Re: Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests

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1 January 13, 2017 Michael Bean Principal Deputy Assistant Secretary For Fish and Wildlife and Parks U.S. Department of the Interior 1849 C Street, N.W. Washington, D.C michael_bean@ios.doi.gov Dan Ashe Director U.S. Fish and Wildlife Service 1849 C Street, N.W. Washington, D.C dan_ashe@fws.gov Re: Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests Dear Mr. Bean and Mr. Ashe: On behalf of American Bird Conservancy ( ABC ), I am writing about the Fish and Wildlife Service s ( FWS or Service ) recent amendments to the regulations for processing permits issued under the Bald and Golden Eagle Protection Act ( BGEPA ). ABC recognizes the considerable time and effort that have gone into the recent amendment, and we strongly support some of the changes made in the final rule such as the requirement that third parties report eagle mortalities directly to the FWS but we remain concerned about some aspects of the regulation. Our greatest concern is that the permitting regime will severely undermine, if not eliminate entirely, meaningful opportunities for public notice and comment on BGEPA permitting decisions, especially on long-term permits issued for wind projects and other industrial activities that may harm populations of eagles and other migratory birds. As you know, when the FWS first issued regulations in 2013 proposing to greatly expand the maximum duration of eagle incidental take permits from five to thirty years, and claimed that the rule change was categorically excluded from review under the National Environmental Policy Act ( NEPA ), ABC and other advocates challenged the rule on the principal grounds

2 that it would have a significant adverse impact on eagles including by eliminating opportunities for public notice and comment before permits could be renewed at five-year intervals. Judge Koh of the U.S. District Court for the Northern District of California invalidated the regulation because the FWS had violated NEPA by failing to take the hard look at impacts required by the statute. See Shearwater v. Ashe, No. 14-CV LHK, 2015 WL (N.D. Cal. Aug. 11, 2015). Judge Koh explained: There is no serious dispute that a sixfold increase in the maximum duration of programmatic eagle take permits will have the effect of reducing public participation in permitting decisions. Over the lifespan of a thirty-year permit, a project might be subject to NEPA s public participation requirements only once, when that permit is first issued. By contrast, a project under a five-year permitting regime would be subject to NEPA s public participation requirements six times during that same thirty-year period. FWS s apparent compromise to make eagle mortality data compiled by permittees every five years available to the public in some unspecified manner is not substitute for the public s right under NEPA to participate in permitting decisions. 50 C.F.R (h). Nothing in the Final 30-Year Rule requires the FWS to provide the agency s analysis of that data to the public, and Federal Defendants acknowledge that under the new rule the public may become involved only if FWS decides that there is a need for significant permit amendment. Id. at *17. Consequently, the Court held that this significant adverse effect on opportunities for public access and involvement, along with other impacts associated with the substantial increase in permit duration, had to be afforded a hard look in a NEPA document. Id. Although the FWS has now prepared an Environmental Impact Statement ( EIS ) in connection with the change in permit duration (along with other amendments in the BGEPA regulations), it has again failed to remediate the preclusion of meaningful public access and input. Rather, in response to comments by ABC and others that thirty year permits with internal FWS reviews at five-year intervals will eliminate opportunities for public accountability and input, the Service has sidestepped rather than confronted the problem. In particular, the FWS stated in the final rule that: [t]here is no requirement under NEPA to involve the public in a permit renewal process unless there is a need to supplement the associated NEPA analysis underpinning the original permit decision. Public involvement would be limited to reviewing a draft supplemental EA/EIS and would not be part of [the] Service s regulatory review procedure set out for the permit itself, whether the action is permit renewal for a 5-year permit or a permit evaluation conducted every 5 years. Accordingly, there is no difference in public involvement through NEPA between a 5-year review and a 5-year renewal. 81 Fed. Reg (emphasis added). 2

3 That finding of no difference in public involvement through NEPA between a 5-year review and 5-year renewal flies in the face of Judge Koh s holding to the contrary, and also contradicts without explanation or even acknowledgement what the FWS said when it previously adopted the 30-year take limit. As explained by Judge Koh, in the prior rulemaking, in response to public comments that a 30-year permit would decrease opportunities for public stakeholder involvement because decisions on issuance and reissuance are subject to NEPA analysis and tribal consultation, the FWS conceded the inevitable: [l]eaving the 5-year maximum permit term in place would have allowed for additional public and Tribal comment during the NEPA process for each of the multiple permit applications [FWS] would have evaluated for an activity expected to last decades WL , at *17 (emphasis added; internal quotation omitted). Moreover, the Service was correct when it conceded that five-year renewal decisions allowed for additional opportunities for public involvement. Under the regulations implementing NEPA, every FWS decision to renew a permit is a new federal agency action that triggers an obligation to engage in at least some level of NEPA review. See. e.g., 40 C.F.R (b) (Council on Environmental Quality NEPA regulations broadly defining agency actions that must undergo NEPA review to encompass all new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies, including [p]rojects approved by permit or other regulatory decision as well as federal and federally assisted activities ) (emphasis added). Hence, under a system in which the FWS must affirmatively renew a permit e.g., for an industrial wind power project that is killing eagles protected by BGEPA the FWS is obligated to engage in some level of NEPA review for each and every permit renewal decision. This, in turn, necessarily affords opportunities for the concerned public to obtain information regarding, at minimum, (1) whether the FWS intends to renew the permit; (2) if so, on what terms and conditions; and (3) which level of NEPA review it intends to pursue (an Environmental Impact Statement ( EIS ), Environmental Assessment ( EA ), or Categorical Exclusion ( CE )). See 81 Fed. Reg (acknowledgement by the FWS in the final rule that [s]ome level of NEPA review... is always required when a federal agency issues a permit to authorize any otherwiseprohibited activity ) (emphasis added). In addition, under an affirmative renewal system, if the public disagrees with how the Service is making the renewal decision (including the level of NEPA compliance being afforded), the public could seek to influence the FWS s approach in the first instance (e.g, by urging the Service to prepare an EIS rather than an EA, or an EIS/EA in lieu of a CE) and, failing that, the public would always have the opportunity for judicial review because every permit renewal decision is a new final agency action subject to such review under the Administrative Procedure Act. See 5 U.S.C. 706(2). In sharp contrast, the new rule s 5-year review process is structured and, evidently, intentionally structured so as to minimize or exclude opportunities for public access and input. It provides that the Service will make eagle mortality information from annual reports available to the public, 50 C.F.R (c)(30 without specifying how or when but makes no such commitment with regard to the FWS s own five-year reviews of long-term permits, notwithstanding comments by ABC and others urging that it do so. As a result, the public may be left entirely in the dark as to how the Service is implementing the adaptive management 3

4 provisions on which the long-term permits will be predicated. Further, although the FWS may, in its discretion, determine that there is a need to supplement the associated NEPA analysis underpinning the original permit decision, 81 Fed. Reg , if the FWS fails to make such a determination, there will be no affirmative agency decision (as there would have to be for 5-year permit renewals) that will afford the public an opportunity as a matter of course to argue for additional NEPA review before the Service and, if need be, a reviewing court. Moreover, it is precisely when the FWS and organizations such as ABC may not see eye to eye as to the terms and conditions under which eagles should continue to be killed and/or where eagle advocates are in possession of important information or expertise that the Service may lack that opportunities for public access and involvement are crucial. Yet, as before, the final rule does not even acknowledge the legitimacy of these concerns, let alone attempt to alleviate them. Indeed, the FWS not only has eliminated a renewal system under which the public had opportunities to participate in renewal decisions through the NEPA process, but also has rejected without any reasonable explanation proposals by ABC and other commenters for at least enhancing the public s ability to understand and participate in the FWS s internal reviews. In response to comments opining that the internal review process could eliminate or significantly curtail public... participation, input, and oversight after the permit is initially granted and urging that [l]anguage should be included in the rule that expressly allows for public... data sharing, input, and review at each 5-year interval, the FWS summarily rejected these comments on the grounds that: Involving the public would entail public hearings or notice and comment in the Federal Register, greatly increasing Service workload and costs, resulting in delays, and generally making the 5-year review unworkable. 81 Fed. Reg (emphasis added). This cursory response ignores entirely the value of public involvement in FWS decision making while greatly overstating the difficulties that that involvement would pose. Especially in an era in which the FWS is severely strapped for resources and agency personnel have myriad competing priorities for their time and attention, non-governmental organizations such as ABC and others with expertise in bird conservation may play an invaluable role in bringing important issues to the Service s attention that might otherwise receive little or no scrutiny. Indeed, the Service s response overlooks the fact that a modicum of public involvement in the five-year reviews may save the FWS time and resources by identifying significant issues and information (e.g., relating to cumulative impacts on eagle populations in a particular locality, or the emergency of new mitigation techniques) for consideration by overextended FWS employees. At the same time, the Service s cursory response greatly exaggerates the workload and costs associated with affording the public a reasonable opportunity for access and participation. ABC s comments did not call for public hearings or formal notice in the Federal Register with regard to every five year review. Rather, consistent with the CEQ regulations, the FWS could employ a variety of low-cost but effective means for notifying the interested public of the pendency of a five-year review and affording a reasonable opportunity for the submission of relevant information and views. See 40 C.F.R (requiring agencies to provide public 4

5 notice as to the availability of environmental documents so as to inform those persons and agencies who may be interested and affected, such as by providing mail notice to those who have requested it ). In sum, while ABC commends the FWS for a number of its revisions to the new rule, ABC has several remaining concerns - in particular what seems to us an unconstructive approach to the value of public involvement in BGEPA permits that may last for decades. We would very much welcome the opportunity to meet with the Service to discuss this matter further in a constructive way. In particular, we would be interested to determine potential ways of resolving this issue that would not necessarily require additional rulemaking. If that idea appeals to you, kindly let me know as soon as possible. Respectfully, Michael J. Parr Chief Conservation Officer 5