pdf

U.S. Fish and Wildlife Service Releases Draft Environmental Assessment for First Programmatic Eagle Take Permit

September 30, 2013


On September 27, 2013, the U.S. Fish and Wildlife Service (the “USFWS”) released its draft Environmental Assessment (the “DEA”) for what could become the first permit authorizing a wind power project to kill or harm bald or golden eagles. The DEA analyzed the potential impacts of the USFWS issuing a programmatic eagle take permit for the Shiloh IV Wind Project in the Montezuma Hills Wind Resource Area of Solano County, California. Publication in the Federal Register of the notice of availability for the DEA started a 45-day public comment period, which ends on November 12, 2013. No sooner than 30 days after the close of the public comment period, the USFWS will make its final permit decision to either deny the permit, prepare a Finding of No Significant Impact and issue the permit, or prepare a full Environmental Impact Statement to further evaluate the potential environmental impact of the proposed permit.

Eagle Permits

Bald and golden eagles are protected under the Bald and Golden Eagle Protection Act (“BGEPA”) and Migratory Bird Treaty Act, which prohibit the “take” of bald or golden eagles without a permit. In the BGEPA, the term, “take” is defined to include “pursue, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.” In 2009, the USFWS promulgated permit rules under the BGEPA for the take of eagles associated with otherwise lawful activity.

Under these regulations, the USFWS can issue permits authorizing individual instances of take when the take cannot practicably be avoided. The USFWS can also issue “programmatic” permits for instances of take that may recur, if the take is unavoidable even after the implementation of “advanced conservation practices.” The USFWS has acknowledged that it has limited knowledge of the effects of wind energy projects on eagles and how to address them, and, as a result, most advanced conservation practices are considered “experimental.” The maximum term for a programmatic permit is five years, but, in April 2012, the USFWS proposed extending the maximum term to thirty years.

On May 2, 2013, the USFWS announced its Eagle Conservation Plan Guidance: Module 1 - Land-based Wind Energy, Version 2 (“ECPG”). The ECPG is a supplement to the USFWS’s March 2012 Land-Based Wind Energy Guidelines that provides specific guidance for conserving bald and golden eagles in the course of siting, constructing, and operating wind energy facilities. For additional information regarding the ECPG, see our June 19, 2013 alert, “U.S. Fish and Wildlife Services Issues Eagle Conservation Plan Guidance for Wind Energy Projects”.

The Shiloh IV Wind Project DEA

The Shiloh IV Wind Project, which commenced operations in December 2012, is a repowering project that entails the decommissioning and removal of approximately 230 100 kW wind turbines constructed in the late 1980s and the installation of 50 new 2 MW wind turbines.

In February 2012, the Shiloh IV Wind Project submitted an Eagle Conservation Plan (“ECP”) that was prepared under the prior version of the ECPG, leading the USFWS to designate the project as having a high to moderate risk to golden eagles with opportunities to mitigate the impacts; no bald eagle takes are anticipated. In August 2012, the Shiloh IV Wind Project submitted a revised ECP.

As an advanced conservation practice, the ECP proposed the creation of a project-specific technical advisory team from the USFWS and a “stepwise” approach of increasingly active protection measures based on the number of eagles taken. For example:

  • If 3 eagles are taken within any 12-month period or 4 eagles are taken within any 5-year period, qualified biological monitors with the ability to temporarily modify the operation of particular turbine(s) (i.e., feathering) when an eagle approaches the rotor swept area will be employed onsite during daylight hours.

  • If 4 eagles are taken within any 12-month period or 5 eagles are taken within any 5-year period, radar system(s) designed to allow real time temporary operational modifications to turbine blade rotation as eagle(s) approach particular turbines will be deployed.

In addition, as compensatory mitigation, the Shiloh IV Wind Project proposed to retrofit 75 high risk electricity power poles at a rate of 15 poles per year at an average cost of approximately $4,500 per pole. The power poles are located in Monterey County, California, adjacent to the Lake San Antonio State Recreation Area, and were identified by the USFWS in consultation with Pacific Gas and Electric Company, the owner of the affected electricity transmission lines. Retrofitting the power poles is expected to reduce electrocution risk for bald and golden eagles and other large raptors.

Under the National Environmental Policy Act, the USFWS is required to evaluate the potential impacts of viable alternatives to issuing a programmatic eagle take permit based on the ECP, as well as those of issuing a permit based on the ECP. In the DEA, the USFWS evaluated in detail four alternatives, of which the USFWS identifies Option 3 as its Preferred Alternative.

  • Option 1—No action. Under the no action alternative, the USFWS would not issue an eagle take permit. The Shiloh IV Wind Project would be able to continue to operate, subject to the risk of an unpermitted take.1

  • Option 2—Issuance of a programmatic permit authorizing the take of up to 5 golden eagles. The permit would incorporate all the conservation commitments in the ECP. However, the permit would require that the Shiloh IV Wind Project retrofit 75 power poles during the first year of the permit, and retrofit additional poles if an eagle take occurs, at a rate of 15 poles per take.

  • Option 3—Issuance of a programmatic permit authorizing the take of up to 5 golden eagles over 5 years and including additional mitigation and monitoring measures. In addition to incorporating all the conservation commitments in the ECP, the permit would require that the Shiloh IV Wind Project retrofit 133 power poles during the first year of the permit and conduct more frequent mortality monitoring.

  • Option 4—Issuance of a programmatic permit authorizing the take of up to 4 golden eagles over 5 years and including additional mitigation and monitoring measures, and seasonal restrictions. In addition to incorporating all the conservation commitments in the ECP, the permit would require that the Shiloh IV Wind Project retrofit 101 power poles during the first year of the permit and curtail turbine operations during daylight hours in June and July, for approximately 780 hours of operational curtailment over the 5-year term of the permit.

Next Steps

The programmatic take permit for the Shiloh IV Wind Project would be the first permit of its kind issued by the USFWS. As a result, the permit process is being watched closely by all interested parties. Wildlife advocates already have expressed concern regarding the number of takes to be permitted and the adequacy of the proposed compensatory mitigation, noting that if power lines are resulting in eagle mortality, that the electricity transmission company should be responsible for retrofitting the power poles to avoid unpermitted takes. In addition, under the USFWS current permit rules, the permit can be issued for only 5 years and, thereafter, will need to be renewed.

[1] The USFWS identified two grounds on which it could decide not to issue a permit, either because the risk of a take is zero or because the conservation commitments made by the Shiloh IV Wind Project are inadequate under the USFWS’ permitting rules. The enforcement risks in the event of a take are significantly different in these two scenarios. As explained in the DEA:
If we decide not to issue a take permit because we assess the risk to be zero, and take occurs, then we will have been in error and law enforcement action against the applicant would be unlikely. However, following the initial take, the [Shiloh IV Wind Project] would be directed by the Office of Law Enforcement to immediately consult with us and may be directed to shut down wind turbines to avoid additional eagle take until adaptive management measures are implemented. Failure to implement [USFWS] recommendations to avoid additional take and/or failure to obtain a permit would likely result in investigation and could result in prosecution under the [BGEPA]. In the alternate scenario— in which we do not issue a take permit because the application and conservation commitments made by the applicant fail to meet our issuing criteria—then immediate law enforcement action is more likely.


This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Eric Rothenberg, an O'Melveny partner licensed to practice law in New York and Missouri, and John Renneisen, an O'Melveny counsel licensed to practice law in the District of Columbia contributed to the content of this newsletter,contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

Portions of this communication may contain attorney advertising. Prior results do not guarantee a similar outcome. Please direct all inquiries regarding New York's Rules of Professional Conduct to O’Melveny & Myers LLP, Times Square Tower, 7 Times Square, New York, NY, 10036, Phone:+1-212-326-2000. © 2013 O'Melveny & Myers LLP. All Rights Reserved.