As the country faces polar vortexes of various magnitudes, a storm is brewing on the horizon for the wind energy industry. A shifting political climate is drawing increased attention to the number of avian deaths, particularly eagle deaths, that may result from wind farms. This mounting pressure felt by the wind industry is fueled by allegations that the U.S. Fish and Wildlife Service (USFWS) has given the wind industry a free pass when it comes to avian impacts as well as the recent prosecution of Duke Energy Renewables, Inc. under the Migratory Bird Treaty Act (MBTA) for avian deaths at two of its Wyoming wind farms. At the same time, the USFWS’ regulatory changes to the Bald and Golden Eagle Protection Act (BGEPA) permitting rules are fundamentally altering the business case for obtaining an eagle take permit under the BGEPA.
Regulatory Background
Under the MBTA it is unlawful to pursue, hunt, take, capture, kill, or attempt to take, capture or kill any migratory bird. No permit is available to authorize the incidental killing or injuring of migratory birds as a result of wind energy generation. Rather, the USFWS has promulgated voluntary Land-Based Wind Energy Guidelines (Wind Energy Guidelines) which outline a structured, scientific process for addressing avian conservation concerns at all stages of wind energy development. Companies that develop projects in accordance with the Wind Energy Guidelines and in consultation with USFWS are not immunized from liability under the MBTA. Instead, the USFWS has indicated that adherence to the Wind Energy Guidelines will be taken into consideration when the USFWS considers whether to prosecute a developer or operator under the MBTA.
The BGEPA prohibits the “take” of bald and golden eagles by otherwise lawful activities except by permit. A “take” of an eagle includes actions such as pursuing, shooting, shooting at, poisoning, wounding, killing, capturing, trapping, collecting, destroying, molesting, or disturbing. The eagle take permit allows the take of bald and golden eagles when the taking is associated with, but not the purpose of, otherwise lawful activity. The USFWS has developed voluntary Eagle Conservation Plan (ECP) Guidance as a supplement to the Wind Energy Guidelines. The ECP Guidance is intended be implemented in conjunction with the Wind Energy Guidelines and focuses on gathering information specific to eagles to support an eagle take permit decision. Although the ECP Guidance does not address enforcement discretion, the Wind Energy Guidelines provide that the USFWS will consider adherence to the Wind Energy Guidelines when determining whether to pursue BGEPA violations, so long as the project is not likely to result in an eagle take.
An eagle take permit does not authorize the construction or operation of a wind energy facility, and an eagle permit is not required to construct or operate such facilities. The eagle take permit authorizes the eagle take that may result from the construction or operation of the facility. Wind energy project developers and operators thus face a business decision that weighs the risk that project will take an eagle, the risk of enforcement under the BGEPA, and the burden of obtaining an eagle take permit. Most notably, for projects that do not otherwise have a federal nexus, the application for an eagle take permit will trigger the burdensome National Environmental Policy Act (NEPA) procedural requirements.
Lessons From Duke
There is a simple lesson to be learned from the Duke enforcement case: when the USFWS expresses concerns regarding a project’s impacts to avian wildlife and the adequacy of the project’s avian impact studies, make sure those concerns are addressed during project development. If the wind project has already been developed, obviously the past cannot be changed. There is no time like the present, however, to consider strategies for minimizing potential future liability, including assessing the robustness of the project’s avian protection plan or bird and bat conservation strategies and the necessity of additional mitigation measures.
Changing Regulatory Policy
Much has been said about the USFWS rules promulgated in December 2013 which extended the maximum duration an eagle take permit to 30 years and the degree to which the longer term permit provides certainty for wind energy industry. Of equal importance, but flying under the radar, are the amendments to the BGEPA permitting fees which created a reduced fee category for “low-risk” projects. This rule change has fundamentally altered the risk calculus regarding whether wind projects should obtain an eagle take permit –not because of the price, but because of the underlying policy shift.
Under the ECP Guidance promulgated last April, a project poses a minimal risk to eagles if it:
- has no important eagle use areas or migration concentration sites within the project area;
- has an annual eagle fatality rate estimate of less than 0.03 eagles per year (1 eagle death per 30 years); and
- causes cumulative annual take of the local-area population of less than 5% of the estimated local-area population size.
The ECP Guidance explains that projects meeting the above criteria may not require or warrant eagle take permits but also advises that the decision should be made in coordination with the USFWS.
Under the new rules, which went into effect on January 8, 2014, the USFWS has created a reduced fee category for “low-risk” projects. Low-risk projects are those where the applicant can demonstrate that the eagle take is expected to be less than 0.03 eagles/per year using approved models and predictive tools. Qualifying projects will be charged a permit application of $8,000 rather than $36,000 and pay $500 every 5 years in administrative fees rather than $2,600.
This creation of a low-risk permit signals a likely shift in policy by the USFWS whereby the USFWS may urge developers to obtain an eagle take permit even when there is only a very remote chance of an eagle being in the project area over the life of the project. In justifying the low-risk permit, the USFWS explained that “there are potential benefits to eagles from issuing permits in situations in which take is unlikely, because such ‘low-risk’ permits will require monitoring and reporting” (although less than is required for higher risk projects) thereby allowing the USFWS to collect additional data on eagle use of the project areas and potential impacts of the permitted activities. Moreover, it is not clear what projects will be deemed “not likely to result in a take” and qualify for enforcement discretion under the Wind Energy Guidelines in light of the low-risk permit category. By definition, a permit is not required where a take is not likely. Nevertheless, the USFWS now has created a permit for situations in which take is not likely.
What You Can Do Now
In light of the changing political and regulatory fronts impacting the wind energy industry, existing and planned wind energy projects should re-evaluate their compliance and risk management strategies concerning the BGEPA and the MBTA. Projects seeking financing can expect more opinions from counsel regarding the advisability, and perhaps necessity, of obtaining an eagle take permit. In addition, to smooth the way for project financing, it will be even more critical than in the past to obtain documented and clear concurrence by the USFWS that the project is not likely to result in an eagle take and that an eagle permit is not required.
For More Information
If you have questions about the impacts of the new BGEPA regulations that went into effect in January, please contact:
Maribeth M. Klein 602.650.2309 mklein@polsinelli.com
Margaret B. LaBianca 602 650 2304 mlabianca@polsinelli.com