PacifiCorp Energy, a subsidiary of PacifiCorp, based in Portland, Oregon, pleaded guilty in U.S. District Court in Wyoming today to violating the federal Migratory Bird Treaty Act (MBTA) in connection with the deaths of protected birds, including golden eagles, at two of the company’s wind projects in Wyoming.
Under a plea agreement with the government, the company was sentenced to pay fines, restitution and community service totaling $2.5 million and was placed on probation for five years, during which it must implement an environmental compliance plan aimed at preventing bird deaths at the company’s four commercial wind projects in the state. The company is also required to apply for Eagle Take Permits which, if granted, will provide a framework for minimizing and mitigating the deaths of golden eagles at the wind projects.
The charges stem from the discovery of the carcasses of 38 golden eagles and 336 other protected birds, including hawks, blackbirds, larks, wrens and sparrows by the company at its “Seven Mile Hill” and “Glenrock/Rolling Hills” wind projects in Carbon and Converse Counties between 2009 and the present. The two wind projects are comprised of 237 large wind turbines sited on private and company-owned land.
“PacifiCorp Energy built two of its Wyoming wind projects in a manner it knew would likely result in the deaths of eagles and other protected birds,” said Sam Hirsch, Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division. “PacifiCorp has taken steps to minimize the hazard, and with this plea agreement has committed to a comprehensive plan to continue such efforts in partnership with the U.S. Fish and Wildlife Service, to seek eagle take permits for each project, and to work to prevent future eagle deaths.”
In documents presented in court, the government alleged that PacifiCorp Energy failed to make all reasonable efforts to build the projects in a way that would avoid the risk of avian deaths by collision with turbine blades, despite prior guidance from the U.S. Fish and Wildlife Service (FWS). However, the company cooperated with the FWS investigation and has already implemented measures aimed at minimizing avian deaths at the sites.
“Improperly sited and operated wind energy facilities can kill significant numbers of federally protected birds and other species,” said U.S. Fish and Wildlife Service Director Dan Ashe, urging developers to follow the Service’s Land-based Wind Energy Guidelines. “That’s why it’s imperative that wind energy developers work with the Fish and Wildlife Service to minimize these impacts at every stage in the process.”
More than 1,000 species of birds, including bald and golden eagles, are protected under the Migratory Bird Treaty Act (MBTA). The MBTA, enacted in 1918, implements this country’s commitments under avian protection treaties with Great Britain (for Canada), Mexico, Japan and Russia. The MBTA provides a misdemeanor criminal sanction for the unpermitted taking of a listed species by any means and in any manner, regardless of fault. The maximum penalty for an unpermitted corporate taking under the MBTA is $15,000 or twice the gross gain or loss resulting from the offense, and five years’ probation.
Commercial wind power projects can cause the deaths of federally protected birds in four primary ways: collision with wind turbines, collision with associated meteorological towers, collision with, or electrocution by, associated electrical power facilities, and nest abandonment or behavior avoidance from habitat modification. Collision and electrocution risks from power lines (collisions and electrocutions) and guyed structures (collision) have been known to the utility and communication industries for decades, and specific methods of minimizing and avoiding the risks have been developed, in conjunction with the FWS. The FWS issued its first interim guidance about how wind project developers could avoid impacts to wildlife from wind turbines in 2003, and replaced these with a “tiered” approach outlined in the Land-Based Wind Energy Guidelines (2012 LBWEGs), developed with the wind industry starting in 2007 and released in final form by the USFWS on March 23, 2012. The Service also released Eagle Conservation Plan Guidance in April 2013 and strongly recommends that companies planning or operating wind power facilities in areas where eagles occur work with the agency to implement that guidance completely.
For wind projects, due diligence during the pre-construction stage—as described in the 2003 Interim Guidance and tiers I through III in the 2012 LBWEGs— requires surveying the wildlife present in the proposed project area, consulting with agency professionals, determining whether the risk to wildlife is too high to justify proceeding and, if not, carefully siting turbines so as to avoid and minimize the risk as much as possible. This is critically important because no post-construction remedies, known as “advanced conservation practices” have been developed that can “render safe” a wind turbine placed in a location of high avian collision risk. Other experimental measures such as prey reduction, and devices that detect and deter avian proximity to turbines are being tested. In the western United States, golden eagles may be particularly susceptible to wind turbine blade collision by wind power facilities constructed in areas of high eagle use.
The $400,000 fine imposed in the case will be directed to the federally-administered North American Wetlands Conservation Fund. The company will also pay $200,000 in restitution to the State of Wyoming, and perform community service by making a $1.9 million payment to the congressionally-chartered National Fish and Wildlife Foundation, designated for projects aimed at preserving golden eagles and increasing the understanding of ways to minimize and monitor interactions between eagles and commercial wind power facilities, as well as enhance eagle rehabilitation and conservation efforts in Wyoming. The company must implement a migratory bird compliance plan containing specific measures to avoid and minimize golden eagle and other avian wildlife mortalities at the company’s four commercial wind projects in Wyoming.
According to papers filed with the court, PacifiCorp will spend approximately $600,000 per year implementing the compliance plan. The company must also apply to the U.S. Fish and Wildlife Service for a Programmatic Eagle Take Permit at each of the four wind projects cited in the case.
The case was investigated by Special Agents of the U.S. Fish and Wildlife Service and prosecuted by Senior Counsel Robert S. Anderson of the Justice Department’s Environmental Crimes Section of the Environment and Natural Resources Division and Assistant U.S. Attorney Jason Conder of the District of Wyoming.
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