U.S. Fish and Wildlife Service Finalizes Eagle Take General Permit Framework

On 12 February 2024, the U.S. Fish and Wildlife Service (Service) published long-awaited revisions to its eagle take permitting regulations under the Bald and Golden Eagle Protection Act (the Act).

The new rule allows qualifying projects such as wind energy facilities and transmission lines to rely on general eagle take permits rather than applying for project-specific, discretionary take authorization. The rule is meant to increase the efficiency and effectiveness of permitting while supporting conservation benefits for bald and golden eagles.

The final rule carries forward many of the concepts proposed in the draft rule that the Service published in September 2022 (see our article here). The main aspects of the final rule are as follows:

• General eagle take permits for qualifying activities. The final rule allows qualifying wind energy projects, transmission facilities, activities that disturb eagle habitat, and activities that remove eagle nests to obtain take coverage under general permits as an alternative to project-specific take permits. Coverage under general permits would automatically apply once the applicant self-reports eligibility and pays the applicable fees. There would be no discretionary action by the Service for a project to obtain coverage under a general permit, and it would not independently trigger environmental review under the National Environmental Policy Act (NEPA). General permit coverage has a maximum term of five years subject to renewal in five-year increments for up to thirty years total. Existing wind energy projects may obtain general permit coverage if the Service determines that eagle take rates are consistent with or lower than rates expected at similar-sized wind facilities that qualify for the general permit; the Service estimates that 80 percent of existing wind farms in the continental United States would be eligible for general permit coverage.

• Specific eagle take permits. Actions that do not qualify for general permit coverage would still have the option to obtain a specific permit. The final rule makes some important changes to the existing regulations concerning specific permits, such as by removing individual take limits (see below) and creating tiers of specific permits based on complexity, with each tier requiring different application fees. Specific permits are valid for up to 30 years.

• Eagle limits. Unlike under the previous regulations, neither general nor specific take permits will specify an authorized number of eagles that may be incidentally killed or injured by the covered activity. However, three eagle discoveries within a general permit’s initial five-year term would trigger adaptive management, and four discoveries would make the project ineligible for future general permit coverage.

• Compensatory mitigation. General permittees must complete compensatory mitigation based on the project’s “hazardous volume” by obtaining “eagle credits” from a Service-approved mitigation bank or in-lieu fee program. The hazardous volume of a project is calculated as the number of turbines multiplied by 0.200π(d/2)^2 where d is the diameter of the blades in kilometers. The mitigation rates are 6.02 eagles/km3 in the Atlantic/Mississippi Eagle Management Unit (EMU); 7.46 eagles/km3 in the Central EMU; and 11.12 eagles/km3 in the Pacific EMU. Specific permittees must mitigate based on project-specific take estimates at a ratio of 1.2:1 using either a conservation bank, in-lieu fee program, or applicant-proposed mitigation plan.

• Fatality monitoring. The final rule allows permittees to self-monitor for take rather than requiring fatality monitoring by the Service or a third party. This is one of the few areas where the final rule deviates from the proposed rule, which contemplated Service-led monitoring. Permit conditions will specify a minimum monitoring frequency and require that trained employees visually scan for injured eagles and remains while in the vicinity of project infrastructure.

• Nest definitions. The final rule narrows the definition of “eagle nest” to exclude nest structures on failed nesting substrate. In addition, the rule revises the definition of “in-use nest” to require viable eggs. These edits help clarify previous uncertainty about the Act’s applicability to failed, unusable, and abandoned nests.

• Avoidance and minimization measures. Holders of both general and specific eagle take permits are required to implement all practicable measures to reduce eagle take, including reducing eagle attractants, mortality monitoring, and nest avoidance. In the context of wind energy facilities, golden eagle nests must be at least two miles from any turbines, and bald eagle nests must be at least 660 feet away. In the context of power lines, permittees must develop an Avian Protection Plan with strategies for collision response, proactive retrofit, reactive retrofit, and shooting response.

As we concluded in our previous article on the draft rule, the general permit program for eagle take incidental to wind energy projects makes a lot of good sense. The automatic issuance of general permits upon self-certification allows project proponents to avoid lengthy and costly negotiations with the Service if the project meets the eligibility criteria and observes the program’s standardized conditions. Avoiding discretionary review by the Service also means that wind energy developers of private lands can avoid undergoing NEPA review for projects that have no other federal nexus. The program resembles the U.S. Army Corps of Engineer’s nationwide permit program for impacts to waters of the United States, which has proven to be far more efficient than issuing thousands of individual permits each year. If it works as planned, the Service’s general permit program could finally provide a stable, workable solution to more than 15 years of regulatory trial and error over how to feasibly implement the Bald and Golden Eagle Protection Act.

Bell Kearns specializes in advising on the review and entitlement of large-scale renewable energy projects. If you have any questions regarding this article, please feel free to contact us at +1.415.230.0599 or info@bell-kearns.com.