On May 4, 2016, the United States Fish and Wildlife Service (FWS) released a draft rule and Programmatic Environmental Impact Statement (PEIS) analyzing the impact of the proposed rule on eagles, and extending the duration of permits from 5 years to up to 30 years. This continues the agency’s effort to support wind farms and other facilities that may have difficulty with financing given the current five year limit on permits.

The FWS specifically explains that given the existing 5-year constraint on permit duration, many facilities have not sought to obtain eagle permits despite the risk of enforcement action should eagle mortality occur.  Thus, the current 5-year permit limitation has resulted in many facilities remaining at risk of enforcement action, and deprives FWS of the opportunity to work with the facilities on methods of avoiding or reducing eagle mortalities. 

The proposed rule adjusts several aspects of the prior rule, but the most significant change provides for a 30-year permit for incidental take of bald and golden eagles, which would undergo agency review of the effectiveness of the permit conditions each 5 years during the term.  If during the 5-year review, the conditions were found inadequate, the parties would then negotiate additional mitigation.  Significantly, the mitigation could include “in lieu” payments to the agency.

The FWS also released a report on the current eagle populations in the US, which concluded that up to 4,200 bald eagles could be taken each year without requiring mitigation.  However, the population of golden eagles appears to be at risk, and any take of golden eagles would require compensatory mitigation at a ratio exceeding 1:1.

FWS had attempted to put in place the 30-year limitation in 2013 without first carrying out an environmental review.  However, in August 2014, a California district court struck down that rule due to the lack of an EIS, leaving in place the earlier regulation allowing only five year permits.

It is unlikely that this effort will satisfy those groups that have attacked earlier efforts to facilitate renewable facilities that increase the risk of bird mortality.  At the very least, however, this effort may be more defensible in court than the earlier attempt to proceed without an environmental review despite internal agency advice that such a review was necessary.  In striking the rule, the court quoted the author of the proposed rule as calling the need for an EIS a “no-brainer.”