On December 22, 2020, the U.S. Fish and Wildlife Service (“FWS”) published the application of Manzana Wind, LLC (“Manzana”) for an incidental take permit (“ITP”) under Section 10 of the Endangered Species Act (“ESA”). The permit would authorize the incidental take of two endangered California condors over the course of 30 years from the operation of Manzana’s wind power facility. Manzana’s facility, which consists of 126 1.5-megawatt turbines, began commercial operations in 2012 in the Antelope Valley region of Kern County, California. It is part of the Tehachapi Wind Resource Area, which produces more than half of California’s wind energy. The draft conservation plan associated with the permit application took five years to develop and estimates the cost to Manzana at $10 million. The FWS is accepting comments on the proposed ITP and draft conservation plan until February 5, 2021.
The condor’s story demonstrates how the ESA not only impacts projects proposed where endangered species are known to exist but also where a species’ population increases and expands into existing developments. Conflicts between wind development and threatened and endangered species may increase as populations grow and as wind turbines expand into new areas throughout the country. President-elect Joseph Biden will take office with a pledge to build an energy grid that relies solely on clean electricity by the year 2035. The pledge includes a goal to install 60,000 onshore and offshore wind turbines. The lack of flexibility in locating wind projects, which are strategically sited to maximize wind resources, may also contribute to wildlife conflicts.
California condors were once abundant across North America. Due to primarily human-caused factors, such as shooting, poisoning, egg collecting, predator control, and lead poisoning from ammunition, the bird’s population by 1950 had decreased to 150. This number continued to decline to 50-60 by the late 1960s, and in 1967, the species was listed as endangered. By 1978, a mere 25 condors existed in the wild and, by 1987, the only remaining condors were in captivity. A successful captive breeding program rebounded the population to 337 in the wild and 181 in captivity by the end of 2019, making it one of the ESA’s most iconic success stories.
The ESA provides a framework for addressing threats to threatened and endangered species, such as the condor. Section 9 of the ESA, enforced by the FWS, prohibits the unauthorized take of endangered wildlife species, and the FWS has extended this prohibition to threatened species by regulation. The ESA defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” “Harm” is defined as “an act which actually kills or injures wildlife. Such acts may include significant habitat modifications or degradation where it actually kills or injures wildlife . . . .” The consequences of violating the ESA are severe: Civil penalties can exceed $50,000 per violation, while criminal penalties can reach $50,000 and up to one year in prison per violation.
However, when a private developer anticipates a risk of taking a threatened or endangered species, it may obtain an ITP, allowing take under the conditions of the permit. The process for obtaining an ITP is extensive and includes submitting a proposed habitat conservation plan (“HCP”) with the ITP application. Depending on the size and complexity of the project and the species at issue, the timeframe for approval can range from months to years. The FWS will issue an ITP if it finds that the proposed taking will be incidental, meaning it is not the purpose of the project, that the applicant will adequately fund the conservation plan, that the plan will not appreciably reduce the likelihood of the survival and recovery of the species, and that the plan will minimize and mitigate the impact of the taking to the maximum extent practicable.
Manzana’s draft conservation plan is the first to address potential take of condors from wind development in southern California. As populations of the condor and other endangered bird and bat populations increase, Manzana’s plan may inform future efforts to develop wind energy while minimizing impacts to such species. Key aspects of the plan to minimize threats and mitigate potential losses include:
The purpose of the ESA is to conserve imperiled species. Efforts have proven successful in certain cases, evidenced by increasing condor populations. Wind energy developers must understand how to navigate the ESA, especially if constructing turbines remotely near an endangered population. The successful expansion of certain species and the growing demand for renewable energy could make engagement with the law inevitable.
If you have further questions, please contact Hayden Weaver.