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On May 4, the U.S. Fish and Wildlife Service (FWS) released a proposed rule to revise its eagle permitting program (Rule Revision) under the Bald and Golden Eagle Protection Act.

The Rule Revision is an improvement over the existing rule, as it would reestablish the 30-year permit term; propose a more realistic, “practicable” threshold for adequate avoidance and minimization measures; and create an in-lieu mitigation fee program. These developments may come at a price, however, particularly through a heavier emphasis on local effects, higher compensatory mitigation ratios and a more searching five-year review standard.

The following outlines key provisions of the Rule Revision and discusses its implications for the wind industry.

Thirty-year incidental take permits. The present maximum term for eagle permits is five years because a California Federal District Court struck down the original 30-year duration rule in August 2015 for a lack of adequate environmental review under the National Environmental Policy Act (NEPA).

The Rule Revision would reinstate the 30-year maximum term – this time with the support of an Environmental Impact Statement (EIS) – to allow permits of up to 30 years with five-year permit evaluations. But, although the original 30-year rule limited five-year conservation measure adjustments to those contemplated at the time of permit issuance, the Rule Revision does not.

Restoration of the 30-year duration rule is a clear, positive step for the wind industry because it removes the risk perceived by financiers of having to renew a permit every five years. This is somewhat hindered, however, by the continuation of the duration rule’s five-year review requirement and, now, by the Rule Revision’s proposal to further tighten that review by allowing the FWS to impose entirely new, unanticipated avoidance and minimization measures every five years. Working with the FWS to define limits up front, in the original permit, will, therefore, be important.

Given that the original 30-year duration rule was challenged in court, applications for long-term permits beyond five years may stall until the Programmatic EIS underlying the Rule Revision is tested in court. The thoroughness of the FWS’ responses to comments on the draft EIS from third parties will, therefore, be particularly important.

New, “practicable” avoidance standard. Under the current rule, programmatic permits are conditioned upon implementation of advanced conservation practices (ACPs), representing the “best available techniques” to reduce eagle take to a level where remaining take is “unavoidable.”

Recognizing the unavoidable standard as impractical, the FWS now proposes to replace both it and the ACP concept with a new standard requiring implementation of all “practicable” measures to reduce impacts to eagles.

This change should make it easier for wind companies to obtain eagle permits without having to commit to excessive or unproven minimization measures, such as radar systems, which the FWS itself admits are currently impracticable.

New, more local eagle preservation standard. The Rule Revision would mirror the FWS’ 2013 Eagle Conservation Plan Guidance (Eagle Guidance) by changing the 2009 eagle preservation standard to increase protections at the local scale.

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To implement this new preservation standard, the FWS would codify the local area population (LAP) analysis framework of the Eagle Guidance. Authorized cumulative take rates would be limited to no more than 5% of each LAP, where the population of the LAP is estimated based on the average population density of the eagle management unit (EMU) within which the LAP is located. A LAP analysis would be required for each permit application. The 5% limit could only be exceeded if doing so promoted the preservation of eagles, such as through the application of compensatory mitigation within the LAP.

This greater emphasis on protecting local populations could increase compensatory mitigation burdens by converting a voluntary LAP standard into a mandatory one. The market for compensatory mitigation could be severely constrained where cumulative takes exceeded 5% if, as appears to be the case in such instances, mitigation had to be found within the applicable LAP rather than within the larger EMU.

No “low risk” permit. The Rule Revision would eliminate the “low risk” permit concept, acknowledging that the low-risk standard of 0.3 takes per year is impossible to meet. That said, the FWS is still willing to entertain the concept if presented with sufficient evidence of a reasonable standard.

One type of incidental take permit. The FWS proposes to replace the term “nonpurposeful take” with “incidental take” and do away with the distinction between standard (i.e., one-time) take permits and programmatic take permits. Only one permit, an incidental take permit, would remain for incidental take of eagles.

Nationwide golden eagle take program. The Rule Revision would also allow golden eagle incidental take permits east of the 100th Meridian for the first time, thereby expanding the permit program (and, practically speaking, FWS enforcement) across the eastern half of the country.

Legacy takes. Projects that have caused eagle takes since the eagle, rule was first adopted in 2009 would be subject to the FWS’ eagle take “settlement agreement” template. Such “legacy” takes would have to be resolved, or be in the process of resolution, for a take permit to be issued.

This is a significant development because it codifies the FWS’ emerging practice into a condition of permit issuance. Resolution of legacy takes would be standard under the Rule Revision.

Prosecutorial discretion. In the preamble to the Rule Revision, the FWS declines requests for a process that would protect pending permit applicants from prosecution, citing a lack of resources. However, the preamble does state, “If project proponents are engaged in the permitting process in good faith … they should have a reasonable expectation that any take … will have a low priority for enforcement by the Service.”

This should afford a degree of comfort to those wind projects in operation before a permit is issued. But the FWS could take the further step of categorically protecting all applicants pursuing a permit in good faith. A good-faith determination would impose a negligible burden on those already administering the application. If the FWS is truly serious about trying to reduce golden eagle mortality rates by encouraging more permit applications, then such protections seem to be in everyone’s interest.

Compensatory mitigation. Up until now, power pole retrofits have been the only form of compensatory mitigation available to permit applicants. The Rule Revision would broaden the field by creating conservation banks and in-lieu fee programs. This is a welcome and necessary change.

However, it remains an open question as to whether the FWS can create these programs in a timely manner. Compensatory mitigation at an offset ratio of greater than 1:1 would be required of any take in excess of applicable take thresholds. The FWS would set an annual take threshold of 4,200 for bald eagles – an almost four-fold increase since 2009. The take threshold for golden eagles would remain at zero. Although the Rule Revision would focus on take occurring within a LAP, compensatory mitigation would be available outside the LAP within the larger applicable EMU.

Holders of 30-year permits would have to fund compensatory mitigation in five-year increments, with mitigation adjustments made every five years. No additional mitigation would be required if no take occurred within the first five years of the permit. If less-than-anticipated take occurred, permittees could “carry forward” unused compensatory credits to the next five-year review period.

The repeated emphasis on mitigation ratios greater than 1:1 may run the risk of a constitutional violation. The FWS justifies higher ratios as necessary to ensure both authorized and unauthorized take occurs at sustainable levels. But mitigation lacking “rough proportionality” with the impacts of a project can violate the takings clause of the Fifth Amendment. That could be the case here, as the FWS acknowledges deliberately overestimating take for roughly 80% of issued permits but does not appear to have created a mechanism for reimbursement if the first five years do not result in take.

NEPA review. The FWS intends NEPA review of eagle take permits to rely solely on the Programmatic EIS prepared for the Rule Revision, and avoid the need for additional NEPA review, if the following standards are met: The project will not take eagles at a rate that exceeds, individually or cumulatively, the take limit of the EMU unless such takes are offset; the project does not result in individual or cumulative authorized take in excess of 5% of the LAP; and the applicant agrees to use an FWS-approved mitigation bank to offset authorized mortalities.

Projects that don’t meet these criteria would require an individual NEPA review. Individual review could also be required if the FWS determines unpermitted take within the LAP to be excessive.

The possibility of avoiding additional NEPA review is promising, although the practice will face scrutiny from opposing interests. Robust documentation of NEPA adequacy at the permit level will be important.

The Rule Revision is a welcome improvement over the existing permitting program, although it is not without some areas of concern. When viewed in a larger context, the Rule Revision is the central component of an emerging, comprehensive wind industry “playbook” for the incidental take of bald and golden eagles. The Rule Revision and its supporting environmental documentation, the Duke and PacifiCorp settlements of 2013 and 2014, and the EDF Renewable Energy “template” agreement of 2014 all combine to outline an enforcement framework that did not exist three years ago. This framework reduces uncertainty for the wind industry, but, as is often the case, greater regulatory certainty can entail tighter restrictions.

 

Andrew C. Bell is a partner at law firm Marten Law. He can be reached at abell@martenlaw.com.

Environmental Permitting

Eagle Permitting Rule To Be Overhauled

By Andrew C. Bell

The U.S. Fish and Wildlife Service’s restoration of the 30-year duration rule helps to further reduce uncertainty but could entail tighter restrictions.

 

 

 

 

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