In the first criminal conviction of a wind company for killing birds, the Department of Justice (DOJ) announced they settled with Duke Energy for $1 million.

Duke Energy Renewables pleaded guilty in the US District Court in Wyoming to violating the federal Migratory Bird Treaty Act for  the deaths of endangered birds. This is the first-ever criminal enforcement of the Migratory Bird Treaty Act for a wind farm.

Between 2009-2013, 14 golden eagles and 149 other protected birds - including hawks, blackbirds, larks, wrens and sparrows - were killed at two Wyoming wind farms owned by Duke Energy. The Campbell Hill and Top of the World wind farms have 176 turbines and are sited on private agricultural land.

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Until now, even though every death of a protected bird violates federal law, no wind company has been held liable. Wind companies can apply for a federal permit (which is opposed by the conservation community) but not a single company has done so. 

Under the settlement, Duke will pay fines and restitution of $1 million and is placed on probation for five years, during which it must implement an environmental compliance plan to prevent bird deaths at its four Wyoming wind plants - expected to cost $600,000 a year. Duke must also apply for an Eagle Take Permit which, if granted, will provide a framework for how to minimize and mitigate golden eagle deaths at the wind farms, states DOJ.

"This is a welcome action by DOJ and one that we have long anticipated," says Dr. George Fenwick, President of American Bird Conservancy (ABC), a long-time advocate for stronger federal management of the wind industry. "We are pro-wind, but development needs to be Bird Smart. The unfortunate reality is that the flagrant violations of the law seen in this case are widespread."

In early 2012, the Fish & Wildlife Service published voluntary operating and siting guidelines for the wind industry, and this year, they released Eagle Conservation Plan Guidance. ABC believes these guidelines would be much more effective at preventing bird deaths if they were mandatory, with project permits used to cover costs.

Because guidelines are voluntary, "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," says Dr. Michael Hutchins, who coordinates the National Bird Smart Wind Energy Campaign for ABC. 

"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. To its credit, once the projects came on line and began causing avian deaths, Duke took steps to minimize the hazard, and with this plea agreement has committed to an extensive compliance plan to minimize bird deaths at its Wyoming facilities and to devote resources to eagle preservation and rehabilitation efforts," says Robert Dreher, Acting Assistant Attorney General for the Justice Department's Environment and Natural Resources Division. 

"We deeply regret the impacts of golden eagles at two of our wind facilities," says Greg Wolf, president of Duke Energy Renewables. "Our goal is to provide the benefits of wind energy in the most environmentally responsible way possible."

How the $1 million fine will be disbursed:
$400,000 for the federally-administered North American Wetlands Conservation Fund $100,000 for the State of Wyoming $160,000 for the National Fish and Wildlife Foundation, designated for golden eagle conservation projects and research on how they interact with wind turbines $340,000 to a conservation fund to buy golden eagle habitat in Wyoming   "All wind projects will kill some birds. It is sadly unavoidable, but some areas are worse than others, and we can predict where many of these will be," says Hutchins of ABC. "Wind farms are being built without adequate plans to mitigate and compensate for bird impacts."

Several tools are available to help wind developers choose the best sites based on wind and environmental concerns, including one developed by National Renewable Energy Lab and another by ABC.

ABC estimates that as the wind industry has grown in the US, bird deaths have risen from 440,000 in 2009 to 600,000 in 2012.

How many birds will die as the wind industry continues to grow? Clearly, strong siting and operational regulations are needed, says Hutchins. "We believe it's necessary to enforce development restrictions on wind, such as avoiding bird migration corridors and places where protected species and sensitive habitats are present."

Enacted way back in 1918, the Migratory Bird Treaty Act implements US commitments with Great Britain (for Canada), Mexico, Japan and Russia. The Act protects over 1,000 species of birds.

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