Feds Release Long-Anticipated Final Rule For Eagle Take Permits

Posted by Betsy Lillian on December 15, 2016 No Comments
Categories : Featured, Policy Watch

The U.S. Fish & Wildlife Service (FWS) has released the final version of its long-anticipated revised eagle management plan.

According to the American Wind Energy Association (AWEA), the final eagle permit rule is intended to reduce harm to bald and golden eagles from any unintentional source by setting very conservative limits to impacts on eagles and requiring permit applicants to submit conservation plans that offset any such impacts.

In the case of golden eagles, under the final rule, permittees must even go beyond offsetting any potential impacts and provide a net conservation benefit to the species, AWEA explains. In short, through the issuance of permits, eagles realize a conservation benefit that helps to ensure the continued stability and growth of their populations, the group adds.

According to the FWS, under the revised rule, permits may be granted only when the applicant agrees to specific measures to first reduce take to the greatest extent possible. To protect local eagle populations, the FWS says it uses “precautionary, conservative” estimates to arrive at the eagle take number for each permit – meaning fewer birds will likely end up being taken than are permitted. The permittee also must agree to assume additional responsibility for monitoring eagle loss at its facilities – which is critical to developing a better understanding of ways impacts to eagles can be reduced in the future, the agency says.

Changes to the regulations include a new requirement that monitoring for long-term permits be conducted by independent contractors who report directly to the FWS and that their monitoring data to be made available to the public. The maximum term for a permit is extended to 30 years, but longer-term permits will be closely re-evaluated every five years. After each five-year period, the permittee will need to review the permit and monitoring data with FWS biologists to ensure permit terms are being maintained and eagle populations are conserved. Other changes to the rule include revisions to permit issuance criteria, compensatory mitigation standards, criteria for eagle nest removal permits, permit application requirements and fees.

The American Bird Conservancy (ABC) notes that the eagle take permit program was originally proposed in 2007 under the administration of George W. Bush; however, it was not designed with the wind industry in mind (or any other industry). Instead, it was developed in anticipation of delisting the bald eagle under the Endangered Species Act (ESA). The bald eagle was delisted in August 2007, and the first eagle permit rule was finalized in 2009.

ABC says its initial assessment of the rule finds some positive elements, including a promise that eagle mortality data will be collected by independent, third-party experts using standardized methods. However, the group says there are also “significant weaknesses and omissions.”

“While we are pleased with some aspects of the new rule, including increased transparency and independence of eagle kill data, we still have some serious concerns,” says Dr. Michael Hutchins, director of ABC’s Bird-Smart Wind Energy Campaign. “The most prominent of these are the fate of the small eastern Golden Eagle population, which consists of only a few hundred individuals, and the lack of public involvement in the five-year ‘internal’ reviews of the 30-year take permits.”

Under the rule, the FWS would issue 30-year take permits to wind energy companies, which are protected from prosecution if their activities harm eagles, says ABC, which adds that “internal reviews” of the permits should provide an opportunity to cancel or amend the permit if the wind energy facility is killing more eagles than anticipated.

However, under the new rule, these five-year reviews will usually not include feedback from the public. That also excludes conservation groups and other stakeholders from the process, according to ABC.

Instead of public input, the FWS would use what it calls “adaptive management.” However, given the FWS’ already stretched resources, ABC believes that enhanced public oversight is essential. In addition, the lack of an opportunity for public input makes the rule vulnerable to legal challenges under the National Environmental Policy Act (NEPA), the group continues.

“Public oversight and input from concerned conservation organizations are critical in order to assess the specific causes of eagle deaths,” says Hutchins. “Other areas where public input is important include assessing the effectiveness of mitigation strategies used at wind energy facilities and reviewing the appropriateness of regulatory actions, which are at the sole discretion of FWS.”

In 2015, in response to the FWS’ previous 30-year eagle rule, ABC won a court battle to require the FWS to follow the process required by NEPA, including the preparation of an environmental impact statement (EIS) and consultation with Native American tribes.

As a result of the lawsuit, a federal judge overturned the former rule and agreed with ABC that the lack of public oversight during the five-year reviews was a potential NEPA violation.

“Unfortunately, this new rule again risks violating NEPA,” Hutchins claims.

In addition, the new 30-year eagle take rule leaves Golden Eagles – particularly, the birds’ small Eastern population – too much at risk, the group says.

“We understand – and this is a good thing – that no permits are to be given for the take of Golden Eagles unless the permittee implements compensatory mitigation,” Hutchins continues. “But it’s also troubling because we don’t know much about the effectiveness of mitigation yet.”

ABC says it would like to see increased enforcement of the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act as part of this process. Without “consistent and predictable enforcement,” the group says, few companies are likely to adhere to the guidelines. Siting is also of critical importance, and enforcement and permitting need to be used effectively to ensure that projects are not built in the highest-risk locations, ABC adds.

Finally, ABC remains concerned about the lack of incentives for wind energy companies to comply with the FWS’ current voluntary guidelines on eagle take.

“We fully understand the challenges that the service faces, especially given large cuts to its finances over the past several years,” says Hutchins. “But we do not believe this absolves the service of its obligations, both legally and morally, to protect our irreplaceable wildlife, including our iconic eagles.”

Tom Kiernan, CEO of AWEA, says, “Though we’re reserving judgment until we fully digest the rule, we strongly support its core purpose — eagle conservation.

“We hope the final rule provides a workable permitting framework that gives the private sector necessary clarity – while further reducing the already minimal impact the wind industry has and maintaining healthy eagle populations for generations to come,” he says.

“If you want to hunt deer, you are required to get a license,” Hutchins adds. “Why do some wind energy companies get a pass to kill eagles without first getting a permit, especially when they build in important eagle habitat?”

In 2014, EDF Renewable Energy became the first wind developer to nail down an eagle take permit: The company received a five-year permit for its Shiloh IV wind project in California.

According to AWEA, thousands of eagles die every year for a variety of reasons – most from natural causes. The vast majority of human-caused eagle deaths result from intentional poisoning and shooting, as well as collisions with cars and buildings – many of which are unpermitted and, therefore, do not provide conservation benefits to eagles, AWEA continues.

In fact, says AWEA, more than 90% of wind farms do not harm any eagles at all, and of the limited number that do have any impacts, the majority of them take only a single eagle over the life of the project (30 or more years).

The group adds that an examination of publicly available data of all known eagle fatalities shows that collisions with wind turbines at modern wind farms are responsible for under 3% of all documented, human-caused golden eagle deaths. Impacts on bald eagles are even rarer; indeed, there are only a handful of documented bald eagle fatalities in the entire history of the U.S. wind industry, according to AWEA.

However, AWEA maintains that the U.S. wind energy industry will continue to proactively work to avoid and minimize the limited impacts it may have on eagles.

“The impact of development on wildlife and their habitats can often be significantly reduced if there is the will and a framework to guide us,” states Dan Ashe, director of the FWS. “The service has a long history of working cooperatively with multiple industry sectors through the permitting system to reduce impacts to eagles and other federally protected wildlife species. Renewable energy development is increasing, reducing carbon emissions that jeopardize humans and wildlife through climate change. The service is working with these and other interests to help them implement practices to site, design and operate facilities in ways that reduce impacts to eagles and other animals.”

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