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Eagle "take" permit could start a trend

Chris Merkord

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From the Birding Community E-bulletin, September 2014:
Until 31 July, an eagle "take" permit had never been issued by the U.S. Fish and Wildlife Service to a project in any industry. But after the nearly five years since "take" permits went into effect, to allow for the accidental harm or killing of eagles in the process of regular business, a permit was issued to a wind-power project in northern California.

Under the Bald and Golden Eagle Protection Act, eagle take permits can have a maximum term of five years, but in late 2013 the USFWS extended the maximum term to 30 years, which, corresponds to the operational life of most wind projects. This 30-year extension which supports a wind industry desiring a degree of certainty for its investments, not surprisingly generated opposition from several organizations, some which had even supported the five-year term.

With the previous rule, adopted in 2009, the USFWS had defended the five-year permitting process, stating at the time that a permit of any longer duration "would be incompatible with the preservation of the Bald or Golden Eagle." Accordingly, the increase to 30 years did not appear to be supported by any newly available information and came as a surprise to many.

The American Bird Conservancy has even filed suit in federal court in June, claiming that the 30-year policy is in violation with the Bald and Golden Eagle Protection Act and the National Environmental Policy Act. You can find details here: www.abcbirds.org/newsandreports/releases/140807.html

Among the arguments made in defense of a shorter permitting period is the one that many factors impacting eagles and their populations (e.g., habitat loss, prey abundance, wildfires, and climate change) will surely change over a 30-year period, and the ability to plan for such changes will now become potentially more limited.

Defenders of the 30-year extension say that these newly revised permits will still require a review of the projects every five years, and that the projects may be required to undertake additional conservation measures.

Still, there is no legal mandate to comply with the eagle guidance, and not all wind-power projects will need to obtain an eagle-take permit. Realistically however, the USFWS will likely start to issue more eagle take permits for proposed and operating wind-power projects, and an increasing number of applications will also likely be submitted in the future.

The question arises: Can wind, solar, bio-fuel, and other renewable energy sources be encouraged without putting birds, bats, and related habitats at risk? The answer should be yes, but the ways to reach those goals - including the eagle issue - are fraught with many detours and pitfalls. Given the pending review and legal challenges, it is unclear how the eagle permitting process may evolve over the next few years, and how much-needed comprehensive "smart energy" approaches will result.

Finally, for those interested, the public comment period for the issue of 30-year take permits is open through 22 September: www.regulations.gov/#!docketDetail;D=FWS-R9-MB-2011-0094

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The question posed was "Can wind, solar, bio-fuel, and other renewable energy sources be encouraged without putting birds, bats, and related habitats at risk?"


The answer is: not without well-designed, meaningful research. Most of the studies to date have consisted of either pre-construction surveys done once, usually using methods similar to the Breeding Bird Survey (road-based point counts) or post-construction body counts. There have been some studies on bat and avian ability to perceive the spinning rotors and as to things like natural gas production producing by hydrofracturing rock, avoidance of areas by ground-dwelling species. The industry build-out has been too rapid and intense; it has far outpaced the capacity and will to do the research needed to determine just what "properly sited" actually means. No one has had the energy to try to attach a research funding requirement to the tax credit, and other sources of funding for research have been limited at best. No one has even dared to ask for a building moratorium pending the design and completion of a rigorous program of research. 


Along those lines, congratulations to the Biodiversity Research Institute (Gorham, Maine) on its award of a grant from the U.S. Department of Energy help researchers develop a system of near-infrared cameras that will detect and document the flight behavior of birds and bats around wind turbines. However, this is just one facet of the research that needs to be done. The wind resource maps have been developed, but maps of bird use of those areas at various scales and various altitudes and various conditions are at best imprecise. Most who are concerned about turbines at a specific site can say little more than "birds migrate here" or "this is a wetland used by birds." If wind turbines are to be limited to the places where bird migration is reliably and regularly sparse, or where there are no wetlands or other habitats used by appreciable numbers of birds, then there will be very few wind turbines - far fewer than are already on the landscape.


Ellen Paul

The views expressed here are my own and not those of the Ornithological Council, its directors, member societies, or directors of those member societies

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