December 9, 2013 |
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Energy & Infrastructure | |
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U.S. Fish & Wildlife Service
Issues Rule Extending Terms of Permits for Incidental Eagle Take to
Thirty-Years |
Timing of Rule’s Publication is Another
Indication of Renewed Focus on Avian Compliance Risk at Wind
Farms
Today, the U.S. Fish and Wildlife
Service (“USFWS”) published a final rule extending the maximum term
for programmatic take permits of bald and golden eagles to thirty
years. (78 FR 73704.) Today’s rule comes only two weeks
after the U.S. Department of Justice (“DOJ”) announced the terms of
a plea agreement with Duke Energy Renewables, Inc. (“Duke”),
regarding the take of protected avian species at two of Duke’s wind
farms in Wyoming. These recent actions demonstrate a renewed
focus by DOJ and USFWS regarding compliance by project developers,
including wind farm developers and operators, with federal laws that
prohibit the killing of avian species, including the Bald and Golden
Eagle Protection Act (“BGEPA”). The extended permit term,
though, provides developers and operators with a viable option for
compliance with the requirements of the BGEPA.
In 2011,
USFWS promulgated regulations authorizing programmatic “take”
permits under the BGEPA. The BGEPA defines “take” broadly, and
includes activities such as pursuing, shooting, poisoning, wounding,
killing, or even disturbing. These permits would permit “take”
where the take was incidental to the permitted activity, such as,
for example, wind farms where golden eagles might be killed by
collisions with wind turbines. Permits would be issued for
terms of up to five years.
Today’s rule extends
those terms to up to thirty years. The rule states that the
change was necessary in order to more closely align the term of the
permit with the expected life of the permitted activity. USFWS
will re-evaluate issued permits every five years during the term to
determine whether the basis on which the permit was granted has
changed. USFWS may then change the terms of a permit – or even
revoke it – if USFWS determines that factors such as fatality rates,
effectiveness of measures to reduce take, or changes to eagle
population require an adjustment to the conditions of, or mitigation
required by, a permit.
USFWS has also made it
easier and cheaper to obtain a programmatic take permit for
“low-risk” activities. The rule defines a “low-risk” activity
to be one where, using USFWS-approved models and predictive tools,
the activity is forecast to take less than one eagle over the course
of thirty years, and the processing fees for permits for “low-risk”
activities have been capped.
Today’s rule is
issued only two weeks after DOJ announced its plea agreement with
Duke. According to the plea agreement, DOJ charged Duke with
two misdemeanor counts under the Migratory Bird Treaty Act (“MBTA”)
for 163 instances of “take” of migratory birds at two of Duke’s wind
farms, both located in Wyoming. Of those 163 fatalities,
fourteen were golden eagles. Duke pled guilty to the charges
and must pay $400,000 in fines and contribute another $600,000 to
conservation groups as part of its community service. In
addition, Duke must deploy advanced conservation measures at the
wind farms, develop an eagle conservation plan, and apply for a
programmatic take permit under the BGEPA. In the plea
agreement, DOJ noted that the charges against Duke were reduced to
misdemeanors under the MBTA in part because of operational
limitations that Duke has deployed at its wind farms to reduce the
likelihood of additional take at its
projects.
For operators and
developers of wind farms, transmission projects, or other projects
where the incidental take of golden eagles is possible, today’s rule
and the plea agreement with Duke both signal that DOJ and USFWS
expect developers and operators to comply with the requirements of
federal laws that protect bird species or else risk criminal
prosecution. Operators and developers should evaluate the risk
that their projects pose to protected species – including golden
eagles – and should consider whether to apply for permits or to
implement additional actions to limit the risk that their project
poses to these protected species. If you have any questions,
please contact Dan Knepper at 202 339 8697 or [email protected]. |
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