Locke Lord QuickStudy: U.S. Fish and Wildlife Service Proposes Revamp of Eagle Permit Rule – What You Need to Know

Locke Lord LLP
May 17, 2016
On May 6, 2016 the U.S. Fish and Wildlife Service (Service) published a proposed rule (the Proposed Rule) to revise its 2009 rule establishing the requirements for issuance of permits for “non-purposeful take” of bald and golden eagles (Eagle Permit Rule) under the Bald and Golden Eagle Protection Act  (16 U.S.C. 668-668d) (BGEPA).  The Proposed Rule was accompanied by a Draft Programmatic Environmental Impact Statement (DPEIS) analyzing the potential impacts of the Proposed Rule under the National Environmental Policy Act (NEPA), as well as a scientific report on the current population status and trends of bald and golden eagles (the Status Report).  The Status Report serves as the scientific basis for the proposed management approach and provides recommendations on sustainable take limits that are analyzed in the DPEIS.  

The current Eagle Permit Rule has been hampered by confusing terminology, ambiguous requirements, and overly stringent or limiting standards that have frustrated efforts by wind energy developers to obtain and the Service to issue eagle permits, such that only a single permit has been issued to date.  The changes in the Proposed Rule are intended to create a more efficient and consistent permitting program.  It seeks to do so with a variety of substantive changes, many of which should be genuinely helpful, but some of which raise important questions and concerns of their own.  In other cases the Service has missed or declined the opportunity to adopt needed reforms, potentially undermining the success of the Proposed Rule. This QuickStudy highlights some of the most significant changes in the Proposed Rule, focusing on the issues that wind energy developers need to know.

Expanded Availability of Eagle Take Permits
Based on the population data presented in the Status Report, the Proposed Rule would expand the availability of permits for both bald and golden eagles.  The annual nationwide take limit for bald eagles would increase from 1,103 eagles annually under the 2009 Eagle Permit Rule to 4,200 eagles annually. The take limit for golden eagles would not increase, remaining at zero unless compensatory mitigation is provided.  However, the Proposed Rule would authorize the issuance of permits for take of golden eagles east of the 100th meridian, which has been prohibited since the 2009 adoption of the Eagle Permit Rule.

Availability of 30-Year Permits
One of the most troubling limitations in the original Eagle Permit Rule was its limitation on the maximum duration of permits to five years.  Wind energy projects generally have 20-30 year lifespans and those that require eagle take coverage require it for their full operational life.  The lack of certainty regarding the availability or terms of a permit renewal raised serious concerns for both developers and their potential investors. The American Wind Energy Association (AWEA) lobbied hard against this limitation, and in 2013 the Service issued a rule extending the maximum duration of permits to 30 years.  However, in 2014 that rule was challenged by conservation groups, and in 2015 a federal court vacated the rule on grounds that the Service had not adequately analyzed the effect of the rule under NEPA.  

The Proposed Rule would once again make permits available with a 30-year duration, and that element of the rule is analyzed in the DPEIS.  However, the provision still comes with caveats that potential permittees must consider carefully.  First, while permits may be issued for 30 years, the Proposed Rule would require that the permit be reviewed every 5 years, at which time the Service will reassess fatality rates, the effectiveness of measures to reduce take, the level of compensatory mitigation, and the eagle’s population status.  As a result of the review, the Service could require a permittee to undertake additional conservation or mitigation measures beyond those originally contemplated if the measures are both reasonably practicable and likely to reduce risk to eagles.  It is possible that these additional measures could be significant enough to trigger a supplemental NEPA analysis and associated public comment period.  

The 5-year review process imposed in the Proposed Rule remains far more onerous than what is required for incidental take permits (ITPs) under the Endangered Species Act (ESA).  Service rules for ESA permits do not limit the maximum duration of permits, and rely on adaptive management measures in response to varying levels of effectiveness of the conservation measures, as well as specified responses in the event of foreseeable changed circumstances.  These measures and potential responses are spelled out in the habitat conservation plan (HCP) supporting the ITP, and No Surprises Assurances provide the permittee with assurances that it will not be required to incur additional expenses in the event of unforeseen circumstances.  There also is no risk of additional NEPA review during the term of an ITP absent a major amendment application.  While the availability of 30-year eagle take permits is a welcome development, and some of the differences are statutory in nature, the Service has not fully explained the basis for imposing greater restrictions on long-term eagle permits than it imposes on endangered species.  It is also worth noting that eagle permits under the Proposed Rule will be far costlier, with a $36,000 initial application fee, compounded by a $15,000 administrative fee every 5 years to cover the cost of each 5-year permit evaluation.

Adoption of New Terminology
The original Eagle Permit Rule established separate categories for “standard permits,” which authorize take of eagles in an identifiable timeframe and location, and “programmatic permits” which authorize take that is recurring and not in a specific, identifiable timeframe and/or location.  Recognizing that this terminology was inconsistent with other permit programs and a source of confusion, the Service eliminated the distinction between the two types of permits in the Proposed Rule.  The Service also dropped the cumbersome terminology “non-purposeful take” in favor of the more familiar term “incidental take.”  Under the Proposed Rule there would be a single type of permit available, referred to as an eagle incidental take permit.  These changes help establish greater consistency with the Service’s ITP program under the ESA.

Adoption of Practicability Standard
Under the 2009 Eagle Permit Rule, programmatic permits currently require implementation of advanced conservation practices (ACPs), which are defined as measures that represent the best available techniques to reduce eagle disturbance and ongoing mortality to a level where remaining take is “unavoidable.”  Applicants for standard permits are only required to reduce potential take to a level where it is “practicably unavoidable,” but the Service acknowledged that it is difficult to distinguish between these “unavoidable” standards.  The “unavoidable” standard is also a far more rigorous standard than the “maximum extent practicable” standard under the ESA, as “unavoidable” does not allow consideration of the cost of a conservation measure or its proportionality to the project’s impacts.  The Proposed Rule adopts the practicability standard for all eagle incidental take permits, requiring applicants to avoid and minimize impacts to eagles to the maximum extent practicable, where practicable is defined as “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.”  It is this change that warrants elimination of the distinction between standard and programmatic permits, which in turn eliminates the need for the concept of ACPs.  This change further brings the criteria for obtaining an eagle take permit more in line with the criteria for obtaining an ITP for endangered or threatened species under the ESA, resulting in a level of familiarity and understanding that should help facilitate the processing of eagle incidental take permits.  

Revision of the Preservation Standard to Focus on Local Area Populations
The BGEPA requires that any authorized take of eagles be “compatible with the preservation” of bald eagles and golden eagles.  This clause, referred to as the BGEPA preservation standard, was defined by the Service in the 2009 Eagle Permit Rule to mean “consistent with the goal of maintaining stable or increasing breeding populations.”  The Proposed Rule would revise this definition to “consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units (EMUs) and persistence of local populations throughout the geographic range of both species.”  To achieve this newly stated goal of persistence of local populations, the Proposed Rule incorporates a local area population (LAP) cumulative effects analysis, previously included in the Service’s Eagle Conservation Plan Guidance, into the permit issuance criteria.  In order to issue an eagle take permit the Service must find that cumulative authorized take does not exceed 5% of the LAP,  or alternatively, demonstrate why allowing take to exceed this 5% limit is still compatible with the preservation of eagles.  Take above 5% of the LAP can be authorized only if permit conditions would actually result in a reduction of take for currently operating projects or where compensatory mitigation is implemented to offset impacts to eagles within the LAP.  

The Service states in the preamble to the Proposed Rule that defining the eagle preservation standard in this way, and analyzing in the DPEIS the effects of take within both EMUs and LAPs, will reduce the analytical burden for each permit decision and allow the Service to make permitting decisions at an expedited rate.   In the DPEIS, the Service analyzed the effects of authorizing take of up to 5% of the LAP and determined that it is compatible with the preservation of eagles, which should allow for a streamlined tiered NEPA analysis for individual permits.  However, the incorporation of the LAP concept into the permit issuance criteria may limit the availability of permits in certain areas compared with the 2009 Proposed Rule, which could prove problematic.

The Service has also specifically indicated in the Federal Register notice that the DPEIS will cover an analysis of effects to eagles under NEPA for projects that (1) will not take eagles at a rate that exceeds (individually or cumulatively) the take limit of the EMU (unless take is offset); (2) would not result in authorized take (individually or cumulatively) in excess of 5% of the LAP; and (3) agree to use a FWS-approved mitigation bank to secure any required offset for the authorized mortality.   Projects that do not meet these three criteria can still obtain authorization, but would likely require additional individual NEPA review of their effect on eagles.  

The idea of streamlining the NEPA analysis for individual eagle take permits is a welcome one, as the NEPA review invariably adds significant time and expense to the permitting timeline.  However, the Proposed Rule does not provide any additional insight into how it intends the NEPA tiering process to work, what level of review or additional analysis will be required, and how long the process should take.  Further specificity on these issues would be a welcome addition to the eventual final rule.  Moreover, there currently are no Service-approved mitigation banks for eagle offsets, meaning that the idea of NEPA tiering may be purely theoretical for the next several years or more.  It would be far preferable if the mitigation bank requirement was dropped in the final rule in favor of approved types or categories of mitigation.  With such a change, and provided that additional NEPA analysis is required only for those projects that would exceed take limits at the EMU or LAP level, the use of a tiered NEPA process should result in a far more efficient and expeditious permitting process.  

Compensatory Mitigation is Not Always Required
The 2009 Eagle Permit Rule lacks specificity regarding when compensatory mitigation is required, stating that “[a]dditional compensatory mitigation will be required only (1) for programmatic take and other multiple take authorizations; (2) for disturbance associated with the permanent loss of a breeding territory or important traditional communal roost site; or (3) as necessary to offset impacts to the local area population.”  The Service acknowledges in the preamble to the Proposed Rule that it has required compensatory mitigation on a case-by-case basis somewhat inconsistently.  This has resulted in additional uncertainty during the permit review process and potential unequal treatment of applicants.  

To remedy this issue, the Proposed Rule includes standardized requirements for compensatory mitigation.   Specifically, the Proposed Rule requires compensatory mitigation where the permitted take is inconsistent with management goals (e.g., where authorized take exceeds the EMU take thresholds analyzed in the DPEIS or 5% of the LAP).  Since take limits for golden eagles are set at zero throughout the United States, all permits for golden eagle take must incorporate compensatory mitigation.  In contrast, compensatory mitigation for bald eagles would not be required so long as take levels remain below the EMU take limits analyzed in the DPEIS and cumulative take does not exceed 5% of the LAP.  

In addition to clarifying when compensatory mitigation is required, the Proposed Rule specifies that all compensatory mitigation must be implemented within the same EMU, and emphasizes the use of a broader range of mitigation options.  Under the current Eagle Permitting Rule the Service has required a high degree of confidence in the effectiveness of mitigation options.  In practice this has limited mitigation strictly to power pole retrofits.  In the preamble to the Proposed Rule, the Service indicates that it intends to expand mitigation options by “establishing and encouraging the use of conservation banks and in-lieu fee programs.”  The Service also indicates that it will consider more uncertain or risky compensatory mitigation measures provided the risk is accounted for through a mitigation accounting system that adjusts the amount of required mitigation in light of any uncertainty. 

When compensatory mitigation is required for long-term permits, the proposed management approach would require permittees to provide sufficient mitigation to offset predicted take over the first  5 years of project operation under the permit.  If no observed take occurs in the first 5 years, the permittee would not need to pay for any additional mitigation.  Similarly, if data demonstrates that eagle impacts are less than originally permitted, “unused” mitigation credits could be carried forward to the next 5-year review period.  The preamble to the Proposed Rule indicates that if compensatory mitigation will be required, the applicant must commit to the method and funding prior to permit issuance.  For long-term permits, it is unclear if this commitment must include funds for the entire permit term or simply the first 5 years of project operation under the permit – this is an issue that warrants clarification in the final rule.  Regardless, however, the flexibility provided in the Proposed Rule to allow applicants to pursue a wider variety of scientifically defensible mitigation measures may have a significant positive effect on the ability to meet the regulatory standard and obtain an eagle permit.

Missed Opportunities 
The above changes aside, the Service chose not to make meaningful changes to several aspects of the 2009 Eagle Permit Rule.  For example, one of the most controversial aspects of the Eagle Permit Rule and the subsequent Eagle Conservation Plan Guidance has been the required pre-construction eagle survey protocol and use of a Bayesian fatality prediction model to assess eagle risk and estimate take.  The Proposed Rule incorporates the Eagle Conservation Plan Guidance by reference and thus still requires companies to use the same survey protocols and fatality prediction model.  While the Service acknowledged that the fatality prediction model is considered by some to be too simplistic and conservative, it determined that use of standard protocols allows the Service to evaluate conservation programs consistently and is an essential component of the permitting process.  The Service’s decision not to adopt a more realistic model or expressly allow greater flexibility and consideration of different approaches is a missed opportunity that may prove to be a significant hindrance to the success of the framework set forth in the Proposed Rule in facilitating and expediting the issuance of eagle take permits.

Similarly, the Service chose not to adopt a revised definition for “low-risk” projects that could be applied across all EMUs.  That would have allowed it to provide for expedited permitting of qualifying projects without the need for extensive, pre-application surveys, which in turn would have allowed the Service and industry to focus their resources on projects with more significant impacts.  However, the Service indicated that it was unable to develop a suitable definition that would still result in accomplishing the conservation goals of the Proposed Rule. 

It is clear that the Service has recognized many of the fatal flaws in the original Eagle Permit Rule and made a genuine effort to address some of the biggest issues.  The changes to the eagle permitting program set forth in the Proposed Rule would expand the availability and duration of permits, replace the “unavoidable” standard for avoidance and minimization measures with a more achievable “maximum extent practicable” standard, and make those permits easier to obtain by offering greater clarity and flexibility in mitigation while potentially streamlining the NEPA process for individual permits.  However, the Proposed Rule falls short in several areas, most notably by failing to provide the same level of certainty and reliability offered by ESA incidental take permits due to the 5-year review process and the lack of No Surprises Assurances, by failing to address the overly conservative survey protocols and fatality estimation model, and by failing to establish a class of low-risk projects for which expedited permits could be made available.  
The Service is accepting comments on the Proposed Rule and the DPEIS for 60 days, with comments due by July 5th.  AWEA will be submitting comments on behalf of the industry, but individual companies are encouraged to submit their own comments as well.  For more information on these issues and other aspects of the Proposed Rule, please contact the authors.