Federal oversight of wind energy's adverse impacts to birds, bats and other wildlife will increase due to two recent developments: the pending first programmatic take permit under the Bald and Golden Eagle Protection Act ("BGEPA")and the first criminal enforcement action for avian fatalities under the Migratory Bird Treaty Act ("MBTA").Wind farms face a somewhat unique environmental challenge: a clean source of energy with a potential dirty impact to wildlife. Debate over the correct level of governmental enforcement and regulation will continue, but impacts to bald and golden eagles, migratory birds and other federally protected species play an increasingly significant role in the siting, construction and operation of wind projects. Going forward, wind projects will encounter an increased need for comprehensive due diligence and a critical assessment of a project's impact to birds so as to ward off potential future criminal enforcement. This Client Alert will highlight some of the likely new challenges that may arise to help place lenders in a better position to assess the risks related to wind projects and to provide developers with an overview of actions and measures to minimize or avoid potential criminal enforcement.

Since wind is a relatively new source of energy in the U.S. and has grown at a rapid pace, regulation of wildlife fatalities and injuries due to collisions with wind turbines and met towers is in some what uncharted water, unlike collisions with automobile, planes, utility wires, buildings and oil and gas pits. Considerable effort has been made by government, private industry and environmental groups to reduce adverse avian impacts. New voluntary federal guidelines have been issued, comprehensive pre-construction and post-operation studies have become more common and wind projects typically implement mitigation measures, such as siting turbines away from known nests and other high risk areas, creating habitat buffers and using radar, underground transmission lines and other methods to reduce the risk of collision. However, until the legal requirements become clear, developers bear a burden to determine what needs to be done to comply with the law even when a high priority is placed on minimizing any adverse wildlife impact.


There are two federal laws that regulate the "take" of birds, the BGEPA, which regulates bald and golden eagles, and the MBTA, which regulates approximately 1,000 species of migratory birds.1 Violations can lead to civil and criminal penalties and potential imprisonment for six months to two years per violation. Although felony prosecutions under the MBTA only apply to the actual or intended sale or barter of migratory birds and migratory bird parts, misdemeanour charges may be levied against any person that "takes" a migratory bird for any other reason. The BGEPA does not contain a distinction between felony and misdemeanour charges for first time offenders.

BGEPA defines "take" to include "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb." However, the definition of "take" under the MBTA is ambiguous, leading courts to disagree over whether the MBTA is limited to intentional takes or if it also includes incidental takes, which means a take that occurs as a result of, but is not the purpose of, an otherwise lawful activity. For instance, the Eighth and Ninth Circuits have limited "take" under the MBTA to hunting and related conduct, which would thereby exclude the wind industry from liability for avian fatalities. However, both the Second Circuit and Tenth Circuits have adopted strict liability interpretations of the MBTA holding various defendants accountable for avian fatalities, even if the "takes" were indirect and not willful.


To lower the risk of takes due to the construction and operation of wind energy projects, the FWS adopted the Land Based Wind Energy Guidelines ("FWS Guidelines") on March 23, 2012. The FWS Guidelines are voluntary, not regulations, and set forth five tiers of pre and post-construction studies that seek to evaluate and address potential negative impacts of wind energy projects on species of concern, including migratory birds, bats, and bald and golden eagles.

Additionally, on May 2, 2013, the FWS released the Eagle Conservation Plan Guidance Module 1--Land-based Wind Energy, Version 2 ("FWS Eagle Guidance") which is designed as a supplement to the FWS Guidelines. Like the FWS Guidelines, the FWS Eagle Guidance is voluntary and lays out a staged approach to siting new wind projects. It also contains in-depth guidance relating specifically to the protection of bald and golden eagles and compliance with the BGEPA.

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