As a lot of eagle fans are aware, the Fish and Wildlife Service recently announced a plan that would allow companies to kill federally protected bald and golden eagles for up to 30 years. The draft rule will extend the current permit duration of five years to up to 30 years, giving wind farms, power lines and other large projects license to injure, disturb or kill a limited number of eagles in exchange for commitments to avoid and mitigate harm.
The proposed rule has positives and negatives. Before we discuss them further, the public is able to comment on the rule until July 5th, 2016, although comments on the information collection aspects of this rule must be received on or before June 6, 2016. You can comment by going here: https://federalregister.gov/a/2016-10542 and pressing the green ‘submit a comment’ button on the top right of the page. We encourage people to read through some of the public comments prior to submitting their own. The Fish and Wildlife Service also has comments and responses available on its website.
Please read the rest of this blog for more information prior to commenting.
The US Fish and Wildlife Service initially introduced a 30-year take rule in 2009. After reviewing the proposal, the American Bird Conservancy took the US Department of the Interior to court in 2014, stating that the Department of the Interior violated federal laws when it created a regulation allowing wind energy and other companies to obtain 30-year permits to kill protected Bald and Golden Eagles without prosecution by the federal government. The court agreed and the rule was invalidated in 2015. The Fish and Wildlife Service introduced a new rule in 2016, although it did not remove the 30-year take.
The current permitting program is voluntary: that is, companies can choose whether or not to join. The Fish and Wildlife Service hopes to bring a greater number of utility companies into the permitting program by changing the mix of penalties and incentives. Although the plan is not without negatives, more participation will yield more data about best practices for wind power and help determine how many birds and bats are killed by turbines.
- The plan seems heavily predicated on mitigation, and there are only a few mitigation methods for wind energy that have been verified to reduce bird kills.
- Post-construction eagle mortality data is collected by paid consultants to industry instead of third-party experts.
- 30 years is a very long time to allow take of bald and golden eagles. Technology and bird populations can change much more rapidly than the proposed take period.
- Permits remain voluntary. Companies can chose not to participate at all, although they will suffer legal penalties under the Bald and Golden Eagle Act and the Migratory Bird Treaty Act if they are found to have killed eagles. Very little of the reporting around the proposed changes has pointed this out, leading to a lot of misconception about who the act would apply to and why the act has been proposed.
- The proposed regulations require applicants for permits with durations of longer than 5 years to conduct a minimum of 2 years of pre-application surveys. Surveys are currently voluntary, just like everything else.
- Since participation is voluntary, many companies currently opt out. By changing the rules, FWS is hoping to entice more companies to join the program. In exchange for a 30-year take permit, companies that join the permitting program will be under additional government scrutiny and are required to submit to a five-year review by the FWS, even though the 30-year take permit still stands overall. Companies found to be exceeding their take limits will be subject to additional penalties.
- The new rule allows for more flexibility in responding to local conditions and adopting new technologies.
A permitted bald eagle take is problematic to most of us and, as the American Bird Conservancy stated, “…‘green energy’ isn’t green if it is killing thousands of eagles and tens of thousands of other birds annually.” [link to statement]. However, no form of energy is free of cost to wildlife and wildlands. Coal mining is environmentally destructive in many ways, nuclear energy has a waste disposal problem, birds and bats hit turbines, and electricity produced by all three is transmitted over hundreds of thousands of miles of electrical lines that come with their own collision and electrocution risks. At this time, the Raptor Resource Project supports properly sited wind power as a renewable energy source that helps reduce the threats posed to birds and people by climate change. But we also believe that wind farms can and should be properly sited and operated in ways that minimize harm to federally-protected species. We will be following the American Bird Conservancy very closely on this issue and encourage those of you who are concerned about the issue to submit comments. Please remember to write clearly and constructively if you do. I have participated in public comment meetings, and incoherent or inaccurate comments are not taken seriously by rule makers.
I was just emailed this link yesterday: http://www.postbulletin.com/news/local/eagle-nest-puts-brakes-on-xcel-energy-wind-turbines/article_d9026393-996a-53f0-9b1b-3e4cef7310c5.html. The article is about an Xcel Energy wind project. Xcel Energy was the first company to sign a Memorandum of Understanding (MOU) with the Fish and Wildlife Service, which Bob was always very proud of. It shows the benefits that participating in these kinds of programs can yield, as well as the challenges of accommodating a bald eagle population with some very different behaviors and territories than those of America’s historic bald eagles.