It should not be surprising that the Endangered Species Act,  which works to protect threatened and endangered plants and animals and the habitats in which they are found, prohibits the “take” (i.e., the harassing, wounding, or killing) of listed species through direct harm or habitat destruction. However, the U.S Fish and Wildlife Service may issue Incidental Take Permits (ITPs) for the “incidental take” of endangered and threatened wildlife species. ITP holders can proceed with an activity that is legal in all other respects (such as the construction of wind farms) but which results in the incidental taking of a listed species. ITP applicants develop Habitat Conservation Plans (HCPs) to minimize and mitigate harm to the impacted species during proposed projects. If no HCP is developed and no ITP is obtained, the “taking” of a listed species is a direct violation of Section 9 of the Endangered Species Act.
Certain wind developers are taking steps to prepare for the inevitable unfavorable interactions between certain bird species and wind farms in the American Great Plains. The Wind Energy Whooping Crane Action Group (WEWAG) is a consortium of 19 wind developers gathered for the purpose of developing a HCP to manage the impacts of large scale wind development on multiple bird species, including the whooping crane and lesser prairie chicken.
Put simply, following the HCP will keep these developers out of trouble when their activities (such as the construction and operation of wind turbines, transmission lines, or other property associated with renewable energy) harass, harm, or kill a threatened or endangered species.
The area of WEWAG’s concern stretches from the gulf coast of Texas to the North Dakota/Canadian border. The ITP would serve to protect WEWAG members from any incidental take associated with their utility-scale wind power developments in that area. More information on the permitting process can be found here.
 16 U.S.C. §1531 et seq. (1973)
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.