The Bald and Golden Eagle Protection Act New Ruling - issues and compliance solutions

1. Federal Eagle Law and Electric Transmission: Issues and Solutions David Plumpton, Ph.D., CWB Ecology & Environment Inc 130 Battery Street, 4th Floor San Francisco, CA 94111 September 21, 2011

2. 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

3. 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.”

4. BGEPA permitting APP / ABPPsuggested, 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. ECPwith 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.

5. Strategies for Compliance 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

7. Thank you!Dave Plumpton(415) 981-2811dplumpton@ene.com Photo©2009 Bruce MacGregor