Today the U.S. Fish and Wildlife Service (Service) published notice in the Federal Register of a long-anticipated final rule revising its eagle permitting regulations (Revised Eagle Rule). Concurrent with the Revised Eagle Rule, the Service issued a Final Programmatic Environmental Impact Statement (PEIS) analyzing the Eagle Rule revision under the National Environmental Policy Act (NEPA). Although we are still in the process of evaluating the entire package and have concerns with certain aspects of the Revised Eagle Rule, many of the proposed changes represent a step forward for applicants seeking regulatory certainty through the eagle permitting process. Here’s a quick snapshot of the changes:
(Re)extends maximum permit term to 30 years. As we discussed in a previous blog 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 Revised Eagle 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 “[t]he 5-year maximum duration for programmatic permits appears to have been a primary factor discouraging many project proponents from seeking eagle take permits. Many activities that incidentally take eagles due to ongoing operations have lifetimes that far exceed 5 years. We need to issue permits that align better, both in duration and the scale of conservation measures, with the longer-term duration of industrial activities, such as electricity distribution and energy production. Extending the maximum permit duration is consistent with other Federal permitting for development and infrastructure projects.”
Applies practicability standard to all permits. Under the previous rule, applicants for standard (non-programmatic) permits were required to reduce potential take to a level where it was “practicably” unavoidable, but applicants for programmatic permits were required to meet a higher standard (reducing take through the implementation of advanced conservation practices (ACP) to a level where remaining take is “unavoidable”). The Revised Eagle Rule applies the “practicability” standard to all eagle take permits and removes the “unavoidable” standard from the permit program. Thus, all permits will contain the standard that take must be avoided and minimized to the maximum degree practicable.
Revises “practicable” definition. The Revised Eagle 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 Revised Eagle Rule eliminates the “unavoidable” standard and instead applies the practicability standard to all permits, the Proposed Rule eliminates the requirement for ACPs.
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 goals of maintaining stable or increasing breeding populations.” The Revised Eagle 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 the persistence of local populations throughout the geographic range of each species.”
Adds standardized requirements for compensatory mitigation. The previous rule did not include specific compensatory mitigation regulations. The Revised Eagle Rule requires compensatory 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 the eagle population to grow by an equal or greater amount.” Compensatory mitigation will be assessed at a 1.2:1 ratio for golden eagles.
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.”
Adds Minimal Pre-Construction Survey Standards for Wind Projects. The Proposed Rule would have required wind energy generation applicants to follow certain steps in the appendices of the Eagle Conservation Plan Guidance (ECPG) for site assessment and preconstruction surveys, and to utilize the Service’s fatality prediction model. There was significant opposition to this portion of the Proposed Rule, and the Service modified its proposal slightly. Rather than incorporate the ECPG appendices into the rule by reference, the Revised Eagle Rule includes minimal pre-construction survey standards for take permits for wind facilities that, according to the Service, “represent the minimum level of information and the least sophistication in sampling design that will be acceptable for the Service to evaluate and decide whether to issue an eagle take permit for a wind facility.” In addition, the Service will not require permit applicants to use the Service’s fatality prediction model.
Allows golden eagle take east of the 100th meridian. The previous rule prevented the Service from authorizing take of golden eagles east of the 100th meridian. The Revised Eagle 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 Revised Eagle Rule uses flyways as eagle management units (EMU) but also uses a Local Area Population cumulative take analysis.
Eliminates distinction between programmatic and standard permits. The Revised Eagle 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 Revised Eagle Rule establishes an administration fee of $8,000 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 PEIS 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 and to focus on the actual issues ready for decision.” The PEIS notes that, “[f]or the most part, when permitting projects that (a) will not take eagles above the EMU take limits (unless it is offset); (b) will not result in cumulative authorized take within the LAP exceeding 5%; and (c) will fulfill their compensatory mitigation requirements via methods that will offset the take (and for which the necessary metrics to achieve that offset have been analyzed and established), subsequent environmental analyses under NEPA would need to only summarize the issues discussed in the PEIS and incorporate by reference discussions from the PEIS.” Notably, however, the screening form for use by project proponents to “determine if a project falls under the scope of th[e] PEIS” has yet to be developed.
Requires Monitoring by Independent Third Parties. Although the Revised Eagle Rule notes that the frequency and duration of required monitoring will depend on the form and magnitude of anticipated take and the objectives of conservation measures, it provides that, for all permits with durations longer than 5 years, monitoring must be conducted by qualified, independent entities reporting directly to the Service. For permits with durations shorter than five years, the Service may require independent monitoring on a case-by-case basis.