In the surreal world of battling wind power, lawsuits are numerous, long, costly and too often favoring the industry. Not in this case!
In July 2014, the Fish and Wildlife Service (FWS) issued their first eagle take permit to EDF Renewable Energy for the Shiloh IV wind project in Solano County, CA.
In response to comments requesting a longer term in order to provide lasting certainty for developers, on Dec. 9, 2013, the FWS had extended the maximum term to 30 years to correspond with the operational life of most wind projects.
This extension pleased the wind industry as it provided more stability and certainty for the lenders, but it it generated strong opposition from several environmental groups. On June 19, 2014 the American Bird Conservancy files suit : http://abcbirds.org/article/american-bird-conservancy-sues-feds-ove... in federal court charging the Department of the Interior and the FWS with violations of the NEPA and the BGEPA in connection with the issuance of the 30-year term extension.
On June 20, the FWS announced that it intends to conduct a NEPA review of the eagle permitting process as part of its ongoing effort to review and revise policies for managing impacts to eagles as wind power continues to expand. The NEPA assessment would review proposed revisions to the BGEPA permit regulations, including, among other things, the duration rule. This announcement kicked off a 90-day public comment period, which ended in September 2014. The NEPA process would take up to 18 months or longer, depending on the scope of the FWS’ review; therefore, revised regulations were unlikely to be issued before the end of 2015 at the earliest.
The court issued a ruling on the lawsuit : Debra Shearwater .et.al. v. FWS and AWEA .The FWS and AWEA were told by the court ruling findings that FWS violated federal law by adopting a 30 year take permit. Thirty year takes have now been set aside .
As this is not a total victory ,it shows that while the current administration had given a carte blanche to FWS regarding eagle taking , the Court is putting a brake on this approach and demands serious scrutiny on the the wind industry rights to kill eagles .
See below text and rule in link from windaction.org website .
Monique
Document
Debra Shearwater et.al. v FWS and AWEA: Eagle 30-year take permit decision
Judge Lucy H. Koh
- August 11, 2015
In this very critical decision by the US District Court of Northern District of California (Judge Lucy H. Koh), the 30-year take permits for bald and golden eagles established by the US Fish and Wildlife Service have been set aside and remanded back to the Service. An excerpt of the ruling is provided below. The full ruling can be accessed by clicking the links on this page.
NEPA Conclusion (Excerpt from Ruling)
In light of the foregoing, the Court concludes that FWS has failed to show an adequate basis in the record for deciding not to prepare an EIS—much less an EA—prior to increasing the maximum duration for programmatic eagle take permits by sixfold. See Klamath Siskiyou Wildlands Ctr., 468 F.3d at 562 (“[N]ot only did [the agency] fail to conduct an EIS . . . , it did not even conduct an EA.”). While promoting renewable energy projects may well be a “worthy goal, it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action.” Kraayenbrink, 632 F.3d at 492. Accordingly, the Court holds that FWS violated NEPA’s procedural requirements and that the Final 30-Year Rule must therefore be set aside and remanded to FWS for further consideration.
AUG112015
http://www.windaction.org/posts/43202-debra-shearwater-et-al-v-fws-...
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