U.S. Fish & Wildlife Service Finalizes Rule on Wind Turbine Eagle Deaths

The U.S. Fish and Wildlife Service (FWS) on December 14 finalized the latest version of its rule governing permitted levels of eagle deaths at wind turbine farms.

The rule, first issued in 2009, governs the FWS's administration of the Bald and Golden Eagle Protection Act, which makes it a criminal offense to kill or injure a bald or golden eagle. However, the law allows for certain "incidental take"-unintentional deaths due to otherwise lawful activities-leaving it to the FWS to decide what activities qualify and how they are to be monitored.

Contentious Issue

The deaths of eagles and other birds at wind turbine farms has become a highly charged issue in recent years, one that cuts across many of the usual political battle lines. Some environmental and wildlife groups have lobbied for stricter controls while others have argued the impact of replacing fossil fuels with wind represents a net gain for bird populations. Many of the companies that own and operate wind farms in the U.S. represent some of its largest and most prominent utilities and energy firms, yet they have often found themselves under fire from conservative groups they can normally count on as allies.

A 2013 update to the 2009 rule was successfully challenged in court by conservation groups because it would have allowed a 30-year license for incidental take. That sent the FWS back to the drawing board for the new rule.

Under the revised final rule, wind farm owners will still be able to apply for 30-year permits, but the FWS will "closely re-evaluate[]" them every five years. Another important change sought by conservationists is that impact monitoring will be conducted by independent contractors reporting directly to the FWS, with the data to be made publicly available. Previously, wind farm owners would have been allowed to self-report.

This latter provision is likely to help resolve some of the debate over eagle deaths because the exact impact has been a matter of substantial controversy due to uncertain data. Estimates of total bird deaths from wind farms in the U.S. published in scientific studies have sometimes varied by an order of magnitude.

"The Service has a long history of working cooperatively with multiple industry sectors through the permitting system to reduce impacts to eagles and other federally protected wildlife species," FWS Director Dan Ashe said in a statement. "The Service is working with these and other interests to help them implement practices to site, design and operate facilities in ways that reduce impacts to eagles and other animals."

Reduced Eagle Deaths, FWS Says

The published rule suggests a maximum of 4,200 eagle deaths a year, but Ashe said in a concurrent blog post published on the Huffington Post website that the FWS expects the actual number to be far less.

"The reality is we expect to issue just a few dozen permits annually, most for nest disturbance, some for loss from wind power projects and other sources, such as power lines. We expect that a significant portion of the permits we issue will be to existing operations already taking eagles without authorization, providing an opportunity to reduce the ongoing toll," he said. "The total number of eagle losses we will authorize annually from new sources will be in the hundreds, not thousands, and we believe actual eagle loss will be significantly lower."

The rule will become final a few days before President-elect Donald Trump takes office. Revising or retracting it would likely require a new rule-making process that could take several years.

-Thomas W. Overton, JD is a POWER associate editor (@thomas_overton, @POWERmagazine).

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