdiction may use. Such a large

‐ scale effort would be better developed using the

traditional HCP approach because of the complexity of fully analyzing all activities under a

regional multiple action HCP. 86

4. Safe Harbor Agreements

A safe harbor agreement is a voluntary agreement in which a non

‐ federal landowner

works with the FWS to develop management actions that will contribute to the recovery of

a listed species for an agreed

‐ upon time period. 87 Management actions can include habitat

maintenance and reintroduction of listed species onto the land. In exchange for

implementing these management actions, the FWS provides regulatory assurance to the

landowner by issuing an enhancement of survival permit pursuant to Section 10(a)(1)(A) of

the ESA. 88 This permit provides that property that is part of a safe harbor agreement can be

altered and returned to agreed

‐ upon baseline conditions at the end of the agreement time

period, even if it involves the taking of listed species. 89 This permit also may include No

‐ Surprises assurances similar to those discussed under Section II(B)(2). 90

5. Candidate Conservation Agreements

A candidate conservation agreement is a formal agreement between a non

‐ federal

landowner and the FWS that addresses the conservation needs of candidate or at

‐ risk

species. 91 The goal of candidate conservation agreements is to prevent the listing of these

species. A non

‐ federal landowner that enters into a candidate conservation agreement with

the FWS typically receives certain regulatory assurances. 92 In the case of a candidate

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conservation agreement with assurances, the agreement provides incentives for the non

‐

federal landowner to voluntarily implement conservation measures for candidate or at

‐ risk

species. In exchange for implementing conservation measures that will remove or reduce

the threat to candidate or at

‐ risk species, the FWS provides regulatory assurances (similar to

the No

‐ Surprises assurances) to the landowner by issuing an enhancement of survival permit

pursuant to Section 10(a)(1)(A) of the ESA. 93 This permit provides that no additional

conservation measures will be required of the landowner if the species becomes listed in the

future, even if it involves the taking of listed wildlife species. 94 In addition, this permit

allows permit holders to take wildlife species and modify habitat conditions to those

baseline conditions agreed upon and specified in the agreement. 95

6. Conservation Agreements and Memoranda of Understanding

A few FWS Regions have experimented with a basic contract between the FWS and a

landowner—called a “conservation agreement” or memorandum of understanding

(“MOU”)—which describes land use activities the landowner intends to take and methods

the landowner will use to provide protection for potentially affected listed species. The

FWS’ signing of a conservation agreement or MOU constitutes an agency action which

permits the FWS to issue a biological opinion and ITS which provides incidental take

immunity to the landowner as well as the FWS. 96 This technique to secure incidental take

immunity was found valid by the Ninth Circuit Court of Appeals in a citizen suit challenge to

the Plum Creek conservation agreement. 97 Recently, as a matter of practice, Region 8 of the

FWS has settled on the “net conservation benefit” standard for conservation agreements

identical to the standard applied by rule to safe harbor agreements. 98 This technique

benefits the landowner by requiring significantly less time and fewer procedural steps to

secure the incidental take immunity than does an ITP, but it lacks the No

‐ Surprises

assurances landowners obtain with an ITP.

7. Conservation Banking

Conservation banks are lands that are permanently protected and managed for listed

or at

‐ risk species, with the concept modeled on the concept of wetland mitigation

banking. 99 The FWS approves these banks to sell mitigation credits to developers who need

to offset adverse environmental impacts elsewhere. Thus, conservation banking utilizes

traditional concepts of supply and demand to facilitate the buying and selling of mitigation

credits. By selling mitigation credits, landowners can generate income, preserve their

property, and participate in conservation management plans. Developers who purchase

these habitat or species mitigation credits are able to offset their negative environmental

impacts in one simple transaction.

One instance in which conservation banking can be utilized is to assist in the

obtainment of incidental take permits pursuant to Section 10 of the ESA. In applying for an

incidental take permit, a landowner must submit an HCP that reports actions that will be

taken to minimize and mitigate any adverse impacts on listed species. This mitigation may

involve the purchase of mitigation credits from a conservation bank. 100

B12 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

8. Section 6 State Cooperative Agreements

Section 6 of the ESA provides for substantial federal funding of State conservation

programs benefiting listed species. Section 6(c) of the ESA authorizes the Secretary to enter

into a cooperative agreement with any State or territory which establishes and maintains an

adequate and active program for the conservation of endangered species and threatened

species. 101 States with cooperative agreements approved by the FWS are eligible to receive

funds from the Cooperative Endangered Species Conservation Fund (“CESCF”) established

pursuant to Section 6 of the ESA up to specified limits.

The “adequate and active programs” established by the States to secure funding

under the CESCF are usually skeletal in substance and do not contain provisions for the

protection of any specific listed species. These State programs provide no basis for securing

take liability immunity. However, Section 6(c) does provide for cooperative agreements

with States when “plans are included under which immediate attention will be given to

those resident species of fish and wildlife [and, in a similar provision, for resident species of

plants] which are determined by the Secretary [of the Interior] or the State agency to be

endangered or threatened and which the Secretary and the State agency agree are most

urgently in need of conservation programs.” 102 If such a species

‐ specific cooperative

agreement is developed, the State, and private landowners or project proponents who

enroll in the program, can secure incidental take immunity through an incidental take

statement issued by the FWS. The FWS’ decision to approve the species

‐ specific cooperative

agreement is a Federal agency action that is subject to the Section 7(a)(2) process; if that

process includes formal consultation, the FWS issues an ITS. For example, the State of Idaho

and the Federal government (the FWS and NMFS) are working on a cooperative agreement

specific to listed salmonids in the Snake River basin in which irrigators and private

timberland owners could voluntarily enroll and obtain certificates of inclusion that would

secure for them the immunity of the ITS if they abide by the agreement’s salmon protection

provisions.

9. Section 4(d) Rules

Section 4(d) of the ESA gives the Secretary authority to issue regulations to conserve

threatened species or apply in whole or in part the take prohibition to threatened species.

As previously mentioned, this authority has been delegated to the FWS and NMFS. While

the FWS has adopted a general blanket rule that extends the Section 9(a)(1) take prohibition

to all threatened wildlife species, it has also retained the authority to remove or alter this

general prohibition for certain threatened species on a species

‐ specific basis. 103 Thus, it is

within the jurisdiction of the FWS to provide exemptions for conservation efforts, for

example, by providing species

‐ specific take protection for landowners who pursue certain

habitat conservation measures. However, a 4(d) rule is not easy to obtain, and it is generally

very specific. Moreover, a 4(d) rule only applies to threatened species, as noted above.

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B13Appendix B: Legal White Paper

10. Bird Letters

Landowners are encouraged to engage in open communication with the FWS on how

to avoid a Section 9 violation, and the FWS has a history of providing advice and

recommendations to landowners. 104 Historically, this advice has been rendered in the form

of letters providing guidelines to avoid take of listed wildlife species or simple declarations

of the FWS that it “believes” the landowner’s property would not provide suitable habitat

for particular listed species or that the landowner’s activity would not likely result in a take

of listed wildlife species. Although these so

‐ called “bird letters” do not as a legal matter

preclude future liability, the expectation is that the government will use enforcement

discretion regarding landowners who have cooperated with the FWS in avoiding the taking

of a listed species. 105



### C. Liability Avoidance and Mitigation under the Migratory Bird Treaty Act

1. Bird Letters and Avian Protection Plans

Like the ESA bird letters, MBTA bird letters are generally enforcement discretion

documents that outline the FWS’ willingness not to recommend prosecution for MBTA

takings if a project proponent agrees to follow certain “best management practices.” 106

This enforcement discretion approach can take several forms, including project

‐ specific

letters, general guidance, and the proffer of enforcement/prosecutorial discretion in avian

protection plans. In particular, it has been used for avian protection plans for power lines

prepared by electric utilities and acknowledged by the FWS. 107

2. Incidental Take Authorizations Pursuant to a Possible New Regulation

The language of the MBTA gives the FWS authority and discretion to adopt

regulations to permit reasonable activities that result in the taking of birds. Congress, in

Section 704 of the MBTA, expressly authorizes the promulgation of regulations that permit

the taking of migratory birds in a broad grant of authority to the FWS.

Pursuant to Section 704, the FWS has promulgated a series of regulations that

permits the taking of migratory birds in many circumstances. For example, as discussed

under Section I(B) above, current regulations authorize the issuance of permits and season

limitations for migratory bird hunting, as well as for a number of other activities that would

otherwise be proscribed by the MBTA, such as falconry, raptor propagation, scientific

collecting, take of depredating birds, taxidermy, take of overabundant birds, and waterfowl

sale and disposal. Special purpose permits, for activities outside the scope of the specific

permits, are also available. 108

From this broad Congressional grant of authority in Section 704(a), the FWS may

have the authority to promulgate regulations establishing a new permit that would allow for

the taking of birds at wind energy developments under certain conditions. Although the

FWS does not have express authorization in the MBTA to issue “incidental take permits” as

provided in the ESA, the broad grant of authority in Section 704 seems to allow issuance of

such permits should the FWS choose to exercise this authority in the wind energy and other

contexts. This would require the promulgation of a new regulation by the FWS.

B14 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

3. Special Purpose Permits

As an alternative to a new regulation, under current MBTA regulations at 50 C.F.R.

Part 21, “special purpose permits” may be granted when an applicant makes a sufficient

showing of an activity’s benefit to the migratory bird resource or other compelling

justification.

FWS regulations provide for migratory bird permits for special purpose activities

which are otherwise outside the scope of standard permits available for such activities as

falconry, raptor propagation, scientific collecting, taxidermy, control of depredating birds,

control of overabundant bird populations, etc. 109 According to 50 C.F.R. § 21.27, “permits

may be issued for special purpose activities related to migratory birds, their parts, nests, or

eggs, which are otherwise outside the scope of the standard form permits of this part.” A

special use permit may be issued to an applicant who submits a written application and

“makes a sufficient showing of benefit to the migratory bird resource, important research

reasons, reasons of human concern for individual birds, or other compelling justification.” 110

The FWS in very limited circumstances has issued special purpose permits to

authorize incidental take. This approach potentially could be used to authorize incidental

take caused by wind energy projects. For example, a wind energy project theoretically could

apply to the FWS for a special use permit for an incidental take of birds based on a showing

that the wind facility was providing an overall positive benefit to the migratory bird

resource, perhaps through accompanying mitigation measures, or constitutes a situation of

compelling justification due to the benefits of renewable energy generation. To date,

however, the FWS has not endorsed such an interpretation of the special

‐ purpose activity

regulation.

4. FWS Interagency Memoranda of Understanding

Pursuant to Executive Order 13186, 111 FWS has worked with over twenty Federal

agencies over the last few years in developing Memoranda of Understanding (“MOUs”) to

deal with possible violations of the MBTA by addressing migratory bird conservation in a

proactive manner and to minimize take of migratory birds. There are currently two official

MOUs between the FWS and Federal agencies, and the FWS hopes to enter into

approximately eighteen more in the future. An MOU does not authorize a take, but it can

establish a good faith effort of interagency communication, give agencies more certainty in

their practices, and aid conservation in the long term. To date, the FWS has not entered into

this type of MOU with the private sector.



### D. Liability Avoidance and Mitigation under the Bald and Golden Eagle Protection Act

1. Special and Incidental Take Permits

As discussed under Section I(C), the Secretary may authorize otherwise prohibited

activities by regulation and the Secretary recently proposed a permit program under the

BGEPA. 112

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B15Appendix B: Legal White Paper

Endnotes

1 16 U.S.C. §§ 703–712.

2 Id. §§ 668–668d.

3 Id. §§ 1531–1544.

4 42 U.S.C. § 4371, et. seq.

5 The full Committee’s October 22, 2008, approval prospectively authorized the inclusion nunc

pro tunc of technical revisions. This final ve rsion includes those technical revisions.

6 16 U.S.C. § 1531(b).

7 Id. § 1536(a)(2).

8 50 C.F.R. § 402.02.

9 Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv. , 278 F.3d 1059, 1069–72

(9th Cir. 2004); Sierra Club v. U.S. Fish and Wildlife Serv. , 245 F.3d 434 (5th Cir. 2001).

10 16 U.S.C. § 1532(5).

11 Id. § 1532(3).

12 Critical habitat has been designated for only th irty-eight percent of listed domestic species.

13 Gifford Pinchot , 278 F.3d at 1071–74; see Northern Spotted Owl v. Lujan , 758 F. Supp. 621,

623 (W.D. Wash. 1991); 16 U.S.C. § 1533(b)(2).

14 Memorandum of FWS Director to Regional Directors, December 9, 2004. The memorandum

also advised the FWS to apply the statutor y standard by “discuss[ing] whether, with

implementation of the proposed Fe deral action, critical habitat woul d remain functional (or retain

the current ability for the primary constituent elements [the regulatory wording for the statutory

features ‘essential to the conserva tion’ of the species] to be func tionally established) to serve the

intended conservation role for the species.”

15 16 U.S.C. § 1538.

16 Id. § 1538(a)(1)(B). The Secretary has extended the “take” prohibition to threatened species

of fish and wildlife. Id. § 1533(d); 50 C.F.R. § 17.31(a).

17 16 U.S.C. § 1532(19).

18 50 C.F.R. § 17.3.

19 Id.

20 Id. § 17.3. See 46 Fed. Reg. 54,750 (1981) (“To be subjec t to Section 9, the modification or

degradation must be significant . . . .) (emphasis in original).

21 46 Fed. Reg. 54,750 (1981) (“[H]abitat modificati on or degradation, standing alone, is not a

taking pursuant to Section 9.”).

22 See Babbitt v

. Sweet Home Chapter of Cmtys

. for a Great Oregon , 515 U.S. 687, 691 n.2

(1995); 40 Fed. Reg. 44,413 (1975) (“[P]otential restri ctions on environmental modifications are

B16 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

expressly limited to those actions ca using actual death or injury to a protected species of fish or

wildlife.”). See also Memorandum from Associat e Solicitor, Conservation and Wildlife, to

Director, Fish and Wildlife Serv ice (May 11, 1981) (stating that the Palila court decision

“erroneously supports the view that habitat modification alone may constitute ‘harm’”);

“Endangered and Threatened Wildlife and Plants : Final Redefinition of ‘Harm,’” 46 Fed. Reg.

54,748 (1981) (“[H]abitat modification or degradati on, standing alone, is not a taking pursuant to

Section 9.”).

23 See Sweet Home , 515 U.S. at 708–709 (O’Connor, J., c oncurring) (“[T]he challenged

regulation is limited to signifi cant habitat modification that causes actual, as opposed to

hypothetical or speculative, death or injury to identifiable protected animals.”); Am. Bald Eagle

v

. Bhatti , 9 F.3d 163, 166 (1st Cir. 1993) (stating th at, while bald eagles can be harmed by

ingesting lead, there is no eviden ce of actual harm to bald eagles as a result of deer hunting and

eagles feeding on deer carrion containing lead slugs). But see Forest Conservation Council v

. Rosboro Lumber Co ., 50 F.3d 781, 783 (9th Cir. 1995) (“[A] showing of a future injury to an

endangered or threatened species is actionable under the ESA.”); Marbled Murrelet v

. Babbitt

, 83 F.3d 1060, 1064 (9th Cir. 1996) (holding that an immi nent threat of future harm is sufficient

for an injunction under the ESA).

24 46 Fed. Reg. 54,749 (“[S]ection 9’s threshol d does focus on individual members of a

protected species.”).

25 See 50 C.F.R. § 17.3.

26 40 Fed. Reg. 44,413 (1975).

27 The third, and most stringent behavioral st andard—species’ “conserva tion”—is less relevant

to wind energy projects. It is contained in two ESA sections —Sections 7(a)(1) and 4(f).

Section 3(2) of the ESA defines “conservation” to mean actions th at permit eventual recovery of

the listed species to the point that it no longer requires ESA protection. See 16 U.S.C. § 1532(2).

Section 7(a)(1) relates solely to federal agencies , and speaks of programs, not agency actions as

does Section 7(a)(2). Section 7(a)(1) requires that federal “agencies shall, in consultation with”

the Secretary or the Secretary of Commerce, as applicable, “utilize their authorities in

furtherance of the purposes of this Act by carrying out programs for the conservation of” listed

species. 16 U.S.C. § 1536(a)(1). The House Committee with ESA jurisdiction and the FWS and

NMFS rejected the notion that this provision requires that all federal agency actions be structured

to advance conservation or recovery of lis ted species. 51 Fed. Reg. 19,954–55 (1986). The

FWS and NMFS made their conservation r ecommendations non-binding in 50 C.F.R.

§ 402.14(j). Because the Section 7(a)(1) c onsultation requirement applies at the program -wide

level, the Section 7(a)(2) agency action consultation requirement still leaves a federal agency

with the discretion to approve a specific activity or project (such as a pe rmit or authorization for

a wind energy project) that doe s not foster conservation (and thereby, disregard conservation

recommendations that are often included in th e biological opinion prepared by the FWS or

NMFS during the consultation process). Even as to agency programs (including any “program”

that might be established in a federal agency for wind energy development), due to those

Congressional and regulatory in terpretations, federal agenci es often have ignored the

Section 7(a)(1) “consultation” command for po ssible conservation prog rams. However, the

finding of the Fifth Circuit Court of Appeals that such consultati ons with the FWS or NMFS are

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B17Appendix B: Legal White Paper

legally enforceable in Sierra Club v. Glickman , 156 F.3d 606 (5th Cir. 1998), may prompt more

Section 7(a)(1) consultations, as evidenced by the emphasis gi ven to this provision in the

Memorandum of Agreement between FWS/NMFS a nd the Environmental Protection Agency on

“Enhanced Coordination Under the Clean Water Act and Endangered Species Act.”

66 Fed. Reg. 11,202 (2001).

In recognition that “conservat ion” is the ultimate objective of the ESA and to enlist the

most knowledgeable in the cause, Section 4(f) directs the Secretary and the Secretary of

Commerce, as applicable, to prepare “recovery pl ans” for most listed species and suggests the

appointment of “recovery teams” to draft those documents. 16 U.S.C. § 1533(f). A recovery

plan is not a legally binding document under Fund for Animals v. Rice , 85 F.3d 535, 547

(11th Cir. 1996). However, some courts have conducted judicial review of recovery plans and

required compliance with Section 4(f). See, e.g.

, Grand Canyon Trust v. Norton , 2006 WL

167560 (D. Az. 2006).

28 16 U.S.C. §§ 1540(a) and (b).

29 Id. § 1540(e)(6).

30 Id. § 1540(g). In any suit filed by a private citizen pursuant to Section 11(g), a court may

award costs of litigation, including reasonable at torney and expert witness fees, to any party

whenever the court deems such an award appropriate. Id. § 1540(g)(4).

31 Id. §§ 1540(a) and (b) (“Any person who knowingly violates . . . .”).

32 See United States v

. McKittrick , 142 F.3d 1170, 1177 (9th Cir. 1998) (ESA is a general intent

statute, meaning the defendant did not have to know he was killing a wolf, only that he was

shooting an animal that tu rned out to be a wolf); United States v

. Nguyen , 916 F.2d 1016

(5th Cir. 1990) (defendant did not need to know that possessing the turtle was illegal to violate

the ESA, only that he possessed the turtle); United States v

. St

. Onge , 676 F. Supp. 1044

(D. Mont. 1988) (government did no t have to show the defendant knew the animal he was killing

was a grizzly bear).

33 16 U.S.C. § 1540(a) and (b). The statutory fi nes and periods of imprisonment authorized for

violations of the ESA, MBTA, and BGEPA noted herein reflect the infl ation-based adjustments

required by Federal Fines and Sentencing Laws, 18 U.S.C. §§ 3551, et. seq. The Alternative

Fines Act, 18 U.S.C. § 3571, in general sets fo rth maximum monetary fines a defendant who has

been found guilty of any federal crime (not just a wildlife crime) may be sentenced to pay. The

Alternative Fine Based on Gain or Loss, 18 U.S. C. § 3571(d), requires that if any person derives

pecuniary gain from the offense, or if the offens e results in pecuniary loss to a person other than

the defendant, the defendant may be fined not more than the greater of tw ice the gross gain or

twice the gross loss, unless imposition of a fine under this su bsection would unduly complicate

or prolong the sentencing process.

34 For a list of the migratory birds protected by the MBTA, see 50 C.F.R. § 10.13.

35 16 U.S.C. § 703(a).

36 50 C.F.R. § 10.12.

37 952 F. 2d 297 (9th Cir. 1991).

B18 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

38 Id. at 302.

39 E

. g

., United States v

. FMC Corp

. , 572 F.2d 902 (2d Cir. 1978); United States v. Corbin Farm

Serv

. , 444 F. Supp. 510 (E. D. Cal. 1978) , aff’d , 578 F.2d (9th Cir. 1978).

40 See Blaydes and Firestone, Wind Power, Wildlife and the Migratory Bird Treaty Act : A Way

Forward , accepted for publication, 38(4) E NVTL

. L. ___ (2008) (“The lin e between habitat

modification and direct harm can be qu ite fine, if not nonexistent.”); Baldwin, The Endangered

Species Act, Migratory Bird Treaty Act, and Department of Defense Readiness Activities :

Background and Current Law , CRS Report for Congress (2004) at 7 (“There evidently is . . .

confusion as to what constitutes direct harm [from habitat modification and destruction].”);

Lemly and Ohlendorf, Regulatory Implications of Usi ng Constructed Wetlands to Treat

Selenium-Laden Wastewater , 52 E COTOXICOLOGY E NVT ’ L S AFETY 46–56 (2002) (noting the

unforeseen impact of selenium-laden wastewater in artificial wetlands on migratory birds).

41 45 F. Supp. 2d 1070 (D. Co. 1999).

42 Id. at 1185. According to the court, the prox imate causation requirement distinguished the

bird deaths involved in the case from those which may result from “driving an automobile,

piloting an airplane, maintaining an office buildi ng, or living in a residential dwelling with a

picture window . . . .” Id. at 1085.

43 The U. S. Congress first explicitly acknowledg ed that the MBTA covers “incidental take” in

some circumstances when, in 2002, it enacte d P.L. 107-314, which provides that during a

specified period of time the take proscription in the MBTA does not apply to the incidental take

of a protected bird during authorized military read iness activities. This suspension of the MBTA

was enacted in response to a case finding that ta ke of protected birds during military readiness

activities was unlawful under the MBTA ( Center for Biological Diversity v

. Pirie

, 191 F. Supp. 2d 161 (D. D.C. 2002) and remained in effect until a new regulation to exempt

incidental take of migratory bi rds during military readiness activ ities was finally adopted by the

FWS. The final regulation was adopted by the FWS in 2007 and is located at 50 C.F.R. § 21.15.

The regulation generally permits incidental ta ke in connection with military preparedness

activities, and requires for those ongoing or proposed activ ities that the armed forces determines

may result in a significant adverse effect on a population of a migratory bird species that the

armed forces must confer and cooperate with the FWS to develop and implement appropriate

conservation measures to minimize or m itigate such significant adverse effects.

In addition to the above-noted Congressional action, while not dispos itive for purposes of

the MBTA, an executive order signed by Presiden t Clinton which imposed additional obligations

on federal agencies to protect migratory birds de fined the term “take” to include “unintentional

take” (in a manner which did not mean “unintended” but the equivalent of incidental take as

defined above). Exec. Order No. 13186, Responsib ilities of Federal Agencies to Protect

Migratory Birds, 66 Fed. Reg. 3853 (2001).

44 16 U.S.C. § 704.

45 See 50 C.F.R. Parts 13, 20, and 21.

46 Although the MBTA does not au thorize a private cause of ac tion, two decisions out of the

District of Columbia have found that citizens can sue a federal agency for violations of the

MBTA by asserting a claim against a federal ag ency under the Administrative Procedure Act,

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B19Appendix B: Legal White Paper

which allows courts to review and set aside agency actions which are “not in accordance” with

law. See Humane Society v

. Glickman , 217 F.3d 882 (D.C. Cir. 2002); Fund for Animals v

. Norton , 281 F. Supp. 2d 209 (D.D.C. 2003).

47 16 U.S.C. § 707(a), (b), and (c).

48 See Letter from Jamie Rappaport Clark, Director , U.S. Fish and Wildlife FWS, to Regional

Directors (Sept. 14, 2000), available at http://www.fws.gov/migratorybirds/

issues/towers/comtow.html; Suggested Practi ces for Avian Protection on Power Lines—The

State of the Art in 2006, at 21, av ailable on the website for the Avian Power Line Interaction

Committee at http://www.aplic.org. See also “Authorizations Under the Bald and Golden Eagle

Protection Act for Take of Ea gles,” 73 Fed. Reg. 29,075 (2008) (not ing that incidental take

permits issued under Sections 7 and 10 of the ESA for the bald eagle while it was listed under

the ESA were issued with regulatory assuranc es that the FWS would exercise enforcement

discretion with respect to violati ons of the MBTA and the BGEPA).

49 Id

.

50 Blaydes and Firestone, supra note 40.

51 There is an extensive histor y of discussions between the DOI (and its subdivisions, including

the FWS) and the DOJ about the interpretation of the MBTA, and the application of its criminal

penalty provisions in circumstances other than unpermitted “take” by hunting. In 1985,

Secretary Hodel and Solicitor Richardson sought th e DOJ’s opinion as to whether DOI officials

and employees would be subjec t to prosecution for MBTA offe nses in connection with the

operation of Kesterson Reservoir, an agricultural water body at wh ich toxic levels of selenium

were bioaccumulating in migrator y waterfowl, causing thousands of bird deaths, mutations, and

reproductive dysfunction. The DOJ memorandum re viewed the entire body of judicial and

administrative interpretations of the statute to that juncture, includi ng the limited case law

imposing liability on the basis of avian mortalities resulting from hazardous or inherently

dangerous activities such as chemical or pe sticide manufacture and disposal. The DOJ

concluded in that situation that MBTA charges were not appropriate. The rationale of the DOJ

memorandum clearly would not have approved MBTA prosecution of entities or persons

involved solely in the construction, or use of houses, office buildings or other structures in the air

column, into which birds might speculatively or even predictably collide. Since the DOJ’s

comprehensive analysis of MBTA prosecution au thority in 1985, there has been no significant

change in its broad institutional position of non-li ability except in matters of hazardous chemical

or petroleum activities. In sum, the DOJ’s longstanding charging policy does not criminalize

actors solely on the basis of their construction or use of structures with which avian collisions

may occur.

52 16 U.S.C. § 668a.

53 Id . § 668c.

54 See “Protection of Bald Eagles; Definiti on of ‘Disturb,’” 72 Fed. Reg. 31,132 (2007).

55 See 50 C.F.R. § 22.3.

56 See “Authorizations under the Bald and Golden Eagle Protection Act for Take of Eagles,”

72 Fed. Reg. 31,132, 31,141 (2007). At the same time as it adopted the final definition of

B20 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

“disturb,” the FWS proposed to amend the regulato ry definition of “take” as it applies to eagles

to add the word “destroy” and thereby make it consistent with the statutory prohibition on

unpermitted eagle nest destruction. Id

.

57 Andrus v. Allard, 444 U.S. 51, 56–59 (1979).

58 See Moon Lake, 45 F. Supp. 2d at 1086–88.

59 The only court to have addressed the relations hip between the prohibitions of the ESA and the

BGEPA suggested that the latter may cover habitat modification through the term “disturb” in

the definition of “take” in the BGEPA. The court stated as follows in this regard:

Both the ESA and the Eagle Prot ection Act prohibit the take of

bald eagles, and the respective defi nitions of ‘take’ do not suggest

that the ESA provides more protect ion for bald eagles than the

Eagle Protection Act . . . . The pl ain meaning of the term ‘disturb’

is at least as broad as the term ‘harm,’ and both terms are broad

enough to include adverse habitat modification.

Contoski v. Scarlett , Civ No. 05–2528 (JRT/RLE), slip op. at 5–6 (D. Minn. Aug 10, 2006). In

response to a public comment that the FWS’ propos ed definition of the term “disturb” in the

BGEPA inappropriately incorporat es habitat protection which is not authorized by the BGEPA,

the FWS stated that it “agrees that the Eagle Act is not a habitat management law,” but noted that

“there is a difference between pr otecting habitat per se, and protec ting eagles in their habitat. The

proposed and final definitions protect eagles from cer tain effects to the eagl es themselves that are

likely to occur as the result of various activ ities, including some habitat manipulation.”

72 Fed. Reg. at 31,134.

60 16 U.S.C. § 668a. Pursuant to this author ity the Secretary has promulgated BGEPA permit

regulations for scientific and e xhibition purposes, Indian religious purposes, to take depredating

eagles, to possess golden eagles for falconry, and for the take of golden eagle nests that interfere

with resource development or re covery operations. 50 C.F.R. §§ 22.21–22.25.

61 Under new paragraph (a) to 50 C.F.R. § 22.11, the FWS provides take authorization under the

BGEPA to existing holders of in cidental take permits under S ection 10 of the ESA where the

bald eagle is covered in a habita t conservation plan or the golden eagle is covered as a non-listed

species, as long as the permit holder is in full compliance with the terms and conditions of the

ESA permit. Under a new regulation located at 50 C.F.R. § 22.28, the FWS established a new

permit category to provide expedited permits to entities authorized to take bald eagles through

incidental take statements issued pursuant to Section 7 of the ESA. It is anticipated that

Section 22.28 will be superseded later this year upon adoption of a previously-proposed

regulation which would establish a new permit for in cidental take of eagles. Under this proposed

regulation, to be located at 50 C.F.R. § 22.26, incide ntal take of bald or golden eagles would be

authorized only where it is determined to be co mpatible with the preser vation of bald and golden

eagles and cannot practicably be avoided. See “Authorizations Under the Bald and Golden Eagle

Protection Act for Take of Ea gles,” 73 Fed. Reg. 29,075 (2008). Fo r a description of proposed

Section 22.26, see 72 Fed. Reg. 31,141. At the same time that it announced this proposal, the

FWS proposed another new regulation, to be located at 50 C.F.R. § 22.27, which would

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B21Appendix B: Legal White Paper

authorize the removal of bald and golden eagle ne sts where necessary to pr otect human safety or

the welfare of eagles. Id.

62 16 U.S.C. §§ 668a and 668b.

63 40 U.S.C. § 4332(2)(C); 40 C.F.R. pts. 1500–1508.

64 40 C.F.R. §§ 1501.3 and 1508.9.

65 Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349–53 (1989).

66 See 16 U.S.C. § 1536(a)(2) and (e)–(h).

67 Endangered Species Consultation Handbook—Pro cedures for Conducting Consultation under

Section 7 of the Endangered Species Act (FWS 1998), available at http://www.fws.gov/

Endangered/consultations/s7hndbk/s7hndbk.htm.

68 50 C.F.R.§ 402.14(a) and (b). Any such finding by a Federal agency must be with the consent

of a specified representative of the FWS or NMFS, as applicable. Id . § 402.14(b).

69 Id. § 402.13.

70 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14.

71 See 16 U.S.C. § 1536(b)(1); 50 C.F.R. § 402.14(e).

72 See 16 U.S.C. § 1536(b)(4); supra note 67 at 4-50 (“ Section 7 requires minimization of the

level of take. It is no t appropriate to require mitigation for the impacts of incidental take .”

(emphasis in original)).

73 See 50 C.F.R. §§ 402.02 and 402.15(i)(2).

74 See 16 U.S.C. § 1536(b)(5)(A).

75 Bennett v. Spear , 520 U.S. 154, 169–70, 177–78 (1997).

76 See 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14( i ); Ramsey v. Kantor , 96 F.3d 434, 440–42

(9th Cir. 1996).

77 50 C.F.R. § 402.16.

78 16 U.S.C. §§ 1536(b)(4) and 1539(a)(2) (allowing a permit to be issued if the “taking is

incidental to, and not the purpose of, the carry ing out of an otherwis e lawful activity”).

79 16 U.S.C. § 1536(b)(4); see 50 C.F.R. § 402.14( i ) (incidental take statement issued only after

formal ESA consultation).

80 50 C.F.R. § 402.14(i); Ramsey , 96 F.3d at 440–42.

81 16 U.S.C. § 1539(a)(1)(B).

82 Id. § 1539(a)(2)(B).

83 The Handbook for Habitat Conservation Planning and Incidental Take Permitting Process is

available at http://www.fws.gov/Endangered/hcp/hcpbook.html

. In the addendum to the

Handbook , the FWS and NMFS provide guidance on the following five concepts: permit

duration, public participation, adaptive management, m onitoring and biological goals and

B22 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAppendix B: Legal White Paper

objectives. See generally “Notice of Availability of a Final Addendum to the Handbook for

Habitat Conservation Planning and Incident al Take Permitting Process,” 65 Fed. Reg. 35,242

(2000).

84 50 C.F.R. §§ 17.22(b)(5), 17.32(b)(5), and 222.307(g). See generally , “Habitat Conservation

Plan Assurances (‘No Surprises’) Rule,” 63 Fed. Reg. 8859 (1998).

85 16 U.S.C. § 1536.

86 Hall, Dale, FWS Memo, “Final Genera l Conservation Plan Policy,” October 5, 2007.

87 See generally “Announcement of Final Safe Har bor Policy,” 64 Fed. Reg. 32,717 (1999);

FWS—Safe Harbor Agreements for Priv ate Landowners (2004 ), available at

http://www.fws.gov/endangere d/factsheets/harborqua.pdf

.

88 16 U.S.C. § 1539(a)(1)(A).

89 64 Fed. Reg. at 32,717–26 (1999).

90 43 C.F.R. §§ 17.22(c)(5) and 17.32(c)(5).

91 See generally “Announcement of Final Policy for Candi date Conservation Agreements with

Assurances,” 64 Fed. Reg. 32,726 (1999); FWS—Candi date Conservation Agreements with

Assurances for Non-federal La ndowners (2004), available at

http://www.fws.gov/endangered/f actsheets/CCAAsNon-Federal.pdf . Candidate conservation

agreements are authorized in 50 C.F.R. §§ 17.22(d) and 17.32(d).

92 For privacy and other reasons a non-federal landow ner may not request regulatory assurances.

93 16 U.S.C. § 1539(a)(1)(A).

94 64 Fed. Reg. at 32,726–36.

95 Id

.

96 Examples of such conservation agreemen ts and MOUs include a 2007 agreement involving

the FWS, State of California, Sonoma County, se veral towns, and stakeholders concerning the

California tiger salamander and three listed plants in the Sant a Rosa Plain, California; a 1997

agreement among the FWS, Plum Creek Timber Company and the State of Montana concerning

the grizzly bear on private land in Swan Va lley, Montana; a 1995 MOU between the FWS and

White Mountain Apache Tribe conc erning endangered species on tr ibal land in Arizona; and a

1993 MOU between the FWS and Georgia-Paci fic Corp. concerning the red-cockaded

woodpecker on 4.2 million acres of Southern timberland.

97 Friends of the Wild Swan v. Babbitt , 168 F.3d 498 (table) (9th Cir. 1999), 1999 WL 38606

(unpublished opinion).

98 50 C.F.R. §§ 17.22(c)(2)(ii) and 17.32(c)(2)(ii). “C onservation agreements” were specifically

identified in an August 2, 2004, memorandum from the FWS’s Manager of California-Nevada

Operations Office (now Region 8) to all sta ff, entitled “Updating Guidance for Designating

Critical Habitat on Private Lands in California and Nevada.”

99 See generally, “Guidance for the Establishment, Use and Operation of Conservation Banks,”

60 Fed. Reg. 58605 (1995); FWS—Conser vation Banking: Incentives fo r Stewardship, available

at http://www.fws.gov/endangered/factsheets/ banking_7_05.pdf.

Wind Turbine Guidelines Advisory Committee Recommendations: Appendices B23Appendix B: Legal White Paper

100 Id

.

101 See 16 U.S.C. § 1535(c)(1) (for fish and wildlife ) and 1535(c)(2) (for plants). Requirements

for state programs pertaining to plants differ from those for fish and wildlife only in that plant

programs need not include land acquisition.

102 16 U.S.C. § 1535(c).

103 50 C.F.R. § 17.31.

104 See, e

. g

., Marbled Murrelet v

. Babbitt , 83 F.3d 1060, 1068 (9th Cir. 1996) (stating that

letters between the FWS and the lumber compa ny were “desirable communication” on how to

comply with the ESA).

105 As noted above, the FWS similarly has us ed enforcement discretion under the MBTA.

See, supra, notes 48–49 and accompanying text.

106 See id.

107 See MOU between the FWS and Edison Electric In stitute regarding the use and development

of avian protection plans.

108 50 C.F.R. §§ 13 (general permit procedur es), 20.1–20.155 (hunting permits, season limits),

21.21–21.60 (specific permits), and 21.27 (special purpose permits).

109 50 C.F.R. Part 21.

110 Id.

111 Exec. Order No. 13186, “Responsibili ties of Federal Agencies to Protect Migratory Birds,”

66 Fed. Reg. 3853 (2001).

112 See, supra, note 61, and accompanying text.

B24 Wind Turbine Guidelines Advisory Committee Recommendations: AppendicesAPPENDIX C: Landscape-Level Mapping Tools for Assessing Wildlife and Habitat ImpactsWind Turbine Guidelines Advisory Committee Landscape/Habitat SubcommitteeData available from different organizations, accessible for preliminary project planning. For general planning purposes only. Final siting should be based on field investigation and consultation with appropriate agencies and organizations.The absence of data does not necessarily mean the absence of a sensitive species or sensitive habitat. These maps do not necessarily reflect the complete distribution or occurrence for sensitive species.This is a summary of data available as of 7 August 2009. Users are advised to seek updated information to assess potential sites for wind energy development.Map/Database TitleOrganization ManagingFile(s)How to Access FileRegions/States CoveredFauna/FloraHabitat types coveredInformation not includedSource InfoDate of SourceDate of CompilationBat DistributionsBat ConservationInternationalhttp://www.batcon.org/index.php/all­about-bats/species-profiles.htmlUS and Canada only.BatsAllOther flora and fauna besides bats.Specific migration routes may not beincluded. Hibernacula are notdelineated.U.S. State Natural Heritage Programs,Canadian Conservation Data Centers,published literature, unpublished reports,museum collections, and personalcommunications from university, federal,state, and local biologists.reflect available data from1900 to current.2003Ecoregional Portfolio SitesThe Nature Conservancyhttp://ecad.tnc.org/Lower 48 states expectedby end of 2008NA (applicable to birdsand most otherorgansims)Large & intact landscapesFreshwater and marine ecoregionalportfolios; biodiversity conservationtargets (species and ecosystems)and goals for their conservation.TNC ecoregional assessments conducted byTNC ecologist and outside agency experts.Varies from mid to late 1990sand 2008.ongoingEnvironmental ConservationOnline System (ECOS)Fish and Wildlife Servicehttp://ecos.fws.gov/imf/?site=ecosUSAETSC designated criticalhabitat areasETSC designated criticalhabitat areascommon and undesignated speciesnot included.USFWSvariesvaries, usually recent andongoingGreat Plains UntilledLandscapesThe Nature Conservancyhttp://ecad.tnc.org/Great Plains BioregionNA (applicable to birdsand most otherorgansims)Large & intact landscapesThis coverage represents a snapshotin time, circa 1990.Derived from early 1990s Landsat TMImagery, visually interpreted by one TNC staffperson and digitized into GIS data layerSource images from the early1990s.Data created in 2001.Habitat and PopulationEvaluation Team (HAPET)modelingFish and Wildlife Servicehttp://www.fws.gov/midwest/hapet/DistgbcaMap.htm;http://www.nwrc.usgs.gov/wdb/pub/hsi/hsiintro.htm#top;Prairie Pothole Region(midwestern states).Grassland birds, specificmodels of some sparrows,prairie chickens, ducknesting habitat , etc.grasslands, duck nestinghabitat, wetlands.Varies.Varies.Varies.Varies.Important Bird AreasNational Audubon SocietyInternet search for state name and"Audubon Important Bird Area" Otherstates contact jcecil at audubon.orgMost US states.Focuses on breeding andwintering birds and bird inmigration.AllNo info on taxa other than birds.Focuses on habitat and not on use ofair column.Biological surveys of birds; includes data fromBreeding Bird Survey and Audubon'sChristmas Bird CountBBS & CBC annually. Statesdo not use data that is morethan ten years old.Ongoing; IBA program began inmid-1990s; sites re-evaluatedevery ten years.Federal, State, and Localland managed for wildlifeconservationFederal, State, and LocalagenciesContact federal, state and localagenciesAll. NWR, State managedwildlife areas, StateParks, etc.VariesVariesVaries.Fed. state and local agencies.VariesVaries.National Wetlands InventoryFish and Wildlife Servicehttp://www.fws.gov/wetlands/USAN/AWetlandsDoes not cover wildife.USFWSNatural Resources Inventory(NRI)Natural ResourcesConservation ServiceContact state DNRAll states and territoriesETSC, significantrookeries and somebiological "hotspots".common species may not beincluded.VariesVariesVaries, usually recent andongoingNatureServeNatural HeritageProgramsContact host agency, varies by State.Web search for state name and"natural heritage information".State by state for USA (50States)All tracked (ES, rookeries ­hibernacula variable)Endangered plants,natural communitiesCommon and untracked spp.,migratory stop-over spp.State DNRs, University biological survey,varies and ongoingVariesVaries, usually recent andongoingOklahoma untilledlandscapesOklahoma Wind PowerInitiativehttp://www.ocgi.okstate.edu/owpi/OklahomaWhooping crane, greaterprairie chicken, lesserprairie chicken.Untilled landscapes, TNCconservation areas.2005Wetlands and Bird Migration;Lesser Prairie ChickenPlaya Lake Joint Venturehttp://www.pljv.org/cms/wind-energySo. Plains & SW USBirds, Prairie Chickenplaya lakes, wetlands,grasslandsWind Turbine Guidelines Advisory Committee Recommendations:AppendicesC1ww.wildlifedepartment.com/lepcdevelopmentplanning.htm,Prairie Pothole habitatsPrairie Pothole JointVenturehttp://www.ppjv.org/implement2.htm;http://www.ppjv.org/thunderstorm_maps.htmPortions ofND,SD,MN,MT,IAGrassland birds, breedingducks, marbled godwit,Northern HarrierHabitats for breedingducks and grasslandbirds.Non-bird taxa and woodland birds arenot covered.HAPET data, varies by map.1990's; 2003-20052007Priority Habitats and SpeciesWashington Departmentof Fish and Wildlifehttp://www.wdfw.wa.gov/hab/phslist.htmWashingtonBirds, fish, and wildlife.AllPHS data do not identify what is notpresent.Data are most often supplied by WDFWprofessional biologists, but may include localgovernment biologists or tribal biologists.Varies. Regional datareviewed every 2-3 years andupdated as necessary.Varies. Regional data reviewedevery 2-3 years and updated asnecessary.State Wildlife Action PlansAssociation of Fish andWildlife Agencieshttp://www.wildlifeactionplans.org/All states and TerritoriesAll wildlifeAllNot specific to wind farmsVariousVariesVariesSensitive speciesThe Nature Conservancyhttp://ecad.tnc.org/Species ranges in NorthAmericaSensitive speciesAllCommon species may not beincluded.NatureServe, USFWSVaries by speciesKansas Department of Wildlife and Parks,Natural Resource PlannerKansas Biological Surveyhttp://www.kars.ku.edu/maps/windresourceplanner/KansasSensitive species, PrairieChicken.Untilled landscapes, playalakes, grasslands.The Kansas Biological Survey, the KansasNatural Heritage Program and The Nature2009Conservancyhttp://www.nrdc.org/land/sitingrenewabNational Parks, refuges, roadless areas,Western resources mapsGoogle Earth, NRDC,Audubonles/default.asp; Google Earth"protected Areas and Energy13 western statesSage Grouse, AudubonImportant Bird AreasAlldesignated critical habitat, wilderness,roadless areas, historic sites, natioanlVaries2009Development"monuments, etc.Wind Energy PotentialUS Department of Energyhttp://www.windpoweringamerica.gov/wind_maps.aspMost Lower 48 states,except LA, KY, TN, MI,AL, FL, GA, and SC.N/AN/AAll wind energy potential data requirevalidation using local meteorologicalfield measurements at potential andactual wind turbine sites.NREL (US Dept of Energy); MN Dept ofCommerce; AWS Truewind, LLC; IA EnergyCenter; West Texas A&M UniversityVaries, from 1990s topresentVaries, from 1990s to presentCurrent and Proposed WindFarmsIndustrial Info; statepermitting agenciesexisting wind areashttp://industrialinfo.com/ ; plannedwind developments contact localpermitting agenciesvariesNAAllDoes not cover wildife.VariesNANACurrent and ProposedTransmission LinesPlatt/DOE/Localtransmission councilsInformation may be available fromDOE, local transmission councils, oravailable for purchase from Platt(http://www.platts.com/Maps%20&%20Spatial%20Software/). .Tx (Platt), other states?NAAllDoes not cover wildife.VariesVariesVaries

Forthcoming:Wind-wildlife transmissionmapsWestern GovernorsAssociationhttp://www.westgov.org/Prairie grouse habitatsNorth American GrousePartnershiphttp://www.grousepartners.org/; http://wAll prairie grouse range.(Oklahoma available now)GrouseGrouse habitatSeptember 2009 includeWind & wildlife resourcemapsAm. Wind & WildlifeInstitutehttp://www.awwi.org/home.phpWY, MT, SD, ND, NE,rest of US sometime in2010.C2Wind Turbine Advisory Committee Recommendations:AppendicesAPPENDIX C: Landscape-Level Mapping Tools for Assessing Wildlife and Habitat ImpactsWind Turbine Guidelines Advisory Committee Landscape/Habitat SubcommitteeThis is a summary of data available as of 7 August 2009. Users are advised to seek updated information to assess potential sites for wind energy development.Map/Database TitleOrganization ManagingFile(s)Pros/ConsBat DistributionsBat ConservationInternationalNot Available as GIS layer. Data is not sufficient to infer absence. All available data is not included in these maps. It is intended for general distributioninformation only.Ecoregional Portfolio SitesThe Nature ConservancyCovers all species, regardless of wind power related impacts.EnvironmentalConservation OnlineSystem (ECOS)Fish and Wildlife ServiceGreat Plains UntilledLandscapesThe Nature ConservancyMay be out of date. May include small areas with varying degrees of impact including grazing, oil extraction, and shrub/tree removal.Habitat and PopulationEvaluation Team (HAPET)modelingFish and Wildlife ServiceUse maps with some caution. GIS publicly available but no system set up for distirbution as yet. Access maps on internet first.Important Bird AreasNational Audubon SocietyAvailable as GIS layer. Highest priority bird habitats. Telescope between site to state and national levels. Information varies. Some states have pointlocations while others have complete spatial boundaries.Federal, State, and Localland managed for wildlifeconservationFederal, State, and LocalagenciesNational WetlandsInventoryFish and Wildlife ServiceAvailable as GIS layer.Natural ResourcesInventory (NRI)Natural ResourcesConservation ServiceNatureServeNatural HeritageProgramsMay be available as GIS layer. Covers many important features/If looking at individual sites, may miss migration stop-over spp., may be missing non-reported information (e.g. common species).Oklahoma untilledlandscapesOklahoma Wind PowerInitiativecreated explicitly for wind power and wildlife concerns. Large scale.Wetlands and BirdMigration; Lesser PrairieChickenPlaya Lake Joint VentureAvailable as GIS layer.Prairie Pothole habitatsPrairie Pothole JointVenturePriority Habitats andSpeciesWashington Departmentof Fish and WildlifeAvailable as GIS layer.State Wildlife Action PlansAssociation of Fish andWildlife AgenciesNot specific to wind farms, but provides a good overview of state priority areas.Sensitive speciesThe Nature ConservancySome species locations may be randomly generalized to obscure exact locations. Absence of species occurrences does not mean the species is notpresent.Wind Resource PlannerKansas Biological Surveycreated explicitly for wind power and wildlife concerns. Large scale.Western resources mapsGoogle Earth, NRDC,AudubonThe maps help users identify areas where land use is legally restricted. Other data layers highlight unprotected areas that should be avoided in energydevelopment, including habitats critically important to wildlife. Users exploring specific geographical areas (such as those proposed for energy development)can easily see how little land is legally off-limits and which of the remaining areas have unique qualities that deserve special protection to avoid imperilingsensitive resources. Lack of special area designation does not mean lands are appropriate for development.Wind Energy PotentialUS Department of EnergyDetail varies and requires validation using local meteorological data.Wind Turbine Guidelines Advisory Committee Recommendations:AppendicesC3Appendix C: Landscape-Level Mapping ToolsCurrent and ProposedWind FarmsIndustrial Info; statepermitting agenciesCurrent and ProposedTransmission LinesPlatt/DOE/Localtransmission councilsMay be available as GIS layer. Data may be sensitive (homeland security) and have release restricted.Wind-wildlife transmissionmapsWestern GovernorsAssociationPrairie grouse habitatsNorth American GrousePartnershipWind & wildlife resourcemapsAm. Wind & WildlifeInstituteC4Wind Turbine Guidelines Advisory Committee Recommendations:Appendices

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