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Money Trumps Science? Feds Broaden Eagle-Kill Law, Enviro Groups Angry

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"They did what?" | Photo: Chris Clarke

In a long-anticipated move that has prompted howls of outrage from conservation groups, the U.S. Fish and Wildlife Service has announced it will be extending the maximum length of the permits it's granting wind energy facility operators to injure or kill bald and golden eagles.

The permits, technically known as take permits under the federal Bald And Golden Eagle Protection Act (BGEPA), will be extended to last up to 30 years from the current maximum of five years, according to a new rule that will be published Monday in the Federal Register.

The change in the tenure of eagle take permits, which has been in the works for more than a year, marks an historic reversal of USFWS policy in its enforcement of the nation's eagle protection laws -- and some normally moderate environmental groups are condemning it in no uncertain terms.

The new rule was released on a Friday, a traditional move for federal agencies seeking to limit public response to potentially controversial news. In this case, that probably won't work. Conservationists have been on edge for months waiting for the new rule to be released, and so groups that oppose the rule have had their responses ready to go for some time.

And those responses aren't kind. Take for example this tweet from the dreadnought National Audubon Society, the U.S.'s leading bird conservation organization, which departed from its usually measured tones:

Calling the rule a "stunningly bad move," Audubon offers a scathing take on the new rule from its chief of staff, President and CEO David Yarnold:

Instead of balancing the need for conservation and renewable energy, Interior wrote the wind industry a blank check. It's outrageous that the government is sanctioning the killing of America's symbol, the Bald Eagle. Audubon will continue to look for reasonable, thoughtful partners to wean America off fossil fuels because that should be everyone's highest priority. We have no choice but to challenge this decision, and all options are on the table.

The American Bird Conservancy (ABC), which has staked out a niche generally to the more uncompromising end of the spectrum from Audubon, is predicting the rule will have serious and unpleasant consequences for bald and golden eagles. "Eagles are being asked to survive a brutal 'one-two' punch," said George Fenwick, ABC's president. "On top of the impacts from the duration of take permits being extended six-fold, the birds will soon face an additional serious threat -- a 12-fold increase in wind energy, if federal 2030 targets are achieved. So it is entirely conceivable, and probably even quite likely, that mortality impacts to eagles will get far worse."

The new rule marks a near-complete flip-flop in USFWS policy towards enforcing eagle protections under BGEPA.

BGEPA, passed to protect bald eagles in 1940 and extended to include golden eagles in 1962, prohibits "taking" of the two bird species, which it defines as any physical harm or harassment of the birds, their eggs or nests, or possession of any part of a living or dead eagle without a permit. The law includes stiff penalties for violations, including fines of up to $10,000 and two years in jail for a second offense. As wind turbine facilities pose a substantial risk to the two species and expose their owners to legal liability under BGEPA were USFWS to enforce the law, pressure mounted to come up with some way to give the industry a potential out.

The answer was issuing "take permits" like the ones USFWS grants under the Endangered Species Act, which has a similar definition of a "take" of a protected species. (With the exception of the Sonoran Desert population of bald eagles, neither eagle species is listed as Endangered or Threatened under ESA: bald eagles outside the Sonoran Desert were removed from the Threatened list in 2007.)

In 2009, as the agency was beginning to approach granting the first take permits under BGEPA to regulate unintentional harm to eagles caused by wind project, USFWS resisted allowing those permits to last for more than five years. In issuing the older rule limiting permits to five years, the agency said quite clearly that permits longer than five years were bad for eagles. "[T]he rule limits permit tenure to five years or less because factors may change over a longer period of time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or the golden eagle," read the rule.

Under pressure from the wind industry and -- ReWire presumes -- the Obama administration, USFWS backpedaled rather abruptly on that assessment of scientific fact. When the agency first proposed the longer permits in April 2012, it offered the following rationale for its volte-face:

Since publication of the 2009 final rule, it became evident that the 5-year term limit on permits did not correspond to the timeframe of projects operating over the long-term and was insufficient to enable project proponents to secure the funding, lease agreements, and other necessary assurances to move forward with projects.

USFWS would seem to be saying that the financial interests of the energy industry trumped the science.

Under the terms of the new rule, programmatic take permits will be reviewed by USFWS every five years, and permittees "are expected" (USFWS's words) to submit annual reports on eagle mortalities, which the agency will then release to the public.

"Remarkably, this approach relies exclusively on the for-profit wind industry to self-report bird fatalities," said George Fenwick. "While some companies may play by the rules, others may not, making this system highly vulnerable to deception. I don't see how such a system will work to protect eagles."

Michael Hutchins, who runs ABC's Bird Smart Wind Energy Campaign, points out that wind developers are under no particular pressure to obtain even these industry-friendly longer permits. "These rules are still voluntary, rather than mandatory, which means that only wind energy companies that choose to work collaboratively with USFWS will be subject to these requirements," said Hutchins. "All others will be allowed to continue to build wind facilities until they actually kill an eagle, and we'll have to rely on the companies themselves to be forthcoming -- in our opinion, a highly unlikely scenario in every case."

In California, opponents of wind facilities in Imperial and San Diego counties suggest that the new rule could prove catastrophic for eagles in the vicinity of Anza Borrego Desert State Park, including at one facility that USFWS has privately said poses the risk of ongoing losses to eagles. The Protect Our Communities Foundation, based in the town of Santa Ysabel, says that documents it obtained through a Freedom of Information Act request revealed that USFWS views Phase II of the Tule Wind Project as posing a high risk to golden eagles, suggesting the project "would likely cause ongoing mortality of eagles and their offspring." USFWS had asked the project be redesigned or moved. Instead, Tule Wind intends to apply for a programmatic take permit under BGEPA.

"If you increase the length of eagle take permits from five years to 30 years, common sense says there are going to be some effects on eagles. But the federal government didn't study the impacts of this rule change even though the National Environmental Policy Act requires it. Instead, the feds have decided to break the law and use eagles as lab rats." said Kelly Fuller, consultant to The Protect Our Communities Foundation.
"According to the FWS's own Eagle Conservation Plan Guidance, there are no proven measures that will reduce the numbers of eagles killed once the wind turbines are installed," she added. "This rule change is a disaster."

The Protect Our Communities Foundation says that Pattern Energy, operators of the Ocotillo Express Wind Project in western Imperial County, have signaled their intention to discuss a take permit with USFWS in the event their project kills an eagle -- at which point the project would already be in violation of BGEPA.

It remains to be seen whether groups like Audubon, or any of the other 120-plus groups that protested the new rule during its comment period, will take USFWS to court to challenge the rule. We'll be watching the process closely.

For the record An earlier version of this piece misstated the location of the Protect Our Communities Foundation's office. We regret the error.

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