Review of 30-Year Eagle Take Rule Prompts Call for New Approach to Managing Wind Industry
Contact: Robert Johns, 202-888-7472
(Washington, D.C., August 7, 2014) As the final of five public scoping meetings held by the U.S. Fish and Wildlife Service (FWS) in connection with its recent 30-year eagle take rule takes place today, a leading bird conservation organization is calling for major changes in how the industry sites and operates its facilities.
In a nine-page comment letter, American Bird Conservancy (ABC) not only raises numerous objections to the 30-year eagle take rule but offers an 18-point plan the organization says constitutes a scientifically credible, transparent permitting process for wind energy development.
ABC’s comments were submitted to FWS as part of the agency’s effort to engage the public in a revised process for issuing permits for non-purposeful take—or accidental harm or killing—of Bald and Golden Eagles. These regulations under the Bald and Golden Eagle Protection Act (BGEPA) relate to permits where the take of eagles is associated with, but not the purpose of, otherwise lawful activities.
“If there is one thing recent months have shown us, it is that some in the wind industry have shown little to no respect for or adherence to the voluntary regulatory guidelines now in place,” said Dr. Michael Hutchins, ABC’s National Coordinator, Bird Smart Wind Energy Campaign. “Wind energy developments are going up in places they never should have and with little to no consideration for our native birds and bats. As a result, we are calling for an end to the voluntary approach and for the establishment of mandatory guidelines, among other things, to better regulate the industry.”
ABC’s recommendation for revamping wind industry operation and siting includes provisions related to bird (and bat) mortality disclosure; independent, standardized monitoring of bird (and bat) mortality; effective and tested mitigation methods; compensation for incidental bird mortality; and more.
The comment letter reiterated the organization’s support for the development of clean renewable sources of energy such as wind power with the caveat that “… it must be done responsibly and with minimal impact on our public trust resources, including native species of birds and bats, and particularly threatened, endangered and other protected species, such as Bald and Golden Eagles.”
ABC said that the organization is pleased that FWS has initiated this scoping process but believes that the process itself is illegal and violates the National Environmental Protection Act (NEPA). ABC asserts that NEPA requires that such processes, including a detailed analysis of impacts and opportunity for public input, be undertaken before major policies affecting federally protected wildlife are implemented, not after.
ABC asserts that the lack of a detailed analysis of the potential impacts of 30-year permits on Bald and Golden Eagle populations violates NEPA and BGEPA, setting a dangerous precedent for this and future administrations.
The letter identifies several reasons why ABC opposes extending the maximum duration for programmatic permits under the Bald and Golden Eagle Protection Act from 5 to 30 years, including: decreased opportunities for public involvement in the process; uncertainties about eagle populations, cumulative impacts, and efficacy of mitigation; inconsistency with past statements made by FWS; and the potential that Golden Eagles may require listing under the Endangered Species Act during the next 30 years, as recent studies suggest that their population may be in decline.
Bald Eagle by FloridaStock/Shutterstock
ABC also raises other important issues, asking what precisely will happen if a given wind energy site exceeds its take limits under an incidental take permit for a number of years in succession, despite mitigation efforts. This is an especially important question, given the fact that no wind energy facility has ever been shut down post-construction, regardless of significant bird and bat mortality.
The organization also suggests taking the responsibility for environmental assessments (EAs) of proposed wind energy facilities out of the hands of industry-paid and managed consultants, which is currently the status quo. ABC references several instances of industry-contracted consultants that inappropriately downplayed the potential impacts on federally protected birds (or bats) during EA development.
Current FWS guidelines for a programmatic eagle take permit require “advanced conservation practices” that “reduce eagle disturbance and ongoing mortalities to a level where remaining take is unavoidable.” Under the new rule, this “unavoidable standard” is eliminated, with permit holders instead simply required to “take all practicable measures to avoid and minimize take of eagles.” ABC asserts that the vast majority of mitigation methods have not been tested for their efficacy in reducing eagle or other bird mortalities, further contributing to uncertainty. ABC strongly agrees with the Department of Energy’s recent statement that “…technologies to minimize impacts at operational facilities for most species are either in early stages of development or simply do not exist.” (See DOE request for information.)
“We understand that the new 30-year rule was requested by the wind industry to give more confidence to investors,” said ABC President Dr. George Fenwick. “But if the five-year internal reviews of wind energy site operations are presumably to serve the same purpose as those conducted under the five-year permit system, then we see no reason to change permit length. In fact, if switching to a five-year internal review for up to 30 years is no different, as FWS claims, than the previous five-year permitting system, then why would it give lenders any more confidence than the previous system?”
In addition, ABC calls for greater transparency concerning the release of bird (and bat) mortality data at specific wind energy sites. FWS claims that this will be the case, but, at present, these data are being treated as “proprietary information.” “These are public trust resources being taken and the public has a right to know,” Hutchins said.
ABC points out the need for better siting practices, including greater use of its Google Earth-based wind energy risk assessment map. The map shows important bird conservation areas across the United States, drawing upon numerous existing databases. Red areas on the map designate places where wind energy should not be developed due to the substantial risk to federally protected birds, while orange areas designate areas of significant concern, where great caution must be taken through pre-construction risk assessment.