Clearer Rules On Mitigation Needed To Boost Renewable Energy Projects

Kelli Barrett and Genevieve Bennett

The Obama administration’s pledge to ramp up renewable energy can be accomplished only if it is in coordination with the mitigation efforts for habitat and species impacts.  But right now mitigation rules are a patchwork of good, bad, and just plain confusing. Here is a rundown on the complex state of compensatory mitigation and renewable development. 

The Obama administration’s pledge to ramp up renewable energy can be accomplished only if it is in coordination with the mitigation efforts for habitat and species impacts. But right now mitigation rules are a patchwork of good, bad, and just plain confusing. Here is a rundown on the complex state of compensatory mitigation and renewable development.

5 August 2013 | The sun shines on the vast terrain of the Mojave Desert in the southwest US almost every day of the year, making this flat land a seemingly perfect spot for solar power development.

Except for the fact that the Mojave Desert provides habitat for a number of plants and wildlife, some of which are endangered, and installing solar panels could be putting the ecosystem in jeopardy.

Renewable energy like solar and wind power can offer huge benefits in terms of reducing harmful greenhouse gases in the atmosphere and minimizing the impacts of climate change. US President Barack Obama’s recent climate change plan highlights renewables with ambitious goals. These targets include doubling the amount of electricity generated by wind and solar power by 2020 and generating 3 gigawatts of renewable energy on military installations by 2025, according to the plan.

But these goals will only be achieved if they are in line with mitigating wildlife impacts. Several clean energy projects are currently stalled over endangered species permitting requirements and Obama’s plan doesn’t take any steps to clarify, systematize or standardize this permitting process.

When a landowner develops a piece of land, ecosystems that are unavoidably disrupted or ruined must be replaced through compensatory mitigation. But compensatory mitigation laws are complex and, as of right now, in no condition to take on the expected rise in renewable energy projects due to Obama’s recent push. A balance is needed between preserving species’ habitat and natural areas and developing the renewable energy industry. If this issue isn’t resolved, then valuable and beneficial clean energy projects won’t get past the permitting phase or negative ecological impacts will occur in the developed areas.

Scaling Up Renewables and Impacts on Wildlife

According to the International Energy Agency (IEA), renewable power will be the second most used source of energy by 2016. The Obama administration’s 2014 budget commits to a 30% funding increase for clean energy technology. Since 2009, the administration says it has approved 25 utility-scale solar facilities, 9 wind farms and 11 geothermal plants, which will provide electricity for 4.4 million homes.

To date, the majority of wind projects have happened on private land. This most likely will change due to Obama’s new plan which calls for developing projects on public land. It directs the Department of Interior (DOI), which includes the Bureau of Land Management (BLM) that administers public land, to permit enough renewable energy projects to power 6 million homes. The BLM estimates there are 20.6 million acres with wind energy potential, and 29.5 million acres suitable for solar energy development.

As of August 2011, the BLM received over 300 right-of-way (ROW) applications, which authorizes the use of a piece of public land for a specific activity over a period of time, for utility-scale solar facilities. In 2010, the BLM received 199 applications for solar projects.

What this expansion of the renewables industry means for wildlife varies between region and sector. The sheer size of the utility-scale solar projects cause habitat loss and fragmentation. Some proposed solar developments could impact over 8,000 acres of desert habitat, according to a report by the environmental non-profit, Defenders of Wildlife. Habitat loss and fragmentation causes species to live on smaller parcels of land – often of a lower quality – where it is more difficult for them to find necessities like food, water and shelter. The desert tortoise population, for instance, of the Mojave Desert has declined by 90% since the 1980s due to loss of hospitable habitat, predators and disease.

Wind energy development fragments and reduces the quality of habitat as well. It also disrupts the population distribution of an area by creating perching spots for birds like eagles and hawks which causes grassland birds – like the lesser prairie chicken – to move away from the area. The turbines themselves can be a threat to species also. Birds and bats have been killed flying into them.

Both forms of renewable energy disrupt vegetation and require access roads and transmission infrastructure that impacts the ecosystems and species.

The State of Mitigation

Regulators and developers have focused on avoiding and minimizing impacts to date; mitigation remains relatively rare. This is in part because there isn’t much of a regulatory structure when it comes to renewables’ impacts on wildlife, according to a study on wind development and mitigation from the University of Wyoming. In order for a ramp-up of renewables to be successful, a regulatory structure that solves many of the challenges facing the industry remains to be laid out.

Another challenge is figuring out how much mitigation is going to cost when impacts aren’t well understood at the outset. There aren’t many publically-available numbers out there, but existing data suggests a range from the very high to the pretty reasonable.

It’s estimated, for example, that the Ivanpah solar thermal project in the Mojave Desert spent upward of $60 million in mitigating the project’s impact on the desert tortoise, according to Solar Industry magazine.

Meanwhile, a 2011 study researching the impact of wind energy development on Kansas wildlife habitat found mitigation costs for impacts to various grasslands – prime habitat for prairie chickens – would cost between $825 to $1,432 per hectare. The Kansas study also found that the cost of wind turbine development is roughly $4 million per turbine, so the median cost of mitigation is roughly equal to 0.57% of development costs.

A lot of land is required in developing renewable energy, and thus a lot of land will be involved with mitigating its impacts. For example, with a mitigation ratio of 3:1, 3 units of mitigation is required for every unit of impact to habitat or a wetland – meaning a lot of land will be needed to compensate for renewables.  

For instance, the solar power project, Palen, created by BrightSource Energy, is located on 3,800 acres in Riverside County, California. A lot of this land is prime desert tortoise habitat. The mitigation ratio for critical habitat is 5:1 and 1:1 for land outside the critical zone, according to a report by the California Energy Commission. BrightSource Energy will have to buy 4,683 acres of comparable desert tortoise habitat to mitigate their impacts.

In certain regions, it may be difficult to find enough high-quality habitat for mitigation. Prime land for projects often overlaps with prime habitat, after all.

Perhaps nowhere is this better illustrated than at the  Sweetwater River Conservancy  in Wyoming, which was turned into a mitigation project after initial plans to use the site for wind energy. It turned out much of the area suitable for wind was also habitat for the greater sage-grouse. The sage-grouse is a candidate for listing under the Endangered Species Act, and thus potentially a major trigger for mitigation requirements. Learning this, the developer switched to creating a mitigation bank that aims to serve the wind industry, generating conservation bank credits that other developers can use to offset their own habitat impacts.

For Project Developers, Uncertainty Everywhere

In every region, scientific and regulatory uncertainties make it difficult to evaluate sites for renewable projects as well as for environmental impacts. These uncertainties slow down permit approvals for projects on both public and private land, and mean that it’s difficult to tell whether effective mitigation is actually taking place.

The impacts themselves are another source of confusion. Outside of threats to bats and the songbird and raptor bird types, little is known about the impacts these energy projects are having. The majority of studies done so far on the topic focus on those species. Other species and indirect impacts aren’t well understood yet, making it hard to plan for or perform proper mitigation – another factor in slow permitting processes.

And the regulatory guidance on mitigation itself is often unclear and inconsistent. There are inconsistencies in the rules for compensatory mitigation as well as in the process to complete an environmental statement and in determining acceptable impacts. Importantly, guidelines for choosing the appropriate level of mitigation and the type of mitigation seem to be missing. For example, conservation banking can potentially offer the highest-quality of mitigation but it isn’t always listed as an option for developers to choose from when deciding on a mitigation type.

In fact, a 2012 study  from the University of Wyoming found just twelve cases of compensatory mitigation for wind in the United States to date, and only one which used conservation bank credits to mitigate impacts – more commonly, the developer established conservation areas on their own lands , purchased conservation easements off-site, or paid public agencies or NGOs for conservation actions.

Aside from guidance and impact issues, the actual “first come, first serve” process that the BLM uses to screen applications may also be contributing to the slow down and preventing projects with a high potential for success from being approved. According to the Defenders of Wildlife report, project developers submit an application for a right-of-way to the BLM and keep their spot in line for project reviews by continuing to pay a fee. The quality of the projects isn’t considered as they are in other energy development sectors like oil and gas. Both of those industries use competitive leasing where interested parties bid for a lease to develop on public lands. This may be a more efficient and effective alternative to managing renewable projects, the report says, especially when considering the minimal requirements to qualify for a right-of-way.

Is it possible to simply choose sites for wind and solar projects where impacts will be minimal? Well, maybe. The Kansas study found that  of 14.5 million hectares suitable for wind energy development in the state, 7.6 million hectares would likely require compensatory mitigation given the presence of sensitive habitat, and another 4.2 million hectares should be avoided entirely – leaving just 2.7 million hectares where neither avoidance, minimization, nor mitigation would be required.  Whether energy development will actually take place in those areas, and whether they’ll be sufficient to meet future demand, is an open question.

Making Progress

The BLM has expressed interest in establishing a process to use competitive leasing for wind and solar development. They are currently using it for geothermal projects.

The BLM also proposes creating regional mitigation frameworks for ‘Solar Energy Zones’ – areas identified as best suited for solar energy projects. These plans, says the BLM, will address mitigation for a variety of spaces such as biological, ecological and cultural, and will simplify and improve mitigation for future solar projects. Mitigation banking is one of several options the BLM proposes.

An innovative initiative moving forward in California is the Desert Renewable Energy Conservation Plan (DRECP). The DRECP is a collaborative effort between state and federal actors that aims to streamline the permitting process for renewable projects while providing binding, long-term endangered species permit assurances. The DRECP covers 22 million acres of the Mojave and Colorado Deserts in California spanning seven counties. But the effort is moving slowly. A draft of the DRECP is expected to be available for public review this year, and approval is expected next year.

Similarly, the BLM is developing an initiative that would also streamline approval and enable strategic planning for conservation at a higher level. The Programmatic Environmental Impact Statement  (PEIS) is designed to evaluate utility-scale solar power as well as develop and implement environmental policies and mitigation strategies. The project is prepared by the BLM and several other government agencies, including the Office of Energy Efficiency and Renewable Energy (EERE). It will facilitate solar development in six western states: California, Arizona, Nevada, Colorado, New Mexico and Utah.

The PEIS draft mentions the difficulties of mitigating habitat and wildlife disturbances. While compensatory mitigation isn’t widely discussed in the draft, it is listed as one of the potential strategies. The BLM says it would be used for unavoidable impacts.

Wind development lags behind solar in terms of clear rules regarding compensatory mitigation and streamlining the permitting process. A 2012 National Fish and Wildlife Service report on wind development says little about compensatory mitigation. Guidance from BLM  makes little mention of compensatory mitigation, keeping the emphasis on minimization and avoidance.

Wind energy located on federal lands must carry out an Environmental Assessment/Environmental Impact Statement under the National Environmental Policy Act. If the project affects endangered species or wetlands, there are also mitigation requirements under the Endangered Species Act (ESA) or the Clean Water Act. One way to comply with the ESA is with a Habitat Conservation Plan (HCP) which is an agreement between the developer and the government. The project developer agrees to design, implement and fund a plan that minimizes harm to species impacted by the project.

One such plan, the Midwest Wind Energy Multi-Species Habitat Conservation Plan (MSHCP), was developed to create a regional solution to the potential risk of wind projects for birds and bats species-particularly the Indiana bat. The states – Illinois, Michigan, Indiana, Iowa, Minnesota, Missouri, Wisconsin and Ohio – contain a lot of wind power perfect for renewable energy projects.

The MSHCP aims to enhance conservation while streamlining compliance with the ESA. Species covered under the plan include several bat types like the gray bat, little brown bat and the northern long eared bat as well as the Indiana bat. The bald eagle is considered covered under the plan as is other bird types like the least tern and the piping plover.

The MSHCP does allow for conservation bank credits to be used for compensatory mitigation. The plan will publish a public draft this fall with a final draft due out in the spring of 2014.

What Needs to Happen

Moving forward, smart landscape level planning will be needed to make good siting decisions where impacts will be low or completely avoided. Regional conservation plans like the Desert Renewable Energy Conservation Plan can streamline approval while aligning renewable development with conservation goals.

Where impacts are unavoidable, then clear high level policy is needed with better guidance that drives developers toward high-quality mitigation. If conservation banks are delivering superior ecological outcomes, for instance, they should be prioritized as they are under the Army Corps of Engineers’ Final Rule on wetland mitigation. Right now, conservation bankers may be eyeing the market but hesitant to develop credits – a clear signal from regulators would likely be appreciated.

Regulatory certainty, of course, needs to be coupled with scientific certainty. A better understanding of exactly how renewables – and in particular wind energy – impact species and habitats would go a long way toward providing clear permitting requirements and guidance for developers, and maybe help to replace some of the heated politics around wind turbines with hard evidence.

One thing is for certain: Obama’s big plans for renewables are about to put an already overloaded permitting system to the test.  

Kelli Barrett is a freelance writer and editorial assistant at Ecosystem Marketplace. She can be reached at [email protected]. Genevieve Bennett is a Senior Associate at Ecosystem Marketplace. She can be reached at [email protected].

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