July 13, 2012 TRANSMITTED VIA ELECTRONIC SUBMISSION

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1 July 13, 2012 Mr. Jim Serfis Chief, Office of Communications and Candidate Conservation Attn: FWS R9 ES U.S. Fish and Wildlife Service 4401 N. Fairfax Drive, Room 420 Arlington, VA TRANSMITTED VIA ELECTRONIC SUBMISSION RE: Advanced Notice of Proposed Rulemaking Endangered and Threatened Wildlife and Plants; Expanding Incentives for Voluntary Conservation Actions Under the Endangered Species Act The Solar Energy Industries Association (SEIA) 1 appreciates the opportunity to submit comments to the U.S. Fish and Wildlife Service (USFWS or the Service ) for consideration in its efforts to update the implementation of the Endangered Species Act (ESA) as requested in its March 15, 2012 Advanced Notice of Proposed Rulemaking (ANPR). 2 When developed in collaboration with stakeholders and narrowly defined to achieve specific conservation goals, guidance of this nature can be beneficial to all parties. The ANPR seeks comments on a proposed program to grant credits for conservation actions undertaken by landowners for candidate species. For that purpose, the ANPR asks nine questions on how such a candidate species conservation credit program should be implemented. In addition, the ANPR requests comments on the general objectives of the ESA Administrative Improvement review now being conducted by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (NMFS). To that end, SEIA s comments are set forth in two general areas: 1) responses to the proposed candidate conservation program; and 2) general ESA administrative reforms. As a general 1 2 The comments contained in this filing represent the position of SEIA as an organization, but not necessarily the views of any particular member with respect to any issue. Endangered and Threatened Wildlife and Plants; Expanding Incentives for Voluntary Conservation Actions Under the Endangered Species Act; Advanced notice of proposed rulemaking, 77 Fed. Reg. 15, (Mar. 15, 2012).

2 Page 2 matter, SEIA requests that USFWS expedite the development of proactive, site specific plans for ESA candidate species which provide credits in the event the species is eventually listed. In addition, to ensure the long term development of solar energy as a significant share of the national energy portfolio and protect endangered and threatened wildlife and plants, USFWS should further reform the ESA process to provide the public with ample information regarding the ecological sustainability and suitability of land prior to development; set forth clear standards to make the section 10 incidental take permit (ITP) process more efficient and expeditious; provide strong assurances to landowners regarding the development of species conservation measures, such as habitat conservation plans (HCPs), candidate conservation agreements with assurances (CCAAs) and safe harbor agreements (SHAs) on private lands so that investors will have the certainty they need to commit to project development; develop similar mechanisms for conservation credits, assurances, and certainty for development on public lands under section 7, rather than only under section 10; establish more efficient and cost effective mechanisms for making decisions under sections 7 and 10; ensure that sound science serves as the basis for biological opinions; and encourage greater use of mitigation to provide increased flexibility for renewable energy project development and additional species protection. I. ABOUT SEIA Established in 1974, SEIA is the national trade association of the U.S. solar energy industry, which employs more than 100,000 Americans. 3 Through advocacy and education, SEIA is building a strong solar industry to power America. As the voice of the industry, SEIA works with its 1,000 member companies to make solar a mainstream and significant energy source by expanding markets, removing market barriers, strengthening the industry and educating the public on the benefits of solar energy. Today, the solar energy industry is one of the fastest growing sectors in the U.S. economy. In 2011, the solar industry posted 109% growth in installed solar capacity over the previous year, with eight states installing more than 50 MW each. 4 Within the solar energy industry, utility National Solar Jobs Census, The Solar Foundation. ( Compressed.pdf). Solar Energy Industries Association and GTM Research, U.S. Solar Market Insight: 2011 Year in Review at p. 3 ( YIR 2011 ES.pdf).

3 Page 3 scale solar is thriving with 1,790 MW in operation and a further 4,573 MW under construction, mostly in the U.S. southwest. 5 Unfortunately, added costs due to permitting delays or unexpected mitigation requirements can disproportionately affect solar energy project economics when compared with conventional energy projects because of the large upfront capital investments that must be made. Achieving significant deployment of solar energy on both public and private lands depends in large part on the ability of solar developers to reasonably predict and navigate the land use regulatory process. Solar project development frequently requires compliance with the ESA. Projects are often located on federal land or require a federal action, resulting in the application of the consultation requirements and jeopardy/critical habitat modifications of section 7(a)(2). Other projects are located on non federal lands, including property where ESA covered species or habitat are present, giving rise for the need for ITPs, SHA, CCAAs, or other mechanisms to ensure compliance with the take prohibition of section 9(a)(1). Many SEIA members are actively involved in, or affected by, listing, critical habitat designation, and recovery plan actions under section 4. And SEIA members often must comply with State ESA requirements, in addition to federal law, giving rise to the need for administration of the cooperative planning procedures and grant requirements of section 6. This broad base of experience, combined with the potential for extensive future involvement with ESA procedures and decisions, provides SEIA and its members with a unique and informed perspective on how to make the ESA and its implementing regulations and guidelines work better to achieve species conservation objectives and avoid unnecessary costs and burdens for the development of solar energy projects. II. THE SOLAR INDUSTRY SHOULD RECEIVE CREDIT FOR PROACTIVELY DEVELOPING SITE SPECIFIC PLANS FOR CANDIDATE SPECIES In accordance with the ESA, USFWS maintains a list of candidate species, and publishes a notice about this list annually, which is referred to as the Candidate Notice of Review (CNOR). A candidate species is one which USFWS has determined that a proposal to list as endangered or threatened is warranted. A central mandate of the ESA is to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved. 6 Voluntary advance mitigation or pre listing mitigation efforts that reward 5 6 Utility Scale Solar Power Projects in the United States Operating, Under Construction, or Under Development, Solar Energy Industries Association, updated May 9, 2012 ( Endangered Species Act of 1973, Section 2(b).

4 Page 4 property owners with credits that can be used to offset the negative impacts of proposed actions on listed species help achieve this statutory requirement, while reducing the risk of costly restrictions on property owner activities. If the solar developer proactively develops and implements site specific plans for candidate species, USFWS should provide credits in the event the species is eventually listed. The species of greatest concern for the solar industry in this regard is the Sonoran desert tortoise, which is found in western Arizona and southeastern California. It is currently listed as a candidate species. 7 While not conceding that the Sonoran desert tortoise meets the criteria for listing, SEIA recognizes that preventing this population of desert tortoise from being listed as endangered or threatened requires a collective effort among the region s property owners. Voluntary conservation efforts can successfully protect the Sonoran desert tortoise and other candidate species, if USFWS is willing to sufficiently reward such efforts before and after potential listing, and, importantly, provide property owners with species and site specific conservation information. For example, the October 2011 CNOR listed numerous threats to the Sonoran desert tortoise, ranging from nonnative plant invasions to undocumented human immigration. 8 USFWS must proportionally assign conservation credits and recognize that many threats are beyond the control of property owners. Under section 10(a)(1)(A) of the ESA, USFWS can issue Enhancement of Survival Permits to provide participating property owners with a prescribed amount of take, should a candidate species be listed. The amount of take should be commensurate with the efforts of the participating property owner and account for the unavoidable threats inherent to the region. In addition, the existence of those mitigation measures should be considered as a factor that reduces threats to candidate species during the process of evaluating whether a listing proposal is needed. If such mitigation can be achieved, the species should be removed from the candidate list. Credits granted for candidate species conservation should be transferable. Strong incentives to undertake such conservation measures will be created if the resulting credits can be transferred by the landowner or project developer to other parties. In fact, USFWS should confirm that such credits can be sold and traded. Creating a market for candidate species credits will not 7 8 See: Species Profile: Desert tortoise (Gopherus agassizii), USFWS website: Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates for Listing As Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions; Notice of review, 76 Fed. Reg. 66, (Oct. 26, 2011).

5 Page 5 only encourage conservation measures but will also help meet federal policy requirements and policies to promote solar project development. A flexible approach to mitigation that allows developers to obtain credit for a proposed facility that otherwise might have difficulty securing the mitigation necessary for project approval is in the interest of species conservation and renewable energy development. Of particular importance for the solar industry is a candidate conservation program that allows credits to be used for projects developed on public land or subject to federal actions. The ANPR suggests that these credits will only be available to landowners and developers who are proceeding with projects on non federal lands under section 10. As noted above, many solar projects are located, or will be developed, on land administered by Bureau of Land Management (BLM) or another federal agency. A candidate species conservation program therefore should exist for federal agencies. Under this aspect of the program, a federal agency should be given candidate species credit for actions it takes on its lands and be allowed to apply those credits to development authorized under its jurisdiction. In addition, credits should be transferable from one agency to another, and from non federal parties to federal agencies. For example, a solar developer seeking authorization to develop a project on BLM land should be able to purchase credits from a non federal party and include them as mitigation under its right of way application. BLM should then be able to use those credits to offset impacts to the species for purposes of compliance with section 7(a)(2) or for incidental take authorization under section 7(a)(4). If the candidate species conservation program envisioned by the ANPR is limited to non federal lands and parties, its scope and success is likely to be quite limited. Extending it to federal agencies and actions has the potential to be a far reaching conservation tool and a creative regulatory tool that helps expedite and expand future solar project development in full compliance with the ESA. III. THE ESA PROCESS SHOULD ALSO BE REFORMED In addition to conservation banking reforms for candidate species, the ANPR raises a series of general policy issues about ESA implementation. Below, SEIA offers general recommendations for reform that could help establish a more efficient and effective path for ESA implementation as applied to solar energy development. A. Eliminate Section 10 Delays A perennial challenge faced by solar developers (and many others) is that of securing a timely decision under section 10 consultation from USFWS on an application for an ITP. Many in the solar industry are developing projects on private lands and, due to biological considerations, need incidental take permits to be issued by USFWS to proceed with their project. Projects without a federal nexus (i.e., projects that are not funded, authorized, or carried out by a

6 Page 6 federal agency) may linger for years at the back of the queue while USFWS staff provides Biological Opinions and incidental take statements (if needed) to other applicants whose projects are on public lands or otherwise have a federal nexus. Obtaining an ITP can be a long and arduous process for projects without a federal nexus as it requires the permit applicant (and not USFWS) to determine the effects of the project on endangered species and their habit, design a Habitat Conservation Plan (HCP), provide a longterm commitment to species conservation, request a consultation with the USFWS, and comply with NEPA and other laws. During consultation, the Service and the applicant discuss the proposed project and the species likely to be affected as well as mitigation and conservation measures for habitat maintenance, enhancement, and protection, coincident with development. Public review is also required. There is no formal timeline associated with section 10 consultation. However, preparation of and agreement by all parties involved in the HCP can take several years. In addition, it can take months to years for the USFWS to review and approve the HCP and issue an ITP. Solar project developers cannot afford these delays, as it is very difficult to obtain financing when so much uncertainty and potential for delay exists. This is not a matter of undue preferential treatment, but of insufficient staff resources. Indeed, in Fiscal Year 2010 alone, USFWS performed over 30,000 consultations with federal agencies under Section 7 of the Endangered Species Act, leaving little time for staff to provide section 10 consultations. 9 To address this staffing challenge, SEIA has previously recommended establishing a cost recovery mechanism through which applicants could reimburse USFWS for contracting independent, non biased scientists and permit experts to expedite the consultation and review process. Such a cost recovery mechanism is used today by BLM in processing rightof way applications. USFWS now has the ability to be reimbursed by applicants for section 10 consultation work. However, there is no requirement, or express authorization, that USFWS use outside consultants to perform the work. SEIA remains concerned that USFWS simply does not have the internal staff resources to address its workload, and that relying on USFWS staff even if their time is reimbursed will not result in a faster consultation process. Thus, USFWS should issue similar guidance that makes it clear that third party consultants, paid for by the project applicant, can undertake any aspect of the technical reviews required to support issuance of an ITP. This approach is commonly used for other federal environmental review procedures, and there is no reason a similar approach should not be available under the ESA. Guidelines on the proper role of the applicant, measures for USFWS oversight and decision making, and 9 library/pdf/consultations.pdf

7 Page 7 reimbursement requirements should be clearly spelled out to facilitate use by applicants and agency staff. In addition, SEIA recommends that USFWS establish a consistent timeframe for section 10 consultations, enabling solar projects on non federal lands to move forward in a timely fashion. We are encouraged by Region 8 s idealized timeline, 10 which provides for an HCP to be approved in two years, but have yet to see any successes in meeting this timeline. B. Ensure Biological Opinions Are Rooted in Objective Scientific Data and Analyses SEIA also recommends that USFWS undertake reform efforts to improve the quality and objectivity of biological opinions issued under section 7(a)(2). Biological opinions are central to determining whether a proposed activity will jeopardize the continued existence of a listed species or result in adverse modification or destruction of critical habitat. Ensuring unbiased treatment for individual project sites meets the guiding objectives outlined by USFWS in the ANPR to eliminate unnecessary process requirements and to make as efficient as possible the remaining process requirements[;] to improve the clarity of, and eliminate the inconsistencies among, [USFWS] regulations. 11 In addition, a recent U.S. Geological Survey study concluded that [p]ublished scientific information on the effects of any form of renewable energy development... is scant, and the limited research done to date has largely focused on the impacts of wind farms on birds and bats. 12 Unfortunately, in many cases the quality of the record is not high, jeopardy opinions are issued based on speculation rather than actual data, too much mitigation is required, and terms and conditions are set forth in incidental take statements that are too stringent and costly without commensurate conservation benefit for the species. To address this problem, USFWS should provide for peer review of biological opinions while they are being prepared. Project applicants should be allowed to review and comment on the opinions before they are issued, and reimbursable agreements should be used (as described above) to allow third party contractors to assist in preparation of the opinions. C. Provide for More Extensive and Flexible Use of Mitigation Mitigation for impacts to species and their habitat has significant potential as a tool to increase the flexibilty and effectiveness of the ESA. Unfortunately, there is no comprehensive guidance ESA%20Energy%20timeline%28final%29.pdf 77 Fed. Reg. at p. 15,354. Jeffry E. Lovich & Joshua R. Ennen, Wildlife Conservation & Solar Energy Development in the Desert Southwest, United States, BioScience, Dec. 2011, at p. 982.

8 Page 8 document or set of clearly defined principles for how mitigation can be used to offset regulatory restrictions and improve the administration of the ESA. SEIA recommends that USFWS consult with affected stakeholders to develop a policy document, handbook, or similar guidance report that discusses the various ways in which mitigation can be applied under the ESA. IV. CONCLUSION SEIA is supportive of USFWS efforts to reform ESA implementation and address concerns of stakeholders. As part of this reform process, USFWS should incentivize landowners and developers to proactively develop site specific plans for candidate species by rewarding participants; ensure access to site specific species information needed to reduce costs and delays to project developers; improve efficiency for section 10 action; limit biological opinions to site specific information; and increase the use of mitigation strategies. Thank you for your consideration of these comments. Respectfully submitted, Katherine A. Gensler Director, Regulatory Affairs Solar Energy Industries Association 575 7th Street NW, Suite 400 Washington, DC (202) kgensler@seia.org