United States: Fish And Wildlife Service Issues Draft 30-Year Programmatic Eagle Take Permit

Elizabeth "Betsy" Lake is a partner in our San Francisco office and Rafe Petersen is a partner in Washington, D.C., office.

Longer Permit Terms Welcome, But Certain Proposed Changes May Increase Regulatory Burdens on Renewable Energy Companies

HIGHLIGHTS:

  • The U.S. Fish and Wildlife Service has issued a revised draft rule that extends the maximum life of programmatic eagle take permits to 30 years and seeks comment on issues related to key definitions and permit criteria.
  • This rule will be an important development, particularly for large-scale renewable energy industry and utility companies, providing for more permitting certainty to enable project financing and operational security, as well as setting the expectation that more projects will obtain this coverage or face increased enforcement threats. However, it comes at a cost, with potential new requirements for monitoring and mitigation.
  • The comment period on the new draft rule is open until July 5, 2016.

The U.S. Fish and Wildlife Service (Service) on May 6, 2016, issued a draft rule that would extend to 30 years the maximum life of permits authorizing the incidental take of bald and golden eagles pursuant to the federal Bald and Golden Eagle Protection Act (BGEPA), 16 USC §§668-668d. See 88 Fed. Reg. 27934 (May 6, 2016). This draft rule comes in response to a 2015 district court decision setting aside, for failure to provide proper analysis under the National Environmental Policy Act (NEPA), a prior rulemaking effort that had also sought to extend the permit term to 30 years. The comment period on the new draft rule is open until July 5, 2016.

In this draft rulemaking, the Service proposes to further revise regulatory definitions and permit criteria at 50 CFR Part 22 (Eagle Permit Regulations), and provides its NEPA environmental analysis of the new rule in a Draft Programmatic Environmental Impact Statement. In addition to extending the permit term to 30 years, the proposed rule modifies definition of BGEPA's "preservation standard," which requires that permitted take be compatible with the preservation of eagles, removes the distinction between standard and programmatic permits, and codifies standardized mitigation requirements.

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. Violators are subject to criminal and civil penalties, including substantial fines. 16 USC §§668(a-b). Navigating BGEPA compliance has long been a challenge, particularly 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 provided for both "standard" permits to address one-time effects from projects such as commercial or residential development, and "programmatic" 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, minimization and mitigation measures . 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.

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 implement 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, in 2013 the Service proposed to address the programmatic permit term question first and separately issued notice of an advanced 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 first rule extending the programmatic permit term to 30 years was issued in late 2013. 78 Fed. Reg. 73,704, 73,704 (Dec. 9, 2013). That rule, however, was challenged in federal court in California by environmental groups who were concerned about the length of the permit and lack of environmental review. On Aug. 11, 2015, the court in Shearwater v. Ashe, et al., (No. 14-CV-02830-LHK), agreed with the environmental groups that the Service's decision not to conduct any further NEPA analysis before increasing the maximum duration of programmatic eagle take permits was unreasonable and violated NEPA. The Court set aside the rule and remanded it to the Service for reconsideration.

Proposed Eagle Permit Regulations

The proposed rule seeks to build on the past rulemaking efforts while addressing the court's order by providing for a programmatic NEPA analysis to be followed by permit-specific NEPA analyses for each subsequent permit issued under the rule. In particular, the Service seeks comments on the following issues:

1. Extend permit terms to 30 years

The Service proposes to reinstate the 30-year permit term with five-year mandatory checkpoints during permit term and fees for permit administration.

In support of a longer permit term, the Service states that the five-year maximum permit term for permits is unnecessarily burdensome for entities engaged in long-term actions that have the potential to incidentally take bald or golden eagles over the lifetime of the activity, and on that basis proposes 30 year terms. While the extension of the term of permits to 30 years is a significant benefit to industry, that extension comes with 1) comprehensive monitoring and reporting obligations, including a five-year review process and public disclosures; 2) requirements to implement phased mitigation commitments; and 3) cost implications. The permit fee alone is $36,000 for a long-term permit.

To address the uncertainty inherent in predicting the expected take over the operational life of a long-term activity, the Service has proposed five-year evaluations that will require assessment of fatality rates, effectiveness of measures to reduce take, the appropriate level of compensatory mitigation and eagle population status. That assessment will also require payment of a $15,000 administration fee. 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, require additional mitigation and/or require implementation of measures 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.

2. Modify the definition of the BGEPA preservation standard

BGEPA requires the Service to determine that any take of eagles it authorizes is ''compatible with the preservation of bald eagles or golden eagles.'' To meet this standard under the proposed rule, take must be ''consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and persistence of local populations throughout the geographic range of both species.''

In proposing this take threshold, the Service rejected a possible qualitative preservation standard (''to not meaningfully impair the bald or golden eagle's continued existence'') and instead proposes to incorporate a quantitative standard based on the Service's management objectives for eagles. To support this quantitative approach, the Service set a threshold based on assessing the eagle population demographics over the next 100 years relative to the 2009 baseline.

Specifically, the Service estimated that there are about 143,000 bald eagles in the United States (including Alaska), and that populations continue to increase above the 2009 baseline. Thus, the Service states that the annual take limit would be 4,200 bald eagles nationwide. This compares to a take limit of 1,103 established in 2009. The Service proposes to monitor population status on a six-year rotation to assess whether different take thresholds are appropriate.

With the goal of enhancing protection of eagles at the local scale, the Service then proposes to incorporate a local area population cumulative effects analysis into the permit issuance criteria. If permitted eagle take exceeds 1 percent of the estimated population size of either species within the local area population area, "additional take is of concern." If take exceeds 5 percent of the estimated population size within the local area population area, additional take is considered "inadvisable" unless the permitted activity will actually result in a lowering of take levels (e.g., permitting a repowered wind project that, in its repowered form, will take fewer eagles than before repowering). This self-described "simplistic" approach is likely to be controversial given the Service's acknowledgement of issues with estimating density and accurate population surveys.

3. Remove the distinction between programmatic and standard permits

Under the existing criteria, ''take that cannot practicably be avoided'' can be authorized with a standard permit; however, a programmatic permit requires that the take be ''unavoidable.'' The Service proposes that there be one permit with the following criteria: "the project proponent has reduced take to the maximum degree practicable."

The Service seeks to simplify the permit process by removing the separate categories for standard and programmatic permits and changing the name of the permits from "nonpurposeful take permits" to "incidental take permits." More importantly, the Service proposes that there be one definition of "practicable" and eliminates the requirement for programmatic permits to reduce impacts to the point where they are "unavoidable." The proposed definition – ''available and capable of being done after taking into consideration existing technology, logistics, and cost in light of a mitigation measure's beneficial value to eagles and the activity's overall purpose, scope, and scale'' – provides much more guidance on the meaning of "practicable" and simply requires permittees to implement all practicable best management practices and other measures, discussed below, that are reasonably likely to reduce eagle take to the "preservation standard." By spelling out that there will be consideration of existing technology, logistics and cost as balanced against the benefits of the mitigation, the Service may open the door for much more rational decisions on when it is actually "practicable" to avoid and minimize impacts.

4. Codify compensatory mitigation

The Service seeks to add clarity concerning the circumstances when permittees are required to provide compensatory mitigation, codify mitigation standards and expand mitigation options.

Through the proposed rule, the Service defines ''mitigation'' to sequentially include: avoidance, minimization, rectification, reduction over time and compensation for negative impacts. The proposed rule provides that permits may be required to include a menu of additional specific mitigation measures. The proposed regulation states the following:

Compensatory mitigation scaled to project impacts will be required for any permit authorizing take that would exceed the authorized take limits. Compensatory mitigation for this purpose must ensure the preservation of the affected eagle species by reducing another ongoing form of mortality by an amount equal to or greater than the unavoidable mortality, or increasing carrying capacity to allow the eagle population to grow by an equal or greater amount.

The need for mitigation is triggered in the following circumstances: 1) "when cumulative authorized take, including the proposed take, would exceed 5 percent of the local area population" or 2) "when available data indicate that cumulative unauthorized mortality would exceed 10 percent of the local area population." The mitigation must be sited within the same eagle management unit where the permitted take will occur unless the Service has reliable data showing that the population affected by the take includes individuals that are reasonably likely to use another eagle management unit during part of their seasonal migration.

Compensatory mitigation may now include conservation banking, in-lieu fee programs, and other third-party mitigation projects or arrangements (some of which may have to be developed). Permittee-responsible mitigation may be approved provided the permittee submits verifiable documentation sufficient to demonstrate that it is within the same eagle management unit as discussed above and the alternative means of compensatory mitigation will offset the permitted take to the degree that is compatible with the preservation of eagles. The frequency and duration of required monitoring will depend on the form and magnitude of the anticipated take, as well as the objectives of associated avoidance, minimization or other mitigation measures not to exceed what is reasonable to meet the primary purpose of the monitoring, which is to provide data needed by the Service regarding the impacts of the activity on eagles for purposes of adaptive management. Monitoring may run for up to three years after the permitted activity is complete.

Additional Permitting Certainty Needed

The proposed 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 remain a project-by-project challenge although the Service has attempted to provide more certainty and options.

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, navigating BGEPA permitting uncertainty is just one piece of the complicated avian permitting puzzle. The Migratory Bird Treaty Act, 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 and other parts of the U.S.

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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