According to the Fish & Wildlife Service (FWS), the West Butte permit would have allowed the take of up to three golden eagles over a period of five years as long as the company fulfilled its conservation commitments. Take means to kill, harass or disturb the birds, their nests or eggs.
West Butte, which is planning a 52-turbine project near Bend, Ore., first submitted its permit application in January 2012. It was the first wind developer to apply for a permit under the Bald and Golden Eagle Protection Act (BGEPA).
Regulations adopted in 2009 enabled the FWS to authorize, for the first time, the take of eagles for activities that are otherwise lawful but that result in either disturbance or mortality.
However, the developer withdrew its take permit request in March due to the difficulty in finding a power purchase agreement (PPA) for the project, explains Aaron Rachlin, managing member of R-Squared Energy LLC, the developer behind West Butte.
‘It was done mainly as a way to conserve cash,’ Rachlin says, adding that he and his partners continue to seek a buyer to purchase the wind farm's output. When a long-term PPA is signed, Rachlin says West Butte will resume the eagle-take application.
A spokesperson at the FWS's Pacific regional office in Portland, Ore., says the agency will work with West Butte if the developer revisits the application request.
‘We granted the request, along with an assurance that [the developer] could revive their application if they choose, without having to start the whole process over from the beginning,’ says the FWS spokesperson.
The FWS and other conservation partners have been working with the wind industry to find solutions to reduce the number of eagle mortalities at wind projects and bolster eagle populations through other conservation measures.
While the industry had been awaiting the outcome of the West Butte permit, wind developers received a bit more clarity from the FWS on April 26 with the new Eagle Conservation Plan Guidance (ECPG), intended to promote compliance with the BGEPA and Migratory Bird Treaty Act. For more on the guidance, click here.
Andy Spielman, a partner at law firm Hogan Lovells, explains that the new guidance should help developers comply with regulatory requirements and avoid the unintentional take of eagles.
Additionally, he notes, the guidance should assist the wind industry in providing the biological data needed to support programmatic permit applications for projects that may pose a risk to eagles.
Importantly, Spielman notes that the new ECPG does not change the standards established by the 2009 take permit rule. The guidance assumes that obtaining such a permit is possible and necessary for avoiding BGEPA liability.
According to Spielman, FWS may recommend that wind developers monitor eagle fatalities and disturbance, adopt reasonable measures to reduce eagle fatalities from historic levels and implement compensatory mitigation.