Page 10 - North American Clean Energy January February 2014

wind power

Federal Oversights

Wind energy & winged wildlife

By Matthew Ahrens

adverse impacts to birds, bats, and other wildlife “take” under the MBTA is ambiguous, leading courts to disagree over whether the MBTA is
FEDERAL OVERSIGHT OF WIND ENERGY’S
will increase due to two recent developments: the pending irst programmatic “take limited to intentional takes or if it also includes incidental takes, which means a take that
permit” under the Bald and Golden Eagle Protection Act (BGEPA), and the irst criminal occurs as a result of, but is not the purpose of, an otherwise lawful activity.
enforcement action for avian fatalities under the Migratory Bird Treaty Act (MBTA).
To lower the risk of takes due to the construction and operation of wind energy projects,

Wind farms face a somewhat unique environmental challenge—a clean source of energy the FWS adopted the Land Based Wind Energy Guidelines (FWS Guidelines) on March
with a potential dirty impact to wildlife. Debate over the correct level of governmental 23rd, 2012. he FWS Guidelines are voluntary, and set forth ive tiers of pre- and post-
enforcement and regulation will continue, but impacts to bald and golden eagles, migratory construction studies that seek to evaluate and address potential negative impacts of
birds, and other federally protected species play an increasingly signiicant role in the wind energy projects on species of concern, including migratory birds, bats, and bald and

siting, construction, and operation of wind projects. Going forward, wind projects will golden eagles. Additionally, on May 2nd, 2013, the FWS released the Eagle Conservation
encounter an increased need for comprehensive due diligence and a critical assessment of a Plan Guidance Module 1—Land-based Wind Energy, Version 2 (FWS Eagle Guidance),
project’s impact to birds, so as to ward of potential future criminal enforcement.
which is designed as a supplement to the FWS Guidelines. he FWS Eagle Guidance is
Although government and industry eforts have been made to safeguard wildlife—new also voluntary, and lays out a staged approach to siting new wind power projects. It also

voluntary federal guidelines have been issued, comprehensive pre-construction and post- contains in-depth guidance relating speciically to the protection of bald and golden eagles,
operation studies have become more common, and wind projects typically implement and compliance with the BGEPA.
mitigation measures (such as siting turbines away from known nests and other high risk
areas, creating habitat bufers and using radar, underground transmission lines, and Eagle “take permits”

other methods to reduce the risk of collision)—until the legal requirements become clear, In 2009, the FWS established new rules (50 CFR 22.26 and 22.27), providing for the
developers bear a burden to determine what needs to be done to comply with the law.
issuance of two types of ive-year incidental take permits under the BGEPA—individual
and programmatic. Both permits authorize a take of bald and golden eagles when the take
Understanding federal bird protection laws
is associated with, but not the purpose of, an otherwise lawful activity.

Currently, there are two federal laws that regulate the “take” of birds: the BGEPA, which
regulates bald and golden eagles; and the MBTA, which regulates approximately 1,000 To obtain an Eagle Take Permit, a project developer must:
species of migratory birds. Violations can lead to civil and criminal penalties, and potential 1. Avoid and minimize take to the maximum extent achievable;
imprisonment for six months to two years per violation. hough felony prosecutions 2. Conduct adequate monitoring;

under the MBTA only apply to the actual or intended sale or barter of migratory birds and 3. Ofset any remaining take through compensatory mitigation; and
migratory bird parts, misdemeanor charges may be levied against any person who takes a 4. Ensure the direct and indirect efects of the take are compatible with the preservation of
migratory bird for any other reason.
bald and golden eagles.
he BGEPA doesn’t contain a distinction between felony and misdemeanor charges

for irst-time ofenders. he BGEPA deines “take” to include: “pursue, shoot, shoot at, An Eagle Take Permit qualiies as a federal action, and triggers the need for an
poison, wound, kill, capture, trap, collect, molest, or disturb.” However, the deinition of
environmental review under the National Environmental Policy Act (NEPA). On December
Continued on page 10.

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JANUARY/FEBRUARY 2014