The federal government is overhauling its policy for permitting incidental deaths of eagles at wind farms. Developers, who in the past have faced steep fines should eagles collide with wind turbines, can now apply for permits that require compensatory mitigation in lieu of paying fines. But what, if any, effect will this have on new development?

A deceased golden eagle that turned up under a wind turbine at the Spring Valley Wind Farm in northeastern Nevada made big news last month. The developer of the project, Pattern Energy, could face a fine of up to $200,000 because it did not obtain a “take” permit. The U.S. Fish and Wildlife Service (FWS) manages golden eagles under the Bald and Golden Eagle Protection Act, and issues permits for non-purposeful take, or mortality of individuals incidental to industrial or other operations.

Wind developers, whose projects have projected life spans of many decades, have long been reticent to get eagle take permits, because FWS issues them only in five-year increments. In fact, it was only early last year that FWS received its first application for a programmatic take permit from a wind developer, despite the regulations having been in place for decades.

As a result, FWS is overhauling its eagle take permitting policy. It just released its Eagle Conservation Plan Guidance that lays out a new, 30-year take permit, and outlines compensatory mitigation measures that developers can take in lieu of paying fines. These mitigation measures range from retrofitting power lines in order to reduce eagle electrocution to outright turning off the turbines during migration periods. While that may sound onerous given the relatively low levels of eagle mortality, it’s unlikely such measures would be called for, except at sites with very high levels of eagle deaths.

Which brings up the tricky point of new development. The new FWS regulations require consultation during the project design phase for new developments in order to issue a permit. Some guidelines include setting "turbines back from ridge edges” and avoiding "the use of structures that are attractive to eagles for perching.” These seem ludicrous, as wind development is frequently concentrated along ridgelines (the farms of Tehachapi Pass, California being the best example), and farms typically are chock-full of structures that eagles might fancy perching on, such as transmission towers and idle wind turbines. It’s highly unlikely that wind developers would simply move off of the ridges, where the wind is highest, to obtain a take permit. But it is those windy places where a soaring eagle is most likely to be.

The new regulations may simply codify what’s currently going on. But they may also discourage compliance with their naive assumptions about the lengths developers will go to in order to avoid potential eagle kills. While Pattern Energy is to be applauded for its forthrightness in reporting the single eagle kill to FWS, its farm is located in the Spring Valley, a broad flat plain between ranges. At Altamont Pass, California, a hilly area and one of the nation’s largest wind development areas, an estimated 70 eagles are killed each year. Back at Tehachapi Pass, the FWS is actually soliciting information from the public about eagle kills, because information is so spotty about how, why, and when these eagles are dying. 

With all of this confusion, there seems to be little incentive for a developer to go out of its way to comply with the regulations, particularly during the design phase, when radical overhauls may be called for. The permits, after all, are voluntary. One can freely operate a wind farm without a permit, as long as no eagles are getting killed.

There remains the greater question: $200,000 fines, project redesigns to stay out of the way of birds, compensatory mitigation -- is all of this worth it for a few birds? 

Surely the authors of the Bald and Golden Eagle Protection Act could not have envisioned thousands of 400-foot-tall wind turbines sprouting up from the hillsides in California and elsewhere. Yet while FWS does its congressionally mandated duty and implements the law, wind developers will likely continue business as usual, as there is little incentive to participate in a program that seems ill-suited to the current energy landscape.

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Patrick Donnelly-Shores writes about energy policy issues for the UC Berkeley Energy & Resources Collaborative (BERC).

Tags: bird kills, birds, eagles, fws, pattern energy, tehachapi pass, wind projects, wind turbines