Document 7OGZDVN4N9qrjZm2mXbVBJwN6

private capital is being invested annually in wind energy, spurring economic activity in rural America, where it has an even greater impact. AWEA encourages DOI to protect greater sage-grouse and its habitat, while also ensuring conservation efforts do not impede economic opportunities from wind energy. We note that the development of wind energy can also help serve the goal of greater sage-grouse conservation. Climate change is an existential threat to billions of birds, including the sage-grouse. Wind energy and renewable energy in general play a critical role in mitigating climate change, as its production emits no greenhouse gases. This environmental contribution is an important factor that should not be overlooked when conservation measures are being evaluated that have the potential to significantly compromise wind energy's mitigation of climate change. Therefore, greater sage-grouse efforts that unduly burden the siting and operation of wind energy projects should be looked upon with caution given the benefits that the continued development of this energy source can have for greater sage-grouse, as well as other wildlife. The existing plans focus on habitat conservation that unnecessarily limits wind energy development on federal land through the designation of priority and general greater sagegrouse habitat (with exclusion and avoidance areas) and the establishment of buffers around leks. While the recommendations call for policy revisions that could broaden oil and natural gas development opportunities in areas designated in the Obama plans as "priority habitat management areas," the recommendations do not specifically discuss wind energy development therein. This a grave oversight as wind energy activity is also limited in these areas through significant "no-surface occupancy" requirements and other stipulations. As discussed below, the current research, (including additional research on the issue done since the plans were adopted), does not demonstrate a correlation between wind energy development and significant impacts to greater sage-grouse populations. 3 In light of these facts, we recommend that resource management plans be amended to adopt the risk- based and site-specific approach put forth in the U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines (WEGs) for wind energy development in greater sagegrouse habitat.2 The WEGs would serve as a more effective approach for evaluating wind energy's impacts on greater sage-grouse. Specifically, as there is already a DOI-approved regulatory mechanism (the WEGs) in place that addresses the interaction of wind development and species of concern, such as greater sage-grouse, wind energy projects should be exempted from the exclusion/avoidance approach taken by the previous Administration. The WEGs have the significant advantage of having already been issued by DOI. The WEGs also provide wind developers and DOI with greater flexibility to analyze the risk to greater sage-grouse from any particular wind project at any given time. As explained in more detail below, this site-specific approach is also likely to result in better conservation outcomes for greater sage-grouse populations. As DOI continues to manage greater sagegrouse populations through the protection and restoration of grouse habitat, we encourage DOI to investigate opportunities to provide additional waivers, modifications, and exceptions for activities in priority habitat management areas. We realize that our recommendations would likely entail plan amendments. However, we think these steps can be taken without sacrificing effective and durable measures that provide for the conservation of sage-grouse and ensure there is no need to list them under ESA in the future. While it will take many months, if not years, to amend the plans, such amendments will allow the plans to effectively protect greater sage-grouse without needlessly hindering wind energy development and, in turn, the jobs and economic opportunities that 2 Available at: http://www.fws.gov/windenergy/docs/weg_final.pdf. 4 flow from it. While plan amendments are under way, more immediate actions can be taken as recommended in the Report and highlighted in your Memorandum to the Secretary that accompanied the Report. AWEA will briefly address these actions in Section II.B, below. Finally, we note that one of the chief methods of achieving effective conservation that is not unduly restrictive is to enlist the wind industry as a partner in sage-grouse preservation and to fully realize the many benefits that the industry can offer, such as coordinating conservation partnerships that develop essential and much needed data, and supporting/developing conservation plans that utilize mitigation measures. Such measures can help the conservation of greater sage-grouse and avoid simply excluding wind development from much of the western United States without adequate science and data to justify such an outcome. II. Comments A. The DOI Should Ensure that its Sage-Grouse Policy does not Unnecessarily Impede Wind Energy Development When evaluating options under SO 3353, AWEA encourages DOI to make sure to avoid another "China Mountain" scenario. On March 7, 2012, the Bureau of Land Management (BLM) announced that it was deferring action on the 425 MW China Mountain project in Idaho and Nevada and was suspending work on the Federal Environmental Impact Statement (FEIS) pending completion of the Idaho/SW Montana sage-grouse FEIS and Resource Management Plan (RMP) amendments. These amendments were finally issued in 2015. By the time the action was deferred, BLM and the project proponent had spent over two years and a significant amount of money processing the application. The deferral killed the project prior to completion of the NEPA analysis or any assessment of related mitigation options. 1. The DOI Should Amend ARMPA/ROD provisions that Unnecessarily Impose Significant Costs on the Siting of Wind Energy 5 With the above in mind, AWEA respectfully requests that DOI amend the Approved Resource Management Plan Amendment (ARMPA)/Record of Decision (ROD) provisions that "unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, projection, utilization, transmission, or delivery of [wind] energy resources," consistent with EO 13783, Sec. 2(b). As written, the ARMPAs exclude new utility-scale (defined to mean greater than 19 MW) and commercial wind projects from 35 million acres of priority greater sage-grouse habitat on BLM and USFS lands.3 Wind projects are discouraged from being developed in another 32 million acres of general habitat, with priority given to projects that are outside this general habitat. This means that all 67 million acres of greater sage-grouse habitat managed by BLM and USFS are wind energy exclusion or avoidance zones. We note that wind energy development has a high potential throughout much of the greater sagegrouse's occupied range, including these priority and general habitat areas.4 In fact, more than 14 percent of this range has high potential for commercial wind power.5 Despite this high potential for commercial wind development, the Fish and Wildlife Service (FWS) expects these restrictions to remain in place for the next 20 to 30 years.6 In January 2014, AWEA commented on the burdens in the Nevada/ Northeastern California Draft Environmental Impact Statement (DEIS), among other land use plans. The ARMPA that was subsequently issued in September 2015 retained many of the burdens found in the DEIS. While this only represents one of 15 such greater sage-grouse ARMPAs, it illustrates AWEA's concerns across all of the ARMPAs and RODs. For example, Management Decisions (MD) and Required Design Features (RDF) that burden wind energy development in the Nevada/ Northeastern California plans include, but are not limited to the following: 3 See FWS not warranted listing decision, 80 Fed. Reg. 59858, 918 (Oct. 2, 2015) (Hereinafter "FWS 2015"). 4 FWS 2015 at 59917. 5 Id. 6 FWS 2015 at 59918. 6  State Plans SO 3353 is intended to enhance cooperation between the DOI and the sage-grouse states per section 1 of the order. As AWEA stated previously in comments, the State of Nevada's Alternative E was the best of all proposed alternatives on this matter. Nevertheless, the ARMPA rejected the state plan in favor of the BLM preferred alternative with a few modifications that did not assist development of wind energy.7 Priority Habitat Under the plans, priority habitat is a right of way (ROW) exclusion zone for commercial wind.8 General habitat has been designated as an avoidance zone.9 In short, vast areas are precluded from wind development, regardless of whether any potential risks can be mitigated. Utility Corridors As it stands, under the plans only previously identified utility corridors are allowed to remain in greater sage-grouse designated habitat.10 Except for grandfathered projects, transmission lines greater than 100 kV are to be avoided both in general and priority habitat areas, making it difficult to develop any energy projects in those areas.11 Travel Restrictions No new roads are allowed in priority habitat under the plans, except for public safety or federal agency access.12 Roads not designated in the travel management plans are to be closed and 7 ROD Sec. 3.1.7 and 2.4.2. 8 MD RE 3. 9 MD RE 5; RDF Gen 10. 10 MD LR 2. 11 MD LR 5. 12 MD LR 18; RFD Gen 1. 7 rehabilitated.13 This makes it virtually impossible to develop in those areas, as these roads are often required to construct and service projects. Lek Buffers14 Lek buffers are required at the following distances in the plans: roads, energy infrastructure, and surface disturbance must be 3.1 miles away; tall structures must be 2 miles away; and noise must be 0.25 miles away. As discussed further below, these buffers are not supported by science for wind. Strictly implemented, these lek buffers could either zone out or severely restrict land use activities across the entire planning areas. Further, the possibility of a lek moving in at the last minute and adding to a buffer for a project ready to begin construction is always a possibility. Recognizing the enormous economic impact of this decision, there are project-level exemptions. However, it is hard for developers to rely on whether justifiable departures to increase or decrease the specified distances will be approved, even if local data, landscape features, and other existing protections (including state regulations) support such a decision. Based on these factors, it is difficult for developers to predict how often agencies will grant lek buffer variances in general areas. Mitigation Mitigation provisions require perch preventers within four miles of active and pending leks.15 The plans also require and ensure mitigation that provides a net conservation gain to the species. This will be achieved by avoiding, minimizing, and compensating for impacts by applying beneficial mitigation standards. If, after applying this mitigation hierarchy, there is still habitat loss, then compensatory mitigation projects will be used to meet the overall standard. While a net 13 MD TTM 3; RDF CTTM 1. 14 Appendix B. 15 MD LR 17; RFD Gen 11, 20. 8 conservation gain was required by Solicitor Tompkins' Opinion, that opinion was subsequently revoked by M-Opinion No. M-37046 on June 30, 2017. The revocation of Secretarial Order 3330, through the issuance of Secretarial Order 3349, is a commendable step in the right direction toward domestic energy production. Sagebrush Focal Areas are de facto Areas of Critical Environmental Concern Sagebrush Focal Areas (SFA) were not included in the DEIS process; therefore, AWEA and others were not given the opportunity to comment on this issue. Because SFAs were not included in the DEIS originally, the DEIS needs to be supplemented for review but this has not occurred. A federal court in Nevada has remanded the FEIS back to the DOI for review of the SFAs.16 As such, this creates an optimal time to rethink the planning and utilization of SFAs, and we encourage the DOI to do so now. National Technical Team and Federal Advisory Committee Act There are obvious limits on the National Technical Team (NTT) with respect to representing all stakeholders. In fact, we believe that the NTT violated the Federal Advisory Committee Act (FACA). Further, many principal stakeholders did not support the NTT; for instance, the Western Association of Fish and Wildlife Agencies (WAFWA) did not endorse the NTT as the sole source of greater sage-grouse science. Moreover, whatever the state of the science at the time of the 2011 NTT report, it is no longer determinative for management actions in 2017 and beyond. To improve this situation and provide better feedback, there needs to be a broader inclusion of interested stakeholders in the evaluation of the existing management plans. The wind industry looks forward to working with the DOI and USFS as they consider reforms to the existing greater sage-grouse plans. 16 Western Exploration LLC et al. v. US DOI, Case No. 15-cv-491, 2017 WL 1237971 (D. Nev. Mar. 31, 2017). 9 2. Reconsider BLM IMs Section 4(b)(iv) of Secretarial Order 3353 calls for a review of the September 2016 BLM Instruction Memoranda for burdens on energy development. This includes a review of Instruction Memorandum (IM) No. 2016-145, Tracking and Reporting Surface Disturbance and Reclamation--inside and outside priority habitat. The IM implements a very complicated system to track surface disturbance, all predicated on the 2011 Report on National Greater Sage-Grouse Conservation Measures (NTT Report) and the findings in that report, which rely on extremely limited anthropogenic surface disturbance across all land ownership. This determination should be reconsidered in light of the lack of science on the issue. 3. Wind Energy's Impacts on greater sage-grouse The NTT Report determined that wind energy would have a negative impact on sage-grouse habitat and development.17 At the time of this conclusion, there was very little scientific or empirical studies of the actual impacts of wind energy development on any of the grouse species. Without adequate science on the actual impacts of wind energy development, BLM's land-use plans erroneously based their conclusions on the NTT Report's claims that wind energy development was a threat to greater sagegrouse populations. The NTT Report's conclusions about the negative impacts of wind energy development on greater sage-grouse were largely made by analogy to other development activities (e.g., oil and gas). However, studies from other activities should not be used to impose conservation measures on the wind industry. Wind development is not necessarily analogous to other development activities. All development that may impact sage-grouse is distinct and includes differing densities of roads, structures, and traffic, lighting, structures of varying heights, etc. It is not reasonable to just extrapolate impacts from one kind of development to a totally different kind of development or to just assume that 17 76 Fed. Reg. 77008 (Dec. 9, 2011) 10 Habitat Selection and Population Demographics in Southeastern Wyoming."19 The study did find that once sage-grouse eggs were hatched, the hens were likely to move their brood away from the turbine development; but this movement appeared to be more related to movement away from infrastructure generally rather than from the wind turbines specifically.20 In addition, a similar study found: "The relative probability of greater sage-grouse selecting brood-rearing and summer habitats decreased as percentage of surface disturbance associated with the facility infrastructure increased. We did not, however, detect a negative effect of the wind energy facility on nest site selection or on nest, brood rearing, or female survival during the study."21 Further, a study published in the Wildlife Society Bulletin in February 2017 entitled "Greater sage-grouse male lek counts relative to wind energy development" observed no negative effect on males attending lek areas that were greater than 1.5 km from the nearest wind turbine.22 A study in Utah done in 2016 found that transmission lines sited in areas of low quality winter habitat for sage-grouse did not appear to influence where the sage-grouse chose to roost in the winter.23 The study found that because the areas where the transmission lines were sited were already of low probability of use by the sage-grouse, the line had little to no impact on where the grouse population chose to live in the winter months.24 19 LeBeau, C., G. Johnson, M. Holloran, J. Beck, R. Nielson, M. Kauffman, E. Rodemaker, and T. McDonald. 2016. Effects of a Wind Energy Development on Greater Sage-Grouse Habitat Selection and Population Demographics in Southeastern Wyoming. Prepared for: National Wind Coordinating Collaborative, Washington, DC. Prepared by: Western Ecosystems Technology, Inc., Cheyenne, WY. January 2016. 20 Id at 65. 21 Greater Sage-Grouse Habitat Selection, Survival, and Wind Energy Infrastructure (PDF Download Available). Available from: https://www.researchgate net/publication/315812396_Greater_SageGrouse_Habitat_Selection_Survival_and_Wind_Energy_Infrastructure (2015). 22 Lebeau, C. W., et al., Greater sage-grouse male lek counts relative to a wind energy development, Wildl. Soc. Bull., 41: 17-26 (Feb., 2017). 23 Hansen, Erica P., Stewart, A. Cheyenne, Frey, S. Nicole, Influence oftransmission line construction on winter sage-grouse habitat in southern Utah, Human-Wildlife Interactions 10(2):169-187 (2016). 24 Id. 12 voluntary risk-based and site-specific approach, pursuant to the WEGs, while protecting greater sagegrouse. The existing resource management plans create sage-grouse conservation areas--exclusion and avoidance areas. Outside of exclusion zones, these management areas outline a suite of basic management activities that may, under certain conditions, or may not occur within a given area. In other words, the management areas represent a continuum that includes at one end a relatively restrictive approach aimed at providing a high level of protection to the species within "core" areas (which extend over the majority of potential wind development areas) and, on the other end, a relatively flexible approach to the remaining areas. While AWEA agrees that the conservation of greater sage-grouse habitat is key to the maintenance of the species, the conservation area approach may not be the best way to achieve this goal, as it tends to be both over- and under-inclusive depending on the area chosen (i.e., overly restrictive in some areas and potentially not restrictive enough in others). In other words, such an approach is not narrowly tailored to solving the problem (protecting greater sage-grouse populations) and, therefore, likely will unnecessarily hamper wind energy development without providing a corollary benefit to greater sage-grouse conservation in some instances. Further, a core area conservation approach (no development in certain areas) might also be unjustified in light of an increasing amount of scientific evidence suggesting wind energy's impacts are limited and can be mitigated (see section II. A. 3 above). Because there is already a DOI-approved regulatory mechanism (the WEGs) in place that addresses the interaction of wind development and species of concern, such as greater sage-grouse, the WEGs can provide wind developers and the DOI with greater flexibility to analyze the risk to greater sage-grouse from any particular wind project at any given time. This site-specific approach is likely to result in better conservation outcomes for greater sage-grouse populations and allow an evaluation of a 14 specific wind project's impacts on the species in all areas, rather than just crudely limiting development in certain areas based on a landscape-level planning process. Specifically, by incorporating the WEGs into the BLM approval process, wind energy projects should be exempt from the current exclusion and avoidance approach of greater sage-grouse management. Instead, the WEGs should be the process for analyzing the risk to greater sage-grouse from any particular wind project at any given time. When the FWS published the WEGs, the FWS said "when used in concert with appropriate regulatory tools, the Guidelines form the best practical approach for conserving species of concern," including, by name, sage-grouse. Employing the WEGs for wind energy development would create "smarter" siting of facilities with regard to impacts on greater sage-grouse and would provide greater flexibility for these developers. Based on recommendations from experts on the FACA committee that created the WEGs, the guidelines call for a tiered site-specific analysis to determine potential adverse effects of wind energy development on species of concern and their habitats. The tiered approach creates an iterative decision-making process for collecting information in increasing detail, quantifying the possible risks of proposed wind energy projects to species of concern and their habitats, and evaluating those risks to make siting, construction, and operation decisions. The WEGs site-specific analysis offers a better way to balance habitat preservation and economic wind development, both of which serve important policy goals, identifying both areas appropriate for positive economic development and sensitive areas requiring more study and mitigation than have otherwise been identified by the conservation areas approach. Unlike the current conservation area approach, the WEGs' comprehensive process ensures that the final decision regarding development in a potentially valuable habitat is based on sound scientific data, promotes consistency among sites, and helps ensure that an appropriate balance is struck between development and the risk it poses. 15 presence/absence of species whose behavior would cause them to avoid areas in proximity to turbines, roads, and other components of the project. The WEGs further state that the amount of habitat that is lost to indirect impacts will be a function of the sensitivity of individuals to the project, and the populationlevel significance of this indirect impact will depend on the amount of habitat available to the affected population. If the indirect impacts include habitat fragmentation, then the risk to the demographic and genetic viability of the isolated animals is increased. The WEGs explain that the results of Tier 3 studies should provide a basis for identifying measures to mitigate significant adverse impacts predicted for species of concern. In cases of uncertainty with regard to impacts to species of concern, additional studies may be necessary to quantify significant adverse impacts and determine the need for mitigation of those impacts. The WEGs also conclude that when significant adverse impacts cannot be fully avoided or adequately minimized, some form of mitigation may be appropriate to address the loss of habitat value. Specific procedures, mitigation measures and best management practices (BMPs) described in the WEGs could also be tailored to the various types of projects as necessary to ensure appropriate measures are taken to avoid, minimize, and mitigate impacts that will vary by project type, thus encouraging development that will not be adverse to greater sage-grouse conservation to the fullest extent possible. The adoption of the BMPs would also ensure that potentially adverse impacts to the species and its habitat are reduced in a consistent manner across all sites. Tier 4 - Post-construction Studies to Estimate Impacts Tier 4 post-construction studies would assess "whether predictions of fatality risk and direct and indirect impacts of [greater sage-grouse] were correct." Methods and protocols in this tier are designed to assess both direct greater sage-grouse mortality and direct and indirect impacts to its habitat loss and fragmentation. Tier 5 - Other Post-construction Studies and Research 17  AWEA supports enhanced policy and training broadly for collection and use of monitoring data as it relates to lek locations, lek viability status, predators, fire rehabilitation, and the other factors needed to monitor sage-grouse lifecycle habitat with respect to other activities. Monitoring data can establish highly relevant trends that can be used during preliminary wind energy site evaluations and subsequent site characterizations of the type required in Tier 1 and 2 of the WEGs. AWEA supports adaptive management. DOI's regulation at 43 CFR Sec. 46.145 directs all bureaus, offices, and services within DOI to use adaptive management in concert with monitoring to make adjustments in subsequent implementation decisions. Adaptive management comports with the WEGs' post-construction studies and research (Tier 4 and 5). Streamlining use authorizations with little impact on sage-grouse is a laudable and necessary goal. However, until DOI abandons the ill-conceived 2015 wind energy exclusion and avoidance zones that encompass all sage-grouse habitat, all wind energy use authorizations will be presumed to impact sage-grouse. This illustrates the compelling need for the tailored, scientific, site-specific approach embedded in the WEGs. Compensatory mitigation, the lowest tier in the 5-tier mitigation hierarchy, can be an important tool when mitigation is not achieved first through avoidance, minimization, rectification, or reduction and elimination of impacts. 40 CFR. Sec. 1508.20. AWEA supports DOI's clarification of the appropriate use of compensatory mitigation and consistency with state mitigation programs. AWEA addressed Sagebrush Focal Areas in its comments, above. DOI is under a federal court order to investigate SFA's further under NEPA. This is an opportune time to 19 reconsider their modification or removal, together with the current NEPA analysis of the proposed mineral withdrawals in SFAs. III. Conclusion For the above reasons, AWEA supports the intent of Secretarial Order 3353 and the subsequent recommendations based thereon and believes this effort represents an opportunity to promote domestic wind energy development goals in a real and meaningful way, while conserving greater sage-grouse. AWEA stands ready to answer any questions you may have and looks forward to working further with the Department of the Interior on these issues. Sincerely, Gene Grace Senior Counsel Michael Speerschneider Senior Director, Permitting Policy and Environmental Affairs Tom Vinson Vice President Federal Regulatory Affairs American Wind Energy Association Suite 1000 1501 M Street NW Washington, DC 20005 Phone: (202) 383-2500 Fax: (202) 383-2505 E-mail: ggrace@awea.org 20