Bird group proposes ‘legally defensible’ overhaul of federal eagle program

Source: By Scott Streater, E&E reporter • Posted: Friday, August 8, 2014

A leading bird conservancy group has submitted a detailed plan to the Fish and Wildlife Service that includes revisions to its hotly debated eagle “take” rule that allows wind and other energy projects to injure, kill or disturb bald eagles for up to 30 years.

The American Bird Conservancy’s 18-point plan, outlined in a formal comment letter sent yesterday to Fish and Wildlife, also calls for adopting mandatory conditions for siting wind projects instead of the current voluntary guidelines that the group says in the letter are “hindering FWS’ ability to do its important job of protecting our nation’s public trust resources, including its ecologically-important native birds and bats.”

“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,” Michael Hutchins, national coordinator of ABC’s Bird Smart Wind Energy Campaign, said today in a statement.

Hutchins wrote the 11-page comment letter sent to Fish and Wildlife.

“Wind energy developments are going up in places they never should have and with little to no consideration for our native birds and bats,” he added. “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 recommended plan also calls on the service to require an independent third party to conduct environmental assessments of proposed wind projects, and for the service to devise and implement an independent “monitoring system” to document “post-construction” bird and bat deaths. This, the group says in the letter, should be required for all projects that receive incidental take permits that allow the operators to harm or kill protected species, such as bald eagles.

The comment letter is part of the public scoping process as Fish and Wildlife prepares to conduct either a lengthy environmental impact statement or an environmental assessment that takes a broad look at the service’s overall “eagle management objectives,” including the impacts of the new eagle take rule implemented earlier this year.

As part of the review, FWS announced in June that it will “[f]urther analyze the effects of longer” eagle take permits and evaluate whether the take rule needs to be tweaked (Greenwire, June 20).

The Fish and Wildlife announcement that it would review its eagle management policies came one day after ABC filed a federal lawsuit against the Interior Department and the service in the U.S. District Court for the Northern District of California in San Francisco. The suit challenges the new rule allowing Fish and Wildlife to grant programmatic incidental eagle take permits to wind farms, transmission projects and other long-term energy operations for a much longer period than the previous five-year term (Greenwire, June 19).

ABC asserts in the lawsuit that the revised eagle take rule announced in December and implemented this year is riddled with violations of federal law, including the National Environmental Policy Act, the Endangered Species Act, and the Bald and Golden Eagle Protection Act.

The group does not back away from those assertions in its comment letter, recommending that Fish and Wildlife “[h]old the permit duration to five years with the possibility of renewal.”

ABC’s plan outlined in the letter also recommends that the service clearly “articulate for each eagle take permit issued in a legally sound and scientifically defensible manner how it complies” with the Bald and Golden Eagle Protection Act “and ensures preservation of eagles, especially in the face of acknowledged uncertainty.”

Industry needs regulatory certainty

Laury Parramore, an FWS spokeswoman in Arlington, Va., said the service cannot comment on individual letters submitted as part of the public scoping process.

Fish and Wildlife also has declined in the past to discuss the ABC lawsuit, citing policies against publicly commenting on ongoing litigation.

The ABC plan is one of at least 72 formal comments the service has received since announcing in June that it was going to review its eagle management policies, Parramore said.

Two top officials with the American Wind Energy Association were not available to comment by publication time.

But AWEA has defended the expanded eagle take rule, arguing that the industry takes enormous steps to protect birds, more so than other industries, and that when it comes to eagles, it has been unfairly singled out. The trade group has pointed to studies that show eagle populations over the last 40 years have stabilized and that the wind power industry conducts more pre- and post-construction studies to guard against impacts to eagles and other sensitive avian species than any other energy sector.

The wind industry says such incidental take permits give it more regulatory certainty while allowing it to incorporate measures that help protect eagles. And the industry has argued that it makes no sense not to have an eagle permitting system that covers the typical 30-year life of an operating commercial-scale wind farm.

George Fenwick, ABC’s president, said in a statement that Fish and Wildlife was bowing to industry pressure when it agreed to increase sixfold the duration of the take permits to 30 years.

“We understand that the new 30-year rule was requested by the wind industry to give more confidence to investors,” Fenwick said in the statement.

There is no evidence that the new rule will accomplish that goal, he said.

“There is clearly a need for a new scientifically-credible, legally defensible, and more transparent approach to permitting for wind energy facilities that meets the stated goals” of the Bald and Golden Eagle Protection Act, Endangered Species Act and Migratory Bird Treaty Act, according to ABC’s comment letter.

One of ABC’s top recommendations is for the service to “provide all data on bird mortality at specific wind energy sites for meaningful stakeholder (public) review and analysis on a regular basis, including analyses of the effectiveness of post-construction mitigation in reducing eagle (and other federally-protected birds and bats) mortality,” the group states in the letter.

ABC also recommends that the service develop “effective plans for compensation for the unavoidable loss” of federally protected birds and bats.

“These are public trust resources being taken and the public has a right to know,” Hutchins said in his statement.