Today, the U.S. Fish and Wildlife Service (“Service”) published notice in the Federal Register of a final rule amending its regulations authorizing permits for eagle incidental take and eagle nest take. The final rule comes roughly a year and four months after the Service issued its proposed rule (discussed here) and includes most of the changes from the proposed rule. Most notably, the Service has authorized general permits for certain activities where standard conditions can be met. In addition to the new general permit framework, the Service has adopted a number of other changes to overall requirements and processes, with the goal of increasing compliance by simplifying the permitting process. Key changes in the final rule include:
General Permit for Wind Energy Facilities. The final rule includes a general permit for wind energy facilities that are located in areas that are “low risk” to eagles. For first-time applicants, whether a project is eligible for a general permit is based on eagle abundance and eagle nest proximity. Specifically, all project components must be located within areas where the eagle relative abundance is below the regulatory threshold and must be located at least two miles from a golden eagle nest and 660 feet from a bald eagle nest. To determine eligibility, the Service will maintain a mapping tool (here). For projects that do not meet the general permit eligibility criteria, the Service will allow applicants to submit a specific permit application and request a letter of authorization to obtain a general permit. In the notice, the Service estimates that “more than 80 percent of existing land-based wind turbines in the lower 48 States may be eligible for general permits.” General permits will be valid for five years.
General Permit for Power Lines. The final rule includes a general permit for power line infrastructure. With the final rule, the Service is recommending a general permit for “any power line entity that can comply with standardized general permit conditions.” To qualify for a general permit, the applicant must, among other actions: (1) develop a reactive power pole retrofit strategy and implement following discovery of each electrocuted eagle, (2) implement a proactive retrofit strategy to make all existing infrastructure avian-safe, (3) implement an eagle collision response strategy, (4) implement an eagle shooting response strategy, (5) train staff to scan for eagle remains, and (6) implement avian-safe practices and designs into new construction. General permits will be valid for five years.
General Permit for Bald Eagle Disturbance. The final rule includes a general permit for the disturbance of bald eagles when the disturbance will result from: building construction, linear infrastructure construction/maintenance, alteration of shorelines/waterbodies, alteration of vegetation, motorized or nonmotorized recreation, aircraft operation, prescribed burns, and loud intermittent noises.
General Permit for Bald Eagle Nest Take. The final rule includes a general permit for bald eagle nest take for the purposes of emergencies, protection of health and safety, and protection of human engineered structures. This general permit includes standard permit conditions that are applied to nest removal activities. Note that the Service will continue to require specific permits for any take of golden eagle nests. Although not included in the final rule, in its press release related to the final rule, the Service notes that it is also continuing to review and approve eagle mitigation providers and new compensatory mitigation methods (in addition to power pole retrofits).
