The U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register that, if adopted, would revise the regulations related to eagle take permitting under the Bald and Golden Eagle Protection Act.[1] The proposed rule has garnered a lot of attention from multiple stakeholders. Indeed, the FWS was forced to increase the comment period by 30 days to accommodate the high number of responses.
The stated purpose of the proposed rule is “to increase the efficiency and effectiveness of permitting, facilitate and improve compliance, and increase the conservation benefit for eagles.” The rationale behind the purpose is due to a couple of factors. First, as the FWS notes in the proposed rule, bald eagle populations are increasing at a sizable rate, which has led to more interactions with humans, creating a surge in demand for eagle take permits. Second, while the bald eagle population continues to grow, the golden eagle population has decreased in recent years. According to the proposed rule, the decrease is due, in part, to the fact that while there are over 1,000 wind-energy projects, the FWS has issued only 26 permits since the promulgation of the 2016 eagle permit rule, far fewer than anticipated. As a result of the lack of permitting, there has been an unauthorized golden eagle take without any mitigating conservation. Finally, the current permitting process is seen as burdensome and creates uncertainty for those individuals and entities hoping to obtain a permit.
If adopted, the proposed rule would fall under a newly created Subpart E in 50 C.F.R. Part 22. Some provisions of the new rule include (1) the administration of specific and general permits for incidental take, (2) specific activity-specific eligibility criteria and permit requirements in four sections based on activity and type of eagle, (3) changes to monitoring requirements, (4) compensatory mitigation, and (5) changes to the application fees. A summary of the key terms is set forth below.
General Permits
Pursuant to the proposed rule, a “general permit” is defined as “a permit that is issued to an individual or entity with nationwide or regional standard conditions for a category or categories of activities that are substantially similar in nature.” FWS is proposing general permits for four types of activities: incidental take at wind-energy generation facilities, incidental take by power-line infrastructure, disturbance take of bald eagles and bald eagle nest take. Under the proposed rule, the FWS hopes to simplify and expedite the permitting process for activities that have relatively consistent and low effects on eagles by allowing general permit applicants to self-identify eligibility, register with FWS, and certify that they (1) meet the eligibility criteria and (2) will implement permit conditions and reporting requirements. The FWS would ensure that applicants are interpreting and using the general permit process properly by conducting annual audits for a small percentage of all general permits. Further, the FWS proposes limiting the duration of general permits for incidental take to a maximum of five years and for disturbance take or nest removal to a maximum of one year.
Incidental Take for Permitting Wind Energy. Eligibility for general permits for wind-energy generation projects, must be located in areas characterized by seasonal relative abundance values specified in the regulations for each species, be placed greater than 660 feet from bald eagle nests and greater than two miles from golden eagle nests, and have had less than four eagle mortalities of either species discovered at the project. Take of both species would be authorized under the general permit without a specific number listed on the permit.
Incidental Take for Permitting Power Lines. To be eligible for a general permit for incidental take of eagles by power lines, the applicant must (1) ensure that all new construction and reconstruction of poles is electrocution-safe, as limited by the need to ensure human health and safety; (2) must consider eagle nesting, foraging, and roosting areas in siting and design, as limited by human health and safety; (3) develop reactive retrofit strategy that governs retrofitting of high-risk poles when an eagle electrocution is discovered; (4) implement a proactive retrofit strategy to convert all existing infrastructure to electrocution-safe; (5) implement an eagle collision response strategy; (6) implement an eagle-shooting response strategy; and (7) adequately train personnel to scan for eagle remains when onsite and implement internal reporting and recordkeeping procedures.
Eagle Disturbance Take Permits. This proposed general permit would authorize disturbance of bald eagles by specific activities taken near bald eagle nests, generally within the distances outlined in the National Bald Eagle Management Guidelines; such activities include building and linear infrastructure construction, alteration of shorelines or vegetation, recreation activities, etc. Under the proposed new rule, permitees would have to implement measures to avoid and minimize nest disturbance, however it does not specify what those measures would involve. General permits for disturbance take of golden eagles would not be available.
Permits for Take of Bald Eagle Nests. This proposed general permit would authorize bald eagle nest take for four purposes: emergency, health and safety, removal from human-engineered structures, and other purposes. In addition to the first four stated purposes, FWS proposes an exception to this specific permit for other purposes by authorizing a general permit only in Alaska for bald eagle nest take for other purposes. General permits for disturbance take of golden eagles would not be available.
Monitoring Requirements
Industry stakeholders will be pleased that FWS is proposing to remove the current third-party monitoring requirement from eagle incidental take permits, including specific permits.
Under the proposed rule, for general incidental take permits, to better understand the program’s impacts and to verify that the general permit program is compatible with the preservation of eagles, FWS plans to use the permit application and administration fees for program-scale monitoring (instead of the current project-scale monitoring required of the permittee). FWS plans to compile information on general permits issued on an annual basis.
Some monitoring requirements will still apply to most general permit holders. For the wind-energy and power-line incidental take general permits, training relevant employees to recognize and report eagle take as part of their regular duties, including scanning for injured eagles and eagle remains during inspections, maintenance, repair, and vegetation management at and around project infrastructure would be required. For disturbance permits, implementation of monitoring of in-use nests that is sufficient to determine whether nestlings have fledged from the nest would be required and this information would have to be included on its annual report. For a one-year nest removal general permit, no monitoring would be required.
Compensatory Mitigation
Any permit authorizing take that would exceed the applicable Eagle Management Unit (EMU) take limit will require compensatory mitigation. Additionally, a permit may require compensatory mitigation if FWS determines that the persistence of the local area population of an eagle species in the project area may not be maintained.
Permit Fees
The proposed general permit fees vary by general permit type. For incidental take by wind-energy generation, the application fee is $500, and the permit-administration fee is $2,625 per turbine. For incidental take by power lines, the proposed application fee is $500, and the proposed permit-administration fee is $5,000 for each state for which the power-line entity is seeking authorization. For the bald eagle disturbance and nest-take general permits, the application fee is $100, with no administration fee.
[1]Fish and Wildlife Service, Permits for Incidental Take of Eagles and Eagle Nests, Proposed Rule, 87 Fed. Reg. 59,598, 59,599 (Sept. 30, 2022).