On December 16, 2016, the U.S. Fish & Wildlife Service (the Service) issued a final rule revising the eagle take permit regulations. The rule is intended to make the permit process less onerous for wind energy project developers and other companies that engage in activities with the potential to disturb, injure, or kill bald and golden eagles. On that same date, the Service also published a Record of Decision for its Programmatic Environmental Impact Statement (PEIS) for the rule revision that supports the Service’s proposed alternative of realigning eagle management units (EMUs) along flyways and allowing only conservative take.

Background

The Bald and Golden Eagle Protection Act (BGEPA) prohibits the “taking” of bald and golden eagles except when authorized. One permit established by the existing regulations authorizes the take by removal, relocation, or destruction of eagle nests, while another authorizes non-purposeful take by disturbance, injury, or killing of eagles if the take is incidental to an otherwise lawful activity.

Due to the time and expense of performing the required environmental assessment and application and the limited duration of the take permit available under the Service’s existing regulations, application for an eagle take permit has long been the exception rather than the rule. On November 1, 2016, the Service issued Alta Wind X LLC the second such permit issued in the United States; the first was issued to EDF Renewable Energy’s Shiloh IV wind project.

Revisions

The final rule makes the following changes to the eagle take permit rule:

  • Realigns eagle management units (EMUs) along flyways to better reflect regional populations and migration patterns.
  • Requires all permit applicants to demonstrate that they reduce potential take to “practically unavoidable” levels which are “available and capable of being done after taking into consideration existing technology, logistics, and cost in light of a mitigation measure’s beneficial value to eagles and the activity’s overall purpose, scope, and scale.”
  • Provides for issuance of incidental take permits with a term of up to 30 years, provided that the permit is reassessed every 5 years for factors including eagle fatality rates, the effectiveness of measures to reduce take, the appropriate level of compensatory mitigation, and eagle population status to determine whether additional conservation measures may be required.
  • Requires compensatory mitigation at an offset ratio of 1:1 for bald eagles and 1.2:1 for golden eagles for all permits that exceed EMU take limits (as well as for certain permits that exceed local area population take limits, or as necessary to preserve eagles), and allows compensatory mitigation to include third-party mitigation projects or arrangements such as conservation banking or in-lieu fee programs.
  • Modifies the definition of “compatible with the preservation of eagles” to mean “consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and the persistence of local populations throughout the geographic range of both species.”

Adoption of these revisions is intended to make permits easier to obtain while enhancing eagle conservation; the Service has noted that its primary means of conserving and protecting eagles is to ensure that the incidental take permit regulations “encourage more proponents to seek and obtain permits for activities that would otherwise continue to take eagles without implementing the conservation measures that are critical to eagle conservation nationally, regionally, and locally,” such as monitoring and curtailment. In addition, the revisions will better align the permits with the longer term of energy production activities, consistent with federal permits for other infrastructure projects.

In addition, the Service has published a final PEIS that analyzes eagle take within certain levels that supports the proposed changes. Other options that were considered in the Service’s PEIS analysis include no action; maintaining current EMUs and allowing liberal take; maintaining current EMUs and allowing only conservative take; and realigning EMUs along flyways and allowing liberal take.

Significantly, the incorporation of the take limit into the regulations as supported by the PEIS will make it unnecessary to conduct an independent National Environmental Policy Act analysis for each project to authorize a take within the assessed limit, and the PEIS has already determined that this limited take is compatible with the preservation of eagles.

What This Means to You

Proceeding without a permit has historically been a question of balancing the time and expense required to obtain an eagle take permit against the risks of eagle take and enforcement. But with the revised permitting process in place to reduce the burden on project developer of obtaining a permit, proceeding without a take permit may prove to be a riskier prospect that is less acceptable to buyers and investors. The Service has stated that its decision to bring criminal charges or seek a civil penalty “depends on the facts of each situation,” including a company’s “demonstrated good faith” and efforts to reduce take such as monitoring and curtailment. We expect that as more and more permits are issued under the new rule, enforcement actions against projects that have chosen not to obtain a permit will become more common as well.

The final rule will go into effect on January 17, 2017. Permit applications can be submitted to the Service as of that date, although applicants who submit a completed permit application by July 14, 2017 can request coverage under the prior regulations.