Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 22

[Docket No. FWS-R9-MB-2011-0094; FF09M20300-167-FXMB123109EAGLE]

RIN 1018-AY30

Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service or USFWS), are revising the regulations for eagle nonpurposeful take permits and eagle nest take permits. Revisions include changes to permit issuance criteria and duration, definitions, compensatory mitigation standards, criteria for eagle nest removal permits, permit application requirements, and fees. We intend the revisions to add clarity to the eagle permit regulations, improve their implementation, and increase compliance, while maintaining strong protection for eagles.

DATES:

Effective January 17, 2017.

ADDRESSES:

Document Availability:

The Record of Decision, Final PEIS, and supplementary information used in the development of this rule, including the public comments received and the programmatic environmental impact statement, may be viewed online at

http://www.fws.gov/birds/management/managed-species/eagle-management.php

and also at

http://www.regulations.gov

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

FOR FURTHER INFORMATION CONTACT:

Eliza Savage, 703-358-2329 or

eliza_savage@fws.gov.

SUPPLEMENTARY INFORMATION:

Executive Summary

The U.S. Fish and Wildlife Service is finalizing revisions to permit regulations for nonpurposeful (incidental) take of eagles and take of eagle nests in part 22 of title 50 of the Code of Federal Regulations. The revisions are intended to create a permitting framework that we can implement more efficiently and thus encourage greater public compliance while ensuring protection of bald and golden eagles. Our goal is to enhance protection of eagles throughout their ranges through implementation of mitigation measures that avoid and minimize, and compensate for, adverse impacts from otherwise lawful activities.

The Service is modifying the definition of the Bald and Golden Eagle Protection Act's “preservation standard,” which requires that permitted take be compatible with the preservation of eagles. We are also removing the distinction between standard and programmatic permits, codifying standardized mitigation requirements, and extending the maximum permit duration for eagle incidental take permits (50 CFR 22.26). The regulations also include a number of additional revisions to the eagle nest take regulations at 50 CFR 22.27, as well as revisions to the permit fee schedule at 50 CFR 13.11; new and revised definitions in 50 CFR 22.3; revisions to 50 CFR 22.25 (permits for golden eagle nest take for resource development and recovery operations) for consistency with the § 22.27 nest take permits; and two provisions that apply to all eagle permit types (50 CFR 22.4 and 22.11).

Background

The Bald and Golden Eagle Protection Act (Eagle Act or BGEPA) (16 U.S.C. 668-668d) prohibits take of bald eagles and golden eagles except pursuant to federal regulations. The Eagle Act authorizes the Secretary of the Interior to issue regulations to permit the “taking” of eagles for various purposes, including the protection of “other interests in any particular locality” (16 U.S.C. 668a), provided the taking is compatible with the preservation of eagles. In 2009, the Service promulgated regulations at 50 CFR part 22 that established two new permit types for take of eagles and eagle nests (74 FR 46836; Sept. 11, 2009) (Eagle Permit Rule). One permit authorizes, under limited circumstances, the take (removal, relocation, or destruction) of eagle nests (50 CFR 22.27). The other permit type authorizes nonpurposeful take (disturbance, injury, or killing) of eagles (50 CFR 22.26) where the take is incidental to an otherwise lawful activity. In these revised regulations, we refer to nonpurposeful take as incidental take, which has the same meaning as conveyed in the 2009 regulations: Take that is associated with but not the purpose of an activity.

The Eagle Act requires the Service to determine that any take of eagles the Service authorizes is “compatible with the preservation of the bald eagle or the golden eagle” (16 U.S.C. 668a). We refer to this clause as the Eagle Act preservation standard. The preservation standard underpins the Service's management objectives for eagles. In the preamble to the final 2009 regulations for eagle nonpurposeful take permits, and in the final environmental assessment (FEA) of the regulations, the Service defined the preservation standard to mean “consistent with the goal of stable or increasing breeding populations” (74 FR 46836, see p. 46837).

On April 13, 2012, the Service initiated two additional rulemakings: (1) A proposed rule to extend the maximum permit tenure for programmatic eagle nonpurposeful take permit regulations from 5 to 30 years, among other changes (“Duration Rule”) (77 FR 22267); and (2) an advance notice of proposed rulemaking (ANPR) soliciting input on all aspects of those eagle nonpurposeful take regulations (77 FR 22278). The Duration Rule was finalized on December 9, 2013 (78 FR 73704). However, it was the subject of a legal challenge, and on August 11, 2015, the U.S. District Court for the Northern District of California vacated the provisions that extended the maximum programmatic permit tenure to 30 years (

Shearwater

v.

Ashe,

No. CV02830-LHK (N.D. Cal., Aug. 11, 2015)). The court held that the Service should have prepared an environmental assessment (EA) or environmental impact statement (EIS) to accompany the rulemaking rather than apply a categorical exclusion under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321-4347). The effect of the ruling was to return the maximum programmatic permit tenure to 5 years.

The 2012 ANPR highlighted three main issues for public comment: Our overall eagle population management objectives; compensatory mitigation required under permits; and the nonpurposeful take programmatic permit issuance criteria. As a next step, the Service issued a notice of intent to prepare an EA or EIS pursuant to NEPA (79 FR 35564; June 23, 2014). The Service then held five public scoping meetings between July 22 and August 7, 2014. We received a total of 536 comments during that public comment period. Upon removal of duplicates, there were a total of 517 unique comments. We reviewed the comments and used them to develop proposed regulations and a draft programmatic environmental impact statement (DPEIS), which we released on May 6, 2016, for a 60-day public comment period (81 FR 27934). The draft PEIS and proposed regulations are available on the Internet at:

http://eagleruleprocess.org/

and at

http://www.regulations.gov

at Docket No. FWS-R9-MB-2011-0094. We received 780 comments on the proposed rule and DPEIS from federal agencies, states,

tribes, nongovernmental organizations, industry associations, individual companies, and members of the public. These comments were the basis for several changes, discussed below, that we made to the proposed action in this rule.

In accordance with NEPA requirements (40 CFR 1506.6(b)), we announce the availability of the Record of Decision (ROD) for the Service's final PEIS for the eagle rule revisions and management objectives. The ROD is the final step in the NEPA process for the eagle rule revision process, which includes revisions to the regulations governing permits for incidental take of eagles and take of eagle nests. The ROD describes the Service's decision; identifies the other alternatives considered, including the environmentally preferable alternative; explains the Service's plans for mitigation; and states what factors, including considerations of national policy, we considered in making the decision. The ROD and final PEIS are available at

http://www.fws.gov/birds/management/managed-species/eagle-management.php

and also at

http://www.regulations.gov

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

Bald eagle populations have continued to increase throughout the United States, which effectively increases the potential need for permits for activities that may disturb, injure, or kill bald eagles. There has also been significant expansion within many sectors of the U.S. energy industry, particularly wind energy operations, and much more interest in permitting new long-term operations than was anticipated when the 2009 regulations were promulgated. At the same time, golden eagle populations are potentially declining, heightening the challenge of permitting incidental take of this species for otherwise lawful activities. The 2009 permit regulations have not provided an optimal framework for authorizing incidental take under these circumstances, particularly for incidental take resulting from long-term, ongoing activities. Difficulties in establishing new permit regulations are to be expected and the Service contemplated that changes to the permit regulations would be necessary based on experience gained through implementing the new permit framework. One of these challenges has been a general perception that the 2009 permitting framework did not provide enough flexibility to issue eagle take permits in a timely manner. Indeed, only one programmatic permit has been issued to date. When projects go forward without permit authorization, the opportunity to obtain benefits to eagles in the form of required conservation measures is lost and project operators put themselves at risk of violating the law.

Under the management approach established with the 2009 eagle permit regulations and final EA (FEA), permitted take of bald eagles has been capped at 5 percent of estimated annual productivity (

i.e.,

successful reproduction) of the population. Because the Service lacked data in 2009 to show that golden eagle populations could sustain any additional unmitigated mortality, the Service set take limits for that species at zero. This decision has meant that any new authorized take of golden eagles must be at least equally offset by compensatory mitigation (specific conservation actions to replace or offset project-induced mortality or disturbance by reducing take elsewhere).

In the FEA for the 2009 regulations and in the preamble to those regulations, the Service adopted a policy of not issuing take permits for golden eagles east of the 100th meridian. At the time, the Service determined there were not sufficient data to ensure that golden eagle populations were stable or increasing such that permitting take would not result in a decline in breeding pairs in this region. However, after further analysis, the Service has determined that some take can be permitted with implementation of compensatory mitigation. Rather than providing an increased level of protection for golden eagles, this policy has meant that activities that take golden eagles in the east continue to proliferate without implementation of conservation measures and mitigation to address impacts to golden eagles that would be required as the result of the permitting process.

Since 2009, Service and U.S. Geological Survey (USGS) scientists have undertaken considerable research and monitoring to improve the Service's ability to track compliance with eagle management objectives and reduce uncertainty. Of particular significance, the Service has updated population estimates for both species of eagle and quantified uncertainty in those estimates. For the bald eagle, the Service now estimates substantially higher populations than were estimated in 2009, and allowable take limits will likely increase considerably across most of the country as a result (see further discussion below under

Status of Eagle Populations

). For golden eagles, recent research indicates that the population in the coterminous western United States might be declining towards a lower equilibrium. Additionally, the Service now has a much better understanding of the seasonal, annual, and age-related movement patterns of golden eagles. These data are incorporated into the updated management framework.

Through implementing the 2009 permit regulations, the Service has identified several provisions that could be improved for the benefit of both eagles and people, including the regulated community. One issue that has hampered efficient permit administration (of both eagle nonpurposeful take permits and eagle nest take permits) is the difficulty inherent in applying the standard that take must be reduced to the point where it is unavoidable, which the current regulations require for programmatic permits. Additionally, a lack of specificity in the regulations as to when compensatory mitigation is required can lead to inconsistencies in what is required of permittees.

The 5-year maximum duration for programmatic permits appears to have been a primary factor discouraging many project proponents from seeking eagle take permits. Many activities that incidentally take eagles due to ongoing operations have lifetimes that far exceed 5 years. We need to issue permits that align better, both in duration and the scale of conservation measures, with the longer-term duration of industrial activities, such as electricity distribution and energy production. Extending the maximum permit duration is consistent with other Federal permitting for development and infrastructure projects.

Encouraging more proponents of activities that incidentally take eagles to apply for permits is a critically important means of reducing incidental take. The intent of these regulations is not to encourage construction and operation of projects that take eagles (an eagle incidental take permit only authorizes take of eagles; it is not a prerequisite or an authorization to construct and operate projects that will result in eagles being taken). Instead, we are strongly encouraging such projects to seek authorization for eagle take and thereby implement conservation measures that reduce incidental take and benefit eagles. Unpermitted activities have taken and will continue to take eagles with or without this permit program. In fact, the Service's recent analysis of causes of death of golden eagles shows that, 56 years after enactment of the Eagle Act, unpermitted human-caused mortality is still the leading cause of death of golden eagles in the United States, and risks causing

population declines for this species. Our goal is to reduce the number of unauthorized activities through enforcement where appropriate and by implementing an efficient regulatory framework that encourages proponents of activities that incidentally take eagles to seek and obtain legal authorization.

The Service has successfully pursued enforcement actions against project proponents that incidentally take eagles and will continue to do so, but enforcement alone is an inefficient means to manage and conserve eagles nationwide and is constrained by our limited law enforcement resources. Therefore, our primary means of conserving and protecting eagles is to ensure that our incidental take permit regulations encourage more proponents to seek and obtain permits for activities that otherwise would continue to take eagles without implementing the conservation measures that are critical to eagle conservation nationally, regionally, and locally.

Status of Eagle Populations

The Service is updating its management objectives for eagles established by the 2009 eagle permit regulations and FEA. Management objectives direct strategic management and monitoring actions and ultimately determine what level of permitted eagle take we can allow. The Service recently completed a status report on bald and golden eagles: “Bald and Golden Eagles: Status, trends, and estimation of sustainable take rates in the United States” (“Status Report”) (USFWS, 2016). The Status Report, which is available at

http://eagleruleprocess.org,

estimates population sizes, productivity, and survival rates for both species; analyzes the effects of unauthorized take of golden eagles; provides recommended take limits for both species and metrics for converting take in the form of disturbance to debits from the take limits; analyzes the cumulative effects of permitting take of up to 5% of local area populations (the population in the vicinity of a particular project or activity); and recommends a schedule of population surveys to regularly update population size estimates for both species. The Status Report is essentially a compilation of the most current research on the population status and trends of bald and golden eagles and serves as the biological basis for the revised regulatory management framework in these regulation revisions and the preferred alternative in the programmatic EIS (PEIS). The following discussion pertaining to the status of bald and golden eagle populations summarizes some of the information provided and explained in more detail in the Status Report, available at

http://eagleruleprocess.org.

The Service has estimated the population size for the bald eagle in the coterminous United States using a population model in conjunction with estimates of the number of occupied nesting territories in 2009. That population size estimate is 72,434, and, when combined with a previous estimate of population size for Alaska (70,544), is 143,000. We derive our conservative estimate for the population size by using the 20th quantile of the population size estimate distribution (the 20th quantile is the point on the probability distribution where there is only a 20% chance of the estimate being lower than the true population size). The 20th quantile represented 126,000 bald eagles for the United States in 2009. This number represents an increase from our population size estimate for the coterminous United States in 2007 (the year data were gathered to support delisting under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531

et seq.

)), which was 69,000. We attribute the difference to improved monitoring and estimation efforts, as well as increases in bald eagle numbers. Both the population model and Breeding Bird Survey (BBS) estimates indicate bald eagle populations are continuing to increase throughout the coterminous United States.

We estimated future bald eagle populations using a conservative assumption that the number of suitable bald eagle nesting territories will not increase above the 2009 estimate. Given limitations of the data on Alaskan eagles and evidence from the BBS that bald eagle populations are growing more slowly there, we did not model projections for Alaska and assumed that Alaska's bald eagle population will remain stable (though demographic rates suggested continued growth is possible). With these constraints, our model forecasts that the number of bald eagles in the coterminous United States outside the Southwest will continue to increase until populations reach an equilibrium at about 228,000 (20th quantile = 197,000) individuals. The model predicts that bald eagles in the Southwest will also continue to increase from the 2009 population estimate of 650 until reaching an equilibrium at about 1,800 (20th quantile = 1,400) individuals. Again, these numbers are based on assumptions that underlying demographic rates and other environmental factors remain unchanged, and the predictions do not take into account forecasted changes in climate nor how such changes may affect bald eagle population vital rates and population size. These projections also assume food and other factors will not become limiting.

We estimated the total population size for the golden eagle in the coterminous United States and Alaska was 39,000 (20th quantile = 34,000) in 2009, and 41,500 (20th quantile = 35,000) in 2014, updated from 40,000 in the draft PEIS based on comments we received from the Alaska Department of Fish and Game. However, although the golden eagle population trend estimate based on current surveys is stable, an estimate from a population model similar to that used for the bald eagle suggests the population in the western United States might be declining toward a lower equilibrium size of about 26,000 individuals.

Using unbiased cause-of-mortality data for a sample of 386 satellite-tagged golden eagles in the period 1997-2013, the Service estimated contemporary age-specific survival rates with and without current levels of anthropogenic mortality. Anthropogenic factors were responsible for about 56% of satellite-tagged golden eagle mortality, with the highest rates of anthropogenic mortality among adults (63%). We estimated the maximum rate of population growth for the golden eagle in the coterminous United States in the absence of existing anthropogenic mortality was 10.9% (20th quantile = 9.7%). Sustainable take (the number of eagles that can be removed from the population while still achieving a stable population compared to the 2009 baseline) of golden eagles under those conditions would be 2,000 individuals (20th quantile = 1,600). The available information suggests ongoing levels of human-caused mortality likely exceed this value, perhaps considerably. This information supports the finding from the population model that golden eagle populations may be declining to a new, lower level.

For much more detailed information about the current population status and trends, see the Status Report available at:

http://eagleruleprocess.org.

Description of the Rulemaking

Preservation Standard

The Eagle Act requires that any authorized take of eagles be “compatible with the preservation” of bald eagles and golden eagles. The Service defined this preservation standard in the preamble to the 2009 regulations to mean “consistent with the goal of stable or increasing breeding populations.” We are incorporating a modified definition of that standard into the regulations. We

now define the preservation standard to mean “consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and the persistence of local populations throughout the geographic range of each species.” The timeframe the Service used for modeling and assessing eagle population demographics is 100 years (at least eight generations) for both eagle species relative to the 2009 baseline. “Eagle management unit” is defined as “a geographically bounded region within which permitted take is regulated to meet the management goal of maintaining stable or increasing breeding populations of bald or golden eagles.”

The eagle management objective embodied in the revised definition of the preservation standard is consistent with Presidential, Department of the Interior, and Fish and Wildlife Service mitigation policies that aim to achieve a net benefit, or at a minimum, no net loss, of natural resources. (

See

the Service's mitigation policy (501 FW 2); Secretary's Order 3330, entitled “Improving Mitigation Policies and Practices of the Department of the Interior” (October 31, 2013); the Departmental Manual Chapter on Implementing Mitigation at the Landscape-scale (600 DM 6 (October 23, 2015)); and the Presidential Memorandum on Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment (November 3, 2015)).

During the scoping period for the PEIS, the Service sought and received public comment on how the preservation standard should be defined and applied. We considered adoption of a purely qualitative preservation standard such as “to not meaningfully impair the bald or golden eagle's continued existence.” However, a qualitative approach alone contains no standards for assessment, which could lead to inconsistent implementation between Service regions. Inconsistent implementation across Regions is a bigger concern with eagles than for many ESA-listed species because the range of both bald and golden eagles extends throughout the continental United States. Additional drawbacks to adopting a qualitative approach are that it is less compatible with formal adaptive management and does not provide a mechanism to assess cumulative impacts. Also, considerable quantitative information is available on eagle populations unlike many ESA-listed species, and to ignore these data or to independently reassess them for each permit is inconsistent with the Service's commitment to use the best available information and practice the best science. For these reasons, the Service has elected not to adopt a qualitative preservation standard.

We elected to retain the quantitative approach because it is explicit, allows less room for subjective interpretation, and can be consistently implemented throughout the country and across the types of activities that require permits. Our approach, including the underlying population model, is consistent with other wildlife management programs, including the North American Waterfowl Management Plan and management of marine mammals under the Marine Mammal Protection Act (16 U.S.C. 1361

et seq.

).

The revised preservation standard—“consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and the persistence of local populations throughout the geographic range of both species”—seeks to ensure the persistence of bald and golden eagle populations over the long term with sufficient distribution to be resilient and adaptable to environmental conditions, stressors, and likely future altered environments, and to better align with State and tribal interests in local eagle population management. To meet this objective in a scientifically rigorous manner, the Service manages eagles at two scales: (1) Eagle management units (EMUs), which are regional populations of eagles over which the Service strives to meet the objective of population stability or growth, relative to population size in the baseline year of 2009, over 100 years; and (2) local area populations, which are finer-scale areas defined by eagle dispersal criteria that are specific to each permitted action and over which the Service seeks to ensure take does not cause the extirpation of either eagle species. The Service used modern scientific methods to estimate the take rate (the proportion of the population that can be removed annually) that can be authorized for each species of eagle in each EMU while meeting our management objectives. These estimates are in the form of probability distributions that account for scientific uncertainty in both the modeling process and in the biological data used in the models. For the liberal PEIS alternatives, the Service used the median of model estimates for important parameters (

e.g.,

population size, take rate) to calculate take limits (the number of eagles that can be removed annually at the EMU- and, separately, the LAP-scale and still meet the management objective); this approach shares the risk posed by uncertainty equally between being under-protective of eagles and being unnecessarily over-restrictive on activities that might take eagles. For the conservative PEIS alternatives, the Service used values that allocated risk in an 80:20 ratio in favor of being over-protective of eagles. By defining the eagle preservation standard in this way, and analyzing the effects of take within those take limits in the PEIS, the analytical burden for each permit decision is greatly reduced, allowing the Service to make informed permitting decisions at an expedited rate.

The regulatory revisions in this final rule are based on the amended definition of the preservation standard and the adoption of a relatively conservative approach to estimating population values and sustainable take rates based on the best available data and the Service's level of risk tolerance in the face of uncertainty. This relatively conservative approach is described below, and also in much more detail, along with alternative approaches and the scientific and technical information that underpins their analyses, in the Status Report and the PEIS.

We estimate there are about 143,000 bald eagles in the United States (including Alaska), and that populations continue to increase. Given their continued population growth above the 2009 baseline, and considering the updated demographic data compiled by the Service and presented in the Status Report, we have determined there is considerable capacity for sustainable take of bald eagles. Under the management approach we are adopting, the sustainable annual take limit (without compensatory mitigation) would be 3,742 bald eagles in the coterminous United States. Initially, the Service proposed to set unmitigated take limits of only 500 bald eagles annually in Alaska because our population data there are less rigorous than elsewhere in the United States. However, in response to compelling comments from the Alaska Department of Fish and Game (see Response to Public Comments, below, for more details), we have revised the sustainable take rate for Alaska to 3,776, based on the sustainable take rate of 6% under the preferred alternative in the PEIS. The Service does not expect authorized take under the revised sustainable take limits to approach the new take limit in Alaska or nationwide. In fact, there is nothing in the revised regulations that will increase take, though we hope more ongoing unpermitted take will be captured under permits in the future.

We estimate golden eagles currently number about 40,000 individuals in the United States (including Alaska), and populations have been relatively stable around that size since the mid-1960s. We estimate the carrying capacity of golden eagles nationwide to be 73,000. We also have data indicating that population size is limited by high levels of anthropogenic mortality (

i.e.,

populations could be larger were it not for ongoing high levels of unpermitted take), and that adding additional mortality will likely cause populations to decline to a lower level. As a consequence, there is no opportunity for authorizing additional unmitigated take of this species without changing the population objective to a level lower than the 2009 baseline. Under our proposed management framework, we would operate under the conservative assumption that there is no sustainable take, and take limits would be zero, without compensatory mitigation to offset the take. However, even using the median values, rather than the 20th quantile used in our preferred, conservative approach, take of golden eagles nationwide would still be set at zero, requiring that all authorized take be offset by compensatory mitigation.

We are realigning EMUs to better reflect regional populations and migration patterns of both species. The Service and its partner agencies manage for migratory birds based on specific migratory route paths within North America (Atlantic, Mississippi, Central, and Pacific). Based on those route paths, State and Federal agencies developed the four administrative flyways that are used to administer migratory bird resources. Both bald and golden eagles move over great distances seasonally and across years. There is a well-described annual seasonal migration of both species of eagles from northern regions southward in winter. An annual northward migration of bald eagles from southern regions in spring is well-documented, and a similar northward migration of golden eagles that winter in southern regions has been recently discovered. The adoption of the administrative flyways as EMUs better aligns with seasonal movement patterns of both species and better addresses geographic patterns of risk given those seasonal movement patterns.

We are aware of preliminary data on golden eagles tracked with satellite telemetry that indicate a flyway configuration for EMUs may not capture movement patterns of resident golden eagles as well as finer-scale landscape mapping systems. The results of that study were intended to be completed and included in the Status Report, but the work was not completed in time. In its place the Service conducted an analysis of banding data, and those results are reported in the Status Report. Neither analysis is ideal because the distribution of deployed bands and satellite tags has not been random. While the banding data have the advantage of much larger sample sizes, the satellite-tag data have the advantage of much more precise tracking of a smaller number of individuals. The Service will consider the information from the satellite telemetry study in future re-assessments of eagle status and management objectives.

In the approach we are now adopting, we will use the flyways as the EMUs for both species—with some modifications. The banding data recovery records indicate that banded eagles of both species were recovered more frequently in the same flyway EMU than in the same 2009 EMU. Given the relatively small size of the eastern golden eagle population and uncertainty about the distribution of that population across the two eastern flyways, we are combining the Mississippi and Atlantic Flyways into one management unit for golden eagles. For bald eagles, data indicate the Pacific Flyway should be split into three management units: Alaska, Pacific flyway north of 40 degrees N latitude to the Canadian border, and Pacific flyway south of 40 degrees N latitude to the Mexican border. See the PEIS for maps of the current and proposed EMUs. To monitor eagle populations in the future and assess whether different take thresholds are appropriate, our plan, assuming we have sufficient appropriated funding, is to conduct surveys on a 6-year rotation: One set of paired summer-winter golden eagle surveys in the first and second and fourth and fifth years of each assessment period, and to conduct bald eagle surveys in years three and six.

EMU take limits are increased accordingly because the flyway management units are fewer and larger than the EMUs currently in use (for bald eagles; golden eagle take limits would be zero in all management units, unless offset). Each flyway unit covers several current EMUs. In some ways, increasing the EMU size could be less protective of eagle populations at more local scales. However, any potential decreased protection of local eagle populations caused by increasing the size of the EMUs is more than compensated for by two provisions designed to increase protection of eagles at more local scales. First, as noted earlier, we modify the preservation standard of the Eagle Act to include the goal of maintaining the persistence of local populations throughout the geographic range of both species, and codify the new definition in the regulations at 50 CFR 22.3. The definition reads: “

Compatible with the preservation of the bald eagle or the golden eagle

means consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and the persistence of local populations throughout the geographic range of each species.”

These revised regulations also enhance protection of eagles at the local scale by incorporating a local area population (LAP) cumulative effects analysis into the permit issuance criteria. The LAP analysis, which is detailed in Appendix F of the Eagle Conservation Plan Guidance, Module 1—Land-based Wind Energy (ECPG) (USFWS 2013), involves compiling information on permitted anthropogenic mortality of eagles within a specified distance (derived from each eagle species' natal dispersal distance) of the permitted activities' boundary. If permitted eagle take exceeds 1% of the estimated population size of either species within the LAP area, additional take is a concern. If take exceeds 5% of the estimated population size within the LAP area, additional take is considered inadvisable unless the permitted activity will actually result in a lowering of take levels (

e.g.,

permitting a repowered wind project that, in its repowered form, will take fewer eagles than before repowering).

We derive the size of the LAP by multiplying the estimated eagle density at the eagle management unit scale, as set in the 2009 Final Environmental Assessment on the Eagle Take Rule, by the size of the LAP area. We acknowledge that this approach is somewhat simplistic for at least two reasons. First, as described previously, the eagle density estimates come from nesting or late-summer population surveys and do not account for seasonal movements of eagles that occur through migration and dispersal. Second, this approach assumes that eagle density is uniform across the EMU, which is not the case. In most cases, the first simplification leads to an underestimate of true density, particularly in core wintering areas during the non-breeding months, and as such serves as an added buffer against overharvest of local nesting eagles. Assuming uniform density leads to greater relative protection of areas with higher than average eagle density within an EMU, and less relative protection in areas of lower density. Ideally, over time and with better information on resource selection and factors accounting for

variation in density, as well as improved knowledge of seasonal changes in eagle density and population-specific movement patterns, the LAP analysis can be improved to more realistically account for the true LAP impacted by projects under consideration. For now, however, LAP take thresholds allow the Service to authorize limited take of eagles while favoring eagle conservation in the face of the uncertainty.

Since publication of the ECPG, the Service has updated natal dispersal distances (the linear distance between a bird's location of origin and its first breeding or potential breeding location) for both eagle species that are used to calculate LAPs. Those distances are currently 86 miles for bald eagles and 109 miles for golden eagles. These could change in the future if additional data indicate the need for adjustment. The LAP cumulative effects analysis is described in more detail in the Status Report.

Prior to this rulemaking, the LAP cumulative effects analysis has been used as guidance. Under these revised regulations, the LAP analysis is required as part of our review of each permit application. In order to issue a permit, we must find that cumulative authorized take does not exceed 5% of the LAP, or we must demonstrate why allowing take to exceed that limit is still compatible with the preservation of eagles. One situation where we may issue a permit that would result in authorized take above 5% of the LAP is if a project is already in operation and the permit conditions would result in a reduction of take, or if compensatory mitigation offsets impacts to eagles within the LAP. Unpermitted levels of eagle take within the LAP, if known, would also be considered in assessing the potential effects of the permit on the LAP.

Incorporation of the LAP 5% limit on authorized take into the regulations will facilitate individual permit decisions; instead of needing to evaluate under an independent NEPA analysis each project in the context of other authorized take within the LAP, along with the level of unauthorized take—which is difficult or impossible to precisely determine—we have already analyzed the effects of authorizing take of up to 5% of the LAP in the PEIS for these regulations, along with a qualitative analysis of unauthorized take, and determined that it is compatible with the preservation of eagles.

The primary aim of requiring this LAP analysis is to prevent significant declines in, or extirpation of, local nesting populations. However, there is also increasing evidence of a strong tendency in both species of eagle to return to non-breeding areas (wintering areas, migration routes, and staging areas) (McIntyre et al. 2008; Mojica et al. 2008). The LAP take limits also provide protection from permitting cumulatively high levels of take of eagles that winter or migrate through the LAP area.

The take authorized within the LAP take limits is in addition to an average background rate of anthropogenic mortality (ongoing human-caused eagle mortality, most of which is not currently permitted.) For golden eagles, background anthropogenic mortality is about 10% (see the Status Report). Thus, total anthropogenic mortality for a LAP experiencing the maximum permitted take rate of 5% averages about 15%. We do not have similar mortality information for bald eagles. While we do not know exactly what level of unauthorized anthropogenic take of bald eagles is occurring, we are reasonably certain that the take we authorize for bald eagles will also be over and above a level of preexisting ongoing unpermitted take. The level of ongoing unauthorized take of bald eagles may be similar to that of golden eagles; however, bald eagles have a maximum potential growth rate about twice that of golden eagles and thus are more resilient to take. As part of the LAP analysis for both species, Service biologists would consider any available information on unpermitted take occurring within the LAP area. While evidence of excessive unpermitted take does not necessarily preclude the Service from issuing a permit, it would be taken into consideration in evaluating whether to issue the permit and is likely to entail additional environmental analysis to determine whether issuance of the permit is compatible with the preservation of eagles.

The Service considered developing specific eagle population size goals (other than the 2009 baseline) for each EMU and then using those targets to inform permit decisions within the EMUs. However, that approach is not feasible at this time given the technical and logistical complexities of working with state agencies and tribes to set population objectives at this scale within the timeframe of this action, and the lack of fine-scale information on eagle populations that would be necessary.

For disturbance to have the potential of a population effect, it has to result in a loss of potential productivity. In 2009, the Service used the EMU-specific mean number of young fledged per occupied nesting territory for each species per year as the expected loss under nest disturbance permits for each instance of nest disturbance. We use the same approach in this revision, but with updated take values based on the new productivity information for each eagle species (see the Status Report).

Nonpurposeful (Incidental) Take Permits (50 CFR 22.26)

We are changing the name of what we have been calling “nonpurposeful take permits” to “incidental take permits.” Incidental take is what § 22.26 permits authorize. We originally called them “nonpurposeful take” permits in order to avoid confusion with incidental take permits issued under the ESA for endangered and threatened species. However, the term “nonpurposeful” also caused confusion because it is not a commonly used word. The meaning of “incidental” is better understood. Moreover, now that this permit system is relatively well established, the potential for confusion with the ESA incidental take permit system is much reduced. Because “nonpurposeful take” and “incidental take” mean the same thing, the change in nomenclature does not in any way affect the circumstances and manner in which these permits will be issued.

In these revised regulations, the types of incidental take permits we can issue under § 22.26 are reduced from two to one. There will no longer be separate categories for standard and programmatic permits. Having two separate categories has sometimes led to confusion because it is not always possible to distinguish between what should be authorized under a programmatic versus a standard permit. Also, the term “programmatic” in the sense we have been using it was sometimes misunderstood because it differs from how “programmatic” has been typically used in the regulatory arena. “Programmatic” in the more traditional sense means “following or relating to a plan or program.” While we anticipate sometimes issuing permits to cover the effects of multiple activities within a given program (such as a military installation), our experience so far is that the more complex requests for permits we have had to date have been for single, long-term activities that have the potential to periodically take one or more eagles over the life of the project. To reduce confusion, we eliminate the distinction between standard and programmatic permits. All § 22.26 permits are now simply “eagle incidental take permits” or “incidental take permits.”

Under the 2009 regulations, programmatic permits were contingent on implementation of advanced conservation practices (ACPs) developed in coordination with the Service. ACPs are defined as “scientifically supportable measures approved by the Service that represent the best available techniques to reduce eagle disturbance and ongoing mortalities to a level where remaining take is unavoidable.” In contrast, we have required that applicants for standard permits under the current regulations reduce potential take to a level where it is “

practicably

unavoidable” [emphasis added]. Thus, programmatic permit applicants were subject to a higher standard, at least theoretically. In reality, the term “unavoidable” is more ambiguous than it seems in theory; there is no clear distinction in practice between “practicably unavoidable” and “unavoidable.” Thus the revised regulations apply the “practicability standard” to all § 22.26 permits.

We are revising the definition of “practicable” by adopting the definition from the Service's proposed mitigation policy (

see

81 FR 12380; Mar. 8, 2016), slightly modified for specific application to eagle permits. The new definition reads: “

Practicable

means available and capable of being done after taking into consideration existing technology, logistics, and cost in light of a mitigation measure's beneficial value to eagles and the activity's overall purpose, scope, and scale.” The revised definition captures the essential elements of the old definition, while promoting a consistent approach to how the Service applies compensatory mitigation requirements across all programs.

Because the concept of ACPs is based on reducing take to the point where it is unavoidable—versus “practicably unavoidable”—and applied to the category of programmatic permits, the requirement for ACPs is removed from the regulations. As discussed above, all permittees would be required to avoid and minimize impacts to eagles to the maximum degree practicable. Although the ACP requirement no longer applies, the Service will require potential permittees to implement all practicable best management practices and other measures that are reasonably likely to reduce eagle take. Permit applicants that cannot reduce or compensate for take to levels that are compatible with eagle preservation will not qualify for a permit.

We believe a 5-year maximum permit term for permits is unnecessarily burdensome for entities engaged in long-term actions that have the potential to incidentally take bald or golden eagles over the lifetime of the activity. The 5-year maximum permit duration has had the unintended effect of discouraging proponents of long-term activities from applying for permits, despite the risk of violating the statute. With longer-term permits, the Service has the ability to build more effective adaptive management measures into the permit conditions. This approach will provide a degree of certainty to project proponents because they will have a greater understanding of what measures may be required to remain compliant with the terms and conditions of their permits in the future. This increased level of certainty allows companies to plan accordingly by allocating resources so they are available if needed to implement additional conservation measures to benefit eagles and maintain their permit coverage.

Although killing, injuring, and other forms of take of eagles are illegal without a permit, the Service cannot require any entity to apply for an eagle take permit (except under legal settlement agreements). Some project proponents build and operate without eagle take permits even in areas where they are likely to take eagles. When that occurs, the opportunity to apply avoidance, minimization, and other mitigation measures is lost. We believe that permitting long-term activities that are likely to incidentally take eagles, including working with project proponents to minimize the impacts and secure compensatory mitigation, will enhance eagle conservation in contrast to project proponents avoiding the permitting process altogether because they perceive the process as overly onerous.

Under the revised regulations, the Service will evaluate each long-term permit at no more than 5-year intervals. These evaluations will reassess fatality rates, effectiveness of measures to reduce take, the appropriate level of compensatory mitigation, and eagle population status. Long-term permits are required to include adaptive management provisions that provide for additional or changed mitigation measures under specified conditions, for example, under increasing levels of eagle take. Provided permittees are in compliance with their permit, including adaptive management measures and take levels, 5-year reviews will primarily consist of updating take estimates and related compensatory mitigation for the next 5 years. Conversely, the 5-year review provides an opportunity for the Service to amend the permit to reduce or eliminate conservation measures or other permit conditions that prove to be ineffective or unnecessary.

Under the proposed regulations, a long-term permittee may also have been required to undertake additional, practicable conservation measures not spelled out in the adaptive management permit conditions, even if the permittee is in compliance with the terms of the permit, if such measures were reasonably likely to reduce risk to eagles based on the best scientific information available. However, these final regulations limit such additional conservation measures to when authorized take levels are exceeded in a manner or to a degree not addressed in the adaptive management conditions of the permit. Based on public comment, the proposed provision appeared likely to disincentivize project proponents from seeking permits. Rather, for a permittee in compliance with permit terms and conditions, conservation and mitigation measures beyond the terms of a permit are voluntary. Take estimates and compensatory mitigation requirements would be adjusted if such measures were implemented. Permit suspension and revocation procedures will remain available for extreme cases if new measures sufficient to meet the preservation standard cannot be negotiated with the permit holder.

The revised regulations require applicants and permittees to use Service-approved protocols for conducting pre-application surveys, fatality predictions, and monitoring under permits, unless waived by the Service. The regulations provide that, if the Service has, through rulemaking procedures, officially issued or endorsed survey, modeling, or other data quality standards for the activity, those are the standards and protocols that must be used (unless the Service waives the requirement for that applicant). Applicants engaged in other activities for which the Service has not adopted official protocols must coordinate with the Service to develop project-specific monitoring and survey protocols. The requirement to use Service-approved protocols will result in more efficient permitting decisions by the Service. Submission of inadequate data, or data gathered using methods the Service cannot verify to be sound, has resulted in significant extra work and time from our staff to assess wind energy project impacts. Specific application of these requirements to wind energy facilities is described below under Survey Requirements for Incidental Take Permits for Wind Energy Facilities.

While we have not officially issued fatality prediction models or pre-application monitoring protocols for activities other than wind energy generation, or finalized post-permitting monitoring protocols for any single activity, the Service has enough information about eagle behaviors and movements to recommend and approve monitoring protocols for activities other than wind energy generation on a project-specific basis during the permit application process. We encourage project proponents to coordinate with the Service as early as possible in the project planning process to ensure they are aware of any protocols we have recommended and that they use them appropriately. Our goal is to establish additional formalized monitoring protocols for industries other than wind energy in the future.

Survey Requirements for Incidental Take Permits for Wind Energy Facilities

Many of the comments on the proposed rule focused on the subset of prospective incidental take permits that relate to wind energy. These comments were helpful, yet indicated a general lack of understanding of how the Service's proposed approach to manage incidental take at wind facilities under an adaptive management framework is intended to work. For this reason, and because the permitting approach developed for wind facilities provides an example of how the Service intends to implement incidental take permitting for other activities, we have expanded our description of the overall approach here in the preamble to the rule. The Service's emphasis on eagle incidental take permits for wind facilities reflects Administration priorities for expanded wind energy development and a desire to minimize the impacts of that growth on eagles; it does not reflect a belief that wind development poses a disproportionate risk compared to other activities that may incidentally take eagles, nor does it reflect any greater availability of permits to wind companies versus other types of industries that may need eagle incidental take permits.

Preconstruction Survey Standards for Wind Energy Facilities

In the proposed rule, the Service proposed to incorporate by reference Appendices C and D of the ECPG as standards for collection and analysis of data to support eagle incidental take permit applications for wind facilities, and we indicated our intent to develop similar standards for other activities in the future. This proposal was not supported by many commenters for a range of reasons, but primarily because of a perceived lack of demonstrated scientific credibility in the methods and tools. However, the Service does not agree that abandoning the concept of standardized data collection for permits is a tenable way forward. First, one major objective of this rulemaking is to expedite the permitting process, and our experience has been that the negotiation over and use of disparate methods for initial data collection contribute greatly to the time required to develop and process a permit application. Second, as we explain below, the Service intends to use formal adaptive management to improve the scientific rigor and the performance of the impact-prediction tools used in the eagle permitting program. The Service's adaptive management process requires a minimum level of standardization in the initial input data where those standards exist, and this will result in each permit contributing to and improving the scientific credibility of the permitting process.

For now, the only activity for which we have such standards is wind energy generation. Those standards have been through two rounds of notice and public comment, as well as two rounds of scientific peer review. Rather than incorporate the relevant appendices from the ECPG into the rule by reference, in response to the comments received the Service has instead decided to include minimal pre-construction survey standards for eagle incidental take permits for wind facilities directly in the rule itself. The rule language was developed from the specific recommendations in Appendix C of the ECPG, and represents the minimum level of information and the least sophistication in sampling design that will be acceptable for the Service to evaluate and decide whether to issue an eagle take permit for a wind facility. These standards will ensure that representative eagle exposure data are available with which to predict eagle fatalities consistent with the Service's adaptive management program. The rule allows for deviations from the minimum standards, but only if the applicant consults with the Service early in the project-development process. In most cases both the Service and permit applicant will benefit by using this exception to design surveys that are designed to accommodate variation in eagle abundance over both space and time.

The precision, consistency, and utility of data from point count surveys for eagles can be much improved by incorporating some basic, common-sense sideboards into the survey design as discussed in the ECPG (Appendix C). These include: (1) Conducting eagle surveys and small bird surveys separately, to avoid overlooking large birds while searching at a much smaller scale for small songbirds; (2) using trained observers that are capable of accurate bird identification and distance estimation; (3) distributing surveys across daylight hours (

e.g.,

morning: Sunrise to 1100 hours; midday: 1101-1600 hours; evening: 1601 hours to sunset), and by designing surveys to more intensively cover the midday period in areas where eagle flight is more likely at that time of day; and (4) conducting surveys under all weather conditions except when visibility is less than 800 meters (m) horizontally and 200 m vertically.

Adaptive Management and Wind Energy Collision Risk Modeling

An overarching issue with eagle incidental take permits is uncertainty. For wind facilities, there is considerable uncertainty regarding the risk of turbines to eagles, factors associated with that risk, and whether there are tangible ways to reduce the risk. Moreover, in 2009, when the Service established the incidental eagle take regulations, there was no scientifically accepted approach for quantitatively estimating the probability of eagle take at individual wind facilities. This quantitative probability estimation is necessary for the Service to establish a take limit for each permit and to ensure that EMU take limits are not exceeded, or if they are exceeded, that appropriate compensatory mitigation is accomplished. The Service has adopted two key principles for eagle incidental take permitting at wind facilities to address this uncertainty: (1) Use of formal adaptive management; and (2) being risk-averse at the outset with respect to estimating impacts on eagles.

The Department of the Interior has a long history of approaching decisions in situations fraught with uncertainty using adaptive management (Williams et al. 2009). Adaptive management is a process of adaptive learning, whereby: (1) Predictions are made regarding anticipated effects of an activity; (2) data regarding the outcomes of the activity are collected; (3) the predictions are updated to reflect the actual outcomes of the activity; and (4) the updated predictions are used to change the activity, either in the future at the same site or at other places where the same activity is being contemplated. The Service has described its adaptive management framework for eagle incidental take permits for wind energy facilities in the ECPG (Appendix A)

(U.S. Fish and Wildlife Service 2013), and the overall framework is intended to account for uncertainty in the effects of wind facility siting, design, and operations on eagles. More broadly than for just wind energy, the adaptive management process is also intended to address uncertainty in compensatory mitigation and the effects of take rates on eagles. With regard to managing risk, the survey, monitoring, and information collection standards for eagle incidental take permits are all designed to provide data that allow for the quantification of uncertainty, primarily by providing estimates in the form of probability distributions. This allows the Service to explicitly describe its risk tolerance (

i.e.,

being protective of eagles or protective of interests that might take eagles) for each aspect of the permitting process. Together, the adaptive management and risk management processes function as a means for describing how the risk, in the form of uncertainty, is shared between the protected resource and the regulated community.

The part of the Service's adaptive management process for eagle incidental take permits that has generated the greatest debate is the approach and model used to predict eagle fatalities at wind facilities. For that reason, and because this is an excellent example of the Service's philosophy regarding the application of adaptive management to eagle permitting, we describe the fatality prediction process here in some detail. The Service's baseline fatality prediction model, also referred to as a collision risk model (CRM), is thoroughly described in Appendix D of the ECPG and in New,

et al.

(2015). The key points are that the CRM uses: (1) A project-specific estimate of eagle exposure; (2) a project-specific estimate of the amount of hazardous area and time that will be created by the project; and (3) an estimate of the probability that an exposed eagle that enters the hazardous area will be struck and injured or killed by a turbine blade; to generate (4) an annual eagle fatality estimate in the form of a probability distribution. The model assumes a predictable relationship between eagle exposure, hazardous area, and the risk of fatalities—a relationship that existing literature, some commenters, and the Service agree is not straightforward. The ECPG identifies 11 general categories of covariates (variables that help explain variation in the parameter of interest) that the Service believes may affect eagle collision probability to some degree. However, these are not presently incorporated into the CRM because, as pointed out by peer reviewers of the draft ECPG, scientific support for the role of these factors in collision risk is speculative and not quantifiable at this time. Furthermore, the effects of these factors may be varied across locations.

The CRM uses Bayesian statistics to formally combine existing (prior) data with project-specific data to determine eagle exposure and collision probability (assuming the number and size of turbines to be built, and thus hazardous area, are known). The Service requires eagle incidental take permit applicants to conduct pre-construction eagle use surveys within the footprint of the planned wind facility to generate project-specific data on pre-construction eagle exposure. These pre-construction survey data are formally combined with prior information on eagle exposure nationally to generate a probability distribution for eagle use for the specific project area. In the case of collision probability, however, there are no project-specific data to combine with the prior data until after the project has operated for several years; thus only the prior information is available to be used for the initial collision probability estimate. The Service uses prior information on collision probability from the only wind facilities that had publicly available data on eagle use and post-construction fatalities at the time the ECPG was written in 2013. These post-construction data came from four facilities, did not include information for bald eagles, and some data were from older-style wind turbines that might have different collision probabilities than modern turbines. However, these potential data deficiencies only affect the initial eagle fatality estimates at permitted wind facilities. This is because the Service's adaptive management approach calls for formally combining the prior information with standardized data collected on actual eagle fatalities after the facility becomes operational. These updates would occur no less frequently than once every 5 years at each facility. Such updates will naturally correct for any bias in the initial “collision-prior-based” fatality estimate, so that the fatality estimates over most of the life of a wind facility will be heavily weighted towards actual fatality data from the site. Moreover, because the post-construction fatality information will be collected under standardized protocols required by the terms and conditions of each permit, the data can be combined with data from other permitted wind facilities to update and improve the collision probability prior for the national CRM. Thus, the Service intends to improve the predictive accuracy of the CRM both at the individual project level and nationally through standardized use as a formal part of its adaptive management process. We could not achieve improved accuracy of the CRM without standardized use of these protocols.

Uncertainty in the project-specific fatality estimates comes from both the prior and project-specific data for eagle exposure, and, initially, from the prior information on collision probability. The Service has made the decision to manage the quantified uncertainty in the CRM estimates in a manner that reduces the risk of underestimating eagle fatalities at wind facilities. The Service views this as important both to ensure the risk to eagles is not underrated, but also to minimize the chance that a permittee will illegally exceed his or her authorized eagle take limit. The median (50th quantile) fatality rate of the CRM-generated probability distribution is the point on the distribution at which there is an equal risk of under- and overestimating eagle fatalities. The Service uses the 80th quantile of the CRM fatality probability distribution to determine the take limit for incidental take permits, which shifts the risk to a 20% chance of underestimating eagle take. Improvements in the precision of the CRM estimates through adaptive management, both at the project level and nationally, should decrease uncertainty and thus shrink the magnitude of the difference between the median fatality rate and the permitted take limit over time. For now, however, the Service acknowledges that its fatality estimates for wind facilities are both higher than what is expected and higher than what is likely to be observed, and that this bias is intentional.

The Service's adaptive management approach for the incidental eagle take permits necessitates the collection of standardized pre- and post-construction data and the use of the CRM, or a model much like it, to generate and update fatality estimates. For this reason, in the proposed rule the Service contemplated codifying its current guidance regarding data collection and fatality predictions in the regulations. There was considerable opposition to this among commenters, with most opponents citing the need to remain flexible so that new information could be incorporated rapidly into the permitting process. In response to these comments, the Service has modified its proposal for the final rule in two substantive ways. First, the final regulations do not incorporate by reference Appendices C and D of the ECPG. However, because the adaptive

management process cannot function credibly without standardized pre-construction site-specific eagle exposure data, the Service has instead incorporated minimum standards for such data directly into the final rule, subject to waiver under exceptional circumstances (see above discussion on pre-construction survey protocols for wind energy facilities). Second, the Service will not require permit applicants to use the CRM to estimate eagle fatalities for their permit applications. Instead, project proponents can use any credible, scientifically peer-reviewed model to generate eagle fatality and associated uncertainty estimates for their permit applications. The Service will then use the standardized project data supplied by the permit applicant and the Service's CRM to generate a predicted number of fatalities for each incidental eagle take permit for a wind facility, and the 80th quantile of the CRM estimate will be the take limit for the permit except under exceptional circumstance. The Service will treat any alternative models used by the permit applicant as candidate models whose performance may be compared formally to that of the CRM as part of the adaptive management process. Any alternative models that, over time, demonstrate better or comparable predictive performance to the CRM could eventually be formally incorporated into the adaptive management process for estimating permit take limits.

The Service intends the adaptive management process to eventually provide: (1) A better understanding of, and ability to quantify, factors associated with eagle collision risk; (2) a more accurate estimate of collision probability for bald eagles, and (3) data suitable for updating the original golden eagle collision and exposure priors (the exposure prior is the average eagle exposure value based on all available previously existing information) for the CRM. However, to date, so few incidental take permits have been issued at wind facilities that no progress has been made in these areas. In particular, the lack of progress towards updating the collision probability prior has generated opposition to the entire eagle incidental take permit adaptive management process. Wind facility operators and their consultants believe the CRM with the original collision prior (the estimated probability, based on all available previously existing information, that an eagle that flies into the hazardous area around wind turbine will collide with a blade) produces fatality estimates that are too large, and in cases where compensatory mitigation is required (

e.g.,

for take of golden eagles), the mitigation requirements exceed what is necessary. This concern is offset somewhat by the Service's policy that excess mitigation accomplished in the first 5 years of a wind project's operations will be credited towards future year obligations (which, as described briefly above and in more detail below, will be based on CRM estimates that are adjusted after no more than 5 years of operation to include a site-specific collision probability). However, this policy has not appreciably reduced concern about use of the CRM, as expressed by many commenters on the proposed rule. To address this particular concern, within 18 months the Service intends to update the collision prior for the CRM using publicly available data collected at wind facilities operating without incidental eagle take permits. The Service believes that these types of data can be appropriate for such an update, provided the data and protocols under which they were collected can be verified and shown to be appropriate, and that the wind facilities that make their data available are sufficiently representative of a cross section of wind facilities in operation today. The Service is already engaged in a process to update priors and other data for modeling eagle take and plans to revise the CRM and Appendix D of the ECPG through a public process. As part of this process the Service will also consider ways of expediting improvements in the CRM relative to incorporating other covariates associated with eagle risk and a species-specific prior collision probability for bald eagles.

As stated above, the Service intends to maintain its policy of disproportionately sharing risk to avoid underestimating eagle take at individual wind facilities. We believe this is appropriate because the consequences of underestimating eagle take are far greater than the consequences of overestimating take, and not just because of unintended consequences on eagle populations. Avoiding underestimating eagle take significantly reduces uncertainty for permittees. For example, if eagle take at the individual permit level was consistently underestimated, many permittees would exceed their permitted take limits, necessitating permit amendments, additional costly and unplanned after-the-fact compensatory mitigation actions, and possible enforcement with associated fines. For bald eagles with positive EMU take thresholds, consistently underestimating take could lead to permitted take exceeding the EMU take limit, which would necessitate retroactively requiring permittees that initially had no compensatory mitigation requirements to implement mitigation after the fact. Further, if LAP take limits were unexpectedly exceeded, NEPA compliance for permits overlapping the affected LAP would have to be reviewed. Although these consequences are most likely if there is a systematic bias in the fatality estimates themselves, even with an unbiased estimator, some of these consequences could be expected with 50% of permits if the Service were to use the median fatality rate as the take limit for individual permits. In contrast, if permitted take is set at a higher percentile of the fatality prediction, the primary consequences are that the permittee is likely to exceed actual compensatory mitigation requirements over the first 5 years of operation (if compensatory mitigation is required). Additionally, the Service would likely routinely debit some take from the EMU and LAP take limits unnecessarily, thereby underestimating available take when considering new permit requests. Both of these issues are at least partially remedied when initial take estimates for projects are adjusted with project-specific fatality data after the first 5 years of operation. At that time, permittees receive credit for any excess compensatory mitigation they have achieved, as described above, and the debits from the EMU and LAP take limits are recalibrated to reflect the updated expectations for future take. These actions are comparatively simple to implement, and do not have the same kind of far-reaching consequences as with underestimates.

Monitoring and Mitigation

Most permittees will be required to monitor eagle take to assess whether and how much take occurs under the permit. Reported take will be based on surveying and monitoring protocols required by the permit. For permits for disturbance, such monitoring is likely to consist of regular visits to the proximity of the nest site or other important eagle-use area where disturbance is likely to occur to observe whether eagles are using the area.

We agree with the large number of commenters that urged the Service to require third-party monitoring for some permits. As we stated in the preamble to the proposed regulations, we were considering that option. These final regulations require that, for all permits with durations longer than 5 years, monitoring must be conducted by qualified, independent entities report

directly to the Service. In the case of permits of 5-year durations or shorter, such third-party monitoring may be required on a case-by-case basis. We do not believe there will be significant additional costs imposed by the requirement for third-party monitoring. Most companies already rely on and pay for consultants to conduct project monitoring, presumably because it is more cost-effective than supporting those activities “in-house.”

We expect that most long-term permits will authorize incidental lethal take rather than disturbance. Those conducting monitoring for permits that authorize eagle mortalities will be required to search for injured and killed eagles and to estimate total take using methods approved by the Service. Permittees will be required to document and report all eagles that are found, the methodologies employed to search for them (including whether or not they were detected as part of a formal survey methodology), and the methods used to estimate the probability of detection.

The Service defines “mitigation” to sequentially include: Avoidance, minimization, rectification, reduction over time, and compensation for negative impacts. Under Departmental policy (600 DM 6), “compensatory mitigation” means “to compensate for remaining unavoidable impacts after all appropriate and practicable avoidance and minimization measures have been applied, by replacing or providing substitute resources or environments (

see

40 CFR 1508.20) through the restoration, establishment, enhancement, or preservation of resources and their values, services, and functions.” The 2009 eagle regulations lack specificity with regard to when compensatory mitigation will be required, and the preamble discussion of compensatory mitigation was somewhat inconsistent. In reference to nonpurposeful take permits, the preamble to the 2009 regulations contained the following language: “additional compensatory mitigation will be required only (1) for programmatic take and other multiple take authorizations; (2) for disturbance associated with the permanent loss of a breeding territory or important traditional communal roost site; or (3) as necessary to offset impacts to the local area population. Because permitted take limits are population-based, we have already determined before issuing each individual take permit that the population can withstand that level of take. Therefore, compensatory mitigation for one-time, individual take permits will not typically be necessary for the preservation of eagles” (74 FR 46836, p. 46844). Regarding the § 22.27 nest take permits, we indicated in the preamble that we would require compensatory mitigation for all permits except those issued for safety emergencies (74 FR 46836, p. 46845).

The Service also addressed compensatory mitigation in the 2009 FEA, which contained the following language: “For most individual take permits resulting in short-term disturbance, the Service will not require compensatory mitigation. The population-based permitting the Service will propose is based on the level of take that a population can withstand. Therefore, compensatory mitigation for individual permits is not necessary for the preservation of eagles. However, the Service will advocate compensatory mitigation in the cases of nest removal, disturbance or [take resulting in mortality] that will likely incur take over several seasons, result in permanent abandonment of more than a single breeding territory, have large-scale impacts, occur at multiple locations, or otherwise contribute to cumulative negative effects” (USFWS, 2009).

Because the 2009 regulations did not incorporate specific compensatory mitigation provisions, the Service has required compensatory mitigation on a case-by-case basis somewhat inconsistently, particularly for bald eagles, which has at times resulted in differing treatment of, and uncertainty for, permit applicants. Accordingly, this rule includes standardized requirements for compensatory mitigation. In addition to the mitigation requirements set out in this rule, the Service will implement these regulations in a manner consistent with Service, Departmental, and Presidential mitigation policies.

These regulations require compensatory mitigation for any permit authorizing take that would exceed authorized take limits. Compensatory mitigation for this purpose must demonstrate it offsets authorized take by reducing another ongoing form of mortality by an equal or greater amount than the unavoidable mortality, or increasing the eagle population by an equal or greater amount.

Since 2009, take limits for golden eagles have been set at zero throughout the United States. Accordingly, all permits for golden eagle take would exceed the take limits, and so must incorporate compensatory mitigation in order to authorize that take. A permittee would have to compensate for authorized take within the same EMU (except that we would allow for compensatory mitigation of take of Alaskan golden eagles throughout the migration and wintering range in the interior western United States and northern Mexico).

The best available information indicates that ongoing levels of human-caused mortality of golden eagles likely exceed sustainable take rates, potentially significantly. This means that the golden eagle population is likely in decline and not meeting the Service's preservation goal of a stable or increasing breeding population. As a result, compensatory mitigation for any authorized take of golden eagles that exceeds take thresholds will be designed to offset the authorized take at a 1.2 to 1 mitigation ratio to further an outcome consistent with the preservation of golden eagles as the result of the permit. We believe this baseline mitigation ratio appropriately balances meeting our obligations under the Eagle Act with what is reasonable, fair, and practicable to permittees. Based on the uncertainty in the effectiveness of a particular compensatory mitigation practice and other factors common to mitigation programs, we may require further adjustments to mitigation ratios.

To be compatible with the preservation of eagles, take that would compromise the persistence of local populations of eagles may also require compensatory mitigation. The regulations account for this by generally requiring compensatory mitigation for cumulative authorized take exceeding 5% of the LAP to ensure our eagle preservation standard is being met. An exception would be when the EMU take limit is not exceeded (

i.e.,

currently the case for bald eagles in all EMUs), the permitted take is already occurring, and the permit conditions would result in a reduction of take.

We may also require compensatory mitigation when there is an unusually high level of unauthorized eagle mortality in the LAP (for example, when the Service has information indicating that unauthorized take exceeds 10% of the LAP). We have no data to indicate that ongoing unauthorized take of bald eagles is less than that of golden eagles, and intend to apply the LAP analysis and assessment of any known ongoing unauthorized take to bald eagles as well as golden eagles, as we have been doing while the LAP analysis remains guidance. Although exceeding 5% permitted take of the LAP will have significantly less dramatic effects to local bald eagle populations because of the improved status of bald eagles, states, tribes, and localities have communicated their interest in seeing regulatory safeguards to protect local bald eagles as well as golden eagles. In

the near future, it is unlikely that cumulative authorized take of local area populations of bald eagles will exceed 5% anywhere in the country. The Service will continue to collect data to refine our understanding of cumulative mortality on both eagle species and may adjust take rates in the future. We received comments asserting that it is unfair for the Service to impose a greater than one to one compensatory mitigation ratio for golden eagle take permits because people seeking to comply with the regulations should not be required to address impacts caused by other human activities for which no one is being held accountable. Similar concerns were expressed regarding the consideration of unauthorized take within the LAP when making permitting decisions. Additional commenters asserted that the Service does not adequately enforce the Eagle Act. In response to all of those comments, we wish to clarify that, outside of its permitting programs, the Service is addressing unauthorized take of bald eagles and golden eagles through a variety of means. The Service's Office of Law Enforcement expends considerable time and resources protecting both species. Because golden eagles in particular are experiencing significant amounts of human caused mortality, they are receiving high levels of investigative effort throughout the western United States. These investigations have covered the unlawful killing and trafficking of eagles and their parts, electrocutions of eagles from electrical distribution infrastructure, intentional or incidental poisoning of eagles, eagle mortality due to wind turbine strikes, eagle nest destruction, and a host of other human activities that result in eagle deaths. Investigation and prosecution of these crimes can be very time intensive, with some investigations requiring many hundreds of hours to complete.

Many of these investigations require thorough review of historical information on the activity causing the mortality, investigation of the responsible party's efforts to avoid the eagle deaths, and presentation of investigative results to the Department of Justice (DOJ) for potential prosecution. This is often accomplished through subpoenas, search warrants, field inspections (often in remote areas), evidence collection, interviews, and report writing. For activities involving the intentional killing and trafficking of eagles, the investigative techniques can also include the use of undercover operations to gain evidence and better document the extent of the unlawful activity. In short, the Service's Office of Law Enforcement places a high priority on protecting bald and golden eagles, and expends considerable effort on education, outreach, and investigations to fulfill this responsibility.

This final rule establishes standards applicable to all compensatory mitigation in accordance with principles and standards set forth in Service and Departmental and Executive Branch policy. Compensatory mitigation is to be used to offset remaining impacts after the application of all practicable avoidance and minimization measures. Compensatory mitigation must be sited within the same eagle management unit where the permitted take will occur unless the Service has reliable data showing that the population affected by the take includes individuals that are reasonably likely to use another EMU during part of their seasonal migration. Compensatory mitigation must be based on the best available science and must use rigorous compliance and effectiveness monitoring and evaluation to make certain that mitigation measures achieve their intended outcomes or that necessary changes are implemented to achieve them.

Compensatory mitigation must provide benefits beyond those that would otherwise have occurred through routine or required practices or actions, or obligations required through other legal authorities or contractual agreements. A compensatory mitigation measure is “additional” when the benefits of the measure improve upon the baseline conditions of the impacted eagle species in a manner that is demonstrably new and would not have occurred without the required compensatory mitigation measure. Voluntary actions taken to benefit eagles in anticipation of and prior to issuance of an eagle take permit may be credited towards compensatory mitigation requirements. Such actions must meet all mitigation standards set forth in the rule for compensatory mitigation. Applicants must provide clear evidence that the voluntary action was undertaken to fulfill compensatory mitigation requirements under this rule. The Service will determine whether and how much to credit such actions. Potential applicants intending to take voluntary conservation actions prior to permit application are encouraged to seek technical assistance from the Service.

Compensatory mitigation must be durable and, at a minimum, maintain its intended purpose for as long as the impacts of the authorized take persist. The Service will require that implementation assurances, including legal, contractual, and financial assurances, be in place when necessary to assure the development, maintenance, and long-term viability of the mitigation measure. Compensatory mitigation must also include mechanisms to account for and address uncertainty and risk of failure of a compensatory mitigation measure. This could be in the form of greater mitigation ratios, the establishment of buffers or reserve accounts, or other mechanisms.

Compensatory mitigation may include conservation banking, in-lieu fee programs, and other third-party mitigation projects or arrangements. In approving compensatory mitigation mechanisms and actions, the Service will ensure the application of equivalent ecological, procedural, and administrative standards for all compensatory mitigation mechanisms. The Service prefers that compensatory mitigation is conducted prior to when the impacts of the action occur. Where compensatory mitigation is required, the applicant must commit to the funding and method that will be used prior to or upon permit issuance. For long-term permits, permittees will be required to provide compensatory mitigation to offset predicted take over each 5-year period. If reliable reported data demonstrate that a given permit holder/project is causing fewer impacts to eagles than originally permitted (

e.g.,

actual take of eagles is lower than predicted), permittees can carry forward “unused” compensatory mitigation credits to the next 5-year review period.

The Service will develop guidance for different types of compensatory mitigation projects for eagles, for example power pole retrofits to reduce eagle electrocution. Guidance will include methods and standards for determining credits (

i.e.,

how much of the type of mitigation is needed to offset one eagle), mitigation ratios based on uncertainty, temporal loss and related factors, durability assurance requirements, compliance and effectiveness monitoring requirements, and other important implementation considerations. When practical, we will involve stakeholders in the development of such guidance.

Additional Revisions

These regulations include several minor revisions to the prioritization criteria that govern the order in which the Service will prioritize authorization of take if EMU take limits are approached. The priority after safety emergencies for Native American take for religious purposes that depends on take of wild eagles (and as such cannot

be met with eagle parts and/or feathers from another source, such as the National Eagle Repository) is amended so that it applies to

increased

need for take for religious purposes. Historical tribal take for religious use requiring take of eagles from the wild that has been ongoing, but not authorized, generally does not need to be prioritized because it is part of the environmental baseline set in the 2009 FEA. However, increases in historical take levels would not be part of the current baseline. We also are removing the reference to rites and ceremonies because traditional take for religious and cultural purposes may not be limited to, or properly characterized as being part of, specific rites and ceremonies. In addition, we are changing the prioritization order by removing the priority for renewal of programmatic permits, since the regulations would no longer contain a separate category for programmatic permits.

Unauthorized eagle take is prohibited by law. The options available for addressing future eagle take differ from those for addressing past take. Future take may be addressed proactively through a nonpurposeful (incidental) take permit issued under the Eagle Act and the 50 CFR part 22 permit regulations. If such a permit is sought by an applicant and issued by the Service, it will protect the permittee from criminal prosecution or civil law enforcement for any eagle take authorized by the permit.

If enforcement action has been taken to address past eagle take by an applicant, then the Service will consider any pending or completed resolution of that enforcement when evaluating an application and determining whether to issue an eagle incidental take permit. The Service will do so in order to be consistent with the general responsibility criteria set out in 50 CFR part 13 for all permits (whether or not eagle permits) issued under 50 CFR Subchapter B. A permit can be issued without resolving unauthorized past eagle take; however, the applicant continues to be subject to an enforcement action at any time for unpermitted prior take of eagles. Depending on the circumstances of a past take, the U.S. Department of Justice or the Service's Office of Law Enforcement may determine that enforcement is warranted using appropriate enforcement authorities. The Service will take into consideration the nature, circumstances, extent, and gravity of the prohibited acts committed in the violation and with respect to the violator the degree of culpability and cooperation, history of noncompliance, levels of past take, and efforts to reduce take. The statute of limitations for criminal and civil enforcement actions is five years.

These revised regulations include a provision at § 22.26(f)(7) that requires the Service to determine, before issuing a permit, that issuance of the permit will not interfere with an ongoing civil or criminal action concerning unpermitted past eagle take at the project. One element of civil and criminal cases is establishing that take of eagles is not permitted, requiring coordination between the Service law enforcement and migratory bird programs early in an investigation. Later in the process, court judgments may include a sentencing or probation condition that an eagle take permit be sought, or where settlement negotiations have been successful, the settlement agreement often includes a requirement that a company apply for an eagle take permit. Without such a determination, issuance of a permit might in some cases disrupt the ongoing investigation, prosecution, or negotiation process.

To recoup the cost of processing longer-term permits, which are generally complex due to the need to develop robust adaptive management measures, we will assess a $36,000 permit application processing fee for eagle incidental take permits of 5 years duration or longer. This fee is the same as the fee we currently require to process programmatic permits. A commercial applicant for an incidental take permit of a duration less than 5 years will pay a $2,500 permit application processing fee, an increase from the current fee of $1,000 for programmatic permits and $500 for standard permits. The amendment fee for those permits would increase from $150 to $500. The proposed higher fees for commercial entities would recover a larger portion of the actual cost to the Service, including technical assistance provided to the potential applicant by the Service prior to receiving the actual permit application package. Commercial entities have the opportunity to recoup the costs of doing business by passing those costs on to their customers. The incidental take permit application processing fee for homeowners and other non-commercial entities remains $500, and the amendment fee for those permits is unchanged at $150.

We will assess a user fee called an “administration fee” every 5 years for long-term permits to cover the cost to the Service of conducting the 5-year evaluation and developing any appropriate modifications to the permit. The proposed rule would have implemented a $15,000 administration fee but, based on changes to the rule, and upon subsequent analysis, we have determined that an $8,000 administration fee more accurately accounts for costs the Service is likely to incur during a “typical” 5-year permit review. We will adjust the fee amount in future rulemakings if experience shows that $8,000 is either too high or too low to accurately account for costs.

We are removing the provisions for transfer of a programmatic permit from a permittee to another entity that were codified at § 22.26(i). Those provisions were unnecessary because § 13.25(b) already provides for transfer of § 22.26 eagle incidental take permits. The Service is reviewing permit applications from, and continuing to provide technical assistance to, applicants with complex projects who are in the process of applying for eagle take permits. To prevent many of them from having to effectively restart the application process due to these revisions to the regulations, we are incorporating a 6-month “grandfathering” period wherein applicants (persons and entities who have already submitted applications) and project proponents who are in the process of developing permit applications can choose to apply (or re-apply) either under all the provisions of the 2009 regulations or all the provisions of these final regulations.

The 2013 Duration Rule established a definition of “low-risk” projects that was subsequently vacated by a federal district court decision (

Shearwater

v.

Ashe,

No. 5:14-cv-02830 LHK (N.D. Cal. Aug. 11, 2015)). After subsequent consideration, we found this definition to be counter-productive. In the Duration Rule, the Service defined “low-risk” in a footnote to 50 CFR 13.11(d)(4) as a project or activity that is unlikely to take an eagle over a 30-year period and the applicant for a permit for the project or activity has provided the Service with sufficient data obtained through Service-approved models and/or predictive tools to verify that the take is likely to be less than 0.03 eagles per year (or less than 1 eagle over a 30-year period). In retrospect, that definition would not have proved useful because it would have covered only those projects where take is essentially negligible, and, therefore, the project would likely not require a permit in the first place. We see utility in redefining “low-risk” to include projects with a slightly higher probability of taking eagles, but which cumulatively will still be compatible with eagle management objectives. However, despite seeking input from the public and considerable staff effort, we were unable to develop

a definition of “low-risk” that could be consistently applied throughout the United States while achieving our desired goals for a “low-risk” category. The Service considered basing the low-risk category on (1) a flat number of eagles predicted to be taken, (2) a percentage of the local area population (LAP), (3) a hybrid of those two, and (4) the geographic and physical features of the area where the project will be located. Each of these approaches produced conflicting results due to the significant discrepancies that exist between eagle population densities and resilience, habitat variability, and project scales.

Accordingly, we did not propose a revised definition for low-risk projects in the proposed rule. Instead, we again sought comment on how to define “low-risk” or “low-impact” take of eagles, and on other approaches for authorizing take, such as a general permit authorization. The proposed rule stated that while comments would be outside the scope of this rulemaking action, we would keep them on file for later consideration in a future rulemaking. Several commenters provided input on this topic, and we will retain those comments to help inform future guidance or rulemaking. We intend to continue the public process to further develop criteria and an approach that minimizes the costs of compliance for the public and the demand for agency resources for projects that will result in no more than minimal individual and cumulative adverse effects on eagles.

Eagle Nest Take Permits (50 CFR 22.27)

Under the 2009 eagle nest take regulations (50 CFR 22.27), the Service can issue permits for removal, relocation, or destruction of eagle nests where (1) necessary to alleviate a safety emergency to people or eagles, (2) necessary to ensure public health and safety, (3) the nest prevents the use of a human-engineered structure, or (4) the activity or mitigation for the activity will provide a net benefit to eagles. Only inactive nests may be taken except in the case of safety emergencies. Inactive nests are defined by the continuous absence of any adult, egg, or dependent young at the nest for at least 10 consecutive days leading up to the time of take.

As with § 22.26 incidental take permits, these rule revisions eliminate the distinction between programmatic and standard permits for § 22.27 nest take permits. The permit fee for removal or destruction of a single nest will remain at $500. For the same reasons as described above for § 22.26 permits, a commercial applicant for a nest take permit for a single nest will pay a $2,500 permit application processing fee, an increase from the current fee of $500 for standard permits and $1,000 for programmatic permits. The amendment fee for those permits will increase from $150 to $500. For permits to take multiple nests, the fee is $5,000 versus $1,000 for programmatic permits, currently. For homeowners and other non-commercial entities, the nest take permit application processing fee and amendment fee will not change.

These revised regulations also revise several definitions applicable to nest take permits to better comport with terms used in scientific literature. Nests that are not currently being used for reproductive purposes are defined as “alternate nests,” while nests that are being used are “in-use nests.” Some commenters suggested the latter be called “occupied nests,” but we believe that term would cause confusion because nests are in use for breeding purposes prior to being physically “occupied” by nestlings or an incubating adult. An “in-use nest” is defined as “a bald or golden eagle nest characterized by the presence of one or more eggs, dependent young, or adult eagles on the nest in the past 10 days during the breeding season.” This definition includes the period when adults are displaying courtship behaviors and are building or adding to the nest in preparation for egg-laying. We define “alternate nest” as “one of potentially several nests within a nesting territory that is not an in-use nest at the current time.” When there is no in-use nest, all nests in the territory are “alternate nests.”

We are revising the definition of “eagle nest” from “any readily identifiable structure built, maintained, or used by bald eagles or golden eagles for the purpose of reproduction” to “any assemblage of materials built, maintained, or used by bald eagles or golden eagles for the purpose of reproduction.” The words “readily identifiable” were not helpful for clarifying when a structure was or was not a nest since a structure might appear to be just a pile of sticks to one person, or an osprey nest to a second person, but clearly an eagle nest to someone familiar with eagle nests. The confusion caused by the words “readily identifiable” sometimes put in jeopardy nests in the early stages of being built, or nests that are used from year to year but are substantially damaged during the non-breeding season by wind or weather.

The revised provision at § 22.27(a)(1)(i) enables us to issue a permit to remove an in-use nest to prevent a rapidly developing safety emergency situation, instead of waiting until the emergency is exigent. Without this addition, the Service has been faced with having to wait until the fully developed state of emergency had arrived, and the delay has sometimes been to the detriment of the eagles because, while the safety emergency developed, the breeding pair had the opportunity to lay eggs.

The 2009 regulations provide that the Service can issue a nest take permit for an inactive (“alternate”) nest that is built on a human-engineered structure and creates a functional hazard that renders the structure inoperable for its intended use. We are revising this provision to also allow for removal of an in-use nest prior to egg-laying in order to prevent the foreseeable functional hazard from coming to fruition. The revised regulatory language allows nest removal at an earlier stage that may provide eagles an opportunity to re-nest elsewhere while also preventing the nesting eagles from rendering the human-made structure inoperable.

We are removing the requirement that suitable nesting habitat be available in the area nesting population to accommodate displaced eagles for non-emergency nest take. The provision has been problematic because, in many healthy populations of bald eagles, suitable nest sites are all occupied. As part of the permit application review process, the regulations retain consideration of whether alternate nest sites are available to the displaced eagles, but an affirmative finding is not a requirement for issuing a permit.

The Service will consider whether other nests are available in the “nesting territory,” rather than in the “area nesting population.” We defined “area nesting population” in 1982 as “the number of pairs of golden eagles known to have a resting [sic] attempt during the preceding 12 months within a 10-mile radius of a golden eagle nest.” In addition to the typo (

i.e.,

“resting” instead of “nesting”), the definition is problematic for bald eagles, not only because it omits reference to bald eagles, but also because a 10-mile radius around a bald eagle nest has no particular biological significance. For both species of eagles, consideration of whether the nesting pair may be able to use a different nest should focus primarily on the pair's nesting territory. In some cases, that determination may require looking beyond any known alternate nests in order to verify that those nests are not actually part of a different pair's nesting territory. However, it will not always require surveys of the area within the 10-mile

radius of the nest. We define “nesting territory” as “the area that contains one or more eagle nests within the home range of a mated pair of eagles, regardless of whether such nests were built by the current resident pair.” This definition replaces the current definition of “territory.” The two definitions are functionally similar, but the new definition of “nesting territory” is more in line with terminology used in the biological community.

Under the 2009 regulations, if a nest containing viable eggs or nestlings must be removed, transfer of the nestlings or eggs to a permitted rehabilitator or placement in a foster nest was required. However, there are circumstances when such placement is simply not possible; for example, in Alaska, the closest permitted rehabilitator may be a day's drive or more away. Nests with viable eggs or nestlings can be removed only in safety emergencies, and the requirement for transfer of eggs and nestlings has sometimes meant that the Service could not legally issue a permit necessary to alleviate the safety emergency. To address this problem, we are adding a provision allowing the Service to waive the requirement if such transfer is not feasible or humane. The Service will determine the disposition of the nestlings or eggs on a case-by-case basis in that scenario.

As with the prioritization criteria in § 22.26, these regulations amend the prioritization criteria for nest take permits to remove any priority for allocation of take to renewal of programmatic permits since that permit category is being removed. Also, the prioritization for Native American religious take is amended in the same manner as for § 22.26 incidental take permits (see earlier discussion).

These revised regulations adopt mitigation standards for taking eagles nests under § 22.27 that are similar to those we are adopting for § 22.26. The exception is that permits issued under paragraph (a)(1)(iv) must apply appropriate and practicable compensatory mitigation measures as specified in the permit to provide a net benefit to eagles if the permitted activity itself does not provide a net benefit to eagles. Permits issued under paragraph (a)(1)(iv) are not limited to situations involving a safety or health issue or an obstruction to a manmade structure; they can be issued to take alternate (currently called “inactive”) nests for any reason as long as there will be a net benefit to eagles scaled to the effects of the nest removal. If the activity itself has a net benefit, compensatory mitigation would not be required. For example, a nest might be flooded during a riparian restoration project undertaken to provide improved habitat for eagles. Where the activity itself does not benefit eagles, the net benefit must be through compensatory mitigation.

Several commenters suggested we eliminate the requirement for a “net benefit” for permits issued under paragraph (a)(1)(iv). In general, we believe the requirement to provide a net benefit is appropriate, particularly now that we will promote the use of conservation banks, in-lieu fee programs, and other third-party arrangements to carry out the necessary measures to benefit eagles. These types of programs can leverage relatively small amounts of funding to provide significant benefits on the ground. Also, many nests for which permits are sought for removal are lower quality nests, not having been used in some time and degraded, or some new nests in areas of high eagle density. In those cases, the amount of compensatory mitigation may be relatively low. Data show that productivity in highly saturated eagle populations decreases due to nests being built in less than ideal locations in relation to food sources and/or increased competition and fighting among nesting pairs. In such situations, the required net benefit would reflect that lower biological value.

Permit Application Fees (50 CFR 13.11)

The regulations include minor revisions to the permit application processing fee table in 50 CFR 13.11. We are removing the column for Administration Fees because those fees apply only to eagle incidental take permits and not to any other type of Service permit listed in the table. The requirement for administration fees is instead incorporated into § 22.26. The table at § 13.11 also includes the updated fees for incidental take permits for commercial entities, long-term incidental take permits, nest take permits for commercial entities, and nest take permits for multiple nests.

Scope of Eagle Regulations (50 CFR 22.11)

Paragraph § 22.11(c) is revised by replacing “[Y]ou must obtain a permit under part 21 of this subchapter for any activity that also involves migratory birds other than bald and golden eagles, and a permit under part 17 of this subchapter for any activity that also involves threatened or endangered species other than the bald eagle” with “[A] permit under this part authorizes take, possession, and/or transport only under the Bald and Golden Eagle Protection Act and does not provide authorization under the Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-712) or the Endangered Species Act for the take, possession, and/or transport of migratory birds or endangered or threatened species other than bald or golden eagles.” The original language was promulgated prior to the bald eagle being removed from the ESA List of Endangered and Threatened Wildlife as part of a final rule authorizing transport of eagle parts. The original intent of § 22.11(c), as explained in the final rule published in the

Federal Register

, was that a permit holder transporting items that contained not only eagle parts, but also parts of other species protected by the Endangered Species Act or the MBTA, into or out of the country would need to ensure he or she possessed the applicable permits for those protected, non-eagle species in order to legally transport the item (

see

64 FR 50467; Sept. 17, 1999). However, this provision could be read to limit the Service's discretion to decide the appropriate manner of authorization for activities that affect other protected species outside the context of transportation of items containing eagle parts. For example, § 22.11(c) could be read to preclude the Service from using intra-Service section 7 consultation to analyze and exempt non-jeopardizing ESA take that may result from the Service's issuance of an Eagle Act permit to a project proponent. Thus, we are amending § 22.11(c) to ensure it does not limit our discretion to apply the appropriate authorization under the ESA or the MBTA for activities that involve other species protected by those statutes.

Golden Eagle Nest Take Permits for Resource Development and Recovery (50 CFR 22.25)

The regulations include several revisions to the regulations for permits for take of inactive golden eagle nests for resource development and recovery operations. The purpose of these revisions is to incorporate terminology consistent with the § 22.27 eagle nest take permit regulations. Changes to § 22.25 in this rulemaking are limited to those necessary for consistency with § 22.27, with a few additional minor revisions, as explained below.

A new definition, “alternate nest” refers to a nest that is not currently being attended by eagles for breeding purposes. Under the 2009 regulations, such a nest was an “inactive nest,” the definition for which is removed from the regulations. We are also removing references to the “area nesting population.” As with § 22.27 nest take permits (discussed above), the relevant area of consideration is the nesting

territory. Rather than needing to evaluate whether there is suitable nesting habitat available within the area nesting population, the Service will consider whether alternate nests are available within the nesting territory. It may be appropriate in some cases to survey golden eagle nests within the 10-mile radius to determine whether nests assumed to be in the same territory as the one being removed are not actually in a different breeding pair's nesting territory. Loss of a nesting territory does not preclude the Service from issuing a permit, but such loss will be part of our consideration of whether the take is compatible with the preservation standard and what amount of mitigation is necessary.

We add the phrase “and monitoring” to paragraph (b)(4) of the § 22.25 permit regulations. We do, as a matter of course, require monitoring as a condition of these permits, so the regulation should be clear that we may require the permittee to monitor effects to eagles from the permitted activity and mitigation measures. Lastly, we replace the word “feasible” with “practicable” in reference to the mitigation that we will require, consistent with § 22.26, § 22.27, and agency mitigation policy.

Response to Public Comments

The following section contains the substantive public comments we received on the proposed regulation revisions and our responses that explain why we do or do not incorporate the changes suggested by each commenter into this final rule. Comments that pertain to the biological framework and eagle management objectives described in the Status Report and PEIS are not included below, and are instead addressed in Appendix A to the final PEIS. Also not included below are the many comments supporting various provisions of the rulemaking. We also received numerous comments recommending regulatory actions pertaining to permits for eagle depredation, eagle falconry, and eagle propagation. We do not respond to those comments here because they are outside the scope of this rulemaking, but we will consider them if and when we initiate a rulemaking process for those permit types.

Rulemaking Process

Comment:

Because the proposed rule will have cumulative effects on endangered and threatened species that share habitats with eagles, the Service must engage in section 7 consultation on the entire rule. The Service's assertion that the issuance of an eagle act permit is not the “direct cause of habitat degradation,” and hence such degradation need not be addressed as part of the NEPA process or in section 7 consultation, is legally unsupportable. Since the Eagle Act categorically prohibits the “take” of eagles without the Service's permission, a Service authorization of eagle takes that could not otherwise lawfully occur surely is the legal “cause” of not only the deaths of eagles and other wildlife from turbine operation, but also the associated habitat degradation due to road and associated infrastructure construction.

Response:

Section 7 of the ESA requires Federal agencies to consult to “insure that any action authorized, funded, or carried out” by them “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat.” 16 U.S.C. 1536(a)(2). Intra-Service consultations and conferences consider the effects of the Service's actions on listed, proposed, and candidate species. Our proposed action of issuing regulations regarding take of non-ESA-listed eagles does not authorize, fund, or carry out any activity that may affect—directly or indirectly—any ESA-listed species or their critical habitat.

See, e.g.,

Sierra Club

v.

Bureau of Land Mgmt.,

786 F.3d 1219 (9th Cir. 2015). Indeed, the Eagle Act does not empower us to authorize, fund or carry out project activities by third parties. The BGEPA empowers us to authorize take of bald and golden eagles. Thus, we have determined that these revisions have no effect on any listed, proposed, or candidate species or their critical habitat. As a result, section 7 consultation is not required on this proposed action. As appropriate, we will conduct project-specific section 7 consultations in the future if our proposed act of issuing a permit for take of eagles may, in and of itself, affect ESA-listed species or critical habitat. Regarding NEPA, we have analyzed the environmental effects of this rulemaking and our eagle permit framework in general in the PEIS associated with this rulemaking.

Comment:

The Service should have extended or should re-open the public comment period prior to finalization of the regulations to ensure a fully vetted and transparent process as required by NEPA. The 60-day comment period was unreasonably short given the importance of the issue and the magnitude of information provided in the documents.

Response:

NEPA does not address the public comment periods required for rulemaking. Whether a comment period is long enough to allow for sufficient opportunity for public input is governed by the Administrative Procedure Act (APA; 5 U.S.C. subchapter II). However, the APA also does not require specific durations for public comment periods or establish a minimum time period for public comment; rather it provides that “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation” (5 U.S.C. 553(c)). For example, in

Fleming Cos.

v.

U.S. Dept. of Agric.,

322 F. Supp. 2d 744, 764 (E.D. Tex. 2004), the court held that a 30-day notice and comment period is sufficient. We believe that 60 days was sufficient to allow for public input by interested parties on these regulations, and the quantity and quality of the substantive comments the Service received bear this out.

Comment:

Failure to meaningfully consult with Indian tribes on issues affecting their interests can affect the tribes' ability to effectively comment on policy changes. Consultation is still needed to provide the tribes with particularized information about how the rule revisions would affect them and the eagles around their lands. Due to the failure on the part of the Service to consult with tribes prior to proposing the regulations, issuance of the final rule should be delayed until government-to-government consultation is conducted and the tribes have an opportunity to comment following consultation.

Response:

In September of 2013, the Service sent all federally recognized tribes throughout the United States a letter inviting them to consult with the Service on development of these regulations. The Service then held meetings with all tribes that requested such meetings. We also held a number of regional informational webinars for tribes. In response to tribal comments on the proposed regulations asking for consultation, we reached out to each tribe that asked and met with them to gather their input and hear their concerns. Individual tribes will also have an opportunity to consult on individual permitted projects that may affect tribal interests.

Comment:

We ask that outstanding items that the Service is unable to address in this revision be acknowledged with a firm commitment by the Service to address the problematic elements of the program under a clearly defined schedule.

Response:

There are some “outstanding items” that the Service is likely to address through future guidance and, where necessary and

appropriate, future rulemakings. Issuing a schedule for when most of these items will be addressed would be an exercise in futility for a number of reasons, including the Service's inability to predict the size of its' future budget and work force, what the priorities under a new Administration might be, and what new information the Service will have that may bear on how we would prioritize the outstanding items to be addressed.

Preservation Standard

Comment:

The Service should adopt a stepwise approach to analyzing preservation under the modified preservation standard. A stepwise approach would first look at the LAP. If the LAP is healthy, then a project should be deemed to have satisfied the preservation standard and not be required to undertake compensatory mitigation. If the LAP is stressed or undeterminable, then a project could be required to consider populations at the EMU and/or throughout the geographic range of the species, in that order, to determine if and where mitigation is required. A stepwise approach would help ensure a rational relationship between a project's impacts, if any and the required mitigation to offset for those impacts.

Response:

Eagles move over much larger areas than LAPs, and simply looking at the effects of a project at the local area scale would ignore impacts to migratory and dispersing eagles from outside the LAP area. Moreover, it is not feasible to collect eagle population data at the scale of the local population everywhere permits are sought, meaning the kind of analysis described here would be infeasible over much of the United States. Finally, shifting the focus of compensatory mitigation to the LAP will greatly complicate and artificially constrain implementation of mitigation efforts. Given the current challenges with implementing effective mitigation, we will not further constrain options at this time.

Comment:

The Service should apply the Eagle Act's preservation standard to only the national and EMU levels for each eagle species. As long as the national and EMU populations stay stable or increase, which they currently are in the absence of [programmatic] eagle permits being issued, the Service's goals for eagles have been met and there should be no need to look at a smaller geographical area.

Response:

The Service's goals would not be met by allowing local eagle populations to significantly decline or disappear. There is no reason to believe that Congress's intent in enacting the Eagle Act and including the preservation standard was to preserve bald eagles only in pockets of their range. Moreover, current data, as presented in the Status Report, indicate that golden eagle populations at the national and EMU levels are likely not currently stable or increasing.

Comment:

Before proceeding with a take permit process using EMUs, the Service should strengthen the biological foundation of eagle demographic organization as a basis for assessing wind energy impacts, or take another approach altogether.

Response:

There is already an eagle take permitting process in place that has used both the LAP and EMU-based analyses, as described in the final environmental assessment conducted for that rulemaking action and the 2013 Eagle Conservation Plan Guidance. The proposal to shift to use of Flyways rather than Bird Conservation Regions (BCRs) for EMUs (background for which is provided in the Status Report) is based on our experience implementing the 2009 eagle regulations. Data collected under incidental take permits will allow the Service and partners to better assess the performance of the Flyway EMUs in capturing connectivity of eagle-use areas from a risk management perspective, or to determine if another configuration would be preferable.

Comment:

We are concerned that the preservation standard will result in the mere persistence of the two species without accounting for demographic sustainability. The mere presence of birds alone may not be ecologically sustainable unless there is a demographic preservation standard, the lack of which will potentially create population sinks. It is not apparent within the population models how the cumulative take of eagles affects their demographic preservation. The definition of “persist” is “stable with 2009 as the baseline.” We think there is room for misinterpretation of this definition. Persistence is related to local populations, and, thus, it may be difficult to link persistence to the 2009 baseline, given that this baseline was calculated at a different spatial scale (

i.e.,

not at the level of local populations). We request further assessment or a better explanation that clarifies how this concept would apply at local populations.

Response:

The Service's population objective is to maintain stable or increasing populations of both species of eagle at the EMU-scale, while at the same time ensuring the persistence of local populations. It is the EMU component of the objective that has been analyzed demographically and determined to be consistent with maintaining viable populations; we show in the Status Report that take at the maximum level allowed at the LAP-scale will have negative effects on local populations, though our analysis suggests local populations should still persist. Taken together, the two-tiered population objective means that across an EMU, we might well have areas where eagle take is high and local populations decline to lower equilibriums, whereas elsewhere in the EMU eagle populations are not affected substantially by authorized take to the same degree (or are increasing as a result of the application of compensatory mitigation), such that across the whole of the EMU the population, on average, is stable or increasing.

Comment:

The preservation standard proposed for two species not listed under the ESA generally exceeds federal ESA standards. There was an expectation that the Service would revise the preservation standard used for the two eagles as the standard provides greater protection than is required and contributes to a number of management actions (calibrating population estimates, estimating take, monitoring efforts) that detract from management needs related to numerous other species for which there are legitimate and often urgent conservation concerns.

Response:

The Service is charged with upholding the Eagle Act by protecting and conserving the two species it covers. In the case of bald eagles, we recognize that there are many other species experiencing significantly greater threats to their populations. However, the Eagle Act requires that we allocate resources to protect bald eagles consistent with congressional purpose stated in the enacting clause of the 1940 Eagle Protection Act: “by tradition and custom during the life of this Nation, the bald eagle is no longer a mere bird of biological interest but a symbol of the American ideals of freedom.” And, of course, bald eagles, as well as golden eagles, have special cultural significance to Native American tribes.

Golden eagle populations appear to be well below what their carrying capacity would be were it not for high levels of anthropogenic mortality. We acknowledge that attempting to maintain current numbers of golden eagles is in part a policy choice: The Service could have chosen any reasonable interpretation of Congressional intent, as long as it was consistent with the statutory language and the legislative history behind it. For

example, we could have argued that the preservation standard allows for golden eagle populations to further decline to some new lower level and then preserve golden eagles at that lower population level. We also could have argued that recovery to a much higher population is warranted. However, the policy choice we made is based on what we consider, in our best scientific judgment, to be the most appropriate interpretation of the preservation standard and the overall statutory mandate to conserve and protect both eagle species, which factors in science, legislative history, and the value of golden eagles culturally, symbolically, and ecologically. We considered all these factors in defining “preservation” under the Eagle Act so as to protect the golden eagle populations that we have. In short, we believe that is our responsibility and our mandate.

This legislative mandate to protect eagles under the Eagle Act is separate and apart from our mandate to conserve, protect, and recover species under the Endangered Species Act. The purposes and policy goals of both statutes overlap to some extent, but are also different in many ways. As such, it is not appropriate to create parallel species conservation, protection, and recovery standards under each statute or to establish an equivalent standard under the Eagle Act that provides less protection than the Endangered Species Act. Instead, our regulations under each statute protect covered species in different ways, consistent with legislative intent.

Comment:

The proposed rule inaccurately cites the current definition of the preservation standard as “consistent with the goal of maintaining stable or increasing breeding populations” (81 FR 27934, May 6, 2016, p. 27937). But the 2009 rule expressly rejected use of the word “maintaining,” which was in the proposed rule, explaining that it could be misapplied to constrain any authorization of take because any take of a bald or golden eagle by some degree results in a population decrease, even if short-term and inconsequential for the long-term preservation of the species. Thus, the word “maintaining” would render the Service unable to authorize any take (74 FR 46836, September 11, 2009, pp. 74 FR 46838-46839). Now, the Service proposes to revive the very same word it found would improperly restrict issuance of take permits in 2009.

Response:

We appreciate this comment, which is accurate. The wording in the 2009 regulations did not contain the word “maintaining,” and we are correcting it with reference to the 2009 regulations While we concede that “maintaining” could be misinterpreted as noted in the preamble to 2009 regulations, we have built enough of a record by now that our intent should be clear: That the goal is to maintain populations over the long term. For the definition we are codifying in this final rule, we are retaining the word “maintaining” because it serves a constructive role in relating the two goals of the revised definition together.

Comment:

The addition of the term “persistence” to the preservation standard is confusing, as it adds another layer of definitions, with the Service stating that “persist” is defined as “stable with 2009 as a baseline.” At worst, this seems to decrease the current standard and at best, it adds unneeded complexity and confusion. We recommend that the preservation standard keep “stable or increasing” as the standard for both EMUs and LAPs, by deleting “persistence of” in the proposed definition. The revised preservation standard would read, “consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and local populations throughout the geographic range of both species.”

Response:

We have clarified in the preamble discussion of the preservation standard that we intend the 2009 baseline to apply to regional EMU populations, but not local populations. For one, the LAP analysis requirement helps us ensure the persistence of local populations, but does not measure a fixed local population. The LAP analysis calculates the authorized take within the area of an activity that may take eagles, and uses the average density of eagles in the EMU as an estimate of the number of eagles within a certain distance of the project. Therefore, there are no specific local populations that we could track as increasing or decreasing, even if we had the capacity to obtain data at that fine a scale, which we do not. Because there would be no means of measuring whether theoretically discrete local populations were stable, decreasing, or increasing, we are not adopting the commenter's suggested modification of the standard. Retaining “persistence” in the definition helps to clarify our intent in that regard.

Comment:

The inclusion of a management goal for populations on a more localized scale is appropriate. However, the Service should use consistent terms when referring to this scale by using the term local area population (LAP) in the preservation standard: “. . . in all eagle management units and persistence of LAPs throughout the geographic range of both species.”

Response:

We appreciate the intent behind this recommendation, but a “LAP” is not a discrete population, but rather a calculation of the number of eagles within the area of a given project or activity, specifically, the number of eagles estimated to be within the area bounded by the natal dispersal distance for the respective species. See our response to the previous comment for more explanation.

Comment:

Despite extensive discussion of management objectives in the preamble to the proposed rule, it is unclear how the Service intends to establish its take “baseline,” from which permissible future take in any given EMU will be calculated. The Service fails to provide a defensible rationale for establishing a take baseline based on eagle populations as they existed in 2009, or any other point in history.

Response:

The approach used by the Service to establish the baseline and subsequent take limits is covered extensively in the first 35 pages of the Status Report and in the chapters of the programmatic environmental impact statement (PEIS) on bald and golden eagles. Please refer to these documents.

With respect to the assertion that the Service failed to provide a rationale for its population objective, we disagree and point out that the current management objective is directly derived from and consistent with the determination made with the adoption of the initial nonpurposeful take permit regulations in 2009. We do not doubt that continental populations of both species were at times larger or smaller than they are today, but that is not a compelling reason to set a different and likely unattainable population objective. The Status Report indicates there is a high probability that meeting the objectives the Service proposed for both species will ensure healthy populations at the EMU level for the foreseeable future. Moreover, the commitment to collect and consider new population information regularly as part of the adaptive management process ensures that there will be opportunities to adjust the objectives, take rates, and take limits on a recurring basis.

Comment:

In the proposed rule, there is no consideration of age and sex of eagles taken under incidental take permits, nor is there regard for the time of year when the impacts will occur or of the status of the population affected. There is no consideration of carrying capacity or of how the loss of specific individuals might have affected other eagles. The proposed rule largely

ignores the context in which the impacts of incidental take will occur.

Response:

The Service agrees with this commenter that the population status, age, and (in some circumstances) the sex of eagles killed matters in terms of the scale of population impact; however, we disagree that we have ignored these factors in setting up the permitting program. With regard to spatial variation in status, the Service examined existing demographic data for regional differences in vital rates, and established EMUs and population estimates for EMUs accordingly. With regard to other factors, how or whether the probability of take under various activities varies according to eagle age and sex has not been quantified broadly for either species of eagle. Thus, the Service's models assume that take under incidental take permits will be in proportion to the abundance of exposed age classes and sexes. The Service has established a policy to determine the age and sex of eagles taken under permits, and over time as part of the adaptive management process, and as this information accrues we will evaluate whether risk is disproportionate for any of these groups across the various activities that incidentally take eagles. The Eagle Conservation Plan Guidance (ECPG; U. S. Fish and Wildlife Service 2013) identifies age, in particular, as a factor the Service suspects influences collision risk at wind facilities. The implications of the data collected on the age and sex of eagles taken under permits will be considered by the Service in future updates to the Status Report, and, if warranted, these assessments could lead to other changes in the permit program.

Comment:

Proposed § 22.3 articulates the preservation standard as “consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and persistence of local populations throughout the geographic range of both [eagle] species.” It is unclear what “persistence of local populations” means, and the basis for including local management in a standard intended to manage the take of eagles at a national level is puzzling. At a minimum, the preservation standard articulates a management scale that is internally contradictory.

Response:

With respect to the relevancy of the LAP scale of eagle management, recent data from satellite tracking studies show that while both bald and golden eagles range widely, there is high philopatry (the tendency of an organism to stay in or return to a particular area) to natal, wintering, and migration stopover areas. Thus, local impacts can have far-reaching effects on eagle populations. Local populations of eagles also are of great cultural and social importance. The Service received many comments from states, tribes, local governments, and environmental organizations in support of including the persistence of local eagle populations in the management objective for eagles. The Service disagrees that including this scale of management is contradictory. The LAP population size estimate is based on the eagle densities estimates in the surrounding region, and those density estimates are biologically based and derived from actual eagle count data at the finest scale available. As to the LAP area, it is based on the natal dispersal distance of each eagle species, and as such represents the most applicable area over which the effect of an individual incidental take permit should be measured. The Service believes that preservation of local eagle populations accomplishes both important biological and cultural objectives, and that the EMU-scale analysis alone is not sufficient to evaluate and account for local and cumulative effects of an incidental eagle take permit.

Comment:

Congress intended the Secretary to treat take authorized for scientific and religious purposes differently than take authorized for the protection of wildlife or agricultural or “other” purposes. Specifically, while Congress expressly conditioned the Secretary's ability to authorize scientific/religious take to take that is “compatible with the preservation of the species,” Congress's subsequent text imposes no similar condition on the Secretary's ability to authorize take for the protection of wildlife, agricultural, or “other” interests, except that such take is “necessary” to protect the interest at issue. Accordingly, Congress did not intend to limit the Secretary's ability to issue permits for non-scientific, non-religious take only to situations where doing so would be “compatible with the preservation of the species.” This conclusion is supported by the legislative history of the Eagle Act, which nowhere suggests that each take authorized for agricultural or “other” interests should be conditioned on compatibility with the preservation of the species. To the contrary, one of the express purposes of amending the Eagle Act in 1960 was to provide the Secretary with the authority necessary to issue eagle take permits to accommodate overriding local or commercial interests (see,

e.g.,

Senate Report No. 87-1986, at 85,007-008, 85,011, 85,013 (1960) (explaining Congressional intent to carve out an exception from the preservation standard where necessary to protect important commercial interests); House Report No. 87-1450, at 72,007, 72,010-011 (same)). Because the Service proposes to condition all eagle take on the preservation standard that Congress intended to apply only to scientific and religious take, the proposal is inconsistent with law and vulnerable under the APA.

Response:

The legislative history does not support the commenter's position. The referenced Senate Report states that “it is expected that thus the conservation purposes of the bill will be preserved, while at the same time any potential economic hardship to limited areas can be obviated.” Although the Committee was referring to the proposed new authority to allow a state Governor to request a depredation control order, this language supports interpreting the preservation standard to apply to the whole of 16 U.S.C. 668a, or at least to a clause other than the religious and scientific or exhibition purposes clause. The testimony also refers to both religious take and control to protect agricultural interests. In neither context does the testimony reference the preservation standard as limiting that authorization, and as such it provides no indication Congress intended that the two exceptions be treated differently. As noted by the commenter, the House Report is similar.

The crux of the issue is that the statutory language authorizes the Secretary to permit the take of eagles for the protection of “other interests in any particular locality”; it does not provide a blanket exception to the take prohibition or the Eagle Act's civil or criminal penalties for those interests. This means the Secretary has discretion to apply reasonable conditions to that authorization. Thus, even if the commenter were correct that the preservation standard does not apply on the face of the statute, the Secretary may place restrictions on take necessary to protect the species consistent with the purposes of the statute (which references a preservation standard in at least some contexts).

Comment:

The Service's population management objectives should be focused on the continued growth of all eagle populations in every extent of their current and historical geographic ranges, and any management strategy should support this tenet or be amended to meet that objective.

Comment:

The preservation standard should be re-phrased to make the goal of this permitting program to increase eagle populations. The Service should clarify that the relatively arbitrary 2009

baseline represents a minimum “floor” for population management. This floor does not represent the Service's aspirational goal but rather a threshold that will trigger additional action should populations fall below it. To this end, we recommend that the Service rephrase the preservation standard under 50 CFR 22.3 as follows: “Consistent with the goals of increasing breeding populations, or at a minimum maintain stable breeding populations.”

Response:

We are confident that the management approach we are adopting will allow bald eagle populations to continue to grow for some time in most EMUs. As we describe in the Status Report, we expect bald eagle numbers to eventually stabilize at approximately 228,000 eagles by about 2030. We believe that maintaining current numbers of golden eagles is a worthy and achievable goal for the near term. It is our hope that our management approach may also provide for eventual, modest growth in golden eagle populations to better approximate what carrying capacity would be in the absence of high levels of human-caused sources of mortality. The 1.2 to 1 compensatory mitigation ratio and the reduction of unauthorized take as it comes under the permit requirements to avoid and minimize impacts to eagles are the primary regulatory mechanisms by which these regulations could provide that outcome in the long term.

As the second commenter states, the 2009 baseline does indeed represent a minimum “floor” for population management. It is not the Service's aspirational goal. It is a threshold below which our management goal for eagles would not be met. With regard to the specific recommendation that the standard should read “consistent with the goals of increasing breeding populations, or at a minimum maintain stable breeding populations . . . ,” we do not agree that it would be good public policy to stipulate a goal of increasing a species' population size without also being specific as to why, by how much, and where, all factors for which the Service lacks any specific objective criteria. The Status Report indicates there is a high probability that meeting the objectives the Service proposed for both species will ensure healthy populations at the EMU level for the foreseeable future. As noted above, we believe bald eagle populations will continue to increase despite some additional authorized take. At present, the Service has not been presented with evidence that suggests stable populations of golden eagles would not satisfy both reasonable biological and societal needs.

Comment:

The Service proposes to add the clause “and the persistence of local populations, throughout the geographic range of both species” to the definition of the preservation standard. This contradicts and undermines the assumptions of the Service's biological opinions issued in support of habitat conservation plans (HCPs) and ESA incidental take permits that cover golden eagles. In approving those HCPs, the Service issued multiple biological opinions concluding that local populations of golden eagles were not critical for the long-term survival of the species.

Response:

The ESA and the Eagle Act have different conservation standards and purposes. While the ESA has as its bottom line that permitted take must not more than negligibly contribute to the extirpation of a species, the Service interprets the Eagle Act's preservation standard, even prior to the amendments to our regulations being made by this final rule, as intended to maintain sustainable population levels throughout the range of each species. We note that at the time that the HCPs and ESA take permits covering golden eagles were developed, the permits conferred no authorization to take golden eagles under the Eagle Act, but rather included statements that the Service would exercise its enforcement discretion so long as the permittees remained in compliance with the incidental take permits' terms and conditions specific to eagles. Since then, because of revisions we made to our regulations in 2008, ESA incidental take permits that cover eagles, if conditioned in accordance with Eagle Act standards, also convey take authorization under the Eagle Act. In that regulation, we stated the following with respect to existing incidental take permits that included golden eagles as a covered species: “The statutory and regulatory criteria for issuing those ESA authorizations included minimization, mitigation, or other conservation measures that also satisfied the statutory mandate under [the] Eagle Act that authorized take must be compatible with the preservation of the bald or golden eagle.” 73 FR 29,075 (May 20, 2008). This means the existing ESA golden eagle incidental take permits are “grandfathered” by the 2008 regulation revision and as such are not contradicted or undermined by these final regulations.

Avoidance and Minimization

Comment:

The proposed removal of the “unavoidable standard” and replacement with a standard of practicability is too lenient and leaves unacceptable room for subjective interpretation.

Response:

The Service views the requirement that programmatic permittees reduce take to the point where any take that occurs is completely unavoidable as just as subjective in practice as a standard requiring reduction of take to the maximum degree practicable. In addition, the practicability standard is clearer, more reasonable, and realistic.

Comment:

The Service should provide more details regarding how the various considerations in the definition of “practicable” will be accounted for, weighted, and implemented in an objective manner.

Response:

The Service's definition of “practicable” in this rule mirrors the definition of that term in Service mitigation policy, as well as other federal agency mitigation policies and regulations. The Service also intends to implement the consideration of practicability with regard to mitigation measures in a manner consistent with these mitigation policies and regulations. The consideration of what is practicable is complex and context-dependent and is described in more detail in the preamble to this rulemaking above. Further details about how practicable considerations are implemented may be detailed in future guidance.

Comment:

Under the proposed rule, the Service may require additional avoidance and minimization measures if such measures are likely to reduce take and are practicable for the permittee to implement. The Service should not impose such measures on projects unless outlined in the permit conditions, or if take has exceeded anticipated levels. Instead, the Service should include a “No Surprises” concept in the final rule that would protect permittees from unforeseen circumstances beyond a permittee's control.

Response:

We modified the language covering 5-year reviews for this final rule such that additional conservation measures to be implemented based on the review will be limited to those described in the adaptive management plan for the permit, unless the take exceeds the authorized take levels or the permittee is otherwise out of compliance with the permit conditions. The final rule also includes the following language: “However, with consent of the permittee, the Service may make additional changes to a permit, including additional or modified appropriate and practicable avoidance and/or minimization measures shown to be effective in

reducing risk to eagles” (50 CFR 22.26(c)(7)(iv)(D)).

Comment:

It is inappropriate to consider cost in the definition of “practicable.” The Service has the legal authority to require permittees who take eagles to comply with the best available scientifically defensible measures to limit take regardless of cost.

Response:

The previous definition of practicable included considering cost, as do most definitions of the term in federal policy. If an applicant cannot afford a mitigation measure, or if the cost of a mitigation measure renders a commercial project financially infeasible, then the mitigation measure is not capable of being done by that applicant, and is not practicable. However, the burden of proof is on the applicant to demonstrate a mitigation measure is not practicable.

Comment:

The Service proposes to revise the definition of the term “practicable.” However, the new definition seems to provide ample room for debate and interpretation with project proponents. The Service should define mechanisms to ensure that projects meet this definition and that proponents truly are avoiding take to the greatest extent practicable.

Response:

We hope to develop future guidance to ensure a consistent, objective approach is taken when evaluating the practicability of mitigation measures. In any case, the previous definition of the term practicable has already provided plenty of room for debate and interpretation. We do not expect our new definition to change that dynamic and that was not our intent.

Comment:

The Service's proposed definition of practicable is inconsistent with the Service's obligation and authority to permit eagle take only when it is “compatible with the preservation of the bald eagle or the golden eagle.”

Response:

Both standards apply. If there are no practicable measures or compensatory mitigation actions that a project proponent can undertake to ensure compatibility with the preservation of eagles, the Service will not issue an incidental eagle take permit.

Comment:

The Service should add “project economics and location” to the definition of “practicable” at proposed 50 CFR 22.3 to harmonize the language of the regulations with the intended purpose to establish a workable “practicability” standard.

Response:

We do not agree that the addition of “project economics and location” is appropriate. Project economics implies that permits are always issued for commercial activities, but many eagle incidental take permits are issued to homeowners and government agencies. The addition of location is not appropriate because whether a project can be sited elsewhere may be part of the consideration of what is practicable.

Comment:

Courts have noted that the Service's definition of practicable “looks to whether the mitigation is rationally related to the level of take under the plan.” Key language from the existing regulations recognized this rational relationship requirement: “Practicable means capable of being done after taking into consideration, relative to the magnitude of the impacts to eagles, the following three things: The cost of remedy compared to proponent resources; existing technology; and logistics in light of overall project purposes.” The Service should ensure that this rational relationship requirement carries over into the new definition of practicable.

Response:

We agree that the determination of what is practicable must include consideration of the magnitude of the impacts of the activity on eagles. The regulations capture this consideration at 50 CFR 22.26(e)(5) addressing the factors the Service must consider in determining whether to issue a permit, which reads: “Whether the applicant has proposed all avoidance and minimization measures to reduce the take to the maximum degree practicable relative to the magnitude of the impacts to eagles.”

Comment:

In the final rule, the Service should provide a more detailed description of elements of an adaptive management program suitable for protection of eagles, to include: Details on the process for development of the plan; opportunities for regulated entities to participate in discussions about adding or removing mitigation measures; mitigation measures that the Service identifies as suitable for the objective of reduced eagle disturbance or mortality; and at 5-year reviews, the process for determining which mitigation measures will be included for a subsequent 5-year period.

Response:

The elements cited by the commenter as needing more detailed description (

e.g.,

suitable mitigation measures, the process for determining when mitigation measures will be applied) will vary significantly depending on the type of activity that is being permitted and how it affects eagles. For example, mitigation measures and the trigger points for implementing them are likely to be very different for mining operations versus wind energy facilities. The ECPG contains a detailed description of the process the Service is using for adaptive management under incidental take permits at wind facilities, and we refer this commenter to that document for an example of how adaptive management will be implemented under permits for wind energy facilities.

Comment:

The Service has apparently not heeded any of the elements of the precautionary principle or the advice of the National Research Council when making decisions about rare or precious resources in the face of high uncertainty.

Response:

The entire eagle incidental take program has been built around explicitly accounting for uncertainty and then being clear about how that uncertainty is addressed in decisions. Adaptive management is a process of adaptive learning, whereby: (1) Predictions are made regarding anticipated effects of an activity; (2) data regarding the outcomes of the activity are collected; (3) the predictions are updated to reflect the actual outcomes of the activity; and (4) the updated predictions are used to change the activity, either in the future at the same site or at other places where the same activity is being contemplated. The Service has described its adaptive management framework for eagle incidental take permits in the ECPG (Appendix A), and in the preamble to this final rule. The overall framework is intended to account for, and over time to reduce, uncertainty in the effects of wind facility siting, design, and operations on eagles. More broadly than for just wind energy, the adaptive management process is also intended to address uncertainty in compensatory mitigation and the effects of established take rates on eagles. This uncertainty is reduced over time by using information collect on the actual outcomes of the activity to update the predictive models used initially to estimate those effects; over time, the accuracy and precision of the predictive models is improved through these updates. We describe how the risk posed by uncertainty is addressed in the response to other comments, but we reiterate here that in all cases the Service has adopted approaches that are protective of eagles.

Comment:

Permittees should also be required to conduct research and analysis to test methods to reduce lethal take during their permit life. There should be an expectation that all projects will be required to reduce their lethal takes over time.

Response:

The adaptive management framework outlined by the Service includes a requirement that permittees monitor eagle take and, on a case-by-case basis, other factors associated with

that take under their permits. The Service will use this information as part of the adaptive management process outlined in the ECPG to determine or add to existing knowledge of factors associated with eagle mortality under different activities and to evaluate the effectiveness of different avoidance and minimization measures. Through monitoring, 5-year reviews, and the adaptive management process, our goal is to reduce take over time.

Comment:

A coordinated research program should be instituted to develop new and effective mitigation measures for wind energy facilities.

Response:

We agree additional research would benefit eagle conservation and the Service's permitting program. The permit program is designed to collect relevant data that can be used to evaluate the effectiveness of minimization, avoidance, and mitigation measures. This adaptive management approach allows for the incorporation of new information and practices over time. This approach is described in detail for eagle take permits for wind facilities in the ECPG.

Comment:

The Service should retain the requirement for applying advance conservation measures (ACPs) to mitigate eagle take. Experimental ACPs are appropriate where established ACPs are not available.

Response:

This text is long and has been trimmed here. Open the source document for the complete record.