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Solar Biological Resource Assessment Overview (12)

Federal and state laws protect certain biological resources from particular impacts. Each project will be required to assess the impacts it may have on protected flora and fauna as well as impacts on their habitat. State level protections may be even more stringent - protecting more species and habitat - than federal laws. It is critical to consult with area experts early in order to determine whether a conflict with species can be avoided by choosing an alternative site for development. It may also be helpful to determine a time of year for development that does not conflict with wildlife. Early consultation is the primary method of determining the most advantageous site and time for development in order to avoid issues with protected species and avoid delay in processing environmental analysis. Typically developers consider migratory birds, bald and golden eagle habitat, protected marine mammals and endangered and threatened species. The candidate species category is also an emerging area of concern. The greater sage-grouse (a candidate species) in particular has caused delays in development and in some cases foreclosed particular areas for energy development. See Greater Sage-Grouse Populations and Energy Development in Wyoming article and the BLM webpage on sage-grouse.

Biological Resource Assessment Overview Process

12.1 Conduct Preliminary Screening To Identify Potentially Affected Biological Resources

Developers should use some mechanism to conduct a preliminary screening that identifies biological resources that may be affected by the project. For example, the Western Governors' Association (WGA website) has a Crucial Habitat Screening Tool (CHAT), available at the CHAT website. While not mandatory, this step can help identify major biological issues at the outset that could critically affect the project. In addition, conducting a preliminary screening can support a finding that subsequent biological surveys are unnecessary, although the Fish and Wildlife Service (FWS) must concur.

12.2 - Conduct Biological Surveys as Needed To Identify Potentially Affected Biological Resources

By regulation, a biological assessment is prepared for "major construction activities" considered to be federal actions significantly affecting the quality of the human environment as referred to in the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). A major construction activity is a construction project or other undertaking having similar physical impacts, which qualify under NEPA as a major federal action. Major construction activities include dams, buildings, pipelines, roads, water resource developments, channel improvements, and other such projects that modify the physical environment and that constitute major federal actions. As a rule of thumb, if an Environmental Impact Statement is required for the proposed action and construction-type impacts are involved, it is considered a major construction activity.

A biological assessment is required if listed species or critical habitat may be present in the action area. It is optional if only proposed species or proposed critical habitat is involved. However, if both proposed and listed species are present, a biological assessment is required and must address both proposed and listed species. An assessment may be recommended for other activities to ensure the agency's early involvement and increase the chances for resolution during informal consultation.

(Section 7 Consultation Handbook)

12.3 - Confirm Survey Protocol; Supply Species List

The Fish and Wildlife Service must confirm the survey protocol, and supply a species list to the developer.

12.4 to 12.5 - Is There Potential for the Activity To Take Migratory Birds or Eggs?

The developer should consult with the FWS to determine the presence of migratory birds and habitats that could potentially be impacted by the proposed activities for birds of conservation concern.

A list of bird "Species of Concern" identified by the US FWLS Migratory Bird Program Strategic Plan 2004-2012 can be found as an attachment to BLM's Instruction Memorandum.

In addition, although not currently mandated by law – the FWS is also using a similar assessment and permit process where the project may result in the taking of bats. Thus, developers with projects in areas that may result in the taking of bats are encouraged to consult with the FWS.

Migratory Bird Considerations:

12.6 to 12.7 - Are There Any Bald or Golden Eagle Activities Present at the Project Location?

If the proposed project location contains a nesting or wintering bald or golden eagle, then the developer will be required to obtain a Bald & Gold Eagle Permit. In addition, any evidence of bald or golden eagle activities at the project location will likely require a Bald and Golden Eagle Permit. Bald & Golden Eagle Permit:

12.8 to 12.9 – Is There Potential for the Activity To Impact Essential Fish Habitat (EFH)?

Where the project could impact fisheries identified as Essential Fish Habitat, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, the authorizing agency is required to submit an Essential Fish Habitat (EFH) Assessment to NOAA’s National Marine Fisheries Service.

12.10 to 12.13 - Is There Potential To Impact Marine Mammals or Their Habitats?

The Marine Mammal Protection Act (MMPA) placed a moratorium on the taking of marine mammals, with limited exceptions. Section 101(a)(5)(A) of the MMPA authorizes the National Marine Fisheries Service (NMFS) or the FWS, depending on the type of marine mammal affected, to issue permits for the "incidental, but not intentional, taking by citizens while engaging in that activity within that region of small numbers of marine mammals of a species or population stock..." Permits may be issued if the appropriate agency finds that the total expected takings during a specific activity (other than commercial fishing) will have a negligible impact on the species and will not have an unmitigatable adverse impact on the availability of these species for subsistence use by Alaska Natives.

The FWS has jurisdiction over species such as manatees, sea otters, polar bears, and Pacific walruses. The NMFS has jurisdiction over most other marine mammal species, including pinnipeds other than those under the jurisdiction of the FWS (seals, sea lions), and all cetaceans (porpoises, dolphins, and whales).

The developer should contact the appropriate FWS or NMFS office to discuss conclusions and obtain guidance in preparation of a request for incidental take authorization. Requests for incidental take authorization for marine mammals under the jurisdiction of the USFWS are handled in the appropriate Field Offices in coordination with the Regional Office. For marine mammal species under the jurisdiction of NMFS, the request is handled through Headquarters in Silver Spring, MD.

National Marine and Fisheries Service- Marine Mammal Protection Act Incidental Harassment Authorization Process:

Fish and Wildlife Service- Marine Mammal Protection Act Incidental Harassment Authorization Process:

12.14 to 12.15 – Are There Federal Listed Species or Critical Habitats?

Under the Endangered Species Act, the term ‘‘endangered species’’ means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man.

Under the Endangered Species Act, federal agencies are required to conduct a Biological Assessment to ensure that any actions they undertake do not jeopardize the existence of any listed species. If a listed species or critical habitat is likely to be affected, the agency must provide the Fish and Wildlife Service with an evaluation on the likely effects of the action.

12.16 - ESA Section 7 Consultation

If there is a federal nexus, then the developer will be required to undergo a Section 7 Consultation. Any federal nexus (federal involvement) is sufficient to federalize a proposed action. Examples of actions with a federal nexus are as follows:

  • Actions on federal land;
  • Actions that require a federal permit (such as a wetland permit);
  • Actions that require a federal license; and
  • Actions using federal funds.

ESA Section 7 Consultation:

12.17 - ESA Section 10 Take Permit

If there is not a federal nexus, then the developer will be required to obtain a Section 10 Take Permit.

ESA Section 10 Take Permit:

12.18 – Consult Lead Agency To Determine if There Are Other Biological Concerns

Even where there is seemingly no potential for the project to affect migratory birds, bald or golden eagles, marine mammals, federally listed species or critical habitats, developers should consult with the lead agency, either FWS or NMFS, to ensure that the project does not pose a threat to any other biological resources as mandated by law or regulation.

12.19 - State Biological Resource Assessment Process

State-level restrictions on biological resources can be more stringent than the federal rules. Thus, developers must consult applicable state rules for biological resource considerations.

State Biological Resource Considerations:

California Fish and Game Process:

State Fish and Wildlife License Conditions and Recommendations:

Habitat Conservation Plan and Incidental Take License:

State Biological Resource Considerations:

State Biological Resource Considerations:

State Biological Resource Considerations:

State Biological Resource Considerations:

State Biological Resource Considerations:

State Biological Resource Considerations:

State Biological Resource Considerations:

Live Wildlife Taking Permit: