USFWS Proposes New Eagle Take Permit Regulations

On May 6, 2016, the U.S. Fish and Wildlife Service (USFWS) issued a proposed rule that would, in part, extend the maximum term of eagle incidental take permits under the Bald and Golden Eagle Protection Act to 30 years.

Under USFWS’s 2009 regulations creating the eagle incidental take permit program, the maximum available permit term was five years. In response to industry’s request for longer permit terms, USFWS extended the maximum programmatic eagle take permit term from five to 30 years in December 2013. On August 11, 2015, the U.S. District Court for the Northern District of California vacated those regulations in Shearwater v. Ashe, holding that USFWS should have prepared an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA), rather than applying a categorical exclusion. In accordance with the court’s decision, USFWS has prepared a draft programmatic environmental impact statement in support of the newly proposed rule.

The comment period on the proposed rule is open until July 5, 2016. Promulgation of this rule would significantly benefit wind energy project developers by increasing the usefulness of eagle incidental take permits by extending the maximum available permit term.