The White House yesterday began considering what appears to be the Fish and Wildlife Service’s second attempt to allow wind energy developers longer permits to unintentionally kill eagles.
The precise details of the draft FWS rule will remain under wraps until the Office of Management and Budget finishes its review, which is officially limited to 90 days but can take significantly longer than that.
Groups that have closely watched the agency’s regulation of eagles, however, predicted that FWS is proposing another version of its 30-year "take" permit. Such a system would protect companies that accidentally harass, harm or kill the birds over the duration of most wind turbine projects.
Without such permits, taking the raptors is prohibited by the Bald and Golden Eagle Protection Act and other laws. Eagles, as well as other birds and bats, may be battered or worse if they fly into the rotating blades of a wind turbine.
But the 30-year take permits were struck down last summer by U.S. District Judge Lucy Koh, who concluded that there were "substantial questions" as to whether FWS’s decision to extend their duration up from five years would have "a significant adverse effect on bald and golden eagle populations" (E&ENews PM, Aug. 12, 2015).
As a result of the ruling, FWS "had to go back to the drawing board" on its eagle permit regulations and will need to put them through an environmental review process and public comment period, explained Michael Hutchins, the Bird-Smart Wind Energy Program campaign director at the American Bird Conservancy (ABC), the conservation group that successfully challenged the previous permit program.
"That’s presumably what they’re doing now," Hutchins said of FWS.
The American Wind Energy Association, an industry trade group, argued that the longer eagle take permits could be reinstated after a National Environmental Policy Act review of the proposal.
"The 30-year permit term was removed due to the Service failing to conduct enough NEPA and was not vacated on substance," John Anderson, AWEA’s senior director for permitting policy and environmental affairs, said in an email. "With a full NEPA analysis for the rule making the Service will address this prior deficiency."
But ABC will be watching closely to see whether the proposed rule that emerges from the White House review is based on a thorough analysis of how the change will affect eagles.
"They’ve kind of been hinting around that they’re going to stay with the 30-year rule," Hutchins said in an interview. "But our interest in reviewing this will be whether or not they’ve done the appropriate science to justify having the 30-year rule and what kinds of impacts that could have on eagle populations."
He added that "birds don’t belong to the wind energy companies, they belong to the American public and are held in trust for this and future generations. It’s the Fish and Wildlife Service and the state agencies’ responsibility to make sure that these things are not being taken at such a rate that it’s going to end up decreasing their populations, resulting eventually in extinction."
Asked to comment on the OMB review or its proposal, an FWS spokeswoman said that the agency is preparing an environmental impact statement "analyzing various alternative approaches to eagle management and proposed revisions to the permit regulations. The Service will then open another comment period for an additional round of public review and input before finalizing the EIS and revised permit regulations."
Last month, the agency reinstated its five-year eagle take permits to comply with Koh’s ruling. It had previously announced that it would not appeal the decision (E&ENews PM, Feb. 16).