ABC comments on 30 year Eagle Take Permits

The U.S. Fish and Wildlife Service (FWS) is taking public comment until July 5 (2016) on an eagle-management plan that could weaken protections for eagles, including the issuing of 30-year permits to wind energy and other companies that allow the “take” (or harm) of thousands of eagles. The American Bird Conservancy and other groups and individuals are working to strengthen the draft rules prepared by the FWS—also called the Eagle Take Rule. Under the proposed plan industry would not be required to have mortality data collected by independent, third-party experts; share mortality data with the public; or take critical factors like proper siting of wind turbines into consideration. Attached is the comment letter submitted by ABC of which a portion is posted below.

Excerpt of ABC' Comments

Transparency and Importance of Neutral Mortality Data Collection 

Transparency of bird and bat kill data has been a continuing and serious problem with wind energy development in the United States. With a weak correlation between pre-construction risk assessments and post-construction mortality (Ferrer et al. 2012), the public and concerned conservation organizations will only know what the actual losses have been if: (1) mortality data are collected by independent, third party experts using standardized methods; and (2) these data are made publically available. We agree with Johnson et al. (2016), the experts that have conducted all major North American mortality studies to date, who state: 

"Because fatality studies generally are conducted by or financially supported by the wind industry, a skeptic might question if results of studies demonstrating high rates of fatalities are made as easily available as results from innocuous wind farms. Legal requirements for wind energy developers to ensure accessibility of study results would resolve many problems associated with analyses, such as those reviewed here."

The FWS’s Choke Cherry-Sierra Madre (CCSM) EIS, for example, predicts minimal impact on eagle populations. However, the final word on whether or not these predictions are accurate and mitigation is effective will only come after the project is built and operational (Ferrer et al. 2012). The data must be collected by independent, third-party experts and be transparent to the public and interested conservation organizations. The DEIS does not address this issue at all, preferring instead to let the wind industry self-report and self-regulate, with little or no actual oversight.

FWS has stated that:

“The current regulations provide that eagle mortality reports from permitted facilities will be available to the public. We will also release mortality data on other migratory birds if we receive that data as a condition of the permit, provided no exemptions of the Freedom of Information Act (FOIA) (5 U.S.C. 552) apply to such a release. If we receive mortality data on a voluntary basis and we conclude it is commercial information, it may be subject to Exemption 4 of the FOIA, which prevents disclosure of voluntarily submitted commercial information when that information is privileged or confidential.” (FWS 2016b, page 82 [1] 

That statement strongly suggests that FWS will accede to the wishes of companies that desire to shield from the public their impacts on public trust resources–which is hardly consistent with the purposes of BGEPA, MBTA, or the FOIA. Any wind energy company could declare that disclosure of eagle kill data could hurt its bottom line or is somehow “confidential” business information, with the result that virtually all eagle mortality data will likely continue to remain unavailable to the public and concerned conservation organizations.

None of these data should remain confidential, and they should not be submitted voluntarily, or collected and reported by the regulated party. Recreational hunters are not allowed to kill native game animals without obtaining a license, so why should wind energy companies get a pass to kill federally protected species without independent oversight? These are public trust resources being taken; our Nation’s ecologically, aesthetically, and culturally important native birds and bats are not owned by wind energy companies, but by the American people and held in trust for this and future generations. The primary mission of the Service itself is to conserve wildlife, not to provide immunity tools for-profit corporations to kill wildlife without prosecution, and facilitate their concealment of that killing from the public. The public has a right to know how many and what kind of birds and bats the wind industry is killing. (See also the President’s recent memorandum, “Mitigating Impacts on Natural Resources from Development”, which specifically calls for improved transparency (

We know that bird losses at wind energy developments is in the hundreds of thousands at minimum (Loss et al. 2013, Smallwood 2013, Erickson 2014) and millions when collisions and electrocutions at associated power lines and towers are included (Loss et al. 2015). However, we have no idea as to precisely how many and what kind of birds are being killed—only rough estimates based on data collected by paid consultants to the wind industry and using a wide variety of different, often incompatible methods (Smallwood 2013, Johnson et al. 2016). Besides the fact that most of these data are collected and reported by regulated parties, other methodological problems have made it difficult to assess the actual impact of wind energy development on bird mortality. According to Loss (2016): 

“For well-studied infrastructure types (wind energy and power lines), further study is needed to increase randomization, replication and duration of studies and to assess and account for biases that limit the accuracy and precision of mortality estimates (e.g., scavenger removal, searcher detection, and biases related to injured birds dying outside of searched areas). Comparisons of relative impact also will require the development and implementation of modeling approaches that capture the full annual cycles of species.”

The use of industry-paid consultants to conduct post-construction mortality studies itself is highly problematic (Johnson et al. 2016). Industry self-reporting is a direct conflict of interest. Independent data collection of post-construction bird and bat mortality must be the rule, not the exception (see Clarke 2014a). Hawaii is currently the only state where independent, third-party experts using standardized methods collect mortality data and data are made available to the public on request (Hutchins 2016). The same system needs to be used on the mainland. If it can be done in Hawaii, why not elsewhere? Johnson et al (2016), the experts who conducted all of the major wind turbine fatality studies on North American birds to date, recently said: 

"Because fatality studies generally are conducted by or financially supported by the wind industry, a skeptic might question if results of studies demonstrating high rates of fatalities are made as easily available as results from innocuous wind farms. Legal requirements for wind energy developers to ensure accessibility of study results would resolve many problems associated with analyses, such as those reviewed here."

FWS has given this some consideration saying that it is:

“investigating the use of third party environmental compliance monitors. There are benefits to using third party monitors, particularly the more objective observation and reporting of wildlife injuries and mortalities. However, there can be considerable costs to using third party monitors, and so it may be considered unreasonably burdensome from some smaller operations. It may be a viable option for permits for large, utility-scale projects.” (FWS 2016b, page 81). 

Wind energy companies are already paying for these studies. These payments could instead be given to FWS and used to hire trusted, qualified, third party, independent experts to conduct these studies using standardized methods. The reports would be submitted directly to the regulatory agency instead of going through the regulated party, thus effectively eliminating this direct conflict of interest and greatly improving credibility. The results would also be maintained on a web site and accessible to the public and concerned conservation organizations. This level of independence, standardization, and transparency is necessary to find out precisely how many and what types of birds (and bats) are actually being taken by wind energy facilities. It is also essential for properly regulating the industry and for determining the effectiveness of mitigation and appropriateness of compensation. 

[1] In making this statement, FWS appears to be under the mistaken impression that all of the exemptions to the FOIA are mandatory, i.e., that the FWS must withhold information simply because it falls within a FOIA exemption. That is not the law. Agencies can and do make discretionary releases of materials that would otherwise be subject to FOIA exemptions all the time. Consequently, there is nothing to preclude the Service from providing in its BGEPA regulations that information on eagle and other bird deaths will be released to the public as a matter of course unless such disclosure is prohibited by another federal law (i.e., other than FOIA). 

Comment On Revised Eagle Rule Final On Letterhead1

Download file (437 KB) pdf


JUN 23 2016
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