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USFWS proposes to Revise Eagle Permit Regulations to facilitate development of wind energy

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Note: this is a press release issued 12 April 2012. The actual proposed rule has not yet been posted on regulations.gov, published in the Federal Register, or posted on the USFWS website. As soon as it is available, it will be posted here, so please check back.


Service Proposes to Revise Eagle Permit Regulations, Seeks Public Comment

on Future Improvements to Permit Program


The U.S. Fish and Wildlife Service proposed today to revise regulations

governing the issuance of permits under the Bald and Golden Eagle

Protection Act in order to facilitate development of renewable energy and

other projects, while ensuring that those operations minimize and avoid

impacts to bald and golden eagles. The Service is also inviting ideas from

the public on how the permit program can be improved.


The proposed changes would extend the maximum term for programmatic

permits from 5 to 30 years, if the permits incorporate specific adaptive

conservation measures that may be necessary to ensure the preservation of

eagles. The Service has also proposed to increase the fees associated with

the review and issuance of permits in order to cover its true costs and

ensure effective monitoring of projects over the extended permit terms.


“We’ve worked hard with our partners to protect eagle populations

nationwide, and will make sure they continue to thrive. These proposed

changes will help facilitate the responsible development of renewable

energy and other projects, while conserving bald and golden eagles by

requiring key conservation and monitoring measures to be implemented,”

said Fish and Wildlife Service Director Dan Ashe. “We are committed to

monitoring the impact of projects on eagle populations over the life of

the permits to ensure these measures are effective.”


The proposed changes, if approved, would amend permit regulations

finalized on September 11, 2009 under the Bald and Golden Eagle Protection

Act for the take of eagles that may occur as the unintended result of

various activities. The regulations provide for both standard permits and

programmatic permits. Standard permits cover individual instances of take

that cannot practicably be avoided, while programmatic permits are

necessary to authorize projects where recurring, unavoidable take occurs

over the long term, such as with wind energy projects, electric utilities,

and timber operations. Most take authorized by these permits has been in

the form of disturbance to eagles and their habitat; however, permits may

authorize lethal take that is incidental to an otherwise lawful activity.


Since publication of the 2009 final rule, it became evident that the

5-year term limit on permits did not correspond to the timeframe of

projects operating over the long-term and was insufficient to enable

project proponents to secure the funding, lease agreements, and other

necessary assurances to move forward with projects.


Under the proposed rule, only those applicants who commit to adaptive

management measures to ensure the preservation of eagles would be

considered to receive permits with terms longer than five years. Any such

measures would be negotiated with the permittee and specified in the terms

and conditions of the permit.


This rule would also amend the schedule of permit fees set forth by

increasing the fees for programmatic eagle take permits to reflect the

increased cost to the Service of developing adaptive mitigation measures

and monitoring the effectiveness of the terms and conditions over the life

of the permit. For programmatic permits with tenures of 5 years (the

maximum period allowed under current regulations), the permit application

processing fee would be increased to $36,000.


In addition, the regulations propose an “administration fee” linked to the

duration of the permits to enable the Service to recover its costs for

monitoring and working with the permittees over the life of the permits.

The proposed administration fee ranges from $2,600 for permits with

tenures of 5 years or less to $15,600 for 30-year permits. The regulations

propose a reduced application processing fee of $5,000 for permit

applications for small wind projects and other activities not expected to

have significant effects on eagles. The Service will be accepting comments

on this proposed rule for 30 days (or until May 14, 2012).


“Feedback from developers indicates that these permit fees are considered

a small part of the large investments of most projects requiring

programmatic permits.” said Jerome Ford, the Service’s Assistant Director

for Migratory Birds. “By enabling us to improve our permit processing and

ensure adequate monitoring over the life of the permit, these increases

will help ensure a more efficient and effective permit process.”


In addition, the Service published an Advanced Notice of Proposed

Rulemaking (ANPR) to solicit ideas, suggestions and information that could

help guide other potential improvements to the 2009 final regulations.

Through this public process, the Service is seeking recommendations to

create a more efficient permit process to preserve and protect eagle

populations. The Service is particularly interested in public ideas and

suggestions that would help clarify the permit issuance criteria; help

determine appropriate compensatory mitigation; and better define the Eagle

Act’s preservation standard. The comment period for the ANPR will be open

for 90 days (or until July 12, 2012).


Written comments and information concerning the proposed permit regulation

changes must be submitted by May 14, 2012. Docket Number



Written comments and information concerning the Advanced Notice of

Proposed Rulemaking must be submitted by July 12, 2012. Docket Number



Comments must be submitted separately for the proposed permit regulation

changes and for the ANPR and may be submitted by one of the following



Federal eRulemaking Portal: http://www.regulations.gov. Follow the

instructions for submitting comments to Docket No. FWS-R9-MB-2011-0054 or

Docket No. FWS-R9-MB-2011-0094;

U.S. mail or hand delivery: Division of Migratory Bird Management,

Attn: RIN 1018–AV11, U.S. Fish and Wildlife Service, 4401 N. Fairfax

Drive, MBSP– 4107, Arlington, Virginia 22203

Email: EaglePermitRegulation@fws.gov.

Include the ‘Docket Number FWS-R9-MB-2011-0054 or Docket Number

FWS-R9-MB-2011-0094” in the subject line of the message. Please submit

electronic comments in plain text files, avoiding the use of special

characters and encryption.


The Service will post all comments on http://www.regulations.gov. This

generally means any personal information provided through the process will

be posted.

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