by J. Wylie Donald
Bald and golden eagles now 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 went 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), [enhanced version available to lexis.com subscribers], and eagles further protected by the Bald and Golden Eagle Protection Act (16 USC §§ 668-668d), [enhanced version available to lexis.com subscribers].
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 the new 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, [enhanced version available to lexis.com subscribers]. “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), [enhanced version available to lexis.com subscribers], 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).
J. Wylie Donald, a partner at McCarter & English, LLP, counsels and litigates for clients on insurance coverage, environmental and products liability matters. Mr. Donald co-chairs the firm's Climate Change and Renewable Energy Practice. He draws on his substantial environmental experience, his prior non-legal technical work, and his deep involvement in risk management to assist clients in understanding and controlling the coming regulatory and non-regulatory impacts of climate change. He has tried cases and argued appeals in the state courts in New Jersey and Maryland, conducted private arbitrations and mediations, and argued motions in federal courts across the nation.
Read more at Climate Lawyers Blog by McCarter & English, LLP.
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