An array of federal laws and regulations in the U.S. are designed to protect wildlife and the environment from adverse impacts of human development activities, including wind energy.
Endangered Species Act (ESA)
The purpose of the Endangered Species Act (ESA), which is under the purview of the U.S. Fish & Wildlife Service in the case of land-based energy development, is to conserve endangered and threatened species and the ecosystems on which they depend. The ESA provides protections to wildlife and plants that have been added to the federal lists of endangered and threatened species and provides protection to species in the listing process in more limited circumstances. A species is added to the list when it is determined to be endangered or threatened due to any of the following factors:
- Present or threatened destruction, modification, or curtailment of its habitat or range
- Overutilization for commercial, recreational, scientific, or educational purposes
- Disease or predation
- The inadequacy of existing regulatory mechanisms
- Other natural or manmade factors affecting its survival
The level of protection provided by the ESA can vary depending on whether the species is an animal or plant, whether the species is designated as threatened or endangered, and whether the Service has promulgated special rules for the species. In general, however, the ESA makes it unlawful to “take” a listed species. Under the ESA, take is defined as “… to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.”
Potential take of a listed species that occurs incidental to a lawful activity (such as wind energy generation) is known as “incidental take.” Wind project developers work with the Service’s Ecological Services field office in the state where the proposed project is located to determine if there is potential risk to any listed species of wildlife as a result of their project. If a potential risk for incidental take is identified, the developer may choose to apply for an incidental take permit (ITP) for the wind energy project. The ESA requires that, as part of the ITP application process, developers submit a habitat conservation plan (HCP) for listed species to the Service that includes commitments to minimization and mitigation measures to offset the impacts of the potential take. Even if the developer has determined there is no risk of take of ESA-listed species (or species proposed for listing), consultation with the Service may still be required if for instance the project is on federal land or uses federal funding.
Migratory Bird Treaty Act (MBTA)
Passed in 1918, the Migratory Bird Treaty Act (MBTA) is one of the earliest federal environmental laws and is considered the cornerstone of migratory bird conservation and protection in the United States. Under the MBTA, it is “unlawful at any time, by any means, or in any manner, to pursue, hunt, take, capture, kill” migratory birds, parts, eggs, or active nests, or attempt to do so. The MBTA is under the purview of the U.S. Fish & Wildlife Service and implements four treaties that provide for international protection of over 1,000 species of migratory birds, including eagles and other raptors, waterfowl, shorebirds, seabirds, wading birds, and passerines. The MBTA allows for purposeful take or possession of migratory birds under certain conditions (e.g., regulated hunting for certain species, scientific collection, human health and safety) if authorized under a relevant permit.
The MBTA is a “strict liability statute,” meaning that actions resulting in take, such as causing a fatality of a protected species, are a violation of the MBTA regardless of intent, knowledge, or negligence. On January 7, 2021, the U.S. Fish & Wildlife Service published a final rule that briefly limited the MBTA’s scope to only apply to take intentionally directed at migratory birds. This January 7 rule was questioned multiple times in court, and the U.S. Fish & Wildlife Service officially revoked the January 7 rule on October 21, 2021, ultimately prohibiting incidental take, “consistent with judicial precedent and long-standing agency practice.” As of October 21, 2021, the U.S. Fish & Wildlife Service is considering a potential incidental take permit, which would likely define the measures necessary to avoid and minimize take and the circumstances under which offsets would be necessary. A draft incidental take permit rule and environmental review is expected in early 2023.
Bald & Gold Eagles Protection Act (BGEPA)
Bald and golden eagles are afforded additional legal protection in the U.S. through the Bald and Golden Eagle Protection Act (BGEPA), which is also under the purview of the Service. Like the ESA it prohibits take, but it expands this definition to include “disturb” – that is, “agitating or bothering an eagle to a degree that causes, or is likely to cause, injury or either a decrease in productivity or nest abandonment by substantially interfering with normal breeding, feeding, or sheltering behavior.” Furthermore, under BGEPA, eagle nests are protected year-round; where under the ESA and MBTA, nests must have eggs and chicks in order to be protected, eagle nests do not.
BGEPA gives the Service the authority to develop a program to allow for take of eagles and nests. In 2009, the Service issued a final rule on two new permit regulations that specifically authorized limited, non-purposeful (incidental) take of bald and golden eagles “consistent with the goal of stable or increasing breeding populations.” The rules have undergone subsequent revisions. Wind energy companies model the potential risk of a wind project to take eagles and apply for a permit. While not strictly required by regulation, applicants typically prepare an Eagle Conservation Plan (ECP) to submit with their permit application. The ECP describes steps a company will implement to avoid, minimize, and mitigate any predicted eagle take to demonstrate that the permit application meets the relevant regulatory criteria.
National Environmental Policy Act (NEPA)
The National Environmental Policy Act (NEPA) requires federal agencies to consider the various impacts of their actions on the human and natural environment. NEPA analysis is generally necessary for projects that require federal permits or approvals, as is the case when projects are on federal land or use federal funding. The federal agency responsible for approving funding or authorization for a wind project must conduct a NEPA review that includes an analysis of how the federal action would impact the environment as well as an analysis of how alternatives to the federal action may impact the environment. This environmental assessment either concludes with a Finding of No Significant Impact or leads to a more detailed environmental impact statement and a Record of Decision that states whether the project was approved, and if so, what mitigation and monitoring plans, if any, are required. In certain circumstances, the federal action may be categorically excluded from NEPA review and may proceed without an environmental assessment or environmental impact statement.
Role of the U.S. Fish and Wildlife Service
The Service administers and enforces the ESA, BGEPA, and MBTA, through various branches such as Ecological Services, Migratory Birds, and regional and field offices located throughout the country. The Service may also write or review another agency’s NEPA document. As part of administering and enforcing the ESA, U.S. Fish & Wildlife Service evaluates and deterimines the listing, as well as uplisting and downlisting, of species as threatened or endangered. Wind energy project developers are encouraged to consult with the Service’s local field offices regarding potential wildlife risks that a proposed project may need to consider and address.
In 2012, the Service published voluntary Land-Based Wind Energy Guidelines, a result of collaboration with federal agencies, state wildlife agencies, tribal and wind industry representatives, conservation organizations, and academics to develop a set of guidelines designed to support wind energy developers in taking a systematic approach to evaluating and addressing potential risks to wildlife.