To amend a popular phrase, permitting isn’t everything – it’s the only thing.
Let’s face it, obtaining an eagle incidental take permit continues to be challenging and time-consuming. Only two eagle take permits have been issued to date, including one that took more than five years to issue. Putting that aside, there appears to be welcome news, as the U.S. Fish and Wildlife Service (FWS) recently released its Final Rule revising the eagle permitting program under the Bald and Golden Eagle Protection Act.
Among other things, the Final Rule reestablishes the 30-year permit term, proposes a realistic threshold for avoidance and minimization measures, and paves the way for an in-lieu mitigation fee program.
As Andrew C. Bell writes in his story on page 16, the Final Rule looks to be an improvement over the existing program, as the measure rolls back some of the more controversial proposals from the Draft Rule, which was published in May 2016. Among the major changes are more acceptable preconstruction survey protocol requirements and a less onerous five-year review standard that should afford greater comfort to lenders and financiers.
Granted, there are many variables to consider, but the revised rule could lessen the severity and frequency by which the FWS – and the U.S. Department of Justice (DOJ) – prosecutes wind developers. You’ll recall that in December 2013, Duke Energy Renewables reached a $1 million settlement with the DOJ regarding the deaths of golden eagles and other migratory birds at two company-owned wind farms in Wyoming. In 2014, PacifiCorp Energy, a unit of PacifiCorp, pled guilty in U.S. District Court in Wyoming for golden eagle deaths.
As Bell writes, “De-linking legacy take resolution from the eagle take permitting process should preserve flexibility for both the FWS and project owners at the project-specific level, particularly in instances when legacy take has occurred despite the best efforts of the project owner.”
Like most well-meaning endeavors, however, the improvements didn’t go far enough, some suggest.
“While the new eagle permit rule recently published did improve the permitting process in certain regards, it also created other, significantly more burdensome permit requirements, such that the new eagle permit rule does not appreciably improve and, in fact, has arguably made worse,” says Seth Willmore, director of environmental affairs at Pittsburgh-based developer Everpower Wind Holdings.
Given the issue’s importance, the American Wind Energy Association and the wind industry continue to work with the FWS to improve the rule. Permitting isn’t everything – it’s the only thing.