Listen to this post

Last month, in 89 FR 9920, the U.S. Fish and Wildlife Service (“USFWS”) published a final rule revising the eagle take permit (“ETP”) process. USFWS believes the new rule will encourage more participation in the ETP program and account for increased eagle populations nationwide.

As previously detailed, bald and golden eagles are protected from “take” without a permit by the Bald and Golden Eagle Protection Act (“Eagle Act”) and the Migratory Bird Treaty Act (“MBTA”) (together, the “Acts”).  The Acts prohibit an authorized “take,” which means to “pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” The prohibition extends to intentional and incidental takes, including unintended collisions with wind project infrastructure. If a take occurs without an incidental take permit, the project developer or operator can face significant USFWS enforcement actions and multi-million dollar penalties.

The final rule creates a new program of general permits that, if successfully implemented, will allow developers to obtain incidental take permits through a more transparent and expedited process that considers differing levels of eagle-take risk across industries and activities. These new general permits can be obtained with limited interactions with USFWS and will be available for five-year terms. The general permits may continue to be renewed, provided continued compliance. The final rule eliminates the once-mandatory five-year review period and third-party monitoring for the general permits and includes those elements only as an option under specific permits as necessary. If implemented, the new rule would considerably mitigate the risk of improper take penalties faced by wind energy developers.  

Activities Covered Under the New General Permit

The new general permit includes the following eligible activities: (a) incidental take of bald and golden eagles associated with qualifying wind energy projects, (b) incidental take of bald and golden eagles associated with power line infrastructure, (c) certain activities that may cause bald eagle disturbance take, and (d) certain categories of bald eagle nest take. The new rule explains these activities as “relatively consistent and low risk to eagles” and have “well-established avoidance minimization and compensatory mitigation measures.”

Wind Energy Project General Permit

To be eligible for a general permit, all turbines at a wind facility must be in an area with relative eagle abundance less than the seasonal threshold identified by USFWS for bald and golden eagles, be at least two miles from the nearest golden eagle nest, and be at least 660 feet from the nearest bald eagle nest. Nest status can still be assessed through raptor nest surveys, which is already standard practice in the industry.

To avoid and minimize take, general permits include the following conditions: specification of the type of anticipated take; development of an adaptive management plan; removal of eagles attractants; eagle recognition and reporting training; minimization of collision and electrocution risks; submission of reports to USFWS; and payment of compensatory mitigation.

Compensatory mitigation is accomplished through obtaining eagle credits from a USFWS-approved conservation bank or an in-lieu fee program based on the take-risk calculated by assessing the number of project turbines, the diameter of the turbine blades, and the anticipated take-rate in the eagle management unit. Permissible take under the general permit is limited to four eagle carcasses or injured eagles of the same species within the five-year permit period. If three eagle injuries or mortalities of the same species are discovered during the permit period, USFWS must be notified, and the adaptive management plan must be implemented. If an injury or mortality of a fourth eagle of the same species is discovered, the project would no longer qualify for future general permits.

Specific Permits

USFWS estimates that 80% of existing project turbines can meet the general permit eligibility criteria. However, if a project does not meet each element of the general permit eligibility, projects may seek a specific permit but request reliance on the general permit. Projects can submit site-specific pre- and post-construction eagle take data to support this request.

Permit Fee Structure

The following tables in the rule outline the permit fee structure and anticipated cost per permit and to the industry, as calculated by the Office of Management and Budget.

Currently Operating Projects

The final rule establishes that projects permitted under the 2016 regulations may continue under existing permit conditions until their permits expire. After expiration, conditions may be adjusted through substantive amendments or a new permit application. Existing projects that do not meet the general permit eligibility may apply for a specific permit that seeks reliance on general permit conditions.

Permissible Take-Avoidance Activity

The final rule established that “hazing” (defined as the use of nonlethal techniques to disperse eagles away from a site) is not considered a “take” unless the hazing occurs adjacent to an in-use nest or causes a disruption to eagle breeding. This now permissible take-avoidance technique will allow the deterrence and temporary displacement of eagles to avoid interactions with prey livestock species or humans.

Nest Disturbance and Take Permits:

As mentioned above, general projects can seek specific and general permits to disturb bald eagle nests within certain distances. General permits cover the following activities: building construction, linear infrastructure construction and maintenance, alteration of shorelines and water bodies, alteration of vegetation, motorized recreation, nonmotorized recreation, aircraft operation, prescribed burn operations, and loud intermittent noises. If the activities above are conducted outside of the designated setbacks (330 feet for motorized vehicles, 660 feet for construction and alterations, 1,000 feet for aircraft, and half a mile for blasting), then the activity does not require a permit. Taking bald eagle nests outside of the activities described above still requires a specific permit.

The rule also provides for limited scope general and specific permits for taking or removing bald eagle nests under the following circumstances: emergency, health and safety, removal from human-engineered structures, and other purposes. Due to population differences, specific permits are still required to disturb or take golden eagle nests.

Next Steps

The new rule takes effect on April 12, 2024, and the general permit application process is expected to begin in May. USFWS does not anticipate every project to apply for permits, as the cost for some projects to obtain a permit may exceed the risk of enforcement, which can be based on either data showing a low risk of take or the perceived low risk of enforcement generally. It is also unclear if this new permitting regime will be coupled with increased USFWS enforcement. Therefore, wind farm operators should begin to work with qualified wildlife biologists and legal teams to assess project eligibility.