State regulators are monitoring a proposed regulation that would give the wind energy industry permits for incidental eagle deaths for up to 30 years.
While the new rule would allow permits that last three decades, they would also require a review every five years, bringing them more in line with existing eagle take permit regulations for all industries.
Eagle deaths have become an obstacle for wind developers in recent years, with one North Carolina company receiving a $1 million fine for killing birds at a wind farm near Glenrock. The length of take permits have also been a point of contention between industry and environmentalists.
The issue centers around a 2013 Fish and Wildlife decision giving wind farms and related transmission facilities the ability to acquire 30-year eagle take permits, even as other industries continue to be limited to five years.
A federal judge in California struck down the 30-year wind farm rule in 2014 after conservation groups challenged it on environmental grounds.
In February, the federal government said it was dropping its appeal of the court’s decision. Tyler Abbott, a deputy field supervisor for the U.S. Fish and Wildlife Service, Wyoming Ecological Services, told state lawmakers recently that a new rule, which contains the five-year review, was emerging as a result of those actions.
“That is what is being evaluated right now nationally, that is what that EIS (Environmental Impact Statement) is all about, and that our national office is working on,” Abbott said.
Meanwhile, industry groups, such as the Petroleum Association of Wyoming, also want to be included in the 30-year time frame provision.
Abbott told lawmakers Fish and Wildlife currently has a general policy of not seeking prosecution of any company that works cooperatively with regulators to create a bird protection plan on a project.
Furthermore, Abbott said the federal courts are divided on whether a company can even be charged for unintentional eagle kills under the Bald and Golden Eagle Protection Act. The 10th Circuit Court, which serves Wyoming, has taken the position the government can’t prosecute, while federal courts in other parts of the country have ruled it can.
Abbott also explained the Fish and Wildlife Service does not have the authority to mandate companies get an incidental take permit. While some developers choose to create mitigation plans, there were others who do not want to go through the process, and simply risk a violation, he said.
Concerning enforcement, Abbott noted the Fish and Wildlife Service has only three enforcement officers in the state, and any recording of eagle deaths essentially falls on the company.
“Whether it’s wind energy development, or oil and gas, or for any other project, whether it’s solar or whatever, it really is up to the companies to implement that,” Abbott said.
The public comment period on the new Fish and Wildlife Service rules closed in July, and the agency is expected to release its new regulations later this year.
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