Group retools petition requesting FWS permits for bird kills 

Source: Phil Taylor, E&E reporter • Posted: Wednesday, February 18, 2015

A conservation group has renewed its push for the Fish and Wildlife Service to tighten regulation of bird deaths at wind farms.

The American Bird Conservancy says the agency should establish a mandatory permitting regime under the Migratory Bird Treaty Act (MBTA), a move it argued would bolster protections for wildlife while providing legal certainty for wind developers.

The group filed a petition Thursday updating its December 2011 petition asking FWS to prepare a permitting scheme for wind energy projects. Fish and Wildlife denied that petition in March 2012.

Michael Hutchins, who leads ABC’s wind energy campaign, said the new petition incorporates new science and regulatory ideas that add “further credence and justification” to an MBTA permitting regime.

“This is the second time we have petitioned for improvements on the permitting issue — this time with new and even stronger arguments — and it appears that FWS is now starting a process that could lead to that becoming a reality,” Hutchins said.

ABC said it expects a 10-fold increase in the number of U.S. wind turbines by 2030, which it projects will kill between 1.4 million and 2 million birds each year.

Voluntary guidelines established by the Fish and Wildlife Service in spring 2012 to improve the siting and operation of wind farms have failed to keep wind turbines from areas of high importance to federally protected birds, ABC said. Roughly 18,000 turbines have been planned within the migration corridor of the endangered whooping crane, with 1,800 more planned within greater sage grouse breeding strongholds, ABC said.

The guidelines, which encourage wind developers to consult with the FWS as early as possible to allow biologists to assess a project’s potential impacts, were strongly endorsed by the National Audubon Society, Defenders of Wildlife and the American Wind Energy Association (Greenwire, March 23, 2012).

But “by allowing the industry itself to make siting decisions in this manner, FWS has permitted widespread disregard for legal mandates the service is entrusted to enforce,” the ABC petition states.

FWS Director Dan Ashe denied ABC’s earlier petition in March 2012, saying the wind energy guidelines enjoyed strong support from industry and bird advocacy groups. He said FWS would compile information from wind farms that implement the guidelines to monitor their effectiveness.

Moreover, he said impacts to migratory birds are being further reduced by agencies including the Bureau of Land Management, which signed a memorandum of understanding with FWS in 2010 pledging to incorporate bird conservation measures in their permitting.

Tom Vinson, vice president of federal regulatory affairs at AWEA, said post-construction surveys at wind farms show that the industry’s impacts on birds are “minimal” and that developers are following the most extensive siting guidance of any energy sector.

“The wind energy industry does more to consult with wildlife agencies during development, make changes to proposed projects based on Fish and Wildlife Service recommendations, conduct pre-construction wildlife studies, conduct post-construction monitoring of impacts and mitigate for impacts than any other industry of which we are aware,” he said. “We as an industry are proud of our pro-active efforts to reduce and mitigate for our limited environmental impacts.”

Agency plans EIS

The Migratory Bird Treaty Act of 1918 prohibits the killing or harming of more than 1,000 bird species. The 10th U.S. Circuit Court of Appeals has ruled that wind farms, power lines and other energy projects can be prosecuted even for accidentally killing birds.

Fish and Wildlife has so far exercised prosecutorial discretion in enforcing the law. Since December 2013, FWS and the Justice Department have cracked down on two utilities — Duke Energy Corp. and PacifiCorp Energy — for wind farms in Wyoming that killed hundreds of migratory birds, including eagles, collecting millions of dollars in fines and penalties under the MBTA.

But for other wind farms that follow FWS’s voluntary siting guidelines and make good-faith efforts to avoid, minimize and mitigate for bird impacts, FWS has declined to enforce the MBTA.

The ABC petition comes as FWS prepares to issue a “notice of intent” to prepare an environmental impact statement exploring the issuance of incidental take permits under the MBTA (Greenwire, Feb. 13).

The agency has said little about what sectors — power lines, communication towers or wind farms, for example — would be covered by such a permitting regime. Nor has it said how long such permits would last, how many species they would cover and whether they would apply to individual projects or be issued on a programmatic scale.

But FWS said it wants to create legal assurances for companies that face liabilities under the migratory bird law.

House Republicans in January introduced a bill that would exempt energy companies and others who unintentionally kill or harm migratory birds from criminal penalties under the MBTA (E&ENews PM, Jan. 23).