Winston’s Environmental Law Update
Recently, the United States Fish and Wildlife Service (USFWS) revised the regulations authorizing programmatic take of bald and golden eagles to extend the maximum term for programmatic take permits from 5 to 30 years. USFWS took this action to better correspond permit terms with the operational timeframe of renewable energy projects. However, USFWS has retained its discretion to issue permits of shorter duration if appropriate.
Programmatic take is defined under the regulations as “take that is recurring, is not caused solely by indirect effects, and that occurs over the long term or in a location or locations that cannot be specifically identified.” The eagle take permit regulations, initially finalized in 2009, provide for permits that authorize, on an individual basis, take that cannot practicably be avoided, as well as programmatic take that is unavoidable despite the implementation of advanced conservation practices. Earlier this year, USFWS issued its Eagle Conservation Plan Guidance Module I for land-based wind energy. The guidance describes processes wind energy permit applicants are recommended to follow to conduct eagle surveys, evaluate, avoid, and minimize risks, compensate for unavoidable take, and apply an adaptive management framework.
In light of the lengthened permit term, USFWS will evaluate each permit at 5-year intervals to assess fatality rates, effectiveness of mitigation measures, the appropriate level of compensatory mitigation, and eagle population status. If appropriate, USFWS may require permittees to implement additional conservation or mitigation measures, revise monitoring and compensatory mitigation requirements, or suspend or revoke the permit. The regulations have also been revised to allow a programmatic take permit to be transferred due to a change in ownership upon satisfaction of certain conditions. The revised regulations will go into effect on January 8, 2014.