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Recent Developments Regarding Avian Take at Wind Farms

January 27, 2014

A series of recent announcements from the federal government related to avian “take” at wind farms demonstrates the need for wind project proponents to coordinate with the Department of the Interior (Interior) and other agencies early in the development of new wind projects to mitigate potential impacts to eagles and other migratory birds.

Interior recently promulgated a rule extending the duration of programmatic “take” permits for bald and golden eagles from five to 30 years.[1] While the longer duration comes with an increased price tag, this change will allow project developers to provide their potential financial backers with greater assurances of stability throughout the life of a wind project. Interior also recently adopted new guidelines for evaluating project impacts on avian species and mitigating those impacts. By developing a project-specific Bird and Bat Conservation Strategy (BBCS) or applying for a programmatic eagle take permit where necessary, project proponents can engage with the requisite regulatory agencies and establish the “good faith effort” that Interior has indicated may justify use of its discretion to decline enforcement, should a take occur.

The threat of enforcement is a real possibility, as illustrated by the federal government’s recent prosecution of Duke Energy (Duke) under the Migratory Bird Treaty Act (MBTA). As part of a plea agreement, Duke accepted a series of fines, restitution, and community service payments totaling $1,000,000, and was placed on probation for five years in connection with the deaths of 163 migratory birds, including 14 golden eagles, at two Wyoming wind farms.[2]

I. Protections for Eagles and Migratory Birds

The U.S. Fish and Wildlife Service (FWS) estimates that between 58,000 and 440,000 migratory birds are killed each year by wind turbines.[3] Because wind projects are sited on both public and private land, the regulatory structure can be complex. In addition, several statutes that provide for the protection of various avian species, some of which overlap, govern take at wind projects.

For example, the Migratory Bird Treaty Act (MBTA)[4] prohibits the taking, possessing, capturing, or killing of any native migratory bird except as authorized by Interior.[5] The MBTA is a strict liability statute: unintentional violations can result in misdemeanor criminal liability,[6] while knowing violations can result in even steeper felony charges.[7]

Similar to the MBTA, the Bald and Golden Eagle Protection Act (BGEPA)[8] prohibits the taking, possessing, or selling of any bald or golden eagle or part thereof.[9] However, unlike the MBTA, the BGEPA only prohibits take that is done “knowingly, or with wanton disregard for the consequences” of the action.[10] In addition to the MBTA and the BGEPA, wind project proponents also need to take into account the requirements of the Endangered Species Act (ESA),[11] the Lacey Act,[12] the National Environmental Policy Act (NEPA),[13] and various state analogues.

II. Duke Energy

Recently, Duke made news for pleading guilty to two Class B misdemeanor violations of the MBTA stemming from the discovery of 163 migratory bird carcasses, including 14 golden eagle carcasses, at its Campbell Hill and Top of the World facilities.[14] The Duke case is noteworthy as Interior’s first prosecution of the proponent of a wind energy project for violations of the MBTA. As part of its plea agreement, Duke agreed to $400,000 in fines, a five-year probation period, $100,000 in restitution payments, and $500,000 in community service payments to support projects designed to enhance avian rehabilitation and other conservation programs.[15]

Because Duke’s Campbell Hill and Top of the World facilities are sited on private land, they did not initially require a federal permit for construction, so ESA consultation with FWS was not required. Early in the planning stages of each facility, FWS advised Duke that its baseline studies regarding potential avian impacts were inadequate to allow for fully-informed turbine site selection.[16] According to FWS, Duke did not adequately respond to FWS’s concerns before the projects went online in December 2009 and October 2010, respectively.[17] While Duke did take efforts to minimize avian take at both project sites, including micro-siting of several turbine arrays and alteration of transmission lines,[18] it was not until 2011 that they began to develop BBCSs for the two sites.[19] However, by that point both facilities were up and running, and once wind facilities are operational, the suite of available mitigation tools is narrowed. For that reason, FWS strongly encourages project proponents to engage in an active dialogue with the agency early on in the process.

Since Duke’s facilities are operating, mitigation relies heavily on adjusted wind turbine operations, along with conservation practices such as prompt removal and burial of carrion and removal or modification of manmade habitat features.[20] As part of its plea agreement, Duke will implement a comprehensive Migratory Bird Compliance Plan approved by FWS that will include individual “life of project” BBCSs for each of its four Wyoming facilities. Duke will also apply for a programmatic eagle take permit from FWS.[21]

III. Permitting Incidental Take

Under the BGEPA, Interior may issue permits to individuals allowing for the incidental take of bald or golden eagles.[22] In 2009, FWS promulgated regulations that authorized limited take of bald and golden eagles when the take is associated with an otherwise lawful activity and cannot practicably be avoided.[23] These regulations provide for both standard permits authorizing individual instances of take and broader programmatic permits authorizing “take that is recurring, is not caused solely by indirect effects, and that occurs over the long term or in a location or locations that cannot be specifically identified.”[24] These programmatic permits are analogous to incidental take permits issued under the ESA.[25]

On December 9, 2013, FWS published a final rule revising these regulations (Final Rule).[26] The Final Rule extends the maximum term for programmatic permits for take of bald and golden eagles from five to up to 30 years.[27] FWS believes that the new extended term will “better correspond to the operational timeframe of renewable energy projects.”[28] By extending the programmatic take permits to 30 years, FWS makes the obligations of wind energy developers more predictable and allows them to provide greater assurances to potential financial backers.

In addition to extending the length of programmatic permits, the Final Rule adds new requirements to the overall permit program to help ensure any incidental take results in no net loss to populations of bald and golden eagles. Under the revision, applicants must, where appropriate, identify specific additional mitigation measures that will be triggered if the level of take authorized by their permit is exceeded, or if new scientific information on eagles demonstrates such a need.[29] FWS also will evaluate each permit that is issued for a period greater than five years at five-year intervals.[30] As a result of these evaluations, FWS may change the permit, including by revising monitoring and compensatory mitigation requirements, requiring additional mitigation measures, or even suspending or revoking the permit.[31]

Finally, FWS has significantly increased the cost of applying for a programmatic take permit. Previously, applicants were required to pay a $1,000 permit application processing fee. The Final Rule increases the cost of this fee to $36,000.[32] In addition, FWS will collect a “permit administration fee” of $2,600 at each five-year review of a permit.[33] FWS has also instituted a $1,000 fee for amending or transferring programmatic permits.[34]

IV. Protection and Conservation Plans

Unlike the BGEPA, the MBTA does not allow for an “incidental” take of migratory birds during otherwise legal activities.[35] Nor does FWS issue take permits for migratory birds under the MBTA. Yet FWS recognizes that even if all reasonable measures are implemented at a particular site, some birds may be killed at renewable energy project sites.[36] In lieu of a permitting program allowing incidental take, FWS exercises enforcement discretion in prosecuting violations of the MBTA based on a consideration of whether wind facilities have made a “good faith effort” to avoid the take of migratory birds.[37]

To assist wind energy facilities in this arena, FWS issued a document in 2012 entitled Land-Based Wind Energy Guidelines (WEG), which provides a structured process for addressing wildlife conservation concerns at wind energy project sites.[38] The WEG supersede Interim Guidelines issued in 2003 and updated in 2010. The WEG are built around a “tiered approach” to assessing potential conflicts. Each of the five tiers builds on information gained from the previous tier, and many smaller-scale or community wind facilities may not need to go beyond Tiers 1 and 2.[39] The tiers encompass both pre-construction and post-construction timeframes and focus on establishing a scientific process focused initially on analyzing the potential project site, and later on gauging and monitoring impacts at that site.

FWS recommends that developers prepare written records of their analyses of potential adverse impacts. The WEG offer advice on how to prepare site-specific plans to avoid, minimize, and compensate for the potential adverse impacts of wind projects. In the Interim Guidelines these plans were referred to as Avian and Bat Protection Plans (ABPPs). FWS now refers to plans specifically developed for wind energy projects as Bird and Bat Conservation Strategies (BBCSs).[40] FWS suggests that each BBCS “explain the analyses, studies, and reasoning that support progressing from one tier to the next in the tiered approach.”[41] A project-specific BBCS should lay out the steps the project developer has taken, or will take, to apply the WEG to address any potential adverse impacts to migratory birds.

For wind projects that might result in unintentional take of bald or golden eagles, FWS issued a document in 2013 entitled Eagle Conservation Plan Guidance (ECPG).[42] Like the WEG, the ECPG involves a tiered approach to analyzing the impacts of new wind projects. The ECPG provides a framework for assessing and mitigating risks specific to bald and golden eagles through development of Eagle Conservation Plans (ECPs).[43] These ECPs can be stand-alone plans, or can be part of a larger BBCS developed under the WEG.[44]

V. Conclusion

Interior’s extension of programmatic eagle take permits to 30 years significantly improves the utility of BGEPA permits for wind developers. At the same time, Duke Energy’s MTBA plea agreement is a reminder of the potential consequences of failing to adequately consult with FWS during project development. In the agency’s own words: “[t]he most important thing a developer can do it to consult with [FWS] as early as possible in the development of a wind energy project.”[45] By developing a project-specific BBCS and applying for a programmatic eagle take permit where applicable, wind project proponents can increase their ability to establish a good faith relationship with FWS and avoid costly avian take penalties and project disruptions.

For more information on renewable energy project development, please contact any member of Marten Law’s Energy or Permitting practice groups.

[1] U.S. Department of the Interior, Additional Changes to 2009 Eagle Permitting Rule to be Explored through Public Process (Dec. 6, 2013).

[2] U.S. Department of Justice, Utility Company Sentenced in Wyoming for Killing Protected Birds at Wind Projects (Nov. 22, 2013).

[3] U.S. Fish and Wildlife Serv. – Pac. Sw. Region, Interim Guidelines for the Development of a Project Specific Avian and Bat Protection Plan for Wind Energy Facilities (2010) at 1.

[4] 16 U.S.C. §703 et seq.

[5] See 16 U.S.C. § 703(a).

[6] See id. § 707(a).

[7] See id. § 707(b).

[8] 16 U.S.C. § 668 et seq.

[9] See id. § 668(a).

[10] See id.

[11] 16 U.S.C. § 1531 et seq.

[12] Id. § 3371 et seq.

[13] 42 U.S.C. § 4331 et seq.

[14] U.S. Department of Justice, Utility Company Sentenced in Wyoming for Killing Protected Birds at Wind Projects (Nov. 22, 2013).

[15] Plea Agreement at 7-10, United States v. Duke Energy Renewables Inc., No. 2:13-cr-00268 (D. Wyo. Nov. 22, 2013), ECF No. 2.

[16] See id., Attachment A at 4-7.

[17] See id. at 7-8.

[18] See id. at 8-9.

[19] Id. at 9-10.

[20] See id., Attachment B at 3.

[21] Id. at 8-9.

[22] See 16 U.S.C. § 668a.

[23] See 50 C.F.R. § 22.26.

[24] 50 C.F.R. § 22.3.

[25] Compare id. § 22.26 (describing take permits under the BGEPA), with id. § 17.22 (describing take permits under the ESA).

[26] See Eagle Permits; Changes in the Regulations Governing Eagle Permitting (Final Rule), 78 Fed. Reg. 73704 (Dec. 9, 2013).

[27] Id.

[28] Id. at 73705.

[29] Id.

[30] Id. at 73706.

[31] Id.

[32] Id. at 73707.

[33] Id.

[34] Id.

[35] See 16 U.S.C. § 703.

[36] See Interim Guidelines, supra note 3, at 2.

[37] Id.

[38] See U.S. Fish and Wildlife Serv., Land-Based Wind Energy Guidelines (Mar. 23, 2012).

[39] Id. at vi.

[40] Id. at 55.

[41] Id.

[42] See U.S. Fish and Wildlife Serv., Eagle Conservation Plan Guidance (Apr. 2013).

[43] Land-Based Guidelines, supra note 38, at 3.

[44] Eagle Conservation Plan Guidance, supra note 42, at iii.

[45] Land-Based Guidelines, supra note 38, at vii.

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