On April 26, 2013, the U.S. Fish and Wildlife Service (FWS) released its final Eagle Conservation Plan Guidance (ECP Guidance) (available here). The ECP Guidance is intended to promote compliance with the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (Eagle Act) for wind development projects that have the potential to affect bald and golden eagles. The ECP Guidance provides specific in-depth guidance for conserving bald and golden eagles in the course of siting, constructing, and operating wind energy facilities. The ECP Guidance is designed to be compatible with the FWS's Land-Based Wind Energy Guidelines (available here), but it provides greater specificity in assessing potential threats to bald and golden eagles. Moreover, the ECP Guidance aims to assist developers and operators in the development of a comprehensive avoidance, minimization, and compensatory mitigation approach that will preserve eagle populations while facilitating the development of renewable energy. Although compliance is voluntary, the FWS believes that the ECP Guidance will help project developers and operators comply with regulatory requirements, avoid unintentional "take" of eagles at wind energy facilities, and gather the appropriate information to support a permit application under the Eagle Act.
By way of background, bald and golden eagles are protected under the Eagle Act as well as under the MBTA. The Eagle Act prohibits the "take" of eagles without a permit. The Eagle Act defines "take" 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. In 2009, the FWS promulgated regulations for the "take" of bald and golden eagles that are associated with but not the purpose of the activity pursuant to the Eagle Act. 50 CFR § 22.26. Although there is no legal requirement that wind developers apply for or obtain an eagle "take" permit, "take" of an eagle without a permit is a violation of the Eagle Act, which subjects the violator to civil and criminal penalties. Therefore, developers and operators must carefully weigh the risks of proceeding without a permit.
Currently, the FWS's regulations only allow the FWS to issue an eagle "take" permit for a term of five years. Because of this five-year limitation, most developers and operators have not applied for a permit. However, when the FWS published its draft ECP Guidance in 2011, the FWS proposed revising the regulations to extend the maximum term for programmatic permits to 30 years to better correspond to the timeframe of renewable energy projects. 77 Fed Reg 22,267, 22,268 (Apr. 13, 2012). Although the FWS has yet to issue a final rule for a 30-year permit, Department of Interior staff members have indicated that the final permit rule is imminent.
With the FWS release of the final ECP Guidance and the likelihood that a final permit will be issued in the near future, wind developers and operators should assess their projects and develop appropriate strategies to comply with the Eagle Act, including development of a draft ECP in anticipation of a 30-year "take" rule.
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