Today, the U.S. Fish and Wildlife Service (“Service”) published notice in the Federal Register of a final rule amending its regulations authorizing permits for eagle incidental take and eagle nest take.  The final rule comes roughly a year and four months after the Service issued its proposed rule (discussed here) and includes most of the changes from the proposed rule.  Most notably, the Service has authorized general permits for certain activities where standard conditions can be met. In addition to the new general permit framework, the Service has adopted a number of other changes to overall requirements and processes, with the goal of increasing compliance by simplifying the permitting process.  Key changes in the final rule include:

General Permit for Wind Energy Facilities.  The final rule includes a general permit for wind energy facilities that are located in areas that are “low risk” to eagles.  For first-time applicants, whether a project is eligible for a general permit is based on eagle abundance and eagle nest proximity.  Specifically, all project components must be located within areas where the eagle relative abundance is below the regulatory threshold and must be located at least two miles from a golden eagle nest and 660 feet from a bald eagle nest.  To determine eligibility, the Service will maintain a mapping tool (here).  For projects that do not meet the general permit eligibility criteria, the Service will allow applicants to submit a specific permit application and request a letter of authorization to obtain a general permit.  In the notice, the Service estimates that “more than 80 percent of existing land-based wind turbines in the lower 48 States may be eligible for general permits.”  General permits will be valid for five years.Continue Reading U.S. Fish and Wildlife Service Publishes Final Rule Amending Eagle Permit Regulations

On September 30, 2022 the U.S. Fish and Wildlife Service (“Service”) published notice in the Federal Register of a proposed rule amending its regulations authorizing permits for eagle incidental take and eagle nest take. Although the proposed rule includes other proposed revisions, the most notable change is the Service’s proposal to create general permits for certain projects and activities. Under these general permits, applicants would register with the Service, pay the required fees, and certify compliance with general permit conditions. By making general permits available to certain activities and projects, the Service aims to remove administrative barriers, reduce costs, and make the process less confusing for applicants. For projects or activities that do not qualify for a general permit, individual or specific permits will remain available.

In the proposed rule, the Service proposes general permits for four types of qualifying projects or activities: wind energy generation projects, power line infrastructure, disturbance of breeding bald eagles, and bald eagle nest take. We discuss each proposed general permit in turn below.

Eagle Incidental Take Permit for Qualifying Wind Energy Projects. To encourage broader participation in the eagle permitting program by wind energy developers and operators, the Service is proposing a five-year general permit for certain qualifying wind energy projects. Eligibility is determined based on the relative eagle abundance in the project area. To be eligible, all turbines associated with the project must be located in an area with seasonal relative eagle abundance (based on eBird data) below the threshold amounts across five eagle “seasons.” The project must also be greater than 660 feet from a bald eagle nest and two miles from a golden nest to qualify under the general permit.

For existing wind energy projects, the proposed rules would allow project operators to request coverage under the wind energy general permit even when a portion of the project is within an area that does not fall below the applicable relative abundance thresholds. The Service anticipates “issuing a letter of authorization for most existing projects where only a small percentage of existing turbines do not qualify under the relative abundance thresholds or when an existing project has conducted and provides monitoring data demonstrating fatality rates consistent with those expected for general turbines.”

The proposed wind energy general permit requires permittees to monitor eagle take but allows project proponents to use onsite employees rather than relying on third-party monitors. If a project is covered by a general permit and has four eagle fatalities during the permit term, the project will be required to implement adaptive management measures and seek an individual permit at the expiration of the general permit.

The proposed application fee for the wind energy general permit is $500, and the proposed administrative fee is $525 per turbine per year or $2,625 per turbine for a five-year permit. Under the current proposal, wind energy general permits would be valid for five years.

Eagle Incidental Take Permit for Power Lines. The Service is also proposing a general permit option for power line infrastructure. To qualify for coverage under the power line general permit, the applicant must, in addition to meeting other general requirements: (1) ensure that new construction is electrocution-safe for bald and golden eagles; (2) implement a reactive retrofit strategy following all eagle electrocutions; (3) implement a proactive retrofit strategy to retrofit a portion of existing infrastructure during each general permit term; (4) implement an eagle collision response strategy; (5) incorporate information on eagles into project siting and design; and (6) implement an eagle shooting response strategy (aimed at addressing illegal shooting of eagles on power lines). The proposed application fee for the power line general permit is $500 and the proposed administration fee is $5,000 for each state for which the power-line entity is seeking authorization. Like the wind energy general permits, under the current proposal, power line general permits would be valid for five years.
Continue Reading U.S. Fish and Wildlife Proposes Revisions to Eagle Permit Rules, Including General Permits for Qualifying Wind Energy Projects, Power Lines, and Disturbance and Nest Take

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.
Continue Reading U.S. Fish and Wildlife Service Issues Final Revised Eagle Rule

On January 19, 2016, the U.S. Department of Justice (DOJ) dropped its Ninth Circuit appeal of U.S. District Judge Lucy Koh’s ruling that set aside the U.S. Fish and Wildlife Service’s (“Service”) rule to extend the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act (“Eagle Act”) to 30 years for failure to comply with the National Environmental Policy Act (“NEPA”).

As we discussed in our previous post,  in August 2015 the court set aside the 30-year rule on NEPA grounds, concluding that the Service had “failed to show an adequate basis in the record for deciding not to prepare an EIS–much less an EA–prior to increasing the maximum duration for programmatic eagle take permits by sixfold.” The Court found the Service’s reliance on certain U.S. Department of Interior categorical exclusions misplaced. According to the Court, the Service failed to establish that the decision was “administrative” or “procedural” in nature and failed to address concerns by its own experts that the rule revisions might have highly controversial environmental effects.  Importantly, however,  the court’s decision to set aside the 30-year rule only applied to the 30-year permit tenure provision of the 2013 rule amendments. Other components of the 2013 rule amendments were left intact, including the 5 year permit renewal and assignment provisions.
Continue Reading U.S Fish and Wildlife Service Opts Not to Appeal 30-Year Eagle Rule Decision, Focuses on Development of Eagle Permitting Program

As we discussed in this post from May 2014, the American Bird Conservancy (“ABC”) in 2014 filed a lawsuit challenging the U.S. Fish and Wildlife Service’s (“USFWS”) 2013 revisions to its eagle permit rule, alleging violations of the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”). ABC’s challenge related to the revised eagle permit rule that was issued in December 2013 and that extended the maximum term for programmatic Eagle Take Permits under the Eagle Act to 30 years (the “Final 30-Year Rule”), subject to a recurring five-year review process throughout the permit life. Under the previous rule, the maximum term for programmatic permits for incidental “take” of bald and golden eagles was five years.
Continue Reading Court Invalidates 30-Year Permit Provisions of U.S. Fish and Wildlife Service’s Eagle Permit Rule on NEPA Grounds

On Friday, June 20, 2014, the U.S. Fish and Wildlife Service (“Service”) announced its plans to engage the public in a review of how permits are issued for the non-purposeful take of bald and golden eagles under the Bald and Golden Eagle Protection Act (“Eagle Act”). This process is a continuation of the Advanced Notice

On April 30, 2014, the American Bird Conservancy (“ABC”) sent a Notice of Intent to Sue (“Notice”) to Secretary of the Interior Sally Jewell and Director of the U.S. Fish and Wildlife Service (“Service’) Dan Ashe, alleging violations of the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), and the Bald and Golden

Today the U.S. Fish and Wildlife Service issued for public inspection its final rule to extend the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act to 30 years, subject to a recurring five-year review process throughout the permit life. The final rule will be published in the Federal Register