All posts tagged 'golden eagle'

Wind Project "Take" Permits Extended to 30 Years - Eagles Nonplussed

January 7, 2014 10:52
by J. Wylie Donald

Tomorrow bald and golden eagles will sleep less soundly.  On January 8 the Fish and Wildlife Service’s new rule revising the regulations for permits for the taking of golden eagles and bald eagles goes into effect.  According to the FWS, “This change will facilitate the responsible development of renewable energy and other projects designed to operate for decades, while continuing to protect eagles consistent with our statutory mandates.”

Eagles and other migratory birds are a substantial threat to wind projects and not because they will cause turbine blades to fail.  Rather, turbine blades (and to a lesser extent, towers, guy wires, transmission lines and other constructions in the air space) can be lethal to birds.  This poses a serious problem for wind energy companies as birds are legally protected by the Migratory Bird Treaty Act (16 U.S.C. §§ 703-712) and eagles further protected by the Bald and Golden Eagle Protection Act (16 USC §§ 668-668d)

Duke Energy Renewables, Inc. recently ran afoul of these requirements at its 176 turbine Campbell Hill and Top of the World wind projects in Wyoming, where at least 14 golden eagles died between 2009 and 2013.   In November Duke accepted a plea agreement in “the first ever criminal enforcement of the Migratory Bird Treaty Act for unpermitted avian takings at wind projects.”  It included:

• Fines - $400,000 
• Restitution - $100,000 to the State of Wyoming
• Community Service - $160,000 payment to the National Fish and Wildlife Foundation for eagle preservation projects
• Conservation funding - $340,000 to a conservation fund for the purchase of land or conservation easements
• Probation – five years
• Compliance Plan – implementation of a plan at a cost of $600,000 per year with “specific measures to avoid and minimize golden eagle and other avian wildlife mortalities at company’s four commercial wind projects in Wyoming.”
• Permit – required application for a Programmatic Eagle Take Permit.

The last is directly tied to tomorrow’s rule.  “Take” is defined in the regulations as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb.” 50 CFR § 22.3.  “Programmatic take” is “take that is recurring, is not caused solely by indirect effects, and that occurs over the long term or in a location or locations that cannot be specifically identified.”  Id.  The regulations at 50 CFR § 22.26 provide for permits to take bald eagles and golden eagles when the taking is associated with, but not the purpose of, an otherwise lawful activity.  Programmatic permits authorize take that “is unavoidable even though advanced conservation practices are being implemented.”  The new rule commentary notes that permits may authorize “lethal take … such as mortalities caused by collisions with wind turbines, powerline electrocutions, and other potential sources of incidental take.”

Under the current rule, a take permit was good for only 5 years, which inserted much uncertainty into wind farm projects.  The new rule permits wind energy developers to obtain a take permit that runs for 30 years, 50 CFR § 22.26(i), which “better correspond[s] to the operational timeframe of renewable energy projects.”  The risk that a wind project will cause unforeseen harm to eagles during this much longer period is mitigated by a new requirement for 5 year reviews, in which the FWS “will determine if trigger points specified in the permit have been reached that would indicate that additional conservation measures ... should be implemented to potentially reduce eagle mortalities, or if additional mitigation measures are needed.”  Id. at § 22.26(h).  Additional actions that might be taken as the result of the review could be permit changes, including implementation of additional conservation measures and updating of monitoring requirements.  Id.  Even suspension or revocation of the permit is possible.  Id.

That the FWS is serious about protecting eagles is demonstrated by the enforcement action against Duke.  But the FWS also recognizes that development is necessary.  The 30 year permit period appears to be a reasonable compromise (unless one is an eagle).

Regulation | Wind Energy | Utilities

Wind Projects: Bald Eagles Don't Surf

February 5, 2013 23:57
by J. Wylie Donald

One would think that preliminary estimates of bird fatalities at a proposed 78 MW wind farm in southeastern Minnesota were hardly news.  After all, there are over 60,000 MW of wind energy installed in the United States.  But last Friday the Wall Street Journal published an op-ed piece by Robert Bryce, Senior Fellow at the Manhattan Instittue, which used that preliminary estimate to rip into the project, New Era Wind, and wind energy in general, accusing the Fish & Wildlife Service of using a “double standard ... when it comes to renewable energy.” 

The topic ostensibly ruffling Mr. Bryce's feathers is the “incidental take” of bald eagles.  The Journal doesn’t mince words; here is the leader:  “The federal government plans to allow wind turbines to kill bald eagles for 30 years.”  The permit that was being applied for was an “eagle take permit.”  Mr. Bryce refers to it as “an eagle-kill permit.”  One needn’t read any further.  Killing the national symbol simply must stop.  Wind energy is irrevocably bad.  According to the piece, “For years, the wind industry has had de facto permission to violate both the Migratory Bird Treaty Act (which protects 1,000 species) and the Bald and Golden Eagle Protection Act. Federal authorities have never brought a case under either law—despite the Fish and Wildlife Service's estimate that domestic turbines kill some 440,000 birds per year.”

This vitriol prompted us to dig into this a little.  First, a little information on bald eagles.  The Fish and Wildlife Service estimates that there are nearly 10,000 nesting pairs of bald eagles in the contiguous United States.  When not nesting, bald eagles like to surf thermals, riding easy until unwary prey ventures forth.  The population is up from “barely 400” in 1963, when there were grave concerns that the national symbol might not make it into the twenty-first century.  Fortunately the bald eagle has made it, and in 2007 it was de-listed from the Federal List of Endangered and Threatened Wildlife and Plants maintained pursuant to the Endangered Species Act. 

But delisting did not mean the bald eagle had to make its way in the world alone.  It had the Bald and Golden Eagle Protection Act (16 USC §§ 668-668d), which prohibited the “taking” of such eagles without a permit (where taking included killing, and disturbing).  Permitted takings were established under federal regulations; pertinent here is 50 CFR  § 22.26, which “authorizes take of bald eagles and golden eagles where the take is compatible with the preservation of the bald eagle and the golden eagle; necessary to protect an interest in a particular locality; associated with but not the purpose of the activity; and … (2) For programmatic take: the take is unavoidable even though advanced conservation practices are being implemented.”  Further, the FWS issued guidance, the Land-Based Wind Energy Guidelines, and a draft guidance specifically focused on eagles, wind turbines and permits. While it is true that New Era’s take permit will be the first for bald eagles, it is not the first take permit ever issued and the wind industry has hardly had the opportunity ever to get a permit, as the FWS did not issue its regulations until 2009.  From what we have read, New Era Wind is moving forward in accordance with the statute, the regulations and the guidance, and the FWS is responding similarly.

Turning now to the editorial, it is useful to go back to the source.  Mr. Bryce has been a burr under the wind industry's saddle for the last few years with several opinion pieces in the Journal on birds and the wind industry.  The industry has responded directly to his claims.  A press release in 2011, Rhetoric v. Reality:  Wind Energy and Birds, offers these numbers based on a 2007 U.S. Forest Service report:  "Wind power causes far fewer losses of birds (approximately 108,000 a year) than buildings (550 million), power lines (130 million), cars (80 million), poisoning by pesticides (67 million), domestic cats (at least 10 million), and radio and cell towers (4.5 million)."

It is also interesting to follow the media journey of the FWS preliminary estimate.  It came out on January 15.  Industrial Wind Action reported the story the next day.  Industrial Wind Action, according to its website, “was formed to counteract the misleading information promulgated by the wind energy industry and various environmental groups.”  The story made it into the mainstream on January 17, when it was reported by Minnesota Public Radio.  Two weeks later it was a national news story in the Journal.

We started here considering an editorial about a preliminary estimate, which the FWS  acknowledges is a conservative "worst case" and the FWS's permission for New Era to move forward with its application "does not indicate that New Era will automatically be granted an eagle take permit."  In other contexts a preliminary estimate, without more, would hardly be worthy of comment; it simply isn't ripe.  Not so here, where there is an axe to be ground (or a turbine blade to fail), not only does reasonable rhetoric retreat leaving us with "kill permits," but a small installation out in the woods makes it into the national press. 

Renewable energy developers should take note.  Notwithstanding strong support for green energy, it may get very dirty in the trenches, and everyone will know about it.   

 

Renewable Energy | Wind Energy


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