# 87 FR 59598: Permits for Incidental Take of Eagles and Eagle Nests

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-21025

## Section

- **Citation:** 87 FR 59598
- **Heading:** Permits for Incidental Take of Eagles and Eagle Nests
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 87 / 87 FR 59598

## Text

DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Parts 13 and 22 [Docket No. FWS-HQ-MB-2020-0023; FF09M30000-223-FXMB12320900000] RIN 1018-BE70 Permits for Incidental Take of Eagles and Eagle Nests AGENCY:
Fish and Wildlife Service, Interior.

ACTION:
Proposed rule.

SUMMARY:
We, the U.S. Fish and Wildlife Service (Service or USFWS), propose the following revisions to regulations authorizing the issuance of permits for eagle incidental take and eagle nest take. The purpose of these revisions is to increase the efficiency and effectiveness of permitting, facilitate and improve compliance, and increase the conservation benefit for eagles. In addition to continuing to authorize specific permits, we propose the creation of general permits for certain activities under prescribed conditions. We propose a general permit option for qualifying wind-energy generation projects, power line infrastructure, activities that may disturb breeding bald eagles, and bald eagle nest take. We propose to remove the current third-party monitoring requirement from eagle incidental take permits. We also propose to update current permit fees and clarify definitions.

DATES:
Comment submission: This proposed rule, draft environmental review, and accompanying documents in the docket are available for public review and comment through November 29, 2022.
Information sessions: We will hold four information sessions in webinar format: two for members of federally recognized Native American Tribes and two for the general public. See Public Comments below under SUPPLEMENTARY INFORMATION for details.
Information collection requirements: If you wish to comment on the information collection requirements in this proposed rule, please note that the Office of Management and Budget (OMB) is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this proposed rule in the Federal Register
ORMATION for details.
Information collection requirements: If you wish to comment on the information collection requirements in this proposed rule, please note that the Office of Management and Budget (OMB) is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this proposed rule in the Federal Register . Therefore, comments should be submitted to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, (see “Information Collection” section below under ADDRESSES ) by November 29, 2022.

ADDRESSES:
Document availability: Supplementary documents to this rulemaking action, including a draft environmental review and list of references cited, are available at https://www.regulations.gov in Docket No. FWS-HQ-MB-2020-0023. Documents and additional information can also be found at: https://www.fws.gov/regulations/eagle .
Comment submission: You may submit written comments on this proposed rule and draft environmental review by one of the following methods:
• Electronically at the Federal eRulemaking Portal: https://www.regulations.gov . Follow the instructions for submitting comments to Docket No. FWS-HQ-MB-2020-0023.
• By hard copy via U.S. mail: Public Comments Processing, Attn: FWS-HQ-MB-2020-0023; U.S. Fish and Wildlife Service; MS: PRB/3W; 5275 Leesburg Pike; Falls Church, VA 22041-3803.
We will post all comments on https://www.regulations.gov, including any personal information you provide. See Public Availability of Comments below under SUPPLEMENTARY INFORMATION for further information.
Information collection requirements: Send your comments on the information collection request by mail to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, by email to Info_Coll@fws.gov; or by mail to 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-3803. Please reference OMB Control Number 1018-0167 in the subject line of your comments
of the Interior to issue regulations to permit the “taking” of eagles for various purposes, including when “necessary . . . for the protection of other interests in any particular locality,” provided the taking is compatible with the preservation of eagles (16 U.S.C. 668a). Regulations pertaining to eagle permits are set forth in title 50 of the Code of Federal Regulations (CFR) at 50 CFR part 22.
In 2009, subsequent to the delisting of the bald eagle from the List of Endangered and Threatened Wildlife at 50 CFR 17.11, the Service promulgated regulations (74 FR 46836, Sept. 11, 2009 [hereinafter the “2009 Eagle Rule”]) at 50 CFR part 22 that established two new permit types for the incidental take of eagles and eagle nests. Incidental take means foreseeable take that results from, but is not the purpose of, the activity. These regulations were originally located at 50 CFR 22.26 and 22.27 but were later moved to 50 CFR 22.80 and 22.85 during a general reorganization of our migratory bird and eagle permit regulations (87 FR 876, January 7, 2022).
In 2016, the Service finalized a rule (81 FR 91494, December 16, 2016 [hereinafter the “2016 Eagle Rule”]) revising the 2009 Eagle Rule that, among other things:
(1) extended the maximum tenure of permits for the incidental take of eagles from 5 to 30 years;
(2) updated the boundaries to the Service's Eagle Management Units (EMUs) to better reflect regional populations and migration patterns of both eagle species;
(3) imposed preconstruction monitoring requirements for wind-energy projects applying for incidental take permits;
(4) amended the preservation standard (discussed below); and
mits for the incidental take of eagles from 5 to 30 years;
(2) updated the boundaries to the Service's Eagle Management Units (EMUs) to better reflect regional populations and migration patterns of both eagle species;
(3) imposed preconstruction monitoring requirements for wind-energy projects applying for incidental take permits;
(4) amended the preservation standard (discussed below); and
(5) imposed a new requirement to analyze cumulative-authorized and known-unauthorized take at local scales to ensure compliance with the preservation standard. This rulemaking was supported by a programmatic environmental impact statement (PEIS), and the Service's final decision was described in a record of decision, both of which are available at https://www.regulations.gov in Docket No. FWS-R9-MB-2011-0094.
On September 14, 2021, the Service published an advance notice of proposed rulemaking (ANPR) to inform the public of changes the Service is
During the public comment period, we received 1,899 distinct comments on the ANPR. Many comments included additional attachments ( e.g., scanned letters and supporting documents). These comments represented the views of Native American Tribes, multiple Federal and State agencies, private industries, nongovernmental organizations, and private citizens. In addition to the individual comments received, multiple organizations submitted attachments representing individuals' comments, form letters, and signatories to petition-like letters representing 1,804 signers.
Many comments expressed concerns with the efficiency of the current permitting process, including the lack of capacity within the Service to review and issue permits and the extensive processing times. Similarly, most comments supported the idea of a general permit program to streamline the process and provide more timely and cost-effective coverage for industry. Concerns were also raised about monitoring and reporting requirements
th the efficiency of the current permitting process, including the lack of capacity within the Service to review and issue permits and the extensive processing times. Similarly, most comments supported the idea of a general permit program to streamline the process and provide more timely and cost-effective coverage for industry. Concerns were also raised about monitoring and reporting requirements. Several comments expressed opposition to third-party or pooled monitoring approaches, while others suggested the Service require permittees to implement a regular, standardized monitoring protocol with annual reporting requirements.
In drafting this proposed rule, we considered the comments received on the ANPR.
Preservation Standard
For this proposed rulemaking, we do not propose any changes to the current preservation standard or management objectives. The Eagle Act requires that any authorized take of eagles be “compatible with the preservation” of bald and golden eagles (16 U.S.C. 668a). Under existing regulations, the preservation standard is defined as 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 (50 CFR 22.6). 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 baseline set in the 2009 Eagle Rule. “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 (see 2016 PEIS). The 2016 PEIS and 2016 Eagle Rule describe two management objectives for ensuring the Service's 2016 preservation standard is met for eagles
the 2009 Eagle Rule. “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 (see 2016 PEIS). The 2016 PEIS and 2016 Eagle Rule describe two management objectives for ensuring the Service's 2016 preservation standard is met for eagles. These management objectives are: (1) maintain stable or increasing populations of both eagle species within EMUs, and (2) maintain the persistence of local area populations of both eagle species. Both objectives continue to use 2009 as the baseline, for 100 years into the future.
Population Status of Bald Eagles and Golden Eagles
We propose different management criteria for bald eagles and golden eagles because of the different population statuses and growth rates of each species. We determined this approach is necessary both to achieve the preservation standard and to avoid being unnecessarily restrictive. The Service recently updated population size estimates and allowable take limits for bald eagles (87 FR 5493, February 1, 2022). That document included data from 2019 estimating the population of bald eagles in the coterminous United States to be 316,708, a four-fold increase above our previously published estimate in 2016. Bald eagle populations in most EMUs have been growing at the rate of 10 percent per year. The current population size estimate for the coterminous United States is approximately 336,000, with a nationwide take limit of 19,623 bald eagles. Conversely, golden eagle population trends through 2016 appear relatively stable. However, information on anthropogenic mortality rates suggests unpermitted take likely exceeds what is compatible with long-term population stability of golden eagles. The estimated U.S. population size for golden eagles remains approximately 38,000, which is less than the bald eagle population of 336,000 by an order of magnitude
olden eagle population trends through 2016 appear relatively stable. However, information on anthropogenic mortality rates suggests unpermitted take likely exceeds what is compatible with long-term population stability of golden eagles. The estimated U.S. population size for golden eagles remains approximately 38,000, which is less than the bald eagle population of 336,000 by an order of magnitude. The golden eagle take limit remains set at zero, unless offset with compensatory mitigation, because available information indicates that additional take of golden eagles without offsetting compensatory mitigation is likely to decrease the population and not be compatible with the preservation of golden eagles (Analysis of the effects of potential general permit scenarios on bald and golden eagles, (2022). Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Washington, DC, USA.).
This Rulemaking
Overview
The Service proposes a new subpart E within 50 CFR part 22 for eagle permit regulations authorizing take that is necessary for the protection of other interests in any particular locality (eagle take for other interests). This proposed new subpart includes revised provisions for processing specific permits (sometimes called individual permits) and adds a general-permit alternative for qualifying activities. General permits would be available to authorize incidental take by activities, consistent with the preservation standard, that occur frequently enough for the Service to have developed a standardized approach to permitting. The proposed regulations also restructure the existing specific permit regulations for eagle take that is associated with, but not the purpose of, an activity (50 CFR 22.80) and removal of eagle nests (50 CFR 22.85). We propose amendments to these regulations to better align with the purpose and need described in the 2016 PEIS. In the 2016 Eagle Rule, the Service sought to:
(1) increase compliance by simplifying the permitting framework and increasing certainty;
t regulations for eagle take that is associated with, but not the purpose of, an activity (50 CFR 22.80) and removal of eagle nests (50 CFR 22.85). We propose amendments to these regulations to better align with the purpose and need described in the 2016 PEIS. In the 2016 Eagle Rule, the Service sought to:
(1) increase compliance by simplifying the permitting framework and increasing certainty;
(2) allow for consistent and efficient administration of the program by Service staff;
(3) regulate based on best available science and data; and
(4) enhance protection of eagles throughout their ranges by increasing implementation of avoidance, minimization, and mitigation of adverse impacts from human activities.
Since implementation of the 2016 Eagle Rule, it has become clear that the Service's amended permitting structure did not fully achieve the goals of the 2016 PEIS. For bald eagles, populations have continued to grow. While this is good news in terms of preserving the species, it also means that bald eagles are interacting more often with human activities and infrastructure, resulting in a higher demand for permits authorizing the disturbance take and nest take of bald eagles. The current permit framework places an administrative burden on the public and the Service that is not commensurate with what is
In this rulemaking, we propose a new subpart E for regulations governing the permitting of eagle take for other interests. We propose two regulations for administering permitting: specific permits (proposed § 22.200) and general permits (proposed § 22.210). We further propose to specify activity-specific eligibility criteria and permit requirements in four sections based on activity and type of eagle take:
☐ incidental take for permitting wind energy (proposed § 22.250),
☐ incidental take for permitting power lines (proposed § 22.260),
☐ disturbance take (proposed § 22.280), and
☐ nest take (proposed § 22.300)
ral permits (proposed § 22.210). We further propose to specify activity-specific eligibility criteria and permit requirements in four sections based on activity and type of eagle take:
☐ incidental take for permitting wind energy (proposed § 22.250),
☐ incidental take for permitting power lines (proposed § 22.260),
☐ disturbance take (proposed § 22.280), and
☐ nest take (proposed § 22.300).
The specific permit and general permit regulations are the governing regulations and contain the information that is the same for all activities and types of take. Currently, multiple different activities are consolidated into one regulation. This has resulted in complex and potentially confusing regulations. To improve clarity and transparency, we propose four additional regulations for these activities that contain activity-specific provisions beyond the general requirements for administering specific permits and general permits. We incorporated most of the existing requirements currently authorized under §§ 22.80 and 22.85 in the proposed subpart E regulations—the notable exception being the third-party monitoring requirement, which is currently in § 22.80, which we are not carrying over for the reasons discussed below.
For clarity and consistency, we also propose to move regulatory content on permit conditions to a new section (§ 22.215) and to move content on compensatory mitigation standards to a new section (§ 22.220). We propose new definitions to define “general permit” and “incidental take” and clarifying modifications to the definitions of “eagle management unit,” “eagle nest,” and “in-use nest” (§ 22.6)
For clarity and consistency, we also propose to move regulatory content on permit conditions to a new section (§ 22.215) and to move content on compensatory mitigation standards to a new section (§ 22.220). We propose new definitions to define “general permit” and “incidental take” and clarifying modifications to the definitions of “eagle management unit,” “eagle nest,” and “in-use nest” (§ 22.6). We propose redesignation of related regulations pertaining to permit requirements for take of golden eagle nests (currently at § 22.75 and proposed to move to § 22.325) and permits for bald eagle take exempted under the Endangered Species Act (currently at § 22.90 and proposed to move to § 22.400) to a new subpart E, with only the modification of a non-substantive change to the section title for proposed § 22.325. Finally, we propose administrative updates to 50 CFR part 13, General Permit Procedures, to update the text regarding information collection requirements and the table of application fees. These proposed changes to the locations of current regulations are as follows:
Current regulations now in 50 CFR part 22 Regulatory subject matter Proposed new sections in 50 CFR part 22, subpart E §§ 22.80 and 22.85 Specific permits § 22.200 General permits § 22.210 §§ 22.80 and 22.85 Permit conditions § 22.215 § 22.80 Compensatory mitigation § 22.220 § 22.80 Wind energy project incidental take § 22.250 § 22.80 Power line incidental take § 22.260 § 22.80 Eagle disturbance take § 22.280 § 22.85 Eagle nest take § 22.300 § 22.75 Golden eagle nest take for resource development § 22.325 § 22.90 Bald eagle take exempted under the Endangered Species Act § 22.400 Specific Permits and General Permits for Eagle Take
Specific permits are the current approach to permitting eagle take. An applicant prepares an application, which is submitted to the Service. The Service reviews the application and determines whether to issue a permit. If the Service issues a permit, it includes permit conditions specific to the project
under the Endangered Species Act § 22.400 Specific Permits and General Permits for Eagle Take
Specific permits are the current approach to permitting eagle take. An applicant prepares an application, which is submitted to the Service. The Service reviews the application and determines whether to issue a permit. If the Service issues a permit, it includes permit conditions specific to the project. The Service proposes to retain the specific-permit approach for situations that have high or uncertain risks to eagles, thus maintaining an administrative burden that is commensurate with meeting the preservation standard for eagles.
The Service proposes general permits as an alternative approach to authorization for projects that meet eligibility criteria. The purpose of general permits is to simplify and expedite the permitting process for activities that have relatively consistent and low effects on eagles and well-established avoidance, minimization, compensatory mitigation, monitoring, and other permit conditions where take may be authorized without site-specific analysis. General-permit applicants would self-identify eligibility and register with the Service, including providing required application information and fees, as well as certify that they meet eligibility criteria and will implement permit conditions and reporting requirements. We will continue to fine-tune, and consider public input on, eligibility criteria for all general-permit categories included in this proposed rule to ensure that general permits effectively simplify and expedite the permit process for eligible projects while meeting the Eagle Protection Act's preservation standard. Service review is not required prior to obtaining a permit. Instead, a general permit is generated using permit conditions and reporting requirements for the activity. The Service intends to conduct annual audits for a small percentage of all general permits to ensure applicants are appropriately interpreting and applying eligibility criteria
eting the Eagle Protection Act's preservation standard. Service review is not required prior to obtaining a permit. Instead, a general permit is generated using permit conditions and reporting requirements for the activity. The Service intends to conduct annual audits for a small percentage of all general permits to ensure applicants are appropriately interpreting and applying eligibility criteria. The general-permit approach to authorizing eagle take requires the same compliance with the Eagle Act's preservation standard as specific permits but reduces the administrative burden in obtaining a permit. The
The Service proposes using general permits for the following activities: (1) certain categories of bald eagle nest take, (2) certain activities that may cause bald eagle disturbance take, (3) eagle incidental take associated with power-line infrastructure, and (4) eagle incidental take associated with certain wind-energy projects. We will use the following mechanisms to ensure that general permits remain consistent with the preservation of bald and golden eagles: eligibility criteria, program-scale monitoring, reporting, compensatory-mitigation requirements, and a program-suspension clause if concern arises regarding the preservation of eagles. We propose to include Service monitoring costs necessary to support implementation of the general permit framework as part of the proposed general permit application and administration fees. We would use those fees for program-scale monitoring (in place of current project-scale monitoring required of the permittee) to verify that the general-permit program is compatible with the preservation of eagles and to better understand program impacts. The Service intends to compile information on general permits issued on an annual basis. This information, in accordance with privacy laws, may be made available to Tribes, States, and other interested parties that wish to know more about general-permit activities occurring in their area
general-permit program is compatible with the preservation of eagles and to better understand program impacts. The Service intends to compile information on general permits issued on an annual basis. This information, in accordance with privacy laws, may be made available to Tribes, States, and other interested parties that wish to know more about general-permit activities occurring in their area. If monitoring or other information indicates that continuing implementation of a general permit is inconsistent with the preservation of bald eagles or golden eagles, the Service may suspend the general program temporarily or indefinitely. This suspension may apply to all or part of general-permit authorizations.
Consistency With 2016 PEIS
We would implement continued population and program-wide monitoring and require project-scale reporting conducted by permittees to ensure that the proposed general-permit program will be consistent with our eagle preservation standard. Consistent with our 2016 Eagle Rule and the 2016 PEIS, we will continue to require compensatory mitigation for any authorized take of eagles exceeding EMU take limits and assess whether additional compensatory mitigation is necessary to ensure authorized take in excess of local area population (LAP) thresholds is compatible with the preservation of eagles. The best available information indicates that, although golden eagle populations over much of the United States were stable through 2016, ongoing levels of human-caused mortality likely exceed levels compatible with maintaining population stability, potentially substantially. Further increases in mortality would very likely cause population decline and therefore not meet the Service's preservation goal of a stable or increasing breeding population. As a result, the Service will maintain take limits for golden eagles at zero throughout their U.S. range and require compensatory mitigation to offset any authorized take of golden eagles
tability, potentially substantially. Further increases in mortality would very likely cause population decline and therefore not meet the Service's preservation goal of a stable or increasing breeding population. As a result, the Service will maintain take limits for golden eagles at zero throughout their U.S. range and require compensatory mitigation to offset any authorized take of golden eagles. We will continue to require the current minimum offset ratio of 1.2 to 1 for any authorized killing/injury of golden eagles. This baseline mitigation ratio appropriately balances our obligations under the Eagle Act with reasonable, fair, and practicable requirements for permittees.
The 2016 PEIS described how the Service would consider permitted take at the LAP scale and when compensatory mitigation might be appropriate. We will continue to track estimates of authorized take spatially under the general permits and use this information to identify potential LAPs of concern. In the event an LAP of concern is identified, the Service would direct Service-approved in-lieu fee programs to target investments in compensatory mitigation to the LAP of concern. LAP mitigation is built into the required mitigation cost under all general permits for wind facilities; thus, the cost of this mitigation is shared across general permittees. We propose to continue site-specific evaluation of a project's impacts on eagles for specific permits.
The 2016 Eagle Rule introduced a requirement that independent third parties must conduct monitoring associated with long-term permits for incidental take of eagles. In implementing the 2016 Eagle Rule, this requirement has proven impracticable to implement at some projects for a variety of factors, including health, safety, liability, and access issues for project sites that are leased from multiple private landowners. The Service proposes to remove this requirement
rties must conduct monitoring associated with long-term permits for incidental take of eagles. In implementing the 2016 Eagle Rule, this requirement has proven impracticable to implement at some projects for a variety of factors, including health, safety, liability, and access issues for project sites that are leased from multiple private landowners. The Service proposes to remove this requirement. Instead, the Service would rely on the requirement in 50 CFR 13.12(a)(5) that the permittee must certify that the information submitted is complete and accurate to the best of their knowledge and belief subject to criminal penalty under 18 U.S.C. 1001. All information submitted with applications for permits from the Federal Government or required reports is subject to this statutory provision. Any demonstration or finding of falsified reports or underreporting will result in general permit suspension or revocation and referral to the Service's Office of Law Enforcement. We anticipate reference to this criminal provision will ensure that permittees provide the Service with accurate monitoring information without the need to require third-party monitoring.
The 2016 Eagle Rule, along with the availability of permits with a tenure up to 30 years, also introduced a requirement that permittees will participate in permit reviews with the Service at intervals not to exceed once every 5 years. The Service introduced these mandatory reviews to ensure that the Service had an opportunity to receive and review all existing data related to a long-term activity's impacts on eagles. It was intended that the Service would use this information to, if necessary, recalculate fatality estimates and authorization levels, and amend permit conditions such as mitigation requirements
once every 5 years. The Service introduced these mandatory reviews to ensure that the Service had an opportunity to receive and review all existing data related to a long-term activity's impacts on eagles. It was intended that the Service would use this information to, if necessary, recalculate fatality estimates and authorization levels, and amend permit conditions such as mitigation requirements. Over the last several years, the Service has heard complaints from the regulated community that these scheduled reviews introduced uncertainty into project planning and funding and have discouraged potential applicants from participating or have influenced the permit tenure requested by the applicant. The Service proposes to remove this regulatory requirement. Removal of these administrative check-ins would increase certainty for applicants that are concerned about the potential for unknown amendments to permit conditions every 5 years and is intended to increase participation in eagle take permitting. The Service instead intends to hold the amount of take authorized under a long-term specific permit constant unless the permittee requests an amendment, or unless the Service determines that an amendment is necessary and required under 50 CFR 22.200(e). Third parties, including Tribes, States, and the general public, may contact the Service if they have concerns about compliance with permit terms at a particular project or new information that may bear on the conditions of the permit. The Service may initiate a permit review based on information received from third parties.
Eagle Incidental Take Permits for Wind Energy
Wind energy facilities incidentally take bald and golden eagles by injuring or killing eagles that collide with turbines. Applications for and issuance of permits authorizing incidental take of eagles at wind-energy projects has not
We propose new regulations at 50 CFR 22.250 to authorize the incidental take of eagles as part of wind-energy project operations
ental Take Permits for Wind Energy
Wind energy facilities incidentally take bald and golden eagles by injuring or killing eagles that collide with turbines. Applications for and issuance of permits authorizing incidental take of eagles at wind-energy projects has not
We propose new regulations at 50 CFR 22.250 to authorize the incidental take of eagles as part of wind-energy project operations. This proposed regulation would include the provisions of the regulations currently at 50 CFR 22.80 (permits for eagle take associated with, but not the purpose of, an activity) that apply to wind-energy generation activities with revisions. We also propose general permit eligibility criteria for projects located in areas where the risk to eagles is lower. We propose these changes to improve clarity and reduce complexity while retaining the core requirements of implementing practicable avoidance and minimization measures to reduce impacts, implementing appropriate compensatory mitigation, and ensuring the permitted take is compatible with the preservation of bald eagles and golden eagles. The Service will continue to consider revisions to our proposed general-permit eligibility criteria and other possible criteria that meet the preservation standard. With the creation of this new wind-energy regulation and other regulations described below, we also propose removal of 50 CFR 22.80.
The Service proposes to use relative eagle abundance as an eligibility standard for wind-energy general permits. Siting of wind energy projects in areas where fewer eagles occur remains the best method to avoid and minimize eagle take. The greater the abundance of eagles in the area where a project is located, the greater the likelihood of eagle take. The Service proposes the following relative abundance thresholds for golden eagles and for bald eagles, below which a project is eligible for a general permit (table 1)
wind energy projects in areas where fewer eagles occur remains the best method to avoid and minimize eagle take. The greater the abundance of eagles in the area where a project is located, the greater the likelihood of eagle take. The Service proposes the following relative abundance thresholds for golden eagles and for bald eagles, below which a project is eligible for a general permit (table 1). For a project to be eligible, seasonal eagle abundance at all existing or proposed turbine locations must be lower than all five thresholds listed. These relative abundance thresholds were derived using available data from eBird (eBird is an online database of bird distribution and abundance. Cornell Lab of Ornithology, http://www.ebird.org ). These data are publicly available and geographically distributed and allow the Service to establish these eligibility criteria without the need for collecting site-specific information.
Table 1—Relative Abundance Thresholds for Wind Energy General Permits Period Date range Bald eagle abundance 1 Feb 22-Apr 13 1.272 2 Apr 12-Sept 6 0.812 3 Sept 7-Dec 13 0.973 4 Dec 14-Feb 21 1.151 5 Average of period 1 and 3 1.018 Period Date range Golden eagle abundance 1 Feb 15-May 16 0.206 2 May 17-Sep 27 0.118 3 Sep 28-Dec 13 0.168 4 Dec 14-Feb 14 0.229 5 Average of period 1 and 3 0.145 The date ranges reflect the seasons where the species' population is generally moving or not moving. Periods 1 and 3 are the periods of movement between the breeding and non-breeding seasons ( i.e., spring and fall migration). Periods 2 and 4 are the periods when the species' population is generally static during breeding or wintering. Period 5 represents the spring and fall movement periods, pooled together. The pooled value is included to account for areas that may not experience the highest use by eagles in spring or fall but cumulatively represent relatively high use during the combined migration period. Migration paths and eagle destinations during migration may differ between the spring and fall
ring breeding or wintering. Period 5 represents the spring and fall movement periods, pooled together. The pooled value is included to account for areas that may not experience the highest use by eagles in spring or fall but cumulatively represent relatively high use during the combined migration period. Migration paths and eagle destinations during migration may differ between the spring and fall. Including each migration period independently and the average of both by including “migration” is a conservative approach to ensure areas that experience high levels of eagle use across spring and fall migration cumulatively would be considered high eagle abundance areas.
We chose relative abundance thresholds during these periods as the basis for general-permit eligibility because the known life histories of both species suggest that the local presence of either species may change dramatically throughout the year as they breed, forage, migrate, or disperse. We define relative abundance as the average number of eagles of each species expected to be seen by a qualified person who observes for eagles for one hour at the optimal time of the day for detecting the species, and who travels no more than one kilometer during the observation session. Relative abundance values determined for a project must be based on publicly available eBird data for bald eagle and golden eagle abundance. To be eligible, the relative abundance of eagles at a project location must fall below all the relative abundance thresholds listed in the eligibility criteria for each species and season. The Service intends to review eagle thresholds as new eBird data become available and update thresholds when appropriate through rulemaking.
To assist project proponents in determining whether they qualify for general permits based on the relative abundance thresholds listed above, the Service will offer publicly available, online-mapping resources depicting areas that qualify (see https://www.fws.gov/regulations/eagle )
iew eagle thresholds as new eBird data become available and update thresholds when appropriate through rulemaking.
To assist project proponents in determining whether they qualify for general permits based on the relative abundance thresholds listed above, the Service will offer publicly available, online-mapping resources depicting areas that qualify (see https://www.fws.gov/regulations/eagle ). Applicants that use the Service's published maps would not have to make the calculations described above. We estimate that nearly 80 percent of all existing wind-energy turbines in the coterminous United States are located in areas under the proposed relative abundance thresholds for both species and thus eligible for a general permit under this proposal. The Service proposes to not include Alaska in wind energy general permits at this time because existing data limit the ability to identify relative abundance thresholds for Alaska with confidence and there is currently limited wind development in Alaska and thus low demand for wind energy permits. Thus, at this time we propose that all wind energy projects in Alaska would have to apply for specific permits.
Because abundance is a coarse-scale measure for the potential impacts of a project on eagles, we propose pairing eagle abundance thresholds with a requirement that projects be sited greater than 660 feet from bald eagle nests and greater than 2 miles from golden eagle nests to be eligible for a general permit. This additional requirement provides a protective measure for eagles at a finer, project-level scale. Previous Service analysis found that breeding golden eagles regularly range 2 miles from their nest sites. Consequently, projects sited within 2 miles of a golden eagle nest have an elevated risk of taking breeding golden eagles or their young fledglings. A 2-mile buffer is required regardless of nest status because golden eagles commonly reuse nesting sites across years and can even reoccupy nests after decades of vacancy
found that breeding golden eagles regularly range 2 miles from their nest sites. Consequently, projects sited within 2 miles of a golden eagle nest have an elevated risk of taking breeding golden eagles or their young fledglings. A 2-mile buffer is required regardless of nest status because golden eagles commonly reuse nesting sites across years and can even reoccupy nests after decades of vacancy. Additionally, the presence of a nest site has been shown
We propose a 660-feet buffer from bald eagle nests to avoid disturbance of nests consistent with what is asked of other project construction and operation activities. We anticipate that our proposed relative-abundance threshold would exclude the highest density bald eagle nesting areas from eligibility for a general permit. We did not propose a larger buffer distance that would have reduced the likelihood of collision because of the overall increasing populations of bald eagles and the increasing number of nonbreeding adult eagles that are ready to assume vacant territories. Bald eagle populations can sustain occasional incidental take from wind-energy projects where we propose to authorize general permits. The Service will further ensure protection of bald eagles in lower density areas through tracking EMU and LAP take. To ensure the preservation of eagles, including the persistence of LAPs, for general permits that require compensatory mitigation, the Service proposes to require a portion of the eagle compensatory mitigation credit be pooled and directed to LAPs of concern.
The Service recognizes the need to address existing projects where not all turbines are located within an area of relative abundance below designated thresholds that qualify for a general permit
istence of LAPs, for general permits that require compensatory mitigation, the Service proposes to require a portion of the eagle compensatory mitigation credit be pooled and directed to LAPs of concern.
The Service recognizes the need to address existing projects where not all turbines are located within an area of relative abundance below designated thresholds that qualify for a general permit. We propose defining existing projects to include all infrastructure that was operational prior to the effective date of the final rule as well as infrastructure that was sufficiently far along in the planning process on that date that complying with new requirements would be impracticable, including if land agreements were already in place, site preparation was already underway, or infrastructure was partially constructed. We propose that when a portion of the turbines at an existing project does not qualify for a general permit, the project operator must apply for a specific permit, but may request consideration for a general permit in the specific permit application. The Service will review the project and will issue a letter of authorization if we determine it is appropriate to designate that project as eligible for a general permit. We may refund the specific-permit application fee, but we will not refund the administration fee. The Service anticipates issuing a letter of authorization for most existing projects where only a small percentage of existing turbines do not qualify under the relative-abundance thresholds or when an existing project has conducted and provides monitoring data demonstrating fatality rates consistent with those expected for general permits. The letter of authorization may require additional compensatory mitigation requirements if appropriate. During the rulemaking process, we will consider revisions to the proposed eligibility criteria, as well as other possible eligibility criteria, such as those analyzed in Alternative 2 of the draft environmental assessment (DEA)
g fatality rates consistent with those expected for general permits. The letter of authorization may require additional compensatory mitigation requirements if appropriate. During the rulemaking process, we will consider revisions to the proposed eligibility criteria, as well as other possible eligibility criteria, such as those analyzed in Alternative 2 of the draft environmental assessment (DEA). In Alternative 2, the wind energy general permit eligibility criteria would require all turbines be greater than one mile from a bald eagle nest and greater than two miles from a golden eagle nest. There would be no eligibility criteria based on eagle relative abundance. Our final rule may include eligibility criteria different from those proposed here, providing that those criteria are consistent with the Eagle Act and the current preservation standard.
For both general and specific permits, the Service proposes to continue requiring implementation of all practicable avoidance and minimization measures to reduce the likelihood of take. These conditions would likely include reducing eagle attractants at a site ( e.g., minimizing prey populations or perch locations), minimizing human-caused food sources at a site ( e.g., roadkill, livestock), and implementing adaptive-management plans that modify facility operations at a site if certain circumstances occur, such as when a certain number of eagle mortalities are detected. In developing the permit conditions and subsequent recommendations and guidance for complying with permit conditions, we will rely on our regional knowledge and expertise gained from processing and issuing previous programmatic (see the 2009 Eagle Rule) and long-term (see the 2016 Eagle Rule) eagle incidental take permits. General permit conditions will be nonnegotiable and fixed for the term of the permit. However, any Service revisions to the general-permit conditions for incidental take of eagles would supersede prior conditions if a project entity applied for a subsequent general permit
issuing previous programmatic (see the 2009 Eagle Rule) and long-term (see the 2016 Eagle Rule) eagle incidental take permits. General permit conditions will be nonnegotiable and fixed for the term of the permit. However, any Service revisions to the general-permit conditions for incidental take of eagles would supersede prior conditions if a project entity applied for a subsequent general permit. The Service proposes to continue standardizing certain elements of specific permit conditions for eagle take to improve transparency and efficiency while also adapting conditions to unique permit situations on a case-by-case basis.
The Service proposes retaining a maximum 30-year tenure for specific permits for wind projects, consistent with current regulations. This tenure is appropriate given the amount of time that wind-energy projects are expected to operate on the landscape. Specific permits may be requested and authorized for any duration (in one-year increments) up to 30 years. The Service proposes a maximum tenure of 5 years for general permits. Upon expiration, project applicants may reapply and obtain a new 5-year general permit. We propose that general permits for eagle take cannot be amended during each 5-year term.
The proposed general permit will require permittees to monitor eagle take. We propose that project proponents must train relevant employees to recognize and report eagle take as part of their regular duties. This monitoring requirement includes visually scanning for injured eagles and eagle remains during inspections, maintenance, repair, and vegetation management at and around project infrastructure. Scans must occur a minimum of once every three months corresponding to the highest eagle-use, seasonal periods to the maximum extent practicable. Any dead or injured eagle discovered within the project, regardless of cause, must be promptly reported to the Service ( i.e., within 2 weeks)
emains during inspections, maintenance, repair, and vegetation management at and around project infrastructure. Scans must occur a minimum of once every three months corresponding to the highest eagle-use, seasonal periods to the maximum extent practicable. Any dead or injured eagle discovered within the project, regardless of cause, must be promptly reported to the Service ( i.e., within 2 weeks). All eagles must be reported, regardless of suspected cause of death, but may include explanatory information if alternate cause of death is suspected. The Service will determine whether a given eagle injury or mortality is attributable to a participating project. Disposal of eagles must be in accordance with Service instructions, which may include shipping eagles to the National Eagle Repository or other designated facility. If a project is located within Indian Country, the Service may direct eagle remains to be returned to the Tribe, in accordance with a Tribal Eagle Remains permit. These requirements are detailed in the general permit conditions under supplementary materials at https://www.regulations.gov in Docket No. FWS-HQ-MB-2020-0023.
The Service is aware that this proposed four-eagle threshold under general permits may not represent the same levels of realized fatality rates across all generally permitted projects; for instance, some permittees with projects in denser vegetation or rougher terrain may have a more difficult time spotting eagle fatalities, resulting in
If three bald-eagle injuries or mortalities, or three golden-eagle injuries or mortalities attributable to the project are discovered at a project during the 5-year general permit tenure, within 2 weeks of this discovery the permittee must provide the Service with an adaptive management plan. The permittee would specify which avoidance and minimization measures it will implement in the short term (after finding the remains of a third eagle of a species) and which it will implement if remains of a fourth eagle of that same species is found
ct during the 5-year general permit tenure, within 2 weeks of this discovery the permittee must provide the Service with an adaptive management plan. The permittee would specify which avoidance and minimization measures it will implement in the short term (after finding the remains of a third eagle of a species) and which it will implement if remains of a fourth eagle of that same species is found. If an injury or mortality of a fourth eagle of that species attributable to the project is discovered, the permittee must again notify the Service of that discovery within 2 weeks and confirm that it will implement the avoidance and minimization measures outlined in the adaptive management plan, including any modifications to the plan. The project may continue to operate under the general permit if the permittee implements its adaptive management plan through the duration of the permit term. However, the project would no longer be eligible for obtaining future general permits. The permittee may request reconsideration as authorized under 50 CFR 13.29, including a description of extenuating circumstances. Otherwise, the project proponent would have to apply for a specific permit for eagle take.
The purpose of including this discovered-eagles provision in general permits is so the Service can identify what should be the rare wind project that qualifies for a general permit but, based on realized take, ought to have gone through the more rigorous specific permit process. By requiring notification from projects operating under general permits if three and four eagles are found, we seek to ensure that the overall take authorized by the general-permit program remains within the range we predict and is appropriately offset to the degree necessary for the species' preservation. It is important to note that the finding of eagle remains at any project represents only the minimum number of eagles that may have been killed by a project
permits if three and four eagles are found, we seek to ensure that the overall take authorized by the general-permit program remains within the range we predict and is appropriately offset to the degree necessary for the species' preservation. It is important to note that the finding of eagle remains at any project represents only the minimum number of eagles that may have been killed by a project. Depending on the probability of detection, which is determined by such factors as site topography and vegetation, the number of eagles actually taken may be close to the number of eagles found, or the number actually taken could be substantially higher than the number found. We anticipate that the operations and management staff conducting the monitoring as outlined in the proposed general permit conditions will detect approximately 15-20 percent of all eagles injured or killed at an average project. If four eagles are discovered at this detection rate, we estimate that as many as 16-23 eagles may have gone undiscovered. This estimate, based on a proposed detection rate of 15-20 percent and four eagles found, is comparable to the number of eagles we estimate (conservatively; see appendix A) will be taken at projects that are only eligible for specific permits over a 5-year period (because of the conservative nature of our take estimates, many projects will take substantially fewer than these projected numbers of eagles). For these reasons, discovered take of four golden eagles or four bald eagles appropriately distinguishes between projects that we intend to cover under general permits and higher risk projects that are better managed under specific permits.
Projects that receive general permits and reach the four-eagle threshold for either species will have shown evidence that they are taking eagles at a rate consistent with projects eligible for specific permits
gles or four bald eagles appropriately distinguishes between projects that we intend to cover under general permits and higher risk projects that are better managed under specific permits.
Projects that receive general permits and reach the four-eagle threshold for either species will have shown evidence that they are taking eagles at a rate consistent with projects eligible for specific permits. We estimate that the average 100-turbine project that qualifies for a specific permit will take approximately 6.9 golden eagles per year (at the 80th quantile), or approximately 35 golden eagles over a 5-year period, and approximately 1.6 bald eagles per year (at the 60th quantile), or approximately 8 bald eagles over a 5-year period (see the DEA for additional information and methodology), Note that we expect the average wind project receiving a specific permit will take fewer bald eagles than golden eagles. Based on this, we considered making the detected-take threshold for general permit removal lower for bald eagles than it is for golden eagles. However, given the increasing and relatively robust nationwide populations of bald eagles, we concluded that it was not appropriate to make this threshold lower for bald eagles than for golden eagles. Thus, we set the threshold for general permit removal at the same level for bald eagles as we did for golden eagles.
We propose an administration fee for wind-energy general permits to cover the unique costs of implementing the general-permit program for wind-energy projects. The project-level monitoring required of general permittees is not adequate on its own to administer the program. The administration fee would be included in the application fee and cover the costs to the Service to perform more rigorous systematic fatality monitoring on a program-wide basis to ensure the preservation of eagles instead of individual applicants being required to fund and conduct more rigorous fatality monitoring on every project
permittees is not adequate on its own to administer the program. The administration fee would be included in the application fee and cover the costs to the Service to perform more rigorous systematic fatality monitoring on a program-wide basis to ensure the preservation of eagles instead of individual applicants being required to fund and conduct more rigorous fatality monitoring on every project. By utilizing a systematic approach to fatality monitoring, not every site has to be surveyed every year, which reduces costs to the regulated community. The Service proposes a fee of $525 per turbine per year or $2,625 per turbine for a 5-year permit to cover the costs of this systematic monitoring.
To complete this systematic fatality monitoring program, the Service must have reasonable access to wind-energy projects. As part of their participation in the general permit program, project proponents will consent to allow systematic monitoring at their projects by Service staff or Service contractors. The Service would negotiate the logistics of access to project sites with the permittee. Service monitoring data will be used to inform EMU and national estimates of take rates and is not intended to assess project-by-project compliance under the general-permit program. To ensure the general accuracy of estimates and tracking of take over time, we may use project-scale monitoring with a standardized approach, such as randomized and stratified monitoring by relevant factors such as geography, project size, and eagle abundance. The Service will use the information collected through programmatic monitoring to (1) ensure the general-permit program is compatible with the preservation of eagles by assessing overall eagle mortality at the EMU and LAP scale and (2) inform all relevant aspects of the administration of the program to guide future regulatory and implementation policy revisions
, project size, and eagle abundance. The Service will use the information collected through programmatic monitoring to (1) ensure the general-permit program is compatible with the preservation of eagles by assessing overall eagle mortality at the EMU and LAP scale and (2) inform all relevant aspects of the administration of the program to guide future regulatory and implementation policy revisions.
For general permits for wind-energy activities, the Service proposes
The Service will require offsetting compensatory mitigation at a fixed rate for each EMU. This rate will be in the form of eagle credits per cubic kilometer of hazardous volume (rounded to thousandths). The Service calculated the appropriate rates based on estimated take across all general permits, the Service's required 1.2:1 ratio for golden eagles, and a component designed to offset authorized take at the LAP scale should that be necessary. By scaling compensatory mitigation cost to hazardous volume, we would require compensatory mitigation that is proportionate to a project's potential impacts on eagles, which could also encourage broader participation in the program, particularly smaller projects. The Service considered a flat-fee approach where all projects are responsible for the same fee regardless of size; however, we were concerned about the cost disincentive to smaller projects. Wind-energy projects operating under a general permit must obtain eagle credits to the nearest tenth of an eagle for every cubic-kilometer of hazardous volume of the project from a Service-approved conservation bank or in-lieu fee program at the following rates:
☐ Atlantic/Mississippi EMUs: 6.56 eagles/km 3 ;
☐ Central EMU: 7.88 eagles/km 3 ; and
☐ Pacific EMU: 11.48 eagles/km 3 .
These different rates reflect the different abundances and modeled fatality rates of golden eagles and bald eagles in each EMU. Records must be kept to document compliance with this requirement and provided to the Service upon request or upon submission of each annual report
Atlantic/Mississippi EMUs: 6.56 eagles/km 3 ;
☐ Central EMU: 7.88 eagles/km 3 ; and
☐ Pacific EMU: 11.48 eagles/km 3 .
These different rates reflect the different abundances and modeled fatality rates of golden eagles and bald eagles in each EMU. Records must be kept to document compliance with this requirement and provided to the Service upon request or upon submission of each annual report. In accordance with the 2016 PEIS, the Service-approved in-lieu fee programs must provide credits for authorized eagle take within the same EMU where the permitted take occurs, unless reliable data support that compensatory mitigation performed outside the EMU will similarly protect the affected population. Service-approved in-lieu fee programs may be directed by the Service to provide credits in a particular LAP if LAP concerns arise during periodic reviews of the general permit program.
For specific permits for eagle take by the wind industry, the Service will include a fatality estimate for each project based on the best available information and published procedures. From that fatality estimate, the Service will specify the number of eagle credits that must be obtained from a Service-approved conservation bank or in-lieu fee program or implemented by the permittee under a Service-approved mitigation plan.
Eagle Incidental Take Permits for Power Lines
The Service proposes a general-permit option for power lines at 50 CFR 22.260. Multiple power-line entities have expressed interest in obtaining an eagle incidental take permit, and we have sufficient understanding of how eagles interact with power lines to develop a general permit appropriate for this industry. We propose a general permit for eagle take resulting from power-line infrastructure. We would retain provisions for a specific permit for power-line entities that qualify but do not wish to obtain a general permit or have been notified by the Service to obtain a specific permit
fficient understanding of how eagles interact with power lines to develop a general permit appropriate for this industry. We propose a general permit for eagle take resulting from power-line infrastructure. We would retain provisions for a specific permit for power-line entities that qualify but do not wish to obtain a general permit or have been notified by the Service to obtain a specific permit.
We propose that the general permit for power-line entities will require the following six conditions:
First, all new construction and reconstruction of pole infrastructure must be electrocution-safe for bald eagles and golden eagles, except as limited by human health and safety. “Electrocution-safe” means a pole configuration designed to minimize the risk of eagle electrocution (1) by providing sufficient separation between phases and between phases and grounds to accommodate the wrist-to-wrist or head-to-foot distance of eagles, or (2) by covering exposed parts with insulators to physically separate electricity from birds. If insulators are used, they must be in good condition and regularly maintained. Buried lines are considered “electrocution-safe.” We recommend buried lines when feasible because they completely eliminate the risks of electrocution, collision, and shooting.
Second, all new construction and reconstruction of transmission lines must consider eagle nesting, foraging, and roosting areas in siting and design, as limited by human health and safety. We recommend utility infrastructure siting at least 2 miles from golden eagle nests, 660 feet from a bald eagle nest, 660 feet from a bald eagle roost, and 1 mile from a bald eagle or golden eagle foraging area. Within each of these distance ranges, we expect elevated eagle use and increased risk of interaction with power and transmission line infrastructure.
Third, a reactive retrofit strategy must be developed that governs retrofitting of high-risk poles when an eagle electrocution is discovered
d eagle nest, 660 feet from a bald eagle roost, and 1 mile from a bald eagle or golden eagle foraging area. Within each of these distance ranges, we expect elevated eagle use and increased risk of interaction with power and transmission line infrastructure.
Third, a reactive retrofit strategy must be developed that governs retrofitting of high-risk poles when an eagle electrocution is discovered. A reactive retrofit strategy responds to incidents in which eagles are killed or injured by electrocution. The reactive retrofit strategy must include how electrocutions are detected and identified. Poles selected for retrofits must be based only on risk to eagles, regardless of other factors, such as convenience to the permittee. The permittee must retrofit the pole that caused the electrocution, unless the pole already provides sufficient separation by design or is fully insulated by insulators in good condition. The permittee must retrofit a total of 11 poles or a half-mile segment of poles, whichever is less. The most typical pole selection would be the pole that caused the electrocution and five poles in each direction. However, if it is better for eagles for the project proponent to retrofit other poles in the circuit that are not electrocution-safe, those poles may be retrofit, prioritizing the least safe poles most adjacent to the electrocution. Poles outside of the circuit that caused the electrocution may be retrofit only if all poles in the circuit are already electrocution-safe. The Service estimates that retrofitting 11 power poles of high risk to eagles offsets the take of one eagle over 30 years at a ratio of 1.2:1. This estimate assumes that the permittee implements mitigation immediately and retrofits remain effective for 30 years.
Fourth, a proactive retrofit strategy must be developed and implemented to convert all existing infrastructure to be electrocution-safe, prioritizing poles that the permittee identifies as the highest risk to eagles
fsets the take of one eagle over 30 years at a ratio of 1.2:1. This estimate assumes that the permittee implements mitigation immediately and retrofits remain effective for 30 years.
Fourth, a proactive retrofit strategy must be developed and implemented to convert all existing infrastructure to be electrocution-safe, prioritizing poles that the permittee identifies as the highest risk to eagles. The permittee must establish annual targets for pole retrofits that result in the con version of one-tenth of non-electrocution-safe infrastructure to electrocution-safe by the expiration of the 5-year general permit term.
Fifth, a collision-response strategy must be implemented for all eagle collisions with power lines. If an eagle collision is detected, a strategy must outline the steps to identify and assess the collision, consider options for response, and implement a response. The assessment should include the species, habitat, daily, and seasonal migration patterns, concentration areas, and other local factors that might have contributed to the collision. The response options should consider eagle collisions in the engineering design ( e.g., burying the line, rerouting the line, or modifying the line to reduce the number of wires), habitat modification,
If possible, applicants would create one plan with the strategies described above: incorporating eagles into new equipment design and siting, reactive and proactive retrofit strategies, a collision-response strategy, and an eagle-shooting-response strategy. For example, many power-line entities currently operate under avian protection plans (APPs), in which most of these elements already exist. For entities that currently have APPs, we expect applying for this general permit would require relatively minor additions and modifications. The Service would not require the applicant to submit this information when applying for a general permit, but it must be provided upon request.
We propose a tenure of 5 years for general permits
plans (APPs), in which most of these elements already exist. For entities that currently have APPs, we expect applying for this general permit would require relatively minor additions and modifications. The Service would not require the applicant to submit this information when applying for a general permit, but it must be provided upon request.
We propose a tenure of 5 years for general permits. Applicants may apply for a new general permit at the end of the 5-year term. We propose a monitoring requirement that would require power-line entities to train relevant employees to recognize and report eagle take as part of their regular duties. This activity would include visually scanning for injured eagles and eagle remains during inspections, maintenance, repair, and vegetation management at permitted infrastructure. You must immediately notify the Service of any eagle discovered near power-line infrastructure, regardless of cause. We propose to require submission of an annual report of eagles discovered to the Service.
We propose a general-permit administration fee of $5,000 for each State for which the power-line entity is seeking authorization. We propose to use the number of States as the relevant factor to scale the administration fee to the size of the power-line entity's operations. The administration fee will be used to monitor the general-permit program. We do not propose requiring additional off-setting compensatory mitigation beyond reactive and proactive retrofits for general permits for power lines. Under the current PEIS, off-setting compensatory mitigation is required only for golden eagle mortality caused by infrastructure installed on or after the 2009 baseline conditions. Mortality on pre-2009 infrastructure is considered part of the baseline and is not applied to EMU take limits
-setting compensatory mitigation beyond reactive and proactive retrofits for general permits for power lines. Under the current PEIS, off-setting compensatory mitigation is required only for golden eagle mortality caused by infrastructure installed on or after the 2009 baseline conditions. Mortality on pre-2009 infrastructure is considered part of the baseline and is not applied to EMU take limits. With the wide availability of the guidelines developed by the Avian Power Line Interaction Committee ( Suggested Practices for Avian Protection on Power Lines (2006) and Reducing Avian Collisions with Power Lines (2012)), the Service estimates that power-line infrastructure installed after 2009 takes relatively few eagles.
Conversely, the Service estimates significant benefits will accrue to golden eagles from implementing the measures required as part of the proposed general-permit conditions. The Service estimates that approximately 500 golden eagles are killed annually as a result of electrocutions. Approximately 600 more die from collisions, a portion of which are probably collisions with powerlines (USFWS 2016; Millsap et al. 2022 (in press)). We expect that the proposed combination of requiring new power lines to be electrocution-safe, reconstruction of old power lines to make poles electrocution-safe, the creation and implementation of a reactive retrofit strategy, and the creation and implementation of a proactive retrofit strategy will be an effective approach to reducing the take of eagles on power-line infrastructure across the landscape over time. We expect that these approaches to reduce take at older infrastructure will more than offset take occurring on non-electrocution-safe poles constructed after 2009—the baseline year after which we require compensatory mitigation for golden eagle take for new construction
trategy will be an effective approach to reducing the take of eagles on power-line infrastructure across the landscape over time. We expect that these approaches to reduce take at older infrastructure will more than offset take occurring on non-electrocution-safe poles constructed after 2009—the baseline year after which we require compensatory mitigation for golden eagle take for new construction. Therefore, the Service anticipates a net benefit to eagles from utilities participating in the general permit program as proposed and is not proposing to require additional compensatory mitigation for this type of permit.
Furthermore, illegal shooting of eagles kills approximately 670 golden eagles per year (Millsap et al. 2022). We expect that power-line-industry assistance in reducing illegal shooting could significantly advance golden-eagle preservation, although we cannot currently quantify the expected magnitude of that benefit.
Eagle Disturbance Take Permits
More than two-thirds of the eagle take permits the Service currently issues are for incidental disturbance due to activities conducted near bald eagle nests. The current regulations at 50 CFR 22.80 govern both disturbance take and incidental killing of eagles. Accommodating the substantive difference in effects to eagles from these two different types of take has created an overly complex regulation. Therefore, we propose to authorize the incidental disturbance take of eagles in a new stand-alone regulatory section, 50 CFR 22.280. This proposed regulation extracts portions of the existing regulation (50 CFR 22.80) that relate to disturbance take. This proposed change will reduce the complexity of the current regulation, making permitting of incidental disturbance of eagles clearer and easier to understand. We also propose to clarify what does and does not constitute disturbance.
The Service proposes to retain the existing definition of “disturb” (50 CFR 22.6)
ions of the existing regulation (50 CFR 22.80) that relate to disturbance take. This proposed change will reduce the complexity of the current regulation, making permitting of incidental disturbance of eagles clearer and easier to understand. We also propose to clarify what does and does not constitute disturbance.
The Service proposes to retain the existing definition of “disturb” (50 CFR 22.6). We propose authorizing disturbance of bald eagles under general permits for most activities currently described in the 2007 Activity-Specific Guidelines of the National Bald Eagle Management Guidelines (hereinafter the “Guidelines”). In 2009, following the delisting of the bald eagle from the Endangered Species Act, the Service published the Guidelines to help landowners and project proponents avoid disturbing breeding bald eagles when conducting activities near nest sites. The Guidelines created activity categories A-H, which we generally propose to adopt as eligibility criteria for general permits for eagle disturbance take. These categories include construction activities, linear utilities, alteration of shorelines, vegetation and timber practices, motorized recreational activities, nonmotorized recreational activities, aircraft operations, and blasting and other loud noises. At this time, disturbance caused by agriculture, mining, and oil and gas operations will
Between publication of the Guidelines in 2007 and nationwide eagle population surveys in 2018, we estimate that bald eagle populations have quadrupled in the Lower 48 United States (USFWS. 2021. Final Report: Bald Eagle Population Size: 2020 Update. December 2020. Division of Migratory Bird Management, Washington D.C. U.S.A.). This includes growth into environments that are developed or in the process of being developed, increasing the demand for permits for eagle disturbance. The demand for eagle-disturbance take permits has placed a significant administrative burden on the regulated public and the Service
Eagle Population Size: 2020 Update. December 2020. Division of Migratory Bird Management, Washington D.C. U.S.A.). This includes growth into environments that are developed or in the process of being developed, increasing the demand for permits for eagle disturbance. The demand for eagle-disturbance take permits has placed a significant administrative burden on the regulated public and the Service.
However, a recent analysis of monitoring reports submitted under nest-disturbance permits reveals that most bald eagles with breeding territories permitted for disturbance do not, in fact, end up being disturbed by permitted activities when avoidance and minimization measures are followed. Rather, the success rates of populations subject to a high prevalence of disturbance permits do not appear to differ significantly from bald eagle breeding populations subject to few or no disturbance permits. Therefore, the Service proposes reducing the administrative burden to the public and the Service by creating a general permit for common activities. We estimate that the general-permit-eligibility criteria proposed will address more than 85 percent of the demand for eagle disturbance permits. We propose standardized avoidance and minimization measures to reduce the disruptive impacts from these activities based on our experience since 2009 with permitting eagle disturbance. The Service proposes requiring specific permits for all other activities that may cause disturbance take of bald eagles and any activity that may cause disturbance take of golden eagles.
We propose to retain the tenure of 5 years for specific permits for incidental disturbance. However, we propose limiting the tenure of general permits for incidental disturbance to one year, expiring at the beginning of the regional breeding season. Permit conditions will include the applicable start dates. General permits could be renewed for subsequent years for activities conducted longer than 1 year
pose to retain the tenure of 5 years for specific permits for incidental disturbance. However, we propose limiting the tenure of general permits for incidental disturbance to one year, expiring at the beginning of the regional breeding season. Permit conditions will include the applicable start dates. General permits could be renewed for subsequent years for activities conducted longer than 1 year. The Service proposes to continue to require monitoring as appropriate for both specific and general disturbance permits. Monitoring would be standardized for general permits and required as necessary to evaluate whether disturbance occurs by determining the effects of general permitted activities on eagle nest outcomes, such as a single report of whether the nest does or does not fledge young.
For both specific and general disturbance permits, we propose to require that applicants provide the coordinates of the nest(s) for which they are requesting disturbance authorization. Precise location information is necessary for both the Service staff who conduct eagle population management and law enforcement. For both specific and general permits, we propose permit conditions that include implementation of measures to avoid and minimize to the extent practicable the risk that authorized activities disturb breeding bald eagles. To determine practicability, the Service will consider eagle population status, the known efficacy of the measure, and the potential burden to the permittee. For specific permits, applicants will have the opportunity to provide input into these permit conditions; however, conditions for general permits will be standardized for all disturbance take of that type of activity and designed to achieve compliance with the standard conditions in these proposed regulations. General permit conditions include effective techniques that have been consistently and successfully used in specific permits for the past 10 years or more
ide input into these permit conditions; however, conditions for general permits will be standardized for all disturbance take of that type of activity and designed to achieve compliance with the standard conditions in these proposed regulations. General permit conditions include effective techniques that have been consistently and successfully used in specific permits for the past 10 years or more.
The Service expects the streamlined general-permit-application process for authorizing disturbance will significantly reduce compliance burdens for project proponents. The application process for disturbance permits has often challenged the capacity and means of some project proponents, particularly homeowners who cannot afford the services of environmental consultants. A general permit will also increase transparency and certainty for project proponents and the public. With standardized authorizations and requirements for disturbance, proponents will know precisely what restrictions may apply to their activity allowing greater certainty during project planning. The public, too, will have a greater understanding of the responsibilities and obligations of permitted projects in their area. Through this general permit process, the Service will continue to sustainably manage bald eagles and potentially benefit populations through the agency's ability to redirect resources to other, more significant, conservation concerns.
As part of this rulemaking, the Service proposes clarifying when disturbance is likely to occur and when obtaining a permit is advisable. The topic of when a permit is necessary for disturbance of breeding eagles has generated confusion among the regulated community and the public in general. Based on its experience in processing disturbance permits since 2009, the Service has determined that certain activities are unlikely to result in disturbance
rifying when disturbance is likely to occur and when obtaining a permit is advisable. The topic of when a permit is necessary for disturbance of breeding eagles has generated confusion among the regulated community and the public in general. Based on its experience in processing disturbance permits since 2009, the Service has determined that certain activities are unlikely to result in disturbance.
We propose to clarify that using non-lethal methods to disperse eagles away from a site, known as hazing, does not constitute eagle disturbance in most circumstances and does not require a permit. Eagle hazing is most often necessary at airfields, landfills, and livestock or poultry farms. The intent of hazing is to deter eagle depredation ( i.e., substantial injury to wildlife or agriculture) or reduce threats to human or eagle health and safety by temporarily displacing individual eagles from a location. In over a decade of annual reports from eagle depredation permits authorizing hazing of eagles, the Service has found no evidence that hazing results in disturbance of eagles, as defined. In other words, hazing is not known to cause injury to eagles, nest abandonment, or a decrease in productivity at eagle nests when conducted away from in-use eagle nests. In the several national and regional GPS telemetry studies of golden eagles, we are aware of no golden eagle injury or mortality arising from hazing. Therefore, we propose that eagle hazing does not constitute disturbance unless it is adjacent to an in-use nest sufficient to disrupt eagle breeding activity. The Service will continue to recommend a buffer distance for hazing activities conducted near in-use nests that reflects the latest information available. We currently recommend a buffer distance of 660 feet.
We also propose to clarify that activities conducted adjacent to a communal roost or foraging area do not constitute eagle disturbance and do not require a permit. “Communal roost site” and “foraging area” are defined by regulation (50 CFR 22.6)
for hazing activities conducted near in-use nests that reflects the latest information available. We currently recommend a buffer distance of 660 feet.
We also propose to clarify that activities conducted adjacent to a communal roost or foraging area do not constitute eagle disturbance and do not require a permit. “Communal roost site” and “foraging area” are defined by regulation (50 CFR 22.6). In our 2007 Guidelines, we stated that human activity near communal roost sites or foraging areas could prevent eagles from feeding or taking shelter, thus resulting in disturbance take. However, since publication of the Guidelines, we have received little to no documentation that confirms take from activities near roosts, particularly bald eagle roosts.
We may deny permit applications for disturbance take of eagles where we determine that disturbance is unlikely to occur. The Service also proposes to clarify that activities in compliance with the Service's current guidance are unlikely to result in disturbance and do not require a permit. As bald eagle populations continue to grow, the Service will focus permitting for nest disturbance on activities that are moderately to highly likely to result in disruption of breeding activity to the degree that it is likely to result in disturbance.
Eagle Nest Take Permits
We propose eagle nest take regulations at 50 CFR 22.300 to authorize the take of eagle nests. This proposed section would update the existing regulations pertaining to removal of eagle nests (50 CFR 22.85) to include a general permit option. We also propose the following modifications to these regulations: (1) clarify that obstruction of a nest constitutes nest take; (2) establish a 1-year maximum tenure for general permits for nest take; and (3) add a justification for authorizing the take of eagle nests to protect threatened or endangered species.
We propose the eagle nest take regulation to include relocation or obstruction of nests
also propose the following modifications to these regulations: (1) clarify that obstruction of a nest constitutes nest take; (2) establish a 1-year maximum tenure for general permits for nest take; and (3) add a justification for authorizing the take of eagle nests to protect threatened or endangered species.
We propose the eagle nest take regulation to include relocation or obstruction of nests. Relocation of all or part of an eagle nest to a new location can be an appropriate alternative to destroying the nest, especially for bald eagles. Placement of an obstruction in an eagle nest, such as a traffic cone, can be an effective technique to prevent use of a nest. Obstructions can be used permanently if a nest is unsafe or otherwise difficult to remove. Obstructions can also be used temporarily to prevent the use of a nest adjacent to a temporary activity, allowing eagles to return in future years after completion of the activity.
Currently, the Service authorizes eagle nest take for four purposes: emergency, health and safety, removal from human-engineered structures, and other purposes (50 CFR 22.85(a)(1)(i) through (iv)). The Service proposes authorizing general permits for nest take only for bald eagles and only for the first three of the current justifications (50 CFR 22.85(a)(1)(i) through (iii): emergency, health and safety, and human-engineered structures). As described above, bald eagle populations have grown significantly since publication of the 2009 Eagle Rule, and populations continue to grow. Additionally, after more than 10 years of issuing permits to remove bald eagle nests, the Service has developed standard permit conditions that can be applied to authorizing the take of bald eagle nests using general permits. We will continue to require specific permits for any take of golden eagle nests because of the population status of golden eagles
agle Rule, and populations continue to grow. Additionally, after more than 10 years of issuing permits to remove bald eagle nests, the Service has developed standard permit conditions that can be applied to authorizing the take of bald eagle nests using general permits. We will continue to require specific permits for any take of golden eagle nests because of the population status of golden eagles. We will also continue to require a specific permit for take of eagle nests under the “other purposes” justification (current regulation at § 22.85(a)(1)(iv)) because the Service must ensure that those permits provide a net benefit to eagles. This determination must be made on a case-by-case basis and depends on the circumstances of the other purpose requiring nest take. However, we propose to make one exception to this specific-permit requirement for other purposes by authorizing a general permit only in Alaska for bald eagle nest take for other purposes (currently 50 CFR 22.85(a)(1)(iv)). In Alaska, the Service has already developed and implemented standard conditions to meet these requirements considering the robust Alaska bald eagle population.
The Service proposes adding a fifth justification for authorizing the take of eagle nests when necessary for the protection of species on the List of Endangered and Threatened Wildlife (50 CFR 17.11) under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1544). This activity would require a specific permit. With expanding bald eagle populations, the Service foresees situations arising where the take of an eagle nest may be necessary for the recovery of a threatened or endangered species. Examples include transmitters from threatened marbled murrelets found in bald eagle nests and bald eagles attacking endangered whooping cranes
ded (16 U.S.C. 1531-1544). This activity would require a specific permit. With expanding bald eagle populations, the Service foresees situations arising where the take of an eagle nest may be necessary for the recovery of a threatened or endangered species. Examples include transmitters from threatened marbled murrelets found in bald eagle nests and bald eagles attacking endangered whooping cranes. As many seabird and waterbird populations continue to decline and bald eagle populations continue to increase, the Service anticipates an increase in situations where bald eagle management may be a necessary part of implementing recovery plans. Moreover, nest take is an important tool that can reduce the need for other types of take, such as trap-and-relocate or lethal removal.
We propose to retain the tenure of 5 years for specific permits along with the ability to authorize the take of multiple nests. However, we propose limiting the tenure of general permits to a maximum of 1 year, expiring at the beginning of the regional breeding season. Permit conditions will include the applicable regional breeding season start date. Additionally, the general permit would authorize the removal of one specific nest. The general permit would also authorize removal of subsequent nesting attempts on the same nesting substrate and within one-half-mile of that location for the duration of the permit if the subsequent nests recreate the emergency, safety, or functional hazard that the permittee certified applied to the original nest. However, additional general permits would be required to remove subsequent nesting attempts more than one-half-mile away. We propose these reduced tenure and permit-per-nest requirements to better ensure general permits for nest take are compatible with the preservation of eagles.
For both specific and general nest-take permits, applicants must provide the coordinates of the nest(s) they are requesting to take
onal general permits would be required to remove subsequent nesting attempts more than one-half-mile away. We propose these reduced tenure and permit-per-nest requirements to better ensure general permits for nest take are compatible with the preservation of eagles.
For both specific and general nest-take permits, applicants must provide the coordinates of the nest(s) they are requesting to take. Precise location information is necessary for both the Service staff responsible for eagle population management and for law enforcement. To ensure consistency with the Eagle Act, applicants for both specific and general nest-take permits must certify which of the eligibility criteria they meet and certify that there is no practicable alternative to nest removal that would protect the interest to be served. Finally, applicants for both specific and general permits must agree to implement permit conditions. Specific-permit applicants may provide input into these permit conditions; however, general-permit conditions will be standardized for all general permits of that type. General-permit conditions represent effective techniques that have consistently and successfully been used in specific nest-take permits for the past 10 years or more.
Currently, the Service typically requires permittees to monitor the area near where the nest was removed for one or more seasons to determine whether the affected eagles relocate and successfully fledge young. We propose retaining the possibility of requiring monitoring under specific permits on a
The Service does not propose compensatory mitigation for nest-take general permits. General permits for nest take are limited to bald eagle nests in the following circumstances: emergency or human or eagle safety situations, or when constructed on human-engineered structures. These situations are typically hazardous to eagles, so that eagles also benefit from resolving the situation
permits on a
The Service does not propose compensatory mitigation for nest-take general permits. General permits for nest take are limited to bald eagle nests in the following circumstances: emergency or human or eagle safety situations, or when constructed on human-engineered structures. These situations are typically hazardous to eagles, so that eagles also benefit from resolving the situation. Compensatory mitigation is not considered warranted for this reason and because of the population status of bald eagles. The Service proposes to continue requiring compensatory mitigation for specific permits that authorize nest take for golden eagles or when needed to meet the net-benefit requirement. Compensatory mitigation for specific permits will be scaled to the permitted take and the population status of the species for which nest take is requested. A specific permit applicant may meet this requirement by obtaining the Service-approved amount of eagle credits from a Service-approved conservation bank or in-lieu fee program. The applicant may also propose other types of compensatory mitigation for Service approval.
Changes to Definitions
As part of this rulemaking, we propose narrowing the definition of “eagle nest” to exclude nest structures on failed nesting substrate. Currently, we define “eagle nest” to mean any assemblage of materials built, maintained, or used by bald eagles or golden eagles for the purpose of reproduction. We propose adding the qualification that it must be possible for eagles to reuse the nesting substrate for breeding purposes. Nesting substrate that, due to natural circumstances, is no longer and will never again be available to eagles for functional use will no longer meet the regulatory definition of an eagle nest. We propose revising this definition to address uncommon but occasional instances in which eagle nests or nesting substrate are impacted by weather or other natural factors to such a degree that they become permanently unusable to eagles for reproductive purposes
no longer and will never again be available to eagles for functional use will no longer meet the regulatory definition of an eagle nest. We propose revising this definition to address uncommon but occasional instances in which eagle nests or nesting substrate are impacted by weather or other natural factors to such a degree that they become permanently unusable to eagles for reproductive purposes. For example, if a nest tree falls and the bald eagle nest retains its structure, the nest would no longer retain the official designation of an eagle nest as the substrate was substantively changed by the nest tree falling. Individuals and organizations may destroy and remove, without a permit, materials that formerly held the designation of an eagle nest but no longer meet the definition based on utility. However, individuals and organizations may not possess or collect these materials beyond what is necessary to dispose of the nest. Eggs, feathers, and other eagle parts are often naturally incorporated into nests with time. The Eagle Act prohibits possession, transportation, and sale of these items, either individually or in their incorporated state with former nesting materials, without Federal authorization.
This proposed definition of “eagle nest” does not allow for modification of alternate (unused) nest substrate to a degree that prevents future breeding activity. Such activities will continue to constitute nest take.
We also propose revising the definition of “in-use nest” to clarify that the eggs referred to in the definition of in-use nest must be viable. As with our proposed revision of the definition for “eagle nest,” we intend this change to ensure our definition is more relevant to what is biologically important to eagles. Nonviable eggs may persist in a nest or even become incorporated into a nest's structure. However, by their nature, these eggs have no promise of hatching
the eggs referred to in the definition of in-use nest must be viable. As with our proposed revision of the definition for “eagle nest,” we intend this change to ensure our definition is more relevant to what is biologically important to eagles. Nonviable eggs may persist in a nest or even become incorporated into a nest's structure. However, by their nature, these eggs have no promise of hatching. Under current definitions, permittees have been prevented from removing what is otherwise an alternate nest because of the presence of nonviable eggs. In implementing the revised definition, we would presume that eggs are viable unless documented evidence ( e.g., absence of adults for several days, presence out of season) indicates otherwise.
For clarity, we propose adding a definition of “general permit” to 50 CFR part 22 to distinguish general permits from the definition of “permit” in 50 CFR 10.12. We interpret the statutory language requiring a permit to be procured from the Service for take of bald eagles for any purpose to include general permits proposed in this document as well as the more typical individual or specific permits (see 16 U.S.C. 668a).
We propose clarifying in the regulation pertaining to illegal activities (50 CFR 22.12) that obtaining an eagle permit of any type for a continuing activity does not in and of itself resolve take that occurred before issuance of the permit. This provision is currently in § 22.80(e)(8) but applies to all of the regulations in part 22 and is therefore better located in § 22.12.
We propose updating the definition of “eagle management unit” to include the current boundaries for those units to improve transparency to the public and general permit applicants. We also propose adding a definition of “incidental take,” as this term is used throughout these regulations and not defined.
Changes to Fees
The Service proposes to retain the existing fees for specific permits with the following exceptions (proposed § 13.11(d)(4))
ement unit” to include the current boundaries for those units to improve transparency to the public and general permit applicants. We also propose adding a definition of “incidental take,” as this term is used throughout these regulations and not defined.
Changes to Fees
The Service proposes to retain the existing fees for specific permits with the following exceptions (proposed § 13.11(d)(4)). The administration fee will be charged at the same time as the application fee. Thus, the cost of the Specific Permit, Eagle Incidental Take, is adjusted from $36,000 in the application fee column to a $28,000 application fee and $8,000 administration fee. Additional $8,000 administration fees are currently required every 5 years as part of a 5-year permit reviews. We propose replacing 5-year permit reviews with as-needed permit reviews and requiring the $8,000 administration fee if significant changes are required as a result. Potential modifications that are likely to require this administration fee include updates to authorized take, reevaluation of compensatory mitigation requirements, evaluation of impacts of a new project size or arrangement ( e.g., increased hazardous volume), or additional environmental review. The $500 amendment fee would be charged for substantive amendments to permit conditions that do not result in the significant changes that require an administration fee. Otherwise, permitting fees for specific permits remain unchanged.
The Service proposes to create a fee structure for general permits (proposed § 13.11(d)(4)). The application fee and administration fee would be charged at the time of application. We do not propose amendment fees as the automated nature of general permits would make substantive amendments unnecessary. We separate application and administration fees due to the different functions these fees serve
The Service proposes to create a fee structure for general permits (proposed § 13.11(d)(4)). The application fee and administration fee would be charged at the time of application. We do not propose amendment fees as the automated nature of general permits would make substantive amendments unnecessary. We separate application and administration fees due to the different functions these fees serve.
Administrative Changes
Finally, the Service proposes the following administrative changes to the organizational structure of our eagle-take-authorization regulations to improve clarity. To reduce confusion, we propose redesignating the current subpart C “Specific Eagle Permit Provisions” as “Eagle Possession Permits.” We propose creating a new subpart E pertaining to “Take of Eagles for Other Interests.” This subpart will house regulations that authorize permits for the taking of eagles for the protection of other interests in any particular locality. We propose relocating the current regulations at § 22.75 (What are the requirements concerning permits to take golden eagle nests?) to § 22.325 in subpart E and giving the section a new heading pertaining to golden eagle nest take for resource development. We also propose relocating the current regulations at § 22.90 pertaining to permits for bald eagle take exempted under the Endangered Species Act to § 22.400 in subpart E.
Public Comments
The public comment period begins with the publication of this document in the Federal Register and will continue through the date set forth above in DATES . We will consider all comments on the proposed rulemaking and draft environmental review that are received or postmarked by that date. Comments received or postmarked after that date will be considered to the extent practicable. Federally recognized Native American Tribes can request government-to-government consultation via letter submitted at any time during this rulemaking process.
The Service is interested in public comments on all aspects of the proposed rule
vironmental review that are received or postmarked by that date. Comments received or postmarked after that date will be considered to the extent practicable. Federally recognized Native American Tribes can request government-to-government consultation via letter submitted at any time during this rulemaking process.
The Service is interested in public comments on all aspects of the proposed rule. Comments that were submitted on the ANPR were considered in the preparation of this proposed rule, are included in the rulemaking docket, and do not need to be resubmitted. In addition, the Service is specifically seeking information on the following:
1. Are the anticipated number of annual permits to be issued for each permit type a reasonable estimate?
2. Are the costs associated with each permit type reasonable estimates?
3. For electric utilities, at what rate are power poles and other infrastructure planned for regular maintenance, rehabilitation, or reconstruction? What is the assumed life cycle of a typical power pole? How many utilities have an avian protection plan in place? At what rate do utilities schedule retrofits specifically of non-electrocution-safe equipment? Are the estimated costs associated with power-pole-retrofit strategies reasonable?
4. We propose the use of abundance criteria as a threshold qualification for a wind energy general permit. Are there other eligibility criteria for wind-energy general permits, either based solely on population abundance or beyond population abundance, we should consider adopting that would provide certainty and simplicity in the permit process for eligible projects while still meeting the Eagle Protection Act's preservation standard, including the criteria analyzed in Alternative 2 of the DEA?
5. Should the relative abundance thresholds for wind energy general permits (listed in table 1) be updated automatically based on new data, and if so, how often?
6
ider adopting that would provide certainty and simplicity in the permit process for eligible projects while still meeting the Eagle Protection Act's preservation standard, including the criteria analyzed in Alternative 2 of the DEA?
5. Should the relative abundance thresholds for wind energy general permits (listed in table 1) be updated automatically based on new data, and if so, how often?
6. Should the Service consider different thresholds for when a project is disqualified from general-permit eligibility, such as creating categories based on the generalized probability of detection?
7. Is the amount of compensatory mitigation required under this proposed rule sufficient to meet the preservation standard, considering risk, and uncertainty?
8. How should the Service analyze the potential cost savings to industry from this rulemaking, and does the public have data to bolster this analysis in the final rule?
9. Are there estimates or projections of the spatial distribution of anticipated wind energy industry growth that are relevant to this proposed rulemaking?
10. In the DEA, the Service estimates that retrofitting 11 power poles is required to offset one eagle. Assuming a retrofit costs $7,500, each credit is therefore assumed to cost $82,500 in the marketplace. Are these assumptions, the retrofit cost, and the market price of an “eagle credit” reasonable?
11. How should the Service implement the proposed audit program? Are there costs we should consider that ensure accuracy of the results while reducing the burden to the public?
Information Sessions
The Service will present information explaining this action in virtual information sessions during the public comment period. The purpose of each of these sessions is to provide the public with a general understanding of the background for this proposed rulemaking action, activities it would cover, alternative proposals under consideration, and the draft environmental documents for the proposed action
Service will present information explaining this action in virtual information sessions during the public comment period. The purpose of each of these sessions is to provide the public with a general understanding of the background for this proposed rulemaking action, activities it would cover, alternative proposals under consideration, and the draft environmental documents for the proposed action. Unlike a public hearing, a public information session is not a forum for the submission of public comments.
We will hold the following information sessions in webinar format. Sessions will start at the time noted. Sessions will last for up to 2 hours but may end early if there are no further comments.
Sessions for federally recognized Native American Tribes:
□ On October 19, 2022, at 2 p.m. Eastern Time.
□ On November 2, 2022, at 12 p.m. Eastern Time.
Sessions for the general public:
□ On October 20, 2022, at 12 p.m. Eastern Time.
□ On November 3, 2022, at 2 p.m. Eastern Time.
Registration instructions and updated session information can be accessed on the Service web page at https://www.fws.gov/regulations/eagle or may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT . Please note that the Service will ensure that the information sessions will be accessible to members of the public with disabilities.
To promulgate a final rule and prepare a final environmental assessment pursuant to the National Environmental Policy Act, we will take into consideration all comments and any additional information received. Please note that submissions merely stating support for or opposition to the proposed action and alternatives under consideration, without providing supporting information, will be noted but not considered by the Service in the final rule and environmental analysis. Please consider the following when preparing your comments:
(a) Be as succinct as possible.
(b) Be specific. Comments supported by logic, rationale, and citations are more useful than opinions.
tion to the proposed action and alternatives under consideration, without providing supporting information, will be noted but not considered by the Service in the final rule and environmental analysis. Please consider the following when preparing your comments:
(a) Be as succinct as possible.
(b) Be specific. Comments supported by logic, rationale, and citations are more useful than opinions.
(c) State suggestions and recommendations clearly with an expectation of what you would like the Service to do.
(d) If you propose an additional alternative for consideration, please provide supporting rationale and why you believe it to be a reasonable alternative that would meet the purpose and need for our proposed action.
(e) If you provide alternate interpretations of science, please support your analysis with appropriate citations.
Public Availability of Comments
Written comments we receive become part of the public record associated with FOR FURTHER INFORMATION CONTACT , above).
Required Determinations
Regulatory Planning and Review—Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this proposed rule is significant.
Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas
ncies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.
Table 2 below shows the permit count and cost for the current permitting program, the expected number of permits and average permit costs under the proposed rule, and the estimated marginal costs and impacts between the existing and the proposed rule. Additional analysis is available in the supporting environmental assessment.
Table 2—Average Annual Cost and Permit Count Comparison Between Existing Program and Proposed Rule Type of permit Factors Current program Number of annual permits Fees and costs per permit Proposed Rule Number of annual permits Fees and costs per permit Marginal cost change from existing program to proposed rule Wind Energy Project (General) 1 Permit Application Costs 0 $0 74 $500 $500 Average Compensatory Mitigation Costs 0 42,000 42,000 Average Administration (Monitoring) Costs 0 97,500 97,500 Average Cost Per Permit 0 140,000 140,000 Average Annual Cost to Industry 0 10,360,000 10,360,000 Wind Energy Project (Specific) Permit Application Costs 6 36,000 6 36,000 0 Average Compensatory Mitigation Costs 578,000 1,000,000 422,000 Average Administration (Monitoring) Costs 2,100,000 2,100,000 0 Average Cost Per Permit 2,714,000 3,136,000 422,000 Average Annual Cost to Industry 16,284,000 18,816,000 2,532,000 Power Line Entities 2 Permit Application Costs 0 0 4 500 500 Average Administration (Monitoring) Costs 0 5,000-25,000 5,000-25,000 Average Power Pole Retrofit Costs 0 1,100,000 (if no existing retrofit strategy exists, to be paid over 5 years) 0-275,000 Average Cost Per Permit 0 5,500-300,500 5,500-300,500 A
,714,000 3,136,000 422,000 Average Annual Cost to Industry 16,284,000 18,816,000 2,532,000 Power Line Entities 2 Permit Application Costs 0 0 4 500 500 Average Administration (Monitoring) Costs 0 5,000-25,000 5,000-25,000 Average Power Pole Retrofit Costs 0 1,100,000 (if no existing retrofit strategy exists, to be paid over 5 years) 0-275,000 Average Cost Per Permit 0 5,500-300,500 5,500-300,500 Average Annual Cost to Industry 0 22,000-1,202,000 22,000-1,202,000 Nest Disturbance 3 Permit Application Costs 96 100-500 96 100 0-(400) Compensatory Mitigation Costs 0 0 0 Administration (Monitoring) Fee 0 0 0 Average Cost Per Permit 100-$500 100 0-($400) Average Annual Cost to Industry 9,600-$48,000 9,600 0-(38,400) Nest Take 3 Permit Application Costs 40 100-500 40 100 0-(400) Compensatory Mitigation Costs 0 0 0 Administration (Monitoring) Costs 0 0 0 Average Cost Per Permit 100-500 100 0-(400) Average Annual Cost to Industry 4,000-20,000 4,000 0-(16,000) Average Annual Permits Counts and Costs 4 142 16,297,600-16,352,000 220 29,211,600-30,391,600 12,859,600-14,094,000 1. There are no general permits for wind energy projects under the existing rule. For our analysis, we used a 36-turbine project example to calculate the fees and costs. 2. There are permits designed for power line entities under the existing rule. Under the proposed rule, these entities will not be required to pay compensatory mitigation costs but will be required to pay costs associated with retrofitting power poles. We estimate that 25% of power line entities will not have an existing retrofit strategy and will therefore be required to pay this cost 3. Compensatory mitigation rates for Nest Disturbance and Nest Take for golden eagles are required at a 1.2:1 ratio, however the take limit is zero. 4. Total costs for the existing and the marginal cost difference is expressed as a range of values based on estimating the total number of nest take and nest disturbance permits as either non-commercial or commercial
efore be required to pay this cost 3. Compensatory mitigation rates for Nest Disturbance and Nest Take for golden eagles are required at a 1.2:1 ratio, however the take limit is zero. 4. Total costs for the existing and the marginal cost difference is expressed as a range of values based on estimating the total number of nest take and nest disturbance permits as either non-commercial or commercial. The actual value is likely somewhere between these figures. The maximum total estimated annual cost to industry for the proposed rule is $30,391,600. The maximum total estimated cost over 5 years for all permits is $151,958,000. The average annual equivalent cost is $24,922,312 with a total net present value cost of $124,611,560 using a 7% discount rate. The average annual equivalent cost is $27,836,926 with a total net present value of $139,184,629 at a 3% discount rate. These discount rates represent a range of values that the Office of Management and Budget recommend as a Federal program discount rate for benefit cost analysis for most Federal programs. The above costs represent the total gross cost of the proposed rule and do not reflect the costs associated with the existing regulations. The proposed rule is expected to create an estimated maximum $14,094,000 dollars in new costs annually and $70,470,000 in new marginal costs over 5 years, as compared to the existing regulations. However, these new marginal costs are more than offset by savings to both industry and the Service in terms of reduced Eagle Protection Act enforcement costs and removed requirements for preconstruction monitoring and third-party monitoring. The anticipated 74 wind energy projects and 4 power line entities that annually receive and comply with a permit will no longer be subject to potential enforcement under the Eagle Protection Act, which can result in substantial legal costs, nor will they incur costs to estimate and reduce their legal risks, which may include biological surveys and hiring staff and attorneys
third-party monitoring. The anticipated 74 wind energy projects and 4 power line entities that annually receive and comply with a permit will no longer be subject to potential enforcement under the Eagle Protection Act, which can result in substantial legal costs, nor will they incur costs to estimate and reduce their legal risks, which may include biological surveys and hiring staff and attorneys. While this total reduced enforcement cost is not quantifiable due to limited data, the Service expects that such savings exceeds the total new costs associated with the proposed rule. The costs of the proposed rule are also offset by the ecosystem-services benefits associated with potential decreased take and increased populations of eagles. The Service requests specific public comment and data on the specific costs associated with existing enforcement frameworks and the ecosystem-services values associated with eagles.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121, 201, 110 Stat. 847)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small businesses, small organizations, and small government jurisdictions. However, no regulatory flexibility analysis is required if the head of an agency certifies the rule would not have a significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities
flexibility analysis is required if the head of an agency certifies the rule would not have a significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). We have examined this proposed rule's potential effects on small entities as required by the Regulatory Flexibility Act and determined that this action will not have a significant economic impact on a substantial number of small entities. This analysis first estimates the number of businesses potentially impacted and then estimates the economic impact of the rule.
To assess the effects of the proposed rule on small entities, we focus on home-construction companies, wind-energy facilities, and electric-transmission companies. Although small, noncommercial, wind-energy facilities such as single turbine facilities tied to public buildings could seek permits, we anticipate that most of the applications for wind-energy facilities will be for those that are commercial or utility in scale. Although businesses in other sectors, such as railroads, timber companies, and pipeline companies, could also apply for permits, we anticipate the number of permit applicants in such sectors would be very small, on the order of one to thirteen per year for each sector.
Using the North American Industry Classification System (NAICS), the U.S
l be for those that are commercial or utility in scale. Although businesses in other sectors, such as railroads, timber companies, and pipeline companies, could also apply for permits, we anticipate the number of permit applicants in such sectors would be very small, on the order of one to thirteen per year for each sector.
Using the North American Industry Classification System (NAICS), the U.S. Small Business Administration (SBA) defines a small business as one with annual revenue or employment that meets or is below an established size standard, which is:
□ fewer than 250 employees for “Wind Electric Power Generation (NAICS sector 221115),
□ fewer than 1,000 employees for “Electric Power Distribution” (NAICS sector 221122),
□ fewer than 500 employees for “Logging” (NAICS sector 113310),
□ less than $36.5 million of average annual receipts for “Construction of Buildings” (NAICS sectors 236115, 236116, 236117, 236210, and 236220),
□ less than $36.5 million of average annual receipts for “Highway, Street, and Bridge Construction” (NAICS sector 237310),
□ less than $15.0 million of average annual receipts for “Support Activities for Rail Transportation” (NAICS sector 488210), and
□ fewer than 1,500 employees for “Gold Ore Mining” (NAICS sector 212221).
Tabl

[Text truncated at 120,000 characters. The full text is on the page linked above.]

## Nearby sections

- [87 FR 209 Massachusetts: Final Authorization of State Hazardous Waste Management Program Revisions](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2021-28332.md)
- [87 FR 210 Testimony and Production of Records](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2021-28468.md)
- [87 FR 913 Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption Relating to Agricultural Water; Proposed Rule; Public Meetings; Request for Comments](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2021-28503.md)
- [87 FR 1378 User Fees for Inspected Towing Vessels](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00200.md)
- [87 FR 2090 Proposed Establishment of Class E Airspace; Iuka, MS](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00076.md)
- [87 FR 2091 Proposed Establishment of United States Area Navigation (RNAV) Route T-367; St. Mary's, AK](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00004.md)
- [87 FR 2093 Scientific Data and Information Related to the Residue of Carcinogenic Concern for the New Animal Drug Carbadox; Public Hearing; Request for Comments](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00475.md)
- [87 FR 2101 Air Plan Approval; KY; Jefferson County Emissions Statements Requirements for the 2015 8-Hour Ozone Standard Nonattainment Area](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00027.md)
- [87 FR 2362 Airworthiness Directives; Bell Textron Canada Limited (Type Certificate Previously Held by Bell Helicopter Textron Canada Limited) Helicopters](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00164.md)
- [87 FR 2370 Proposed Establishment of United States Area Navigation (RNAV) Route T-370; Kenai, AK](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00438.md)
- [87 FR 2372 Proposed Modification of Class E Airspace; Rifle Garfield County Airport, CO](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00337.md)
- [87 FR 2383 Fees; Correction](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00630.md)
- [87 FR 2384 Periodic Reporting](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00654.md)
- [87 FR 2563 Airworthiness Directives; CFM International, S.A. Turbofan Engines](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-00509.md)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2022-21025. Check the current official text before relying on it. Not legal advice.