Incidental Take Under the Migratory Bird Treaty Act and How to Share the Skies

This Note will focus on one piece of legislation that can protect birds from wind turbines: the Migratory Bird Treaty Act of 1918 (“MBTA” or “the Act”). The MBTA makes it illegal to hunt, kill, capture, import, export, sell, buy, pursue, possess, transport, or take a bird on the list of protected species, which covers hundreds of types of birds as well as their nests and eggs. The law forbids these acts in any manner, by any means, and at any time. The text itself does not explicitly state whether intentional and unintentional acts should both carry liability, which has caused stark discrepancies between judicial circuits that cannot logically coexist. One interpretation must eventually win the day. The one that will promote biodiversity conservation and provide more certainty to facilitate renewable energy development is also the one that most aligns with the statute’s plain text: that the MBTA covers unintentional takings. This abstract has been taken from the author\u27s introduction

In-Lieu Fee Program Case Studies: Lessons Learned for Potentially Expanding In-Lieu Fee Habitat Coverage in Virginia

This white paper contains case studies of coastal ILF [in-lieu fee] programs across the United States: Maine Natural Resources Conservation Program (“MNRCP”), Northwest Florida Water Management District (“NWFWMD”) ILF Program, Keys Restoration Fund (“KRF”), Sacramento District California ILF Program, Maryland Department of the Environment ILF Program, and Virginia Aquatic Resources Trust Fund (“VARTF”). The Conclusion will provide general recommendations and questions to consider in deciding whether and how to implement an in-lieu fee program for wildlife habitats in Virginia. Each program has a unique regulatory structure and method for selecting projects on which to spend their funds. The programs do tend to face similar challenges and provide similar benefits. Common challenges include securing buy-in from private landowners and completing the state and federal permit processes for mitigation projects by the third growing cycle after selling credits. Despite these frequent hurdles, program sponsors have observed that the programs streamline the permitting process for developers, which reduces the cost of building new projects. ILF programs allow for larger, more impactful mitigation projects, instead of proceeding by a piecemeal approach where the permittees must compensate for only their own environmental impacts. This abstract has been taken from the authors\u27 introduction

Siting Wind Energy Projects in Virginia: Recommendations for Addressing National Security Concerns through State Permitting Processes

This white paper first explains the federal and state wind energy siting approval processes and the military’s current involvement in those processes. In particular, the paper focuses on permit-issuing agencies as opposed to policy-making agencies. Parts I and II outline the federal and state permitting process, respectively. In Part III, the paper discusses the military’s concerns regarding wind energy siting. Part IV moves to the current status of Virginia’s onshore and offshore wind industries. Part V analyzes two case studies: Block Island Wind Farm in Rhode Island and the Pantego Wind Energy Facility in North Carolina. Finally, Part VI synthesizes recommendations to better incorporate Department of Defense (DoD) input into offshore and onshore wind energy siting decisions in the Commonwealth. This abstract has been taken from the authors\u27 introduction

Incidental Take Under the Migratory Bird Treaty Act and How to Share the Skies

This Note will focus on one piece of legislation that can protect birds from wind turbines: the Migratory Bird Treaty Act of 1918 (“MBTA” or “the Act”). The MBTA makes it illegal to hunt, kill, capture, import, export, sell, buy, pursue, possess, transport, or take a bird on the list of protected species, which covers hundreds of types of birds as well as their nests and eggs. The law forbids these acts in any manner, by any means, and at any time. The text itself does not explicitly state whether intentional and unintentional acts should both carry liability, which has caused stark discrepancies between judicial circuits that cannot logically coexist. One interpretation must eventually win the day. The one that will promote biodiversity conservation and provide more certainty to facilitate renewable energy development is also the one that most aligns with the statute’s plain text: that the MBTA covers unintentional takings. This abstract has been taken from the author\u27s introduction

In-Lieu Fee Program Case Studies: Lessons Learned for Potentially Expanding In-Lieu Fee Habitat Coverage in Virginia

This white paper contains case studies of coastal ILF [in-lieu fee] programs across the United States: Maine Natural Resources Conservation Program (“MNRCP”), Northwest Florida Water Management District (“NWFWMD”) ILF Program, Keys Restoration Fund (“KRF”), Sacramento District California ILF Program, Maryland Department of the Environment ILF Program, and Virginia Aquatic Resources Trust Fund (“VARTF”). The Conclusion will provide general recommendations and questions to consider in deciding whether and how to implement an in-lieu fee program for wildlife habitats in Virginia. Each program has a unique regulatory structure and method for selecting projects on which to spend their funds. The programs do tend to face similar challenges and provide similar benefits. Common challenges include securing buy-in from private landowners and completing the state and federal permit processes for mitigation projects by the third growing cycle after selling credits. Despite these frequent hurdles, program sponsors have observed that the programs streamline the permitting process for developers, which reduces the cost of building new projects. ILF programs allow for larger, more impactful mitigation projects, instead of proceeding by a piecemeal approach where the permittees must compensate for only their own environmental impacts. This abstract has been taken from the authors\u27 introduction

Siting Wind Energy Projects in Virginia: Recommendations for Addressing National Security Concerns through State Permitting Processes

This white paper first explains the federal and state wind energy siting approval processes and the military’s current involvement in those processes. In particular, the paper focuses on permit-issuing agencies as opposed to policy-making agencies. Parts I and II outline the federal and state permitting process, respectively. In Part III, the paper discusses the military’s concerns regarding wind energy siting. Part IV moves to the current status of Virginia’s onshore and offshore wind industries. Part V analyzes two case studies: Block Island Wind Farm in Rhode Island and the Pantego Wind Energy Facility in North Carolina. Finally, Part VI synthesizes recommendations to better incorporate Department of Defense (DoD) input into offshore and onshore wind energy siting decisions in the Commonwealth. This abstract has been taken from the authors\u27 introduction