[Public comment is still open: until May 19, 2011]
The US Fish and Wildlife Service (FWS) is apparently moving toward more-effective implementation of federal laws that will potentially reduce the negative environmental impacts of wind energy development in the Appalachian highlands. The FWS, however, is facing intense industry pressure to back down, and public support and input are needed now.
Public comments and recommendations will be accepted until May 19, 2011 on two FWS guidance documents that will affect wind energy development:
- The Draft Land-Based Wind Energy Guidelines
- The Draft Eagle Conservation Plan Guidance
The complete text of both documents, background information, directions for submission of comments, and a listing of questions posed for consideration are available at: http://www.fws.gov/windenergy .
Text provided on the website states that these documents contain guidelines designed to provide information needed to make “the best possible decisions in the review and selection of sites for wind energy facilities to avoid and minimize negative impacts to fish, wildlife, plants and their habitats.”
One of the key questions posed by the FWS is whether the guidelines should be voluntary or mandatory.
In my view, the guidelines are largely about implementing environmental laws that should already be in force and should be carried out: the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the Endangered Species Act. The wind industry is campaigning hard to ensure that effective enforcement of these laws does not occur.
I attended an April 27th meeting of the Federal Advisory Committee (FAC) that was established by the USFWS to provide recommendations on the development of the wind energy guidelines. The meeting was essentially a day-long complaint by wind industry representatives that the FWS had ignored the “consensus-based” and “negotiated” recommendations of the FAC.
A major complaint concerned assurance sought by the wind industry that it will not be subject to Migratory Bird Treaty Act (MBTA) and Bald and Golden Eagle Projection Act (BGEPA) enforcement action if it adheres to the guidelines. Industry representatives on the FAC stated that this type of assurance is essential when developers talk to bankers and project investors, and that the promise of this type of assurance was necessary to obtain wind industry participation on the FAC in the first place.
The draft guidelines published by the FWS do offer some such assurance. The following is stated on page thirteen of the draft guidelines:
“The Service urges voluntary adherence to the draft Guidelines and communication with Service when planning and operating a facility. Service will regard such voluntary adherence and communication as evidence of due care with respect to avoiding, minimizing, and mitigating 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.”
The critical words here are “voluntary adherence and communication.” The following definition is provided on page six in the FWS draft guidelines:
“For future projects, voluntary adherence and communication means that the developer has applied these draft Guidelines, including the tiered approach, through site selection, design, construction, operation and post-operation phases of the project, and has communicated with Service and followed its advice to the maximum extent practicable.”
The FAC recommendations included another substantially different definition of “voluntary adherence and communication.”
“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 Service and considered its advice.”
Whereas the FAC recommendation would require only that the advice of the FWS be considered, the FWS draft guidelines would instead require that its advice be followed to the maximum extent practicable.
Industry representatives on the FAC complained that this “shift” in language represents a violation of trust and general consensus.
Words matter, and the choice of words in this case will determine the outcome of MBTA and BGEPA implementation. Enforcement will be extremely difficult or impossible if the FWS publishes guidelines expressing the notion that simple consideration of FWS advice is evidence of due care with respect to these laws. The FWS cannot possibly accept the remarkably lax definition of “voluntary adherence and communication” promoted by the wind industry and still meet its own obligations under the MBTA and the BGEPA.
Yet, based on what I heard at the April 27th FAC meeting, it seems that the FWS may be forced to back down without a strong show of support from the conservation community.
The Highlands Voice, May 2011,  West Virginia Highlands Conservancy