By Sara Orr, Jennifer Roy and Francesca Bochner
On July 5, 2016, the public comment period closed for the US Fish and Wildlife Service’s (FWS) proposed revisions to the rules authorizing eagle take permits under the Bald and Golden Eagle Protection Act (Eagle Act) and accompanying Draft Programmatic Environmental Impact Statement (PEIS), paving the way for FWS to complete and release a final rule, possibly as early as the end of this year.
FWS originally released the revised proposed rules on May 6, 2016, as discussed more fully in our previous post. FWS received over 700 comments on the proposed revisions and Draft PEIS from other agencies, public interest groups, industry organizations, and private citizens.
Agency Comments The US Environmental Protection Agency (EPA) recommended clarifying and expanding several sections of the proposed rules. EPA suggested that FWS elaborate on the difference between a renewable 5-year permit and a 30-year permit with reviews every 5 years. EPA expressed concerns about potential differences in public participation and accessibility of information for 5-year and 30-year permits. EPA also asked for further explanation of how the proposed take levels would meet FWS’ new proposed goal of maintaining and increasing bald and golden eagle populations through both species’ geographic ranges. Other state agencies, such as the State of Arizona Game and Fish Department (AGFD), commented that the proposed take levels could ultimately negate states’ efforts to manage and grow eagle populations. AGFD requested more conservative take levels to avoid bald eagle loss in Arizona and other states.
Public Interest Group Comments In general, environmental groups expressed support for the proposed revisions’ overarching goals, but opposed any “net loss” to eagle populations that could result from the rules. Some environmental groups requested deferring longer-term permit implementation until conservation safeguards could be implemented. These groups also asked that FWS commit to completing a conservation plan and identifying baseline population targets in the near future. Like the agencies, many environmental groups also focused on improving public engagement opportunities during the 5-year evaluation process. Suggestions included enumerating that the process would involve discrete transparency mechanisms and public engagement opportunities, and providing eagle take information in real-time to the public as soon as it becomes available.
Industry Comments A number of energy companies and industry organizations submitted comments supporting the expanded permit duration but expressing concerns over mandatory 5-year reviews and the potential for increased monitoring and mitigation requirements. Specifically, some energy companies requested that the proposed rules provide more guidance on the 5-year review process, and whether new mitigation measures could be required upon review. Some industry groups suggested establishing long-term adaptive management cost caps that could be relied upon to ensure project viability at the financing and construction stage.
Additionally, some industry comments requested that the compensatory mitigation measures available to permittees be clarified and expanded in the revised rules. There was agreement across the comments that a “one-size-fits-all” approach would not suffice for a diverse range of permit applicants. Moreover, some energy companies raised concerns over the new mitigation ratio of greater than 1:1 for golden eagles, and requested that FWS provide additional information about how this higher ratio would be implemented. Finally, some commenters expressed concern that new survey requirement for estimating total take—involving “statistically rigorous, unbiased estimators”—may be prohibitively expensive for transmission lines and very large projects. These commenters recommended random sampling as an alternative to full surveys.
FWS is currently reviewing this public input as it prepares the final PEIS and final revised permit regulations. FWS anticipates that the final revised rules and final PEIS could be released as early as late 2016, with a Record of Decision to follow. Latham & Watkins Environment, Land and Resource attorneys will continue to track the development of the revised eagle rules over the coming months.
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