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.

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