“A dispassionate observer might be forgiven for concluding that FWS’s new proposal, which never even acknowledges the rationale for its earlier 30-year rule, is still designed actually to accommodate the wind energy industry, rather than to protect eagles.”
“ABC questions whether the sacrifice of millions of our Nation’s ecologically important birds and bats justifies building any large, commercial wind energy facility in an area with high concentrations of birds and bats.”
“Individuals who kill federally protected eagles or possess their parts can be fined as much as $250,000 per bird and spend up to two years in jail. The FWS’s revised rule, however, gives the wind industry a free pass to kill thousands of eagles with little or no consequence. What’s more, the public is not going to be able to find out how many eagles are actually being killed.”
The American Bird Conservancy (ABC) hereby submits its comments on the proposed regulation by the U.S. Fish and Wildlife Service (FWS), Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests and its associated Draft Environmental Impact Statement (DEIS). ABC commented on FWS’s prior regulation on this subject, expressing its concerns about the impact of the 30-Year Eagle Take Rule on eagle populations in the United States. 
ABC supports the development of clean, renewable sources of energy such as wind and solar power to address anthropogenic climate change, but also believes that it must be done responsibly and with minimal impact on our public trust resources, including ecologically important native species of birds and bats, and particularly Threatened, Endangered and other protected species. When it comes to wind energy, proper siting is the most important consideration. ABC is a proponent of Bird Smart Wind Energy, described in some detail on our web site and in Hutchins et al. (2016).
The revised regulation does not allay our serious, legitimate concerns about the short- and long-term impacts that 30-year permits for large, commercial wind energy facilities, along with some of the other rule changes proposed by FWS, will have on eagle populations and other wildlife.
Purposeful or Incidental Take
ABC fully understands that the proposed rule involves authorization of “non-purposeful” or “incidental” take of eagles and eagle nests. Those terms recognize that eagles will be killed by otherwise lawful activities associated with the wind energy industry and other industries. They should not be confused with “unanticipated.”
Wind energy developers and regulators both know that there is a near certainty that, when eagles are present in the same landscape for some portion of their lifecycle, some or even many eagles will be killed by collisions with wind turbine blades or collisions and electrocutions at their associated power lines and towers. Thus, when wind turbines are sited in areas with large concentrations of eagles, take can be expected to occur, and the distinction between “non-purposeful” or “incidental” and “purposeful” take becomes meaningless, as a practical as well as a legal matter.
Indeed, the Bald and Golden Eagle Protection Act (BGEPA) imposes serious penalties on any conduct that involves a “knowing” “take” of Bald or Golden eagles without a FWS permit, as well as conduct that is pursued with “wanton disregard for the consequences” of the action. (16 U.S.C. § 668(a)). Thus, the change in the proposed rule from “non-purposeful” take permits to “incidental” take permits accomplishes nothing of substance with respect to the protection of eagles.
30-Year Permits: The Shifting Rationale
The FWS implemented BGEPA rules in 2009 and extended the permit length from five to 30-years in 2013 without going through the National Environmental Policy Act (NEPA) process or consulting with Native American tribes, both required by law. ABC’s successful lawsuit required the Service to rescind the 30-year Eagle Take Rule and go back to the drawing board to formulate a more science-based approach to eagle management ((See Shearwater v. Ashe, No. 14-CV-02830-LHK, 2015 WL 4747881 (N.D. Cal. Aug. 11, 2015). FWS now proposes new BGEPA rules in the face of growing and multiple threats from a wide variety of anthropogenic sources of bird mortality (Loss 2015), including a rapidly expanding commercial wind industry and its associated infrastructure of power lines and towers.
The proposed rules unfortunately stick with a 30-year permit regime, albeit for dramatically different reasons from those previously proffered. The first 30-year permit regime, albeit for dramatically different reasons from those previously proffered.
The first 30-year rule was expressly designed to “facilitate the development of renewable energy and other projectsin eagle habitat (77 Fed. Reg. 22,267, 22267, Apr. 13. 2012, emphasis added), on the ostensible rationale that the “uncertainty surrounding the renewal of programmatic eagle take permits was preventing operations from obtaining the necessary financing for wind energy projects that might last up to thirty years” 2015 WL 4747881, page 7).
FWS further explained that the stated purpose of the Final 30-Year Eagle Take Rule was to “facilitate the development of renewable energy and other projects that are designed to be in operation for many decades,” and to “facilitate the funding, construction, and operation of numerous energy generation projects, including wind power facilities” in areas occupied by eagles.” [Quoting 78 Fed. Reg. 73,704, 73,704, 73,722 (Dec. 9, 2013)).
That “development facilitation” rationale appears nowhere in the proposed new rule, which instead purports to be justified only by the need to protect eagles by enticing companies into a BGEPA permitting regime that the companies would otherwise avoid.
Thus, the proposed rule states that:
(1) the “Service cannot require any entity to apply for an eagle take permit (except under legal settlement agreements)”;
(2) that “project proponents build and operate without eagle take permits even in areas where they are likely to take eagles”; and
(3) “the Service believes that permitting long-term activities that are likely to incidentally take eagles, including working with project proponents to minimize the impacts and secure compensatory mitigation, is far better for eagle conservation than having companies avoid the permitting process altogether because they perceive the process as overly onerous (FWS 2016b, emphasis added; see also FWS (2016c, page xiii) stating: “[c]ompanies are more likely to weigh the benefits of obtaining a permit as higher than the risk of federal prosecution” when they can obtain long-term permits.)
A dispassionate observer might be forgiven for concluding that FWS’s new proposal, which never even acknowledges the rationale for its earlier 30-year rule, is still designed actually to accommodate the wind energy industry, rather than to protect eagles.
In addition, the proposed new rule will not affect siting (the only current form of proven mitigation besides curtailment) in any way, as demonstrated in this FWS statement:
“We recommend that developers avoid areas that are important to eagles. However, we do not have the authority to prohibit development in areas that are important to eagles. Our role is to evaluate the level of impacts to eagles when a project proponent approaches us to inquire about a permit to authorize eagle take. We do not have the authority to approve or veto the actual project” (FWS 2016b, page 74).
30-Year Permits and FWS Enforcement of BGEPA
FWS’s justifications for the proposed rule are inadequate and, in some cases, demonstrably false. To begin with, the FWS’s premise that it “cannot require any entity to apply for an eagle take permit” (FWS 2016b, page 64) in advance of project construction and operation is not only unexplained but also incorrect. The same is true of FWS’s proclamation that it can have no influence on siting.
ABC has pushed for mandatory, not voluntary, permitting regulations for many years (Hutchins et al. 2016). Any wind energy facility built in an area known to be inhabited by federally protected species (i.e., eagles) during some portion of their life cycle should be required to obtain an incidental take permit under BGEPA prior to construction. FWS plainly has the legal authority under BGEPA (and the Migratory Bird Treaty Act, MBTA) in conjunction with other legal authorities to prevent an unlawful take from occurring….
Accordingly, contrary to the erroneous assumption underlying the proposed rule, it is clear that the government need not await the actual taking of an eagle but, rather, may undertake appropriate enforcement action to prevent harm to protected wildlife before it occurs.
If, for example, the FWS knows that an industrial wind power project is being constructed in a location occupied by Bald or Golden eagles (as well as other migratory birds of conservation concern), it is not powerless to wait for animals protected by federal law and international treaties to be killed, injured, and otherwise “taken” by wind turbines, just as it need not sit idly by while bird baiting or other acts preparatory to an unlawful take occur. FWS is therefore wrong in asserting that it lacks any authority to “prohibit development in areas that are important to eagles,” and that the most it can do, is “recommend” that a company not build its project in a high-risk site that will predictably kill eagles and/or other migratory birds in flagrant violation of federal law.
Prevention of harm to protected wildlife is particularly important during construction and operation, especially given the government’s record of after-the-fact enforcement. Prosecutions for killing eagles and other protected bird species have been negligible. Only three wind energy companies (Duke Energy, PacifiCorp and AES Laurel Mountain LLC) have been prosecuted and fined for killing federally protected birds–a small fraction of the hundreds of U.S. wind energy facilities that have likely been violating federal law with impunity (Clarke 2014b). Even the DEIS concedes that a 2013 analysis “showed that wind-turbine deaths of Bald and Golden Eagles have been documented at least at 35 wind-energy facilities besides Altamont in 14 states” (DEIS, Page 172). Moreover, the companies have settled for what are miniscule fines for major corporations–hardly the kind of penalties likely to deter large corporate entities such as Duke Energy from violating BGEPA or, most important, to motivate them not to build their projects in important eagle habitat….
… [U]nder the FWS’s current voluntary system, incidental take permits are not required, but taking an eagle without a permit is illegal. The critical question then is, how is FWS going to find out if protected species have been taken, since, except in Hawaii, it relies solely on the regulated industry to volunteer that they have broken the law?
While enforcement risk is minimal, wind energy developers can theoretically be fined, prosecuted, or face expensive mitigation or compensation should they kill federally protected species. Consequently, reliance on voluntary industry self-monitoring and reporting is guaranteed to ensure under-reporting of eagle deaths and injuries. No for-profit industry can be effectively regulated based solely on voluntary self-monitoring and -reporting of wildlife crimes. Reporting and monitoring must be mandatory and carried out by neutral third parties rather than by the regulated companies themselves or consultants who are beholden to them for their livelihoods. Otherwise, credibility will always be an issue….
Individuals who kill federally protected eagles or possess their parts can be fined as much as $250,000 per bird and spend up to two years in jail (Frauenfelder 2009). The FWS’s revised rule, however, gives the wind industry a free pass to kill thousands of eagles with little or no consequence. What’s more, the public is not going to be able to find out how many eagles are actually being killed….
Wind Energy Development and Climate Change
This Administration, some segments of the public, and even some conservation organizations seem to be treating large scale, commercial wind energy as if it were our only hope to address global climate change. In fact, there are many other alternative approaches, such as forest, soil, ecosystem, and biodiversity conservation, energy efficiency, reduction in meat consumption, and distributed solar on our already-built environment that would be just as effective, but not have the same destructive impacts on wildlife as large, commercial wind projects.
Even the DEIS recognizes that the contribution of wind energy to addressing climate change will be minimal at best:
If the volume of development increases over what it would have been without the new permit regulations, then the increased amount of fossil fuel emissions that are replaced by wind energy production could provide a greater beneficial impact of the proposed action, although in the context of planetary emissions the impact on climate change would still be minor. (FWS 2016c, page xiii).
ABC questions whether the sacrifice of millions of our Nation’s ecologically important birds and bats justifies building any large, commercial wind energy facility in an area with high concentrations of birds and bats. The ecological services—pest control, pollination, and seed dispersal–that birds and bats provide are worth billions to the U.S. economy (Sekercioglu, 2015, Sekercioglu et al. 2016). Yet, many of North America’s bird species are in precipitous decline, with over a third in need of concerted conservation action (North American Bird Conservation Initiative 2016).
We should remember that hydroelectric dams were once touted as our Nations’ answer to clean, renewable energy, but are now being torn down due to their unexpected negative impacts on wildlife (e.g., salmon) and their habitats (Howard 2016, Yaggi 2016). Poorly-sited large, commercial wind facilities have a similar profile.
In addition, the Department of Energy, FWS, and the wind energy industry should be supporting the development of bladeless, bird- and bat-friendly wind energy technology. Many examples of innovative approaches to wind energy are being developed by entrepreneurs (e.g., Grover 2015, Anon. 2016, www.Sheerwind.com).
 Full citations have been taken out for ease of reading. For the complete comment, please see here.
ABC is a 501(c) (3) science-based, not-for-profit membership organization whose mission is to conserve native birds and their habitats throughout the Americas. ABC acts by safeguarding the rarest species, conserving and restoring habitats, and reducing threats, while building capacity in the bird conservation movement.