The U.S. Fish and Wildlife Service announced last week that it intended to conduct either a NEPA environmental assessment (EA) or an environmental impact statement (EIS) concerning its bald and golden eagle management policies. The decision on whether the report will be an EA or and EIS will be determined by the volume and complexity of the comments receiving during the ninety day scoping period to be announced in the Federal Register today. Although the analysis will include evaluation of the length of incidental take permits, the FWS said the announcement had nothing to do with the suit filed last week by the American Bird Conservancy (as discussed in a prior blog post on this subject) challenging the failure to conduct a NEPA analysis of an increase in the duration of incidental take permits for bald and golden eagles from five years to up to thirty years.
Over the past two years, the FWS has been under constant criticism over its bird management policies, in particular for bald and golden eagles. Initially, the Service took heat from oil and mining companies for its prosecution of Migratory Bird Treaty Act (MBTA) claims against their operations, while it took a hands-off position regarding bird mortality at wind power sites. More recently, bird mortality at both wind power and solar power sites has become a significant issue in the siting and permitting of renewable power operations around the country. Late last year, the FWS took its first (and only) action against a wind turbine operation, settling claims under the MBTA and the Bald and Golden Eagle Protection Act for bird mortality at operations in Wyoming. The settlement required the company to seek incidental take permits under the Eagle Protection Act. Shortly thereafter, the FWS finalized a rule extending the potential length of such permits from five to thirty years, although it has not yet issued any thirty-year permits.
It is highly likely that the notice, which includes five scheduled scoping meetings around the country, will generate a great deal of comment from all parties, and uncertainty about the outcome of the evaluation will create some short term anxiety among renewable energy developers. However, to date, the FWS management and enforcement policy has had an “ad hoc” quality that has left some parties angry and others anxious. The announcement of this process may signal that the FWS will finally provide those operators with the level of certainty that any business requires about what it will need to do to obtain permits, or otherwise avoid civil or criminal liability, for the bird mortality that appears to be almost inevitable with these operations.