Wind Power and Eagles on Collision Course

American Bird Conservancy Will Sue the U.S. Department of Interior 

In a news release issued yesterday,  Washington, D.C.-based American Bird Conservancy (ABC) has announced its intention to sue the U.S. Department of the Interior (DOI).

[They explain that they plan] to charg[e] the agency with multiple violations of federal law in connection with its recent decision to offer wind energy companies and others to obtain 30-year eagle take permits. The previous rule provided for a maximum duration of five years for each permit, which authorizes projects to "take" (i.e., injure, kill or otherwise disturb) eagles.

On April 30, ABC sent the DOI and the U.S. Fish and Wildlife Service (FWS) a notice of intent to sue, and the group has chosen public interest law firm Meyer Glitzenstein & Crystal to represent it. ABC argues that the new eagle take rule violates the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Bald and Golden Eagle Protection Act (BGEPA).

 

ABC says it is initiating legal action in order to have the rule invalidated pending full compliance with federal environmental statutes. For example, the group charges that the 30-year eagle permit rule was adopted in the absence of any NEPA document or any ESA consultation regarding impacts. It is, therefore, a “glaring example of an agency action that gambles recklessly with the fate of the nation’s bald and golden eagle populations,” the letter says.

On December 6, 2013, the DOI announced that it planned to change the rule governing eagle "takings."   It explained:

In 2009, the Service began a permitting program under the Bald and Golden Eagle Protection Act applicable to developers of renewable energy projects and other activities that may “take” (injure, kill or otherwise disturb) bald and golden eagles. The Eagle Act allows the Service to authorize the programmatic take of eagles, which is take associated with, but not the purpose of, an otherwise lawful activity and does not have a long-term impact on the population. 

These permits have been for a maximum of five years – a period that does not reflect the actual operating parameters of most renewable energy projects or other similar long term project operations. The revised rule, a result of extensive stakeholder engagement and public comment, extends the maximum permit tenure to 30 years, subject to a recurring five-year review process throughout the permit life.

Only applicants who commit to adaptive management measures to ensure the preservation of eagles will be considered for permits with terms longer than five years. Any such increased measures, which would be implemented if monitoring shows that initial permit conditions do not provide sufficient protection, will be negotiated with the permittee and specified in the terms and conditions of the permit.
All permits will be closely monitored to ensure that allowable take numbers are not exceeded and that conservation measures are in place and effective over the life of the permit. Steps taken today will increase transparency and accountability by making annual reports and five-year compilations of eagle fatalities available to the public.

The revised regulations also increase the fees charged for processing programmatic permit applications to reflect the true cost to the Service of developing adaptive conservation measures and monitoring the effectiveness of the terms and conditions of the permits. Permits also will now be transferable to new owners of projects, provided that any successor is qualified and committed to carrying out the conditions of the permit. For more information, click here.

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[T]he Service solicited public comments about the permit program concerning a number of specific issues, including:

• How the Eagle Act’s language regarding preservation of eagles should be interpreted and applied;
• The level of impacts that trigger compensatory mitigation;
• Issuance criteria for programmatic permits; and
• Possible mechanisms for streamlining permits.

The Service will solicit additional public input on the 2009 permit regulations at a series of regional workshops that will take place in early 2014, along with an opportunity to submit written comments. The Service anticipates publishing a proposed rule and accompanying NEPA documents in fall of 2014, with a final rule and NEPA documents in fall of 2015.
The final rule is available here.

In my Environmental Dispute Resolution course, we spent a 2-hour class period discussing the impact of wind farms on raptors and other bird species.  In my next blog post, I'll share what we learned.