Printed with Permission from Troutman Pepper
Written by: Andrea Wortzel, Viktoriia De Las Casas, and Morgan Gerard
Effective April 12, 2024, a new eagle take permitting regime will be in place. The eagle take permitting scheme has been criticized because of its overly conservative and burdensome requirements. These concerns culminated in a lawsuit filed against the US Fish and Wildlife Service (FWS). Debra Shearwater et al. v. FWS, Case No. 14-CV-02830 (N.D. Cal 2015). The changes to the permitting regulations published on February 8 are the outcome of that litigation.
Overview of the Updated Permitting Framework
The most significant change to the eagle permitting program is the establishment of a general permitting program for certain qualifying wind energy projects, power line infrastructure, bald eagle nest take, and bald eagle disturbance. The final rule also maintains the availability of specific permits for activities that do not qualify for general permits. The updated permitting program removes the requirement that permits include a specific take limit, as well as third party monitoring provisions for wind projects. Permittees will be required to provide compensatory mitigation from a FWS-approved conservation bank or in-lieu fee program. The details of the various permits are outlined below.
Wind Permits
- General Permit: In order to qualify for the general permit for wind projects, applicants must be located in areas with certain relative abundance values according to the FWS’ map, and golden eagle 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 through routine operations and maintenance monitoring (the FWS refers to it as “concurrent” monitoring). The general permit would have a term of five years. If the take of three eagles of any one species occurs, the FWS must be notified, and adaptive management measures must be implemented. If a 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 developing an adaptive management plan, removing anthropogenic hazardous attractants to eagles, minimizing collision and electrocution risks, and implementing compensatory mitigation.
- Specific Permit: Specific permits are available for projects that are ineligible for the general permit or are seeking a more customized approach. These permits may be issued for a term of up to thirty years. Applicants for specific permits will be processed based on a tiered approach. Tier 1 applications have the lowest level of risk and complexity and do not require many alterations from the general permits. Tier 2 applications have a moderate level of risk and complexity and require greater customization. There is also an option for a Tier 2 application with a reimbursable agreement for those applications that will take FWS more than 275 hours to review.
FWS suggests that fatality monitoring may still be required, and has indicated that it will issue guidance regarding monitoring standards. FWS will derive the compensatory mitigation requirement for a project using a project-specific fatality estimate based upon either site-specific data that meets the Service’s data collection standards or the Service’s generalized fatality estimation process (i.e., using the nationwide specific permit priors). Enhanced monitoring using experimental technology may be an option for reducing mitigation requirements.
Power Line Permits
- General Permit: 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.
- Specific Permit: For projects unable to meet the general permit requirements, specific permits are available on a tiered basis. Tier 1 applications have the lowest level of complexity and do not require many alterations from the general permits. Tier 2 applications have a moderate complexity and require greater customization. There is also an option for a Tier 2 application with a reimbursable agreement for those applications that will take FWS more than 275 hours to review.
Eagle Nest Take Permits
General permits would be available for the take of bald eagle nests to address emergencies, health, and safety or removal from human-engineered structures. If located in Alaska, bald eagle nests taken for other purposes would be permitted as well. Note that general permit coverage is not available for take of golden eagle nests. The 2024 Eagle Rule updates the definition of “eagle nest” to provide that a 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. Compensatory mitigation is not required for a general permit. Specific permits continue to be available for golden eagle nest take.
Eagle Disturbance
Bald eagle disturbance general permits are 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 final rule provides that permit coverage for activities at greater distances is not needed because such activities are unlikely to disturb eagles. This general permit has a term of one year and requires avoidance and minimization measures, monitoring of in-use nests, and an annual report, but no compensatory mitigation. The disturbance of a golden eagle nest will continue to require a specific permit.
Next Steps
Implementation of the general permit program will occur in stages. For wind and power lines, FWS expects that the general permit registration will be available starting May 6, 2024. Those interested in applying before the availability of the online registration system may use a Service-designated form. Regarding bald eagle disturbance and nest take permits, FWS will continue to use specific permits for the remainder of the 2024 nesting season, and the general permit is anticipated to be available starting on July 8, 2024, with an online registration system expected to be online by September 1, 2024.
The FWS final rule is available here.