By Sara Orr and Bobbi-Jo Dobush
On July 7, 2016, the US Fish and Wildlife Service (FWS) announced its Record of Decision (ROD) for the Upper Great Plains Wind Energy Programmatic Environmental Impact Statement (PEIS). This is the final step in a process that US FWS, along with Western Area Power Administration (Western), embarked upon in 2010 to streamline the environmental review process for wind energy projects in the Upper Great Plains (UPG). The process applies to wind energy projects in Iowa, Minnesota, Montana, Nebraska, North Dakota, and South Dakota that would interconnect to Western’s transmission facilities or require the US FWS to consider an easement exchange to accommodate placement of project facilities.
Western, which is responsible for marketing and delivering wholesale power in the western United States and is the joint lead agency on the PEIS, announced its ROD adopting Alternative 1 on August 26, 2015. Eleven months later, US FWS made its final decision and also adopted Alternative 1 of the PEIS which supports US FWS participation in easement exchanges for wind development and provides for expedited environmental reviews (including review pursuant to the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA)) if developers follow specified best management practices, minimization and mitigation measures. Now that US FWS has issued its Record of Decision, it may implement the PEIS when permitting wind energy projects involving easement swaps within Western’s Upper Great Plains region.
In response to increasing demand for wind energy, US FWS and Western began collaborating on a programmatic study of environmental impacts in the Upper Great Plains in 2010. US FWS and Western cooperatively prepared the PEIS to (1) assess the potential environmental impacts associated with wind energy projects within the UGP Region that would interconnect to Western’s transmission system; (2) assess the impact of potential placement of project elements on grassland or wetland easements managed by US FWS; and (3) evaluate how environmental impacts would differ under alternative sets of environmental evaluation procedures, best management practices, avoidance strategies, and mitigation measures that the agencies would request project developers to implement for wind energy projects. Four alternatives, including the No Action alternative, were analyzed in the PEIS. The agencies also engaged in an informal Section 7 ESA consultation and prepared a Programmatic Biological Assessment for listed and candidate species.
Both agencies ultimately adopted the “Programmatic Regional Wind Energy Development Evaluation Process” (Alternative 1), the agency preferred alternative, as their final decision.
Alternative 1 allows US FWS and Western to create a standardized process for collecting information and reviewing the environmental impacts of wind energy requests in the UPG. Specifically, the PEIS functions as a template for evaluation of subsequent wind energy projects. US FWS will still process and evaluate requests for easement exchanges separately on a case-by-case basis and NEPA analyses will still be required by the agencies, but the project-specific NEPA evaluations will “tier off” or build upon the analyses in the PEIS. This approach is intended to facilitate a quicker and less costly permitting process for wind energy developers. In addition to providing a faster environmental review, the practices outlined in the publicly-available PEIS will allow developers to self-assess potential environmental concerns in their area prior to initiating the permitting process, which will lead to less administrative backlog for the agencies, and in turn lead to more expedited site-specific NEPA review.
The PEIS also provides that future project-specific ESA Section 7 consultation beyond the programmatic consultation would not be required for projects that otherwise comply with the BMPs, minimization, mitigation and monitoring measures established in the PEIS. This tiered approach would also facilitate a more efficient ESA consultation process and potentially avoid the need for a Biological Opinion, the preparation of which is extremely labor-intensive for agencies and developers. Examples of such BMPs and mitigation measures include utilizing existing infrastructure where possible, developing a monitoring plan prior to start of construction, and using a five-tiered, risk-based approach to evaluate project-specific concerns.
Now that both Western and US FWS have issued their RODs, wind energy developers in the Upper Great Plains will have more certainty with respect to the environmental review permitting process. Though litigation challenges to the issuance of the final US FWS ROD could be filed by third parties, the information in the PEIS will help the agencies and developers with planning in this six-state region, and developers who require interconnections or easement exchanges will benefit from a more efficient, consistent, and structured permitting process. If developers do not wish to implement the evaluation process, BMPs, or mitigation measures, either a separate consultation or NEPA evaluation that does not tier off the analyses in the PEIS would be required, as appropriate. Furthermore, consultations with Native American tribes and appropriate agencies pursuant to Section 106 of the National Historic Preservation Act, along with other environmental approvals, would still be required.
Read more information on other USFWS wind energy initiatives:
US FWS Releases Draft Midwest Wind Energy Multi-Species Habitat Conservation Plan
This post was prepared with the assistance of Andrew Dane in the San Diego office of Latham & Watkins.
 81 FR 44324-01. The PEIS can be found at 80 FR 24914.
 Western is one of the four power marketing administrations within the Department of Energy.
 80 FR 51800. Agency policies take effect when they are formally announced in the Federal Register. Thus, Western has been relying on the PEIS for its projects since last August. The FWS ROD was announced on July 7, 2016 and thus has only been in effect for FWS projects for a matter of days.
 “Tiering from EISs refers to the process of addressing a broad, general program, policy, or proposal in an EIS and analyzing a narrower site-specific proposal, related to the initial program, plan, or policy in a subsequent NEPA document.” Final EIS, Volume I, ES-6.
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