On May 2, 2016, the US Fish & Wildlife Service (FWS) announced its second attempt to revise its rules authorizing eagle take permits under the Bald and Golden Eagle Protection Act (Eagle Act). The rule would extend the maximum eagle take permit term from 5 to 30 years to better correspond to the typical lifetime of major projects. The proposed revisions are intended to provide clarity on eagle permit regulation, improve permit implementation and increase regulatory compliance while providing strong protection for eagles. Public comments are due by July 5, 2016.
The Bald and Golden Eagle Act
The Eagle Act (16 USC 668-668d) was enacted in 1940 to prohibit the take of bald and golden eagles, except pursuant to federal regulations. The Eagle Act allows the Secretary of the Interior to issue regulations authorizing “take” of eagles for various purposes, with potentially significant fines for violations. Such take must be “compatible with the preservation of bald or golden eagles.” The current “preservation standard” is that the take must be “consistent with the goal of maintaining stable or increasing breeding populations.”
The bald eagle was removed from the Endangered Species List in 2007. Two years later, FWS promulgated regulations to establish new permits for eagle take. One type of permit was for take (removal, relocation, or destruction) of eagle nests. The other type of permit was for non-purposeful take (disturbance, injury, or killing) of eagles. The 2009 regulations are still in effect today, and allow for an eagle take permit term of up to five years.
In 2013, FWS issued a final rule to extend the maximum permit duration for eagle take permits from 5 to 30 years to better correspond to the lifetime of renewable energy and major infrastructure projects, such as wind farms, power lines, airports and other large projects. However, as we discussed in our previous post, the FWS 2013 rule was challenged by environmental groups. In 2015, the US District Court for the Northern District of California set aside the rule on National Environmental Policy Act (NEPA) grounds. The Court remanded the rule to FWS for further consideration and environmental review, and the effect of the ruling was to return the maximum programmatic permit term to 5 years.
The 2016 Proposed Rule
On May 2, 2016, FWS proposed a revised eagle permit rule and issued a Draft Programmatic Environmental Impact Statement (DPEIS) under NEPA analyzing eagle management objectives and the proposed rule’s environmental impacts. FWS prepared the DPEIS to comply with the 2015 court’s order, and intends to use the DPEIS to assist with NEPA analysis for subsequent project-level NEPA analyses associated with permit applications.
The proposed rule includes the following key elements:
- Increases permit terms from 5 to 30 years. The proposed rule provides that the 30-year permits would be evaluated by FWS every five years in order to reassess fatality rates, eagle population status, the effectiveness of measures to reduce take and the appropriate level of compensatory mitigation. Depending on the results of the 5-year evaluations, additional mitigation measures may be required of long-term permittees.
- Modifies the “preservation standard.” As discussed above, current regulations include a “preservation standard” that requires take be “consistent with the goal of maintaining stable or increasing breeding populations.” The proposed rule’s new preservation standard would be that take 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.” This new preservation standard would incorporate a timeframe of 100 years relative to the 2009 baseline, for modeling both bald and golden eagle species population stability. FWS also intends to realign the current eagle management units as seasonal migratory paths, called “flyways,” rather than set geographical areas.
- Rebrands “non-purposeful take permits” as “incidental take permits.” The proposed rule would change the nomenclature of the current rule’s “non-purposeful take permits” to “incidental take permits” to avoid confusion. The proposed rule would also eliminate separate categories for standard and programmatic incidental take permits, and instead simply call all Section 22.26 permits “eagle incidental take permits.” Additionally, the proposed rule would use the same “practicability standard” for all incidental take permits (versus the current rule’s use of two different standards for programmatic and standard permits, respectively). The definition of “practicable” would be revised 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.” The concept of advanced conservation practices, which require reducing take to the point where it is unavoidable, would be removed from the regulations altogether. Nevertheless, permittees would be required to implement all practicable best management practices and other measures and practices that are reasonably likely to reduce eagle take.
- Increases eagle take limits. Bald eagle populations have continued to increase throughout the United States, soaring from a low of 500 nesting pairs to more than 143,000 birds today. Under current regulations, the permitted level of bald eagle take is capped at 5 percent of estimated annual productivity (i.e. successful reproduction). Meanwhile, golden eagle populations are declining, with only 40,000 birds in the United States today. The permitted level of golden eagle take is zero, which means any take must be at least equally offset by compensatory mitigation. FWS proposes to increase eagle take limits for bald eagles from 1,103 eagles annually under the 2009 regulations, to 4,200 eagles annually. The take limit for golden eagles would remain zero, unless compensatory mitigation is provided.
- Increases administrative fees. FWS proposes to adjust the fee schedule for eagle take permits. FWS plans to remove the current administration fee and add a new $15,000 administration fee for every 5 years for long-term permits. The permit application fee would remain the same at $36,000 for permits of 5 years or longer. The application fee for incidental permits of less than 5 years would be increased to $2,500, from the current $1,000 for programmatic permits and $500 for standard permits. Fees for nest removal permits would also increase.
- Updates eagle nest take permit requirements. FWS also proposes streamlining its eagle nest take regulations (50 CFR § 22.27) to eliminate the distinction between standard (one-time) and programmatic (multiple times) nest removal permits. All eagle nest take permits would be called “nest take permits” under the proposed rule. In addition, under the current regulations, only “inactive nests” may be taken except in the case of safety emergencies. FWS proposes to change this provision to allow for the removal of an in-use nest prior to egg-laying to prevent a foreseeable hazard before it becomes a safety emergency. The proposed regulatory language would permit nest removal at an earlier stage, which may allow for the eagles to re-nest elsewhere while also preventing nesting eagles from rendering human-made structures inoperable.
Reinstating the 30-year permit program will help proponents of long-term projects that are designed to be in operation for many decades, such as wind farms. Interested parties, including wind farm operators, energy companies, airports, and other developers of major infrastructure projects, may participate in the rulemaking process by submitting comments on the proposed rule and the DPEIS by July 5, 2016. Comments may be submitted electronically through the Federal eRulemaking Portal, or by hard copy to Public Comments Processing, Attn: FWS–R9–MB–2011–0094; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service, MS: BPHC; 5275 Leesburg Pike, Falls Church, VA 22041–3803.
After the public comment period closes, the FWS will review comments and may issue a final rule in late 2016.
Latham & Watkins Environment, Land and Resources attorneys are closely monitoring the rulemaking and FWS’ actions on bald and golden eagle permits.