Important elements of the draft EA

On December 29 2011 the US Fish and Wildlife Service, Pacific Region, issued a draft environmental assessment (EA)(1) in response to West Butte Wind Power LLC's application for a programmatic golden eagle take permit. This is a significant agency action, because the service had not previously acted upon an application for a programmatic take permit under the Bald Eagle and Golden Eagle Protection Act,(2) where it acknowledged that the wind project would result in the death of protected eagles.


West Butte proposes to build a 110-megawatt wind farm in central Oregon consisting of 45 to 56 wind turbines. West Butte applied for a permit before commencing construction. The proposed wind project is to be located in an area where there has been historic nesting of golden eagles, but the observed incidence of eagles is considered to be low. The service estimated that the operation of this wind project would, with an 80% upper confidence limit, result in the deaths of up to three eagles in the first five years of project operation.

The service determined that the application met the requirements of the Eagle Protection Rules(3), which it summarised in the draft EA as follows:

"(1) Avoid and minimize take to the maximum degree achievable;
(2) Conduct adequate post construction monitoring to determine effects;
(3) Offset through compensatory mitigation any remaining take, such that the net effect on the eagle population is, at a minimum, no change for eagle management populations that cannot sustain additional mortality;
(4) Ensure that the direct and indirect effects of the take and required mitigation together with the cumulative effects of other permitted take and additional facts affecting eagle populations, are compatible with the preservation of Bald Eagles (
Haliaeetus leucocephalus) and Golden Eagles (Aquilla chrysaetos)."(4)

In January 2011 the service issued a draft eagle conservation plan guidance which was intended to assist project developers in applying the Eagle Protection Rules and thus minimise the impact on eagles from the siting, construction and operation of wind farms. The draft guidance outlines a five-stage approach for the development of an adequate eagle conservation plan.(5) The service considered this guidance in reviewing the West Butte application and found that West Butte substantially complied, even though the data collection process had commenced well before the draft guidance was issued.(6) The service stated in the draft EA that the experience it gains from the West Butte project might influence the terms of future permits.(7)

Important elements of the draft EA

The service considered three alternatives under the Eagle Protection Rules and found Alternative Two to be appropriate.(8) Alternative Two permits the take of up to three eagles in the initial five-year term, provided that West Butte complies with certain conditions. The service concluded that compliance with these conditions should permit the overall eagle population to be maintained and could be protective of other bird species, particularly other raptors. The most significant of these conditions, which were proposed by West Butte, include:

  • to work with the electric utility to retrofit 11 power poles in the area each year during the five-year term to reduce the electrocution risks to eagles and other birds. For each golden eagle killed from operation of the wind farm, an additional 11 poles would be retrofitted;
  • to increase the cut-in speed for the wind turbines during daylight hours from April to November – the period when eagles are thought most likely to be in the area. It has been estimated that this would reduce the operating time of certain turbines from 90% to 60%;
  • to make a one-time payment of $20,000 to a third party to be used to address golden eagle conservation needs; and
  • to implement any new technologies that reduce the risk of eagle collisions if recommended measures become available.(9)

The conditions also included a set of adaptive management measures for the protection of other bird species to take effect if the mortalities of raptors and other birds reach certain levels. These measures included blade painting, enhanced monitoring, additional electric pole retrofits and other measures.(10)

The comment period for the draft EA will run until February 2 2012. Thereafter the service will issue an EA with changes made, if any, in response to the comments received. The types of comments received and the service's response to those comments should be very telling in how the issue of bird mortality in connection with wind projects might be handled in the future.

For further information on this topic please contact Louis Sey Zimmerman at Fulbright & Jaworski LLP by telephone (+1 202 662 0200), fax (+1 202 662 4643) or email ([email protected]).



(2) 16 USC Section 668a.

(3) 50 CFR Section 22.26.

(4) Draft EA at 6.

(5) Draft EA at 6-7.

(6) Draft EA at 25-26.

(7) Draft EA at 34-35.

(8) Alternative One was no action and Alternative Three was to grant a permit with enhanced conditions; draft EA at 12-14.

(9) Draft EA at 28.

(10) Draft EA at 28-29.