U.S. Fish and Wildlife Service Role in Wind Development

 

The U.S. Fish and Wildlife Service (Service) is the lead agency responsible for safeguarding federally-protected wildlife and administering Federal wildlife protection laws. In addition, we also provide biological expertise and assistance to federal agencies to ensure that fish and wildlife resources are considered during project planning. Below is an explanation of the various laws that protect wildlife and the Service's role.

 

Migratory Bird Treaty Act

Most migratory birds are protected by the Migratory Bird Treaty Act which prohibits the taking, killing, possessing, transporting, and importing of migratory birds, their eggs, parts, and nests, except as authorized under by permit.

 

While it is not possible to absolve individuals or companies from Migratory Bird Treaty Act violations, our Office of Law Enforcement direct their efforts to investigating and prosecuting people who harm or kill migratory birds without taking steps to avoid the "take." We urge wind energy developers to use the Voluntary Land Based Wind Energy Guidelines and to talk with the Service when planning and operating a facility. The Service will regard a developer’s or operator’s adherence to the Voluntary Guidelines, including communication with the Service, as appropriate means of trying to avoid the take of migratory birds.

 

Bald and Golden Eagle Protection Act

The Bald and Golden Eagle Protection Act (Eagle Act) prohibits the take, possession, sale, offer to sell, purchase or barter, transport, export or import, of any bald or golden eagle, alive or dead, including any part, nest or egg, unless allowed by permit.

 

Wind facility operators can obtain a permit from the Service for the “take” of eagles that may occur while operating their facility.  However, to comply with the Eagle Act permit regulations, applicants must identify conservation measures to avoid and minimize take of eagles to the maximum degree. 

 

To help wind project proponents determine whether they need a permit and, if so, the type of information and conservation measures needed to obtain a permit, the Service prepared the Eagle Conservation Plan Guidance . 

 

The coordination and permitting process laid out in the Guidance helps protect eagle populations through mitigation and monitoring and the project proponent from prosecution of the Eagle Act.

 

Endangered Species Act

Federally threatened and endangered species are protected under the Endangered Species Act (ESA). The ESA prohibits take of listed animals with the definition of “take” including harm, harassment, or killing.

 

The endangered Indiana bat is the primary federally-listed species affected by operation of wind energy facilities in the Midwest.

 

After "take" of an Indiana bat was documented at an Indiana wind facility in 2009, all facilities in the region and within range of the Indiana bat were contacted and advised by Service field offices to consider their level of risk in regard to take of migrating Indiana bats. Any facility in the species’ range is considered within migration range and thus has the potential to take an Indiana bat.  An Indiana bat range map can be found at ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A000.  

 

Other listed plants and animals, in addition to the Indiana bat may be harmed by the construction of the facilities and infrastructure. The state and county distribution of Federally threatened and endangered species can be found at www.fws.gov/midwest/endangered/lists/cty_indx.html.

The Service is available to assist wind energy project developers identify potential impacts to federally-listed species, and should be contacted as early as possible in the company's planning process.   The list of Service Ecological Service’s Field Offices in the Midwest is available at www.fws.gov/midwest/wind/contactus.html.  In addition, we recommend that project proponents use the Voluntary Land Based Wind Energy Guidelines to ensure early and efficient communication with all appropriate natural resource agencies. 

 

Incidental Take Permits and HCPs

Actions that avoid violation of the Endangered Species Act will depend on the level of risk that construction and operation of a wind facility presents.   Some developers may be able to identify operation or siting measures that avoid harming wildlife.  In such a case, the Service will provide a letter to the company to substantiate that we agree that use of these measures will avoid taking the listed species.  Where take of a listed species cannot be avoided, the Service may issue an Incidental Take Permit.  However, an Incidental Take Permit can only be issued if the permit applicant minimizes take and then mitigates for the take that is likely to occur.  The permit applicant must identify the minimization and mitigation measures in a Habitat Conservation Plan (HCP). 

 

The Service is currently working with several private companies who are developing wind-energy project HCPs.  We are also working on a region-wide, multi-species HCP. The goal of the region-wide HCP is to streamline the permitting process for wind energy developers while providing conservation benefits to listed plants and animals.

 

Section 7 Consultation

Section 7 of the Endangered Species Act requires federal agencies to consult with the U.S. Fish and Wildlife Service to ensure that their actions do not jeopardize the existence of a listed species. Federal actions include projects that require a federal permit or use federal funding. Because Indiana bat is the focus of most wind energy consultations, we developed Indiana Bat S7 Guidance to help our biologists assess the impacts of wind energy projects on Indiana bats. Wind developers may want to read the guidance to understand our rationale for assessing impacts and to help plan a project that minimizes impacts to Indiana bats.

 

Fish and Wildlife Coordination Act - National Environmental Policy Act - Clean Water Act (Section 404)

 

The Fish and Wildlife Coordination Act (FWCA) provides the basic authority for the U.S. Fish and Wildlife Service's (Service) involvement in evaluating impacts to fish and wildlife from proposed water resource development projects - including projects that require a federal permit. In turn, the Clean Water Act - Section 404 requires the Corp of Engineers to regulate the discharge of dredged or fill material into waters of the United States. Corps of Engineers Section 404 permits are required for projects that may affect wetlands or navigable waters. The Service reviews and comments on projects that require Corps of Engineers permits, under the authority of the the Fish and Wildlife Coordination Act and the Endangered Species Act. This includes wind energy projects that affect wetlands or navigable waterways.

 

The Fish and Wildlife Service provides technical and biological information for use in the National Environmental Policy Act (NEPA) review process, for other federal agency actions as well as for internal Service actions. Service review of wind energy projects may result if a wind construction or operation project requires a NEPA review.

 

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