USFWS releases eagle incidental take rule

[Laura Bies]

The U.S. Fish and Wildlife has released updated permitting regulating the incidental take of Bald and Golden Eagles protected by the Bald and Golden Eagle Protection Act. Under the final rule, the agency has created a simplified, voluntary permit system, which it hopes will increase industry participation and therefore provide more conservation benefits for eagles.

The USFWS first released the proposal in September 2022. Public comments submitted on that proposal led the agency to make some changes before releasing the final rule, such as the introduction of a scaled-fee structure for permits. The USFWS also modified the requirements for monitoring, allowing “industry self-monitoring conducted "according to Service protocols" by project staff.

The value of third party monitoring was stressed in the comments submitted to the Ornithological Council. While the proposal would eliminate the need for independent third party monitoring, the OC’s comments expressed concerned about a permitting scheme that would rely solely on permittees performing regular monitoring and self-reporting eagle deaths. We believe that independent monitoring is essential and that the cost should be borne by the permittee. Monitors should be qualified biologists who are trained in a standard methodology that has been peer-reviewed and field-tested.

The OC's comments also encouraged that permit conditions should provide that all carcasses and bird parts must be collected and preserved according to established protocols. All carcasses and parts that are not needed by the USFWS for law enforcement purposes or for the National Eagle repository, or by Tribes, should be offered to museums and ornithologists for research.

The OC also encouraged the agency to put in place standard permits conditions that would allow systematic monitoring at their project sites by USFWS staff or contractors. Further, permit conditions should encourage access for researchers to study the effects of their projects on all migrator birds, not just eagles. Some wind energy facilities may cause substantial  avian mortality, and access for research can be difficult to secure. A better understanding of avian mortality and the behavioral changes associated with wind turbines, would benefit the agency, the permit holder, and the birds themselves.

A permit system for the incidental, or unintentional, take of Bald and Golden Eagles was first introduced in 2009, and revised in 2016. The newly released permit system consists of general permits, for situations that pose low risks to eagle populations and specific permits, and specific permits for situations that have high or uncertain risks to eagles. General permits can be obtained immediately through self-certifying that the applicants meets eligibility requirements and commit to implementing pre-identified conservation measures like designing equipment to reduce harm to eagles. Specific permits will require an application to be reviewed by USFWS staff.

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USFWS PRESS RELEASE

U.S. Fish and Wildlife Service Improves Permit Process to Benefit Bald and Golden Eagles

Increased participation in updated permit program will reduce impacts to eagles from projects and support broader conservation efforts

February 8, 2024
Contact: Vanessa Kauffman, 703-358-2138, vanessa_kauffman@fws.gov

As part of efforts to protect and conserve eagle populations and provide more certainty to industry, the U.S. Fish and Wildlife Service is announcing its final revised regulations for how it processes permits related to the incidental take of bald and golden eagles. While the recovery of bald eagles stands as a significant success in wildlife conservation, the future of golden eagle populations remains uncertain, and the Service remains committed to upholding the highest standards of compliance with laws to protect these species.

By simplifying the permitting process and developing a standard approach for take through general permits, the Service expects an increase in permit applications under the Bald and Golden Eagle Protection Act. With broader participation in the voluntary permit program, more projects will be consistently implementing avoidance, minimization and compensatory mitigation measures with the goal of increasing the conservation of eagles.

The Service has collaborated with stakeholders during the last few years to create conservation efforts that address increased interaction between eagles and various infrastructure types and development activities. These joint initiatives led to the development of best management practices that are reflected in the new permitting approach and will provide increased opportunities for industry to protect eagle populations.

“This regulation is a win for eagles and a win for critical infrastructure, such as power lines and wind energy projects,” said Service Director Martha Williams. “These innovative regulations establish more expedited general permits where activities and infrastructure pose low risks for bald and golden eagles, allowing the Service to direct our resources toward permit applications and conservation issues that will have the largest impact on eagle conservation. Through a collaborative and transparent process, we've streamlined the permitting process, making it more efficient while ensuring the preservation of these iconic species for future generations.”

The revised regulations include a new system of general permits in addition to the specific-permit system the Service has used in the past. These general permits allow applicants to receive immediate authorization by certifying that they meet eligibility requirements and commit to implementing pre-identified conservation measures like designing equipment to reduce harm to eagles. The general permits are designed for situations that pose low risks to eagle populations and are an alternative approach to authorize wind-energy generation projects, power-line infrastructure, disturbance of breeding bald eagles and bald eagle nest take. The Service will continue to review specific permits for situations that have high or uncertain risks to eagles to further the preservation of eagles. The Service also made improvements to the specific permit requirements and process, clarified definitions, and revised the permit fee structure. The updated approach to fee collection will support staffing and an online permit system for efficient processing, as well as continued conservation improvements such as GPS tracking to monitor populations and validation of additional methods to protect and benefit eagle populations.

The Bald and Golden Eagle Protection Act prohibits harm, possession, or disturbance of bald and golden eagles, their parts, nests, or eggs, except as permitted by federal regulations. The Secretary of the Interior is authorized to issue regulations allowing the taking of eagles for various purposes, provided it is compatible with the preservation of these species.

Permits for the incidental, or unintentional, take of eagles were first established in 2009, then revised in 2016 to authorize incidental take of bald eagles and golden eagles that results from a broad spectrum of activities, such as utility infrastructure, energy development, residential and commercial construction and resource recovery.

In September 2021, the Service published an Advance Notice of Proposed Rulemaking seeking input from Tribal governments, the public and the regulated community on maintaining and strengthening protections for eagles while considering potential approaches for further expediting and simplifying the permit process authorizing incidental take of eagles. In September 2022, the Service published a proposed rule and draft environmental assessment with approaches to improve the eagle incidental take permitting program to make the permitting process more efficient and effective. This final rule reflects additional adjustments to help streamline this process, following public input received through the public comment process.

In parallel to this rulemaking, the Service is continuing to review and approve mitigation providers and new compensatory mitigation methods that reduce threats and benefit eagle populations. The Service has already authorized methods for power pole retrofits and is actively working on additional mitigation methods. The Service encourages anyone interested in becoming a mitigation provider or with ideas for other mitigation measures to contact us.

The final rule will publish in the Federal Register on February 12, 2024, and will go into effect 60 days following publication, on April 12, 2024. The notice is available at http://www.regulations.gov, Docket Number: FWS-HQ-MB-2020-0023.

More information can be found online at: https://fws.gov/regulations/eagle.

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