1) If At First You Do Not Succeed: Fish and Wildlife Service Tries Again With 30-Year Eagle Act Permit 05.31.2016 | UPDATES On May 6, 2016, the Fish and Wildlife Service (FWS or Service) published a proposed rule (Proposed Rule) that would substantially change how the Service administers its conservation and management program under the Bald and Golden Eagle Protection Act (Eagle Act). The long-awaited Proposed Rule recommends changes to the maximum permit term from five to 30 years, as well as permit criteria and compensatory mitigation standards. These proposed changes, if adopted, would impact renewable energy and other project development, particularly in the Western United States. The Service is currently seeking public input on the proposed regulations, and the public comment period on the Proposed Rule ends on July 5, 2016. Background The Eagle Act imposes criminal and civil penalties against anyone who “takes” bald or golden eagles without a permit. “Take” is broadly defined to include “wound, kill, capture, trap, collect, molest or disturb.” The Service administers the Eagle Act, including the permit program for the taking of eagles that are incidental to otherwise lawful activity. In 2009, FWS implemented the current eagle permit regulations (2009 Rule), which allowed for five-year incidental take permits. There was strong concern among project developers and financial institutions that the short duration of eagle take permits did not line up with the longer duration of most wildlife permits, such as incidental take permits issued under the Endangered Species Act. In response to these concerns, the Service amended its regulations in 2013 by extending the maximum duration of an incidental take permit from five to 30 years largely to facilitate wind energy development (2013 Rule). Shortly after the 2013 Rule went into effect, the regulations were struck down by the U.S. District Court for the Northern District of California largely on procedural grounds. The Court held the Service did not adequately justify its decision not to prepare an Environmental Impact Statement or Environmental Assessment under the National Environmental Policy Act (NEPA). Technical Report and Draft Programmatic Environmental Impact Statement To support the Proposed Rule, FWS published both a scientific report entitled “Bald and Golden Eagles: Status, trends, and estimation of sustainable take rates in the United States” (Status Report) and a draft programmatic Environmental Impact Statement (DPEIS) before publication of the proposed regulations. The purpose of the Status Report was to gather more definitive data on bald and golden eagle population sizes, productivity and survival rates in order to recommend take limits for both species. The Status Report shows that while bald eagle populations continue to increase, golden eagle populations may be declining. These findings are reflected in the changes the Service made to the eagle conservation and management program in the Proposed Rule. The DPEIS, which analyzes the impacts of the Proposed Rule under NEPA, was published concurrently with the Proposed Rule. This programmatic approach will enable FWS to tier from the DPEIS where possible when conducting project-level NEPA analysis and alleviate addressing similar issues multiple times. Key Potential Changes in the Proposed Rule The Proposed Rule makes a number of important changes to the eagle conservation and management program, most notably the following: Maximum Permit Duration Extended to 30 Years with Five-Year Review Process Under the 2009 Rule, permits are issued for no more than five-year terms. Acknowledging the need for a longer term to provide additional certainty to project developers, the proposed revisions would reintroduce a maximum permit duration of 30 years, as previously attempted by the 2013 Rule, so that the duration of the permit is more in 

2) line with other federal permits. Yet, the Proposed Rule would create a new five-year review process for long-term permits to reassess the effectiveness of take reduction measures, fatality rates, eagle population status and the adequacy of compensatory mitigation measures, if any. Should the Service find that eagles are not adequately protected during the five-year review process, the Service would have the authority to require permittees to undertake additional conservation measures. The lack of clarity in the Proposed Rule with respect to the five-year review process may raise concerns from renewable developers and potential investors, as well as environmentalists. The Proposed Rule does not include a schedule for these five-year reviews, indicate how long the review process may take or what occurs if the five-year review process is not completed on time. Without more certainty, there is a concern that permit holders will be in a perpetual cycle of costly review for the duration of the term of the 30-year permit or could be required to implement costly additional conservation measures. We expect that many comments on the Proposed Rule will seek additional clarity on this process. Increase in Allowable Take of Bald Eagles The Proposed Rule increases the level of allowable bald eagle takes. Based on the data collected by FWS as summarized in the Status Report, which shows that bald eagle populations are increasing, FWS proposes to increase the percentage of take for bald eagle populations to up to 5% of each local area population. The increased level of allowable bald eagle takes will help permittees operating within bald eagle range. Because the Status Report showed that golden eagle populations are in decline, the Proposed Rule would continue to apply the net zero take standard for golden eagles. Therefore, permittees will continue to face challenges when developing projects within golden eagle range. Permit Issuance Criteria Changed to Incorporate Practicability Standard Under the 2009 Rule, there are two types of permits: programmatic permits and standard permits with different issuance criteria. Programmatic permit holders are required to reduce potential take to a level where it is “unavoidable.” Standard permit holders, on the other hand, are only required to reduce potential take to a level where it is “practicably unavoidable.” The proposed regulations would eliminate the distinction between programmatic and standard permits altogether, opting instead only to issue “eagle incidental take permits.” The elimination of the distinction between programmatic and standard permits would streamline the permit process and create clarity for permittees. Under this singular permit, permittees would only be required to reduce potential take to the less restrictive “practicably unavoidable” standard. This more permissive standard would lessen the burden on permittees. Compensatory Mitigation Requirements Standardized and Expanded Under the 2009 Rule, there is no uniform framework for compensatory mitigation. The lack of a clear framework has resulted in regulatory uncertainty for permittees who cannot predict whether compensatory mitigation will be required. The Proposed Rule sets forth standardized criteria which determine whether compensatory mitigation will be required. Further, the Proposed Rule would expand the types of compensatory mitigation endorsed by the Service. To date, for example, the Service has authorized retrofitting power lines as the primary form of compensatory mitigation, which was growing increasingly difficult to coordinate with utilities as the most problematic power lines have been resolved. New mitigation techniques included by the Service in the Proposed Rule are in-lieu fee programs, mitigation and conservation banks. These additional techniques could allow permittees much needed flexibility in potential compensatory mitigation for potential impacts to eagles while providing the Service additional resources to conserve eagle populations. Refined “Preservation Standard” Adopted The Eagle Act contains a “preservation standard” which requires FWS to determine if any authorized take of eagles is “compatible with the preservation of bald and golden eagles.” Under the 2009 Rule, preservation is defined as “consistent with the goal of maintaining stable or increasing breeding population.” In the Proposed Rule, the Service would define preservation to mean “consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and persistence of local populations through the geographic range of both species.” The Service proposes to modify the preservation standard to ensure bald and golden eagles are distributed broadly enough to be resilient to future conditions. 

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