Archives: January 2014

USFWS Extends Eagle Take Permits to 30 Years

The U.S. Fish and Wildlife Service extended the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act to 30 years. This means that renewable energy project developers – particularly wind project developers – can apply for permits that authorize recurring “take” (i.e., disturbance or killing) of eagles that is unavoidable even with mitigation. The rule eclipses the five-year limit on programmatic take permits instituted in 2009.

The act prohibits the “take” of bald and golden eagles, their nests, or eggs, unless allowed by permit; specifically, one cannot “pursue, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” the eagles without permission. Wind energy projects can result in accidental takes when eagles fly into the windmill blades. While most project developers implement measures to direct eagles away from the blades, such as by attracting the birds to reflective material above the blades and locating the projects in less-populated zones, some takes are unavoidable even with such mitigation.

Until now, many developers opted not to apply for programmatic take permits, given the inefficiency of the permit’s five-year duration compared to the decades-long timeframe of renewable energy project operations. Instead, developers would either apply for standard permits, which authorize individual takes, or not apply for any permits. The new regulations do not change the fact that project developers are not legally required to apply for take permits before proceeding with their projects. The downside to this approach, however, is that a developer faces civil and criminal penalties for unpermitted takes done “knowingly” or with “wanton disregard.”

Although the permits can now extend up to 30 years, the length of each permit will depend on the characteristics of the projects, such as the project’s duration and the projected impacts to eagles. Additionally, permits issued for longer than a five-year period will undergo evaluations every five years to assess fatality rates, conservation and mitigation effectiveness, and eagle population levels. Applicants for these longer permits are also required to commit to adaptive management, which involves system monitoring with the goal of continually understanding and improving a project’s effect on eagles.

The issuance of a take permit is a federal action requiring compliance with the National Environmental Policy Act, meaning applicants must prepare an environmental assessment or an environmental impact statement in order to obtain a permit. The rule went into effect on January 8, 2014.

Will Cap-and-Trade Money Fund the High Speed Rail?

Governor Jerry Brown would like to fund a portion of California’s high-speed rail project with proceeds from cap-and-trade fees. Brown plans to propose directing millions of dollars garnered from carbon producers’ fees toward the $68 billion project. The governor would allocate hundreds of millions of dollars in 2014 alone.

California has already acquired $3.4 billion in federal funding to start constructing the rail. Project opponents, however, have challenged complementary state bond funding in court, creating a potential funding gap. In High Speed Rail Authority v. All Persons Interested, the Sacramento Superior Court declined to validate High Speed Rail Authority’s attempt to issue more than eight billion dollars in bonds to start construction. Construction, however, is still slated to begin early this year.

Governor Brown’s proposal will likely be included as part of his annual budget plan that will be released Friday, January 10, 2014.

First District Publishes Decision Upholding San Francisco’s Expansion of Plastic Bag Restrictions

On January 3, 2014, the First District Court of Appeal ordered publication of Save the Plastic Bag Coalition v. City and County of San Francisco. We previously wrote about the case here.

The League of California Cities and the California State Association of Counties jointly submitted a request for publication. In support of this request, the groups pointed out that: no other published decision has applied the rules of preemption to single-use plastic bag bans; the opinion suggests that if environmentally beneficial components are an integral aspect of a project from its inception, they may be considered when determining that a categorical exemption from CEQA applies to the project; the opinion clarifies that local agencies can use the Class 7 and Class 8 categorical exemptions and operate in a regulatory capacity; and the opinion provides helpful guidance regarding what qualifies as substantial evidence under the fair argument standard. The court did not state which, if any, of these arguments influenced its decision to publish the opinion.