On April 15, 2016, the US Fish and Wildlife Service (FWS) issued its Draft Midwest Wind Energy Multi-Species Habitat Conservation Plan (Plan) and Draft Environmental Impact Statement (EIS) proposing a regional approach to Endangered Species Act (ESA) compliance process in response to the growth of Midwestern wind energy development. The Plan is intended to streamline the incidental take permitting process for certain bird and bat species.  Comments on the draft Plan and draft EIS are due on July 14, 2016.

Background

With its abundant wind resources, the American Midwest is an attractive region for renewable energy development. In addition to state and local permitting requirements, Midwestern wind energy facilities must also comply with federal natural resource laws, including ESA and the Bald and Golden Eagle Protection Act (Eagle Act). Under Section 10 of the ESA, the FWS may issue permits to authorize the “incidental take” of federally listed fish and wildlife, including bird and bat species potentially affected by wind energy development. “Incidental take” is defined as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Likewise, under the Eagle Act, the FWS may issue a permit to authorize take of individual eagles and their nests.

Currently, wind energy development projects may elect to apply for incidental take permits for individual facilities. To obtain the permit, the applicant must prepare a facility-specific Habitat Conservation Plan to specifically identify how incidental take will be avoided, minimized and mitigated, along with an analysis of the impacts under the National Environmental Policy Act (NEPA). This process can sometimes lead to project delay or even abandonment of projects due to potential risks to listed species (particularly the Indiana bat) and required mitigation measures.

Draft Plan

The proposed Plan is intended to provide a more coordinated approach to permitting and conservation across the Midwest. Once approved, the Plan would serve as the required Habitat Conservation Plan for wind facilities and the final EIS would serve as the project’s NEPA compliance document.

• The draft Plan covers lands within the States of Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin with certain exclusions including known bird migratory areas, high bat concentration areas, and lands within 3 miles of the shores of the Great Lakes.
• Six federally listed bat and bird species, one bat species that may be listed in the future, and the bald eagle[1] are identified as the covered species for which the FWS is considering incidental take authorization.
•  Activities covered under the Plan include the construction, operation, maintenance, decommissioning and reclamation of wind energy facilities, as well as monitoring activities.
• The proposed duration of the draft Plan is 45 years with individual permit authorizations issued for a period of 30 up to 45 years.
• Existing wind energy facilities within the covered lands could opt-in and apply for incidental take authorization during the first 5 years of Plan implementation. New commercial wind energy facilities could opt-in during the first 15 years of Plan implementation.
• Mitigation measures are also proposed in the draft Plan, applicable to each species.
• Project proponents requesting incidental take permits would still need to provide documentation to the FWS describing how they will implement the Plan’s requirements for their proposed or existing wind facility.
• In accordance with NEPA, the Service prepared a draft EIS for public review and comment. The draft EIS analyzes the potential impacts of the overall program to issue incidental take permits and implement the Plan.

Next Steps

The draft Plan is intended to provide a clear and predictable path for wind energy permitting in conjunction with species conservation. Interested parties may submit comments on the draft Plan and draft EIS to FWS by July 14, 2016 (Docket Number FWS-R3-ES-2015-0033). After the comment period closes, the FWS will consider comments received on both documents when preparing the final Plan and EIS. Final documents are expected to be released in Winter 2017.

[1] Covered species include the Indiana bat, northern long-eared bat, little brown bat, Kirtland’s warbler, interior least tern, Great Lakes and Great Plains populations of the piping plover, and the bald eagle.