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.

Costs

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.

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