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Ensuring Safety of Wildlife With Respect to Wind Energy  

Author:  | Regulations, U.S., Wildlife

This draft of the “Energy Policy Reform and Revitalization Act of 2007” from Representative Nick Rahall, Democrat of West Virginia, chairman of the U.S. House Committee on Natural Resources, includes regulations concerning birds, bats, and other wildlife. That section is reproduced below. The entire draft can be downloaded with the link at the bottom of this post.

TITLE II, Subtitle D – Ensuring Safety of Wildlife With Respect to Wind Energy

SEC. 231. STANDARDS AND REQUIREMENTS.

(a) IN GENERAL. – Within 180 days after the date of enactment of this Act, the Secretary, acting through the Director and after public notice and opportunity to comment, shall promulgate regulations that establish minimum standards for siting, construction, monitoring, and adaptive management that must be satisfied by all wind projects to avoid, minimize, and mitigate adverse impacts on migratory birds, bats, and other wildlife.

(b) NEW WIND PROJECTS. – Such standards shall, for all wind projects that have not been constructed before the date of enactment of this Act, include at a minimum the following:

(1) PRECONSTRUCTION SURVEYS. – Requirements for comprehensive preconstruction surveys that are of sufficient duration and scope to reasonably evaluate the extent to which a particular site is used by migratory birds, bats, and other wildlife, including species listed as endangered species or threatened species under section of the Endangered Species Act of 1973 (16 U.S.C. 1533) and the potential cumulative impact that a proposed wind project would have on such wildlife in combination with other existing or proposed wind projects. Such requirements shall provide that surveys must be carried out by scientific teams that include independent scientists and that the Director may obtain reasonable access to the proposed construction site to ensure that survey protocols are being properly developed and implemented.

(2) SITING. – Standards for siting wind projects for which construction has not begun so as to avoid impacts, including cumulative impacts, on birds, bats, and other wildlife to the greatest extent practicable based on data gathered during preconstruction surveys required under paragraph (1), including –

(A) the avoidance of ecologically sensitive areas of importance to wildlife, such as migration corridors, wetlands, and other habitats where wildlife congregate; hibernation, breeding, and nursery areas; and critical habitats of endangered species and threatened species, and

(B) siting and configuring wind turbines to avoid landscape and other features known to attract wildlife.

(3) CONSTRUCTION AND OPERATION. – Requirements for the construction and operation of wind projects so that they minimize impacts on birds, bats, and other wildlife to the greatest extent practicable, including by –

(A) incorporating the best available technology for minimizing such impacts, and

(B) operating such projects in a manner that minimizes impacts on birds, bats, and other wildlife.

(4) POST-CONSTRUCTION MONITORING. – Requirements for thorough post-construction monitoring of the actual impacts, including cumulative impacts, that wind projects are having on birds, bats, and other wildlife, including standards and protocols for transmitting all monitoring data and findings to the Director for consideration of cumulative impacts and dissemination to the public. Such requirements shall provide that monitoring must be carried out by scientific teams that include independent scientists, and that the Director may obtain access at any time to the site to ensure that monitoring protocols are being properly developed and implemented.

(5) ADAPTIVE MANAGEMENT. – Requirements for adaptive management of wind projects if the impacts of such projects on birds, bats, and other wildlife exceed predicted impacts, including requirements that a wind project operator shall –

(A) take steps to reduce such impacts to the levels predicted prior to operation; or

(B) suspend operations if such steps are not, or cannot be, taken.

(6) OFFSET OF UNAVOIDABLE IMPACTS. – Requirements that wind projects offset any unavoidable impacts, including cumulative impacts, on birds, bats, and other wildlife through the acquisition, conservation, or restoration of mitigation habitat, the funding of research that will be of value in conserving affected wildlife, and other appropriate measures.

(c) EXISTING PROJECTS. – Such standards shall, for all wind projects that have begun operation before the date of enactment of this Act, include at a minimum appropriate requirements for monitoring, adaptive management, and offset of unavoidable impacts mitigation for adverse impacts on birds, bats, and other wildlife, consistent with paragraphs (4) through (6) of subsection (b).

SEC. 232. CERTIFICATION OF COMPLIANCE.

(a) CERTIFICATIONREQUIREMENT. –

(1) IN GENERAL. – No person may construct or operate a wind project unless the Director has issued a certification that the project will be constructed and operated in compliance with the standards promulgated under section 231.

(2) APPLICATION. – Paragraph (1) shall apply –

(A) in the case of a wind power project that began operating before the date of enactment of this Act, beginning at the end of the 180-day period beginning on the date the Director promulgates regulations under subsection (b); and

(B) in the case of a wind power project that has not been constructed before the date of enactment of this Act, beginning on such date of enactment.

(b) APPLICATIONS. –

(1) IN GENERAL. – Within 180 days after the date of enactment of this Act, the Director, after public notice and opportunity to comment, shall promulgate regulations that establish procedures for issuing certifications under this section.

(2) CONTENTS. – Such regulations shall –

(A) include requirements for submitting an application for certification under this section, including requirements for the contents of such applications;

(B) provide for advance public comment on each application for certification and on the conditions that should be attached to such a certification; and

(C) require that such applications address in detail how the project will be constructed and operated in compliance with all applicable standards promulgated under section 231.

(c) RENEWAL OF CERTIFICATION. – Regulations under subsection (b) shall –

(1) require that each certification under this section must be renewed at least once every three years;

(2) establish procedures and requirements applicable to such renewal applications; and

(3) provide for advance public notice and comment regarding each application for renewal.

SEC. 233. PENALTIES.

A person who violates this subtitle or a regulation issued under this subtitle is subject to a fine of not more than $50,000, or imprisonment of not more than one year, or both.

SEC. 234. RELATIONSHIP TO OTHER STATUTES.

Nothing in this subtitle affects the application of the Endangered Species Act of 1973, the Migratory Bird Treaty Act, the Bald Eagle Protection Act, the Golden Eagle Protection Act, the Marine Mammal Protection Act of 1973, National Environmental Policy Act of 1969, or any other relevant Federal law to wind projects.

SEC. 235. DEFINITIONS.

As used in this subtitle:

(1) DIRECTOR. – The term “Director” means the Director of the United States Fish and Wildlife Service, or a designee of that Director.

(2) INDEPENDENT SCIENTIST. – The term “independent scientist” mean a scientist who is not an employee of, or regular consultant to, the wind power industry.

(3) SECRETARY. – The term “Secretary” means the Secretary of the Interior.

(4) WIND PROJECT. – The term “wind project” means any project in the United States that uses wind to generate electric power.

Download original document: “Energy Policy Reform and Revitalization Act of 2007

This article is the work of the author(s) indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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