Compliance with federal statutes to protect America’s bird population has long been a challenge for the energy industry--particularly with respect to transmission lines and wind farms--due in part to the limited availability of permits for accidental avian deaths.  In 2013, the US Fish & Wildlife Service (USFWS) took a step to address this challenge by issuing a regulation to increase the opportunities for developers to obtain programmatic permits under the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668 et seq. (BGEPA).  A successful challenge brought by the American Bird Conservancy, however, has stopped the new permitting program before it could get off the ground.  In addition, USFWS has initiated a regulatory review process to consider changes to the permitting program.

The BGEPA imposes strict liability for eagle “take,” which is defined by the statute as “to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb.” 16 U.S.C. § 668c. The BGEPA also authorizes USFWS to institute a permitting framework for “programmatic take” for entities that may accidentally take eagles in the course of otherwise lawful activities. However, the USFWS permitting program has been slow to develop. USFWS programmatic permit regulations enacted in 2009 limited the permit term to five years, which did not correspond well with the much longer life span of many large-scale projects.

In response to criticism of the time limits in the 2009 rules, USFWS issued a new rule in 2013 extending the eagle take permit term to 30 years.  78 Fed. Reg. 73707 (Dec. 9, 2013).  The extended permit duration would provide greater certainty to developers by covering a larger portion of the expected operational lifetime of projects, while still allowing USFWS to closely monitor eagle protection measures over time.  Id.

In 2014, however, the American Bird Conservancy filed suit in the Northern District of California, challenging the permitting rule.[1]  The American Bird Conservancy claimed that USFWS did not allow for public comment and did not prepare an environmental impact statement as required under the National Environmental Policy Act, 42 U.S.C. § 4332(C).  Although bald and golden eagles are no longer protected under the Endangered Species Act, 16 U.S.C. § 1531 et seq., the American Bird Conservancy believes that liberalizing eagle take permits will impact endangered species that share their habitat.  The Conservancy also asserted that USFWS violated the BGEPA and the Administrative Procedure Act.

In August 2015, the US District Court for the Northern District of California ruled in favor of the Conservancy and remanded the rule on NEPA grounds.  The Court concluded that the USFWS had “failed to show an adequate basis … for deciding not to prepare an EIS–much less an EA.”[2]  The Court rejected the USFWS’s reliance on categorical exclusions, finding that the Service failed to establish that the decision was merely procedural in nature. The Court also held that the Service had failed to address whether the highly controversial nature of the action triggered NEPA requirements. The Court remanded the 30-Year permit rule to the USFWS, which means the maximum term for Eagle Take Permits is again limited to five years.

While the ruling requires USFWS to comply with NEPA before re-issuing the rule, the practical implications may not be significant given a 2014 announcement that USFWS would be conducting a NEPA review of the eagle permit program. 

New Regulatory Review Process

The regulatory framework for eagle permits was under NEPA review even before the Northern District of California’s ruling was issued.  On June 23, 2014, USFWS issued a Notice of Intent (NOI) for the preparation a NEPA document to support a full-scale reassessment of the agency’s eagle permitting program.  79 Fed. Reg. 35564 (June 23, 2014).  The NOI provides that USFWS has identified “a number of priority issues for evaluation,” including programmatic permit conditions and compensatory mitigation.  Public scoping meetings were held in 2014.  USFWS is aiming for a draft NEPA document in 2015-2016, followed by a final NEPA document and regulations in 2016-2017.  Thus, the USFWS NOI has initiated a process for developing potentially significant changes to the eagle permitting program by 2017.  USFWS may include the 30-year extension in the forthcoming proposed rulemaking and NEPA document.

While it is too early to speculate on the outcome of the USFWS regulatory review process, the stakes for the energy industry are high.  USFWS has brought several high-profile enforcement cases in recent years under federal avian protection statutes, and programmatic take permits could be an important compliance tool for avoiding enforcement for accidental eagle deaths.[3]  The issues that USFWS intends to evaluate through the regulatory review process could lead a more flexible permitting program that a greater number of regulated parties would choose to participate in.  Interested parties, including wind farm operators and other entities that may require eagle permits, should therefore consider participating in the USFWS NEPA and rulemaking processes.