Conservancy: USFWS guilty of violating Bald Eagle Act 

For years the United States Fish & Wildlife Service teamed with the Wisconsin Department of Natural Resources to try and nab Paul and Alvin Sowinski of Sugar Camp for killing protected wildlife on their family property, finally nailing each on a single misdemeanor count of violating the Bald and Golden Eagle Protection Act.

Alvin Sowinski stipulated to poisoning one bird with bait; Paul Sowinski admitted to illegal possession of a bald eagle after finding a dead one and disposing of it.

Now a bird preservation organization says it’s the USFWS itself that is violating the act, and it has sued the agency over what it says is a rule that could endanger thousands of bald and golden eagles. Indeed, the American Bird Conservancy asserts, the USFWS has committed multiple violations of federal law.

In June, the ABC filed suit in federal court over a rule promulgated by the agency that allows wind-energy companies to kill or injure eagles with immunity from prosecution for the next 30 years – in effect, allowing them to kill protected wildlife for decades despite the federal law.

Already a deadly toll

Wind farms have already killed scores of eagles, according to a USFWS study published last September in the Journal of Raptor Research.

In the study, ‘Bald Eagle and Golden Eagle Mortalities at Wind Energy Facilities in the Contiguous United States,’ researchers found at least 85 dead eagles on 32 wind-energy facilities in 10 states from 1997 to June 30, 2012. Sixty-seven of the birds were killed in the five years between 2008 and 2012, the researchers concluded.

“Probably our results under represent, perhaps substantially, the numbers of dead eagles in the United States because of electricity generated by wind,” the authors wrote.

By comparison, the USFWS only confirmed the poisoning of one eagle on the Sowinski farm in a span between 2007 and 2010. The bird was poisoned by an insecticide, Carbofuran, that was then legally used in farming operations.

That’s not all. In May 2013, in an investigation, the Associated Press also documented dozens of eagle deaths at wind farms. While Ed Culhane of the Wisconsin Department of Natural Resources described the events on the Sowinski farm as “horrendous,” the grisly findings in the AP report were more so.

As the AP’s Dina Cappiello reported, among the discoveries were two bald eagles in Iowa killed by blunt force trauma caused by striking wind turbine blades; in one of those, a mutilated eagle was discovered with a missing wing and leg near a turbine at EDP Renewables North America LLC’s Pioneer Prairie facility in Iowa, Cappiello reported.

That’s still not all. While the USFWS and DNR stormed the Sowinski property with the assistance of 50 agents, followed by prosecution, the AP reported a lack of prosecution against all but one wind-farm operator as of last December.

Because none of the operators possessed a permit allowing an “eagle take” for five years under federal rule, each eagle death constituted a violation of the federal Bald and Golden Eagle Protection Act. But federal investigators did not prosecute.

Indeed, in the EDP Renewables case, the AP reported, the government cited “the sensitive nature of wind farm investigations and the fact that this investigation documented first violation for EDPR in Midwest” as the reasons for filing no charges.

According to the AP, the Obama administration has prosecuted only one company for eagle deaths, Duke Energy Corp. last December.

Industry push, counterpush

Now the USFWS has fashioned a rule environmentalists say will cause many more deaths.

The December 2013 regulation allows wind energy companies and others to obtain 30-year permits to kill eagles without prosecution by the federal government. As noted, the previous rule provided for a maximum duration of five years for each permit, after which renewal would hinge on a review of the impacts on net population.

The American Bird Conservancy has filed suit against the Department of Interior – the Fish & Wildlife Service is a bureau within that agency – saying there’s no science to support a 30-year permit and the rule was not properly vetted.

“Eagles are among our nation’s most iconic and cherished birds,” Dr. Michael Hutchins, national coordinator of ABC’s Bird Smart Wind Energy Program, said. “They do not have to be sacrificed for the next 30 years for the sake of unconstrained wind energy. Giving wind companies a 30-year pass to kill bald and golden eagles without knowing how it might affect their populations is a reckless and irresponsible gamble that millions of Americans are unwilling to take.”

Hutchins further said the rule lacks a firm foundation in scientific justification and was generated without the benefit of a full assessment of its impacts on eagle populations.

ABC officials say the group supports wind power and other renewable energy projects when those projects are located in an appropriate, wildlife-friendly manner and when the impacts on birds and other wildlife have been conscientiously considered and addressed, but that’s not the case with the rule.

“On the other hand, when decisions regarding … projects are made precipitously and without compliance with elementary legal safeguards designed to ensure that our nation’s invaluable trust resources are not placed at risk, ABC will take appropriate action to safeguard eagles and other migratory birds,” ABC stated in a notice of intent to sue.

ABC is seeking to have the rule vacated pending full compliance with federal environmental statutes. For example, the group asserts, the 30-year eagle permit rule was adopted in the absence of any National Environmental Policy Act document or any Endangered Species Act consultation regarding impacts.

“This major rule change – the ‘thirty-year eagle take rule’ – applies to industrial activities of all kinds that incidentally take federally protected eagles in the course of otherwise lawful activities but, as acknowledged by the Service, was promulgated specifically to respond to the wind power industry’s desire to facilitate the expansion of wind energy projects in areas occupied by eagles,” the ABC complaint states. “However, the rule was adopted in flagrant violation of the National Environmental Policy Act because the Service did not prepare any document analyzing the environmental impacts of the rule change, as required by NEPA and its implementing regulations.”

In addition, ABC contends, the rule change violates the Bald and Golden Eagle Protection Act and the Administrative Procedure Act because the rule subverts the basic eagle protection purposes of the BGEPA and eliminates crucial procedural and other safeguards for eagle populations without any adequate explanation.

“Bald Eagle populations may be technically recovered, but their popularity and symbolic importance to our nation suggests that the American people are not going to tolerate the deaths of many,” Hutchins said. “Golden Eagles are another matter. Much more needs to be known about their status before the U.S. Fish and Wildlife Service can safely decide how many wind energy companies can kill with no net loss to the population.”

At odds with the law

ABC contends the 30-year rule is arbitrary, capricious, and runs counter to the goal of the federal Bald and Golden Eagle Protection Act, which is to “increase the protection afforded bald and golden eagles.”

Rather, the rule protects the wind industry, the lawsuit contends.

“The primary purpose and practical effect of the thirty-year eagle take rule, however, is not to increase the protection afforded bald and golden eagles, but, rather, to ‘accommodate’ the purported ‘needs’ of the wind power and other industries for longer permit terms, and to ‘provide [wind] project developers the certainty provided by a permit for the anticipated project life,’” the lawsuit states. “In adopting the thirty-year eagle take rule, the Service never explained how affording project developers regulatory ‘certainty’ notwithstanding the unprecedented risks to eagle populations posed by doing so is in any way consonant with the objectives and design of BGEPA.”

What’s more, the lawsuit asserts, in adopting the 30-year eagle take rule, the USFWS made no effort to reconcile the rule with its own finding of just four years earlier that a permit duration of only “five years or less” was appropriate and necessary under BGEPA “because factors may change over a longer time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or golden eagle.”

“In reversing position, the Service pointed to no new science or studies that purportedly supported a significantly longer permit duration or a dramatically different permitting process in which, once a long-term permit is issued, the burden is expressly imposed on the Service to justify revisiting the permit terms, rather than on the project developer to justify renewal,” the lawsuit states. “To the contrary, the Service admitted that ‘[i]n the case of managing eagle populations in the face of energy development, there is considerable uncertainty,’ and that the Service ‘has not currently identified [Advanced Conservation Practices] for wind energy projects that reduce eagle disturbance and blade-strike mortality’ – factors that plainly support maintaining rather than discarding the present requirement for affirmative permit renewal decisions at least every five years.”

The USFWS’s abrupt and inadequately justified reversal of position, especially one that has resulted in a dramatic lessening of safeguards for eagles, constitutes agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” the lawsuit argues.

In a separate statement, ABC president George Fenwick said he was disturbed by the agency’s about-face.

“If government agencies are allowed to ignore their own rules, we have a dangerous precedent that should be of great concern to anyone who cares about wildlife in this country,” Fenwick said.

A high cost

ABC says the preamble to the 30-year take rule leaves no doubt that the six-fold increase in the maximum duration of permits and the significant weakening of public review and comment on BGEPA permitting decisions was adopted at the behest of the wind power industry.

The industry has claimed that the five-year permit was somehow impeding its expansion, the lawsuit claims, though no empirical data were presented in the preamble to the rule to support that contention.

The lawsuit quotes the preamble to the rule change: “Wind developers have informed the DOI and the Service that five-year permits have inhibited their ability to obtain financing, and we changed the regulations to accommodate that need.”

In other words, the industry needs to take protected wildlife over a span of decades to remain economically sustainable, even if the takings violate the objectives of federal law.

The USFWS also avoided any review of the rule change under the National Environmental Policy Act on the grounds that the change being made was “primarily administrative” in nature and that any environmental impacts would be considered when the agency made project-by-project decisions concerning whether to issue programmatic permits, the lawsuit asserts.

“The Service thereby avoided any comprehensive analysis of the wildlife-related impacts of the rule change as a whole on eagles as well as other migratory bird populations and wildlife habitat that would be impacted by expanding wind power operations within the range of bald and golden eagle populations,” the complaint states.

ABC said the cost to the eagle population could be high with a 30-year permit. In 2009, the group emphasized, 22,000 wind turbines were in operation in the United States, representing 25 gigawatts of installed capacity – only a small fraction of the 300GW of production capacity needed to meet the 2030 federal goal of generating 20 percent of U.S. electricity from renewable energy.

However, ABC stressed, wind energy project growth is expected to impact almost 20,000 square miles of terrestrial habitat – an area larger than the combined areas of New Jersey, Connecticut, Delaware, and Rhode Island – and more than 4,000 square miles of marine habitat, some of it critical to threatened and other protected species.

The rule change is already spurring expansion plans in eagle habitats, the lawsuit added.

“Wind energy developers in various parts of the country, including in California, are already pursuing long-term eagle take permits under the thirty-year take rule,” the complaint states. “On information and belief, wind energy developers in various parts of the country, including in California and other states in which Plaintiffs or their members reside, are already relying upon the rule to plan for and proceed with development of wind power projects in areas occupied by bald and golden eagles and hence where projects could not lawfully proceed in the absence of a BGEPA permit.”

ABC said it believes wind energy and other renewable energy sources could be encouraged without putting bald and golden eagles at risk.

“In the government’s rush to expand wind energy, shortcuts were taken in implementing this rule that should not have been allowed,” Hutchins said. “We understand that some bird mortality is inevitable. However, in this case, long-term, cumulative impacts to eagle populations were not properly assessed, and the 30-year take permit rule was adopted in the absence of the required NEPA analysis concerning impacts on eagle populations or any other species that share the eagles’ range.”