As we discussed in this alert, the U.S. Fish and Wildlife Service (FWS) released its final Eagle Conservation Plan Guidance (ECP Guidance) on April 26, 2013. Intended to promote compliance with the Bald and Golden Eagle Protection Act (BGEPA) for wind development projects that have the potential to affect bald and golden eagles, the ECP Guidance provides specific in-depth guidance for conserving eagles in the course of siting, constructing, and operating wind energy facilities.
The industry norm prior to the FWS’s release of the ECP Guidance was to not pursue Eagle Take Permits (due, in part, to the 5-year term limitation in the 2009 final rule and in anticipation of the 30-year permit rule). Now that the ECP Guidance is in place, however, there is increased scrutiny on BGEPA compliance issues and the FWS has become more assertive in its efforts to persuade wind developers to apply for Eagle Take Permits. Meanwhile, the prediction that the FWS’s 30-year permit rule is imminent seems less likely. As such, we are now advising our clients to reassess their BGEPA compliance strategies to account for what appears to be a “new normal” in BGEPA compliance.