It's official. Today, the U.S. Fish and Wildlife Service ("FWS") issued for public inspection a final rule to extend the maximum term for programmatic "take" permits under the Bald and Golden Eagle Protection Act ("Eagle Act") to 30 years, subject to a recurring five-year review process throughout the permit life. The rule represents a significant change, since under the current rule FWS programatic permits for incidental "take" of bald and golden eagles could extend only for five years.
The change is designed to facilitate responsible development of renewable energy and other projects that operate for multiple decades, and to provide more certainty for project proponents, all while continuing to conserve eagles.
Now that 30-year programmatic "take" permits are available, it is imperative that project operators and developers review and, if necessary, update their Eagle Act compliance strategies.
The Eagle Act provides for the protection of bald and golden eagles by prohibiting the "take" of eagles, and their parts, nests, or eggs, unless allowed by permit. 16 U.S.C. § 668. The Eagle Act regulations define "take" to include "pursue, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb." 50 C.F.R. § 22.3.
On September 11, 2009, the FWS issued a final rule establishing new permit regulations under the Eagle Act for the nonpurposeful "take" of eagles. 74 Fed. Reg. 46836 (Sept. 11, 2009). These regulations provided for both standard permits, which authorize individual instances of "take," and programmatic permits, which authorize recurring "take" that is unavoidable even after conservation measures are implemented. However, due to the five-year maximum term of the programmatic permits and the much longer duration of many large-scale projects, most project proponents opted not to seek a programmatic permit.
Based on comments from proponents of renewable energy projects and others, on April 13, 2012, the FWS issued a proposed rule to extend the maximum term for programmatic permits to 30 years. 77 Fed. Reg. 22267 (Apr. 13, 2012). According to the FWS, it became evident that the 5-year term limit imposed by the regulations needed to be extended to better correspond to project timeframes.
The New Final Rule
The FWS's final rule extends the maximum term for programmatic permits to 30 years. This extended term applies only to the nonpurposeful "take" of eagles. Importantly, the regulations authorize the FWS to issue programmatic permits for "disturbance" in addition to "take" resulting in mortalities.
Although the final rule allows the FWS to issue programmatic permits for terms of up to 30 years, the regulations direct the FWS to base the duration of the programmatic permit on "the duration of the proposed activities, the period of time for which "take" will occur, the level of impacts to eagles, and the nature and extent of mitigation measures incorporated into the terms and conditions of the permit." According to the notice, the FWS intends to incorporate into the terms and conditions of programmatic permits a commitment from the applicant to implement additional specified mitigation measures that would be triggered if the level of "take" anticipated is exceeded or if new scientific information shows that additional mitigation measures are necessary.
Importantly, the rule requires the FWS to evaluate each permit issued for more than 5 years at 5-year intervals. These evaluations will reassess fatality rates, effectiveness of conservation measures, the appropriate level of compensatory mitigation, and eagle population status. The final rule includes a renewed commitment to adaptive management as part of the eagle permitting process. The FWS indicates that only applicants who commit to adaptive management measures to ensure the preservation of eagles will be considered for permits with terms longer than five years. The revised regulation also increases the fees charged for processing programmatic permit applications and to better reflect the cost of developing adaptive conservation measures and monitoring the effectiveness of terms and conditions of the permit. For projects deemed "low-risk," there is a separate fee category with significantly lower fees.
In addition, the FWS will continue to solicit input on the advance notice of proposed rulemaking ("ANPR") 77 Fed Reg 22278 (2013) and intends to hold a series of regional workshops in early 2014 with an opportunity to submit written comments. The ANPR highlighted three key issues: (1) standard for programmatic permits; (2) mitigation requirements and options; and (3) the FWS' interpretation of the Eagle Act "Preservation Standard."
What You Need To Know
Although there is no legal requirement that project developers or operators apply to obtain a programmatic eagle "take" permit under the Eagle Act, the risk of proceeding without "take" authorization is significant. The Eagle Act provides for civil and criminal penalties for unpermitted "take" that is "knowing" or done "with wanton disregard." First offenders may be fined up to $5,000 per violation and sentenced to up to one year in jail, and repeat offenders can be fined up to $10,000 per violation and sentenced to up to two years in jail. 16 USC § 668(a). Felony convictions carry a maximum fine of $250,000 or two years of imprisonment. See e.g., United States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070, 1071, 1073-74 (D. Colo. 1999) (denying respondent's motion to dismiss because the Eagle Act and the Migratory Bird Treaty Act apply to both intentionally and unintentionally harmful takings of migratory birds, and therefore the electrocution of 38 birds of prey by the respondent's power lines subjected the respondent to prosecution under the Acts).
Further, although the industry norm prior to the FWS's release of the final Eagle Conservation Plan Guidance ("ECP Guidance") in April 2013 (discussed in this alert) was to not pursue programmatic permits (due, in part, to the 5-year term limitation in the 2009 final rule and in anticipation of the 30-year permit rule), there is now increased pressure to secure "take" coverage. Since issuing the ECP Guidance, the FWS has become more assertive in its efforts to persuade wind developers to develop eagle conservation plans and apply for the available 5 year programmatic permits. The FWS pressure on wind projects to be in compliance with federal avian laws has been underscored by the recent settlement agreement between Duke Energy Renewables and the U.S. Department of Justice regarding 14 golden eagle fatalities at Duke Energy's Top of the World Windpower Project and Campbell Hill Windpower Project in Wyoming.
Given this "new normal" and with the issuance of the final rule, project operators and developers should assess their projects and craft appropriate strategies to comply with the Eagle Act, including development of an eagle conservation plan to support the issuance of a programmatic permit. Because the issuance of an eagle "take" permit is a federal action that requires compliance with the National Environmental Policy Act ("NEPA"), including the preparation of an environmental assessment or environmental impact statement, project proponents should develop project schedules that account for the NEPA timeline.
A final note: For projects on federal land, an eagle conservation plan/bird conservation strategy ("ECP/BCS") will need to be developed in coordination with the FWS and the lead federal agency. The July 2010 BLM Instruction Memorandum No. 2010-156 requires interagency coordination between BLM and the FWS to ensure that the project applicant develops a conservation plan (termed Avian Protection Plan but the terminology has evolved to an ECP/BCS) that explicitly evaluates eagle risk and associated avoidance and minimization measures for any project that has the potential to impact eagles or their habitat. In practice, the FWS and BLM have interpreted the process described in the BLM IM as one of issuing a letter of acknowledgment. With the availability of a 30-year programmatic permit, project developers may chose to file its ECP/BCS with the FWS and apply for an eagle take permit.
For more information about reviewing your Eagle Act compliance strategies, please contact a key contributor.