Obama admin extends eagle 'take' permits to 30 years

The Interior Department announced today that it has finalized a new rule that will allow renewable energy and other projects to obtain permits to injure, kill or disturb bald and golden eagles for up to 30 years, a move that pleases the wind power industry but alarms environmentalists.

The revised rule, set to take effect next month, will allow the Fish and Wildlife Service to grant programmatic incidental "take" permits to wind farms, transmission projects and other long-term energy operations for a much longer period than the current five-year term. Wind, solar and other renewable energy projects usually have a 30-year life span.

The take permits are only to be issued to applicants that commit to strict adaptive-management measures that include site-specific steps that reduce impacts to eagles. The permits and the conservation measures would be reviewed by Fish and Wildlife every five years.

"Renewable energy development is vitally important to our nation's future, but it has to be done in the right way," Interior Secretary Sally Jewell said in a statement. "The changes in this permitting program will help the renewable energy industry and others develop projects that can operate in the longer term, while ensuring bald and golden eagles continue to thrive for future generations."

Interior plans to formally publish the rule Monday in the Federal Register.


The rule, first announced in April 2012, amends an eagle permitting program established in 2009 that initially allowed the five-year take permits only if the disturbing, harming or killing of eagles was unavoidable.

It also calls for increased permit application processing fees that better reflect the time and energy spent by Fish and Wildlife to develop the conservation measures and ensure they remain effective.

The new rule is part of an ongoing Interior review of eagle permitting that began in 2009. Since the rule was first proposed last year, Fish and Wildlife has finalized eagle conservation guidance that outlines "the processes that the Service recommends wind energy permit applicants use to conduct eagle surveys, evaluate risk of activities to eagles, avoid and minimize risks to eagles, compensate for unavoidable take, and apply an adaptive management framework," according to the new rule.

But the release of the finalized rule drew howls of protests from environmental groups and Sen. David Vitter (R-La.), the ranking member of the Environment and Public Works Committee.

"Permits to kill eagles just seems unpatriotic, and 30 years is a long time for some of these projects to accrue a high death rate," said Vitter, an outspoken critic of Obama administration domestic energy policies. "The administration has repeatedly prosecuted oil, gas and other businesses for taking birds, but looks the other way when wind farms or other renewable energy companies do the exact same thing. There needs to be a balanced approach in protecting migratory birds, while also supporting domestic energy, and with this newest decision, the administration has failed to achieve that."

The new rule drew equally sharp criticism from environmentalists.

"This rule could lead to many unnecessary deaths of eagles. And that's a wrongheaded approach," said Frances Beinecke, president of the Natural Resources Defense Council. "We can, and must, protect wildlife as we promote clean, renewable energy. The Fish and Wildlife Service missed an opportunity to issue a rule that would do just that. This rule sets up a false choice that we intend to fight to reverse."

David Yarnold, Audubon's president and CEO, called the new rule "outrageous" and said, "Interior wrote the wind industry a blank check."

"Audubon will continue to look for reasonable, thoughtful partners to wean America off fossil fuels because that should be everyone's highest priority," Yarnold said. "We have no choice but to challenge this decision, and all options are on the table."

Industry says rule benefits eagles

Fish and Wildlife hasn't issued any five-year eagle take permits to date, though it is considering in a draft environmental assessment to award the first-ever take permit for an existing wind farm to EDF Renewable Energy's Shiloh IV Wind Project in Solano County, Calif. (Greenwire, Sept. 27).

The agency last month announced the first-ever criminal enforcement of bird-protection laws at a wind energy facility, fining a North Carolina-based energy giant $1 million for killing more than 150 migratory birds, including 14 golden eagles, at two Wyoming wind farms over the past few years (Greenwire, Nov. 25).

The Obama administration this week announced it would conduct an environmental impact statement to study issuing a 30-year eagle take permit to the proposed 3,000-megawatt Chokecherry and Sierra Madre wind project in southeast Wyoming (Greenwire, Dec. 4).

The wind energy says such incidental take permits give the industry more regulatory certainty while, they say, allowing them to incorporate measures that help protect eagles.

The permit also helps protect eagles by ensuring that wind power developments take proper steps to avoid affecting the iconic birds, said John Anderson, director of siting policy for the American Wind Energy Association.

"This permit program promotes eagle conservation," Anderson said in a statement. "Congress actually sanctioned it decades ago by specifically authorizing a permit program under the Bald and Golden Eagle Protection Act."

In a recent interview with Greenwire, Anderson and Tom Vinson, AWEA's senior director of federal regulatory affairs, defended the industry and said the new rule is badly needed.

It makes no sense, both argued, to not have an eagle permitting system that covers the typical 30-year life of an operating commercial-scale wind farm.

"It's incredibly important to have that long-term certainty, both from a financing and legal certainty standpoint," Vinson said.

Anderson also pointed to studies that show eagle populations over the last 40 years have stabilized and that the wind power industry conducts more pre- and post-construction studies to guard against impacts to eagles and other sensitive avian species "than any other energy sector and probably more than most industries in general," Anderson said.

Vinson added: "Yes, the 30-year permit will be beneficial for the wind industry, and that's why we supported it. But it's not just beneficial for us, it's beneficial for the species as well, because you would have full impact analysis for 30 years, you'd be mitigating for 30 years, you'd be committing to a variety of conservation practices including upfront mitigation such that it provides a net conservation benefit. We do think the 30-year permit itself is beneficial for the species."

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