A New Approach by the FWS over the MBTA & Eagles

In December 2014, EDF Renewable Energy (EDF RE) signed an agreement with the U.S. Fish and Wildlife Service (FWS) that exempts eight of the developer’s wind projects from liability for the past take of birds protected under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).

The agreement – just six months after EDF RE obtained the first eagle take permit for a wind project – also exempts the projects from the enforcement of future avian mortalities in exchange for EDF RE’s diligent pursuit of BGEPA take permits for each project. As the first-known agreement of its kind in the wind industry, it may serve as a road map for wind farm operators seeking to avoid criminal enforcement.