Following a federal court ruling last year, the U.S. Fish and Wildlife Service (FWS) has officially reverted back to offering wind farm developers eagle take permits for a limit of only five years instead of 30.
In 2009, the FWS authorized regulations under the Bald and Golden Eagle Protection Act (BGEPA) to provide programmatic permits to cover the non-purposeful “take” (i.e., injuring, killing or otherwise disturbing) of eagles at wind projects for a limited period of up to five years. In 2013, the agency published a rule extending the maximum incidental take permit period to 30 years.
At the time, Interior Secretary Sally Jewell said, “Renewable energy development is vitally important to our nation’s future, but it has to be done in the right way. The changes in this permitting program will help the renewable energy industry and others develop projects that can operate in the longer term, while ensuring bald and golden eagles continue to thrive for future generations.”
However, the American Bird Conservancy (ABC) and several other plaintiffs filed a lawsuit in 2014 against the FWS and the U.S. Department of the Interior, charging that the new eagle take rule violated the BGEPA, Endangered Species Act, and National Environmental Policy Act (NEPA).
Michael Hutchins, national coordinator of the ABC’s Bird Smart Wind Energy Program, said in 2014, “In the government’s rush to expand wind energy, shortcuts were taken in implementing this rule that should not have been allowed.”
He further charged that the new rule “was adopted in the absence of the required NEPA analysis concerning impacts on eagle populations or any other species that share the eagles’ range.”
In 2015, the U.S. District Court for Northern California ruled in favor of the plaintiffs regarding the NEPA claim only and determined the tenure extension of the take permit to 30 years was a legal violation.
To comply with the court order, the FWS has now officially filed a rule in the Federal Register removing the provisions related to the increase to a 30-year permit period. Therefore, the rule reestablishes the previous five-year limit.
“The rule is not a result of Service policymaking. It is a nondiscretionary rule that removes provisions from the U.S. Code that were struck down in court,” says the FWS in a prepared statement. “The rule removes only the provisions related to increasing permit tenure and not the other provisions of the Dec. 9, 2013, final rule.
“The Service is currently analyzing various aspects of bald and golden eagle management as part of its responsibility under the National Environmental Policy Act following public scoping meetings held in 2014,” the agency continues. “The Service is using information from the meetings to prepare an environmental impact statement (EIS) analyzing various alternative approaches to eagle management and proposed revisions to the permit regulations. The Service will then open another comment period for an additional round of public review and input before finalizing the EIS and revised permit regulations.”
Andrew C. Bell, a partner at energy and environmental law firm Marten Law, calls the FWS’ final rule filing “house-keeping.”
“The real question is whether the Service will revive the 30-year term after giving it a thorough NEPA review within the eagle rule EIS they are already working on,” he says. “In my mind, that would be the right approach.”
In 2014, EDF Renewable Energy became the first wind developer to secure an eagle take permit, having obtained a five-year permit for its Shiloh IV wind project in Solano County, Calif.
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