U.S. Fish & Wildlife Service Issues Rule Extending Terms of Permits for Incidental Eagle Take to Thirty-Years

by Orrick, Herrington & Sutcliffe LLP

Timing of Rule’s Publication is Another Indication of Renewed Focus on Avian Compliance Risk at Wind Farms

Today, the U.S. Fish and Wildlife Service (“USFWS”) published a final rule extending the maximum term for programmatic take permits of bald and golden eagles to thirty years.  (78 FR 73704.)  Today’s rule comes only two weeks after the U.S. Department of Justice (“DOJ”) announced the terms of a plea agreement with Duke Energy Renewables, Inc. (“Duke”), regarding the take of protected avian species at two of Duke’s wind farms in Wyoming.  These recent actions demonstrate a renewed focus by DOJ and USFWS regarding compliance by project developers, including wind farm developers and operators, with federal laws that prohibit the killing of avian species, including the Bald and Golden Eagle Protection Act (“BGEPA”).  The extended permit term, though, provides developers and operators with a viable option for compliance with the requirements of the BGEPA. 

In 2011, USFWS promulgated regulations authorizing programmatic “take” permits under the BGEPA.  The BGEPA defines “take” broadly, and includes activities such as pursuing, shooting, poisoning, wounding, killing, or even disturbing.  These permits would permit “take” where the take was incidental to the permitted activity, such as, for example, wind farms where golden eagles might be killed by collisions with wind turbines.  Permits would be issued for terms of up to five years.  

Today’s rule extends those terms to up to thirty years.  The rule states that the change was necessary in order to more closely align the term of the permit with the expected life of the permitted activity.  USFWS will re-evaluate issued permits every five years during the term to determine whether the basis on which the permit was granted has changed.  USFWS may then change the terms of a permit – or even revoke it – if USFWS determines that factors such as fatality rates, effectiveness of measures to reduce take, or changes to eagle population require an adjustment to the conditions of, or mitigation required by, a permit.  

USFWS has also made it easier and cheaper to obtain a programmatic take permit for “low-risk” activities.  The rule defines a “low-risk” activity to be one where, using USFWS-approved models and predictive tools, the activity is forecast to take less than one eagle over the course of thirty years, and the processing fees for permits for “low-risk” activities have been capped.  

Today’s rule is issued only two weeks after DOJ announced its plea agreement with Duke.  According to the plea agreement, DOJ charged Duke with two misdemeanor counts under the Migratory Bird Treaty Act (“MBTA”) for 163 instances of “take” of migratory birds at two of Duke’s wind farms, both located in Wyoming.  Of those 163 fatalities, fourteen were golden eagles.  Duke pled guilty to the charges and must pay $400,000 in fines and contribute another $600,000 to conservation groups as part of its community service.  In addition, Duke must deploy advanced conservation measures at the wind farms, develop an eagle conservation plan, and apply for a programmatic take permit under the BGEPA.  In the plea agreement, DOJ noted that the charges against Duke were reduced to misdemeanors under the MBTA in part because of operational limitations that Duke has deployed at its wind farms to reduce the likelihood of additional take at its projects.    

For operators and developers of wind farms, transmission projects, or other projects where the incidental take of golden eagles is possible, today’s rule and the plea agreement with Duke both signal that DOJ and USFWS expect developers and operators to comply with the requirements of federal laws that protect bird species or else risk criminal prosecution.  Operators and developers should evaluate the risk that their projects pose to protected species – including golden eagles – and should consider whether to apply for permits or to implement additional actions to limit the risk that their project poses to these protected species.

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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