The Fish and Wildlife Service (the “Service”) recently released the Final Land Based Wind Energy Guidelines (the “Final Guidelines”) to help developers and operators of wind facilities minimize impacts on wildlife, especially birds and bats. The Final Guidelines are consistent with the various draft Guidelines issued by the Service in 20112 in that they do not relieve any individual, company, or agency of the responsibility to comply with laws and regulations (e.g., Migratory Bird Treaty Act (MBTA), Endangered Species Act (ESA), and Bald and Golden Eagle Protection Act (BGEPA)). However, if developers voluntarily adhere to the Final Guidelines, communicate with the Service at key points, and contemporaneously document “reasonable justification” if they choose to reject the Service’s advice, the Final Guidelines cautiously offer that “if a violation occurs, the Service will consider a developer’s documented efforts to communicate with the Service and adhere to the Guidelines.” The Guidelines do not, however, include any firm commitment by the FWS to respond within a set time period, unlike the draft Guidelines which gave the Service’s field offices a strict 60- day deadline.
The Guidelines provide an opportunity to work with FWS on voluntary compliance strategies under a range of laws, including MBTA, BGEPA, and ESA. Voluntary strategies such as these demonstrate that no need exists for additional regulatory requirements under the MBTA or other laws, such as those proposed by the American Bird Conservancy. The Final Guidelines suggest that developers and operators develop a Bird and Bat Conservation Strategy (BBCS)—instead of an Avian and Bat Protection Plan (ABPP)—to document adherence to the Guidelines and communication with the Service.
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