The U.S. Fish and Wildlife Service enacted a new eagle permitting regulation last spring, claiming that it would “promote eagle conservation.” But the new regulation only makes it easier for wind energy projects to receive permits, allowing them to kill eagles.
The Bald and Golden Eagle Protection Act prohibits “take” of eagles, defining “take” as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.” In 2009, the Fish and Wildlife Service finalized a rule that, for the first time, authorized the “incidental take” of eagles which grants authorization to kill eagles incidental to otherwise lawful activity.
In 2013, it issued guidance to wind energy developers requiring them to complete Eagle Conservation Plans, demonstrating how they would avoid or minimize their effect upon eagles. The guidance also required running eagle-fatality models to predict the project’s potential for “take” of eagles.
In short, these regulations encouraged avoidance of areas with high eagle concentrations and implementation of conservation measures, including siting considerations, before the Fish and Wildlife Service would issue a permit authorizing take.
But the Biden administration alleged that the complexity of the earlier permitting process was preventing companies from applying for eagle take permits, which were only issued after the implementation of avoidance measures.
The agency alleged that simplifying wind permitting was preferable and would lead to greater eagle conservation. But does the 2024 permitting regulation really increase protections for eagles, or does it just authorize the killing of eagles at wind projects?
The 2024 rule revision provides for two permitting options — a specific permit and a general permit, the latter being easier to obtain, less costly and with fewer mitigation and monitoring conditions. General permits are available in the U.S. for areas where the relative abundance of eagles is considered low.
Unfortunately, the general permits erroneously assume there is little risk to eagles from wind energy projects in a range covering most of the U.S. outside of the Rocky Mountain states. Local areas with high concentrations of eagles are not accounted for in the general permit region.
Under the 2024 regulations, if a wind project in this region requests a general permit, staff lack discretion to refuse to issue it, even where existing wind projects have already killed eagles.
Additionally, under the new regulation, the post-construction monitoring requirement for eagle mortality in wind energy projects appears purposely skewed towards underreporting.
The monitoring survey distance was reduced from more than 100 meters to just 40 meters. Thus, unless an eagle carcass falls on the road or turbine pad, it is unlikely to be detected, and carcasses falling outside the 40-meter survey area will not be recorded.
The 2024 regulation does not give the Fish and Wildlife Service authority to prevent the siting of wind projects in high eagle concentration areas. Nor does the agency have any recourse when siting guidance is ignored.
The 2024 regulation changed its core mission from protecting eagles to handing out permits for wind energy projects with unlimited authorization to kill eagles without consequences.
Before retiring, I served 25 years with the Fish and Wildlife Service enforcing federal wildlife laws. Wind energy projects have always posed a threat to birds and bats, and yet, in the past our personnel were instructed not to enforce existing wildlife protection laws against this industry, even though they would be enforced against other energy producers, such as oil and gas.
In my opinion and experience, the 2024 eagle permitting regulation does not contribute to the conservation of eagles, but rather authorizes, without any consequence, wind energy projects to kill eagles.
The Trump administration’s August guidance aimed at forcing wind energy projects to comply with the law is a good start. But it will also be necessary to amend the 2024 Biden permitting regulations to protect our national symbol.
Biden effectively tried to give wind energy projects immunity from our existing laws to protect eagles, and that’s not why I went to work there, and probably not why anyone else does either.
Gary G. Mowad is a retired U.S. Fish and Wildlife Service deputy chief of law enforcement.
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