A Newly Proposed Rule Would Loosen Protections for Eagles in the U.S.

In 1940 Congress decided it would be a bad idea if the symbol of our nation’s freedom and liberty went extinct, and so passed a law to safeguard it. Now called the Bald and Golden Eagle Protection Act, the statute makes it illegal to harm either species. Eagles are also protected under the Migratory Bird Treaty Act.

But eagles inevitably get killed anyway—by wind farms, by power lines, by mining operations. And so in 2009 the U.S. Fish and Wildlife Service created a rule to try to get a handle on the situation: Companies are allowed to accidentally cause eagle deaths—as long as they sign up for a permit, submit a plan to prevent fatalities, and report them when they do happen. Last week the agency proposed revising that rule to quadruple the number of Bald Eagles that it calculates may be killed annually (the number of golden eagles remains at zero) and to extend the permits’ term sixfold, from five to 30 years.

Brian Millsap, national raptor coordinator for USFWS’s division of migratory bird management, helped develop both sets of rules. “There was a tremendous amount of uncertainty in almost everything we did [in 2009],” Millsap says. “We didn’t have good population-size estimates, for Bald Eagles in particular, and we had really imprecise information of what levels of take, of mortality, Bald and Golden Eagles could sustain.”

Since then the science has progressed, providing the agency with more rigorous data. That’s something Audubon California, among others, has been pushing for since 2005, when wind energy came to Altamont Pass, according to Garry George, renewable-energy director for the state office. “That was the most important gap to fill in a revised permit proposal,” he says. “We’ve always asked for the Service to consider conservation of eagles on a regional and national scale, to make sure whatever decisions they’re making are scientifically proven.”

A scientific report also released by the agency last week puts U.S. Bald Eagle populations at around 143,000 individuals, with models showing about 14 percent annual growth. When accounting for survival and productivity, Bald Eagles could sustain up to 10 percent losses without putting the species at risk, Millsap says. “That’s not an objective,” he adds. “That’s a biological reality. That’s a fact.” And so the agency proposed increasing the number of Bald Eagle deaths permitted each year to 4,200.

Golden Eagles now total about 40,000, but data show the population decreasing, particularly in the West, meaning the species cannot afford the death of any individuals. To account for when this does happen incidentally, the USFWS included a compensatory-mitigation condition. It requires permittees to prevent or offset future losses by preserving habitat, building nest platforms, or taking similar actions.

Some environmental organizations, however, say these measures are unproven, and that locking in a long-term agreement inevitably means more eagle fatalities. “We would still like to see a greater emphasis on the scientifically proven risk assessment and avoidance measures rather than an emphasis on compensatory mitigation,” George says.

Often, companies whose activities potentially harm birds can—and do—operate without the so-called eagle-take permits. But getting a permit is the only way to ensure they won’t be prosecuted. The USFWS pursues criminal action when feasible, but since 2011, that’s amounted to fewer than 300 eagle-protection cases a year. In 2014, for the first time, a wind company paid $1.6 million for violating the Migratory Bird Treaty Act. 

Eliza Savage, USFWS national eagle program manager, says the revisions to the rule target companies currently operating without federal oversight—in particular, those who have balked at a permit that lasts only five years when their projects typically run for decades. “Industries that have not been coming to us for permits should really have permits right now,” Savage says. “We’re hoping this will give them the incentive, or at least remove a reason why they keep telling us they’re not.”

This is the agency’s second try at creating a 30-year permit. The U.S. District Court overturned a 2013 regulation this past August because it lacked an environmental impact statement—a concern USFWS addressed last week with the release of that document as well. The National Audubon Society opposed the 30-year permit when it was first introduced, providing more than 27,000 public comments. A 60-day comment period for the current proposal kicked off May 4, and the agency plans to finalize the rule within six months.

Groups like Audubon support properly sited renewable wind power, but when done in a way that minimizes harm to birds and other wildlife. “We can protect America’s birds and transition away from fossil fuels at the same time,” said Mike Daulton, Audubon’s vice president of policy and strategy, in a statement. “Clean energy does not need to come at the expense of protected Bald and Golden eagle species.”