The American Bird Conservancy submitted a petition for rulemaking to the U.S. Fish and Wildlife Service (“USF&WS”) asking for the adoption of rules for wind turbines to protect migratory birds - both for siting new facilities and operating existing ones. The proposed rule, which cites the Endangered Species Act and the Migratory Bird Treaty Act as its primary legal bases, would require a permit from the USF&WS to construct or operate wind turbines. The permit criteria would require that before issuing a permit, the USF&WS must find that:
(a) the effects of the anticipated take and required mitigation, together with cumulative effects of other activities and additional factors affecting the bird populations and habitats impacted by the project, are compatible with the maintenance and conservation of bird populations, particularly populations of birds designated by FWS as Birds of Conservation Concern and bird species that are candidates for listing under the ESA;
(b) the permit applicant will conduct appropriate, adequate pre-construction and post-construction monitoring;
(c) the permit applicant will to the maximum extent practicable avoid, minimize, and mitigate adverse effects on migratory birds and important migratory bird habitats;
(c) the permit applicant will conduct such monitoring and adaptive management as the Service determines is necessary to fully and effectively evaluate the impact of the project, including the efficacy of minimization and mitigation measures, on migratory birds and migratory bird habitat, and to evaluate whether changes need to be made in the project’s operation in order to better minimize and mitigate the impact on migratory birds; and
(d) there are no practicable alternatives to the project as proposed that would entail less adverse impact on migratory birds.
Existing facilities would have to obtain permits as well, but would have 120 days from adoption of the rules to submit a complete application. They would also be exempt from the provision requiring that practicable alternatives be evaluated.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.
Energy and Environment Monitor