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U.S. Fish and Wildlife Services Issues Eagle Conservation Plan Guidance for Wind Energy Projects

June 19, 2013

 

On May 2, 2013, the U.S. Fish and Wildlife Service (“USFWS”) announced the availability of its Eagle Conservation Plan Guidance: Module 1 - Land-based Wind Energy, Version 2 (“ECPG”).[1] 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.[2]

The developers and operators of wind energy projects are not required to comply with the ECPG or the WEG.[3] 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.[4] The USFWS 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 occurs the USFWS will consider documented efforts to follow the WEG in deciding whether to bring an enforcement action.[5]

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”).[6] However, bald and golden eagles continue to be protected under the Bald and Golden Eagle Protection Act (“BGEPA”) and Migratory Bird Treaty Act (“MBTA”), which prohibit the “take”[7] of bald or golden eagles without a permit.[8]

In 2009, the USFWS promulgated new permit rules under the BGEPA for the take of bald and golden eagles associated with, but not for the purpose of, otherwise lawful activity.[9] Under these regulations, the USFWS can issue permits authorizing individual instances of take when the take cannot practicably be avoided[10]. Of particular relevance to wind energy projects, the USFWS also can issue “programmatic” permits 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 specially identified.”[11] Any programmatic take must be unavoidable even after the implementation of “advanced conservation practices.”[12]The maximum term for a programmatic permit is five years, but, in April 2012, the USFWS proposed extending the maximum term to thirty years.[13]

The developers and operators of wind energy projects are not legally required to seek or obtain an eagle take permit, and the USFWS has not yet issued a programmatic permit for any wind energy facility.[14] However, the USFWS notes that the take of a bald or golden eagle without a permit is a violation of the BGEPA, and could result in prosecution.[15]

The ECPG

The ECPG describes a process for the developers and operators of wind energy projects to collect and analyze information that could support an application for a programmatic take permit. The ECPG identifies five successive stages of analysis, each of which is intended to be an increasingly intensive look at potential effects on eagles of the development and operation of the project.[16] In general, the five stages are:

  • Stage 1 - desktop site assessment;
  • Stage 2 - site-specific surveys and assessments;
  • Stage 3 - predicting eagle fatalities;
  • Stage 4 - avoidance and minimization of risk and compensatory mitigation; and
  • Stage 5 - post-construction surveys and continued risk assessment (if a permit is issued).[17]

At the end of each of the first four stages, the developer or operator should, in consultation with the USFWS, assess the likelihood that the project will take eagles. If a “robust” determination can be made early in the process that a project poses very low risk to eagles, the subsequent stages of the ECPG may be unnecessary.[18] In such cases, if an eagle take nonetheless subsequently occurs, the developer or operator should consult with the USFWS to determine how to proceed, possibly by obtaining an eagle take permit.[19]

The USFWS acknowledges that it has limited knowledge of the effects of wind energy projects on eagles and how to address them.[20] Therefore, the USFWS does not recommend any specific advanced conservation practices. However, in order to be issued take permits, project developers and operators will be required to propose and implement such practices in order to meet the regulatory standard of reducing any remaining take to a level that is unavoidable.[21] Examples of “experimental” advanced conservation practices identified by the USFWS are:

  • seasonal, daily or mid‐day shut‐downs of turbines;
  • removal or relocation of turbines;
  • adjusting turbine cut‐in speeds; and
  • use of automated detection devices, such as radar, to control the operation of turbines.[22]

Project developers and operators are not required to follow the processes described in the ECPG in order to obtain a programmatic take permit. However, the USFWS notes that its personnel will be trained in the application of the procedures and approaches outlined in the ECPG, and recommends that the basic format in the ECPG for Eagle Conservation Plans be followed to allow for expeditious consideration of permit applications.[23]

Unresolved Issues

The ECPG resolves some of the uncertainty regarding the application for, and issuance of, programmatic eagle take permits for wind energy projects. However, the USFWS has never issued a programmatic permit and neither the USFWS nor the wind energy industry has significant experience with the ECPG or programmatic permits. As a result, many issues, including the following, remain outstanding.

1. The USFWS’s programmatic permit regulations require that the take must be unavoidable even after the implementation of “advanced conservation practices.”[24] However, the USFWS has not identified any advanced conservation practices. Instead, the USFWS will implement advanced conservation practices on an “experimental” basis, subject to modification in an adaptive management regime.[25]

2. The ECPG is written to guide wind energy projects starting from the earliest conceptual planning phase. The USFWS recognizes that for projects already in development or operation implementation of all stages recommended in the ECPG may not be applicable or possible.[26] However, the ECPG leaves largely open the procedures that should be followed for such projects.

3. The ECPG contemplates that, after determining that their projects pose very low risk to eagles, at least some, developers and operators will not apply for a programmatic permit, and that, nonetheless, some of those projects will take eagles.[27] Such an unpermitted take would be a violation of the BGEPA and prosecution would be at the discretion of the USFWS.

4. Although the USFWS has proposed extended the maximum term of programmatic permits to thirty years, the term of such permits currently is limited by regulation to a maximum of five years.[28] Reopening the permit process every five years could result in more stringent permit conditions, permit challenges by third parties, and, possibly, a complete denial of the new permit.

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[1] 78 Fed. Reg. 25758 (May 2, 2013). The ECPG is available at http://www.fws.gov/windenergy/PDF/Eagle%20Conservation%20Plan%20Guidance-Module%201.pdf.  
[2] The WEG is available at http://www.fws.gov/windenergy/docs/WEG_final.pdf.  
[3] ECPG at ii; WEG at viii.
[4] ECPG at ii.
[5] WEG at vii.
[6] 16 U.S.C. § 1532, et seq. 72 Fed. Reg. 37,346 (July 9, 2007).
[7] “Take” is defined in the BGEPA to include “pursue, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb,” and prohibits take of individuals and their parts, nests, or eggs. 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.
[8]16 U.S.C. § 668; 16 U.S.C. § 703.
[9] 74 Fed. Reg. 46,836 (Sept. 11, 2009).
[10] 50 C.F.R. § 22.26(a)(1).
[11] 50 C.F.R. §§ 22.3, 22.26(a)(2).
[12] “Advanced conservation practices” means “scientifically supportable measures that are approved by the [USFWS] and represent the best available techniques to reduce eagle disturbance and ongoing mortalities to a level where remaining take is unavoidable.” 50 C.F.R. § 22.26(a)(2).
[13] 50 C.F.R. § 22.26(h); 77 Fed. Reg. 22,267 (April 13, 2012).
[14] See Mark Del Franco, Wind Industry Still Awaits First Eagle-Take Permit Under BGEPA, North American Wind Power (May 2, 2013).
[15] ECPG at iii.
[16] 78 Fed. Reg. at 25,758.
[17] The WEG also uses a five stage (or tier) process. However, the five stages the WEG do not perfectly coincide with those of the ECPG. The relationship between the ECPG and WEG stages is described in the ECPG at vi - ix.
[18] ECPG at vi.
[19] Id.
[20] Id. at 9.
[21] Id. at 78.
[22] Id. at 9.
[23] Id. at 5.
[24] 50 C.F.R. § 22.26(a)(2).
[25] ECPG at 10.
[26] Id. at iii.
[27] Id. at vi.
[28] 50 C.F.R. § 22.26(h).

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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, Kelly McTigue, an O'Melveny partner licensed to practice law in the California, Junaid Chida, an O'Melveny partner licensed to practice law in the New York and California, and John Renneisen, an O'Melveny counsel licensed to practice law in the District of Columbia,contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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