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ABC Comments on Eagle Permits: Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests (Part II)

By Steve Holmer -- July 8, 2016

“[The Fish and Wildlife Service] recognizes that: ‘Golden Eagle populations in the United States may not be able to sustain any additional, unmitigated mortality and the threshold for this species is zero.’ Yet, remarkably, FWS has still concluded that ‘some take [of Golden Eagles east of the 100th meridian] can be permitted with implementation of offsetting mitigation’.”

“FWS’s mission is to protect our native wildlife, particularly Threatened, Endangered and other imperiled species, not to promote and ensure the development of wind energy projects, particularly if they are poorly-sited from the perspective of wildlife conservation.”

ABC remains seriously concerned about the fate of the Golden Eagle population under the FWS’s proposed rule. Uncertainty about Golden Eagle populations, especially the small eastern population, and lack of knowledge about their behavior, migratory movements, and habitat use are the biggest weakness of this rule.

Golden Eagles

The recently released FWS report (Millsap et al. 2016) is not good news for Golden Eagles:

We used banding data obtained from the United States Geological Survey Bird Banding Lab from 1968–2014 to estimate contemporary age-specific survival rates. We also used a data set of unbiased cause-of-mortality information for a sample of 386 satellite-tagged golden eagles from 1997–2013 to estimate the effect of current levels of anthropogenic mortality on those survival rates.

Anthropogenic factors were responsible for about 56% of satellite-tagged golden eagle mortality, but rates of anthropogenic mortality varied among age-classes, ranging from 34% for first-year eagles to 63% for adults. We estimated the maximum rate of population growth for the golden eagle in the U.S. in the absence of existing anthropogenic mortality was 10.9% (20th quantile = 9.7%).

Sustainable take under these conditions is close to 2,000 individuals (20th quantile = 1,600). However, available information suggests ongoing levels of human-caused mortality likely exceed this value, perhaps considerably. Thus, the data from satellite tags lends further support to the suggestion from the demographic models that current survival rates may be leading to a decline in population (FWS 2016b, p 13).

FWS recognizes that: “Golden Eagle populations in the United States may not be able to sustain any additional, unmitigated mortality and the threshold for this species is zero.” (FWS 2016b, page 17). Yet, remarkably, FWS has still concluded that:

…some take [of Golden Eagles east of the 100th meridian] can be permitted with implementation of offsetting mitigation” (FWS 2016, page 7).

These two statements are contradictory if the goal is a stable or increasing population over 100 years, particularly if offsetting mitigation does not work. It is especially contradictory if one considers the new goal that FWS is proposing (which ABC supports) of “maintaining increasing populations in all eagle management units and persistence of local populations throughout the geographic range of both species.” (FWS 2016b).

Eagles, especially Golden Eagles, are well documented to be vulnerable to mortality from collisions with wind turbine blades, which may have blade tips rotating at over 150 miles an hour (Pagel et al, 2012). The notoriously poorly-sited Altamont Wind Resource Area has been responsible for over 2,000 Golden Eagle deaths since it began operation (Smallwood and Thelander 2008). Both species are also killed by collisions and electrocution at associated power lines and towers (Loss et al. 2014).

The threat that unabated wind energy development poses to Golden Eagles is increasing rapidly, as evidenced from the recent controversy surrounding the proposed Rocky Forge Wind Energy project in Botetourt Country, Virginia, which could threaten the small, remaining eastern Golden Eagle population (Hutchins and Neas 2016). The developer’s paid consultant saw few eagles during its general bird surveys during a two-year period (West, Inc. 2016), allowing the developer to argue in its application that, “There is a low eagle use of the area compared to other Appalachian ridgelines and the project poses a low risk of impact.” But, every pre-construction risk assessment for wind projects we have reviewed downplays the projected impacts on wildlife. The consultant is being paid to reach that conclusion, Indeed, a consultant who failed even once to conclude in favor of the wind project over wildlife would not be in business for long. This also ignores cumulative effects, since Golden Eagles are sparsely distributed throughout the east during the winter, yet their habitat requirements put them in direct conflict with wind turbines.

Bald Eagles

Bald Eagle populations have been less impacted by wind energy development than Golden Eagles thus far because wind energy companies have not yet concentrated their activities in areas used heavily by Bald Eagles. Bald Eagles are tied to water, however, and once turbines start going up near freshwater lakes and large river systems, and offshore and onshore in marine coastal areas, mortality is likely to increase.

Extensive wind energy development near the Great Lakes, for example, could be devastating to Bald Eagles and a wide variety of migratory raptors and songbirds that gather and move in vast concentrations along the shoreline and over the lakes on their way to breed in the boreal forests of Canada. That is why FWS has recommended that wind energy development occur a minimum of three miles away from the lakeshore. The Nature Conservancy has recommended five miles. Nonetheless, wind energy companies are still choosing to build both offshore and onshore around the Great Lakes. For example, there is a concerted effort to establish wind energy in Northeastern Ohio and Northern New York in and near Lake Erie and Lake Ontario, both areas known to host vast numbers of birds and bats each spring and fall (e.g., France et al. 2012). Because FWS guidelines are voluntary, there are no disincentives for ignoring FWS recommendations and apparently little or no desire to regulate the industry, particularly with regard to siting. Examples are the proposed Lighthouse Wind Energy project in New York and the Camp Perry Wind Energy Project in Ohio. In the latter case, which is on public lands, $200,000 of public money was spent on building a turbine base even before the FWS had rendered a Biological Opinion, which brings up numerous questions. Furthermore, the FWS submitted a finding of No Significant Impact after having previously asked the developer to move the project elsewhere due to the risk to federally protected species. FWS records indicate that there are more than 50 active Bald Eagle nests within 10 miles of the Camp Perry project, the highest concentration in the state, not to mention regular sightings of endangered species such as Kirtland’s Warbler in the region.

The revised 30-year Eagle Take Rule will allow wind energy facilities to cumulatively kill up to 4,200 Bald Eagles and 2,000 Golden Eagles annually with no prosecution, which is a substantial increase in eagle take quotas over the previous rule (FWS 2016b, pages 13, 16). These numbers are based on FWS’s recent estimates of Bald and Golden Eagle populations in the United States, said to be 143,000 and 40,000, respectively. Bald Eagles just came off the endangered species list and are nowhere near their pre-DDT numbers. Golden Eagle populations are likely in decline (see below) and deserve increased protection, not substantially increased threats. Authorized take of the magnitude contemplated by the proposed rule–on top of the even greater amount of unauthorized take conceded by the FWS–will likely continue unabated even under the optimistic assumptions inherent in the proposal. This is not “compatible with the preservation of the bald eagle or the golden eagle” (16 U.S.C. § 668a).

In any event, when the American people are fully apprised of the thousands of permitted eagle deaths contemplated by the proposal, they are not going to tolerate large numbers of iconic eagles killed by poorly-sited wind energy and other projects. As the DEIS itself points out, these are not only our national birds and symbols of our democracy, but also sacred to First Nations. Indeed, the public and media response to FWS’s revised eagle rule that would allow up to 4,200 Bald Eagles and 2,000 Golden Eagles to be harvested “sustainably” by wind energy projects annually with impunity has already been decidedly negative (e.g., Armitage 2016, Bryce 2016, Daily 2016, Molinet 2016, Opar 2016).

Other Protected Species

FWS will often be considering Eagle Incidental Take Permits in areas where other migratory and resident birds of conservation concern reside. When these birds are classified as Threatened or Endangered under ESA, then ESA Section 7 consultation is required. The presence of Endangered species (e.g., Kirtland’s Warbler, Piping Plover, Whooping Crane) during some stage of their lifecycle is having no apparent effect on the siting of wind energy projects. This is of great concern, not only for Endangered species, but also for declining grassland birds, which are heavily affected by wind turbines and their associated infrastructure (Leddy et al 1999, Shaffer and Buhl 2015 Mahoney and Chalfoun 2016). Greater Sage-Grouse and Prairie Chickens, both species of conservation concern, are greatly impacted by wind energy development and their associated power lines and towers (Schroeder 2010, Pearce-Higgins et al. 2012, Stevens et al. 2013, Hovick et al. 2014, LeBeau 2014, Kirol et al. 2015, Shirk et al. 2015, Winder et al 2015). A federal appeals court recently stopped a large wind energy project in southeast Oregon despite the Bureau of Land Management’s positive environmental review. The primary reason was concerns about the project’s impact on Greater Sage-Grouse (Associated Press 2016).

Further, because the proposed rule will have cumulative effects on Endangered and Threatened species that share habitats with eagles, FWS must engage in section 7 consultation on the entire rule. FWS’s assertion that the issuance of a BGEPA permit is not the “direct cause of habitat degradation” (FWS 2016c, page 95), and hence such degradation need not be addressed as part of the NEPA process or in section 7 consultation, is legally unsupportable. Since BGEPA categorically prohibits the “take” of eagles without FWS permission, a FWS authorization of eagle takes that could not otherwise lawfully occur surely is the legal “cause” of not only the deaths of eagles and other wildlife from turbine operation, but also the associated habitat degradation due to road and associated infrastructure construction.

FWS’s mission is to protect our native wildlife, particularly Threatened, Endangered and other imperiled species, not to promote and ensure the development of wind energy projects, particularly if they are poorly-sited from the perspective of wildlife conservation.


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