United States: Revised Eagle "Incidental Take" Permit Regulations Strike A Better Balance

Last Updated: March 10 2017
Article by Skip Spaulding and Brennan Bentley

In December 2016, the U.S. Fish and Wildlife Service (Service) issued new regulations that provide an important mechanism for renewable energy, transmission line and other development projects to obtain eagle "incidental take" authorizations. These regulations, which become effective on January 17, 2017, will supersede existing regulations that failed to work effectively from both renewable energy development and environmental viewpoints. The new regulations appear to strike a reasonable public policy balance between facilitating project development objectives and implementing preservation and mitigation measures to assure the long-term viability of eagle populations.

Bald and golden eagles are protected under both the Bald and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Treaty Act (MBTA). Although bald eagles were at one time listed as an endangered/threatened species under the Endangered Species Act (ESA), they were removed from ESA protection in 2007 after their numbers rebounded dramatically following decades of successful conservation efforts. In a 2016 population study, the Service estimates that there are about 143,000 bald eagles in the United States and projects that their numbers will continue to increase. In contrast, there are an estimated 39,000 golden eagles in the country and the Service is concerned that their numbers may be declining.

From a development viewpoint, the existing eagle "take" rule was unworkable for many projects because the "standard" permit only had a five-year duration (far shorter than the expected life of most projects) and required meeting an almost impossible biological standard. (A longer duration "programmatic permit" was adopted in 2013 and subsequently invalidated by a court.) As a result, the permits were of marginal value and only a few projects ever successfully obtained one. The existing permit program was also flawed from an environmental viewpoint, providing few benefits for the species because many projects simply did not apply for the permit (preferring to take the risk that no eagle or eagle nest takes and/or no enforcement would occur). Therefore, none of the important eagle avoidance, minimization, and mitigation conditions that would be embedded in a permit were being adopted to protect eagles.

The new regulations, which are accompanied by a Programmatic Environmental Impact Statement (PEIS), make many important changes in the BGEPA eagle incidental take and eagle nest take permit program, including the following:

  • All eagle "incidental take permits" will now have a 30-year duration to align more closely with the normal duration of major energy and other projects. However, there will be Service check-in points at five-year intervals in which adjustments can be made to the permit to take into account updated biological data and other developments.
  • Based on the 2016 eagle population study, the Service has determined that bald eagles can sustain an annual take (injury or death) of 4,200 eagles, and this will be the total potential take authorization nationwide (although authorized take levels will vary by region). In contrast, a "zero" take limit is set for golden eagles, but this will be implemented through a requirement of compensatory mitigation at a 1.2:1 ratio for any golden eagle take rather than through a prohibition on any takes. Any bald eagle take that exceeds permitted levels will also require mitigation compensation.
  • The regulations specifically authorize standard compensatory mitigation approaches often used in other species contexts, including conservation bank credits, third-party mitigation projects and in-lieu fee programs. These are proven mechanisms for aggregating, managing, and implementing large-scale -- and often more effective -- mitigation to benefit protected species.
  • A permit holder will be required to implement all "practicable" best management practices. The term "practicable" is defined as "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." This balanced approach should be a more nuanced and achievable standard than currently exists.
  • The issuance of an eagle take permit will require review under the National Environmental Policy Act (NEPA). For those situations in which a NEPA document has not already been prepared for a project, the PEIS adopted by the Service should provide an excellent platform for "tiering" off the necessary NEPA review for a particular project.

The regulations also contain other technical changes to the eagle "take" permit system. Among other changes, they establish new eagle management units that are organized around eagle flyways rather than regions, add pre-construction survey standards (with special "minimal" standards for wind energy projects), require monitoring by qualified and independent third parties approved by the Service for permits exceeding five years, and increase fees to make the program more self-sustaining.

In sum, these new eagle take regulations are designed to provide a more effective mechanism to obtain eagle and eagle nest "take" authorizations for wind, solar and other renewable energy and development projects, while at the same time implementing strong protections for eagles. Although there are some regulatory issues that will need to be addressed as the rules are implemented and the success of the overall program will depend on exactly how it is implemented, the new regulations represent an important advance over the current permitting program and better correspond with the timing, planning, and investment realities of project developers and owners.

Although the new regulations provide a path forward for eagle and eagle nest take permits under the BGEPA, the Service has not yet issued regulations to provide similar clarity regarding "take" authorizations for eagles pursuant to the MBTA, which implements the United States' obligations under avian protection treaties. The Service began a regulatory process last year to develop such a permitting program, but it is proceeding at a very slow rate and it is unclear what will happen with this process under the new political administration. More rapid implementation is essential to provide regulatory certainty for the development community while maintaining species protections. This is particularly true in light of recent enforcement actions against energy companies for the unpermitted "take" of eagles and other protected bird species, such as the 2014 prosecution against PacifiCorp Energy and the 2013 prosecution against Duke Energy Renewables, Inc., both of which proceeded under the MBTA rather than BGEPA and resulted in settlements of $1-2.5 million. As a practical matter, however, enforcement action under the MBTA seems unlikely against the holder of a BGEPA incidental take permit so long as the permittee is complying with all permit conditions.

Finally, it is important to note that many States have their own laws that protect eagles and may require incidental take permits for many projects. For example, California protects eagles under both the California Endangered Species Act (for bald eagles) and the "Fully Protected Species" program (for both species). Although at least the California programs are governed by different and less stringent "take" standards than the BGEPA, a project developer still needs to evaluate the need for State take authorization for eagles when it is available.

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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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.

Disclaimer

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.

Registration

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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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.