The Fish and Wildlife Service (FWS) yesterday announced that it will issue the first programmatic eagle take permit pursuant to the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C § 668a for the Shiloh IV Wind Project LLC, a subsidiary of EDF Renewable Energy. BGEPA prohibits the capture, wounding, and killing, or "take," of bald and golden eagles except as authorized by regulation. The first-of-its-kind permit will authorize the take of golden eagles for a period of five years, although the FWS evaluated impacts over the 30-year duration of the project. The final Environmental Assessment and Finding of No Significant Impact will be published in the Federal Register today and can be accessed on the FWS website.

This announcement comes only days after FWS announced that it will seek public comment on improving its incidental take permit regulations and management objectives under BGEPA to facilitate the issuance of additional eagle take permits. 

Background

In 2009, FWS published regulations for new incidental take permits, which authorize the take of bald and golden eagles when the take is associated with, but not the purpose of, an otherwise lawful activity. 74 Fed. Reg.  46836 (Sept. 11, 2009). There are two kinds of take permits: standard and programmatic. Standard permits authorize individual instances of unavoidable take; programmatic permits authorize unavoidable recurring take. Wind projects and utilities, among others, would be potential applicants for programmatic take permits.

In 2012, after issuing no programmatic take permits pursuant to the regulations, FWS announced its intention to re-examine the 2009 regulations. 77 Fed. Reg. 22278 (Apr. 13, 2012). In December 2013,FWS issued a final rule that extends the duration of programmatic take permits from five years to 30 years for wind projects, transmission projects, and other long-term energy operations.

Now, FWS will convene public meetings and solicit public comment about possible revisions to its BGEPA regulations, including the 30-year take permit provisions. This public feedback will also serve as part of the scoping process for an eventual National Environmental Policy Act (NEPA) Environmental Impact Statement (EIS) for new eagle regulations. FWS intends to propose new draft eagle regulations in late 2014, with final regulations targeted for late 2015.

Issues

Public comments are expected to address the following issues, among others:

  1. Eagle Population Management Objectives. BGEPA requires FWS to determine that any authorized take of eagles be “compatible with the preservation of bald eagles or golden eagles.” To be compatible with the preservation of bald or golden eagles, the activity resulting in take must be “consistent with the goal of stable or increasing breeding populations.” 74 Fed. Reg. 46837-38. Thus under BGEPA, FWS has established a far higher standard for obtaining incidental take permits for bald or golden eagles than it uses even for endangered species.  See 16 U.S.C. § 1539(a). In April 2012, FWS sought public input “as to whether this standard is appropriate or whether it should be further refined or otherwise modified.” 77 Fed. Reg. at 22279. FWS will now consider a number of alternatives, ranging from a qualitative objective (e.g., "to not meaningfully impair the bald or golden eagle's continued existence,”) to updating the current objective based on the latest scientific information regarding eagles. Ultimately, the management objective will implicate eagle permit thresholds, as well as the level of monitoring, conservation measures, and mitigation required.
  2. Programmatic Permit Standards. The current regulations include several different standards for permit issuance. The regulations authorize FWS to grant standard permits for “take that cannot practicably be avoided.” However, in order to grant a programmatic permit, FWS must find the take “unavoidable.” FWS did not explain the rationale for this distinction in standards. In 2012, FWS sought feedback on whether FWS should revise the regulations “so that the issuance criterion for programmatic permits is the same as for standard permits: That the project proponent has reduced take to the maximum degree practicable.” 77 Fed. Reg. at 22279.
  3. Compensatory Mitigation. FWS also seeks feedback on the types of specific compensatory mitigation measures that would be appropriate to offset unavoidable adverse impacts to bald and golden eagle populations. In addition, FWS seeks to establish consistent standards for compensatory mitigation under eagle take permits. FWS’s proposal to establish such standards for compensatory mitigations closely aligns with FWS’s broader examination of its compensatory mitigation policies in response to the Department of the Interior’s new mitigation strategy.
  4. Length of the Take Permit. In 2013, FWS extended the duration of programmatic take permits to 30 years to create certainty for long-term projects. In the face of criticism and a lawsuit from environmental advocates, FWS now seeks feedback on the use of a 30-year term for programmatic permits.

As part of the public comment process, FWS plans to gather information on the status of bald and golden eagle populations, the method for calculating regional take thresholds for both species, the need to modify regulations for taking eagle nests, and the effects of low-risk (low-effect) projects to allow for more efficient permitting at the individual project level. 

Public Meetings and Comments

FWS will convene five public information meetings:

  • July 22, 2014, in Sacramento, Calif.;

  • July 24, 2014, in Minneapolis, Minn.;

  • July 29, 2014, in Albuquerque, N.M.;

  • July 31, 2014, in Denver, Colo.; and

  • Aug. 7, 2014, in Washington, D.C.

FWS has established a website for the meetings.

The comment period will last until Sept. 22, 2014. Comments can be posted at the federal e-Rulemaking Portal:http://www.regulations.gov, FWS-R2- MB-2011-0094 or by hard copy: Eagle Management and Permitting FWS-R2-MB-2011-0094; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM, Arlington, VA 22203.