On April 30, 2014, the American Bird Conservancy (ABC) informed the Department of the Interior and the U.S. Fish & Wildlife Service (USFWS) of its intent to sue for alleged violations of federal law in promulgating the Bald and Golden Eagle Permit Rule, contained in 50 C.F.R. Parts 13 and 22. ABC contends that in enacting the Bald and Golden Eagle Permit Rule, USFWS violated that National Environmental Policy Act (NEPA), the Endangered Species Act, and the Bald and Golden Eagle Protection Act (Eagle Act).  Under the Endangered Species Act, ABC is required to submit a notice of intent to sue 60 days prior to filing suit. The sixty-day notice period will expire on June 29, 2014. We will monitor the suit, if filed, and report on its progress in subsequent reports.

The Eagle Act: The Bald and Golden Eagle Permit Rule was published as a final rule on December 9, 2013 pursuant to the Eagle Act.1 The Eagle Act prohibits the “take” of bald and golden eagles by otherwise lawful activities. “Take” is defined to include the following acts: pursue, shoot, poison, wound, kill, capture, trap, collect, destroy, molest or disturb. In 2009, USFWS published a final rule that established permit regulations that authorized incidental take of eagles, but the permit term was limited to five years. In April 2012, USFWS proposed to amend the 2009 regulations to provide for a programmatic permit, which authorizes recurring take that is unavoidable even after implementation of Advanced Conservation Plans (ACPs), with a term up to thirty years to better correspond to operational timeframes for renewable projects. ACPs are “scientifically supportable measures approved by the Service that represent the best available techniques to reduce eagle disturbance and ongoing mortalities to a level where remaining take is unavoidable.”

The Programmatic Take Rule: Under the Programmatic Take Rule, project developers/operators will be required to implement all available measures to avoid and minimize incidental take, and each permit issued for more than five years will be reviewed at five year intervals to assess fatality rates, whether measures undertaken to reduce take are effective, and whether the permit’s terms should be modified or revised to add additional mitigation measures if necessary for the preservation of eagles. The Programmatic Take Rule also allows a permit to be transferred, subject to a determination by USFWS that the successor meets all of  the  qualifications for  holding  a permit,  that  the  successor  provides  adequate  written assurances of sufficient funding for a conservation plan or agreement, if applicable, and demonstrates a willingness to implement the terms and conditions of the permit. If an activity is not compatible with eagle preservation, USFWS retains the right to revoke a permit. The Programmatic Take Rule “substantially increase[es]” the application fees for programmatic take permits. Federal, state, tribal, and other governmental agencies are exempt from the permit application processing fee.

Voluntariness: In response to comments, USFWS clarified that an eagle take permit does not authorize construction or operation of a facility per se, but instead authorizes eagle take that may result from the construction or operation of the facility. USFWS emphasized that it is “the responsibility—and choice—of the developer, operator, or landowner to seek a permit and avoid liability for such take.” While recognizing that obtaining an eagle take permit is voluntary, USFWS “encourages all entities within a project that has a potential to incidentally take eagles to obtain an eagle take permit.” USFWS also stated that a permit will not be issued “unless an activity can be made compatible with the conservation standards of the Eagle Act.” USFWS further explained that individual eagle take permit applications will be subject to NEPA and that the “[e]nvironmental impacts of activities on local or regional eagle populations will be addressed in the NEPA analysis of direct, indirect, and cumulative impacts for each permitted project.”

Take-away: The Programmatic Take Permit has the beneficial effect of providing a long-term, transferrable permit intended to balance developers’ need for life-of- project certainty with the Eagle Act’s goal of preventing take. Although primarily intended for wind projects, the Programmatic Take Permit Rule could apply to other types of renewable energy facilities, as well as transmission lines,   airport   operators, commercial and residential construction, and recreation. The USFWS has acknowledged that the Programmatic Take Permit Rule could be perceived negatively by Native American Tribes for whom eagles have religious significance, but has stated that it believes that the Programmatic Take Permit Rule will sufficiently protect eagles.2 If litigation does occur,  it  may  delay  projects  while  the  substance  and procedure of the Programmatic Take Permit Rule is considered.