A Free-Market Energy Blog

Protect the Eagles: End USFWS’s 30-Year ‘Take’ Permits

By -- March 9, 2017

“The 30-year eagle take regulations are another example of the Obama White House rushing poorly considered policy that will have significant impact. Given the history of collaboration between Big Wind and FWS officials, the motives behind this push should be questioned by Congress and the public.”

“Making American Great Again means restoring our appreciation and respect for America’s Symbol – The Eagle!”

Editor’s Note: This essay is the final in a series aimed at highlighting the most harmful wind energy-related policies of the Obama era. In this piece we examine the relationship between the wind industry and US Fish and Wildlife Service officials, which has led to reckless ‘midnight rules’ that support 30-year permits to destroy America’s symbol – the Eagle. We recommend Congress roll-back the permit regulations under the Congressional Review Act.

Everyone knows wind turbines slaughter birds despite the wind industry’s best efforts to keep the public in the dark. Current estimates put fatal collisions [1] as high as 573,000 birds annually in the United States with greater risks at sites with taller hub heights.

Federal statutes that protect migratory birds and eagles are on the books but rarely enforced. Only one wind company, Duke Energy Renewables Inc, has ever been prosecuted under the Migratory Bird Treaty Act (MTBA) [2] for failing to “make all reasonable efforts” to avoid the deaths after being warned. Duke Energy pled guilty and agreed to pay $1 million in fines, implement additional mitigation strategies to avoid/minimize collisions, and to apply for Eagle Take Permits at each of the two wind projects where the violations were found.

The lack of enforcement is no surprise.

For more than a decade, the wind industry, its boosters in the environmental movement, and officials—not biologists—at the US Fish and Wildlife Service (FWS) have worked systematically to weaken guidelines meant to protect eagles, migratory birds, and wildlife from the spinning blades.

The Big Wind-FWS Collaboration

The collaboration between Big Wind and FWS officials dates back more than a decade, beginning with the May 2003 release of FWS’ interim Guidance on Avoiding and Minimizing Wildlife Impacted from Wind Turbines. The Guidance was voluntary only and provided no assurance that, if followed, it would protect against violations of MBTA or the Bald and Golden Eagle Protection Act (BGEPA).

Regardless, the wind industry and some environmentalists called the Guidance “impractical, inappropriately restrictive, and developed without adequate industry input,” and announced invitation-only discussions with FWS to “develop guidelines that everyone could agree on.”

Windaction.org and others challenged the effort under the Federal Advisory Committee Act (“FACA”) (5 U.S.C. App 2) and the meetings were rightly but abruptly cancelled.

But by 2008, FWS revisited the topic and this time followed the FACA process, somewhat. Twenty-two people were selected to sit on the Committee, but contrary to FACA requirements the members lacked the scientific expertise on species and habitats likely to be most adversely affected by the expansion of wind power. Nearly 1/3 of the Committee’s members – 7 of 22 members – directly represented “wind energy development interests,” including two attorneys with private law firms that earned income from representing wind power interests.

And at least four of the other members had no particular expertise or experience in avoiding or minimizing wildlife impacts (the purported purpose of the Committee) but did have clear institutional interests in promoting and expanding wind power.

The resulting report was predictable. The Committee’s draft recommendations, when finally released in 2010, read more like an unabashed endorsement of wind power than a rigorous effort to address the harmful impacts of wind power on wildlife.

Eagle Take Permits

At around the same time (September 2009), the FWS also issued rules granting 5-year take permits under the Bald and Golden Eagle Protection Act (BGEPA).

BGEPA, enacted in 1940, allows for criminal and civil penalties to be imposed on anyone who takes, possesses, sells, purchases, barters, offers to sell, purchases or barters, transports, exports or imports bald and golden eagles, except as permitted by the Secretary of the Department of the Interior (DOI). Congress’s intent was to “ban all threats to bald and golden eagles’ ability to survive and sought to eliminate even incidental dangers to their survival.”[3]

In general, we do not object to the 5-year permits as a means of fairly managing impacts to eagles where human activity is proposed. According to the Service, the majority of 5-year permits issued under the 2009 regulations applied to the “temporary disturbance or removal of inactive nests for safety purposes.” Anyone seeking to continue their activity beyond five years would need to apply again. This granted the Service, and the public, the opportunity to assess the impacts of the activity and decide if a new permit was appropriate. In 2009, there was much less wind energy activity and the pressure to implement periods beyond 5-years did not come into play.

FWS Gives Again

But shortly after the 5-year rule was enacted, the wind industry pressed to have the permit extended for up to 30 years. FWS agreed to pursue expanding the term, claiming that “the stated purpose of the proposed 30-year rule was to ‘facilitate the development of renewable energy and other projects designed to be in operation for many decades” and to “provide more certainty to project proponents and their funding sources.” 77 Fed. Reg. 22,267, 22,267 (Apr. 13, 2012) Under the 30-year permit, FWS would conduct ‘internal’ 5-year reviews which would be closed to the public.

FWS received public comment on the proposed regulations but stopped short of conducting an environmental impact statement (EIS), claiming the change from 5 years to 30 years was administrative in nature and therefore not required under NEPA. But DOI’s own experts disagreed. Eliza Savage, FWS’s Eagle Program Manager for the Division of Migratory Bird Management with responsibility for overseeing the drafting and revision of the rule, wrote on March 11, 2013 that the decision to increase the maximum period from 5 to 30 years was “more than ‘administrative’ in nature and that “[r]eal, significant, and cumulative biological impacts will result if the proposed regulatory changes are implemented.”

Despite this thinking, Obama’s Director of FWS, Dan Ashe, overruled his staff and ordered they proceed with the rule, claiming that the NGOs would not sue. But the NGOs did sue and on August 11, 2015, the court set aside the 30-year rule.[4]

But it didn’t end there. The Big Wind-FWS collaboration rushed through a second attempt to adopt 30-year eagle take permits. This time an EIS was developed but not much else changed. Under the new rules, wind companies can take/kill a preset number of bald eagles (perhaps as high as 4,200[5] annually) without consequence under BGEPA.

For golden eagles, any take would require “offsetting compensatory mitigation” whereby the applicant will fund conservation measures intended to protect 1.2 eagles for any one taken. It is not clear what data was available to the Service or how the data was analyzed in developing the rules or assessing the impact of the permit on eagle populations 30 years out. Nor is there concrete evidence of how effective compensatory mitigation is in maintaining/growing population size.

Nonetheless, the new rules were published on December 16, 2016 and went into effect on January 17, 2017.

End the Midnight Rules

The 30-year eagle take regulations are another example of the Obama White House rushing poorly considered policy that will have significant impact. Given the history of collaboration between Big Wind and FWS officials, the motives behind this push should be questioned by Congress and the public.

The Senate is currently debating resolutions that will provide for the overturning of Obama-era midnight rules under the Congressional Review Act. The FWS’ 30-year eagle take regulations meet the criteria to be on that list and should be given the highest priority for rolling back. In the coming weeks, Congress needs to act with urgency to vacate the FWS 30-year take permit regulations and maintain the 5-year permits.

Making American Great Again means restoring our appreciation and respect for America’s Symbol – The Eagle!

——————–

[1] Bird fatalities caused by turbine collisions represent “direct effects.” Few studies have examined the “indirect effects” of wind project siting where bird habitats are forever altered as a consequence of the project and related infrastructure including roads and transmission. Habitat fragment and nest destruction are creating significant stress birds.

[2] Fourteen golden eagles and 149 other protected birds were discovered at two of Duke Energy’s wind projects in Converse County, Wyoming.

[3] United States v. Fryberg, 622 F.2d 1010, 1015-16 (9th Cir. 1980).

[4] Case No. 14-CV-02830-LHK Order Granting In Part And Denying In Part Motions For Summary Judgment of Plaintiffs, Federal Defendants, And Defendant-Intervenor http://abcbirds.org/wp-content/uploads/2015/08/30-year-Eagle-Permit-Ruling.pdf

[5] According to FWS, this figure for bald eagles is the amount of take that the Service estimates could occur without resulting in a population decline.

6 Comments


  1. Jim Wiegand  

    Some notable corrections to this article……….. The author was stated, “Current estimates put fatal collisions [1] as high as 573,000 birds annually in the United States.” This estimate is not current and is not even close to being true the reasons given below.

    First this estimate is far too low because it is outdated by 5 years. This number is based upon 51,630 MW of installed capacity, Today because of wind energy expansion, there is at least 82,171 MW of installed capacity in the US.

    Secondly and most importantly I have analyzed the study where this estimate originated. This study used absurd methodology and is completely nonscientific. The image posted clearly exposes this study for what it is, garbage. This easy to understand information has been publicized and it can be found at this site ……… http://www.windtaskforce.org/profiles/blogs/how-many-birds-are-really-being-killed-annually-by-the-wind

    This 573,000 estimate is off by more than ten times and should never be cited unless the bogus methodology used to obtain this figure is used with it. This number was created from a culmination of fake industry studies using a variety of highly deceptive research methodology tricks.

    Then using all this false data from the industry’s fake studies, a new culmination mortality estimate was derived using their false data and further reducing industry mortality figures. This was done by primarily accounting for just increases in the tower heights of turbines as if all wind turbines still had 20-foot-long blades.

    Spinning turbine blades smash carcasses and send them flying great distances with directional forces. Turbines during high winds and located on steep ridge lines, can send carcasses flying several hundred meters. The industry’s fraudulent research pretends this does not happen.

    Back in 1985, the first and only truly scientific wind industry mortality study ever conducted in America, used search areas around 100 ft. tall turbines (including blade tip height) that were 50 meters out from towers. Today’s massive turbines are 4 -5 times taller and their spinning blades are 7-8 times longer, but industry search areas have been proportionally reduced by approximately 90%.

    This is not science. It is trickery, rigging and could possibly be thought of as stupidity. But the pattern of terrible wind industry research has taken place for so long and is so pervasive, that any excuses of researcher stupidity, appear to be virtually impossible.

    I am not alone with my expert opinion. From Europe, here is a quote from a recent wind energy impact study called “Lack of sound science in assessing wind farm
    impacts on seabirds.”
    “Quite separate from these problems of measurement, estimation and modelling, there is a fundamental logical flaw in the link between scientific assessment and decision- making about the acceptability of wind farm impacts. Modelling approaches have been contrived that seek to define an acceptable threshold for a projected negative impact of a wind farm on seabird populations, below which this negative impact is regarded as causing no adverse effect on site integrity. However, the emperor has no clothes: the thresholds used to define the acceptability of projected offshore wind farm impacts are arbitrary, poorly reasoned, not designed for the purpose and have no valid biological basis. Hence, it is necessary to revise decision-making procedures, regardless of what effect-to-impacts translation procedure is used. At present, inadequate data are being combined with arbitrary and scientifically unsupportable thresholds to argue that wind farms will cause no damage to the integrity of sites designated to restore and maintain Europe’s biodiversity”

    Reply

  2. Lisa Linowes  

    Jim, thank you for your comment. I agree with you. Current mortality estimates are based on methodologies that are grossly inadequate and inconsistent from project to project. The fact that FWS has not mandated more complete reviews is inexcusable. You may be interested in this prior piece posted on Master Resource where I highlight the many flaws in these studies. See: https://www.masterresource.org/cuisinarts-of-the-air/wind-defense-bird-mortality/

    Reply

  3. Jim Wiegand  

    Back in 1997 when US installed wind turbine capacity was about 1/35th of what it is today, America had approximately 2200 MW of installed capacity. Eagle mortality was important to the public and the USFWS admitted that wind turbines were one of the primary killers of eagles being shipped to the Denver eagle Repository. The Eagle Repository at that time was receiving approximately 1000 eagle carcasses each year.

    Since then the number of eagle carcasses received by this facility have greatly increased. The numbers are increasing by several thousand each year and this information will not be released. Yet when this facility was first opened, the FWS freely admitted that wind turbines were a primary source of the repository’s dead eagles. I happen know for a fact that there in no easier way to find an eagle carcass than to visit a wind farm that has been built in eagle habitat. It is also why there are freezers for carcass storage on location.
    When I asked a FWS agent about this data, I was told, “I checked with our repository and learned that they don’t keep detailed records of where the eagles they receive come from;”, but she did not care to disclose that the special shipping crates made for eagle carcasses are provided by the USFWS. Nor did she disclose that these crates also have prepaid overnight shipping making this eagle carcass event location data simple to find, IF there were ever any motivation to enforce federal laws that protected these species.

    Since then over 35000 eagles carcasses have been secretly shipped to this location. This number could even be much higher. So I ask how exactly many eagles killed by turbines have been reported? How many not reported? How many nests have failed because an adult eagle was killed during the nesting cycle? How many nesting territories have been abandoned within 10-20 miles of any wind project placed in eagle habitat? Whatever the truth is, I can guarantee that this industry and our government wildlife officials have been hiding well over 90% of this ongoing eagle slaughter from the public.

    Now after lying by omission for decades about this ongoing wind turbine eagle slaughter, last Dec. a new rule was passed in America allowing “industry” to kill 7518 bald eagles annually. This new eagle killing rule, allowing thousands of bald eagles to killed annually, was created with fraudulent research as if none of this incredible history of eagle mortality did not exist. Fraudulent research grossly overestimating eagle populations by 10 times or more grossly were also used. I happen to know that this new eagle killing rule was created in part by this industry to cover their butts because I had exposed this industry’s ongoing eagle carcasses fraud. Now this new industry rule can bypass protections and allow the expansion of thousands of turbines into the wetland habitats of America. Sadly, Bald eagles are just a small piece of the ecological disaster.

    So really, if all if these all eagles are killed with 5 year wind energy permits or 30 years permits, it really doesn’t much matter because there is no real accountability. These eagles have been slaughtered for years without permits, without accountability everybody involved is being chocked with gag orders and are there just so many layers of 1st degree fraud involved with all of this. I will finish by say this………. Without the data from the Repository and with out any ethical research, this industry along with the Interior Department, will continue to lie about all this to the public and make any mitigation for these poor eagles, a national disgrace

    Reply

  4. run 2  

    there’s a lesson here for wind turbine enthusiasts as well. That left turn phenomenon? Thanks for your post…

    Reply

  5. hunter  

    The question begs to be asked: what government that claims to care for the environment would embrace and incentivize turning huge areas of a country into industrial wind power factories?
    And what government that claims to care for its citizens would saddle them with hideously expensive unreliable and environmentally damaging power sources like wind?

    Reply

  6. Jim Wiegand  

    Scotland’s disappearing golden eagles have the same fraudulent wind energy story ……………….. New investigative research has revealed that since 1992, approximately 80% of Scotland’s golden eagles have disappeared from the regions with wind turbine developments. However recently released and rigged golden eagle research is showing the opposite. According to this Dec 2016 article, substantial golden eagle population increases have taken place in Scotland.

    http://www.rspb.org.uk/…/rspb-news/news/432959-welcome-rise-

    None of it is true and it can be proven. In a 2014 report it was revealed that only 2- 5 eagle pairs were left in the large 18000-20000 sq. km (25%) region of Scotland shown below. In 1992 there were 68 known nest sites. This means that 503- 506 of the recently reported imaginary population of Scotland’s eagles (508 pairs), have to be living to the north. Of this northern region, an area of about 20,000 sq. km holds the majority of Scotland’s remaining golden eagles. However, in 1992 this area was reported to only have 282 nesting pairs of eagles. This 2014 report also states that the southern eagle habitat is there, but the eagles are not and other factors are to blame. In the report shown below, nothing is said about turbines (industrial persecution) killing off Scotland’s golden eagles.

    The sad truth is that very likely there are less than half of this original 1992 population of 442 eagle pairs left with their offspring regularly dispersing into eagle habitat smothered with turbines.

    Since the mid 1990’s, California has lost 80-90 % of its golden eagle population and like Scotland, this is also being covered up with fraudulent research. In the US, Audubon is helping to cover up such wind energy facts, while across the pond in the UK, another prominent conservation group called (RSBP) is doing the same number over there.

    Reply

Leave a Reply