Protect the Eagles: End USFWS’s 30-Year ‘Take’ Permits

“The 30-year eagle take regulations are another example of the Obama White House rushing poorly considered policy that will have significant impact. Given the history of collaboration between Big Wind and FWS officials, the motives behind this push should be questioned by Congress and the public.”

“Making American Great Again means restoring our appreciation and respect for America’s Symbol – The Eagle!”

Editor’s Note: This essay is the final in a series aimed at highlighting the most harmful wind energy-related policies of the Obama era. In this piece we examine the relationship between the wind industry and US Fish and Wildlife Service officials which has led to reckless ‘midnight rules’ that support 30-year permits to destroy America’s symbol – the Eagle. We recommend Congress roll-back the permit regulations under the Congressional Review Act.

Current estimates put fatal collisions [1] as high as 573,000 birds annually in the United States with greater risks at sites with taller hub heights. Federal statutes that protect migratory birds and eagles are on the books but rarely enforced. Only one wind company, Duke Energy Renewables Inc, has ever been prosecuted under the Migratory Bird Treaty Act (MTBA) [2] for failing to “make all reasonable efforts” to avoid the deaths after being warned. Duke Energy plead guilty and agreed to pay $1 million in fines, implement additional mitigation strategies to avoid/minimize collisions, and to apply for Eagle Take Permits at each of the two wind projects where the violations were found.

The lack of enforcement is no surprise.

For more than a decade, the wind industry, its boosters in the environmental movement and officials, not biologists, at the US Fish and Wildlife Service (FWS) have worked systematically to weaken guidelines meant to protect eagles, migratory birds and wildlife from the spinning blades.

The Big Wind-FWS Collaboration

The collaboration between Big Wind and FWS officials dates back more than a decade beginning with the May 2003 release of FWS’ interim Guidance on Avoiding and Minimizing Wildlife Impacted from Wind Turbines. The Guidance, was voluntary only, and provided no assurance that if followed, would protect against violations of MBTA or the Bald and Golden Eagle Protection Act (BGEPA).

Regardless, the wind industry and some environmentalists called the Guidance “impractical, inappropriately restrictive, and developed without adequate industry input,” and announced invitation-only discussions with FWS to “develop guidelines that everyone could agree on.”

Windaction.org and others challenged the effort under the Federal Advisory Committee Act (“FACA”) (5 U.S.C. App 2) and the meetings were rightly, but abruptly cancelled.

But by 2008, FWS revisited the topic and this time followed the FACA process, somewhat. Twenty-two people were selected to sit on the Committee, but contrary to FACA requirements the members lacked the scientific expertise on species and habitats likely to be most adversely affected by the expansion of wind power. Nearly 1/3 of the Committee’s members – 7 of 22 members – directly represented “wind energy development interests,” including two attorneys with private law firms that earned income from representing wind power interests.

And, at least four of the other members had no particular expertise or experience in avoiding or minimizing wildlife impacts (the purported purpose of the Committee) but did have clear institutional interests in promoting and expanding wind power.

The resulting report was predictable. The Committee’s draft recommendations, when finally released in 2010 read more as an unabashed endorsement of wind power than a rigorous effort to address the harmful impacts of wind power on wildlife.

Eagle Take Permits

At around the same time (September 2009), the FWS also issued rules granting 5-year take permits under the Bald and Golden Eagle Protection Act (BGEPA).

BGEPA, enacted in 1940, allows for criminal and civil penalties to be imposed on anyone who takes, possesses, sells, purchases, barters, offers to sell, purchases or barters, transports, exports or imports bald and golden eagles, except as permitted by the Secretary of the Department of the Interior (DOI). Congress’ intent was to “ban all threats to bald and golden eagles’ ability to survive and sought to eliminate even incidental dangers to their survival.”[3]

Under FWS rules, if a 5-year permit is issued, anyone seeking to continue their activity beyond five years would need to apply again. This granted the Service, and the public, the opportunity to assess the impacts of the activity and decide if a new permit was appropriate. At that time, there was much less wind energy activity and the pressure to implement periods beyond 5-years did not come into play.

FWS Gives Again

But shortly after the 5-year rule was enacted, the wind industry pressed to have the permit extended for up to 30 years. FWS agreed to pursue expanding the term claiming “the stated purpose of the proposed 30-year rule was to ‘facilitate the development of renewable energy and other projects designed to be in operation for many decades” and to “provide more certainty to project proponents and their funding sources.” 77 Fed. Reg. 22,267, 22,267 (Apr. 13, 2012) Under the 30-year permit, FWS would conduct ‘internal’ 5-year reviews which would be closed to the public.

DOI received public comment on proposed regulations but stopped short of conducting an environmental impact statement (EIS), claiming the change from 5 years to 30 years was administrative in nature and therefore not required under NEPA. But DOI’s own experts disagreed. Eliza Savage, FWS’ Eagle Program Manager for the Division of Migratory Bird Management with responsibility for overseeing the drafting and revision of the rule, wrote on March 11, 2013 that the decision to increase the maximum period from 5 to 30 years was “more than ‘administrative’ in nature and that “[r]eal, significant, and cumulative biological impacts will result if the proposed regulatory changes are implemented.”

Despite this thinking, Obama’s Director of FWS, Dan Ashe, overruled his staff and ordered they proceed with the rule claiming the NGO’s would not sue. But the NGO’s did sue and on August 11, 2015, the court set aside the 30-year rule.[4]

But it didn’t end there. The Big Wind-FWS collaboration rushed through a second attempt to adopt 30-year eagle take permits. This time an EIS was developed but not much else changed. Under the new rules, wind companies can take/kill a preset number of bald eagles (perhaps as high as 4,200[5] annually) without consequence under BGEPA.

For golden eagles, any take would require “offsetting compensatory mitigation” where the applicant will fund conservation measures intended to protect 1.2 eagles for any one taken. It is not clear what data was available to the Service or how the data was analyzed in developing the rules or assessing the impact of the permit on eagle populations 30 years out. Nor is there concrete evidence of how effective compensatory mitigation is in maintaining/growing population size.

Nonetheless, the new rules were published on December 16, 2016 and went into effect on January 17, 2017.

End the Midnight Rules

The 30-year eagle take regulations are another example of the Obama White House rushing poorly considered policy that will have significant impact. Given the history of collaboration between Big Wind and FWS officials, the motives behind this push should be questioned by Congress and the public.

The Senate is currently debating resolutions that will provide for the overturning of Obama-era midnight rules under the Congressional Review Act. The FWS’ 30-year eagle take regulations meet the criteria to be on that list and should be given the highest priority for rolling back. In the coming weeks, Congress needs to act with urgency to vacate the FWS 30-year take permit regulations and maintain the 5-year permits.

Making American Great Again means restoring our appreciation and respect for America’s Symbol – The Eagle!

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[1] Bird fatalities caused by turbine collisions represent “direct effects.” Few studies have examined the “indirect effects” of wind project siting where bird habitats are forever altered as a consequence of the project and related infrastructure including roads and transmission. Habitat fragment and nest destruction are creating significant stress birds.

[2] Fourteen golden eagles and 149 other protected birds were discovered at two of Duke Energy’s wind projects in Converse County, Wyoming.

[3] United States v. Fryberg, 622 F.2d 1010, 1015-16 (9th Cir. 1980).

[4] Case No. 14-CV-02830-LHK Order Granting In Part And Denying In Part Motions For Summary Judgment of Plaintiffs, Federal Defendants, And Defendant-Intervenor http://abcbirds.org/wp-content/uploads/2015/08/30-year-Eagle-Permit-Ruling.pdf

[5] According to FWS, this figure bald eagles is the amount of take that the Service estimates could occur without resulting in a population decline.