Please write via the link or to the address below. This is important. Please rally everyone.
Eagle Take Rule Hearing in Washington D.C. August 7 – Public Comment Period Open until Sept. 22
The U.S. Fish and Wildlife Service’s (FWS) will hold a series of public scoping meetings on the 30-year eagle take rule (http://eaglescoping.org/). The current rule, which allows the FWS to issue 30-year permits for wind energy and other energy projects (e.g., oil and gas) to kill eagles for up to 30-years without prosecution, has been challenged in court by American Bird Conservancy.
ABC would like to encourage conservation organizations and individuals to get involved in this process by writing comment letters and attending and testifying at the meetings, which will occur:
Public Comments Processing
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, MS 2042-PDM
Arlington, VA 22203
ABC is happy that a public scoping process is finally occurring, even if it is a case of too little, too late. Since eagles are public trust resources and very important to the American people, it is appropriate that such a process should take place, although NEPA requires that this process should have occurred before the rule was issued, not after. NEPA also requires a detailed analysis of the potential impact of 30-year permits on eagle populations, which is not part of the public scoping process.
ABC has the following issues with this rule:
Problems with USFWS’s Proposed Rule Change to 30-Year Eagle Take Permits. In April 2012, U.S. Fish and Wildlife Service (FWS) proposed to change the maximum length of programmatic eagle take permits from the current five years to 30 years, at the request of the wind energy industry. The five-year renewal allowed the Federal Government to not renew the permit if there was good reason not to. The public was also allowed to take part in the renewal process. However, the revised rule would allow FWS to issue permits good for as long as 30 years. By eliminating the renewal process, and replacing it with an “internal review”, FWS may have also restricted the potential for public oversight of the process. This is troubling for several reasons:
(1) The proposed change contradicts what FWS said in the 2009 eagle take permit rule about the need for short permits:
“[T]he rule limits permit tenure to five years or less because factors may change over a longer period of time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or the golden eagle.”i The 2009 rule requires that eagle take permits be compatible with the preservation of eagles. The new, far weaker, eagle protection rule was drafted at the request of the wind energy industry, and represents a curious reversal of a FWS decision in 2009. At that time the USFWS wrote, “…the rule limits permit tenure to five years or less because factors may change over a longer period of time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or the golden eagle.”
(2) The proposed rule change was illegally exempted from environmental review required by the National Environmental Policy Act.
FWS did not conduct any environmental review for the proposed rule change under the National Environmental Policy Act (NEPA), instead using a categorical exclusion to illegally exempt the rule change. This illegal exemption was pointed out in the comment letters of many environmental organizations and in meetings national environmental organizations held with the Administration. Exempting a rule change sought by the wind industry from NEPA is an example of a privilege the wind industry receives that other infrastructure and energy sectors do not.
(3) FWS is relaxing regulations at the wind industry’s request before there are any measures proven to reduce eagle deaths at wind farms.
According to the FWS’s own 2013 guidance for the eagle take permit rule, “there are currently no available scientifically supportable measures that will reduce eagle disturbance and blade-strike mortality at wind projects.”ii Moreover, all models used to predict how many eagles will die at wind farms are theoretical and unproven. They have incorrectly predicted risk to eagles in the past. For instance, the Pine Tree wind project in California, which was predicted incorrectly to be low risk, now has a higher eagles-killed-per-turbine rate than the notorious eagle-killing wind turbines in Altamont Pass.iii
(4) FWS cannot meet the requirements of the 2009 eagle take permit rule if allows 30-year eagle take permits.
When FWS published the eagle take permit rule in 2009, it stated, “the Eagle Act requires the Secretary of the Interior to determine that take will be compatible with the preservation of eagles before he or she may authorize the take. To permit take without sufficient data to show that it will not result in a decline in the eagle population would violate the statutory mandate.”iv But FWS does not know how many eagles there are now throughout the United States, much less how many eagles there will be in 30 years. There are no national Golden Eagle or Bald Eagle population surveys. However, a 2012 peer-reviewed article with 26 co-authors stated the Golden Eagle population in North America is declining.v While Bald Eagle numbers are believed to be increasing, annual surveys by many states were discontinued around the year 2000.vi In contrast, the FWS conducts annual surveys of much-more-abundant waterfowl populations and uses that data to help set annual hunting take limits.vii
(5) Many factors that affect eagles and eagle populations will vary significantly over a 30-year period, and FWS’s ability to predict and plan for those changes is highly limited.viii
These changes include habitat loss due to development, increasing frequency and intensity of wildfires, variability in prey abundance, cumulative impacts of wind energy and other development in North American eagle areas, and climate change.
(6) American Indians sought government-to-government consultation regarding the proposed rule change, but it did not take place, even though FWS made a binding commitment to tribal consultation in the 2009 Eagle Take Permit Rule’s Finding of No Significant Impact.
In 2012, the Intertribal Council of Arizona, which represents 20 tribes, sent letters to the Director of FWS and the Secretary of the Interior requesting immediate government-to-government consultation about the proposed rule change, but their attorney has stated that the requested tribal consultation never took place. This raises significant legal issues.ix The National Congress of American Indians is also concerned about the lack of tribal consultation.x