U.S. Fish & Wildlife’s Double Take on Eagle Take Permits

If there wasn’t enough uncertainty about the process and standards for obtaining a programmatic eagle take permit, the U.S. Fish and Wildlife Service just made it more difficult.  Since 2009, energy developers and operators – from oil & gas to wind & solar – have been able to apply for a permit for the incidental take of eagles.  That permit program, which has evolved over the past several years through regulatory revisions and agency guidance, may be poised to change in dramatic fashion. 

On June 19, 2014, the American Bird Conservancy and other individual plaintiffs (the “ABC Plaintiffs”) filed a lawsuit against the U.S. Fish and Wildlife Service (“USFWS”).[1]  The ABC Plaintiffs are challenging the USFWS’ revision to its eagle take rule.  Specifically, the ABC Plaintiffs are challenging the agency’s determination to extend the maximum term for an incidental eagle take permit (“ETP”) to 30 years on two ground: first, USFWS revised the eagle take rule without analyzing environmental impacts under the National Environmental Policy Act (“NEPA”); and second, the rule violates the Bald and Golden Eagle Protection Act (“BGEPA”) by subverting basic eagle protections and safeguards without adequate explanation.

BGEPA authorizes the Secretary of the Interior to permit the take of bald or golden eagles for several defined purposes, including when “necessary to permit the taking of such eagles for the protection of wildlife or of agricultural or other interests in any particular locality.”[2]  In 2009, the USFWS promulgated rules authorizing the issuance of ETPs when necessary for other interests in a particular locality.[3]  These regulations authorize take when three legal requirements are met: 1) where the take is compatible with the preservation of the bald and golden eagle; 2) where the take is associated with and the not the purpose of an otherwise lawful activity; and 3) where the take cannot practicably be avoided.[4]  The USFWS issued a final environmental assessment in support of its NEPA analysis for the 2009 eagle take rule (the “2009 Rule”).[5]

On December 9, 2013, USFWS further revised the 2009 Rule and modified the legal standards for obtaining and operating under a permit.  The revised regulations — called the “Tenure Rule” — extends the permit duration to up to 30 years; in addition the new rule adds a 5-year review process, transparency and reporting requirements, refines mitigation and advance conservation practices, refines post-construction monitoring requirements, sets a permit application/administration fee schedule, establishes different standards for “low risk projects,” and expands permit transfer rules.[6] 

When issuing the Tenure Rule, the USFWS relied on the final environmental assessment of the original rule to describe the effects of permitted activities on eagles.[7]  In addition, the USFWS concluded that the Tenure Rule was categorically excluded from further NEPA analysis because it is “administrative or financial in nature.”[8]

The ABC Plaintiffs challenged the agency’s use of a categorical exclusion arguing that the Tenure Rule was more than administrative and financial in nature.  In addition, the ABC Plaintiffs challenged how the USFWS justified changing the permit tenure from 5 to 30 years without offering an explanation of its rationale.[9]

On June 20, 2014, the USFWS announced that it will conduct an in-depth review and analysis of its eagle management policies – i.e., the 2009 Rule and the Tenure Rule.^[10]  The USFWS plans to host five public information meetings across the country and open a 90-day public comment period.  The meetings will be held on July 22, 2014, in Sacramento, CA.; July 24, 2014, in Minneapolis, MN.; July 29, 2014, in Albuquerque, NM; July 31, 2014, in Denver, CO.; and Aug. 7, 2014, in Washington, DC.  The public information sessions will serve as NEPA scoping meetings; and based on the information obtained, the agency will decide to prepare either a draft Environmental Assessment (“EA”) or Environmental Impact Statement (“EIS”) and proposed revisions to the permit regulations.  Once a draft EA or draft EIS is completed, the USFWS will then open another comment period for an additional round of public review and input before finalizing the EA or EIS and revised permit regulations.

The outcome of the NEPA process may have a significant impact the permitting mechanism in place now.  In addition, during the pendency of the NEPA process, the USFWS may hold off on issuing 30 year ETPs (note: the agency has yet to issue its first programmatic ETP).  Uncertainty in the regulatory scheme and delays in issuing ETPs will likely impact those entities that seek the liability protection of a permit – particularly, those entities that are at risk of or have ongoing concerns with eagle mortality, such as the oil & gas or wind energy industry.