Page 12 - North American Clean Energy January February 2014

wind power

.continued from page 10.

9th, 2013, the FWS published a inal rule in the Federal Register to extend the maximum
Here are some general recommendations for developers and lenders term of the Eagle Take Permit to 30 years, since the average life of a wind project extends
beyond the existing ive-year term limit. he inal rule will become efective on January
to consider during the process of developing and/or providing funding 8th, 2014. To date, the FWS has not granted any Eagle Take Permits, even though roughly
for a wind project.
15 applications have been submitted since the FWS authorized issuance in 2009.
Prior to site selection/pre-construction
hough, in September 2013, the FWS released a draft environmental assessment for a
ive-year Eagle Take Permit for the Shiloh IV Wind Project in Solano County, California.
• Initiate consultation with the FWS and state and local wildlife agencies;
he Eagle Take Permit would allow the take of up to three eagles over the ive-year term of
• Gather information from publicly available sources to assess the likelihood the permit.
of avian impacts at potential project sites;
Criminal enforcement action
• Site the project in previously developed areas, if possible, such as
agricultural lands, to minimize impact to previously undisturbed habitat;
On November 22nd, 2013, Duke Energy Renewables, Inc. entered into a plea agreement
with the US Department of Justice (DOJ), after being charged with two class B
• Conduct one to two years of avian, bat, and wildlife studies;
misdemeanors under the MBTA for the death of 149 migratory birds and 14 golden eagles
at two wind facilities in Wyoming.
• Site turbines away from areas with identiied high bird and bat
concentrations and create buffer zones around sensitive habitat in the Under the terms of the Duke Settlement, Duke will be placed on a ive-year probation,
project area;
and be required to pay $1 million dollars in ines, obtain an Eagle Take Permit,
and implement a ive-year environmental compliance plan. he plan must include
• Provide training for construction and project personnel on how to avoid comprehensive mitigation measures to minimize further avian impacts at four of Duke’s

impacts to protected species during construction and operation; and
wind facilities, and could cost up to $600,000 per year.
It’s worth noting, however, that as avian fatalities were discovered, Duke promptly
• Discuss the results of the pre-construction studies with the FWS and reported them to the FWS, worked with the FWS to reduce future fatalities, and
develop a strategy to mitigate any unavoidable adverse impacts.
implemented numerous mitigation measures including monitoring, radar, and

curtailment. he Duke Settlement acknowledged this concerted efort, reduced the ine,
and dropped any potential additional charges. Nonetheless, such actions didn’t absolve
During construction
Duke from liability. his is because the mitigation measures voluntarily put in place prior
• Continue to conduct studies and monitor impacts to protected species and to the MBTA conviction weren’t suicient to overcome the fact that the projects were

maintain an ongoing dialogue with the FWS;
constructed in a high-risk area, despite preliminary studies showing that avian fatalities
would likely occur.
• Implement recommended or voluntary mitigation measures;
• Develop a Bird and Bat Conservation Strategy (“BBCS”) as outlined in the Lessons learned

FWS Guidelines; and
he Duke Settlement ofers several important lessons for the development of new projects.
First, it’s important to conduct extensive due diligence throughout the life of a wind power
• Prepare an Eagle Conservation Plan and apply for an Eagle Take Permit if project, and to consult with the FWS starting at the earliest stages of development and
bald or golden eagles are identiied in the project area.
continuing through operation as appropriate.

But, conducting all the recommended surveys and studies and consulting with the
FWS isn’t suicient. If adverse impacts to avian species are identiied, it’s the developer’s
Post-construction/operation
responsibility to move the project to a new location, or implement extensive mitigation
• Conduct several years of post-construction surveys and continue measures to reduce the risk of avian fatalities.

consultation with the FWS;
As demonstrated by the Duke Settlement, the FWS’s recommendations need to be
given high priority, especially with respect to siting in high-risk areas. As aptly put by the
• Monitor the site periodically for any avian or bat fatalities;
DOJ in a November 22nd, 2013 press release: “Carefully siting turbines so as to avoid

• Immediately report any avian fatalities; and
and minimize the risk as much as possible, is critically important because, unlike electric
• Work with the FWS and state and local wildlife agencies to implement distribution equipment and guyed towers, at the present time, no post-construction
remedies, except ‘curtailment’ (i.e., shut-down), have been developed that can ‘render safe’
additional mitigation measures to reduce the risk of future takes.
a wind turbine placed in a location of high avian collision risk.”

A second lesson learned: documented eforts to comply with the guidelines and
communicate with the FWS will likely be taken into consideration when determining
whether and to what extent it should bring an enforcement action should a violation of the
BGEPA or the MBTA occur. Duke’s good faith efort to reduce fatalities and documented Since the law surrounding violations of the BGEPA and the MBTA against wind projects

coordination with the FWS did lead to reduced penalties.
is still evolving, it’s advisable for developers and lenders to err on the side of caution by
hirdly, the Duke Settlement demonstrates a strong likelihood of future enforcement preparing to avoid or minimize the risk of adversely impacting protected avian species. For
against the wind industry, which, until now, hasn’t encountered enforcement under the developers, it’s of crucial importance to conduct extensive surveys to identify the presence
BGEPA or the MBTA. Prior to the Duke Settlement, there were no criminal convictions of and potential impact to avian species, and to communicate with the FWS and local wildlife

a wind developer for the unintentional take of a bird protected under the BGEPA or the agencies prior to the construction of wind projects. For lenders, it’s advisable to contact
MBTA. According to the Associated Press, the FWS is now investigating bird deaths at over legal counsel at the start of the inancing process to determine the current status of the
18 wind projects, about a half-a-dozen of which have already been referred to the DOJ for law, the level of risk for a particular project, and the measures that the lender should
potential enforcement, although the speciic projects have not been publicly identiied.
request from the developer to minimize liability to the greatest extent possible.

Practicing due diligence
Matthew Ahrens is of counsel in the New York oice of Milbank, Tweed, Hadley & McCloy, and is
Recent studies have estimated that there are over 900 million annual bird fatalities due to a member of the irm’s Corporate Group, in charge of the Environmental Practice Area.
collisions with buildings, and over six million annual bird fatalities due to collisions with

communication towers; whereas, according to the FWS’s estimates, there are 440,000 Milbank is well positioned to help clients keep abreast of this ever-changing ield of law, and to
annual bird fatalities due to collisions with wind turbines and met towers.
advise on how best and most cost efectively to reduce the risk of unintentional takes of protected
Consequently, the Duke Settlement is not necessarily an indication of widespread species during the development of wind projects.
enforcement against any and all violations of the BGEPA or the MBTA, but it’s an

important reminder to wind developers and lenders that a high level of attention must
Milbank, Tweed, Hadley & McCloy
be placed on due diligence, the careful siting of turbines, and the implementation of www.milbank.com
mitigation measures that would reduce the risk of a take under the BGEPA and the MBTA.