In September of 2022, the U.S. Fish and Wildlife Service proposed revisions to the regulations of permits for eagle and eagle nest incidental take. These revisions are intended to increase the efficiency of permitting, facilitate and improve compliance and increase the conservation benefits for eagles. A final rule on the proposed revisions was set to take place in September, 2023, however no decision has been made as of yet.
Eagle Take Permit Background
The U.S. Fish and Wildlife Service (Service) is responsible for managing federally protected species under the Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA; Eagle Act). The Eagle Act prohibits take, possession, or transportation of both bald and golden eagles and their nests in the U.S. The Eagle Act also provides the regulations to allow eagle take through Eagle Take Permits in certain situations, so long as it is “compatible with eagle preservation” in that area.
First Established in 1940 for the specific protection of eagles, the Eagle Act was revised in 2009 (2009 Eagle Rule) when the Service developed protocols that established two new permit types, one for incidental take of eagles and one for incidental take of eagle nest. In 2016, the Eagle Act was revised again (2016 Eagle Rule) when the Service finalized rules that “extended the validity of permits for the incidental take of eagles from 5 to 30 years, updated the boundaries to the Service’s Eagle Management Units (EMUs) to represent regional populations and migration patterns more accurately, imposed preconstruction monitoring requirements for wind-energy projects applying for incidental take permits, amended the preservation standard and imposed a new requirement to analyze cumulative-authorized and known-unauthorized take at local scales to ensure compliance with the preservation standard.”
Addressing Challenges in the Current Permitting Situation
Currently, Eagle Take Permits are issued as a specific, or individual permit that is tailored to an individual project, subsequent to the completion of an Eagle Conservation Plan (ECP) following the Service’s guidelines. Wind facilities are large contributor to eagle mortalities in the U.S. Of the 1,000 plus wind facilities currently operating on the landscape in the U.S., the Service has received fewer than 100 applications, and of those applications has only issued 26 permits since the revisions in the 2016 Eagle Rule. The process for obtaining an Eagle Take Permit is currently cumbersome, heavily involved and expensive. Since implementation of the 2016 Eagle Rule, it appears that the Service’s amended permitting structure did not fully achieve their goals.
The Service expects year-round preconstruction surveys to collect eagle use data within potentially impacted areas for multiple years to determine eagle abundance for the impacted area prior to applying for and obtaining an Eagle Take Permit, as well as continued monitoring of the facility for casualties postconstruction. The 2016 Eagle Rule introduced a requirement that pre- and postconstruction surveys are to be completed by a third party contractor, such as TRC. The Service believes this requirement has proven impracticable to implement at some projects for a variety of factors, including access issues for project sites that are leased from multiple private landowners.
Pending Revisions May Impact Future Monitoring Requirements
The Service is proposing a general permit approach to Eagle Take Permits for most wind facilities, while reserving the specific permit process for projects with a high or uncertain risk to eagles. The purpose of general permits is to simplify and expedite the permitting process for activities that have relatively consistent and low effects on eagles and well-established avoidance, minimization, compensatory mitigation, monitoring and other permit conditions where take may be authorized without site-specific analysis.
The Service is suggesting the use of “relative eagle abundance” as an eligibility requirement for wind facility general permits. Instead of monitoring a specific area prior to construction to assess eagle use and calculating eagle abundance, the Service will provide publicly available online mapping resources identifying areas that qualify based on seasonal parameters the Service has set.
General permit applicants would self-identify as eligible and register with the Service, including providing required application information and fees, as well as prove that they meet eligibility criteria and will implement permit conditions and reporting requirements. The general permits being proposed would change a few major things:
- Eliminate the requirement of preconstruction monitoring and third party postconstruction monitoring.
- Remove the 5-year reviews on specific permits with 30-year tenure.
- Place a 5-year tenure on general permits.
- General permits for wind facilities will be authorized for the take of both species without authorizing a specific number of eagles on the face of the permit.
These revisions are derived from complaints from the regulated community that permitting parameters and scheduled reviews for Eagle Take Permits have introduced uncertainty into project planning and funding, have discouraged potential applicants from participating, or have influenced the permit tenure an applicant may request. The Service believes amendments to the current regulations will encourage broader participation in permitting by providing applicants with greater certainty and simplicity in applying for both general and specific permits. The Service anticipates in turn that eagle populations will benefit significantly from many more projects complying with avoidance, minimization, and mitigation requirements.
The decision for this rule was scheduled for September of 2023, however no update has been provided by the Service to date. Until a decision is reached, permitting will continue to follow the 2016 Eagle Rule. The proposed revisions to the 2016 Eagle Rule could reduce the need for third party monitoring on projects where a general Eagle Take Permit is applicable. As renewable energy production continues to increase in the U.S., and most of all wind energy, the market or need for consulting firms to conducted pre- and postconstruction monitoring could actually decrease.
For proposed facilities that will meet the requirements for a general Eagle Take Permit, TRC should offer our expertise and guidance on navigating permitting processes to developers to help facilitate the transition to the newly defined permits. As with any new process, there will likely be questions and ambiguity that we can help clarify for a client.