On December 14, 2016, the United States Fish and Wildlife Service (“FWS”) finalized revisions to its regulations for nonpurposeful (or incidental) take of eagles and eagles nests under the Bald and Golden Eagle Protection Act (“Eagle Act”). According to FWS, the rule is intended to balance clean energy development and eagle conservation goals. FWS acknowledges the Obama Administration’s efforts to expand wind energy development and how the accompanying growth has impacted eagles, but emphasizes its belief that wind energy development does not pose a disproportionate risk to eagles as compared to other activities that may incidentally take eagles. FWS’s revisions are clearly drafted with the wind industry in mind.
FWS made several key changes to the regulations. Permits will now be called “incidental take permits” rather than “nonpurposeful take permits.” FWS has also reduced the types of permits it can issue from two to one, meaning there will no longer be separate categories for standard and programmatic permits. All new incidental take permits will be subject to the same standard – takes must be avoided and minimized to the maximum extent practicable.
In a nod to the wind industry, FWS increased the maximum duration of incidental take permits from five to 30 years. However, permits issued for durations of more than five years will be required to include adaptive management provisions and are subject to five-year reviews. Prospective permittees seeking an incidental take permit with a duration of five years or longer will be required to pay a $36,000 application processing fee. FWS will also assess an $8,000 administrative fee every five years for long-term permits to cover the cost of conducting five-year evaluations.
The rule similarly revises monitoring and mitigation requirements. FWS will require monitoring by qualified independent entities for all permits with durations of longer than five years, with the independent monitors reporting directly to FWS. The rule also standardizes mitigation requirements for incidental take permits. For example, FWS will require compensatory mitigation at a ratio of 1.2 to 1 for incidental take of golden eagles.
While the rule is poised to provide significant benefits to prospective permittees seeking a streamlined, consistent process, the timing may make it vulnerable to changing priorities of the incoming Administration under President-elect Trump. The rule is scheduled for publication in the Federal Register on December 16, 2016, and will become effective 30 days after publication, just prior to the inauguration of President-elect Trump. As a result, any attempt by the new Administration to repeal the rule will likely require traditional notice-and-comment rulemaking. Alternatively, if the rule were challenged in court, the new Administration could elect not to defend it and administratively stay the rule during reconsideration.
A copy of the unpublished rule is available here. For more information on the implications of the rule or FWS’s Eagle Take Permit program more generally, please contact Angela Levin, Andrea Wortzel, or Andy Flavin.