Client Alert. Proposed Revisions to Regulations for Eagle Take Permits Hold Promise of Greater Take Authorization for Renewable Energy Developers

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1 Number 1361 July 9, 2012 Client Alert Latham & Watkins Environmental, Land & Resources Department Proposed Revisions to Regulations for Eagle Take Permits Hold Promise of Greater Take Authorization for Renewable Energy Developers These developments build on the Service s final Land- Based Wind Energy Guidelines issued earlier this year, and potentially could unlock eaglerelated gridlock that has threatened the successful development of viable renewable energy projects. This year has brought a flurry of activity under the Bald and Golden Eagle Protection Act (Eagle Act), 16 U.S.C (d), as the US Fish and Wildlife Service (Service) has taken steps to expand take authorization to facilitate renewable energy project development consistent with preserving populations of bald and golden eagles. First, the West Butte Wind Project (West Butte) in Oregon requested a programmatic permit for the legal take of golden eagles, the first wind energy project to request such a permit under regulations passed in Subsequently, the Service announced proposed revisions to the regulations authorizing programmatic eagle take permits, including a proposal to extend the maximum term from five to 30 years to better correspond to the typical lifetime of renewable energy projects. 2 These developments build on the Service s final Land- Based Wind Energy Guidelines issued earlier this year, and potentially could unlock eagle-related gridlock that has threatened the successful development of viable renewable energy projects. The Eagle Act s Regulatory Scheme The Eagle Act Prohibits the Take and Disturbance of Bald and Golden Eagles The Eagle Act prohibits a person from taking, possessing, purchasing, bartering, offering to sell, transporting, exporting or importing bald or golden eagles, whether the eagle is alive or dead, or any part, nest, or egg of an eagle without a permit. 3 Under the Eagle Act, take includes to pursue, shoot, shoot at, poison, wound, kill, capture, collect, molest, or disturb. 4 Disturb is further defined broadly by regulation, including agitating or bothering a bald or golden eagle to a degree that causes, or is likely to cause... (1) injury to an eagle, (2) a decrease in its productivity, or (3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior. 5 Enforcement Under the Eagle Act The federal government can assess both civil and criminal penalties for unauthorized take of bald and golden eagles. The Eagle Act imposes strict liability, Latham & Watkins operates worldwide as a limited liability partnership organized under the laws of the State of Delaware (USA) with affiliated limited liability partnerships conducting the practice in the United Kingdom, France, Italy and Singapore and as affiliated partnerships conducting the practice in Hong Kong and Japan. Latham & Watkins practices in Saudi Arabia in association with the Law Office of Mohammed A. Al-Sheikh. In Qatar, Latham & Watkins LLP is licensed by the Qatar Financial Centre Authority. Under New York s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under New York s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue, New York, NY , Phone: Copyright 2012 Latham & Watkins. All Rights Reserved.

2 where civil penalties up to $5,000 may be imposed for each take, regardless of intent. 6 Criminal penalties, though rare, can be brought against persons who knowingly, or with wanton disregard for the consequences of his act take an eagle. The Eagle Act originally provided for a criminal fine of up to $5,000, imprisonment of up to one year, or both for a first offense (a Class A misdemeanor), increased to a $10,000 fine or imprisonment of up to two years, or both for second or subsequent convictions (a Class E felony). 7 The Criminal Fines and Improvement Act of 1987 increased maximum fines to $100,000 and $250,000 for individuals for misdemeanors and felonies, respectively, and $200,000 and $500,000 for organizations for misdemeanors and felonies, respectively. 8 Each violation of the Eagle Act is considered a separate offense with respect to both criminal and civil penalties. 9 Potential Permits Available to Developers of Renewable Projects The Eagle Act permits take of bald and golden eagles applicable to renewable energy projects, but only in limited circumstances. The Service may issue take permits to remove inactive nests, for the take of eagles incidental to otherwise lawful activities, and for situations where there is the potential for recurring take in locations that cannot be specifically identified. As a practical matter, it is important for developers to incorporate into the planning process the time needed for review of permit applications under the Eagle Act under the National Environmental Policy Act (NEPA). Permit applicants are also encouraged to develop an eagle conservation plan that outlines measures to reduce and mitigate the risk of eagle take, and such plans are now required to obtain a programmatic permit, described below. 10 The Service has issued draft guidance for eagle conservation plans, and final guidance is expected to be forthcoming. 11 In addition, the Service has issued recommended guidelines specifically for wind energy facilities. 12 Limited Permits to Remove Inactive Nests Eagle Act regulations allow the Service to issue permits to remove inactive eagle nests if certain limited criteria are met. 13 An inactive nest is defined as one that is not currently being used by eagles as determined by the continuing absence of any adult, egg, or dependent young at the nest for at least 10 consecutive days. 14 Nest removal may be allowed in various circumstances, including, for example, if a nest creates a functional hazard that renders a human structure inoperable, or if removal is required for public health and safety. 15 Programmatic nest removal permits are available for multiple inactive nest takes for a period of up to five years. 16 Permits for Incidental Take Prior to 2009, there was no regulatory mechanism to obtain an incidental take permit for bald or golden eagles, even on a limited basis. A final rule issued by the Service in 2009 (2009 Final Rule), however, provided for the limited take of bald and golden eagles where the take is associated with otherwise lawful activities and cannot be practicably avoided. 17 An applicant may apply for an individual incidental (or non-purposeful) take permit for one-time activities, such as construction of a project. Under the 2009 Final Rule, permitted take must be compatible with the preservation of the eagles, thereby allowing take for lawful activities under circumstances that are nevertheless consistent with the goal of stable or increasing breeding populations. 18 Regional take thresholds for the golden eagle population 2 Number 1361 July 9, 2012

3 are zero or close to zero in some areas of the west and southwest. 19 Notwithstanding these very low thresholds, the Service appears to be receptive to West Butte s approach of providing compensatory mitigation in its programmatic permit application to offset the impacts of potential take. 20 Programmatic Permits In addition to providing for individual incidental take permits, the 2009 Final Rule provided a programmatic permit for take that is recurring, but not caused solely by indirect effects. 21 Programmatic take currently may be authorized only where take is unavoidable despite implementing advanced conservation practices, which are measures aimed at reducing take below current levels. 22 Programmatic permit holders must conduct more rigorous monitoring than that required for individual take permits, implement best-available techniques to reduce eagle disturbance, and may be required to apply off-site conservation measures to offset some or all of the new take. 23 Receipt of a programmatic permit is advantageous, however, in that it removes take liability comprehensively over a longer term, and multiple permits are not required for each eagle take. 24 Key Developments in 2012 West Butte s Programmatic Permit Application West Butte is developing a 104 megawatt wind project in central Oregon that will consist of 45 to 56 wind turbines. According to West Butte s Draft Environmental Assessment, the Service conducted an independent analysis of the risk posed by the project and has estimated that West Butte could take up to 17 golden eagles in the course of the project s 20- to 30-year lifespan. 25 In support of its programmatic permit application, West Buttes developed an eagle conservation plan that describes its actions to avoid, minimize and mitigate adverse effects to eagles. West Butte, which developed the plan in close cooperation with the Service, committed to implementing compensatory mitigation measures annually, regardless of eagle fatalities, to offset take such that there is no net effect on the eagle population. 26 Compensatory mitigation measures include upgrading certain distribution line power poles to meet current standards, an increase in the cut-in speed for wind turbines, a one-time payment of $20,000 to address a high-priority golden eagle conservation need, and a commitment to implement new technologies that reduce the risk to eagles if such technologies become available. 27 The Service has identified the West Butte proposed approach, including implementation of the eagle conservation plan, as the agency s preferred alternative in its draft NEPA analysis, over another alternative that would have imposed yet more mitigation, 28 illustrating the importance of close coordination with the Service prior to submitting an application. If the programmatic permit is granted, West Butte must fulfill all of its conservation commitments, and the Service will review the permit every five years (because the 30-year programmatic permit option is not yet available) to ensure West Butte s compliance. 29 Proposed Revisions to the 2009 Final Rule On April 13, 2012, the Service published a proposed rule and an advance notice of proposed rulemaking (ANPR) suggesting revisions and requesting comments on the Eagle Act s take permit regime. 30 The revisions propose extending the maximum term for programmatic take permits from five to up to 30 years. 31 For long-term programmatic permits, the Service will require projects to develop advanced conservation practices to avoid and minimize take for bald and golden eagles. The 3 Number 1361 July 9, 2012

4 Service further notes that it may require long-term programmatic permit applicants to commit to implementing additional mitigation measures if take exceeds predicted levels or if monitoring or other information indicates that additional protections are necessary. 32 The Service also proposes a new fee structure for programmatic permits that would increase the application processing fee to $36, In addition, the Service will be assessing fees for permit administration (the costs to administer compliance based on the life of the permit) at $2,600 for five-year permits or $15,600 for 30-year permits, to be paid in full at the time of issuance. 34 The Service also proposed a reduced fee structure for small impact projects seeking programmatic permits, reducing the permit processing fee to $5,000 with no administration fees. 35 Finally, the Service proposes to allow a programmatic take permit to be transferable to the new owner of a project, so long as any successors to the permittee commit to carrying out the permit conditions. 36 The ANPR specifically requested comments on three issues related to eagle take permits. 37 First, the Service requests input on the proper issuance criteria for programmatic permits, noting that the 2009 Final Rule allows individual take permits to be issued for take that cannot practicably be avoided, but programmatic permits may be issued only for take that is unavoidable. 38 The Service proposes reconciling the unavoidable issuance criteria for programmatic permits with the same standard as incidental take permits, or take that cannot practicably be avoided. 39 Second, the Service requested comments on under what circumstances compensatory mitigation should be required, and to what degree the mitigation should reduce impacts to eagles. 40 Finally, the Service sought input on whether the preservation standard set forth in the 2009 Final Rule (i.e., consistent with the goal of stable or increasing breeding populations ) should be refined or modified. 41 Conclusion The Service s disposition of West Butte s programmatic take permit application and the proposed revisions to the 2009 Final Rule have the potential to benefit numerous wind and energy infrastructure projects in the western United States interested in seeking protection for potential bald and golden eagle impacts. The Service is also expected to release final guidance on the preparation of eagle conservation plans, which can be used in support of applications for programmatic take permits. Latham & Watkins Environment, Land and Resources attorneys are closing monitoring the Service s actions on bald and golden eagle permits. Endnotes 1 77 Fed. Reg. 129 (2012) Fed. Reg (2012) U.S.C. 668(a) and (b) U.S.C. 668(c) C.F.R U.S.C. 668(b) U.S.C. 668(a); 18 U.S.C. 3559(a). 8 ; 18 U.S.C. 3571(b)-(c) U.S.C. 688 (a) and (b). 10 US Fish and Wildlife Service, Draft Eagle Conservation Plan Guidance (January 2011), available at 4 Number 1361 July 9, 2012

5 11 12 US Fish and Wildlife Service, Land-Based Wind Energy Guidelines (March 23, 2012), available at C.F.R C.F.R C.F.R C.F.R (a)(3) Fed. Reg (2009) US Fish & Wildlife Service, Final Environmental Assessment: Proposal to Permit Take Provided Under the Bald and Golden Eagle Protection Act at 141, 144 (April 2009), available at migratorybirds/currentbirdissues/baldeagle/fea_eagletakepermit_final.pdf. 20 See Draft Environmental Assessment to Permit Take as Provided Under the Bald and Golden Eagle Protection Act for the West Butte Wind Project, Oregon at (December 29, 2011), available at Fed. Reg (2009). 22 ; see also 50 C.F.R (definition of advanced conservation practices ) Fed. Reg (2009) Draft Environmental Assessment to Permit Take as Provided Under the Bald and Golden Eagle Protection Act for the West Butte Wind Project, Oregon (December 29, 2011), available at fws.gov/pacific/migratorybirds/pdf/west%20butte%20dea.pdf (West Butte EA). 26 at at West Butte EA, supra note 26, at at Fed. Reg (2012); 77 Fed. Reg (2012) Fed. Reg (2012) Fed. Reg (2012) Fed. Reg (2012) Fed. Reg (2012) Fed. Reg (2012) Fed. Reg (2012) Fed. Reg (2012) Fed. Reg (2012). 5 Number 1361 July 9, 2012

6 If you have any questions about this Client Alert, please contact one of the authors listed below or the Latham attorney with whom you normally consult: Janice M. Schneider Washington, D.C. Laura A. Godfrey Buck B. Endemann Jennifer K. Roy Client Alert is published by Latham & Watkins as a news reporting service to clients and other friends. The information contained in this publication should not be construed as legal advice. Should further analysis or explanation of the subject matter be required, please contact the attorney with whom you normally consult. A complete list of our Client Alerts can be found on our website at If you wish to update your contact details or customize the information you receive from Latham & Watkins, visit to subscribe to our global client mailings program. Abu Dhabi Barcelona Beijing Boston Brussels Chicago Doha Dubai Frankfurt Hamburg Hong Kong Houston London Los Angeles Madrid Milan Moscow Munich New Jersey New York Orange County Paris Riyadh* Rome San Francisco Shanghai Silicon Valley Singapore Tokyo Washington, D.C. * In association with the Law Office of Mohammed A. Al-Sheikh 6 Number 1361 July 9, 2012