Legal Issues Affecting Wind Energy
Federal Nexus: Public Lands.
• On public land, Federal funding, Federal permit, Federal power grid > 50 MW (WAPA, Bonneville).
– ESA applies.
• S.7 consultation required under law.
–MBTA applies. – Bald Golden Eagle Protection Act applies. – NEPA review applies. – Federal Cave Resources Protection Act – bats.
• Has to be Federally-designated cave on Federal lands. • Not allowed obstruct cave entrance. • FWS has some authority.
• On private land w/ no Federal permits, funding, power grid.
– ESA voluntary, however S.9 “taking” could be issue for proponent.
• Suggest company/consultant contact local ES Field Office for guidance under S.9 and S.10. Ask for list request to begin process.
– MBTA. Strict liability statute.
• No consultation process. • Don’t issue “incidental” or “accidental take” permits. • Suggest proponent use conservation measures to address problem/potential problem. • Enforcement and investigative discretion. • Company that refuses to use proven conservation measures/blows us off gets attention OLE if problem results.
– BGEPA. Wanton disregard. Not strict liability.
• No consultation process. • No “incidental take” permits.
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