On December 16, 2016, the U.S. Fish and Wildlife Service (“USFWS”) issued a final rule revising its permit program under the Bald and Golden Eagle Act (“BGEPA”)1 to authorize the issuance of incidental (non-purposeful) take permits with terms of up to thirty years (the “2016 Rule”).2 This is the second attempt by the USFWS to authorize 30-year permits under the BGEPA. On August 11, 2015, the U.S. District Court for the Northern District of California set aside a 2013 rule (the “2013 Rule”)3, finding that the USFWS violated the National Environmental Policy Act (“NEPA”)4 by failing to conduct an adequate environmental review.5 To comply with the court’s ruling, the USFWS has prepared a programmatic environmental impact statement and issued a record of decision for the 2016 Rule. The 2016 Rule is anticipated to benefit the long term financing of wind and other renewable energy projects.
The 2009 and 2013 Rules
In 2007, the USFWS removed (delisted) the bald eagle from the list of endangered and threatened wildlife protected under the Endangered Species Act (“ESA”).6 However, bald and golden eagles remain protected under the BGEPA and Migratory Bird Treaty Act (“MBTA”)7, which prohibit the “take”8 of bald or golden eagles without a permit.9 In 2009, the USFWS promulgated first-time permit rules under the BGEPA for the take of bald and golden eagles associated with, but not for the purpose of, otherwise lawful activity (the “2009 Rule”).10 Under the 2009 Rule, the USFWS can issue “individual” permits authorizing instances of take when the take cannot practicably be avoided, and “programmatic” permits for up to five years for instances of take that are “reoccurring, [are] not caused solely by indirect effects, and that occur over the long term or in a location or locations that cannot be specifically identified.”11 Currently, there are no means to acquire an incidental take permit under the MBTA; however, the USFWS is unlikely to bring an enforcement action under the MBTA with respect to an eagle take permitted under the BGEPA.
Following promulgation of the 2009 Rule, developers of wind energy projects expressed concerns that the limited duration of permits were inhibiting their ability to obtain financing.12 In response to these concerns, in 2012, the USFWS proposed to extend the maximum term for programmatic permits to thirty years to better correspond to the operational timeframe of renewable energy projects, including wind and solar, and, on December 9, 2013, promulgated the 2013 Rule. According to the USFWS, the purpose of the 2013 Rule was to “facilitate the responsible development of renewable energy and other projects designed to operate for decades” and “provide more certainty to project proponents and their funding sources.”13 As a result of the Northern District of California’s decision to set aside the 2013 Rule, the maximum duration for incidental take permits for bald and golden eagles has been five years under the 2009 Rule.
Separately, on May 2, 2013, the USFWS announced the availability of its Eagle Conservation Plan Guidance (“ECPG”).14 The ECPG supplements the USFWS’s March 2012 Land-Based Wind Energy Guidelines (“WEG”) by providing specific guidance for conserving bald and golden eagles in the course of siting, constructing, and operating wind energy facilities. The developers and operators of wind energy projects are not required to comply with the ECPG or the WEG. However, the USFWS believes that following the ECPG will help project developers and operators comply with laws and regulations relating to, and avoid the unintentional take of, eagles.15 The USFWS has also explained that, although following the WEG does not relieve project developers and operators of the responsibility to comply with applicable legal requirements, if a violation occurs the USFWS will consider documented efforts to follow the WEG in deciding whether to bring an enforcement action.16 The ECPG and WEG were unaffected by the court’s ruling on the 2013 Rule.
The 2016 Rule
To date, only one programmatic permit has been issued under the 2009 Rule, which is generally perceived as lacking the flexibility to allow the issuance of permits in a timely manner.17 The USFWS has identified the existence of separate individual (“standard”) and programmatic permits, and the different requirements for the two types of permits as one of the shortcomings of the existing permitting framework. As a result, the 2016 Rule removes this distinction, identifying all permits for the non-purposeful take of eagles as incidental take permits, and codifies uniform requirements for the same.18 The 2016 Rule also eliminates the requirement that takes authorized by programmatic permits be “unavoidable,” adopting a single standard for all incidental permits that the take “cannot be practicably avoided.”19
Prior to issuing any incidental permit, the USFWS must determine the appropriate duration for the permit based on the duration of the proposed activities, the period of time during which take will occur, the level of impact to eagles, and the nature and extent of mitigation measures incorporated into the permit.20 In addition, permits with durations longer than five years will specify circumstances under which modifications to avoidance, minimization or compensatory mitigation measures, or monitoring protocols, will be required (“adaptive management”).21 The USFWS will also review each such permit at least every five years, and, if appropriate, may require that additional conservation and mitigation measures be taken by the permit holder.22 The USFWS also retains authority to revoke a permit if the permitted activity is deemed to be no longer compatible with eagle preservation.23