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Duke Energy Renewables, a commercial business unit of Duke Energy, has reached a $1 million settlement agreement with the U.S. Department of Justice (DOJ) regarding the deaths of golden eagles and other migratory birds at two of Duke's wind farms in Wyoming. According to the DOJ, this case represents the first-ever criminal enforcement of the Migratory Bird Treaty Act (MBTA) for unpermitted avian takings at wind projects.

The DOJ says the charges stem from the discovery of 14 golden eagles and 149 other protected birds, including hawks, blackbirds, larks, wrens and sparrows, by Duke at its 200 MW Top of the World and 99 MW Campbell Hill wind farms between 2009 and 2013. Duke Energy, which became subject of the investigation earlier this year, notes that golden eagles are not listed as threatened or endangered under U.S. law; however, they are protected under the MBTA.

Federal fines and restitution of $1 million will be levied against Duke Energy Renewables. The company says these funds will be dispersed to the North American Wetlands Conservation Fund, the Wyoming Game & Fish Department, the National Fish and Wildlife Foundation and The Conservation Fund.

Under the plea agreement, the DOJ explains, Duke has been placed on probation for five years, during which it must implement an environmental compliance plan aimed at preventing bird deaths at the company’s four commercial wind projects in Wyoming. Duke is also required to apply for an eagle take permit.

“Our goal is to provide the benefits of wind energy in the most environmentally responsible way possible,” says Greg Wolf, president of Duke Energy Renewables. “We deeply regret the impacts to golden eagles at two of our wind facilities. We have always self-reported all incidents, and from the time we discovered the first fatality, we’ve been working closely with the Fish and Wildlife Service to take proactive steps to correct the problem.”

According to Duke, among these steps have been installing and testing new radar technology; instituting a curtailment program using field biologists; and removing rock and debris piles that attract eagle prey.

“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,” comments Robert G. Dreher, acting assistant attorney general for the DOJ’s Environment and Natural Resources Division.

“To its credit, once the projects came online 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.”

Tim Hayes, environmental development director at Duke Energy Renewables, says the company’s mitigation plans show promise.

“Our voluntary monitoring and curtailment of turbines have been effective,” he says. “Upon implementing these measures, more than a year passed without any known golden eagle fatalities at these sites.”

The American Wind Energy Association (AWEA) commends Duke Energy for “taking responsibility for unforeseen impacts to wildlife” and implementing efforts to mitigate future incidents.

In a statement, AWEA notes, “It is worth keeping in mind that the 1918 Migratory Bird Treaty Act has broad implications. Essentially anyone who kills even one bird, either knowingly or unknowingly, could face prosecution for violating the act.”

The organization later adds, “At the end of the day, no one takes the issue of wildlife impacts more seriously than the wind industry, and the industry does more to study, monitor, and mitigate for the impacts associated with project development and operation than any other energy sector.”

Nonetheless, the Fish and Wildlife Service says that no one is exempt from the law.

“The Service works cooperatively with companies that make all reasonable efforts to avoid killing migratory birds during design, construction and operation of industrial facilities,” comments William Woody, the agency’s assistant director for law enforcement.

“But we will continue to investigate and refer for prosecution cases in which companies - in any sector, including the wind industry - fail to comply with the laws that protect the public’s wildlife resources.”

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