Overview
On December 14, 2016, the US Fish & Wildlife Service (FWS) issued a final rule governing permits for potential impacts to bald and golden eagles associated with large-scale development projects (the Eagle Rule). The Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. § 668 et seq., imposes strict liability for eagle “take,” which is defined by the statute as “to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb.” The BGEPA authorizes FWS to institute a permitting framework for entities that may accidentally take eagles in the course of otherwise lawful activities. Despite this statutory authority, the regulatory process has been slow to develop and modernize, in part due to environmental opposition.
Prior to the new rule, eagle incidental take permits were limited to five years, which did not correspond well with the much longer life span of most large-scale projects. In 2013, FWS proposed a 30-year permit program to accommodate large-scale development projects. However, the American Bird Conservatory successfully challenged the regulations on the basis that FWS’s failure to prepare an environmental impact statement (EIS) violated the National Environmental Policy Act, 42 U.S.C. § 4332(C) (NEPA). On remand, FWS prepared a 285-page EIS analyzing potential impacts of various alternatives considered for the permit program. The document, titled “Programmatic Environmental Impact Statement for the Eagle Rule Revision,” evaluates eagle populations, migratory patterns, and past conservation efforts in support of the 2016 rule.
The Eagle Rule allows for the issuance of 30-year take permits, and subjects permits for periods of time longer than 5 years to re-evaluation every 5 years. Some of the specific provisions include:
- Required monitoring conducted by independent contractors who report directly to FWS;
- Monitoring data made available to the public;
- Take limits based on population and migratory patterns;
- Compensatory mitigation when take limits are exceeded and “if necessary for the permit to be compatible with the preservation of eagles”; and
- Updated criteria and guidance on the removal of eagles’ nests, when necessary.
It remains to be seen whether the updated Eagle Rule, effective January 17, 2017, will face any further legal challenges. Because the rule is aimed at providing greater flexibility for development projects to utilize long-term permits to avoid potential liability for incidental bird take, it is less likely that the new administration will interfere with the implementation of this rule. However, there may be significant shifts in the overall implementation and enforcement of wildlife protection statutes like the Eagle Act under the new administration.