Kill Data Collection Improves, but Lack of Public Input Remains a Concern
(Washington, D.C.) The U.S. Fish & Wildlife Service (FWS) today released the final version of its long-anticipated revised eagle management plan. American Bird Conservancy's initial assessment finds some positive elements in the rule, including a promise that eagle mortality data will be collected by independent, third-party experts using standardized methods. But we also see significant weaknesses and omissions.
“While we are pleased with some aspects of the new rule, including increased transparency and independence of eagle kill data, we still have some serious concerns,” said Dr. Michael Hutchins, Director of ABC's Bird-Smart Wind Energy Campaign. “The most prominent of these are the fate of the small eastern Golden Eagle population, which consists of only a few hundred individuals, and the lack of public involvement in the 5-year ‘internal' reviews of the 30-year take permits.”
Under the rule, FWS would issue 30-year “take” permits to wind energy companies, which are protected from prosecution if their activities harm eagles. “Internal reviews” of the permits should provide an opportunity to cancel or amend the permit if the wind energy facility is killing more eagles than anticipated. However, under the new rule, these 5-year reviews will usually not include feedback from the public. That also excludes conservation groups and other stakeholders from the process.
Instead of public input, the Service would use what it calls “adaptive management.” But given FWS's already stretched resources, ABC believes that enhanced public oversight is essential. In addition, the lack of an opportunity for public input makes the rule vulnerable to legal challenges under the National Environmental Policy Act (NEPA), one of our most important environmental laws.
“Public oversight and input from concerned conservation organizations are critical in order to assess the specific causes of eagle deaths,” said Hutchins. “Other areas where public input is important include assessing the effectiveness of mitigation strategies used at wind energy facilities and reviewing the appropriateness of regulatory actions, which are at the sole discretion of FWS.”
In 2015, in response to the Service's previous 30-year eagle rule, ABC won a court battle to require FWS to follow the process required by NEPA, including the preparation of an Environmental Impact Statement (EIS) and consultation with Native American tribes, for whom eagles are sacred. As a result of the lawsuit, a federal judge overturned the former rule, agreeing with ABC that lack of public oversight during the 5-year reviews was a potential NEPA violation.
“Unfortunately, this new rule again risks violating NEPA,” said Hutchins.
In addition, the new 30-year eagle take rule leaves Golden Eagles, particularly the birds' small Eastern population, too much at risk.
“There's a lot of uncertainty in this, particularly in the risk to Golden Eagles,” Hutchins said. “If FWS is going to allow any wind energy facilities to be constructed in the migratory route of Eastern Golden Eagles and issues take permits for these eagles, that's potentially a huge problem for the vulnerable Eastern population.”
Hutchins added, “We understand—and this is a good thing—that no permits are to be given for the take of Golden Eagles unless the permittee implements compensatory mitigation. But it's also troubling because we don't know much about the effectiveness of mitigation yet.”
ABC would like to see increased enforcement of Bald and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Treaty Act (MBTA) as part of this process. Without consistent and predictable enforcement, few companies are likely to adhere to the guidelines. Siting is also of critical importance, and enforcement and permitting need to be used effectively to ensure that projects are not built in the highest-risk locations.
Finally, ABC remains concerned about the lack of incentives for wind energy companies to comply with FWS's current voluntary guidelines on eagle take. “We fully understand the challenges that the Service faces, especially given large cuts to its finances over the past several years,” said Hutchins. “But we do not believe this absolves the Service of its obligations, both legally and morally, to protect our irreplaceable wildlife, including our iconic eagles.”
“If you want to hunt deer, you are required to get a license,” Hutchins said. “Why do some wind energy companies get a pass to kill eagles without first getting a permit, especially when they build in important eagle habitat?”
(Note: ABC submitted detailed comments on the proposed revisions in June 2016.)