U.S. Fish and Wildlife Service Formally Reinstates 5-Year Limit for Eagle Take Permits

February 23, 2016

On February 17, 2016, the U.S. Fish and Wildlife Service (“USFWS”) issued a final rule formally reinstating a five-year limit for eagle take permits.1 The final rule responds to an August 2015 ruling by the U.S. District Court for the Northern District of California setting aside a USFWS rule increasing the maximum duration of permits for the incidental take of bald and golden eagles from five years to thirty years (the “30-Year Permit Rule”).2 The court found that the USFWS violated the National Environmental Policy Act (“NEPA”) by failing to conduct an environmental review of the 30-Year Permit Rule. While the February 17, 2016, final rule removes provisions from the USFWS’s regulations that already were struck down in court, the inability to obtain 30-year permits has the potential to impact long-term financing of wind and other renewable-energy projects.

Eagle Permits

In 2007, the USFWS removed (delisted) the bald eagle from the list of endangered and threatened wildlife protected under the Endangered Species Act (“ESA”).3 However, bald and golden eagles remain protected under the Bald and Golden Eagle Protection Act (“BGEPA”)4 and Migratory Bird Treaty Act (“MBTA”),5 which prohibit the “take”6 of bald or golden eagles without a permit.7 On September 11, 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 “Five-Year Permit Rule”).8 Under these regulations, the USFWS can issue permits authorizing individual instances of take when the take cannot practicably be avoided.9 The USFWS can also issue “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.”10 Currently, there is no means to acquire a programmatic 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 Five-Year Permit Rule, developers of wind-energy projects expressed concerns that the limited duration of programmatic permits was inhibiting their ability to obtain financing.11 In response to these concerns, on April 13, 2012, the USFWS proposed to extend the maximum term for programmatic permits to thirty years in order to better correspond to the operational timeframe of renewable-energy projects, including wind and solar, and, on December 9, 2013, promulgated the 30-Year Permit Rule. According to the USFWS, the purpose of the 30-Year Permit 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.”12

Separately, on May 2, 2013, the USFWS announced the availability of its Eagle Conservation Plan Guidance: Module 1 - Land-based Wind Energy, Version 2 (“ECPG”).13 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.14 The USFWS also has 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 does occur, the USFWS will consider documented efforts to follow the WEG in deciding whether to bring an enforcement action.15 The ECPG and WEG are unaffected by the court’s decision to set aside the 30-Year Permit Rule or the USFWS’s February 17, 2016, rule.

Next Steps

NEPA requires that a federal agency, such as the USFWS, prepare an Environmental Impact Statement (“EIS”) for any “major Federal action[] significantly affecting the quality of the human environment.”16 Alternatively, under regulations promulgated by the Council on Environmental Quality, a federal agency may prepare a less detailed Environmental Assessment (“EA”) to evaluate whether an action may have a significant environmental impact; and, if, after preparing the EA, the agency finds that the proposed action would not have a significant impact, the agency can issue a Finding of No Significant Impact.17 In its August 2015 ruling setting aside the 30-Year Permit Rule, the U.S. District Court for the Northern District of California found that the USFWS violated NEPA by not preparing either an EA or EIS to evaluate the rule’s potential environmental impacts.

In 2014, the USFWS held five public scoping meetings in connection with a reexamination of its eagle permitting rules, including the appropriate duration for incidental take permits, and to help inform its decision to prepare either a draft EA or EIS. In a prepared statement regarding the February 17, 2016, rule, the USFWS explained that it “is currently analyzing various aspects of bald and golden eagle management” and “is using information from the meetings to prepare an [EIS] analyzing various alternative approaches to eagle management and proposed revisions to the permit regulations.” The USFWS intends to provide another opportunity for public review and comment before finalizing the EIS and revised permit regulations.

81 Fed. Reg. 8001 (Feb. 17, 2016).
2 Shearwater v. Ashe, Case No. 14-cv-02830-LHK (N.D. Cal. Aug. 11, 2015).
3 16 U.S.C. §§ 1532 et seq.  72 Fed. Reg. 37,346 (July 9, 2007).
4 16 U.S.C. §§ 668 et seq.
5 16 U.S.C. §§ 703 et seq.
6 “Take” is defined in the BGEPA to include “pursue, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.”  16 U.S.C. § 668c.  The USFWS has expanded this definition by regulation to include the term “destroy” to ensure that “take” includes destruction of eagle nests, and has further defined the term “disturb” as “to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause,… injury to an eagle, a decrease in productivity, or nest abandonment.”  50 C.F.R. § 22.3.  Under the MBTA, “take” means “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.”  50 C.F.R. § 10.12.
7 16 U.S.C. § 668; 16 U.S.C. § 703.
8 74 Fed. Reg. 46,836 (Sept. 11, 2009).
9 50 C.F.R. § 22.26(a)(1).
10 50 C.F.R. §§ 22.3, 22.26(a)(2).
11 78 Fed. Reg. at 73,709.
12 Id. at 73721.
13 78 Fed. Reg. 25,758 (May 2, 2013).
14 ECPG at ii.
15 WEG at vii.
16 42 U.S.C. § 4332(C).
17 40 C.F.R. §§ 1501.3, 1501.4.

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