FWS reinstates 5-year limit on permits to kill eagles

To comply with a court order, the Fish and Wildlife Service is shortening the time given to project developers for unintentionally harming or killing eagles.

The move to limit "take" permits for eagles to no longer than five years -- down from the 30-year time frame that FWS had previously allowed -- will take effect tomorrow when the rule is published in the Federal Register.

The 30-year permits, which continue to be strongly supported by the wind power industry, were struck down last year in the U.S. District Court for the Northern District of California. Eagles and other birds can be battered or worse if they fly into the rotating blades of a wind turbine (E&ENews PM, Aug. 12, 2015).

Judge Lucy Koh concluded at the time that there were "substantial questions" as to whether Fish and Wildlife's decision to extend the take permits from five to 30 years would have "a significant adverse effect on bald and golden eagle populations." She ruled that FWS should have conducted a National Environmental Policy Act review prior to finalizing the rule in late 2013.

Then last month, the Obama administration dropped its plan to appeal the case (E&ENews PM, Jan. 21).

A Fish and Wildlife spokeswoman emphasized today that the new rule was required by the court decision and suggested that the agency continues to pursue longer-lasting permits.

"The Service is currently analyzing various aspects of bald and golden eagle management as part of its responsibility under the National Environmental Policy Act (NEPA) following public scoping meetings held in 2014," the spokeswoman said in an email. "The Service is using information from the meetings to prepare an Environmental Impact Statement (EIS) analyzing various alternative approaches to eagle management and proposed revisions to the permit regulations."

The American Bird Conservancy, an advocacy group whose successful challenge of the 30-year permits prompted today's rule, welcomed the change and is cautiously optimistic about future eagle regulations that the agency may be planning.

"The shift back to a five-year take permit should allow for better decisions and more transparency regarding eagle incidental take permits associated with wind energy development," Michael Hutchins, ABC's Bird Smart Wind Energy Campaign director, said in a statement.

"We look forward to seeing the results of the Environmental Impact Statement that is currently underway and hope that it results in a more science-based approach to eagle management," he added. "Our nation's national bird, the iconic eagle, deserves this level of attention."

But the wind industry dismissed the new rule as "procedural" and argued that the legal certainty provided by longer take permits is still necessary for wind developers, whose projects can take decades to pay off.

"A permit duration of up to 30 years is legally defensible and consistent with authorizations under the Endangered Species Act, for species that by their very nature are of greater conservation concern than eagles," John Anderson, the American Wind Energy Association's senior director of permitting policy and environmental affairs, wrote in an email. "We hope the Service reconsiders this administrative measure in the future."