The settlement ends the first criminal case the US government has ever brought against a wind energy company for bird deaths. It's also noteworthy for wind farm developers because Duke took several steps to try to minimize wildlife deaths related to turbines and supporting infrastructure at its facilities.
Duke Energy Renewables pleaded guilty to violating the Migratory Bird Treaty Act, a US law that protects migratory birds, in the federal court in Casper, Wyoming on Friday. It had been charged with killing a total of 163 migratory birds, including 14 golden eagles at two wind project sites over the past four years.
Under the plea agreement, the fine paid by the company will be distributed to to several conservation groups, including the North American Wetlands Conservation Fund, the Wyoming Game and Fish Department and the National Fish and Wildlife Foundation.
“In this plea agreement, Duke Energy Renewables acknowledges that it constructed these wind projects in a manner it knew beforehand would likely result in avian deaths,” Robert G. Dreher, acting assistant attorney general for the U.S. Justice Department's Environment and Natural Resources Division, said in a written statement.
According to court documents filed Friday by the US government, commercial wind power projects can cause the deaths of federally protected birds in four primary ways:
"Collision and electrocution risks from power lines (collisions and electrocutions) and guyed structures (collision) have been known to the utility and communications industries for decades," the government said, noting, " specific methods of minimizing and avoiding the risks have been developed, in conjunction with agencies authorized to enforce federal avian protection laws, such as the Migratory Bird Treaty Act and the Bald and Gold Eagle Protection Act."
Recognizing that wind farms were being developed with increased frequency in the late 1990s and early 2000s, the US Fish and Wildlife Service began developing guidelines on how wind project developers could avoid impacts to wildlife from wind turbines. The agency's first guidance was released in 2003.
The latest incarnation of the guidance, "Land-Based Wind Energy Guidelines," significantly updated and enhanced with involvement from the wind industry, was released in March 2012.
Briefly summarized the guidance advises wind farm developers to exercise due diligence during the pre-construction stage of the project, including conducting extensive surveys of the wildlife present in the proposed project area.
It asks developers to honestly assess whether the risk to wildlife is too high to justify proceeding, and even if it isn't to proceed with care, making sure to site turbines to avoid or minimize the risk to wildlife as much as possible.
The government goes on to note that in parts of Wyoming, golden eagles may be particularly susceptible to wind turbine blade collision at wind farms erected in areas of high eagle use.
Golden eagles are not listed as threatened or endangered under US law. However, they are one of the many specifies protected by the Migratory Bird Treaty Act, and are more specifically protected under the Bald and Gold Eagle Protection Act, which makes it a "Class A" misdemeanor to knowingly kill a bald or golden eagle or to do so "with wanton disregard for the consequences of his act."
Second and subsequent takings of the raptors is a "Class E" misdemeanor under the law.
The Migratory Bird Treaty Act also establishes another level of penalty, a "Class B" misdemeanor for unpermitted takings of migratory birds.
Currently under US law there is no means or mechanism to acquire a programmatic permit under the Migratory Bird Treaty Act to take a migratory bird from operation of an otherwise lawful activity, such as operation of a wind farm.
The two facilities that came under the Justice Department's scrutiny were the Campbell Hill and Top of the World wind farms, both of which are located in Converse County, Wyoming.
Duke Energy Renewables acquired the Campbell Hill facility through its buying of the wind farm's original developer, Tierra Energy LLC, in May 2007.
The project, sited on private land used for sheep and cattle grazing, eventually comprised sixty-six 1.5 MW General Electric turbines.
Similarly, Duke Energy acquired the Top of the World project by purchasing its developer, Catamount Energy Corp., in June 2008.
Like Campbell Hill, the project is located on private land used for sheep and cattle ranching. Top of the World is comprised 66 1.5 MW General Electric Turbine generators and 44 2.3 MW Siemens wind turbine generators.
Both projects were permitted by the Wyoming Industrial Siting Council, a state agency, with Campbell Hill going into commercial operation in December 2009, and Top of the World, in October 2010.
In both cases, the U.S. Fish and Wildlife Service repeatedly expressed reservations about the wind farm locations and the heightened risk of eagle and other migratory bird strikes in the area.
Mindful of those concerns, Duke Energy Renewables took several steps, in consultation with the government, to limit wildlife deaths.
In its court filing, the Justice Department goes into great detail about these effortsm which included:
In addition, in June 2011 the company removed meteorological towers at the Campbell Hill site to eliminated that source of eagle and bird mortality, and it has undertaken even more extensive efforts at Top of the World.
The first of these is the deployment, at a cost of $750,000, of a radar system intended to detect the presence of large birds and eagles that are flying within the rotor-swept altitude with the potential to trigger the shutdown nearby turbines. Test of the complex system are ongoing.
Duke Energy Renewables has also voluntarily implemented daytime curtailment and "informed" curtailment (based on biologist observation), of several turbines at Top of the World that are located in areas of higher eagle use.
The government noted these curtailments have resulted in significant generation loss and associated revenue loss to the company. But since implementation of the radar and other curtailment measures, no eagle fatalities have been discovered at the Top of the World site, the government said.
Although it felt compelled to levy fines against the company for the birds that were killed, the US Fish and Wildlife Service took pains to say the wind farm developer has been cooperating with the agency -- in fact, all of the bird deaths were reported as the result of a voluntary monitoring effort undertaken by Duke Energy Renewables.
The agency also said Duke Energy Renewable continues to meet with its represents to "discuss adaptive management measures that might reduce avian mortality, especially gold eagle deaths."
“Our goal is to provide the benefits of wind energy in the most environmentally responsible way possible,” Greg Wolf, the president of Duke Energy Renewables, said in a statement. “We deeply regret the impacts to golden eagles at two of our wind facilities.”
In a statement on his organization's website, Dr. George Fenwick, President of American Bird Conservancy, a bird conservation group that advocates for stronger federal management of the wind industry, said he was delighted with the Justice Department's handling of the case.
“Wind energy is not green if it is killing hundreds of thousands of birds," Fenwick said. "We are pro-wind and pro-alternative energy, but development needs to be bird smart."
“Today’s enforcement action is the first and only time a line in the sand has been drawn by the government,” agreed Dr. Michael Hutchins, Coordinator of ABC’s National Bird Smart Wind Energy Campaign.
“The boundaries for the wind industry are voluntary, meaning that companies have been able to pay lip service to bird protection laws and then largely do what they want. Poorly sited wind projects exist or are being planned that clearly ignore the advice of federal and state biologists who have few, if any, means of preventing them from going ahead,” Hutchins said.
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