On May 6 of this year, the United States Fish and Wildlife Service (FWS) published a proposed rule1 revising the permitting program under the Bald and Golden Eagle Protection Act (the Act).2 Public comments on the rule are due by July 5, 2016.
The Act prohibits what it calls any "take" of bald and golden eagles, except as authorized by a permit issued by the FWS. A "take" is broadly defined as: "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb."3 Any activity - such as operation of wind turbines - which may result in a take of bald or golden eagles must be authorized by a permit. Such inadvertent and unavoidable taking is permitted only based on a detailed Eagle Conservation Plan, showing that all practicable steps have been taken to avoid any such adverse impact to eagles.
The new rule, among other things, extends the duration of programmatic bald and golden eagle take permits from the current five years to 30 years.
The change in the duration of the permit is intended to make long-term financing of activities, such as wind projects or any land development that impacts eagle habitat, more feasible. Financial institutions may be reluctant to finance projects which require permits when those permits will expire every five years with no guarantee that they will be renewed. Extending the time to 30 years will potentially foster more wind energy projects, while still protecting eagles and eagle habitat. Other long-term projects affecting eagle habitat will also benefit from this change.
A change in the duration rule for permits to 30 years was previously adopted by FWS in 2013, but that Rule was enjoined by the U.S. District Court, Northern District of California, which held that a review under the National Environmental Policy Act (NEPA) was required.4 As part of that rulemaking, FWS did not conduct a comprehensive Environmental Impact Statement supporting the 30 year rule, but approved it based on a finding that it was "strictly administrative in nature." The Court, however, did not agree with this finding and rescinded the duration rule, reinstating the previous five-year duration for these permits.
For the new proposed rule reinstating the 30-year permit duration, FWS has completed a draft programmatic environmental impact statement5 which, presumably, corrects the deficiency that was the rule’s undoing in the Shearwater case.
Thirty year permit holders would still have to fund compensatory mitigation in five year increments, and mitigation adjustments would be made after every five years. But if no take occurs within the first five years of the permit, then no additional mitigation would be required. If less than anticipated takes occur, permittees can "carry forward" unused compensatory credits to the next review period.
Another advantageous change in these regulations results from a change in the terminology. The current rule for programmatic permits requires such permits to include advanced conservation practices which represent "best available techniques" to reduce eagle takes to a level where any remaining take is "unavoidable." The new regulation changes that standard, requiring instead implementation of all "practicable" measures to reduce impact to eagles. "Practicable" is defined as: "Available and capable of being done after taking into consideration existing technology, logistics and cost in light of a mitigation measure beneficial value to eagles and the activities overall purpose, scope, and scale." [81 Fed. Reg. 27972-27973 (May 6, 2016)]. This is a more realistic standard.
In addition, the new rule will allow for golden eagle incidental take permits in areas east of the 100th meridian for the first time. This effectively expands the permit program across the eastern half of the country.
NEPA is considered to be a procedural statute that imposes a process to ensure that federal agencies take a "hard look" at the environmental consequences of their actions.6 Now that FWS has, presumably, taken that hard look and produced an EIS in support of its action, a potential plaintiff’s burden would be to show that the conclusions of the EIS are "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law,"7 which is a more difficult standard once an EIS has been produced.
Overall, these proposed changes should make it easier to secure financing in areas where eagle impacts are likely. They may also avoid commitments to excessive or unproven protection measures.
Public comment on the proposed rule will be accepted until July 5, 2016.
181 Fed. Reg. 27972 (May 6, 2016).
216 USC § 668 et seq.
316 USC § 668c.
4Shearwater v. Ashe, 2015 WL 4747881 (N.D. Cal. Aug. 11, 2015).
5Available at www.regulations.gov at Docket No. FWS-Ra-MB-2011-0094.
6High Sierra Hikers Assn. v. Blackwell, 390 F.3d 630 (9th Cir. 2004).
7Sierra Club v. Bosworth, 510 F.3d 1016, 1022 (9th Cir. 2007).