Austin associate Brooke Wahlberg’s article “The Curious Problem of Eagles” is featured as one of the lead articles in the Spring 2014 volume of the Texas Environmental Law Journal. The article examines the Bald and Golden Eagle Protection Act (“BGEPA”), the regulations implementing BGEPA, and the issues the Eagle Rule and subsequent guidance have created for industries that may cause inadvertent impacts to eagles. Although one might think that the removal of the bald eagle from the Endangered Species Act (“ESA”) list of threatened and endangered species in 2007 would mean that eagles are now subject to less regulation, the result has been the opposite.
Despite its enactment in 1940, BGEPA has seen a whirlwind of activity in the last five years after being relatively dormant for 69 years. This activity began in 2009, when the U.S. Fish and Wildlife Service (“Service”) promulgated the Final Rule for Eagle Permits (the “Eagle Rule”) under the authority delegated to the Service in BGEPA. The Eagle Rule provided for two types of permits for non-purposeful (i.e., incidental) take: (1) individual instances of take; and (2) programmatic (i.e., ongoing) take.
The 2009 announcement of the Eagle Rule purported to propose a permitting scheme that is less onerous than the ESA, but the practical effect of the Eagle Rule is that eagle permits are much more difficult to obtain than ESA incidental take permits. Subsequent to the Eagle Rule, the Service has issued guidance and revised guidance directed at the wind industry, as well as two proposed rulemakings, and an amendment to the Eagle Rule. Most recently, in December 2013, the Service amended the Eagle Rule to extend the permit term for programmatic permits to 30 years (while retaining significant authority to modify permits at five-year intervals). A fundamental issue for those with recurring risk of take of eagles (i.e., programmatic take in Eagle Rule parlance) is that the programmatic permitting scheme does not consider economic practicability in its requirements. The proliferation of regulations and guidance addressing eagles has created more issues than solutions for those seeking permits under BGEPA.
Eagle issues associated with wind, electric transmission and other development projects are regularly appearing in the news. Just after the article went to print, two new BGEPA developments occurred. On June 19, 2014, the American Bird Conservancy filed a lawsuit in the U.S. Federal District Court of Northern California challenging the December 2013 amendments to the eagle regulations alleging National Environmental Policy Act violations. On June 27, 2014, the Service published in the Federal Register a notice of availability of its decision to issue a programmatic take permit for the take of golden eagles at the Shiloh IV Wind Project in Solano County, California. This is the first programmatic take permit announcement for a wind energy facility since the Service’s issuance of wind-specific guidance in 2011 (revised in 2013).
The Service is currently drafting amendments to the Eagle Rule that could have significant implications for industry. The Service alerted the public to the possibility of these amendments in its advance notice of proposed rulemaking (ANOR) announcement in April 2012. The ANOR solicited public input specifically on: (1) permitting issuance criteria (should there be a practicability standard for programmatic permits?); (2) compensatory mitigation (when is it required and how?); and (3) the BGEPA preservation standard (does the Eagle Rule appropriately reflect the law?). The areas on which the Service is focused are significant because these areas address the lack of economically viable standards that currently plague permitting under the Eagle Rule. In December 2013, the Service announced that these amendments are forthcoming in the fall of 2014. Since that announcement, however, it appears the schedule has slipped. Those industries that may potentially impact eagles should keep a careful eye on these amendments. It is yet to be seen whether the Service will provide a more commercially reasonable standard or align more with the view of environmental groups that opposed the December 2013 amendments to extend the programmatic permit terms to 30 years. For more background and analysis of BGEPA issues, Wahlberg’s article can be found in the May 2014 issue of the Texas Environmental Law Journal (44 Tex. Envtl. L.J. 51).