Fish and Wildlife Service Approves New 30-Year Eagle Act Rule

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Perkins Coie

The U.S. Fish and Wildlife Service has formally approved the long-awaited, 30-year eagle take rule, which will allow renewable energy companies and other developers of large projects to obtain a 30-year permit (as opposed to the previous five-year permit) for the incidental take of bald and golden eagles. In exchange, permittees must commit to detailed mitigation and conservation measures aimed to better understand and reduce impacts to bald and golden eagles. See 81 Fed. Reg. 91,494 (Dec. 16, 2016).

Background

The Bald and Golden Eagle Protection Act imposes criminal and civil penalties against anyone who “takes” bald or golden eagles without a permit. “Take” is broadly defined as “wound, kill, capture, trap, collect, molest or disturb.” The U.S. Fish & Wildlife Service administers the Eagle Act, including the permit program for the take of eagles that is incidental to otherwise lawful activity. In 2009, the Service implemented eagle permit regulations that allowed for five-year incidental take permits. However, there was strong concern among project developers and financial institutions that the relatively short five-year duration of eagle take permits did not line up with the longer duration of most wildlife permits, such as incidental take permits issued under the Endangered Species Act, or with the longer lifespan of large projects, such as wind energy development.

In response to these concerns, the Service amended its regulations in 2013 by extending the maximum duration of an incidental take permit from five to 30 years, largely to facilitate wind energy development. But shortly after the 2013 rule went into effect, the regulations were struck down by the U.S. District Court for the Northern District of California, largely on procedural grounds. The court held the Service did not adequately justify its decision not to prepare an Environmental Impact Statement or Environmental Assessment under the National Environmental Policy Act.

Subsequently, the Service published a new proposed rule in May 2016, sought public comment and issued a final programmatic Environmental Impact Statement analyzing the new 30-year rule in November 2016.

Requirements of New 30-Year Rule

In issuing the new rule, the Service has emphasized that the goal is to get project developers into a permitting framework, so that their activities can be closely monitored, with extensive mitigation measures in place to avoid and minimize impacts to eagles to the greatest extent practicable. For that reason, the Service views the new rule as a way to enhance the protection and conservation of eagles, even though authorizing any take of eagles is a controversial subject.

Under the new rule, the longer 30-year permits are subject to review every five years. New conditions can be added if needed. Provided it is in compliance with its permit, a permit holder can continue its operations during these five-year reviews. Additionally, the five-year review will not include a public process.

The new rule also underscores transparency. It requires third-party contractors to monitor any take activity by permit holders, with the results reported directly to the Service. In addition, the Service’s website will publish eagle mortality data from permitted sites.

In return for the significant conservation, monitoring and mitigation requirements, permittees that maintain compliance with their 30-year permits will not face prosecution should an authorized incidental take of a bald or golden eagle occur.

Implications

The new 30-year rule will primarily have an impact on renewable energy (especially wind energy) and other project development, particularly in the Western United States. The 30-year duration will better align with the longer lifespans of these types of projects, which should reduce regulatory uncertainty for both project developers and financial institutions.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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