Federal Eagle Law and Electric Transmission: Issues and Solutions

David Plumpton, Ph.D., CWBEcology & Environment Inc130 Battery Street, 4th Floor

San Francisco, CA 94111

September 21, 2011

BGEPA Permit Conditions

50 CFR §§ 22.26 applicable when:

• Compatible with preservation of the eagle• Has as its goal stable or increasing eagle

populations• Take cannot be avoided

Available Guidance

From Region 8 Interim Guidance, May 2010:

“Eagle take permits are not a legal requirement of development.”

“If the construction and implementation of the proposed project results in take of an eagle, and the project proponent chooses not to work with the Service, or to ignore suggestions for mitigating risks to eagles, the project proponent and/or action agency could be vulnerable to prosecution under the Eagle Act.”

BGEPA permitting

• APP / ABPP suggested, not required; builds FWS goodwill and prosecutorial discretion; APPs or ABPPs are not approved by FWS, and meeting with FWS not a technical requirement. Many are using (and being guided) to use an APP / ABPP in lieu of ECP, as the rules are fuzzy, and NEPA not required.

• ECP with IT Permit provides absolution after-the-fact; not a requirement to construct (but a good idea before operation), and FWS can’t force the permit requirement. Requires NEPA, and permits not available everywhere.

Plan A: do APP/ABPP, and include risk assessment, adaptive management, etc. No after-the-fact absolution

Plan B: do ECP and APP/ABPP, and secure BGEPA Programmatic permit.

From the USFWS:

“The Office of Law Enforcement and the DOJ have used enforcement and prosecutorial discretion in the past for those who have made good faith efforts to avoid take of migratory birds.”

“Law Enforcement focuses on individuals and organizations that have engaged in take with disregard for their actions and the law, especially when conservation measures have been developed but are not properly implemented.”

Permits not a requirement up-front; provide after the fact absolution

Strategies for Compliance

Migratory

Bird Treaty

Act

Bald and

Golden

Eagle

Protection

Act

Endangered

Species Act

Enforced by FWS and DOJ Y Y Y

Take prohibition relevant to wind Y Y Y

Incidental Take Permit process N ? Y

Compliance available to alleviate prosecution risk N N Y

Habitat modification interpreted as “Take” N? Y? Y

Does Take include harm or habitat modification N N Y

Apply to inactive nests? N Y ?

NEPA required N Y Y

Provision for Citizen Suit N N Y

Private Cause for Action N N Y

Provision for criminal penalties Y Y Y

Provision for civil penalties N Y Y

Recovery Plans prepared N N Y

Critical Habitat designated N N Y

Thank you!

Dave Plumpton(415) 981-2811

dplumpton@ene.com

Photo©2009 Bruce MacGregor