The already-complicated relationship between wind energy and eagles has taken center stage recently. The U.S. Fish and Wildlife Service (USFWS) is ramping up its efforts to protect bald and golden eagles at development projects across the country, with a massive settlement and plans to revamp the eagle take permitting process by the end of this year.

Both bald and golden eagles are protected by the Bald and Golden Eagle Protection Act (Eagle Act) and by the Migratory Bird Treaty Act (MBTA). The Eagle Act and MBTA prohibit anyone from “taking” bald or golden eagles without a permit from USFWS.  To “take” means “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” A taking includes both intentional actions and incidental takings – “incidental” meaning resulting from activities that are otherwise lawful. USFWS has left it largely up to wind developers to determine whether their wind projects – specifically, collisions with the projects’ turbine blades – are likely to result in the incidental take of bald or golden eagles, with guidance suggesting that even a few minutes of eagles observed on the project site during preconstruction surveys necessitates obtaining an eagle take permit due to the project’s risk to eagles. In practice, though, this has not proven to be possible. Although countless wind energy developers have submitted applications for eagle take permits over the years, only a handful of eagle permits have ever been issued in the last thirteen years since USFWS first authorized incidental take in 2009.

The rarity of issued eagle take permits, coupled with increased enforcement, could put developers in a difficult position. USFWS achieved its first settlement pertaining to eagle deaths at wind farms in 2013, when Duke Energy agreed to a $1 million settlement after the deaths of 14 eagles at two Wyoming wind farms. Earlier this month, ESI Energy Inc. (ESI), a subsidiary of NextEra Energy Resources LLC, agreed to a whopping $35 million settlement after pleading guilty in federal court in connection with the deaths of at least 150 bald and golden eagles at 50 wind projects across the country, including projects in Wyoming and New Mexico, without any eagle take permits in place. USFWS had repeatedly warned the developer about the risk of eagle take and stated that the projects should obtain eagle take permits. USFWS is now requiring ESI to apply for eagle take permits at every wind facility where deaths were documented. How, though, do developers obtain eagle take permits when they are currently so hard to come by?

USFWS is aware of the issues with the incidental take permitting program, as it published an advanced notice of proposed rulemaking (ANPRM) last fall seeking comment on potential approaches to expedite and simplify the eagle take permitting process. In its ANPRM, the agency noted that, as human development and infrastructure continue to increase in the U.S. along with continued growth in eagle populations, there will be an increasing number of interactions between eagles and human infrastructure and a corresponding need for USFWS to process more applications for incidental take of eagles. Ideas proposed by USFWS included “pooled” post-construction monitoring among groups of developers, and a “nationwide” or “general” eagle take permit program similar to the U.S. Army Corps of Engineers Nationwide Permit Program for authorizing impacts to waters of the U.S. USFWS anticipates publishing a proposed rule later this calendar year.

For questions on eagle take permitting and how a renewable energy project your company is developing or financing can reduce associated risks, reach out to Leah Kaiser, Megan Caldwell, or another member of our Energy and Natural Resources team.