Wind industry, bird advocates dissect new eagle rule

By Phil Taylor | 05/05/2016 01:15 PM EDT

A new Fish and Wildlife Service plan to permit energy companies to kill federally protected bald and golden eagles for up to 30 years is drawing mixed reviews from wind and wildlife advocates.

A new Fish and Wildlife Service plan to permit energy companies to kill federally protected bald and golden eagles for up to 30 years is drawing mixed reviews from wind and wildlife advocates.

The draft rule would give wind farms, power lines and other large projects license to injure, disturb or kill a limited number of eagles in exchange for commitments to avoid and mitigate harm (Greenwire, May 4).

The rule, which would extend the current permit duration of five years to up to 30 years, offers a "path forward" for the agency to maintain stable or increasing eagle populations while keeping better tabs on how projects affect the birds, said FWS Director Dan Ashe.


FWS is proposing to extend permit durations to better align with the life span of the projects that harm eagles, like wind farms and airports. It proposes to review the permits every five years and consider imposing additional mitigation requirements if things go awry.

While companies are under no legal obligation to obtain an eagle "take" permit, they are liable to be prosecuted under the Bald and Golden Eagle Protection Act for unpermitted eagle kills. Permits provide a level of legal protection.

Andrew Bell, an attorney at Marten Law who represents renewable energy clients, said the wind industry will find things to like and dislike about the new proposal.

On a positive note, Bell said, the new rule would require all permittees to "avoid and minimize impacts to eagles to the maximum degree practicable," which is a less stringent requirement than current regulations that allow recurring take only if it is "unavoidable" after implementation of advanced conservation practices.

"It should make obtaining a permit a little easier," Bell said.

In addition, the new rule could help companies by allowing the use of alternate forms of mitigation, such as in-lieu fees, Bell said.

Under the agency’s proposal, in order to take golden eagles, applicants would be required to fund conservation measures designed to protect more than one eagle for every eagle expected to be taken, FWS said. The agency’s data suggest humans are responsible for almost 60 percent of golden eagle deaths.

While the current permitting system encourages the use of relatively tried-and-true mitigation steps, like retrofitting power poles, the new rule would expand options. FWS said it intends to create an in-lieu fee program to allow permit applicants to contribute to a compensatory mitigation fund instead of crafting individual mitigation measures for each project.

"Under the current framework, the service has required a relatively high degree of confidence in the effectiveness of very few compensatory mitigation options," the rule states. "We will consider compensatory mitigation measures and programs that face more risk and uncertainty provided mitigation accounting systems factor in risk and adjust metrics, mitigation ratios, and the amount of required mitigation to account for uncertainty."

FWS is proposing that the 30-year permits be reviewed at least every five years to ensure predicted take levels are not being exceeded. If they are, FWS could place additional mitigation requirements on the permit holder.

While reinstating the 30-year permit will help the wind industry, Bell said the prospect of new mitigation requirements every five years may give some companies pause.

"Without upfront cost brackets, this could complicate power purchase bids and project financing," he said.

The scientific data underpinning FWS’s rule also suggest wind farms will face higher scrutiny in golden eagle habitat, Bell said. An FWS scientific report accompanying the rule found that bald eagle populations are robust at 143,000 and expected to rise, but golden eagles number about 40,000 and their population could diminish in the West mostly due to human-caused mortality.

The American Wind Energy Association said it has yet to take a position on the 162-page rule.

"While we continue to review the lengthy rule in the days ahead, today’s announcement by the U.S. Fish and Wildlife Service is a good reminder that the permit program promotes eagle conservation and applies to many different types of industries and human activities resulting in impacts to eagles," AWEA spokesman David Ward said in an email. "As a clean energy source, wind energy contributes to eagle conservation by mitigating climate change (one of the major threats to eagles), and while unintentional take of eagles can occur from wind energy production, it is relatively uncommon and our industry does more than any other to find ways to reduce that small impact."

Environmentalists said they have mixed feelings about allowing eagles to be killed, but they support added government scrutiny that would accompany a permitting system.

"We certainly enthusiastically support the need for credible and defensible permitting programs … based on best available science," said Julie Falkner, senior director of renewable energy at Defenders of Wildlife. "It’s our hope that this permitting program will facilitate responsible and smart wind in the right places so that we can share the air and conserve eagles."

Michael Hutchins, the Bird-Smart Wind Energy Program campaign director at the American Bird Conservancy, said his organization is happy Fish and Wildlife is performing a programmatic environmental impact statement to analyze the rule’s effect on eagles.

ABC in June 2014 sued FWS to challenge its previous 30-year eagle take rule, arguing it violated the National Environmental Policy Act and the Endangered Species Act. Last August, a federal district judge in Northern California struck down the FWS rule, siding with the bird conservancy on its NEPA claim. AWEA intervened in that case in defense of the FWS rule.

"We still have a few concerns," Hutchins said. "One is that the plan seems heavily predicated on mitigation."

There are only a few mitigation methods for wind energy that have been verified to reduce bird kills, Hutchins said. And while FWS’s goal of maintaining stable or increasing populations of eagles over 100 years is laudable, the agency needs to implement a better method for tracking eagle deaths at wind energy facilities, Hutchins said.

ABC is proposing that all post-construction eagle mortality data be collected by third-party experts and reported directly to FWS, rather than being collected by paid consultants to industry, which Hutchins claimed is a conflict of interest.

"We don’t see how the goals for eagle populations can be reached without better verification," he said.

Like Defenders, ABC said it will be watching closely for how the rule influences the siting of wind farms and whether it will keep projects away from sensitive eagle areas.