This article comes from O’Melveny & Myers LLP and is authored by John D. Rennisen.
In 2009, the U.S. Fish and Wildlife Service (USFWS) implemented a five-year permit program under the Bald and Golden Eagle Protection Act (BGEPA) for the “take” of bald and golden eagles incidental to otherwise lawful activity. However, developers of wind energy projects quickly expressed concerns that the limited duration of the permits was inhibiting their ability to obtain financing.
Late last year, after a court struck down an expanded permit program that attempted to address those concerns, the USFWS issued a final rule authorizing the issuance of incidental take permits with terms of up to 30 years. The USFWS hopes that this move will aid the wind energy industry.
Although the bald eagle was removed (delisted) from the list of endangered and threatened wildlife in 2007, bald and golden eagles are protected under the BGEPA and Migratory Bird Treaty Act (MBTA), which prohibit the take of bald or golden eagles without a permit. The distinction is important, nonetheless, because, unlike the Endangered Species Act, the BGEPA and MBTA do not have citizen-suit provisions. As a result, any enforcement related to potential or actual eagle takes must come from the USFWS.
In 2009, the USFWS put into effect first-time permit rules under the BGEPA for the take of bald and golden eagles associated with, but not for the purpose of, otherwise lawful activity. Under the 2009 rule, the USFWS can issue “individual” permits authorizing instances of take when the take cannot practicably be avoided, and “programmatic” permits for up to five years for instances of take that are “reoccurring, [are] not caused solely by indirect effects, and that occur over the long term or in a location or locations that cannot be specifically identified.” Currently, there is no means to acquire an incidental take permit under the MBTA; however, the USFWS is unlikely to bring an enforcement action under the MBTA with respect to an eagle take permitted under the BGEPA.
After the U.S. District Court for the Northern District of California set aside a 2013 rule for incidental take permits with terms of up to 30 years, finding that the USFWS failed to conduct an adequate environmental review, on December 16, 2016, the agency issued a new 30-year permit rule. According to the USFWS, the availability of 30-year permits will “facilitate the responsible development of renewable energy and other projects designed to operate for decades” and “provide more certainty to project proponents and their funding sources.”
Previously, the USFWS announced the availability of its 2013 Eagle Conservation Plan Guidance, which supplements the agency’s 2012 Land-Based Wind Energy Guidelines by providing specific guidance for conserving bald and golden eagles in siting, constructing, and operating wind energy facilities. While the guidelines are voluntary, the USFWS considers them to be “the best practical approach for conserving species of concern,” and that following the eagle conservation plan guidelines will help project developers and operators comply with laws and regulations regarding the unintentional take of eagles. In addition, when exercising its enforcement discretion under the BGEPA and the MBTA, the USFWS will take into consideration whether the wind project developer/operator has adhered to the Wind Energy Guidelines.
The USFWS has issued very few five-year programmatic permits and has not issued any 30-year incidental take permits. While it is difficult to draw conclusions from the limited number of programmatic permits that have been issued, required mitigation measures have not significantly affected project operations, and have typically been limited to compensatory mitigation in the form of retrofitting high-risk power poles in accordance with Avian Power Line Interaction Committee guidelines. In the long run, the USFWS anticipates that the 30-year permit rule will benefit the financing of wind and other renewable energy projects. In the meantime, as project developers, equity investors, and financing parties become more familiar with the revised permitting framework, wind energy projects continue despite the risk of unpermitted future eagle takes.
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