From an Eagle to a Birdie?

A recent windfarm permit breaks important new ground on NEPA and raptor conservation. Was it a hole in one?

Windfarms and wildlife kills.  With climate change mitigation growing in importance, it has quickly become a principal and troubled intersection in environmental regulation.  Since 2007 when they were delisted from under the Endangered Species Act, eagles in the US are managed primarily by the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act (MBTA).  Under the “Eagle Act,” the Fish and Wildlife Service may issue permits to “take” eagles where activities are likely to disturb, injure or kill them but where the exact time and locations cannot be predicted.  The applicant must fashion an Eagle Conservation Plan (ECP) for that permit, though.

The Eagle Act permitting guidelines for ECPs are helpfully explained by FWS’s page on them here.  The gist is roughly this: in exchange for a permission to engage in actions likely to kill eagles, you must plan and execute mitigations which reduce that likelihood as much as possible using “scientifically supportable measures that are approved by [FWS] and represent the best available techniques to reduce eagle disturbance and ongoing mortalities.”  These are what FWS calls “advanced conservation practices” or ACPs. See 50 C.F.R. § 22.26.

Designing and implementing ACPs is no easy matter.  So obtaining Eagle Act permits can be costly.  As FWS described it recently,

Obtaining an eagle take permit involves significant planning and coordination between the Service and the applicant. An applicant must plan and implement scientifically supportable avoidance, mitigation and conservation measures over the life of the project. Permits may be issued only after the applicant demonstrates it is employing the best, scientifically-supportable techniques to reduce eagle disturbance and mortalities to a level where any additional take is unavoidable.

But once this ECP is approved, the Eagle Act permittee has their safe harbor.  And with stiff civil penalties and potential criminal liability available for dead eagles, that can be a safe harbor worth paying for.  So this makes for a strategic call: how big the potential liability might be without a permit will determine (roughly) how much a rational investor would put into their permit/safe harbor.  This post considers a deal FWS just announced with one wind concern—through an environmental assessment and “finding of no significant impact” (FONSI)—and its potential to set a big example.

Alta East: Small Part of a Bigger Whole

At one time, the 1500+ turbines at Altamont Pass east of the Bay Area generated half of all the wind power in the world.  But poor design and siting there resulted in unexpected bird (especially Golden Eagle) kills, the eventual redesign and reconstruction of a massive installation, continuing financial troubles, and a record which now severely complicates wind’s future in a tight market where cheap natural gas is setting the price.  Troublingly, California’s race to repower its grid with renewables—the goal being a third of its power by 2020—has arguably spiked eagle deaths there, as this NatGeo piece explains.


Tehachapi Turbines

Fast forward to the developers of the Tehachapi complex east of Los Angeles who are quickly putting together an installation rivaling Altamont.

Alta East was proposed to the Bureau of Land Management (BLM) as part of a massive, six project complex not far from Tehachapi.  Originally envisioned as 100+ turbines—rated at over 300 megawatts—it was ultimately approved in May 2013 to be much smaller.  That (and other) wrangling led BLM and Alta’s backers into a complicated (still pending) lawsuit over who owes whom and for what.

All the same, the turbines at Alta East are spinning: the 135+ MW project consists of 48 of them occupying over 2,200 acres of land (some of which is BLM’s). And that’s where FWS and its worry for the region’s eagle population enter.  A wind turbine killing a protected species like a California Condor or Bald Eagle may be “unintentional.”  But it is increasingly predictable in places like Tehachapi.

So the Alta East permit provided for some extraordinary measures—like powering the turbines down when eagles and condors are present (this can be critical for condors, which are in even worse shape than eagles), hefty monitoring duties, and something called “offsetting compensatory mitigation.”  This last part may be the most elegant.

Utility poles can be deadly for raptors.  Many of them electrocute perching birds at distressingly high rates.  So if the permittee were to retrofit some number of poles to make them bird safe, it could conceivably compensate for losses at its turbines.  And that is the example to consider.  What if wind power were to “pay its own way” onto the grid with compensatory mitigation like this wherever turbines are built?

The Alta East permit allows up to three eagle fatalities at the facility over the covered five-year period.  That number was then used to derive a compensatory mitigation estimate of up to 138 poles due for retrofitting.  This kind of analysis could be done anywhere bird mortality data enable it.  What’s missing?

The Currency: What FWS Has Plenty of . . . but May Not Want to Usefws-logo

Technically, of course, Alta didn’t need this permit to keep operating because the bird kills there are not “intentional.” But should that matter if they’re statistically likely?  This is how FWS described it in their November 1 press release about the Alta permit:

Although the Service cannot require companies to apply for eagle take permits, it is able to investigate harm to eagles and to recommend prosecution for unauthorized take under the [Eagle Act]. Although legal remedies are available to enforce the act, the Service strives to first work proactively and collaboratively with industries of all types to avoid and mitigate harm to eagles. In return for advancing eagle conservation, the Service provides greater regulatory (and therefore financial) certainty to the permittees that they will not be prosecuted for take that cannot be avoided.

A moment’s reflection reveals what is needed to make more of these unintentional take permits attractive to operators (under other, similar laws like the MBTA): more enforcement driving up the risk of detection in the event someone’s equipment kills or harms protected species.

Under the MBTA the list of protected “migratory” birds numbers 1,000+ and counting.  See 50 C.F.R. § 10.13.  And FWS could establish programmatic permits for the MBTA like it has for the Eagle Act.  {See this Greenwire story on recent FWS deliberations about doing so and this notice of intent to prepare the programmatic EIS for it.}

When we see a deal like that hashed out at Alta East, we have to consider the possibilities.  We have to ask whether this kind of work couldn’t benefit at-risk bird species more broadly.  And the answer to that question might turn on whether the government can step up enforcement of underlying laws like the MBTA first.  As FWS prepares its programmatic EIS on a programmatic permitting system for the MBTA—mimicking that of the Eagle Act—it would do well to support the currency it has to spend.

{Image: Alta East Wind Farm, Kern County California ©Wikipedia}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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