Legal Issues Affecting Wind Energy Federal Nexus: Public Lands. On public land, Federal funding, Federal permit, Federal power grid. On public land, Federal funding, Federal permit, Federal power grid. ESA most likely applies. ESA most likely applies. Sec. 7 consultation likely. Sec. 7 consultation likely. MBTA most likely applies. MBTA most likely applies. Bald Golden Eagle Protection Act most likely applies. Bald Golden Eagle Protection Act most likely applies. NEPA review. NEPA review. Federal Cave Resources Protection Act – bats. Federal Cave Resources Protection Act – bats. Has to be Federally-designated cave on Federal lands. Has to be Federally-designated cave on Federal lands. Not allowed obstruct cave entrance. Not allowed obstruct cave entrance. FWS has some authority. FWS has some authority. On private land w/ no Federal permits etc. On private land w/ no Federal permits etc. ESA voluntary, however S.9 “taking” could be issue for proponent. ESA voluntary, however S.9 “taking” could be issue for proponent. MBTA. Strict liability statute. MBTA. Strict liability statute. No consultation process. No consultation process. Don’t issue “incidental” or “accidental take” permits. Don’t issue “incidental” or “accidental take” permits. BGEPA. Wanton disregard. Not strict liability. No consultation process. No consultation process. No “incidental take” permits. No “incidental take” permits. Prepare Avian Protection plans Prepare Avian Protection plans Enforcement and investigative discretion. Suggest proponent use conservation measures to address problem/potential problem. Suggest proponent use conservation measures to address problem/potential problem. Company that refuses to use proven conservation measures/blows us off gets attention OLE if problem results. Company that refuses to use proven conservation measures/blows us off gets attention OLE if problem results.-1-

ESA Does it apply? In Colorado and Wyoming, Dakotas, and Nebraska, it most likely does apply because of presence of migratory and resident Bald Eagles, currently listed as threatened species. Other listed species to consider in this region: piping plover, least tern and whooping crane.

ESA Sec. 7 (Federal consultation) Q: Is their an effect on a listed species? A: No. Sec. 7 compliance complete. A: Yes. Is it likely to have an adverse affect on the species? A: Not likely. No need for formal consultation with FWS.

ESA If project may adversely affect a listed species, formal consultation is triggered. FWS will now take 120 days to produce Biological Opinion. BO will determine: -- If there is incidental take and if there is, what level of incidental take. -- Jeopardy and adverse mod. N/A.

ESA Incidental take statement (ITS) will include terms and conditions requiring minimization measures, monitoring etc. to insure take from project does not exceed level projected in ITS.

MBTA Migratory Bird Treaty Act (MBTA) 16 U.S.C. Sec. 703 Unlawful to take or kill migratory birds or their nests or eggs as a result of physical conduct...Taking or killing does not occur simply because of habitat modification or destruction. No prohibition in MBTA against annoying, harassing or displacing birds, you have to whack them! Unlawful to take or kill migratory birds or their nests or eggs as a result of physical conduct...Taking or killing does not occur simply because of habitat modification or destruction. No prohibition in MBTA against annoying, harassing or displacing birds, you have to whack them!

BGEPA Bald and Golden Eagle Protection Act (BGEPA). 16 U.S.C. Sec Prohibition against knowingly, or with wanton disregard for the consequences of his/her act, taking bald or golden eagles. Bald and golden eagles are also migratory birds, so if you are in violation of BGEPA, you are violating MBTA.

“KILLING THREE BIRD LAWS WITH ONE STONE” For wind power projects where there is a Biological Opinion and Incidental Take Statement (ITS) under the ESA, the Service will not refer the incidental take of any such migratory bird for prosecution under the MBTA or BGEPA if such take is in compliance with the terms and conditions of the ITS. For wind power projects where there is a Biological Opinion and Incidental Take Statement (ITS) under the ESA, the Service will not refer the incidental take of any such migratory bird for prosecution under the MBTA or BGEPA if such take is in compliance with the terms and conditions of the ITS.

COMPLIANCE WITH MBTA AND BGEPA WITHOUT ESA-LISTED SPECIES No permits available for wind power. No permits available for wind power. Alternative is to prepare Migratory Bird and/or Raptor Protection Plan. Alternative is to prepare Migratory Bird and/or Raptor Protection Plan. Plan should include take/kill minimization and monitoring. Look to ITSs for bald eagles for terms and conditions and apply to golden eagles. Look to FWS Guidance. Write in ESA Sec. 9 avoidance for wind farms without federal nexus.

COMPLIANCE WITH MBTA AND BGEPA WITHOUT ESA-LISTED SPECIES Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines. Guidelines deal with everything from site selection to turbine design to monitoring.

GO SEE THE ANIMAL COPS BEFORE THEY COME LOOKING FOR YOU Present your Migratory Bird/Raptor Protection Plan to FWS Law Enforcement for your Region. In Region 6, contact Law Enforcement at Present your Migratory Bird/Raptor Protection Plan to FWS Law Enforcement for your Region. In Region 6, contact Law Enforcement at Seek a Memorandum of Agreement with FWS/LE whereby they agree to not prosecute any violations of MBTA or BGEPA as long as avoidance, minimization and monitoring efforts contained in protection plan are in place on site. Include ESA take avoidance measures on private lands.

Questions? Thomas R. Graf Thomas R. GrafAttorney Office of the Solicitor U.S. Department of the Interior 755 Parfet St. Suite 151 Lakewood, CO ph: (303) Ext. 551 fax: (303)