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NEPA/BGEPA: Fish and Wildlife Service May Overhaul Rule Permitting Incidental Take of Eagles

July 1, 2014

Just as the United States Fish and Wildlife Service (USFWS) issues its first permit under the Bald and Golden Eagle Protection Act (BGEPA) [1] authorizing a wind energy project to “take” golden eagles over the next five years, the agency also has announced that it intends to conduct a comprehensive review of its eagle permitting program under the National Environmental Policy Act (NEPA).[2]

The questions USFWS intends to address during this review could result in a more workable permitting regime, such as by replacing the “no net loss” and “unavoidable take” concepts of the existing rules with more flexible, practicable standards. However, the outcome of the NEPA process is, by its nature, uncertain and will take time (USFWS optimistically projects 18 months). This raises questions regarding how BGEPA permits will be processed in the interim. USFWS has received at least 13 programmatic permit applications, and is in advanced pre-application discussions with multiple wind energy projects. The agency’s stated intention to develop a standardized mitigation regime for BGEPA permits will also require close attention. Finally, it is an open question as to whether USFWS can make changes to the permitting rules flexible enough to avoid additional rule revisions in the future. The existing regulations are less than five years old, and yet they have already had a storied and complicated life.

USFWS will host scoping meetings in five cities during a 90-day public comment period that ends on September 22, 2014. USFWS aims for a draft NEPA document in early 2015, followed by a final NEPA document and promulgation of revised permitting rules in late 2015.

1. Background

BGEPA prohibits “take” of bald and golden eagles except as authorized under regulations prescribed by the Secretary of the Interior (Secretary).[3] On September 11, 2009, after preparing an Environmental Assessment (EA) and issuing a Finding of No Significant Impact under NEPA, USFWS published a final rule authorizing take of eagle nests and the non-purposeful take of bald and golden eagles associated with an otherwise lawful activity (Permit Rule).[4]

The Permit Rule established two non-purposeful take permit regimes; one for standard permits authorizing individual instances of take that cannot be practicably avoided, and a second for programmatic permits authorizing recurring take that is unavoidable even after implementation of “advanced conservation practices”.[5] The Permit Rule authorized programmatic permits for a term of up to five years.[6]

In February 2011, USFWS published a draft Eagle Conservation Plan guidance document intended to show how to prepare an Eagle Conservation Plan in furtherance of a BGEPA permit request (Eagle Guidance).[7] USFWS received extensive comment. Renewable energy developers – wind energy developers in particular – used this opportunity to request extension of the programmatic take permit term from five to 30 years to better correspond to the operational life of renewable energy projects and thereby provide greater certainty for potential project financiers and investors.[8] However, members of the environmental community strongly recommended retaining the five year rule, asserting persistent uncertainty regarding the effects of wind projects on eagles and the need for continued public involvement.

On April 13, 2012, USFWS initiated two additional rulemakings, a proposed rule to extend the maximum term of programmatic permits from five to 30 years (Duration Rule), and, separately, an Advance Notice of Proposed Rulemaking (ANPR) requesting input on all other aspects of the 2009 non-purposeful take regulations except for permit duration.[9]

USFWS issued a substantially revised, final version of the Eagle Guidance in May 2013 and, on December 9, 2013, issued the final Duration Rule pursuant to a categorical exclusion under NEPA.[10] The final Duration Rule included an additional provision for the streamlined review of “low-risk” programmatic permits where an applicant could demonstrate a risk of less than 0.3 eagle mortalities per year.[11]

During this time, USFWS initiated a series of eagle research initiatives with the United States Geological Survey and other agencies, in large part to provide baseline information for future BGEPA permitting decisions.[12] Some of those studies are now complete.

On June 19, 2014, the American Bird Conservancy made good on a long-standing threat by filing a complaint for declaratory and injunctive relief against adoption of the final Duration Rule.[13] The complaint alleges that USFWS and the Secretary violated NEPA by issuing the final Duration Rule pursuant to a categorical exclusion instead of an EA or Environmental Impact Statement (EIS).[14] The complaint also alleges that the Duration Rule violates BGEPA in contravention of its preservation goals and violates the Administrative Procedure Act as an arbitrary and capricious “reversal of position”.[15]

2. USFWS’s Proposed BGEPA Rule Revision

On June 23, 2014, USFWS issued a Notice of Intent (NOI) for the preparation an EA or EIS to support a full-scale reassessment of the agency’s eagle permitting program.[16] The NOI says that agency staff who have been implementing the permit regulations have identified “a number of priority issues for evaluation,” including:

  • Eagle population management objectives;
  • Programmatic permit conditions;
  • Compensatory mitigation; and
  • Evaluation of the individual and cumulative effects of low-risk (or low-effect) permits.[17]

The NOI started a 90-day comment period during which USFWS will host public scoping meetings in Sacramento, Minneapolis, Albuquerque, Denver, and Washington D.C.[18] The public comment period ends on September 22, 2014.[19] USFWS aims for a draft NEPA document in early 2015, followed by a final NEPA document and promulgation of revised regulations in late 2015.[20]

The following summarizes key aspects of the permitting program that USFWS intends to reassess over the course of the NEPA review.

a. Management Objectives

The eagle management objective under the existing Permit Rule is to “manage populations consistent with the goal of maintaining and increasing breeding populations over 100 years.”[21] Under this standard, take of bald eagles is limited at five percent of estimated annual productivity.[22] Due to a lack of data demonstrating the extent to which golden eagle populations could absorb take, the Permit Rule set a zero take threshold for the species, meaning that any take of a golden eagle must be equally offset by compensatory mitigation, resulting in “no net loss”.[23]

USFWS intends to consider a range of alternatives to the eagle management objective through the NEPA process, ranging from a qualitative standard, such as “to not meaningfully impair the bald or golden eagle’s continued existence,” to a specific, quantitative take limit for each Eagle Management Unit as informed by newer, improved survey information developed since 2009.[24]

b. Programmatic Permits: Duration, “Unavoidable Take”, and “Low-Risk”

The NEPA process initiated by the NOI appears intended to further the broad rulemaking effort started with the ANPR in 2012. While the ANPR expressly excluded permit duration because that issue was the focus of the separate Duration Rule, USFWS has since decided to use this most recent NEPA process to “[f]urther analyze the effects of longer term nonpurposeful take permits,” apparently to address opposition to the Duration Rule.[25] Given that USFWS also has indicated in its scoping materials that “30 years is the appropriate maximum term for programmatic permits,” this latest round of NEPA review may serve as a vehicle for reinforcing the Duration Rule’s rationale.[26]

USFWS also intends to revise the definition of “low-risk” to include projects with higher take probabilities than the current 0.3 eagles per year standard, which, in the words of USFWS, is so low that “it covers only those projects where take is basically negligible”.[27] The extent of the increase will largely depend on the results of the cumulative effects analysis of the NEPA review.[28]

Finally, and most significantly, USFWS will consider eliminating the “unavoidable take” standard for issuing programmatic permits and replacing it with a less stringent requirement “that all permittees take all practicable measures to avoid and minimize take of eagles”.[29]

c. Compensatory Mitigation

To date, power pole retrofits to reduce eagle mortalities by electrocution have been the most common form of compensatory mitigation contemplated by USFWS in exchange for eagle take authorization.[30] Other potential approaches include habitat preservation, construction of nest platforms, lead abatement, carcass removal, in lieu fees, and funding of conservation programs.[31]

USFWS intends to use the NEPA process to identify and evaluate a suite of uniform, scalable compensatory mitigation measures for codification in the revised rule.[32] USFWS seeks input on when and how much compensatory mitigation should be required (e.g., for any authorized take versus only if take thresholds are exceeded), as well as the kinds of mitigation that should be used.[33] USFWS will also explore the establishment of mitigation funds.[34]

In parallel with this effort, USFWS is actively promoting a new, coordinated public-private eagle research program in which the USGS and USFWS will support research on eagle population dynamics and basic biology while the National Fish and Wildlife Foundation (NFWF) funds eagle take mitigation research and the development of Advanced Conservation Practices.[35]

To that end, NFWF hopes to obtain research financing through a recently established National Bald and Golden Eagle Research Fund and a Mojave and Sonoran Desert Fund.[36] NFWF also proposes to create advisory committees (staffed in part by industry scientists) for the selection of research projects.[37] USFWS plans to seek financial support for the NFWF funds through industry contributions, settlement agreement community service, and federal and state agency support.[38] It is likely that the NEPA document for the proposed permitting rule revision will include payment of in-lieu fees to NFWF as a form of standardized compensatory mitigation.

3. Implications

The issues that USFWS intends to evaluate through the NEPA process (and the rulemaking that may follow) go to the core of the eagle permitting program. Changing the program elements referenced by USFWS in the NOI could eventually result in a more flexible programmatic permitting regime. For example, applying a more realistic metric for identifying “low risk” projects and replacing the rigid “no net loss” and “unavoidable take” concepts with standards that give USFWS more discretion in its permitting decisions could improve implementation of the program. Likewise, a standardized, front-loaded compensatory mitigation framework with in-lieu fees could also create greater certainty and perhaps a faster permitting process as well.

But while prospective permittees are likely to support rule changes that would provide greater flexibility and wider agency discretion, wildlife advocates are just as likely to press USFWS to narrow the regulations in the same respects. Because the alternatives considered in the NEPA document are likely to cover both sides of the spectrum on each of the major issues identified in Section 2 above, it is also possible (but perhaps unlikely) that USFWS may adopt permitting requirements at the end of the process that are more stringent than those in effect today.

The inherent uncertainty of the NEPA process, and the lack of consensus over how to change the permitting program, ushers in a new period of uncertainty that will continue until the NEPA process is concluded and any revised regulations are adopted – a process that the agency acknowledges could take 18 months (and presumably longer, should the Agency decide to prepare an EIS). This may delay the availability of eagle permits, or may open any permits that are issued in the interim to collateral attack, depending on how such permits are structured and how the NEPA and rulemaking processes proceed. Meanwhile, USFWS has begun to actively enforce BGEPA and the Migratory Bird Treaty Act (MBTA).[39] If enforcement is intended to encourage projects to seek permits, then that objective is undercut by the uncertainty fostered by the NOI and planned rulemaking process.

USFWS could minimize some of this uncertainty by proposing clear “grandfathering” rules in the draft NEPA document and subsequent regulations, much like those of the Bureau of Land Management’s Solar Energy Program and more recent iterations of California’s proposed Desert Renewable Energy Conservation Plan. For example, projects might have the option of remaining subject to the existing permitting regime as long as their applications are submitted before proposal or adoption of the new regulations, even if the permits issue after the new rules take effect. Providing the option – but not the requirement – to conform to the new permit rules would at least give those projects in the permitting pipeline a measure of certainty in an otherwise unstable setting.

The agency’s intent to develop a uniform approach to mitigation also could undercut flexibility created by other changes to the program. Much like squeezing a balloon, imposing more flexible permitting rules on one end of a large-scale regulatory process can sometimes result in overly stringent and inflexible mitigation requirements at the other end. However, the NOI suggests the USFWS recognizes that risk, as it suggests that mitigation be scalable as well as standardized. To be workable, any standardized mitigation proposals will need to be sufficiently scaled, tiered and qualified to avoid a one-size-fits-all approach.

The apparent plan of USFWS to use settlement agreements as a tool to provide NFWF with research funds also is highly unlikely to encourage industry participation. The only settlement announced to date was reached under the MBTA's criminal provisions. Companies are likely to resist admission to criminal violations of the MBTA or BGEPA. The aggressive pursuit of settlements by USFWS may not foster the kind of collaborative relationships envisioned by the Eagle Guidance that are more likely to contribute to sound eagle conservation decisions.

The NOI also indicates that USFWS will consider replacing the current “no net loss” golden eagle management objective with either a qualitative standard or discrete numeric take limits for each Eagle Management Unit. While unit-specific limits are likely to better reflect the most recent population data and would present a marginal improvement over the current “no net loss” standard for golden eagles, unit-specific limits also would likely be rendered obsolete by new data in the future. Adopting a rule that allows the Agency to adjust to changes in baseline data over time and across geographies makes sense, but not if that responsiveness can only be achieved through constant rule revisions. This suggests that a qualitative standard would be a better approach.

4. Conclusion

USFWS has opened a pathway for material improvements to its eagle permitting program through the June 23 NOI and the process that will follow. It also has introduced substantial uncertainty for pending permit applications, which is complicated by the Agency’s stepped-up effort to enforce BGEPA and the MBTA. Prospective BGEPA permittees would be well-advised to actively participate throughout the NEPA process (and any rulemaking that follows).

[1] 16 U.S.C. § 668 et seq.

[2] 79 Fed.Reg. 35564 (June 23, 2014).

[3] 16 U.S.C. § 668a.

[4] 74 Fed.Reg. 46836 (Sep. 11, 2009); see 50 C.F.R. § 22.26. The Permit Rule defines “take” to include “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb.” 50 C.F.R. § 22.3

[5] 50 C.F.R. § 22.3. The Permit Rule defines “advanced conservation practices” as “scientifically supportable measures that are approved by the Service and represent the best available techniques to reduce eagle disturbance and ongoing mortalities to a level where remaining take is unavoidable.” Id.

[6] 74 Fed.Reg. 46878 (Sep. 11, 2009).

[7] 76 Fed.Reg. 9529 (Feb.18, 2011).

[8] See, 78 Fed.Reg. 73705 (Dec. 9, 2013).

[9] 77 Fed.Reg. 22267 (April 13, 2012); 77 F.R. 22278 (April 13, 2012).

[10] 78 Fed.Reg. 25758 (May2, 2013); 78 Fed.Reg. 73704 (Dec. 9, 2013).

[11] 50 C.F.R. 13.11(d)(4), fn. 2.

[12] U.S.F.W.S., http://eaglescoping.org/research (last visited June 27, 2014).

[13] Complaint for Declaratory and Injunctive Relief, Deborah Shearwater et al. v. Dan Ashe, et al., No. 14-cv-02830 (N.D.Cal. June 19, 2014), available at American Bird Conservancy, http://www.abcbirds.org/PDFs/EagleRuleComplaintFiled.pdf (last visited June 27, 2014).

[14] Id. at 20.

[15] Id. at 21.

[16] 79 Fed.Reg. 35564 (June 23, 2014).

[17] Id. at 35566.

[18] Id. at 35564.

[19] Id.

[20] David Cottingham, Sr. Advisor to Dir. of. U.S.F.W.S., Eagle Rule Revision and Research, Presentation at AWEA Windpower 2014 (May 3, 2014).

[21] 79 Fed.Reg. 35564, at 35565 (June 23, 2014).

[22] Id.

[23] Id. at 35565-35566.

[24] Id. at 35566.

[25] Id.

[26] U.S.F.W.S., http://eaglescoping.org/topics (last visited June 27, 2014).

[27] Id.

[28] Id.

[29] Id.

[30] U.S.F.W.S., http://eaglescoping.org/compensatory-mitigation (last visited June 27, 2014).

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] David Cottingham, Sr. Advisor to Dir. of. U.S.F.W.S., Eagle Rule Revision and Research, Presentation at AWEA Windpower 2014 (May 3, 2014).

[36] Id.

[37] Id.

[38] Id.

[39] See Recent Developments Regarding Avian Take at Wind Farms, Marten Law Environmental News (Jan. 27, 2014).

 

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