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Proposed revisions to eagle conservation rules could spur wind development

Q2: U.S. Solar and Wind Power by the Numbers

Essential Energy Insights - September 17, 2020

Essential Energy Insights September 2020

Rate case activity slips, COVID-19 proceedings remain at the forefront in August


Proposed revisions to eagle conservation rules could spur wind development

The U.S.Fish and Wildlife Service on May 4 proposed changes to its rules on eagle conservationthat could make it easier for developers of wind power projects and other facilitiesto hold permits that allow the "take" of bald and golden eagles, potentiallyincreasing the duration of such permits from five years to 30 years if a developermeets certain conditions.

The proposalcould spur the pursuit of wind projects in areas that are sensitive to populationsof these birds defended by federal law under the Bald and Golden Eagle ProtectionAct. The shortness of the current five-year term for eagle take permits "appearsto be a primary factor discouraging many project proponents" from seeking permits,according to the proposed rule.

"Take"refers to killing, capturing, wounding or otherwise disturbing eagles — activitiesthat can open a wind power operator to lawsuits and prosecution if done withoutfederal permission and regulation.

Obtainingeagle take permits is one of the more complex regulatory steps that some wind projects,particularly very large wind projects with many turbines, must face. The Fish andWildlife Service, or FWS, released its first-ever eagle take permit for a Californiawind farm in 2014. Power Company ofWyoming's 3,000-MW Chokecherryand Sierra Madre project in southern Wyoming, the largest proposedwind energy facility in the country, isundergoing a review forits possible eagle take permit.

The FWSsaid the revisions aim to clarify the rules and improve implementation while maintaining"strong protections" for eagles. The proposal would extend the maximumpermit length to 30 years, but "only applicants who commit to adaptivemanagement measures to ensure the preservation of eagles" would be able toobtain permits longer than five years, according to a statement.

The idea of 30-year permits is not new. In 2012, the FWS madea similar proposal, but that new rule was ultimately thrown out by a federal DistrictCourt on the basis that the FWS should have prepared an environmental impact statementor environmental assessment. That case came from a lawsuit spearheaded by the AmericanBird Conservancy. Michael Hutchins, director of the conservancy's Bird-Smart WindEnergy Campaign, said the group is glad that the FWS is finally putting out a rulewith an environmental impact statement behind it. Although the group still needsto review the proposed rule more closely, Hutchins said he is skeptical that permitterms longer than five years can provide the necessary safeguards for eagles.

Conditions for eagles can change quickly, so it makes sense torequire a developer to reapply for a permit every five years, Hutchins said. Eagletake permits include many requirements for developers to minimize eagle deaths fromtheir turbines, and a 30-year permit term would not allow for the flexibility tobeef up the requirements as needed, he said. "What if five years from now wedecide that the golden eagle is endangered?" Hutchins asked hypothetically.

The American Bird Conservancy is also concerned that the rule'ssteps to mitigate eagle take can be undermined by a lack of reliable data abouthow many eagles are actually killed by turbines right now. "A lot of the monitoringdata is collected by paid consultants to the wind industry, which we consider tobe a conflict of interest," Hutchins said.

The group has argued that the FWS has been undercounting eaglemortality from wind projects.

Through a Freedom of Information Act request, the group foundthat the FWS recorded 25 eagles killed by wind facilities across the U.S. from June2012 to June 2015. But Hutchins said those numbers are not plausible because justone wind facility in California, NextEraEnergy Inc.'s Altamont Pass site, kills 67 eagles a year on average.

The proposed revisions are now subject to a 60-day public commentperiod. After that there is no specific timeline for the rule, but it could be finalizedby the end of the year.

The PowerCompany of Wyoming is owned by AnschutzCorp.