United States: The 30-Year Programmatic Eagle Take Permit: How Much Certainty Does It Provide?

Elizabeth A. "Betsy" Lake is a Partner in our San Francisco office and Bradley B. Brownlow is a Partner in our San Francisco office

  • The U.S. Fish and Wildlife Service issued a final rule that takes limited action to extend the maximum life of programmatic eagle take permits to 30 years, provides for permit transferability, and sets processing and administrative fees; additional rulemaking to further revise the permit regulations is expected in 2014.
  • This new rule is an important development for the large-scale renewable energy industry and utility companies, providing for more permitting certainty to enable project financing and operational security and setting the expectation that more projects will obtain this coverage or face increased enforcement threats.

The United States Fish and Wildlife Service (the "Service") issued a final rule extending to 30 years the maximum life of programmatic permits authorizing the incidental take of bald and golden eagles pursuant to the federal Bald and Golden Eagle Protection Act, 16 USC §§668-668d (BGEPA). See 78 Fed Reg. 73704, Dec. 9, 2013. The rule was issued on Dec. 6, 2013, and will go into effect Jan. 8, 2014. This is an important development for the large-scale renewable energy industry, which has long complained about the lack of permitting certainty and its adverse impact on project financing and operational security. But how much certainty, and at what cost, will this new rule offer renewable energy projects or other land use projects, such as commercial and residential development?

Background of BGEPA

BGEPA prohibits "take" — including direct harm and indirect disturbance of normal breeding, feeding and nesting behavior — of bald and golden eagles, or take of any eagle part, nest or egg, unless authorized by valid permit. 16 USC §§668(a-b). Violators are subject to criminal and civil penalties, including substantial fines. 16 USC §§668(a-b). Navigating BGEPA compliance has long been a challenge for large-scale renewable energy development in the western United States, where eagle conflicts are increasingly common. Until 2009, there was no established mechanism by which a renewable energy project could obtain permit authorization for the incidental take of eagles — even when the project was willing to implement practicable avoidance measures and compensatory mitigation — and there were no regulations interpreting BGEPA standards.

In 2009, the Service published a final rule establishing a BGEPA regulatory permitting program to authorize the incidental take of eagles in the conduct of otherwise legal activities, such as wind and solar energy production. See 74 Fed Reg. 46836, Sept. 11, 2009. Those regulations, set forth at title 50, part 22 of the Code of Federal Regulations (the "Eagle Permit Regulations"), provided for both "standard" incidental take permits to address one-time effects from projects like commercial or residential development, and "programmatic" incidental take permits to authorize the recurring take of eagles if the take is "compatible with the preservation" of eagles and is unavoidable even after the project implements practicable avoidance and minimization measures and compensatory mitigation. 50 CFR §22.3. Both types of permits were subject to threshold limits specific to individual management units, and programmatic permits were limited to a maximum five-year term.

In the preamble to the 2009 rule, the Service clarified that programmatic permits would only be available where long-term take is due to ongoing direct effects, and provided examples of the kinds of projects that fall under the standard and programmatic permit categories. Wind and utility transmission projects, where eagles could collide with turbine blades or power lines on an ongoing basis, were categorized as qualifying for programmatic permits, but large housing developments were not, because only indirect effects of habitat loss would continue following construction.

Since 2009, very few programmatic eagle take permits have been issued (or pursued). The renewable energy sector in particular has questioned the usefulness of five years of permitting certainty for large-scale projects, such as wind farms, which have an operational life of 30 years or more. For all types of development, various questions of interpretation remained unanswered, such as how to interpret BGEPA's mandate that permitted take be "compatible with the preservation" of eagles — i.e., the so-called "preservation standard." Rather than address all open questions at once, the Service proposed to address the programmatic permit term question first and separately initiated another rulemaking procedure to examine how the regulations could be revised to clarify the preservation standard, be more efficient or otherwise improved. See 77 Fed. Reg. 22278, April 13, 2012.

The new Dec. 6, 2013, final rule, therefore, takes limited action to extend the maximum life programmatic permits to 30 years, provides for permit transferability, and sets processing and administrative fees. Additional rulemaking to further revise and clarify the Eagle Permit Regulations is expected in 2014.

Revised Eagle Permit Regulations

Although the revised Eagle Permit Regulations extend the term of programmatic permits, that extension comes with (1) comprehensive monitoring and reporting obligations, including a new five-year review process and public disclosures; (2) requirements to implement phased mitigation commitments, including advanced conservation practices (ACPs); and (3) cost implications.

Monitoring/Five-Year Reviews

To address the uncertainty inherent in predicting the expected take over the operational life of a long-term activity, such as the construction and operation of large renewable energy facilities, programmatic permits will incorporate a monitoring and adaptive management framework that requires individualized annual monitoring and a comprehensive assessment of the permit by the Service every five years after permit issuance. The monitoring will be adapted to the specific conditions at each project, and a "low risk" project will only need to confirm that actual fatalities do not exceed some trigger level. The revised regulations define "low risk" projects as those that have demonstrated through use of Service-approved models and predictive tools that take is expected to be less than 0.03 eagles per year (or less than one eagle over 30 years). Projects with greater predicted fatalities will be required to undertake increased monitoring, both in rigor and duration. The extent of monitoring or how to correlate it with risk remains undefined.

During each five-year review, the Service will evaluate the project's post-construction monitoring reports to reassess the effectiveness of the permit's required avoidance and minimization measures and compensatory mitigation. If warranted, the Service will revise the permit's eagle fatality predictions, impose new monitoring requirements on the project, require additional mitigation and/or require implementation of the ACPs designed to further reduce eagle impacts to acceptable levels. In addition, the Service may suspend or revoke the permit if necessary to comply with the BGEPA preservation standard. Results of the annual and five-year compilation avian mortality information are required to be made available to the public.

Mitigation/Adaptive Management

In light of the longer programmatic permit duration, the new regulations provide that permits may be required to include a menu of additional specific mitigation measures, including ACPs, that may be phased-in over time. Such measures would be triggered if the authorized level of take is exceeded or if new scientific information indicates their implementation is necessary to comply with BGEPA's preservation standard. ACPs are defined as "scientifically supportable measures approved by the Service that represent the best available techniques to reduce eagle disturbance and ongoing mortalities to a level where remaining take is unavoidable." To date, the Service has not formally adopted any ACPs for renewable energy projects, largely because there are currently no standardized protocols for their scientific study and development. To fill this information gap, as part of the permitting process, the Service will work with project proponents to develop "experimental" ACPs. If, during the required five-year review, the Service determines that the project is having an adverse effect on eagles that cannot be avoided or minimized by scientifically supportable ACPs, the Service may require implementation of experimental ACPs combined with additional post-implementation monitoring to determine whether the experimental ACPs are effective.

The practice of identifying potentially effective ACPs has been more fully developed for the wind energy industry than it has for the solar PV and solar thermal industries. Following issuance of the 2009 Eagle Permits Regulations, the Service published two documents to facilitate the issuance of incidental take permits for eagles to wind energy projects: Eagle Conservation Plan Guidance, Module 1, Land Based Wind Energy (ECPG) and the Wind Energy Guidelines (WEG). Together, the ECPG and WEG set forth guidance for evaluating and characterizing the risk profile of a proposed wind energy project site, preparing and conducting site-specific surveys and assessments, predicting eagle fatalities at wind energy project sites, and determining potential conservation measures and ACPs. To date, however, comparable guidance documents have not been prepared for the solar PV and solar thermal industries.


The revised Eagle Permit Regulations increase both monitoring and adaptive management program costs and applicable permitting fees. For monitoring, costs are generally uncapped, although the required monitoring should be "commensurate" with risk, so that, as noted above, low risk projects should have lower costs. For adaptive management, the Service has agreed to work with applicants to cap the costs of developing and implementing experimental ACPs. For permitting fees, the revised regulations include a fee schedule that substantially increases the fees, requiring $36,000 for processing a programmatic permit and $2,600 for each five-year review. Low effect project permitting fees are substantially less.

Additional Permitting Certainty Needed

The revised Eagle Permit Regulations provide for an additional degree of permitting certainty, but that increased certainty comes at a cost. Under the regulations, negotiating appropriate monitoring and adaptive management measures will be a project-by-project challenge until industry-specific guidance is developed. The wind industry is out in front on this issue, and in the preamble to the revised regulations, the Service encourages other industries to develop a comprehensive research program for ACPs to further increase programmatic permitting certainty on an industry-by-industry basis. Further clarification to the BGEPA standards is in development, and it is possible that future rules will bring more clarity for other industry sectors.

While generally welcomed by the wind industry, the Eagle Permit Regulations do not revisit the take thresholds or offer any further guidance to other types of projects, like commercial or residential development. Additionally, the revised regulations provide an incomplete solution to avian mortality issues generally, particularly for the renewable energy industry, which has been a growing target of regulatory enforcement. Indeed, criminal charges against wind farms in Wyoming for violations of the Migratory Bird Treaty Act (MBTA) were recently settled between the project operator and the Department of Justice (see press release), and other additional federal and state species permitting compliance traps abound. Nonetheless, with this extended permit term comes the expectation that more projects will pursue these permits, and those that do not are at increased risk of enforcement if an eagle is harmed. Even once a fully defined BGEPA permitting regime is up and running, solving for BGEPA permitting uncertainty is just one piece of the complicated avian permitting puzzle, where the MBTA, federal and state endangered species laws, and additional state laws, such as "fully protected" species laws in California, provide overlapping, and sometimes contradictory, requirements.

Holland & Knight is prepared to help you navigate the revised regulations. We have extensive experience in permitting and entitlement work for a wide range of projects, including renewable energy projects, in California.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.