Compensatory Mitigation

The mitigation hierarchy begins with steps first to avoid and then to minimize adverse impacts. Compensatory mitigation addresses and attempts to offset impacts of a wind energy project that are unavoidable. Depending on the nature of the impacts (e.g., individual fatalities vs. habitat loss), the population and life stages, and the opportunities for compensating those losses, there are a variety of approaches to compensatory mitigation. In order to determine the best approach, practitioners should consider the estimated individual fatalities or loss of natural resources and identify an adequate offset to these impacts; the location of affected populations and whether compensatory measures need to be implemented at or near the site where impacts occur or if they should be implemented elsewhere; and the relative timing of losses and actions to offset them.

If a wind energy project’s impacts are predicted to result in “take” – variously defined as activities that harass, harm, kill, capture, or otherwise disturb – of protected species, the project developer can apply for an incidental take permit (ITP). Compensatory mitigation is required when applying for an ITP for species protected by the Endangered Species Act (ESA), and under certain circumstances, when applying for an ITP under the Bald and Golden Eagle Protection Act (BGEPA). In those instances, ITP applicants must develop and implement a plan to compensate for predicted losses. Compensatory actions also may be part of a voluntary strategy to prevent species from reaching the point where they need to be listed as threatened or endangered under the ESA. U.S. Fish and Wildlife Service is also currently reviewing the potential for an ITP under the Migratory Bird Treaty Act (MBTA).