Environmental Update

Publication September 10, 2015

A federal district court has dealt a setback to a United States Fish and Wildlife Service program for issuing long-term permits to wind farms and others allowing “incidental takes” of bald and golden eagles. An incidental take means an unintentional death or injury.

The Fish and Wildlife Service increased the maximum term for such permits from five to 30 years in 2013. A federal district court in California sent the new policy back to the agency for additional environmental analysis in mid-August in response to a lawsuit, called Shearwater v. Ashe, filed by environmental groups. The longer-term incidental take permits are no longer available and will not be available at least until the agency finishes a more comprehensive review of the environmental impacts. This complicates development of wind farms in areas where liability for possible eagle deaths is a concern.

The court said the 2013 decision to allow longer permits violated the National Environmental Policy Act because it was made without any environmental assessment or environmental impact statement.

The agency argued that the decision did not require environmental review because it was purely administrative in nature with effects too broad and speculative to allow meaningful analysis. The court disagreed. The Fish and Wildlife Service ignored its staffs’ own recommendations that the agency prepare an environmental impact statement, the court said.

Wind developers usually want a 20- to 30-year permit for projects in areas where eagles are found. Banks and tax equity investors financing such projects often make such a permit a condition to closing on the financing in areas where eagles are present. It is too early to tell whether the market will now settle for five-year permits, given that a five-year permit is all that is on offer and the market made do with them before 2013, or will just wait until the window reopens for longer permits. The agency has already started preparing an environmental impact statement.

Even while Fish and Wildlife was offering permits for up to 30 years, the permits still required operational reviews every five years by the agency. However, the reviews were not like having to apply for a new permit. Fish and Wildlife also reserved the right with the longer permits to modify or revoke a permit if issues arise, and ongoing monitoring for mitigation effectiveness was still required.

Federal law prohibits the taking of bald and golden eagles unless otherwise authorized, and violators risk civil penalties and jail time of up to one year for the first conviction. Felony convictions could result in significantly higher fines and up to two years of jail time.

Migratory Birds

The Fish and Wildlife Service is at work on a “programmatic” or blanket environmental impact statement evaluating proposed approaches for authorizing the incidental taking of migratory birds. The period for public comment closed at the end of July.

The Migratory Bird Treaty Act protects 1,027 bird species in the United States by prohibiting the taking of such bird species unless authorized. Fish and Wildlife has issued blanket permits for the incidental taking of regulated birds to various applicants, such as the US military for takes during combat-readiness drills, but the agency is now considering whether to provide more general authority.

Fish and Wildlife wants to provide greater legal certainty for industries and companies that have taken steps to mitigate or reduce the taking of migratory birds, and encourage conservation efforts for covered species. The agency also wants to establish a framework for obtaining adequate compensation in instances where the taking of migratory birds cannot be avoided through best practices and technologies.

The agency is considering the following actions. One possible action is to issue general authority for the incidental taking of covered species in particular activities in specified business sectors. Anyone relying on general take authority would still be required to embrace “appropriate standards of protection and mitigation.” The agency is considering whether this approach can be applied to the wind industry.

The agency is also considering issuing individual, site-specific incidental take permits for activities not covered by the general authority. An environmental impact statement would have to be prepared before an individual permit could be issued. Fish and Wildlife is looking into ways to minimize the administrative burdens associated with issuing individual incidental take permits, such as relying on the environmental review already for the issuance of other federal permits.

Another action under consideration is to authorize incidental takes by other federal agencies. Each agency would have to enter into a memorandum of understanding with Fish and Wildlife agreeing to weigh and mitigate the adverse effects of their actions on covered species.

Finally, the agency may also develop voluntary guidelines that are a list of best practices and technologies to prevent or mitigate the incidental taking of covered species. Any such guidelines would be informed by the ongoing dialogue between Fish and Wildlife and industry about the hazards posed by such businesses on migratory birds. Following the guidelines would not be a license to take migratory birds, but the fact that a company has complied with the guidelines would be taken into account by the government when considering whether to bring an enforcement action against a company.

The agency could end up adopting one or a combination of the proposals. Implementation will require issuing new regulations.

Wind developers are wary that any new policies might obstruct new wind farm development. The American Wind Energy Association has told the agency it does not believe the incidental taking of migratory birds in lawful activities such as operating wind turbines should require a permit to avoid criminal liability. AWEA is urging the agency to maintain its existing approach toward wind farms of encouraging voluntary adherence to existing land-based wind energy guidelines that the agency issued in 2012, but if a new permitting program for migratory birds is established, it wants blanket permit authority to be given to wind farms.

– contributed by Andrew Skroback in Washington and William Nicholson in New York


Recent publications

Subscribe and stay up to date with the latest legal news, information and events...