Energy project developers can now seek long-term authorization to kill, capture or disturb eagles after the U.S. Fish and Wildlife Service issued a final rule Dec. 6 creating a 30-year permit for incidental eagle “takes,” a decision that was welcomed by the American Wind Energy Association and criticized as “unpatriotic” by U.S. Sen. David Vitter, R-La., ranking member of the Senate Environment and Public Works Committee.
Under the Bald and Golden Eagle Protection Act, it is illegal to “take” eagles – defined broadly as killing, capturing or disturbing the animals. However, in 2009, the FWS began issuing incidental take permits, five-year authorizations to kill or disturb eagles “when the taking is associated with, but not the purpose of, an otherwise lawful activity,” according to a summary of the law.
Wind energy developers, in particular, had sought a 30-year option, saying five-year permits are not practicable when project life cycles often exceed two decades. The Department of the Interior said Dec. 6 that the new regulation is better suited to monitoring and addressing the long-term impact of “renewable energy projects and other activities.”
“Renewable energy development is vitally important to our nation’s future, but it has to be done in the right way,” Interior Secretary Sally Jewell said in a news release. “The changes in this permitting program will help the renewable energy industry and others develop projects that can operate in the longer term, while ensuring bald and golden eagles continue to thrive for future generations.”
Vitter said the rule change was further proof of renewables’ favored status in the administration of President Barack Obama. “Permits to kill eagles just [seem] unpatriotic, and 30 years is a long time for some of these projects to accrue a high death rate,” Vitter said in a news release. “There needs to be a balanced approach in protecting migratory birds, while also supporting domestic energy, and with this newest decision, the administration has failed to achieve that.”
FWS spokesman Chris Tollefson said the new 30-year permit is not exclusive to the wind industry or renewable energy.
“This is not a wind-specific permit,” John Anderson, director of siting policy for AWEA, said in an interview Dec. 5. “From a business perspective, whether this is a wind facility or a power line or an oil and gas production field [or] military base … there’s a desire for long-term certainty. Nobody wants to say, ‘Okay, I’ve got a 25- to 30-year life-cycle facility, give me a five-year authorization and we’ll renegotiate in five years.”
‘Ill-advised and scientifically bankrupt’
While the FWS extended the maximum term of an eagle take permit to 30 years, the service reserved the right to issue permits of shorter duration “as appropriate.” Permits will include requirements for eagle conservation, and administrative fees will be collected at five-year intervals, the agency said.
Anderson said the final rule seems like a “reasoned approach.” Permit-holders will be able to “front-load five years of mitigation and then reassess at the five-year check-ins whether or not the compensatory mitigation amounts [need] to be adjusted upwards or downwards based on the actual impacts of the preceding period for the forthcoming five year period,” he said in an email Dec. 6.
The American Bird Conservancy, meanwhile, called the rule change a “setback.” The 30-year permit, like its five-year predecessor, is voluntary and relies on self-reporting by project owners, making it “highly vulnerable to deception,” George Fenwick, president of the American Bird Conservancy, said in a news release. He added: “I can’t imagine many things more important than protecting a bird so widely regarded as one of this country’s most iconic species.”
Eric Glitzenstein, a partner at Meyer Glitzenstein & Crystal LLP, said regulators “cut legal corners and disregarded public comments” when they crafted the new regulation. In a statement issued by the American Bird Conservancy, Glitzenstein said the group is reviewing available legal options “to ensure that eagles do not suffer needless death and maiming from this ill-advised and scientifically bankrupt weakening of eagle safeguards.”
The DOI said in a news release that the revised regulation is the product of “extensive stakeholder engagement and public comment,” adding that permits longer than five years would only be issued to applicants who “commit to adaptive management measures.”
Claims of preferential treatment
In November, Duke Energy Renewables, a subsidiary of Duke Energy Corp., agreed to pay $1 million under a plea agreement with federal prosecutors for killing 14 golden eagles and at least 149 other protected birds at two of the company’s wind farms in Wyoming.
The company avoided stiffer penalties, including prosecution under the Eagle Act, by cooperating with the government and taking steps to minimize hazards once the wind farms were operating, Robert Dreher, acting assistant attorney general for the Justice Department’s Environment and Natural Resources Division, said in a statement after the plea agreement was unsealed in U.S. District Court in Wyoming.
Galling to some, though, is the fact that the case marked the first-ever criminal prosecution of a wind farm owner for “unpermitted avian takings” under the Migratory Bird Treaty Act. On the same day the Duke plea agreement was unsealed, Vitter said it appeared the Justice Department used the case to make an example out of Duke and “shift the focus away from the administration’s bias” of using litigation against fossil fuel companies.
Vitter repeated the criticism Dec. 6. “The administration has repeatedly prosecuted oil, gas, and other businesses for taking birds, but looks the other way when wind farms or other renewable energy companies do the exact same thing,” he said.
In a Nov. 22 letter to Vitter and Sen. Lamar Alexander, R-Tenn., the DOJ defended its record of prosecutions under the MBTA, saying it does not distinguish between oil and gas producers and wind energy producers. “Violations of the MBTA are referred to the department only when companies fail to make good-faith efforts to avoid, minimize, and mitigate avian take,” wrote Deputy Assistant Attorney General Elliot Williams.
AWEA defended the industry’s record on avian issues, saying in a news release that it has taken “the most proactive and leading role of any utility-scale energy source to minimize wildlife impacts in general, and specifically for eagles, through constantly improving siting and monitoring techniques.”
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