American Bird Conservancy examines FWS’ final eagle rule PEIS 

The U.S. Fish & Wildlife Service (FWS) has issued a programmatic environmental impact statement (PEIS) on its forthcoming Revised Eagle Rule, which may have a significant impact on the wind industry, with the final rule itself expected in December.

As reported, the American Bird Conservancy (ABC) will be carefully reviewing the PEIS and the final rule, as the conservancy remains deeply concerned about the rule’s potential negative impacts on the nation’s Bald and Golden Eagle populations.

“We are pleased that FWS is going through the National Environmental Policy Act (NEPA) process, something that, in violation of U.S. law, was not done adequately in the first iteration of this rule,” says Michael Hutchins, director of ABC’s Bird-Smart Wind Energy Campaign. “We still have significant concerns over the revised version. These need to be addressed if eagle populations are to be sustained.”

ABC cites Greenwire in noting that the FWS’s PEIS analysis “clears the way to allow energy companies and others to obtain 30-year permits to kill, harm or disturb protected bald and golden eagles.”

According to ABC, it identified serious problems with the initial version of the eagle rule, which allowed FWS to issue 30-year eagle “take” permits to wind energy developers.

In 2015, ABC won a court battle to require FWS to follow the process laid out by the NEPA, including the preparation of an environmental impact statement and consultation with Native American tribes, for whom eagles are sacred. As a result of the lawsuit, a federal judge overturned the 30-year rule, agreeing with ABC that it violated NEPA.

After the court ruling, FWS set out to revise its eagle-management plan, and in June 2016, ABC submitted comments on the proposed revisions. At that time, concerns included the following:

• FWS’ willingness to allow Golden Eagle take when its data suggest a declining population – especially take in the potentially distinct Eastern Golden Eagle population that now only consists of a few hundred individuals;

• Disregard of a federal judge’s comments on the importance of public involvement in and transparency about the eagle rule’s provision for “internal” five-year reviews of 30-year permits, which would likely be a violation of NEPA;

• Allowing wind companies’ paid contractors to assess risks to wildlife, record fatalities, and self-report violations of our wildlife protection laws – a direct conflict of interest;

• Permitting wind energy companies to collect and hide bird fatality data from the public, treating that data as “trade secrets”;

• Lack of any supporting evidence that wind energy companies will comply with FWS’ voluntary guidelines under a 30-year rule when they have failed to do so with five-year permits;

• FWS statement in the revised rule that it “lacks the authority” to prohibit wind energy development in areas important to eagles and that it cannot require developers to apply for eagle take permits;

• Lack of a requirement for incidental take permits when protected species are present, as should be required under the Bald and Golden Eagle Protection Act (BGEPA); and

• Failure to consider heightened enforcement of our existing wildlife protection laws, including the Migratory Bird Treaty Act (MBTA), the Endangered Species Act (ESA), and the BGEPA.

ABC says it will be reading and carefully analyzing the final rule, hoping to see that these key concerns have been addressed.