The Fish and Wildlife Service has begun to survey wind developers about potential harm to eagles as federal officials expand their efforts to stymie the renewable power sector.
The invocation of the Bald and Golden Eagle Protection Act to squeeze information from the wind industry worries some supporters who fear anything they say could be turned against them. It also raises questions about a permit system adopted only 14 months ago.
“The concern is that the administration might use the data it collects to serve a narrative against the industry and individual projects,” Benjamin Cowan, a partner at the Troutman Pepper Locke law firm whose clients include wind developers, said in an interview.
The Trump administration could use the data to try to write a more restrictive rule for eagle permits or to shut down projects for perceived permit violations, he said. FWS is part of the Interior Department.
Jennifer Miller, acting chief of the migratory bird program in the Division of Bird Conservation, Permits and Regulations, requested in a letter dated Friday that wind developers disclose “all records required by the governing regulations” for their accidental eagle death permits.
Miller said the request was meant “to ensure compliance with the Bald and Golden Eagle Protection Act and its corresponding regulations,” according to a copy of one letter reviewed by POLITICO’s E&E News.
Originally passed in 1940 as the Bald Eagle Protection Act, the amended law now prohibits the killing or capturing of that species as well as the golden eagle. Regulations to implement the law have included an evolving permit system.
“Incidental take” permits allow for some unintentional eagle deaths in exchange for taking steps to improve conservation.
The Friday letter from Miller asked for a range of details from developers, including their permit applications, the permits themselves, mitigation and management plans and “Records of fatality monitoring methods and observations.”
Cowan said such a request for information normally would not be worrisome for his wind power clients. It comes, though, as the Trump administration has unleashed a volley of proposals aimed at curbing wind development on federal lands.
When asked Monday about the letter, Interior spokesperson Elizabeth Peace said by email that the department is “committed to enforcing the Bald and Golden Eagle Protection Act fairly and consistently across all sectors.”
“The Department is updating outdated regulations to ensure our regulatory framework is modern and legally sound, does not provide preferential treatment to any entity, and effectively balances environmental protections with responsible energy development,” she added. “Wind operations, like other activities that impact bald and golden eagles, remain subject to appropriate oversight under the Act.”
FWS referred to a July 29 statement from Interior declaring, “In alignment with President Donald J. Trump’s directives, the Department of the Interior is ending special treatment for unreliable energy sources, such as wind.”
The statement also indicated that “includes evaluating whether to stop onshore wind development on some federal lands” as well as studying “how constructing and operating wind turbines might affect migratory bird populations.”
FWS has already stopped, at least temporarily, issuing incidental take permits. The agency says on its legal permitting webpage that the freeze on permits will last “until further notice.”
The FWS letter follows a spate of recent actions by the Trump administration aimed at the wind industry, whose growth the president has said he aims to stop in its tracks.
Roughly a dozen different actions since mid-July have targeted wind power, including secretarial orders from Interior Secretary Doug Burgum to stamp out any “preferential treatment” for wind and other renewable projects.
Some of those actions could ensnare wind projects in laws passed last century that protect eagles and migratory birds. While the administration maintains that accidental bird deaths that happen during otherwise lawful activity are not illegal under the Migratory Bird Treaty Act, it has signaled it may make an exception for the wind industry.
Rules updated last year
In 2024, FWS updated permitting rules designed to help bald and golden eagles coexist with energy projects.
The top-to-bottom rewrite lasted several years and attracted thousands of public comments about permits under the Bald and Golden Eagle Protection Act.
The law prohibits “take” of the species. The broad term covers everything from pursuing, wounding and killing to molesting or disturbing. Incidental take can put companies or other responsible parties in legal jeopardy even though they didn’t intend harm.
Companies, though, can obtain incidental take permits. Wind energy projects, for instance, could qualify by meeting specific standards, such as locating all turbines at least 2 miles from a golden eagle nest and at least 660 feet from a bald eagle nest.
FWS has estimated that more than 80 percent of existing land-based wind turbines in the Lower 48 states may be eligible for those general permits. The agency has struggled, however, to craft a permit program that’s widely used.
Permits for the incidental, or unintentional, take of eagles were first established in 2009, then revised in 2016. The 2016 rule was implemented when the bald eagle population was estimated to be 143,000. Golden eagles then had an estimated U.S. population of 40,000.
By 2021, the bald eagle population was estimated to have reached 316,700, though golden eagles continued to struggle.
“While the recovery of bald eagles stands as a significant success in wildlife conservation, the future of golden eagle populations remains uncertain, and the Service remains committed to upholding the highest standards of compliance with laws to protect these species,” the Fish and Wildlife Service stated last year.
Collisions with buildings, communication towers, electrical lines and vehicles are estimated to kill more than 845 million birds per year, according to 2017 FWS data. Collisions with wind turbines on land were estimated to kill 234,000, birds per year.
The American Clean Power Association said in an emailed statement that bald eagles are “thriving” and golden eagles are “stable” while the wind energy sector grows.
“This is clear evidence that strong protections and reasonable permitting rules work,” Jason Ryan, an American Clean Power Association spokesperson, said in a statement. “Wind and eagles are successfully co-existing.”
Ryan added that the “eagle take permit program is a prime example of regulatory framework supported by industry and conservation groups as it provides for streamlined coverage paired with robust conservation.”
The wind energy industry initially expected the eagle takes pause would be short-lived, and that the service would resume issuing permits after the administration completed a review of the program and Brian Nesvik was confirmed as the new FWS director, said Cowan, the Troutman attorney. Nesvik was confirmed earlier this month.
The industry is now bracing for what could be an extended pause in the face of “overt hostility” from an administration “ that doesn’t seem concerned about the certainty of expectations,” Cowan said.
The letter from the Fish and Wildlife Service give developers until Sept. 8 to submit their records.
Reporter Scott Streater contributed.
This story also appears in Climatewire.
