On Dec. 16, 2016, the U.S. Fish and Wildlife Service (FWS) released a final rule revising its eagle permitting program (Final Rule) under the Bald and Golden Eagle Protection Act (BGEPA). The Final Rule took effect on Jan. 17.
For the most part, the Final Rule is an improvement over the existing rule, as it will reestablish the 30-year permit term; propose a more realistic, “practicable” threshold for adequate avoidance and minimization measures; and pave the way for an in-lieu mitigation fee program.
The revised rule also rolls back some of the more controversial proposals of the draft rule published in May 2016, with the most significant shifts resulting in general preconstruction survey protocol requirements and a less searching five-year review standard that should afford greater comfort to financiers.
The 30-year incidental take permits
The Final Rule reinstates the 30-year maximum permit term struck down by a California Federal District Court in August 2015 for a lack of adequate environmental review under the National Environmental Policy Act (NEPA) – this time, with the support of an Environmental Impact Statement (EIS) instead of a categorical exclusion.
The 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.
The proposed rule hindered this progress somewhat by allowing the FWS to impose entirely new, unanticipated avoidance and minimization measures every five years. This contrasted with the original 30-year rule, which limited conservation measure adjustments to those originally contemplated at the time of permit issuance.
The Final Rule has restored a degree of certainty in this regard by limiting five-year review permit modifications to instances in which authorized levels of take have been exceeded beyond the adaptive management provisions of the permit. The concept is similar to the re-initiation of the consultation standard under Section 7 of the Endangered Species Act, which has long been accepted by project owners and financiers alike. This change should help project owners reduce financing risk by integrating a clear, long-term adaptive management decision tree into the terms of the original permit.
The proposed rule contemplated requiring applicants to use the FWS’ collision risk model (CRM) to estimate eagle fatalities for their permit applications. This proposal had drawn significant criticism, as many felt the CRM was too simplistic and overestimated fatalities. The Final Rule responds by allowing applicants to use any method they prefer. It is only a slight change, however, as the FWS will still use the CRM in its own evaluation of each permit application. Applicants, therefore, may want to consider shaping the dialogue by continuing to apply the CRM in their applications and contextualizing its results with those of other, preferred estimation methods.
In what may be a significant development, the FWS notes in the preamble to the Final Rule that it will initiate a public process to improve the CRM within the next 18 months.
Under the original 2009 version of the eagle permitting rule, programmatic permits were conditioned upon implementation of advanced conservation practices (ACPs), representing the “best available techniques” to reduce eagle take to a level at which remaining take is “unavoidable.”
Recognizing the unavoidable standard as impractical, the Final Rule replaces 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.
A new, more local eagle preservation standard
The Final Rule increases protections at the local level by modifying the 2009 eagle preservation standard to include the local area population (LAP) analysis framework of the FWS’ 2013 Eagle Conservation Plan Guidance.
Under the new preservation standard, authorized cumulative take rates will 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. The 5% limit could be exceeded only if doing so promotes 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 exceed 5%.
The Final Rule eliminates the “low-risk” permit concept, acknowledging that the low-risk standard of 0.3 takes per year is impossible to meet. That said, as stated in the Final Rule, the FWS is still willing to entertain the concept if presented with sufficient evidence of a reasonable standard.
The revised rule replaces the term “nonpurposeful take” with “incidental take” and does away with the distinction between standard (i.e., one-time) take permits and programmatic take permits. Only one permit type, an incidental take permit, remains for the incidental take of eagles.
The proposed rule planned to require compliance with the preconstruction survey standards of the (voluntary) eagle guidance. Many commenters opposed this move because of questions over the scientific credibility of the Eagle Guidance standards. The Final Rule meets these comments halfway by foregoing wholesale incorporation of the Eagle Guidance survey standards and, instead, specifying certain “minimal preconstruction survey standards” the FWS requires to ensure uniform data collection across projects.
The Final Rule allows 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.
Projects that have caused eagle takes over the past five years would be subject to the FWS’ eagle take “settlement agreement” template.
Under the proposed rule, such “legacy” takes would have had to have been resolved, or have been in the process of resolution, for a take permit to have been issued. The revised rule relaxes this stance by concluding a permit can, in fact, be issued without resolving unauthorized past eagle take, although the applicant will continue to be subject to potential enforcement action at any time, depending (as in the past), in no small part, on whether the applicant engaged with the FWS to address potential eagle mortalities before take actually occurred.
This is a significant development. 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.
In the preamble to the proposed rule, the FWS declined requests for a process that would protect pending permit applicants from prosecution, citing a lack of resources. However, the preamble did state, “If project proponents are engaged in the permitting process in good faith … they should have a reasonable expectation that any take [occurring during the permitting process] … will have a low priority for enforcement by the service.”
The preamble to the Final Rule does not appear to have changed this position. This should continue to afford a degree of comfort to wind projects in operation before a permit is issued. But the FWS should take the further step of issuing guidance that categorically protects all applicants against any take occurring while pursuing a permit in good faith.
The preamble to the revised rule discloses that the FWS has entered into four civil settlement agreements covering 15 wind projects in the past 18 months, committing a minimum of $1,855,000 of research and development funding over the next three years and $55,000 of civil penalty payments. This averages approximately $124,000 of research and development payments and $4,000 of civil penalties per wind project – rates that are roughly commensurate with those specified in the FWS settlement template.
Up until now, power pole retrofits have been the only form of compensatory mitigation available to applicants seeking take beyond annual limits (a zero-take limit still applies for golden eagles). The Final Rule broadens the field by contemplating the use of 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 prepare and begin implementing guidance to create these programs in a timely manner.
The Final Rule requires a compensatory mitigation ratio of 1.2:1. Compensatory mitigation outside the LAP, within the larger applicable EMU, is acceptable as long as take does not exceed 5% of the LAP.
Holders of 30-year permits will 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 proposed rule intended for NEPA review of eagle take permits to rely solely on the Programmatic EIS prepared for the Final Rule, and avoid the need for additional NEPA review, if the following standards were met:
The project did not take eagles at a rate that exceeds, individually or cumulatively, the take limit of the EMU unless such takes were offset;
The project did not result in individual or cumulative authorized take in excess of 5% of the LAP; and
The applicant agreed to use the FWS-approved mitigation bank to offset authorized mortalities.
The Final Rule carries this concept forward but modifies the third factor to allow other forms of mitigation the FWS has already analyzed, such as power pole retrofits or an in-lieu fee program. This change should enable more projects to avoid the need for additional NEPA review when seeking an eagle take permit.
Projects that don’t meet these criteria would require 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.
Although not perfect, the Final Rule is a welcome improvement over the existing permitting program. When viewed in a larger context, the Final Rule 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 a BGEPA “playbook” that did not exist four years ago.
This framework reduces uncertainty for the wind industry, but, as is often the case, greater regulatory certainty can entail tighter restrictions, as evidenced by the revised rule’s increased emphasis on local take impacts.
Whether the Final Rule will change under the Trump administration and the new Congress is an open question. Its effective date, which was three days prior to President Donald Trump’s inauguration, could not have been postponed under the Congressional Review Act (CRA) because the Final Rule is not a “major” rule under the CRA. Modifying the Final Rule would, therefore, have required a new rulemaking. A formal rulemaking process, combined with President Trump’s focus on fossil fuels, could have handicapped efforts to modify the rule.
Andrew C. Bell is partner at San Francisco-based Marten Law. He can be reached at (415) 684-9358 or firstname.lastname@example.org.