Wind Energy Development and Wildlife Management Symposium March 21, 2006

1. Wind Energy Development and Wildlife Management Symposium March 21, 2006 North American Wildlife & Natural Resources Conference Wind Power & Birds: Potential Approaches for Progress Mark Sinclair Clean Energy Group Clean Energy States Alliance

2. Challenges • Some avian mortality is inevitable in wind projects • Avian protection laws are strict, creating enforcement risk and legal challenges to project development • Wildlife agencies have enormous discretion in how to implement avian species protection laws • Avian mortality is caused by many structures but new wind projects trigger formal reviews

3. Significant State Role • Regulating wind power is largely a state and local responsibility • State & local agencies have limited experience in evaluating wildlife impacts from wind power • Lack of specific, detailed state regulations or guidance on wildlife impacts from wind • State & local regulations are evolving • Most decisions today made on case-by-case basis • GAO Report: no evidence of states adopting USFWS guidance but states are using to inform their approach

4. Patchwork of Approaches • In many states, local jurisdictions regulate wind under zoning ordinances and conditional use permits, do not specifically address wildlife (NY, PA) • In some states, energy siting boards make “public good” decisions, considering input from state wildlife departments as one factor in balance • State NEPAs sometimes require state and local governments to assess environmental impacts and mitigation for proposed actions (CA, NY, WA) • State wildlife agency focus primarily on game species, although state natural heritage programs provide avian information upon request • Most state have endangered species laws but no prosecution or take permits issued

5. Recent State Action • West Virginia: PSC adopted 2005 regulations for wholesale electric facilities requiring spring & fall avian migration studies, avian & bat risk assessments and lighting studies • Washington: DFW Wind Power Guidelines – not regulations but de facto binding as WDFW participates in county and state-level permit process & is agency of “special expertise” under SEPA • Oregon: ODFW rules establish habitat standard used by PUC in state energy siting process; case by case approach to analysis and mitigation • Kansas: DWP Wind Power Position – informal, general guidelines for local government • Minnesota: PUC required one large-scale study, funded by wind developers in broad region, no post construction studies

6. Proposed State Action • NY: NYSERDA education to local government; SEQRA review; new wind/wildlife collaborative dialogue created to assist environmental agency develop specific avian guidance • PA: Game Commission policy for wind development on its lands; PA Wind Working Group considering uniform guidelines or regulations for wind siting • CA: Stakeholder group recently convened to discuss California Energy Commission’s proposal to develop guidance with CDFG • CO: No specific guidance, but RPS requires pre-construction studies; recent stakeholder symposium to launch formal guidance development.

7. Washington State Guidelines • WDFW developed voluntary guidelines for consistency • Encourage use of disturbed lands • Discourage use of high value habitat • Flexible pre-project assessment requirements, focus on existing information • Mitigation focus • Mitigation ratios dependent on value of habitat lost: no mitigation required for croplands • Alternative mitigation fees

8. Federal Legal Framework Migratory Bird Treaty Act • Applies to all migratory birds, including raptors and songbirds • Illegal to “kill” any migratory bird • Strict Liability: statute specifies that violations of the MBTA are criminal in nature. Misdemeanors for unknowing violations, felonies for knowing violations • No statutory method for limiting liability – no “incidental take” permits

9. Concerns With USFWS Interim Guidance • Data collection requirements impractical • One-size-fits-all-approach ignores regional and species differences • Does not recognize primary state role in wildlife protection • Requirements not commensurate with modest avian risk posed by most wind projects • Recommendation for pre-screening all potential wind sites not practical; assumes that wind siting can be based on avian considerations alone • Provides limited guidance on site-specific mitigation/compliance

10. Recommendations • Avoid state-by-state and case-by-case approaches • Create national reference tool and/or principles that states can tailor to minimize avian impacts • Identify inventory of appropriate protocols, techniques, and tools to assess risk • Form state/federal partnership to ensure coordinated, consistent, streamlined review of wind projects • USFWS should allow states to implement national principles to reduce inconsistency & duplication • Establish coordinated and cooperative state & national research agenda

11. Potential Approaches • Goal: Develop practical approaches for compliance with wildlife laws on a national, state, and site-specific basis • Potential Models • APLIC Avian Protection Plan Guidelines • ESA Tool-kit Approach • BLM Best Management Practices & Adaptive Management

12. Approach #1: APLIC Model • Avian Power Line Interaction Committee’s 2005 Avian Protection Plan Guidelines • APLIC is industry group partnering with USFWS and Audubon Society • Focus is education, training, research and development of voluntary guidelines • Tool box approach, utility can tailor broad principles to specific needs • Preparation of utility-specific document to reduce avian risks • USFWS informal stamp of approval • APLIC does not provide legal safe harbor • However, formal corporate adoption of Plan reduces likelihood of prosecution

13. Corporate Policy Commitment Proper Training Permit Compliance Develop Construction Design Standards Nest Management Procedures Implement Avian Reporting System Develop Risk Assessment Methodology Implement Mortality Reduction Measures Consider Avian Enhancement Options Ensure Quality Control Create Public Awareness Identify Key Resources APLIC Approach 12 Principles for Acceptable Avian Protection Plan:

14. Incidental Take Permit: Take must be incidental to activity Can be lengthy process Requires Habitat Conservation Plan (HCP) & NEPA evaluation Safe Harbor Agreements: Limit on ESA liability in exchange for land-owner implemented measures to enhance survival of species Must be a net conservation benefit FWS reluctant to use where development on property is foreseeable Approach #2: ESA Tool-Kit ESA Primer

15. ESA Tool-Kit • USFWS works with ESA permit applicants to identify appropriate mitigation for incidental take permits • ESA uses innovative legal and mitigation approaches: • Area-wide HCPs • Protection of threatened habitat • Mitigation banks • Species recovery research, plans, and actions

16. Develop a menu of mitigation approaches that are road-tested and validated through pilot projects Develop site-specific solutions based on menu of accepted mitigation measures Develop credible, common body of science and data of typical avian impacts and mitigation approaches Lessons from ESA

17. Approach #3: Best Management Practices • 2005 BLM Programmatic EIS for Wind Energy Development • Establishes programmatic BMPs to address potential impacts and mitigation for all wind projects • BMPs must be economically feasible and environmentally sound • Require additional mitigation measures to address site-specific concerns • Use of adaptive management strategies to update and revise BMPs as new data becomes available

18. Process for Moving Forward:New National Collaborative • Key stakeholders and USFWS have agreed to participate in national collaborative involving wind industry, states, and environmental NGOs • Mission: fashion recommended national principles and framework to reduce avian impacts • Begin in 2006 • Establish a “Policy Group” to be informed by a “Science Group” • National Collaborative to work with and receive input from regional & state workgroups • Outcome not predetermined!!!

19. Contact Information Mark Sinclair Clean Energy Group 50 State Street, Suite 1 Montpelier, VT 05602 Phone: 802-223-2554 x 206 Email: MSinclair@cleanegroup.org www.cleanegroup.org www.cleanenergystates.org