Yesterday, the U.S. Fish and Wildlife Service published a new version of its “Eagle Conservation Plan Guidance” in the Federal Register. The 103-page document (pdf) is designed to help wind energy projects steer clear of eagle trouble, which could mean either steering clear of eagle territory entirely or embarking on a five-stage process to minimize harm to eagles.
“Of all America’s wildlife, eagles hold perhaps the most revered place in our national history and culture,” the Guidance begins. “The United States has long imposed special protections for its bald and golden eagle populations. Now, as the nation seeks to increase its production of domestic energy, wind energy developers and wildlife agencies have recognized a need for specific guidance to help make wind energy facilities compatible with eagle conservation and the laws and regulations that protect eagles.”
The advice in the Guidance is voluntary. Wind energy developers can follow a different path to protect eagles or they can ignore the Guidance and face the consequences. But the consequences are not small.
Eagles are protected by the Migratory Bird Treaty Act, but they also have their very own law, the Bald and Golden Eagle Protection Act, which Congress passed in 1940 to protect bald eagles and expanded in 1962 to cover goldens.
The Eagle Act prohibits taking eagles—defined as pursuing, shooting at, poisoning, wounding, killing, capturing, trapping, collecting, molesting or disturbing—without a permit, and it makes permits difficult to obtain.
The law authorizes FWS to issue permits to take eagles or their nests only when the take is incidental to a lawful activity and cannot be avoided. Permits are limited by conservation goals.
FWS considers a take of 1 to 5 percent of the local bald eagle population sustainable, but it considers 5 percent “significant” regardless of mitigation. Currently it considers no take of golden eagles sustainable, according to the Guidance.
In California’s Tehachapi Range, where a golden eagle was found dead near a wind turbine in January, FWS has issued no permits.
“Un-permitted take of eagles is the illegal take of eagles,” said FWS Special Agent Jill Birchell.
“Violations of the law, which includes possession, sale, purchase or transport of eagles, eagle parts, eggs or nests, carry a maximum $100,000 criminal fine and one year imprisonment for individuals and $200,000 for organizations,” according to FWS documents.
FWS recognizes no advanced conservation procedures for deterring eagles from turbine blades—no scare-eagle devices on the model of the scarecrow—but that’s largely because of a lack of research, according to the Guidance. FWS is open to experimental procedures, it says, and “a project developer or operator will be expected to implement any reasonable avoidance and minimization measures that may reduce take of eagles at a project.”
So wind farm operators are left with the Guidance’s five-stage approach, which looks like this:
1. At the landscape level, identify potential wind facility locations with manageable risk to eagles. This is where steering clear of eagle territory becomes an option. The agency suggests that locations with unmanageable risk to eagles should not reach stage 2:
2. Obtain site‐specific data to predict eagle fatality rates and disturbance take at wind‐facility sites that pass Stage 1 assessment. At this stage, operators are urged to survey and observe the site to determine how many eagles are distributed in the project area and to find nests, migration corridors, stopover sites, foraging areas and communal roosts.
3. Estimate fatality rates and disturbance effects. FWS provides models to translate the data from stage 2 into fatality and disturbance rates.
4. Identify and evaluate conservation measures and advanced conservation procedures that might avoid or minimize fatalities and disturbance effects identified in Stage 3. Operators can invest in compensatory mitigation measures that remove other hazards known to kill eagles. That could mean removing roadside carcasses that lure eagles into collisions with vehicles or retrofitting power poles to prevent electrocution. At stage 4, the wind project has not been constructed, FWS hopes, but at the completion of Stage 4, the operator is poised to apply for a permit.
5. After construction of the wind project, operators should continue to monitor the presence of eagles, report fatalities and the effects of disturbance, and estimate the effectiveness of mitigation measures.
The American Wind Energy Association has not yet commented publicly on the new version of the Guidance (and I intend to update this post when they do). In 2011, AWEA slammed the first version of the document, calling it burdensome and stifling to the wind-energy business without associated benefit to eagles.
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