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Volume XII, Number 334

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USFWS Tries Again to Make Eagle Take Permitting Process Work for Stakeholders and Wildlife

On September 30, the US Fish and Wildlife Service (USFWS or Service) published proposed rule that would revise the regulations governing the issuance of eagle take permits (ETPs) under the Bald and Golden Eagle Protection Act.  87 Fed. Reg. 59,598 (September 30, 2022). In the preamble to the proposed rule, the Service acknowledges that its current ETP regulatory process, first established in 2009 and revised in 2016, is not working as intended.  In particular, the Service notes that “[w]hile there are more than 1,000 wind-energy projects on the landscape, the Service has received fewer than 100 applications from those projects and has currently issued only 26 permits since the promulgation of the 2016 Eagle Rule.”  87 Fed. Reg. at 59,602.

The preamble explains that the proposed revisions are intended “to increase the efficiency and effectiveness of permitting, facilitate and improve compliance, and increase the conservation benefit for eagles.”  87 Fed. Reg. at 59,598.  The proposed rule would revise some of the requirements for individual permits, and create a new program of general permits for certain activities. 

Revisions to Regulatory Requirements for “Specific” Permits

USFWS proposes to make two primary changes to the regulatory requirements that apply to individual permits (referred to as “specific” permits in the proposed rule). 

The first is removal of the third-party monitoring requirement imposed in 2016.  Instead of requiring independent third-party monitoring for long-term ETPs, the Service would rely on the regulatory requirement for permittees to certify that the information submitted with their ETP applications is complete and accurate to the best of their knowledge and belief, subject to criminal penalty. 

The second proposed change is to eliminate the requirement for five-year reviews.  In 2016, the Service extended the maximum term for an ETP from five years to 30 years, but required permittees to participate in permit reviews with USFWS every five years, which could result in the recalculation of fatality estimates and the amount of take authorized under the permit.  As the Service acknowledges in the preamble to the proposed rule, this requirement led to uncertainty and created a disincentive for potential applicants to seek ETPs.  In the proposed rule, the Service instead proposes to revisit the amount of take authorized only if the permittee requests an amendment to its ETP, or USFWS determines that amendment is necessary.  Notably, the preamble states that “[t]hird parties, including Tribes, States, and the general public, may contact the Service if they have concerns about compliance with permit terms at a particular project or new information that may bear on the conditions of the permit.”  87 Fed. Reg. at 59,601.

Most of the other key provisions of the regulations for specific permits – including the 30-year maximum term established in 2016 – would remain the same.

Creation of General Permits

The Service proposes to create general permits for four types of activities, including (1) qualifying wind energy projects, (2) power line infrastructure, (3) activities that may disturb bald eagles, and (4) take of bald eagle nests.  The first two types of general permit would apply to both bald and golden eagles, while the third and fourth would apply only to bald eagles.  The proposed rule specifies eligibility criteria for certain categories of general permits designed to ensure that authorized take under the general permits is consistent with the statutory preservation standard 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 of eagle.   

For wind energy projects, USFWS proposes to base eligibility on specified seasonal “eagle relative abundance” thresholds.  See 87 Fed. Reg. at 59,602 (Table 1).  According to the Service, project proponents will be able to determine the eligibility of their projects using a relative abundance map produced by the Service, and would not need to calculate relative abundance values themselves.  The Service estimates that nearly 80 percent of existing wind energy turbines in the contiguous United States are located in areas where the relative abundance for each species of eagle is below the proposed threshold, and therefore would be eligible for coverage under the general permit.  The Service proposes to pair the relative abundance eligibility criteria with a requirement that all project turbines be sited at least 660 feet from bald eagle nests and at least two miles from golden eagle nests.  The Service is also considering adjustments to the eligibility criteria for wind energy general permits during the rulemaking period, including an alternative that would not consider eagle relative abundance, but would require all project turbines to be located more than one mile from any bald eagle nest and more than two miles from any golden eagle nest.  The eligibility criteria constitute an ongoing requirement.  Under the proposed rule, if a new nest is constructed within the buffer distance required for eligibility, the project would no longer be eligible to rely on the general permit.  In addition, in the event that four or more bald eagles or four or more golden eagles are found injured or dead at a wind energy project site and the deaths or injuries are found to be attributable to the project, the project would no longer be eligible to rely on the general permit.  A project that loses its eligibility due to construction of a new eagle nest or take of four or more eagles of the same species may continue to rely on the general permit for the remaining portion of the general permit’s five-year term (provided that, in the case of eagle take, it implements an adaptive management plan that USFWS proposes to require in the event that three eagles of the same species are discovered at the project site during the permit term), but the project would no longer be eligible to obtain coverage under the general permit for a new term, and would have to apply for a specific permit to obtain authorization for eagle take thereafter.  The Service proposes to require compensatory mitigation for all projects that rely on the general permit in the form of eagle credits per cubic kilometer of hazardous volume from a Service-approved conservation bank or in-lieu fee program at rates established according to the Eagle Management Unit in which the project is located.  See 87 Fed. Reg. at 59,605.

The general permit for bald eagle disturbance would apply to eight categories of activities described in the 2007 National Bald Eagle Management Guidelines.  Eligibility for the general permit for take of eagle nests is limited three specific purposes:  emergency, health and safety, and removal from human-engineered structures, and coverage under the general permit would be limited to take of one specified nest.  There is no specific eligibility criteria for proposed power line infrastructure general permit, but specific conditions apply. 

The Service proposes to establish the maximum term for general permits for qualifying wind energy projects and for power line infrastructure at five years, and the maximum term for general permits for bald eagle disturbance and for take of bald eagle nests at one year.  Applicants would have the ability to apply for a new general permit at the end of the five-year or one-year term, provided that they still meet the eligibility criteria. 

The regulatory revisions that the Service is proposing in this rulemaking represent a significant overhaul of the Service’s ETP process.  If promulgated as proposed, these revisions – and particularly the creation of general permits – could result in increased certainty for stakeholders and a more efficient process for applicants seeking specific ETPs.

Comments on the proposed rule are due November 29, 2022.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 280
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About this Author

E. Carter Chandler Clements Environmental Attorney Hunton Andrews Kurth Washington, DC
Counsel

Carter’s practice focuses on environmental aspects of business transactions, environmental litigation, agency rulemakings and permitting.

A significant portion of Carter’s practice involves the handling of environmental aspects of complex business transactions, including due diligence and drafting and negotiation of transaction documents. She represents a broad range of clients including companies and trade associations in the electric generation, manufacturing and transportation industries, banks and other financial institutions, waste management firms and developers. Her recent...

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Eric J. Murdock Administrative Law Hunton Andrews Kurth Washington, DC
Partner

Eric is head of the firm’s administrative law team, comprising the environmental practice group and the regulated industries and government relations practice group. He is respected for his business-minded approach to environmental compliance and risk management, whether in the context of litigation, business transactions, administrative processes or day-to-day facility operations.

Clients from a wide array of industries, including energy companies, chemical manufacturers, waste management companies, banks and other financial service institutions and developers rely on Eric’s...

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