Based on the actions of Apex, it is reasonable to conclude they knew about the nest from their consultants who conducted the eagle survey. The nest was constructed in either the spring of 2016 or 2017, a time when the Applicant’s consultants were surveying Galloo, probably at least one day per month looking for eagles. I believe a competent, capable survey crew had to know about the nest.
The Applicant completed a full year’s bald eagle survey on Galloo without contacting USFWS or providing any data as they had previously agreed to do. They met on August 30, 2017 only after USFWS complained in their July 14, 2017 letter [to] the Secretary.
The only reference to this meeting in the Applicant’s Take Permit report was what to do in the future if a bald eagle nest is found on Galloo. From this discussion of nesting hypotheticals Apex reports that USFWS agreed that their project was too far along to consider adjusting turbine placements (even though no application had been filed at the time) and that the agency approved the idea of destroying a nest if one appears and/or harassing any eagles that might try to nest. Although this kind of discussion by the Applicant suggest they knew a nest had been constructed on Galloo, they nevertheless failed to inform USFWS staff (T. Sullivan, USFWS, pers. comm., August 24, 2018). I am also struck with the Applicant’s suggestion that their project was set in stone and could not be modified. Really? Consider, too, that on August 30, 2017 Apex and the USFWS were talking about killing three eagles during the life of the project, destroying eagle nests if they appear and harassing bald eagles if they attempt to nest, and today NYSDEC is threatening criminal prosecution if parties to this proceeding talk about, take notes, or photograph an eagle nest. This is offensive, and I hope the irony of it all is not
Regardless of any agreements to remove nests and harass eagles, if confirmed, bald eagles nesting on Galloo Island is something to highlight, publicize and celebrate. It would also warrant aggressive action by NYSDEC to protect and guard the resource as they outline in the 2016 Conservation Plan for Bald Eagles in New York State. Federal law may allow nest destruction and harassment of bald eagles, but New York’s Conservation Plan for bald eagles does not. On the contrary, it recommends a ¼ mile buffer around each nest, which would require a major reassessment of the Applicant’s facilities layout, since not many sites on Galloo are more than ¼ mile from a turbine. Moreover, the USFWS is not a party to this Article 10 proceeding, whereas NYSDEC is a party and its commissioner is a member of the siting board; consequently, the state’s Conservation Plan for Bald Eagles should be a more important component to the discussion and should be pursued vigorously.