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.