On Friday, September 30, the U.S. Fish and Wildlife Service (FWS) published its much-anticipated proposal, updating the regulations governing permits for incidental take of bald and golden eagles, as well as take of their nests. This proposal is the culmination of efforts to improve the effectiveness of the eagle take permitting process, particularly for wind energy projects. The rule was last updated in 2016, but it was challenged by the Energy and Wildlife Action Coalition. In 2019, that challenge was settled with a commitment from the FWS to amend the rule. In September 2021, the FWS issued an Advance Notice of Proposed Rulemaking, seeking comments on potential revisions to the eagle take permitting process.
The most notable aspect of the proposal is the establishment of a general permitting program for certain qualifying wind energy projects, power line infrastructure, eagle nest take, and eagle disturbance. The FWS requests public input to further refine the proposal.
Overview of the General Permitting Framework
The proposed general permit will function in large part as a registration process. Certain qualifying projects can self-certify that they meet the criteria and then will be granted coverage. The qualifications may vary depending on the location of the project and whether bald or golden eagles will be impacted.
A. Wind General Permit
In order to qualify for the general permit for wind projects, applicants must be located in areas within certain relative abundance values, and golden eagles nests must be at least two miles and bald eagle nests must be at least 660 feet from any turbines. The applicant must implement procedures to discover eagles (although third-party monitoring would not be required) and allow access by FWS staff or contractors to conduct systematic monitoring. The general permit would have a term of five years and authorize the take of four eagles. If take of three eagles of any one species occurs, the FWS must be notified, and adaptive management measures must be implemented. If take of four eagles of the same species occurs, the FWS must be notified. Incidental take coverage will continue to be provided through the remaining term of the general permit, but the project would not be eligible for future general permits. Additional requirements of the general permit would include development of an adaptive management plan, removal of anthropogenic hazardous attractants to eagles, minimization of collision and electrocution risks, and implementation of compensatory mitigation.
B. Power Line General Permit
In order to qualify for the general permit for power lines, an applicant must ensure that all new construction or reconstruction of poles is electrocution-safe, implement a reactive retrofit strategy if an eagle is electrocuted, and implement a proactive retrofit strategy to convert all existing infrastructure to electrocution-safe, with one-tenth of that infrastructure conversion occurring during the general permit term of five years. Additionally, applicants must implement a collision response strategy and an eagle-shooting response strategy. Information on eagles must be incorporated into siting and design considerations.
C. Eagle Nest Take
General permits would be available for take of bald eagle nests to address emergency, health, and safety or removal from human-engineered structures. If located in Alaska, bald eagle nest take for other purposes would be permitted as well. General permit coverage is not available for take of golden eagle nests. It is worth noting that the proposal includes an updated definition of “eagle nest” that adds language providing that an eagle nest remains an eagle nest until it becomes so diminished or the nest substrate upon which it is built fails, such that the nest is no longer usable and is not likely to become usable to eagles, as determined by a federal, state, or tribal eagle biologist.
D. Eagle Disturbance
In broad strokes, the eagle disturbance general permit would be available to cover certain disturbance activities, such as construction, maintenance, and blasting, located within 330 feet of an active bald eagle nest or 660 feet from an inactive bald eagle nest. The disturbance of a golden eagle nest will continue to require a specific permit. This general permit would be available for a term of one year. The proposal states that permit coverage for activities at greater distances is not needed because they would be unlikely to disturb eagles. The general permit would require avoidance and minimization measures, monitoring of in-use nests, and an annual report (due within 30 days of expiration of the permit).
Revisions to the Specific Permit
Where a project does not qualify for a general permit, specific permits remain available. The proposal also changes some of the requirements associated with specific permits. The two most significant changes are the elimination of the third-party monitoring requirement and the elimination of the requirement to review the permit every five years and make adjustments to the take limit. Instead, the FWS intends to hold the amount of take authorized under a long-term specific permit constant (rather than having the take allowance increase over time), unless the permittee requests an amendment or unless the FWS determines that an amendment is necessary and required.
Take estimates for wind projects will be based on the best available information and published procedures. The application process requires development of an eagle impact assessment that includes an estimate of the number of eagles using the project area and projected take. The assessment must be based on survey, modeling, and take estimation methods that have been “officially issued or endorsed” by the FWS.
Next Steps
The proposal will undergo a 60-day public comment period until November 29, 2022. Two information sessions will be held for the general public, on October 20 at 12 noon ET and November 3 at 2 p.m. ET.
The FWS’ proposal is available here.
