This article comes from law firm Stoel Rives LLP and is authored by Barbara Craig and Sarah Stauffer Curtiss.
The U.S. Fish and Wildlife Service (Service) recently published notice in the Federal Register of proposed changes to its eagle permitting regulations (Proposed Rule). Concurrent with the Proposed Rule, the Service issued a Draft Programmatic Environmental Impact Statement(DPEIS) analyzing the proposed changes under the National Environmental Policy Act (NEPA), and a Status Report that estimates size, productivity, and survival rates for bald and golden eagles, and provides recommendations on authorized take limits. The Service is accepting comments on the Proposed Rule and the DPEIS until July 5, 2016.
Although we are still in the process of evaluating the entire package, the proposed changes represent a significant step forward for applicants seeking regulatory certainty through the eagle permitting process. Here’s a quick snapshot of the proposal:
(Re)extends maximum permit term to 30 years. As we discussed in a previous post, in August 2015, the U.S. District Court for the Northern District of California set aside the 30-year tenure provision of the 2013 revisions to the eagle permit regulations on NEPA grounds, concluding that the Service had failed to demonstrate an adequate basis in the record for deciding not to prepare an Environmental Impact Statement or Environmental Assessment. The Proposed Rule, now backed by NEPA analysis that evaluates the 30-year maximum term, once again extends the maximum term for eagle take permits from five to 30 years, subject to recurring five-year check-ins. In the Federal Register notice, the Service acknowledges that the “5-year maximum permit term is unnecessarily burdensome for businesses engaged in long-term actions that have the potential to incidentally take bald or golden eagles over the lifetime of the activity.”
Applies practicability standard to all permits. Under current regulations, applicants for standard (non-programmatic) permits must reduce potential take to a level where it is “practicably” unavoidable, but applicants for programmatic permits must meet a higher standard (reducing take through the implementation of advanced conservation practices (ACP) to a level where remaining take is “unavoidable”). The Proposed Rule applies the “practicability” standard to all eagle take permits and removes the “unavoidable” standard from the permit program. In the Federal Register notice, the Service acknowledges “there is no sound reason to allow consideration of cost, technology, and logistics for some permits and not for others.”
Revises “practicable” definition. The Proposed Rule includes a new definition of “practicable.” It reads: “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.”
Removes requirement for ACPs. Under current regulations, applicants for programmatic permits are required to demonstrate that take is “unavoidable despite application of [ACPs].” Because the Proposed Rule eliminates the “unavoidable” standard and instead applies the practicability standard to all permits, the Proposed Rule eliminates the requirement for ACPs. Instead, applicants are required to demonstrate that the applicant has applied all appropriate and practicable avoidance, minimization, and compensatory mitigation measures to reduce impacts to eagles.
Modifies preservation standard. The Eagle Act’s “preservation standard” requires that any authorized take be “compatible with the preservation” of bald and golden eagles. In the preamble to the 2009 Rule, the Service defined the preservation as “consistent with the goal of maintaining stable or increasing breeding populations.” The Proposed Rule incorporates and modifies that standard, defining “preservation” to mean “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.”
Adds standardized requirements for compensatory mitigation. The current regulations do not include specific compensatory mitigation regulations. The Proposed Rule requirescompensatory mitigation where the permitted take is inconsistent with management goals (e.g., where take exceeds eagle management unit take thresholds). Where required, compensatory mitigation 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.”
Endorses in-lieu fee programs and eagle conservation banks. The Proposed Rule provides that compensatory mitigation may include “conservation banking, in-lieu fee programs, and other third-party mitigation projects or arrangements.” The Federal Register notice notes a Service preference that “applicants provide compensatory mitigation via a mitigation in-lieu fee program or eagle conservation bank” previously approved by the Service. According to the notice, the Service intends to facilitate the establishment of an in-lieu fee program.
Incorporates guidance. The Proposed Rule requires wind energy generation applicants to follow the steps in Appendix B of the Eagle Conservation Plan Guidance (ECPG) for site assessment and preconstruction surveys, and to utilize the Service’s fatality prediction model. The Proposed Rule also incorporates the ECPG’s local area population cumulative effects analysis into the permit issuance criteria, requiring such analysis as part of the Service’s review of each permit application.
Allows golden eagle take east of the 100th meridian. Current regulations prevent the Service from authorizing take of golden eagles east of the 100th meridian. The Proposed Rule allows the Service to issue permits for golden eagle take in the eastern United States if the take will be offset and the issuance criteria are met.
Adopts flyways as eagle management units. The Proposed Rule uses flyways as eagle management units but also uses a local area population cumulative take analysis.
Eliminates distinction between programmatic and standard permits. The Proposed Rule changes the name of “nonpurposeful take permits” to “incidental take permits” and eliminates the distinction between “standard” and “programmatic” permits. Permits will simply be “eagle incidental take permits” or “incidental take permits.”
Adds a five-year check-in fee. The Proposed Rule establishes an administration fee of $15,000 that each permittee will pay every five years to cover the cost of the five-year check-ins.
Allows for tiering to analysis in Programmatic Environmental Impact Statement (PEIS). The DPEIS notes that the Service anticipates “tiering subsequent [environmental assessments under NEPA] for site specific-projects” off the PEIS in order to “avoid repetitive discussions of the same issues previously addressed in th[e] PEIS.” As outlined in the Federal Register notice, the PEIS will cover the analysis of effects under NEPA if: (1) the project will not take eagles at a rate that exceeds (individually or cumulatively) the take limit of the eagle management unit (unless take is offset); (2) the project does not result in Service-authorized take (individually or cumulatively) in excess of 5% of the local area population; and (3) the applicant agrees to use a Service-approved offsetting mitigation bank to accomplish any required offset for the authorized mortality. Projects not meeting these criteria could still be authorized, but individual NEPA analysis would be required.
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