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U.S. Fish and Wildlife Services Issues Revised Eagle Permit Rule Allowing 30-Year Programmatic PermitsDecember 18, 2013
On December 9, 2013, the U.S. Fish and Wildlife Service (“USFWS”) issued a final rule revising its permit program under the Bald and Golden Eagle Protection Act (“BGEPA”)1 to authorize the issuance of programmatic permits with terms of up to thirty years.2 Under the prior rule, such permits could be issued with terms of up to only five years.
Bald and golden eagles are protected under the BGEPA and Migratory Bird Treaty Act (“MBTA”)3, which prohibit the “take”4 of bald or golden eagles without a permit.5 In 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.6 Under these regulations, the USFWS can issue permits authorizing individual instances of take when the take cannot practicably be avoided.7 The USFWS can also 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 specifically identified.”8 Currently, there is no means to acquire a programmatic permit under the MBTA.
To assist the wind energy industry in avoiding or minimizing its impacts on birds and other wildlife, in 2003, the USFWS issued its Interim Guidelines to Avoid and Minimize Wildlife Impacts from Wind Turbines. In 2007, the USFWS began working with stakeholders on a replacement to the interim guidelines, which culminated with the 2012 release of the USFWS’s Land-Based Wind Energy Guidelines (“WEG”). In 2013, the USFWS supplemented the WEG with the release of its Eagle Conservation Plan Guidance: Module 1 - Land-based Wind Energy, Version 2 (“ECPG”), which provides specific guidance for conserving bald and golden eagles in the course of siting, constructing, and operating wind energy facilities. Compliance with the USFWS guidelines is voluntary, but the USFWS has explained that, if a violation occurs, it will consider documented efforts to follow the guidelines when deciding whether to bring an enforcement action. See our June 19, 2013 Alert for additional information about the ECPG and BGEPA programmatic take permits, U.S. Fish and Wildlife Services Issues Eagle Conservation Plan Guidance for Wind Energy Projects.
The new final rule extends the maximum term of programmatic take permits from five years to thirty years. However, the USFWS will not automatically issue thirty-year permits; instead the USFWS must determine the appropriate duration of each permit based on the duration of the proposed activities, the period of time during which take will occur, the level of impacts to eagles, and the nature and extent of mitigation measures incorporated into the permit.9 In addition, the permits must incorporate conditions specifying additional measures that may be necessary to ensure the preservation of eagles, should monitoring data indicate the need for such measures.10 The USFWS will review each permit issued for more than five years at five-year intervals, and, if appropriate, may require that additional conservation and mitigation measures be taken by the permit holder.11 The USFWS also retains authority to revoke a permit if the permitted activity is deemed to be no longer compatible with eagle preservation.12
The USFWS continues to evaluate its BGEPA permit regulations. In 2012, at the same time that the USFWS proposed extending the term of programmatic take permits to thirty years, the USFWS published an advanced notice of proposed rulemaking that looks at all aspects of the permit regulations.13 The notice highlights three issues on which the USFWS particularly solicited comments: (1) the requirement for programmatic permits that take must be reduced to the point where it is unavoidable; (2) mitigation measures and options; and (3) the USFWS’ interpretation of the requirement under the BGEPA that any permitted take be compatible with the preservation of bald eagles or golden eagles. The USFWS will also revisit the provisions of the new final permit as part of its overall review of the permit program. The USFWS anticipates publishing a proposed rule and the accompanying National Environmental Policy Act (“NEPA”)14 documents in the fall of 2014, with a final rule and corresponding NEPA documents to follow in the fall of 2015.
 16 U.S.C. § 668, et seq.
 78 Fed. Reg. 73704 (Dec. 9, 2013).
 16 U.S.C. § 703, et seq.
 “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. 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.
 16 U.S.C. § 668; 16 U.S.C. § 703.
 74 Fed. Reg. 46,836 (Sept. 11, 2009).
 50 C.F.R. § 22.26(a)(1).
 50 C.F.R. §§ 22.3, 22.26(a)(2).
 50 C.F.R. § 22.26(i).
 74 Fed. Reg. 73704.
 50 C.F.R. § 22.26(h).
 77 Fed. Reg. 22278 (April 13, 2012).
 42 U.S.C. § 4321, et seq.
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 Missouri and New York, Kelly McTigue an O'Melveny partner licensed to practice law in California, Junaid Chida, an O'Melveny partner licensed to practice law in California and New York, 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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