Rule2024-02182
Permits for Incidental Take of Eagles and Eagle Nests
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 12, 2024
Effective
April 12, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service, are revising the regulations for 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, improve clarity for the regulated community, and increase the conservation benefit for eagles. In addition to continuing to authorize specific permits, we created general permits for certain activities under prescribed conditions, including general permit options for qualifying wind-energy generation projects, power line infrastructure, activities that may disturb breeding bald eagles, and bald eagle nest take. We also made improvements to the specific permit requirements and process. We also revised permit fees and clarified definitions.
Full Text
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<title>Federal Register, Volume 89 Issue 29 (Monday, February 12, 2024)</title>
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[Federal Register Volume 89, Number 29 (Monday, February 12, 2024)]
[Rules and Regulations]
[Pages 9920-9965]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02182]
[[Page 9919]]
Vol. 89
Monday,
No. 29
February 12, 2024
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Parts 13 and 22
Permits for Incidental Take of Eagles and Eagle Nests; Final Rule
Federal Register / Vol. 89 , No. 29 / Monday, February 12, 2024 /
Rules and Regulations
[[Page 9920]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
[Docket No. FWS-HQ-MB-2020-0023; FF09M30000-234-FXMB12320900000]
RIN 1018-BE70
Permits for Incidental Take of Eagles and Eagle Nests
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, are revising the
regulations for 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, improve clarity for the
regulated community, and increase the conservation benefit for eagles.
In addition to continuing to authorize specific permits, we created
general permits for certain activities under prescribed conditions,
including general permit options for qualifying wind-energy generation
projects, power line infrastructure, activities that may disturb
breeding bald eagles, and bald eagle nest take. We also made
improvements to the specific permit requirements and process. We also
revised permit fees and clarified definitions.
DATES: Effective April 12, 2024.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this 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 rule between
30 and 60 days after the date of publication of this rule in the
Federal Register. Therefore, comments should be submitted to OMB by
March 13, 2024.
ADDRESSES:
Document availability: The finding of no significant impact, final
environmental assessment, and supplementary information used in
development of this rule, including a list of references cited,
technical appendices, and public comments received are available at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket No. FWS-HQ-MB-2020-0023.
Documents and additional information can also be found at: <a href="https://www.fws.gov/regulations/eagle">https://www.fws.gov/regulations/eagle</a>.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements should be
submitted within 30 days of publication of this document to <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function. Please provide a copy of
your comments to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803 (mail); or <a href="/cdn-cgi/l/email-protection#81c8efe7eedec2eeededc1e7f6f2afe6eef7"><span class="__cf_email__" data-cfemail="2861464e47776b474444684e5f5b064f475e">[email protected]</span></a> (email).
Please reference OMB Control Number 1018-0167 in the subject line of
your comments.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director--
Migratory Birds Program, U.S. Fish and Wildlife Service, telephone:
(703) 358-2606, email: <a href="/cdn-cgi/l/email-protection#721817001d1f172d141d0016321405015c151d04"><span class="__cf_email__" data-cfemail="c6aca3b4a9aba399a0a9b4a286a0b1b5e8a1a9b0">[email protected]</span></a>. Individuals in the United
States who are deaf, deafblind, hard of hearing, or have a speech
disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Fish and Wildlife Service (Service) is the Federal agency
delegated with the primary responsibility for managing bald eagles
(Haliaeetus leucocephalus) and golden eagles (Aquila chrysaetos) under
the Bald and Golden Eagle Protection Act 16 U.S.C. 668-668d;
[hereinafter the ``Eagle Act'']). The Eagle Act prohibits the take,
possession, and transportation of bald eagles and golden eagles except
pursuant to Federal regulations. The Eagle Act authorizes the Secretary
of the Interior to issue regulations to permit the ``taking'' of eagles
for various purposes, including 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. These
regulations authorize the take of eagles by an activity: They do not
purport to nor can they authorize the underlying activity itself.
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, an activity. These regulations were revised in 2016 (81 FR 91494,
December 16, 2016 [hereinafter the ``2016 Eagle Rule'']) to extend
tenure, update the Service's Eagle Management Unit (EMU) boundaries,
require preconstruction monitoring for wind-energy projects, and to
amend the preservation standard. The 2016 Eagle Rule 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 considering that expedite and simplify the permit process
authorizing incidental take of eagles (86 FR 51094). The ANPR also
advised the public that the Service may prepare a draft environmental
review pursuant to the National Environmental Policy Act of 1969, as
amended. In the ANPR, we invited input from Tribes, Federal agencies,
State agencies, nongovernmental organizations, and the general public
for any pertinent issues we should address, including alternatives to
our proposed approach for authorizing eagle incidental take. The public
comment period closed on October 29, 2021. The Service used these
comments to prepare a proposed rule and a draft environmental
assessment (DEA) which we released on September 30, 2022 (87 FR 59598).
The 60-day public comment period was extended to December 29, 2022 (87
FR 72957, November 28, 2022). The DEA and proposed rule are available
in Docket No. FWS-HQ-MB-2020-0023 (available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>).
Comments and materials we received, as well as supporting
documentation we use in preparing the environmental analysis, are
available for public inspection. For more information on public
comments see the Response to Public Comments below. The Service also
announces the availability of the finding of no significant impact
(FONSI) for the Service's final environmental assessment (FEA). The
FONSI is the final step in the National Environmental Policy Act (NEPA)
process for this eagle rulemaking action, which includes revisions to
the regulations governing permits for incidental take of eagles and
take of eagle nests. The FONSI and FEA are available in Docket No. FWS-
HQ-
[[Page 9921]]
MB-2020-0023 (available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>).
With this rulemaking, we do not change the 2016 preservation
standard or PEIS management objectives. The Eagle Act and existing
regulations require 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).
In 2009, the Service adopted 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. We do not alter this approach with this
rulemaking. In this rulemaking, the Service uses the recently updated
population-size estimates and allowable take limits for bald eagles (87
FR 5493, February 1, 2022).
This Rulemaking
Overview
The Service creates 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 new subpart includes revised provisions for
processing specific permits and creates general permits. General
permits authorize incidental take by activity type that occur
frequently enough for the Service to have developed a standardized
approach to permitting and ensure permitting is consistent with the
preservation standard. These regulations also restructure the existing
specific permit regulations. These regulations apply, regardless of
whether infrastructure is constructed before or after the final
regulations.
We amend 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.
In this rulemaking, we create a new subpart E for regulations
governing the permitting of eagle take for other interests. We adopt
two regulations for administering permitting: specific permits (Sec.
22.200) and general permits (Sec. 22.210). We further specify
activity-specific eligibility criteria and permit requirements in four
sections based on activity and type of eagle take:
<bullet> incidental take for permitting wind energy (Sec. 22.250),
<bullet> incidental take for permitting power lines (Sec. 22.260),
<bullet> disturbance take (Sec. 22.280), and
<bullet> nest take (Sec. 22.300).
For clarity and consistency, we have also moved regulatory content
on permit conditions to a new section (Sec. 22.215) and content on
compensatory mitigation standards to a new section (Sec. 22.220). We
have created new definitions to define ``general permit'' and
``incidental take'' and included clarifying modifications to the
definitions of ``eagle management unit,'' ``eagle nest,'' and ``in-use
nest'' (Sec. 22.6). We have redesignated related regulations
pertaining to permit requirements for take of golden eagle nests (moved
from Sec. 22.75 to Sec. 22.325) and permits for bald eagle take
exempted under the Endangered Species Act (moved from Sec. 22.90 to
Sec. 22.400) to a new subpart E, with only the modification of a
nonsubstantive change to the section title for Sec. 22.325. Finally,
we have adopted 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 changes to the
designated section numbers for previous regulations are as follows:
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New sections in
Previous regulations in 50 CFR part 22 Regulatory subject matter 50 CFR part 22,
subpart E
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Sec. Sec. 22.80 and 22.85.............................. Specific permits................. Sec. 22.200
General permits.................. Sec. 22.210
Sec. Sec. 22.80 and 22.85.............................. Permit conditions................ Sec. 22.215
Sec. 22.80.............................................. Compensatory mitigation.......... Sec. 22.220
Sec. 22.80.............................................. Wind energy project incidental Sec. 22.250
take.
Sec. 22.80.............................................. Power line incidental take....... Sec. 22.260
Sec. 22.80.............................................. Eagle disturbance take........... Sec. 22.280
Sec. 22.85.............................................. Eagle nest take.................. Sec. 22.300
Sec. 22.75.............................................. Golden eagle nest take for Sec. 22.325
resource recovery operations.
Sec. 22.90.............................................. Bald eagle take exempted under Sec. 22.400
the Endangered Species Act.
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Specific Permits and General Permits for Eagle Take
Under these new and updated regulations, the Service will authorize
eagle take using general permits and specific permits. General permits
simplify and expedite the permitting process for activities that have
relatively consistent and low risk to eagles and well-established
avoidance, minimization, and compensatory mitigation measures. General-
permit applicants self-identify eligibility and register with the
Service. This includes providing required application information and
fees and certifying that they meet eligibility criteria and will
implement permit conditions and reporting requirements.
The Service will implement 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.
These are described in more detail in the following sections. The
Service will audit general permits to ensure applicants are
appropriately interpreting and applying eligibility criteria and
complying with permit conditions. Audits will include reviewing
submitted application materials and reports. The Service will also
request and review any plans or strategies
[[Page 9922]]
required by permit conditions, like adaptive management plans.
The Service will continue to issue specific permits, which require
submission of application materials to the Service for review and
development of permit conditions. To maintain a review process adequate
to meet the preservation standard for eagles, the Service retains the
specific-permit approach for situations that have increased or
uncertain risks to eagles. The applicant is responsible for submitting
a qualifying application. The Service will determine, based on the
materials provided, whether the application meets regulatory
requirements. The Service is responsible for identifying and using the
best available information in making these determinations. If an
applicant is unable to meet Service data standards in applying, the
Service may waive these data standards provided: (1) the application
otherwise meets issuance criteria, (2) the Service has adequate
information to estimate take, and (3) the waiver will be consistent
with preservation of the eagle species. There is no process to petition
the Service for a waiver; rather, this process will be at the Service's
discretion and documented in the permit file. Specific permit
conditions must meet or exceed the requirements of general permits,
except when not practicable or when site-specific data warrants
customization.
If the best available information indicates that continuing
implementation of a general permit program is inconsistent with the
preservation of bald eagles or golden eagles, the Service may suspend
the general permit program temporarily or indefinitely. This suspension
may apply to all or part of general-permit authorizations. Consistent
with 50 CFR part 21 and part 22 permitting, Tribes or States may choose
to be more restrictive than Federal regulations. Permittees must comply
with Tribal and State laws and regulations to be in compliance with
Federal eagle permits.
Eagle Incidental Take Permits for Wind Energy
With this rulemaking, the Service seeks to implement efficiencies
in authorizing incidental take associated with wind energy projects.
This final rule creates a general permit option for projects in areas
that are low risk to eagles. We also revise the specific permit process
to provide clarity to applicants and ensure processing is efficient and
consistent with the preservation standard. With broader participation
in permitting, the Service anticipates increased benefits to eagle
populations as more projects implement avoidance, minimization, and
mitigation measures.
The Service uses a combination of eagle relative abundance and
proximity to eagle nests as eligibility criteria for wind energy
general permits. The Service uses the Cornell Status and Trends
definition of relative abundance and relative abundance products
(Cornell Lab of Ornithology, Ithaca, New York, available at: <a href="https://science.ebird.org/en/status-and-trends">https://science.ebird.org/en/status-and-trends</a>). Relative abundance values
determined for a project must be based on these publicly available
Status and Trends relative abundance products for bald eagles and
golden eagles. To help project proponents quickly determine eagle
relative abundance, the Service will maintain an online mapping tool
(<a href="https://arcg.is/CKLKy1">https://arcg.is/CKLKy1</a>).
For first-time applicants, general-permit eligibility is based on
eagle relative abundance and proximity to eagle nests at the time of
application. All turbines must be located in an area with eagle
relative abundance less than the threshold identified by regulation
(Sec. 22.250(c)(1)(ii) for both bald eagles and golden eagles). All
turbines, including the space occupied by blades or other turbine
infrastructure, must also be located at least 2 miles from a golden
eagle nest and at least 660 feet from a bald eagle nest (Sec.
22.250(c)(1)(i)). Project proponents are expected to survey for eagle
nests with due diligence and in accordance with any Service guidance
for nest surveys.
The Service considered allowing general permit applicants to select
authorization for just one species. By requiring both species, the
Service is able to reduce administration costs and keep the general
permit process simple. Both species are widely distributed and co-occur
in most States. The Service recognizes that the risk to each species is
not uniform, and we factored in the relative risk to each species into
the relative abundance criteria, the nest buffers, and the compensatory
mitigation requirements.
The Service added an eligibility criterion for wind energy projects
that are renewing a general permit (Sec. 22.250(c)). A general
permittee remains eligible to renew their permit, even if the Service
revises eagle relative abundance thresholds or eagles construct a nest
within the species-specific setback distances, as long as the project
remains in compliance with all other general permit requirements. This
includes provisions regarding the discovery of eagle remains or injured
eagles remaining fewer than four eagles of the same species within a 5-
year permit tenure (Sec. 22.210(b)(2)(i)). This eligibility applies to
the turbines authorized under the original general permit and does not
apply if there was a lapse in permit coverage or if any turbines are
added to the project. It does apply if the turbines change ownership.
If a project adds turbines, the new turbines must meet the
qualifications for a first-time general permit (Sec. 22.250(c)(1))
when renewing a general permit for a project. If there is a lapse in
coverage, the project must qualify for a first-time general permit
(Sec. 22.250(c)(1)) and may then renew (Sec. 22.250(c)(2)), if
eligible, or apply for a specific permit.
The Service acknowledges that existing wind projects have less
ability to adapt to the location-based nature of the general permit
eligibility criteria (as defined in Sec. 22.250(b)). After extensive
review, the Service could not identify general permit eligibility
criteria with which a project could self-certify that did not add
extensive complexity or uncertainty. However, the Service retained the
proposed eligibility criterion that any existing project that does not
meet general permit eligibility criteria can submit an application for
a specific permit (Sec. 22.200(b)) and request a letter of
authorization to obtain a general permit (Sec. 22.250(c)). The Service
will review all information provided in the application, including any
site-specific, pre- or post-construction data. The Service will issue a
letter of authorization to apply for a general permit if we determine
that the take rates at the existing project are likely to be consistent
with or lower than eagle take rates expected at similar-sized wind
facilities that qualify for general permits. If an applicant receives a
letter of authorization, we may refund the specific-permit application
fee, but to cover the cost of review, we will not refund the
administration fee. The letter of authorization may require additional
avoidance, minimization, or compensatory mitigation requirements if
appropriate (for example, when needed to ensure consistency with
general permit take rates).
The Service estimates that more than 80 percent of existing land-
based wind turbines in the lower 48 States may be eligible for general
permits. Wind projects in Alaska, Hawaii, island territories, and the
offshore environment should apply for a specific permit if
authorization for eagle incidental take is sought. Authorization for
incidental take due to power line infrastructure is not included under
a general permit for wind. The Service expects wind projects to avoid
risk to eagles by ensuring
[[Page 9923]]
power line infrastructure is avian-safe, either by design or use of
covers. In the rare circumstance associated power line infrastructure
poses an electrocution or collision risk to eagles, authorization under
the power line regulation is most appropriate. Specific permits are
available for wind projects that do not meet general permit eligibility
criteria or request the customization of a specific permit. We have
created multiple tiers within specific permits: Tier 1, Tier 2, and
Tier 2 with reimbursable agreement. Changes to the fee structure
associated with these tiers are described in the Changes to the Fees
section below. Tier 1 specific permits are for low-complexity wind
project applications (1) that can comply with general permit conditions
or require only minor modifications, (2) where fatality estimates can
be calculated with site-specific data collected to Service standards
and submitted using the Service's information reporting template or
where the applicant agrees to use the Service's generalized fatality
estimation process (i.e., using the nationwide specific permit priors)
for specific permits, (3) that agree to use a Service-approved
conservation bank or in-lieu fee program to complete required
compensatory mitigation, and (4) where the Service's decision can be
categorically excluded under NEPA. The Service anticipates expediting
Tier 1 specific permit application processing.
Tier 2 specific permits are for moderately complex applications
that (1) need modifications to general-permit conditions, including
negotiated compensatory-mitigation requirements or (2) for which
fatality estimation requires more evaluation of site-specific data, or
(3) negotiation of other requirements. For the highest complexity
applications, such as applications that require more extensive permit-
condition negotiations, cannot be categorically excluded from
additional procedural requirements of NEPA, or other unique
circumstances, the Service will charge the Tier 2 fee and require
applicants, including government agencies, to enter into a reimbursable
agreement with the Service to offset additional Service costs
associated with this added complexity and review time in excess of 275
hours.
The Service will no longer specify an authorized number of eagles
that may be incidentally killed or injured on the face of general or
specific permits. Permits will authorize the incidental take of eagles.
This means that permittees will not be considered out of compliance for
exceeding an authorized level of eagle take. General permittees,
however, must remain in compliance with the discovered eagle
provisions, which are different from estimated eagle take. However, to
ensure consistency with our preservation standard, we will estimate the
number of eagles taken for internal tracking and calculating
compensatory mitigation requirements. The Service will track estimated
take that has been authorized for bald eagles and golden eagles within
each eagle management unit (EMU) and local area population (LAP). We
will use the best-available information and tools in making these
calculations, including compiling information on discovered eagle
remains and injured eagles, applying statistical modeling to estimate
eagle take that has been authorized under permits, and comparing
estimated take and provided compensatory mitigation with EMU take
limits and LAP thresholds.
The Service received numerous comments regarding the Service-led
monitoring in the proposed rule. The Service reexamined the potential
of using operations and maintenance staff to conduct concurrent
monitoring instead. Ultimately, we decided to reduce the requirement
for general permits to concurrent monitoring because that will still
provide the information the Service requires while resulting in a
substantial cost savings to the regulated community compared to the
proposed Service-led monitoring. The Service intends to publish
monitoring standards for specific permits that will be designed to
maximize flexibility to the regulated community so permittees can
select the best fatality monitoring method for their project, while
still giving the Service the information needed to ensure we are
authorizing take consistent with our preservation standard. Monitoring
must be conducted in accordance with permit conditions and, if
available, Service guidance. The Service may use administration fees to
validate concurrent monitoring methods and analyze concurrent
monitoring data. Under specific permits, additional monitoring may be
included in the permit conditions, such as for permittees wanting to
reduce mitigation requirements by implementing experimental technology
or post-construction monitoring. The Service will require only third-
party monitoring when warranted (e.g., addressing compliance concerns
or applying controversial approaches).
Compensatory mitigation is required for general permits. General
permits must obtain eagle credits from a Service-approved conservation
bank or in-lieu fee program based on the hazardous volume of the
project (Sec. 22.250(f)(7)(ii)). An eagle credit is the amount of
compensatory mitigation needed to offset the take of an eagle. Service-
approved in-lieu fee programs and conservation banks will be authorized
for particular EMUs, consistent with the methodology approved by the
Service. However, the Service will retain the right to direct funds
from an EMU-scale to an LAP-scale, if the Service identifies concerns
with a particular LAP.
Compensatory mitigation is also required for specific permits for
wind energy. Applicants must include their expected method of
compensatory mitigation in the permit application (Sec.
22.250(f)(7)(i)). The Service will derive the amount of compensatory
mitigation required using a project-specific fatality estimate, based
upon either site-specific data that meets the Service's data collection
standards or the Service's generalized fatality estimation process
(i.e., using the nationwide specific permit priors). These priors are
probability distributions, created using information from a range of
projects under Service review and others described with sufficient
detail in Whitfield (2009), that describe exposure and collision
probability in the Service's collision risk model before any site-
specific information is taken into account. All compensatory mitigation
for golden eagles must be performed at a 1.2:1 (mitigation:take) ratio.
The Service expects Tier 1 specific permits to use a Service-approved
conservation bank or in-lieu fee program to meet mitigation
requirements. Tier 2 specific permit applications may use a Service-
approved conservation bank or in-lieu fee program or submit a plan to
the Service for implementing compensatory mitigation consistent with
Sec. 22.200 and Service-wide mitigation policies. To ensure
consistency with the preservation standard, wind energy projects that
are eligible for general permits but choose to obtain a specific permit
will be required to meet or exceed the general permit mitigation
requirements. Compensatory mitigation is not required for wind turbine
infrastructure that is considered baseline. Baseline, as described in
the 2016 PEIS, refers to infrastructure that existed and was operating
in its current configuration and size prior to September 11, 2009.
The Service retains the maximum 30-year tenure for specific permits
for wind projects. This tenure is appropriate given the amount of time
that wind energy projects typically operate on the landscape. Specific
permits may be requested and authorized for any duration (in 1-year
increments) up to 30
[[Page 9924]]
years. General permits for wind projects are valid for 5 years from the
date of registration. Upon expiration of general permits, project
applicants may reapply and obtain a new 5-year general permit. General
permits for eagle take cannot be amended during each 5-year term.
For both general and specific permits, the Service will 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. General permit conditions will be
nonnegotiable and fixed for the term of the permit. Renewed general
permits will have the most current version of general permit
conditions. Specific permit conditions will use the general permit
conditions as a foundation but may be modified or added to as
appropriate. The appropriate fee tier will be charged based on the
amount of negotiation and modification required.
Permittees must train relevant employees to look for, recognize,
and report eagle take as part of their regular duties. Permit
conditions will specify a minimum frequency required (e.g., once every
3 months) and require that trained employees visually scan for injured
eagles and eagle remains while in the vicinity of project
infrastructure. Permit conditions will direct disposal (e.g., shipped
to National Eagle Repository) and reporting (e.g., summary emailed to
the Service) requirements and timelines.
When three or four eagles of one species are discovered within the
general permit tenure, we require additional conditions. If three
eagles of one species are found, the permittee must notify the Service
and implement an adaptive management plan. If a fourth eagle of that
same species is found, these steps must be repeated, and the project
would no longer qualify for future general permits. The discovered-
eagles provision aids in identifying the rare project eligible for a
general permit but experiencing more take than other projects covered
by general permits. By requiring notification from projects operating
under general permits if three and four eagles are found, we 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 preservation of each eagle species. It is important
to note that found eagle remains at any project represent only the
minimum number of eagles that may have been killed by a project.
Depending on the probability of detection, which is determined by
factors like 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.
We will allow time for project proponents to adjust to these
amended regulations. Project proponents who have submitted a permit
application will have 6 months from the publication date of the final
rule to choose whether to have their application reviewed and
administered under all the provisions of the prior regulations, as
amended in 2016, or all the provisions of the current regulations. Any
application fees paid prior to the publication date of the final rule
may be used to pay for application and administration fees required
under the new regulations. However, the Service will not refund any
application fees paid prior to the publication date of the final rule
because the Service will have already undergone substantial processing
of the application. Project proponents who hold a permit under the 2016
regulations may continue under that permit's conditions until the
permit expires. Permittees that want to modify existing permits to
comply with current regulations may contact their permitting office to
determine if a substantive amendment request or a new application is
most appropriate.
Eagle Incidental Take Permits for Power Lines
Power line entities have expressed interest in obtaining
authorization for eagle incidental take caused by powerline
infrastructure; however, a number of barriers have limited
participation in permitting. We create a general permit option for
power line entities that can comply with standardized conditions. We
also revise the specific permit process to provide as an option for
power line entities that require more customization. The Service
anticipates increased benefits to eagle populations as more power line
entities obtain permits and implement required avoidance, minimization,
and mitigation measures.
All power line entities are eligible for general permits. The
Service recommends a general permit for any power line entity that can
comply with standardized general permit conditions. Specific permits
are available for power line entities that seek customized permit
conditions. We have created multiple tiers within specific permits:
Tier 1, Tier 2, and Tier 2 with reimbursable agreement. Tier 1 specific
permits are for low-complexity applications that require minor
modifications to the general-permit conditions and where the Service's
decision can be categorically excluded under NEPA. The Service
anticipates expediting Tier 1 application processing. Tier 2 specific
permits are for moderately complex applications that can be
categorically excluded from additional NEPA procedural requirements and
need unique or substantive modifications to the general-permit
conditions, such as negotiated compensatory mitigation requirements. In
the rare circumstance a power line application exceeds 275 hours in
review time, the Service will charge the Tier 2 fee and require
applicants, including government agencies, to enter into a reimbursable
agreement with the Service to offset additional Service costs
associated with this added complexity and increased review time
exceeding 275 hours. Exceeding 275 hours is expected only in rare
cases; for example, if the Service's decision cannot be categorically
excluded under NEPA or permit conditions require extensive
negotiations.
The Service will not specify a number of eagles authorized on the
face of general or specific permits. However, the Service will use
annual reports submitted by permittees to estimate the number of eagles
taken for internal tracking and to ensure consistency with our
preservation standard. We will use the best-available information and
tools in making these calculations. The monitoring required for general
permits and most specific permits will be limited to concurrent
monitoring by operations and maintenance personnel while onsite.
Monitoring must be conducted in accordance with permit conditions and,
if available, Service guidance. The Service may use administration fees
to validate concurrent monitoring methods and analyze concurrent
monitoring data. Specific permits may require concurrent monitoring or
additional monitoring.
For both general and specific permits, the Service will require
implementation of all practicable avoidance and minimization measures
to reduce the likelihood of take. To aid in assessing what measures are
practicable to implement, the Service will refer to the Avian Power
Line Interaction Committee (APLIC) suggested practices, including
Suggested Practices for Avian Protection on Power Lines: The State of
the Art in 2006 and Reducing Avian Collisions with Power Lines: The
State
[[Page 9925]]
of the Art in 2012, as well as updated versions or new suggested
practice documents, as they become available. General permits for power
line entities include the conditions listed in Sec. 22.260(d).
Specific permit conditions will use the general permit conditions as a
foundation but may be modified or added to as appropriate. The
appropriate fee tier will be charged based on the amount of negotiation
and modification required.
As part of general-permit conditions, the Service requires power
line entities to develop four strategies: collision response, proactive
retrofit, reactive retrofit, and shooting response, as defined in Sec.
22.260(b). The Service encourages power line entities with an Avian
Protection Plan (APP) to incorporate these strategies into the APP.
However, power line entities may choose to include these four
strategies as part of an APP or as stand-alone strategies.
Collision response strategy describes the process to identify
collision-caused mortality events, evaluate factors, and implement
risk-reduction strategies (see Sec. 22.260(b) and (d)). The Service
expects risk-reduction strategies to be commensurate with future
collision risk. For example, an entity would implement all practicable
risk-reduction strategies for a power-line segment with repeat
mortality events in a high-risk location but for power-line segments
with rare or no known collision events, no action or continued
monitoring may be appropriate.
Proactive retrofit strategy describes how existing infrastructure
will be converted to avian-safe (as defined in Sec. 22.260(b)) within
a set timeline (see Sec. 22.260(b) and (d)). Investor-owned utilities
must have a 50-year proactive retrofit strategy to convert poles in
high-risk eagle areas to avian-safe; therefore, 10 percent of poles in
high-risk eagle areas must be converted during each general-permit 5-
year tenure (Sec. 22.260(d)(2)(i)). High-risk eagle areas occur where
eagles are likely to be present and interact with power line
infrastructure. Conversely, low-risk eagle areas occur where eagles are
not present or unlikely to interact with power line infrastructure,
such as urban areas. Applicants will be responsible for the assessment
of high-risk eagle areas, based on this standard. Other utilities
(publicly owned or cooperative) must have a 75-year proactive retrofit
strategy to convert poles in high-risk eagle areas to avian-safe;
therefore, 7 percent of poles in high-risk eagle areas must be
converted during each permit tenure (Sec. 22.260(d)(2)(ii)). The
Service uses the U.S. Energy Information Administration definitions for
investor-owned, publicly owned, and cooperative utilities. The Service
recognizes that this strategy may take more time than the other
strategies to develop. As a condition of the general permit, general
permittees that do not already have a proactive retrofit strategy will
have 3 years from the effective date of this final rule to develop one.
Reactive retrofit strategy describes how infrastructure will be
retrofit to avian-safe in response to an eagle electrocution or death
(see Sec. 22.260(b) and Sec. 22.260(d)). A total of 13 poles or a
half-mile segment of line must be retrofit. The typical pole selection
is the pole that caused the electrocution and six poles in each
direction. However, if retrofitting other poles in the circuit provides
more benefit to eagles, those poles may be retrofitted by prioritizing
the highest risk poles closest to the electrocution event. Poles
outside of the circuit that caused the electrocution may be counted
towards this retrofit requirement only if all poles in the circuit are
already avian-safe. Converting poles to buried line is an avian-safe
retrofit.
To implement the above strategies, power line entities evaluate the
electrocution or collision incident within 90 days and implement a
response within 1 year of the incident. If extenuating circumstances
occur in implementing the strategies, such as catastrophic weather,
extensive fire, or other event that substantively disrupts power
delivery, the power line entity must do the following: (1) Document and
maintain records of the relevant circumstances, including why
circumstances are extenuating and the plan to implement the delayed
retrofits or collision reduction measures. (2) If implementation of
delayed retrofits or collision reduction measures will extend past the
expiration of the current general permit tenure and the permittee wants
to renew the general permit, notify the Service at least 180 days prior
to permit expiration. (3) If the general permit is renewed, any delayed
retrofits or collision reduction measures must be implemented during
the renewed general permit tenure. Otherwise, the permittee is no
longer eligible for a general permit; however, the permittee may apply
for a specific permit.
Shooting response strategy describes the process the permittee
follows when eagles are found killed or injured near power line
infrastructure to identify if shooting is suspected, communicate with
law enforcement, and identify and implement appropriate shooting-
reduction strategies (see Sec. 22.260(b) and Sec. 22.260(d)). Power
line entities are not responsible for law enforcement of nor liable for
shooting events. At a minimum, power line entities must immediately
contact the Service's Office of Law Enforcement if an eagle is found
killed or injured near power line infrastructure and shooting is
suspected. Where there are repeated shooting events, the power line
entity should develop other strategies, including coordinating with the
relevant land-management agency if the death or injury occurs on
government property. The Service is working with APLIC and others to
develop resources and suggested practices. It is generally assumed that
eagle remains or injured eagles discovered in the vicinity of power
line infrastructure are taken by that power line infrastructure, unless
necropsy or other information proves otherwise.
In addition to the above strategies, power line entities must also
consider eagles in siting and design for new construction and rebuild
projects and ensure that all poles constructed in high-risk areas are
avian-safe, as practicable. This provision is not required if it would
impact human health and safety, require overly burdensome engineering,
or have significant adverse effects on biological, cultural, or
historical resources. Permittees must also train onsite personnel to
scan for and appropriately report discovered eagle remains. Under
specific permits, additional monitoring may be required.
Compensatory mitigation is required for both general permits and
specific permits. General permits must implement a proactive retrofit
strategy (Sec. 22.260(d)(3)). Compensatory mitigation for specific
permits will be determined for each application and included in permit
conditions (Sec. 22.260(e)(2)). The Service will track take that has
been authorized for bald eagles and golden eagles within each eagle
management unit (EMU) and local area population (LAP).
General permits for power line entities are valid for 5 years from
the date of registration. Upon expiration of a general permit, a
project applicant may reapply and obtain a new 5-year general permit.
General permits cannot be amended during each 5-year term. The Service
retains a maximum tenure of 30 years for specific permits for power
line entities. The 30-year tenure is appropriate given the extended
time power line infrastructure is expected to operate on the landscape.
Specific permits may be requested and authorized for any duration (in
1-year increments) up to 30 years.
[[Page 9926]]
Eagle Disturbance Take Permits
More than two-thirds of the eagle-take permits the Service
currently issues are for incidental disturbance by activities conducted
near bald eagle nests. Incidental take by disturbance is different from
incidental take resulting in injury or mortality. To reduce complexity
and improve clarity, this final rule creates a new stand-alone
regulatory section for the incidental take of bald eagles or golden
eagles by disturbance (Sec. 22.280). This regulation revises portions
of the previous disturbance-take regulation (50 CFR 22.80). The Service
retains the existing definition of ``disturb'' (50 CFR 22.6) and
clarifies further what does and does not constitute disturbance take
(Sec. 22.280(b)).
The Service creates general permits for eagle incidental take by
disturbance in Sec. 22.280. The Service uses the standardized approach
to permitting based on the 2007 Activity-Specific Guidelines of the
National Bald Eagle Management Guidelines (hereinafter the
``Guidelines''). 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 DC 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. By creating general permits, the Service will better align
the conservation value gained from permitting with ensuring the
preservation of eagles. We estimate about 85 percent of projects that
cause disturbance will qualify for general permits.
General permits are available for the disturbance of bald eagles
when the disturbance will be a result of one or more of the following
activities: building construction, linear infrastructure construction
and maintenance, alteration of shorelines and water bodies, alteration
of vegetation, motorized recreation, nonmotorized recreation, aircraft
operation, prescribed burn operations, and loud intermittent noises.
General permits cover conducting the activity, as well as pre-
construction work, including geotechnical work. The Service did not
include prescribed-burn operations in the proposed rule because, at the
time, we considered such activities part of alteration of vegetation.
However, after considering public comment on the issue and to ensure
clarity for the regulated community, we included prescribed burning as
a potential disturbance activity in the final regulation. Prescribed
burning includes the footprint of the burn as well as where biproducts
of the burn will be present, such as smoke, ash, or embers. Specific
permits are available for disturbance to bald eagles from activities
that are not eligible for general permits and any activity that may
result in disturbance to golden eagles.
The Service specifies distances in the regulation within which
these activities may cause disturbance. Activities occurring farther
than the distances specified below do not require a permit because they
are unlikely to cause disturbance. Regularly occurring activities that
occur within these distances and pre-date an eagle pair's selection of
a given nest site are assumed tolerated by the eagles, unlikely to
cause disturbance, and do not require a permit.
Tribes communicated concern about the issuance of general permits
for nest disturbance and nest take on lands of Tribal interest. In
response, the Service has restricted eligibility, and general permits
are not available for nest disturbance or nest take for nest structures
located in Indian country, as defined in 18 U.S.C. 1151. The Service
considers the case-by-case review of specific permits appropriate for
nests located in Indian country. This restriction does not apply when
the Tribal government is the applicant for the permit on their own
land.
Hazing--the use of nonlethal methods to disperse eagles away from a
site--does not constitute eagle disturbance unless it is adjacent to an
in-use nest and disrupts eagle breeding activity. The intent of hazing
is to deter eagle depredation (e.g., substantial injury to wildlife or
agriculture) or reduce threats to human or eagle health and safety by
temporarily displacing individual eagles from a location. We currently
recommend nest buffers of 660 feet for bald eagles and 1 mile for
golden eagles.
The Service also considers activities that are 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). Removal of a
foraging area has greater potential to cause disturbance; therefore, we
further clarify here that activities that completely prevent the use of
a foraging area may cause disturbance. A proponent of a project likely
to fully prevent the use of a foraging area should apply for a specific
permit, particularly if the activity will remove all foraging
opportunities within 1 mile of an in-use nest.
The Service will require monitoring eagles under general and
specific disturbance-take permits. Monitoring will typically consist of
collecting information sufficient to determine whether nestlings have
fledged from the nest. Specific permits for disturbance may require
monitoring as long as necessary to determine any impacts to the eagles
for which take is authorized, including up to 3 years after permit
tenure. The Service does not require compensatory mitigation for
general permits. Compensatory mitigation may be required for specific
permits to ensure the preservation of eagles. For example, any
disturbance take of golden eagles that is not part of the Service's
previously established 2009 baseline or disturbance take of bald eagles
that exceeds the LAP authorized-take threshold and is otherwise
unsustainable requires implementation of compensatory mitigation.
Monitoring, and if required, compensatory-mitigation outcomes must be
reported annually.
For both specific and general disturbance permits, we will 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 disturbance take, we retain a 5-
year tenure for specific permits and implement a 1-year tenure for
general permits. These permits are renewable in the rare circumstance
that an activity is likely to cause disturbance to eagles over a long
period of time. In the rare event that the Service's decision to issue
a disturbance specific permit cannot be categorically excluded under
NEPA, a reimbursable agreement may be used to cover costs associated
with the preparation of an environmental analysis and compliance with
the procedural requirements of NEPA.
For both specific and general permits, we require permit conditions
that include implementation of measures to avoid and minimize, to the
extent practicable, the risk that authorized activities may disturb
eagles. To determine practicability, the Service will consider eagle-
population status, the known efficacy of the measure, and the potential
burden on the permittee. For specific permits, applicants will have the
opportunity to provide input into these permit conditions. General-
permit conditions will be standardized by activity type based on
effective
[[Page 9927]]
techniques that have been consistently and successfully used in
specific permits for the past 10 years or more.
The Service uses this rulemaking to clarify that the regulations
for disturbance take of eagles will be used to authorize the incidental
take of eagle nests. Incidental take of nests caused by activities
includes actions that agitate or bother eagles to a degree that
interferes with normal breeding and sheltering behavior. For example,
prescribed burns may result in the disturbance of breeding eagles
through smoke exposure and may disrupt breeding activity by
unintentionally taking nests when a fire moves unexpectedly across
break lines or into tree canopies. Authorization is provided only for
incidental take of nests that occurs after application of all
practicable avoidance and minimization measures. Incidental take
authorization does not include take caused by lack of due diligence or
negligence; for example, failure to identify nest locations prior to
conducting an activity.
To date, incidental take of nests has been a rare issue and,
therefore, is currently most appropriately addressed under specific
permits. However, the Service will regularly review this issue with
other implementation decisions. Applicants requesting incidental take
of nests must demonstrate that incidental nest take cannot be
practicably avoided. The Service does not anticipate authorizing the
incidental take of nests for development activities. In the Service's
experience, developers have sufficient knowledge of the landscape and
control of their activity to make incidental nest take practicably
avoidable during development.
Eagle Nest Take Permits
The Service has revised the regulations for eagle nest take (Sec.
22.300). This final rule creates a general permit for the take of bald
eagle nests in certain circumstances. We retain specific permits for
the take of any golden eagle nest as well as for the take of bald eagle
nests that is not eligible for a general permit. We also clarify that
relocation or obstruction of a nest constitutes nest take.
We retain the four justifications for authorizing eagle nest take,
which are emergency, health and safety, removal from human-engineered
structures, and other purposes. We also add protection of species on
the List of Endangered and Threatened Wildlife (Sec. 17.11) as a
purpose for eagle nest take. General permits are limited to bald eagle
nest take for the purposes of emergencies, protection of health and
safety, and protection of human-engineered structures. In Alaska only,
bald eagle nests may also be taken for other purposes. 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 for these purposes.
We will continue to require specific permits for any take of golden
eagle nests because these situations have unique conditions that
require site-specific permitting and because of the population status
of golden eagles. We will also continue to require a specific permit
for take of bald eagle nests under the ``other purposes'' in the lower
48 States because the Service must ensure that those permits provide a
net benefit to eagles. The net-benefit determination depends on the
circumstances of the purpose requiring nest take. In Alaska, general
permits are appropriate because the Service has already developed and
implemented standard conditions there and Alaska has a robust bald
eagle population.
In this rulemaking, the Service adds 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 (Sec.
17.11) under the Endangered Species Act of 1973, as amended (16 U.S.C.
1531-1544). This activity would require a specific permit issued only
to a Federal, State, or Tribal agency responsible for implementing
actions for the protection of the species of concern. With expanding
bald eagle populations, the Service anticipates an increase in
situations where bald eagle management may be a necessary part of
implementing recovery plans.
The Service will not require monitoring for general permits. After
more than a decade of annual monitoring reports, we expect a 1-year
permit tenure to better capture the necessary information to meet the
preservation standard than requiring monitoring. In addition, a 1-year
permit term without required monitoring is less burdensome to the
applicant. Specific permits may require monitoring--for example, a
permittee may need to monitor the area near where a nest was removed
for one or more seasons to determine whether the affected eagles
relocate and successfully fledge young. To be conservative, we will
assume that each nest take authorized by the general permit will result
in a loss of breeding productivity for one breeding season. We may
change this practice in the future if data warrants a change in our
assumption.
The Service will not require compensatory mitigation for nest-take
general permits, unless it is for other purposes in Alaska where
compensatory mitigation is required to achieve the associated net
benefit. General permits for nest take are limited to bald eagle nests
in situations that are typically hazardous to eagles or where eagles
benefit from resolving the situation requiring the permit. Compensatory
mitigation is also not generally warranted for nest-take general
permits because of the improving population status of bald eagles.
Compensatory mitigation may be required for specific permits. In
determining compensatory mitigation, the Service will consider the
purpose for the nest take, whether nest take reduces risk to eagles,
and the population status of the species. A specific-permit applicant
may meet this requirement by obtaining the Service-approved number 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.
For both specific and general nest take permits, we will require
that applicants provide the coordinates of the nest(s) for which they
are requesting take authorization. Precise location information is
necessary for both the Service staff who conduct eagle-population
management and law enforcement. The permit application may also require
supporting documentation for certain types of requests (for example, an
arborist report in the case of hazard-tree removal).
For nest take, we retain the 5-year limit for specific permits and
implement a 1-year limit for general permits. These permits are
renewable. The Service considered providing for a longer general-permit
tenure; however, doing so would require that the Service require
further monitoring from all general permittees that was inconsistent
with the purpose of general permits. We have crafted these reduced
tenure and permit-per-nest requirements to better ensure general
permits for nest take are compatible with the preservation of eagles.
Permit conditions will include the applicable regional-breeding-
season start date. Additionally, the general permit will authorize the
removal of a specific nest. General permits may authorize bald eagle
nest removal from the nesting substrate at the location requested and
the location of any subsequent nesting attempts by the eagle pair
within one-half mile of the location requested for the duration of the
permit if the subsequent nest re-
[[Page 9928]]
creates the emergency, safety, or functional hazard of the original
nest. Take of an additional eagle nest more than one-half mile away
requires an additional permit.
Changes to Definitions and Procedures
As part of this rulemaking, we have narrowed the definition of
``eagle nest'' to exclude nest structures on failed nesting substrate.
Previously, we defined ``eagle nest'' to mean any assemblage of
materials built, maintained, or used by bald eagles or golden eagles
for the purpose of reproduction. We have added a 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. This
definition of ``eagle nest'' does not allow for modification of
alternate (unused) nest substrate to a degree that prevents future
breeding activity. These activities will continue to constitute nest
take.
We revise 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. A
permit is not necessary for individuals and organizations to destroy
and remove materials that formerly held the designation of an eagle
nest but no longer meet the definition. However, individuals and
organizations may not collect these materials nor possess them 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.
We also have revised 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 revision of the definition for ``eagle nest,'' this
change ensures that 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 will not hatch. Under previous definitions,
permittees have been prevented from removing what is otherwise an
alternate nest because of the presence of nonviable eggs outside of
breeding season. In implementing the revised definition, the Service
presumes that eggs are viable unless the applicant provides evidence to
document otherwise (e.g., absence of adults for several days, presence
of eggs out of breeding season).
For clarity, we add 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 set forth in this
document as well as the more typical individual or specific permits
(see 16 U.S.C. 668a).
We clarify 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 Sec.
22.80(e)(8) but applies to all of the regulations in part 22 and is
therefore better located in Sec. 22.12. We also have updated the
definition of ``eagle management unit'' and include a definition of
``incidental take'' to improve transparency to the public and general-
permit applicants.
Along with this final rule, the Service will also implement the
three following changes to our implementation of incidental-take
permits for eagles. We will apply the baseline take for golden eagles
established in the 2009 EA nationwide. Currently, baseline take for
golden eagles is limited to only west of the 100th meridian. In the
2016 PEIS, the Service conservatively assumed that all authorized take
of golden eagles east of the 100th meridian should require compensatory
mitigation regardless of whether the authorized take was occurring
prior to September 11, 2009, and was considered part of the baseline.
However, recent information on the population status of golden eagles
in the Eastern United States demonstrates that this conservative
restriction is not necessary to ensure that take of golden eagles is
compatible with the preservation standard, so we are eliminating this
unnecessary restriction.
We will also update the number of bald eagles debited from EMU take
limits and LAP thresholds when authorizing nest disturbance, based on
new information. Before this change, the Service assumed a loss of
productivity equivalent to 1.33 bald eagles per year for each
authorized nest disturbance in the United States, except in the
Southwest, where we assumed a loss of 0.95 bald eagles per year. Based
on recent Service analysis of new information, we will update the
nationwide debit from 1.33 to a value of 0.26 bald eagles per year.
However, because of low sample sizes in our analysis, we are not
updating the debit in the Southwest, which will remain at 0.95 bald
eagles per year.
Finally, we will remove the 10 percent threshold for unauthorized
mortality in a local area population (LAP) that was introduced with the
2016 rulemaking. We have since concluded that georeferenced data on
unauthorized eagle mortalities are sparse and biased, making meaningful
evaluation and application of unauthorized take at the LAP scale
difficult or impossible.
Changes to Fees
The Service charges application fees to cover the costs of
administering regulations and permits. This includes paying for staff
to: provide technical assistance and guide applicants through the
permitting process, review application information, assess the
biological impact and environmental effects of the proposed activity,
and evaluate whether the applicant meets eligibility and issuance
criteria. For specific permits, these actions are primarily conducted
before permit issuance. For general permits, these actions will be
conducted as part of an auditing process to ensure applicants are
correctly interpreting eligibility criteria and complying with permit
conditions and requirements. Fees are also used to pay for developing
and maintaining an online permit-registration system and database.
General-permit fees include an administration fee. In response to
public comments, the Service adjusted the administration fee to reflect
the elimination of the proposed Service-led monitoring. Instead, the
administration fee will be used to maintain and ground-truth the permit
program to ensure it is compatible with the preservation of eagles,
including to: (1) better understand eagle population dynamics,
including the risk to eagles from authorized activities; (2) better
understand mitigation outcomes, including researching and validating
avoidance, minimization, and compensatory mitigation measures; (3)
address and improve various components of the eagle permitting program,
including gathering and analyzing demographic data, GPS tagging and
tracking eagles for programmatic monitoring, and researching and
validating monitoring
[[Page 9929]]
measures. Some portion of the administration fees may also be used, as
necessary, to fund Service staff time to manage and implement the
general permit administration fees. Specific-permit fees also include
an administration fee. We will use the administration fee for specific
permits for the same purpose as application fees--to fund staff for the
administration of specific permits, including environmental review and
support of the online permit system and database.
The permit fee and administration fee must be paid at the time of
application. We consider permit renewals to be permit applications for
fee purposes. General permits cannot be amended. However, specific
permits may be amended during their tenure. There are three types of
amendments. Administrative amendments are administrative changes,
including name and address information. Consistent with Sec.
13.11(d)(5), there is no fee charged for administrative amendments.
Substantive amendments are those that pertain to the purpose and
conditions of the permit. Consistent with Sec. 13.11(d)(5), we will
charge an amendment fee. The Service will charge an amendment fee and
an administration fee for permittee-requested substantive amendments
that require new analysis, such as modifications that result in re-
estimating take, re-evaluating compensatory mitigation requirements, or
requiring additional environmental review to comply with procedural
requirements under NEPA (Sec. 22.200(e)).
For general permits, the Service adopts a scaled administration-fee
structure to accommodate different sizes of projects. For power lines,
general-permit administration fees are separated into Tier 1 for non-
investor-owned and Tier 2 for investor-owned. The Service uses the U.S.
Energy Information Administration's definition of investor-owned
utilities as ``large electric distributors that issue stock owned by
shareholders'' (<a href="https://www.eia.gov/">https://www.eia.gov/</a>). For wind energy, general-permit
administration fees are separated into Tier 1 for distributed and
community wind projects and Tier 2 for utility wind projects. We use
the Service's Land-Based Wind Energy Guidelines definition of these
terms (<a href="https://www.fws.gov">https://www.fws.gov</a>). The Service may revise the interpretation
of these terms in future rulemakings.
The Service retains the existing tiers of commercial and
noncommercial for disturbance and nest-take permits. Applications are
commercial, unless (1) an individual applies using section A of the
application form for activities on that individual's privately owned
property for individual purposes, or (2) a government or not-for-profit
entity applies for take associated with public property using section B
of the application form and includes documentation demonstrating its
qualifying status (e.g., documentation that the entity is a government
agency or that the entity is a current, recognized nonprofit
organization by the Internal Revenue Service (IRS) as described in
section 501(c)(3)).
For specific permits, the Service estimates a wide range of
potential permit costs. Costs would vary based on factors like the
complexity of the application or the required environmental review. To
accommodate this wide range, the Service includes a tiered fee
structure in Sec. 13.11(d) and describes criteria for each tier in
Sec. 22.200(c)(2)(vii) and below. For incidental take, the Service
will charge a Tier 1 application fee when specific-permit conditions
require negligible modification from the standardized general-permit
conditions, including the use of a Service-approved in-lieu fee program
or conservation bank for compensatory mitigation. Tier 1 permits would
require Service staff to review and evaluate the application and
coordinate internally prior to permit issuance. We do not anticipate
requiring additional environmental compliance review under NEPA for
Tier 1 specific permits beyond documenting that the action is within
the scope of the existing 2016 PEIS and the 2023 EA issued with this
rulemaking. For wind energy or other applications that require a
fatality estimate, Service estimation of expected take must require
minimal data manipulation; for example, the applicant collects site-
specific data according to Service standards or adopts the Service's
generalized fatality estimate (i.e., using the nationwide specific
permit priors).
The Service will assess a Tier 2 fee for specific permits of
moderate to high complexity that cannot or do not wish to meet the
requirements for Tier 1. Because Tier 2 applications are more complex,
more staff hours, including higher graded staff, are required to review
application information, assess biological impacts and environmental
effects of the proposed activity, and determine whether the application
meets eligibility and issuance criteria. These projects may include
more complex technical assistance, coordination with other programs or
agencies, and documenting NEPA compliance. We estimate the amount of
staff time to complete these tasks for moderately complex projects will
be 250 to 275 hours per permit based on processing times for similarly
complex permits issued by the Service.
We retain the provision in Sec. 13.11(d)(2) that allows an
applicant to request, and the Service to support, issuance of one
consolidated permit when more than one type of permit is required for
an activity and those permits are issued by the same office. When the
Service supports consolidation, a single specific permit may authorize
multiple activities, for example power lines with nest take or wind
energy with power lines. The Service will develop guidance for
consolidating permits. Because of the automated nature of general
permits that have avoidance, minimization, and compensatory mitigation
requirements developed for each activity, a project proponent would
have to obtain the relevant individual general permits. Therefore,
consolidating general permits is not allowed.
The Service expects specific-permit applicants to diligently pursue
obtaining a permit after applying. We will consider a permit
application abandoned or withdrawn if an applicant does not respond to
requests for information or engage in good-faith negotiations. Once we
consider an application abandoned or withdrawn, the applicant must
submit a new application, including fees, to obtain take coverage for
the activity.
Once effective, under this final rule the Service will not charge
an application fee to government entities, consistent with other
permits issued in accordance with Sec. 13.11(d)(3); the Service will
charge an administration fee to any Federal, Tribal, State, or local
government agency for permits issued under part 22 subpart E. The
Service may also require government agencies to enter into a
reimbursable agreement. This fee is necessary to ensure the permitting
program remains consistent with the preservation of eagles.
Administrative Changes
The Service has made the following administrative changes to the
organizational structure of our eagle-take-authorization regulations to
improve clarity. To reduce confusion, we redesignate the current
subpart C ``Specific Eagle Permit Provisions'' as ``Eagle Possession
Permit Provisions.'' We create a new subpart E pertaining to ``Take of
Eagles for Other Interests.'' This subpart now houses regulations that
authorize permits for the taking of eagles for the protection of other
interests in any particular locality.
We redesignate regulations for permits to take golden eagle nests
for
[[Page 9930]]
resource development and recovery operations from Sec. 22.75 to
subpart E, at Sec. 22.325. We update the section heading as ``Golden
eagle nest take for resource recovery operations'' to clarify that this
regulation applies to resource development or recovery operations as
authorized by 16 U.S.C. 668a. The purpose of this regulation is to
authorize the removal of golden eagle nests that are physically in the
way of resource recovery operations, such as on the cliff wall of a
mine. We do not change the regulatory requirements that any take
authorized must be compatible with the preservation of eagles (newly
designated Sec. 22.325(c)) and cannot be reasonably avoided (newly
designated Sec. 22.325(c)(1)). The take of nests in proximity to
resource development and recovery operations to minimize the risk of
disturbance, injury, or mortality to eagles is authorized under Sec.
22.300. We also redesignate the current regulations at Sec. 22.90
pertaining to permits for bald eagle take exempted under the Endangered
Species Act to Sec. 22.400 in subpart E.
Sequencing of General Permits Registration Availability
To implement the general permits authorized under this rulemaking,
the Service is developing an online general-permit registration system.
After the effective date of this regulation, April 12, 2024, the
Service will implement the general permit registration system in stages
to ensure the technology is working appropriately. General permit
registration for incidental take of eagles by wind energy projects and
by power lines is anticipated to be available starting on May 6, 2024.
General permit registration for disturbance of eagles and take of eagle
nests is anticipated to be available starting on July 8, 2024. In the
event these availability dates change, the Service will provide updated
dates on <a href="https://www.fws.gov/regulations/eagle">https://www.fws.gov/regulations/eagle</a> and the ePermits website
<a href="https://epermits.fws.gov">https://epermits.fws.gov</a>. Those interested in applying for a wind
energy or power line general permit between the effective date of the
rule and the availability of the registration system may apply by: (1)
completing application form 3-200-71, including sections B-D and the
general permit questions in section E and (2) emailing the complete,
signed form to <a href="/cdn-cgi/l/email-protection#cfa2a6a8bdaebba0bdb6ada6bdabbfaabda2a6bbbc8fa9b8bce1a8a0b9"><span class="__cf_email__" data-cfemail="bbd6d2dcc9dacfd4c9c2d9d2c9dfcbdec9d6d2cfc8fbddccc895dcd4cd">[email protected]</span></a>. The Service will reply to
the email with the general permit conditions. Entities must comply with
and are authorized by the general permit conditions until the
registration system is available. Once available, entities will have 10
business days to register for a general permit using the registration
system, including paying fees. Failure to register, once available,
voids the prior coverage granted through the above process.
For those interested in applying for disturbance or nest take
permits, the Service will continue to use specific permits for the
remainder of the 2024 nesting season. For activities starting on or
after September 1, 2024, general permits registration is expected to be
available. However, in the event it is not, the procedure described in
the paragraph above will be used starting July 8th until the
registration system is available.
Compliance With the Endangered Species Act
The general permits addressed in the regulations may not be used
for an activity if implementing the requirements of the general permit
may affect ESA-listed species or species proposed for listing or
designated or proposed critical habitat (e.g., burying a cable to avoid
impacts to eagles would result in effects to an ESA-listed snake or
plant). In those cases, the proponent should apply for a specific
permit and, if appropriate, the Service will conduct an intra-service
section 7 consultation on its issuance of the eagle incidental take
permit. That said, since eagle incidental take permits would authorize
only the incidental take of eagles and not the underlying activity,
except as it relates to implementing the conditions of the permit, the
Service's issuance of an eagle incidental take permit would not serve
as a nexus for ESA section 7 purposes for the underlying activity.
Response to Public Comments
The Service received 203 unique letters, which contained 1,649
individual substantive comments, on the proposed rule. The following
sections contain a summary of the substantive public comments we
received on the proposed rule and our responses. Topics are listed in
alphabetical order. Where appropriate, we explain why we did or did not
incorporate the changes suggested by the commenters into this final
rule. Due to the high number of comments, this summary presents major
themes occurring throughout the comments. Not included are the many
comments providing general support for provisions of the rulemaking.
Likewise, we do not include summaries of any comments providing general
opposition, unless they contain suggestions for improvement. We also do
not respond to comments that we considered to be outside the scope of
this rulemaking.
Audits
Issue. Commenters requested more information regarding the proposed
audit program, including details about the auditing process, required
documentation, and expectations for audited entities. Some comments
expressed concerns with the estimated annual percentage of audited
projects, with many indicating a desire for more projects to be audited
annually.
Response. We are developing internal auditing procedures and
external answers to frequently asked questions on audits. Limited
desktop audits and onsite inspections will be conducted to determine if
a project meets eligibility criteria and whether the permittee is
complying with the regulations and permit conditions. In general,
Service staff will conduct an audit following similar procedures to how
staff currently review a permit application and administer permits.
Audits may include reviewing application materials for completeness and
general-permit eligibility. We will verify required reports were
submitted and review the reports. Any required records, plans, or other
documents will be requested of the permittee and reviewed. If there is
a compliance concern, the applicant will be given the opportunity to
submit additional information to address the concern. If, during an
audit, the Service determines that the permittee is not eligible for a
general permit or is out of compliance with general permit conditions,
we will communicate to the permittee options for coming into
compliance.
The Service has estimated the number of audits that can be
conducted each year based on the expected average time to conduct an
audit and the fee money available to fund staff to conduct audits.
Staff will conduct as many audits as possible with the available funds.
There are many uncertainties right now as to how much staff time is
needed to conduct an audit. We estimate approximately 1 percent of
general permits will be audited each year. If we find general
permittees are providing complete information, audits may go quickly
and more projects can be audited. We will regularly assess the cost-
per-audit and the percentage of projects audited to adjust the fee
structure accordingly.
Avoidance and Minimization Measures
Issue. Several commenters expressed concern with a lack of
specificity in the regulation regarding avoidance and minimization
measures.
Response. The role of regulation is to establish performance
standards,
[[Page 9931]]
whereas the role of permit conditions is to provide specificity on how
those performance standards may be met by each permittee. Overly
prescriptive regulations are difficult to keep current and can limit
innovation. Instead, we will provide permit conditions and other
documents to communicate the Service's recommendations on how to meet
regulatory requirements. Avoidance and minimization requirements for
general permits are based on the most commonly applied and effective
measures learned by the Service from more than a decade of permitting.
Eligibility criteria and the performance standards established in the
regulation conditions can be revised through rulemaking. As information
and technology change, the Service may update our recommendations and
expectations on how eligibility criteria and conditions may be met.
Issue. Some commenters expressed the desire to see permit
conditions that incorporate the use of experimental or emerging
technology to avoid and minimize incidental take by wind energy
projects, including Identiflight Bird Detection System, painting one
turbine blade black, or seasonal restrictions on wind turbine
operation.
Response. The Service supports science and technology that
increases safe eagle passage through wind energy facilities. There is
no restriction on permittees implementing these technologies, which can
be used to meet the performance standards of the regulation. However,
the efficacy of these technologies and the details surrounding their
implementation have not been sufficiently studied to warrant
prescriptive requirements in these regulations at this time. The
Service continues to stay abreast of scientific developments and may
include these types of technologies in future rulemakings if evidence
demonstrates their effectiveness. Specific permit applicants may
request that the Service consider the permittee's use of emerging
technologies when the Service estimates fatality.
Issue. We received requests to include perch discouragers as a
standard avoidance and minimization measure for power line poles.
Response. We did not require perch discouragers as a minimization
measure for power line general permits because the effectiveness is
situation dependent. We encourage the use of perch deterrents where
they may be effective. However, APLIC has moved away from broad
implementation of perch discouragers because devices installed to
prevent perching may provide a substrate to secure nest material, and,
in some cases, may increase electrocution risk (APLIC 2023). Prather
and Messmer (2010) tested several types of perch discouragers and found
no difference in perching on poles with or without discouragers.
However, we support the use of perch discouragers in situations where
it is the best or only option for reducing electrocution of eagles.
Issue. Multiple commenters requested that we create ``no go zones''
or similar restrictions prohibiting the installation of wind turbines
in the most important areas for eagles.
Response. The Service did not create ``no go zones'' because doing
so is outside the scope of the Eagle Act. The Service's authority under
the Eagle Act allows the regulation of incidental take of bald eagles
and golden eagles. Our regulatory authority does not extend beyond that
mandate to prohibit the installation of wind turbines or other
infrastructure. The Eagle Act ensures the preservation of our two eagle
species by protecting the survival and breeding productivity of
individual birds but does not directly mandate protection of eagle
habitat. Consequently, the Eagle Act does not give the Service
authority to prohibit certain types of land use, including development.
Instead, it allows us to influence certain types of land use to reduce
the risk of take of bald eagles and golden eagles, including
disturbance of breeding eagles, and to require avoidance, minimization,
and compensatory mitigation from individuals and entities unable to
avoid taking these species. These features of our regulatory process
are common to both existing regulations and these new regulations.
Climate Change
Issue. The Service received comments regarding the implications of
climate change for this rulemaking and the inclusion of climate change
in the EA.
Response. The Service recognizes the threats that climate change
poses to eagles as well as other wildlife. The Service supports all
actions that address climate change, including renewable energy
development. The Service believes that this rule will help facilitate
the development of renewable energy projects by revising the current
permitting approach for eagle incidental take. The permit framework
developed for renewable projects creates clear expectations for
projects to achieve compliance, in some cases with no direct
interaction with the Service (e.g., general permits). The Service is
balancing the need for regulatory certainty, eagle preservation, and
the need for renewable energy development to combat climate change.
While we intend the changes to the eagle-permit regulations to
encourage more projects to apply for a permit, we expect that this
rulemaking will have no impact on the number of future renewable energy
projects on the landscape and, thus, no impact on the trajectory of
climate change.
Compensatory Mitigation
Issue. The Service received numerous comments related to
compensatory mitigation requirements, including advocating for
different methods to achieve these requirements, including lead
abatement, carcass removal from roads, and habitat enhancement.
Response. The Service is actively working on reviewing and
approving other forms of mitigation and encourages potential mitigation
providers to submit their proposals. As part of this rule, we created a
new regulation specific to compensatory mitigation to more clearly
signal requirements to the public. Quantifying the benefits of various
compensatory mitigation measures and developing standards for their
application in permitting is complex. To date, the Service has
authorized power pole retrofits and lead abatement as compensatory
mitigation measures. The Service is actively developing other
compensatory mitigation methods, such as roadside carcass removal, that
will decrease eagle mortality or increase eagle productivity. The
Service encourages interested mitigation providers to contact the
Service with ideas on compensatory mitigation methods. The Service
agrees that it is important to develop compensatory mitigation methods
that offset different sources of mortality and have a wider range of
mitigation providers across the country. We will continue to engage
stakeholders and develop additional guidance and standards for
approving mitigation providers. This will include gathering information
to address mitigation measure effectiveness and uncertainty and
establishing appropriate assurances for the durability of mitigation
measures.
Issue. Some commenters expressed concerns with scaling compensatory
mitigation at the Eagle-Management-Unit (EMU) level rather than the
local-area-population (LAP) level.
Response. The final rule retains the requirement to site
compensatory mitigation within the same EMU where the take is
authorized. Authorized take may affect individual eagles that are both
resident and migratory. Banding records have demonstrated eagle
movements within EMUs beyond individual LAPs. Thus, requiring that
[[Page 9932]]
compensatory mitigation occur at small scales (e.g., the LAP scale) may
be limiting the benefits of compensatory mitigation unnecessarily and
doing so at an inappropriate ecological scale. Additionally, limiting
compensatory mitigation options to the LAP scale is currently not
practicable until there are sufficient mitigation providers capable of
supporting every LAP. When compensatory mitigation is required by the
Service to address an LAP concern, the regulation prioritizes
implementing compensatory mitigation in the LAP where the impacts
occurred.
Issue. Several commenters expressed concerns with requiring
compensatory mitigation for bald eagles and indicated this requirement
is not necessary to meet the preservation standard.
Response. The general-permit compensatory mitigation requirement
includes a small portion for bald eagles. This is necessary to ensure
that the general-permit program is consistent with the preservation
standard established by the Eagle Act and implementing regulations.
General permits do not provide for the project-specific review prior to
issuance; therefore, possible LAP effects must be addressed after
issuance. One tool is to require a small amount of compensatory
mitigation from general permittees that the Service can direct to areas
where LAP thresholds are at risk of being exceeded. The rate of this
extra compensatory mitigation is based on bald eagle take predictions,
but the mitigation amounts provided can be used for either species of
eagle. If an applicant does not want to pay this extra mitigation cost,
which the Service expects to be relatively small for each project, the
applicant may apply for a specific permit where project-specific review
would determine mitigation requirements.
Issue. Several commenters proposed a conservation fund or
conservation fee in addition to any required compensatory mitigation.
Response. The Service has numerous authorities that allow it to
charge an entity permit fees and enter into reimbursable agreements.
Funds collected through permit fees and reimbursable agreements are
used to defer the cost of administering the permit program, including,
but not limited to, salary and other staff-related costs and costs to
ensure that issuance of permits is compatible with the preservation of
eagles. Based on suggestions provided in public comments and as
consistent with the use of collected fees, the Service will use these
fees to fund analysis to: (1) better understand eagle population
dynamics, including the risk to eagles from authorized activities; (2)
better understand mitigation outcomes, including researching and
validating avoidance, minimization, and compensatory mitigation
measures; and (3) address and improve various components of the eagle
permitting program, including gathering and analyzing demographic data,
GPS tagging and tracking eagles for programmatic monitoring, and
researching and validating monitoring measures. The Service does not
have express statutory authority under the Eagle Act to require
contribution into a conservation fund beyond these purposes, nor the
specific authority to direct such funds if they were collected.
Changes to Fees
Issue. Multiple commenters suggested that the fees for general
permits were too high and would disincentivize smaller entities from
participating.
Response. In the final rule, the Service has adopted a scaled fee
approach for both general permits and specific permits. For power
lines, general-permit administration fees are separated into Tier 1 for
non-investor-owned utilities and Tier 2 for investor-owned utilities
(using U.S. Energy Information Administration definitions). For wind
energy, general-permit administration fees are separated into Tier 1
distributed and community scale and Tier 2 utility scale, using the
Service's Land-Based Wind Energy Guidelines definitions. For specific
permits, the Service created a tiered fee structure for wind energy and
power line projects consisting of three tiers: Tier 1, Tier 2, and Tier
2 with reimbursable agreement, where a Tier 1 fee is charged for
standard applications and a Tier 2 fee is charged for complex
applications. A reimbursable agreement will be used when processing
time exceeds 275 staff hours. The Service retains the current non-
commercial and commercial tiering for disturbance and nest take
permits.
Coordination With States
Issue. Several commenters stressed the need for the Service to
coordinate with other Federal and State agencies on the issuance of
general and specific permits.
Response. The Service values coordination with Tribal, State, and
Federal partners, and we intend to continue to coordinate and share
information about permits issued. For general permits, we will
regularly be compiling and distributing information on general permits
issued. We have updated the regulation to reflect what information will
be made readily available to partners and the public. For specific
permits, the Service will continue to consult States, Tribes, and other
Federal agencies as part of our normal permitting procedures. In
addition, Department of the Interior disclosure policies (68 FR 52610,
Sept. 4, 2003) under the Privacy Act also provide for routine
disclosures to Federal, Tribal, State, local, or foreign agencies,
including to exchange information on permits granted or denied, to
ensure compliance with all applicable permitting requirements and
obtain advice relevant to approving or denying a permit.
Issue. Some commenters expressed concern about the locations of
eagle nests being shared with the public, while others stated that some
States are prohibited from disclosing nest locations and that the
Service should not require that information on permit applications.
Response. The Service requires precise location information on nest
locations to properly analyze effects to eagles, including LAP effects,
as well as for law enforcement purposes. The Service will take all
available measures to protect eagles and their nest locations. The
Service will continue to coordinate with State wildlife agencies on
these matters.
Issue. We received comments that expressed concerns with the take
of eagles in States where either the bald eagle, golden eagle, or both
are listed as threatened or endangered at the State level. These
comments requested that the Service provide details regarding
coordination with the States with respect to the distribution of
authorized take across individual EMUs, as well as in relation to the
quantification of LAP thresholds.
Response. Federal issuance of a permit does not supersede Tribal or
State protections of a species. Tribes, States, and other Federal
agencies are not required to authorize incidental take of bald eagles
or golden eagles, even if a permittee has obtained a Service general or
specific permit. It is the responsibility of the permittee to ensure
they are in compliance with all applicable laws and regulations. To
support the protection of local populations in this rulemaking, the
Service has retained the existing preservation standard that requires
the Service to determine that permits we issue are consistent with
eagle preservation at the EMU and LAP scales. Under general permits,
the Service will not analyze cumulative take at the LAP scale prior to
general permit issuance. However, the Service will
[[Page 9933]]
review general permits issued and analyze cumulative take at the LAP
scale if an area of concern is identified. States are encouraged to
review the Service's issued permits and submit any information to the
Service that might assist with assessing impacts to LAPs. If the
Service is concerned about the status of any LAP, we can either (a)
direct compensatory mitigation to areas of concern, or (b) suspend the
general-permit program in whole or in part.
Definitions
Issue. The Service received comments on the definition of ``in-use
nest,'' particularly regarding determining egg viability and nests that
are considered under construction.
Response. The purpose of this change is to address the increasing
frequency of instances of bald eagle nest activity outside of the
breeding season, including non-viable eggs in nests outside of breeding
season and nests being maintained outside of breeding season. The
Service agrees with the expressed difficulty of determining if an egg
is viable in the field. Eggs should be assumed viable, unless evidence
proves otherwise. Evidence like the absence of adults for several days
or presence of eggs out of breeding season should be used to assess the
likelihood of an egg being viable. We removed the protections for nests
under construction or under maintenance for bald eagles. The previous
definitions were part of a conservative approach for the recovering
bald eagle that is no longer warranted. These changes are appropriate
and improve consistency between the Eagle Act nest protections with the
Migratory Bird Treaty Act nest protections.
EA Alternatives
Issue. The Service should reconsider Alternative 2 in the draft EA.
Response. The Service did reconsider Alternative 2 and again
concludes it has a high risk of not meeting our preservation standard
if implemented. Under Alternative 2, the regulations would be revised
to include a general permit for land-based wind energy facilities only,
with eligibility based on a project's distance from eagle nests and
compensatory mitigation requirements in the form of a flat, per-project
fee for mitigation. Adopting Alternative 2 is problematic because
neither the Service nor project proponents know where all eagle nests
on the landscape are located. This lack of data reduces our ability to
reliably determine whether a specific wind project is eligible for a
general permit. This situation also adds uncertainty for projects as
well as to any assessment the Service might perform. Considering this,
we expect Alternative 2 would come with the highest risk of
inconsistency with our preservation standard compared to the other
alternatives.
The Service concludes that the general-permit program described
under Alternatives 3 and 4 will best accomplish the dual goals of
increasing participation and increasing conservation for eagles, where
more than 80 percent of existing turbines on the landscape are eligible
for general permits (and the associated benefits of those general
permits) and where paths to a streamlined issuance of specific permits
are described.
The Service also concludes that Alternative 2's flat fee for
mitigation and monitoring may disincentivize smaller projects (e.g.,
tens of turbines) from applying for take permits compared to larger
projects (e.g., hundreds of turbines). The Service estimates that an
average wind project qualifying for a general permit will pay $312,000
in compensatory mitigation under Alternative 2. This is nearly ten
times the estimated compensatory mitigation cost of $37,200 for
Alternatives 3 and 4. Although industry trends may be toward new
construction of larger facilities and consolidated ownership, wind
energy facilities are long lived (usually 30 years or more). Older
facilities will continue to operate and must be considered when
estimating participation in eagle incidental-take permitting and when
considering financial impacts to permittees under Alternative 2
(Section 5.4.5.1 of the Environmental Assessment). Although risk to
eagles from small facilities that are eligible for general permits may
be relatively low, under Alternative 2, those businesses would be more
susceptible to future enforcement actions and associated enforcement
costs in the event of an eagle take if they remain unpermitted due to
the relatively high cost of flat fees.
EA Economic Analysis
Issue. The Service received several comments on our estimated
mitigation costs, with some commenters suggesting our estimates were
too high while others suggested they were too low.
Response. Because compensatory mitigation is provided either by the
permittee or a third party, costs can vary widely. We acknowledge that
the costs estimated for compensatory mitigation under all alternatives
in the FEA are estimates and are likely to vary, perhaps substantially,
across all permitted projects based on the mitigation method selected,
the in-lieu fee program or conservation bank selected, and other
details. These details are difficult to account for in an economic
analysis, but we considered them as accurately as possible based on
current data and our estimated projections. In the FEA, the Service
estimates compensatory mitigation for an average wind energy general
permit to be $37,200. These estimates are based solely on estimates of
compensatory-mitigation costs using power pole retrofits, which are the
only cost estimates the Service currently has available.
Issue. The Service received comments specifically on our cost
estimates for retrofitting power poles under the power line regulation.
Response. We updated the FEA to reflect our assumption that the
proactive retrofit requirements associated with this rule are not
expected to result in additional costs to power line entities. As
stated in section 5.6.5 of the FEA, the Service assumes that power line
entities most likely to apply for a permit are entities that have a
risk of taking eagles and are already retrofitting power poles, thus
already meeting this requirement.
Eligibility--Wind Energy General Permit
Issue. Many commenters expressed concerns with the general-permit
eligibility for wind energy, specifically regarding the distance from
bald eagle nests.
Response. The Service acknowledges the uncertainty that is created
if bald eagles initiate nesting near a project with a wind energy
general permit. Therefore, we revised eligibility criteria (Sec.
22.250(c)) to provide that a general permittee remains eligible to
renew their permit, even if the Service revises eagle relative
abundance thresholds or eagles construct nests within the species-
specific setback distances, as long as the project does not discover
the remains of four eagles of the same species within a 5-year permit
tenure.
Issue. Multiple comments requested that the Service create a
general permit option for existing wind energy projects (as defined in
Sec. 22.250(b)) occurring within the specific permit zone.
Response. The Service acknowledges the unique challenges of
existing projects being subject to new regulations. However, after
extensive review, the Service could not identify a set of general-
permit eligibility criteria that a project could self-certify without
adding extensive complexity or uncertainty. Therefore, the Service
retained and clarified the eligibility criterion that any existing
project that does not meet general permit eligibility criteria can
apply for a specific permit (Sec. 22.200(b)(7) while requesting a
letter
[[Page 9934]]
of authorization to obtain a general permit (Sec. 22.250(c)).
The Service will review all information provided in the
application, including any site-specific, pre-construction or post-
construction data. If we determine that the take rates at the existing
project are likely to be consistent with or lower than eagle take rates
expected at similar-sized wind facilities that qualify for general
permits, the Service will issue a letter of authorization to register
for a general permit. If an applicant receives a letter of
authorization, we may refund the specific permit application fee, but
to cover the cost of review, we will not refund the administration fee.
The letter of authorization may require additional avoidance,
minimization, or compensatory mitigation requirements as needed to
ensure consistency with general permit take rates. The Service
anticipates expediting the processing of these applications.
Issue. Commenters suggested that the Service should allow the use
of site-specific data to determine eligibility for general permits.
Response. The Service recognizes the value in site-specific data.
However, the purpose of general permits is to apply an efficient and
streamlined approach for issuing permits to projects that the Service
can pre-determine pose relatively low risk to eagles. It is not
currently possible to evaluate site-specific data in an automated
manner, which is necessary for general permits. Applicants that prefer
to use site-specific data may apply for a specific permit and request
review for inclusion in the general-permit program as described in a
previous comment response.
Issue. Commenters suggested that existing projects should still
qualify for a general permit even if some of the project's turbines are
within the specific permit zone.
Response. The Service reviewed at length the possibility of
automatically allowing general-permit eligibility for projects that
overlap the boundaries between specific and general permit zones. This
deviation from the proposed rule appears simple but comes with an
increased risk that our general permit program would be inconsistent
with the preservation standard established by the Eagle Act and
implementing regulations. The risk is further increased because the
projects that would be eligible for general permits by partially
overlapping the general-permit zone would very likely create higher
risk to eagles than other projects that fully encompass the general-
permit zone. The Service must choose between addressing that risk by
increasing the mitigation costs for all general permittees or retaining
that all turbines must be in the general permit zone. Because of how
substantive the increased mitigation costs were, the Service instead
provides a mechanism for existing projects to request an eligibility
determination case-by-case as described in a previous comment response.
Issue. Comments noted that many existing projects would not qualify
for a general permit and stated that many of the current deficiencies
with the specific permit program would still be present under the new
regulations.
Response. The Service has developed and will implement a
streamlined approach to specific permits. One approach we considered
and adopted in the final rule was the creation of new tiers for
reviewing specific-permit applications. The purpose of these tiers is
to separate the specific-permit applications that are able to adopt
standardized approaches from those which request more extensive review
and negotiation. Applicants that are willing to accept standard
specific-permit conditions (and do not require additional NEPA
analysis) are eligible for a less expensive application fee and faster
permit-review times.
Eligibility--Relative Abundance Map and Thresholds
Issue. Comments suggested that the relative abundance maps should
indicate levels of risk so developers could choose to avoid the highest
risk areas, or, at a minimum, understand increased mitigation costs
that might be associated with higher risk areas.
Response. The map published with the final rule uses eagle relative
abundance as an index for potential risk. We use relative abundance
data for eagles because the presence of more eagles in a given area at
different times of the year results in more interactions between
turbines and eagles and therefore increased risk of collisions. Thus,
relative abundance data is an effective proxy for determining the risk
of eagle take in a particular location. Although there are only two
levels of risk depicted in this map, it does highlight areas that the
Service has deemed to have relatively high or relatively uncertain risk
to eagles. It is our intent that this map will be used by developers
when siting wind-related infrastructure. As additional data become
available, we will continue to refine our ``risk maps.''
Issue. The Service received numerous comments regarding the use of
eBird Status and Trends relative abundance products to create the
relative abundance map. Some commenters expressed concern that use of
eBird data would underestimate eagle abundance in areas inaccessible to
birders.
Response. The Service recognized that data products from the
Cornell Lab of Ornithology using eBird data is new to many. It is
important to distinguish that the data products the Service is using
are distinct from raw eBird data. We consider the products from the
Cornell Lab of Ornithology to be currently the best available science
for developing a nationwide approach to permitting. We recognize and
acknowledge the uncertainties that are included with this method, such
as areas where raw eBird data has limited reporting. However, the
Cornell Lab of Ornithology eBird Status and Trends relative abundance
products use machine learning to fill in these gaps based on the
models' ability to relate the eBird observations to environmental
predictors derived from global remote sensing data. For example,
reliability of species distribution model predictions can be increased
for unsampled locations and times by relating environmental predictors
to observed occurrences or abundances. This approach allows us to
predict abundance in places that may not be frequented as often (or at
all) by eBird users.
Issue. Several comments suggested we use information from other
datasets (e.g., migration counts, telemetry studies, roost registries,
USGS breeding bird survey, Audubon Christmas Bird Count, and the
Midwinter Bald Eagle Survey) to supplement and improve maps either in
addition to or as part of the eBird models.
Response. The Service agrees that the best information should be
used to determine eagle relative abundance. To implement general
permits, the Service must regulate at the national scale, which is why
this regulation relies on data products from the Cornell Lab of
Ornithology. The Service intends to incorporate other data into our
mapping efforts, as appropriate. However, it will take time to review
each dataset, including its assumptions and biases, and incorporate
those data into mapping efforts in a meaningful way and at appropriate
scales. We welcome additional information and data that could help with
risk mapping and any investment in data integration efforts.
Issue. We received comments requesting that the Service further
stratify relative abundance thresholds according to differences in
geography (e.g., northern and southern for bald eagles and eastern and
western for golden eagles).
[[Page 9935]]
Response. The Service considered further stratification and the
creation of separate relative abundance criteria for each eagle species
preceding the public comment period. However, adding additional strata
would have changed the scale at which the relative abundance is
evaluated and would have added significant complexity to the general
permit program for wind energy facilities. Thus, we elected not to
incorporate these changes.
The Service will update the map and relative abundance thresholds
periodically. In the FEA, we suggested every 5 years or different
intervals if information suggests shorter or longer intervals are more
appropriate. Between updates, the Service will consider any suggestions
for better and more effective ways to map relative eagle abundance.
General Permits
Issue. One commenter indicated that they thought the proposed rule
placed too much emphasis on general permits. Previously, all eagle take
was permitted with specific permits.
Response. This rule emphasizes general permits because that is the
provision that is being introduced with this rulemaking. The Service
has retained the specific permit approach and provisions. In this
rulemaking, the Service has created general permits as an alternative
approach to obtaining eagle take authorization for projects that meet
eligibility criteria. The purpose of general permits is to simplify and
expedite the permitting process for activities for which the Service
has well-established avoidance and minimization measures and that have
relatively consistent and low risk to eagles. The regulations are based
on the well-established avoidance, minimization, and compensatory
mitigation measures that the Service has been implementing as permit
conditions for the past 14 years. This approach allows us to
confidently authorize take consistent with the preservation standard
established by the Eagle Act and implementing regulations without
requiring Service review prior to issuance. We will continue to refine
the general permit approach and incorporate public input on eligibility
criteria for all general-permit categories included in this rule to
ensure that general permits effectively simplify and expedite the
permit process for eligible projects while meeting the preservation
standard.
Issue. Many comments recommended that the Service allow project
proponents to apply for a separate permit for bald and golden eagles,
as opposed to requiring coverage for both species.
Response. In reviewing comments, the Service realized we did not
sufficiently explain in the proposed rule that the mitigation
requirements are specific to that EMU and proportional to golden eagle
abundance in the EMU. Commenters expressed concern that projects in the
East, where golden eagle use of wind projects is seasonal and generally
relatively low, would be paying to compensate for authorized golden
eagle take in the West, where golden eagle use of wind projects can be
relatively high. This is not the case. Projects in the Atlantic and
Mississippi EMU have a lower golden eagle mitigation rate that is
commensurate with the generally lower risk of golden eagle take in
those EMUs. Similarly, projects in the Central and Pacific EMUs will be
required to pay a higher compensatory mitigation rate for golden
eagles, commensurate with the generally higher risk of golden eagle
take there. There is a small amount of additional mitigation required
in all EMUs, to provide funds if a LAP threshold is exceeded and
mitigation is necessary for the program to remain consistent with our
preservation standard. These details are covered in the Final
Environmental Assessment associated with this rulemaking.
Between the proposed and final rule, the Service again analyzed the
possibility of authorizing general permits by species and did not
select that approach at this time. While seemingly a straightforward
request, separating the species introduces uncertainty, which increases
the risk and complexity of general permits. To meet the preservation
standard, the Service estimates general permit mitigation requirements
based on enrollment and has no basis for predicting how many projects
will opt for coverage of one species versus both. The Service would
effectively need to develop separate general permits for each species,
including corresponding eligibility thresholds, eligibility maps,
mitigation costs, and perhaps monitoring standards. In the interest of
keeping general permits easy to apply for and implement, the Service
retained the requirement that all general permits authorize take of
both eagle species. The Service will continue to review this approach
in future rulemaking.
To illustrate the mitigation costs that will be required under
general permits and how they differ across project sizes and across
EMUs, consider two hypothetical projects: one with 30 and one with 100
project turbines, all turbines having a 95.7m rotor diameter. Both
projects are eligible for a general permit and are located in the
Atlantic/Mississippi EMU (where general permit mitigation rates for
golden eagles are the lowest). We will also consider those same two
projects as being eligible for general permits in the Pacific EMU
(where general permit mitigation rates for golden eagles are the
highest). The 30-turbine project in the Atlantic/Mississippi EMU would
be required to mitigate for 0.20 golden eagles and 0.06 additional
eagles (LAP mitigation), or 0.26 total eagles, every 5 years. That same
project in the Pacific EMU would be required to mitigate for the take
of 0.42 golden eagles and 0.06 additional eagles (LAP mitigation), or
0.48 total eagles, every 5 years. The 100-turbine project in the
Atlantic/Mississippi EMU would be required to mitigate for 0.66 golden
eagles and 0.20 additional eagles (LAP mitigation), or 0.86 total
eagles every 5 years. That same 100-turbine project in the Pacific EMU
would be required to mitigate for 1.40 golden eagles and 0.20
additional eagles (LAP mitigation), or 1.60 total eagles every 5 years.
These two hypothetical projects illustrate the relatively low cost
of obtaining golden eagle take coverage for projects that are eligible
for a general permit, and especially the lower cost for smaller
projects and projects in the East, where golden eagle presence is
seasonal and they are generally less abundant than in many parts of the
West. We are hopeful that general permit applicants who think their
risk to golden eagles is low will view this relatively low mitigation
cost as worth the price of incidental take authorization for golden
eagles, in the event such take should occur. If applicants wish to
receive a permit for only one eagle species, they may apply for a
specific permit.
Issue. Several comments expressed concern with regard to potential
suspension or termination of the general permit program, including a
suggestion that suspension or termination should be subject to public
notice and comment prior to finalization.
Response. The Service recognizes the uncertainty that a potential
suspension or termination causes. Suspension or termination of general
permitting is an important aspect to allow the Service to respond
quickly in the event of sudden changes in eagle populations at the LAP
or EMU scale; however, it is not a step the Service would take lightly
and without a notice and comment process.
Regulations currently allow for the revocation of a permit if ``the
population(s) of the wildlife or plant that is the subject of the
permit declines to the extent that continuation of the
[[Page 9936]]
permitted activity would be detrimental to maintenance or recovery of
the affected population'' (50 CFR 13.28(a)(5)). The Service will
regularly evaluate whether the authorized take of bald eagles and
golden eagles under general permits remains compatible with the
preservation of eagles. If the Service finds that issuance of general
permits in a particular LAP or EMU is not compatible with the
preservation of bald eagles or golden eagles, we would first consider
adding additional precautions to the permitting program through
rulemaking. Rulemaking requires public review and comment periods.
However, the Service is preserving, as a last resort, the option of
suspending general permit issuance locally or nationally after
publishing a notice in the Federal Register. This notice may include an
opportunity for the public to comment on next steps. If the Service
suspends general permitting, take currently authorized under a general
permit remains authorized until expiration of that permit, unless the
permittee is notified otherwise.
Issue. Some commenters asked us to explain how ``low effects'' are
determined for general permits.
Response. Public comment indicated that the Service's intent was
not clear in the usage of the phrase ``low effects.'' We have modified
the text to instead reference ``low risk.'' General permits simplify
and expedite the permitting process for activities that have relatively
consistent and low risk to eagles and well-established avoidance,
minimization, and compensatory mitigation measures. For wind energy
facilities, projects that have low risk will be determined by the
relative abundance of eagles and the proximity of wind turbines to nest
locations. For other general permits, the Service considers the
implementation of the well-established avoidance and minimization
measures to result in those projects being low risk to eagles.
Guidance
Issue. Several commenters requested more information regarding
guidance documents that the Service plans to develop.
Response. The Service is working on internal procedures, external
outreach, and guidance documents to help the public understand and
comply with these new regulations. In developing guidance, the Service
will follow standard Federal guidance practices. All regulatory
requirements are included in the rule. Guidance documents provide a
step-down from the rule that explain and clarify the Service's
expectations on how to meet regulatory requirements.
Monitoring
Issue. While many commenters were supportive of the removal of
third-party monitoring, we received comments in support of retaining
this provision.
Response. The third-party monitoring requirement has proven
impracticable or impossible 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. These
factors have created a barrier to obtaining a permit. The Service
reviewed the purpose of third-party monitoring and determined in most
circumstances it is sufficient to rely on the requirement 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 for supplying false information. The Service concluded that the
existing penalties for false reporting under eagle take permits will be
enough to dissuade most permittees from intentionally providing
inaccurate reports. We retain the ability to require third-party
monitoring on a case-by-case basis for specific permits, particularly
if we have ongoing compliance concerns.
Issue. Commenters expressed concern over the amount of money the
Service was proposing to spend on monitoring.
Response. The Service recognizes the tradeoff between spending
money on monitoring or on compensatory mitigation. Monitoring can be
expensive, and it may not be immediately clear how more monitoring
benefits eagle preservation. The benefit of compensatory mitigation is
more straightforward. While extensive monitoring has occurred at
numerous wind projects, it remains difficult to draw programmatic,
cross-project conclusions. Monitoring in a manner that allows for
programmatic conclusions is critical to ensure implementing these new
regulations will be compatible with eagle preservation.
However, based on public comment, the Service reviewed its proposed
approach to monitoring. We determined that we can accomplish monitoring
goals under general permits with concurrent fatality monitoring, which
will be required under general permits, and without additional
monitoring performed by or contracted by the Service. In the final
rule, we require concurrent monitoring conducted according to Service
protocols by project operations and maintenance staff, which will be
sufficient to meet the Service's monitoring needs, provided there is
sufficient participation in wind energy general permitting. We continue
to require an administration fee, a portion of which will be used to
validate the concurrent monitoring approach and analyze monitoring
data.
Issue. We received comments that expressed concern over the removal
of the required 5-year check-ins.
Response. The purpose of 5-year review is to update take estimates
and related compensatory mitigation for the subsequent 5-year period.
It also provides the Service with an opportunity to amend the permit to
reduce or eliminate conservation measures or other permit conditions
that prove to be ineffective or unnecessary. The purpose of these
reviews does not change with this rulemaking. However, the 5-year
requirement has introduced unintended uncertainty which, according to
public comment, has reduced participation in eagle take permitting
under the 2016 regulations. It has also resulted in timing issues,
where post-construction monitoring or other data is available off-cycle
from the 5-year timing (e.g., year 3 or 4) but cannot be used until the
scheduled check-in. Instead, check-ins may now be initiated by the
permittee or the Service in response to events that warrant review, for
example, updating fatality estimates and associated compensatory
mitigation requirements or revising permit conditions to reflect the
best available science.
Issue. We received comments stating that our current surveys are
not sufficient to adequately estimate eagle population numbers and that
mortality data reporting is voluntary and unreliable.
Response. The Service uses the best available science in ensuring
that general and specific permits are consistent with the preservation
of eagles. The Service has conducted aerial surveys for both bald
eagles and golden eagles relatively recently and consider these survey
efforts adequate to estimate populations of both species within
applicable parts of their range. The Service agrees that voluntary
reporting of mortality data is unreliable. With this rulemaking, the
Service improves voluntary reporting at wind projects in two ways.
First, through increasing participation in permitting and prescribing
the concurrent monitoring protocol all projects use, the Service
expects improved quantity and quality of eagle fatality data at wind
projects. Second, through the collection of an administration fee, the
Service can direct funds as needed to ensure permitting is consistent
with the preservation standard, including by
[[Page 9937]]
survey populations and by analyzing project-specific mortality data.
Issue. Commenters felt that monitoring related to disturbance take
and nest take should not be required, specifically in instances where
the activity does not directly take eagles, as with communication
towers.
Response. Unlike permits that authorize the incidental injury or
death of eagles, monitoring required under nest take and nest
disturbance permits is intended to detect breeding outcomes during
current and subsequent nesting attempts and, if appropriate and
practical, document if eagles breed again at their original or any new
nesting location. The loss of breeding productivity constitutes take,
as it prevents eagles from being added to the population. Monitoring
requirements allow the Service to more accurately account for
authorized take against our established species-specific take limits
and, over time, may allow us to qualify or quantify the effectiveness
of permit conditions.
Nest Disturbance
Issue. Comments regarding nest disturbance primarily focused on the
buffer distances set for general permits, including those for in-use
and alternate nests, and advocated for distances based on the level of
tolerance to disturbance.
Response. By specifying distances in our bald eagle nest
disturbance general permit, we are not suggesting that all activities
within these distances must apply for a permit. Rather, we are setting
a standard that only those activities listed within the final rule
(Sec. 22.280(b)) within these distances can receive a general permit.
This standard is intended to prevent project proponents applying for
unnecessary permits for activities beyond these distances that are
unlikely to disturb breeding bald eagles. Further, the specific and
general permits for nest disturbance are not a prerequisite to carrying
out activities or starting projects. Instead, they cover any
disturbance that may result as an unintentional consequence of an
activity. If an individual or entity assesses that their activities are
unlikely to disturb breeding eagles, they do not need the Service's
consent or concurrence to proceed, though they may be held liable if
their activities do ultimately cause disturbance.
The Service acknowledges the growing body of evidence demonstrating
that some portions of the bald eagle breeding population demonstrate
increased tolerance to human activities. Our standards under the nest
disturbance general permit reflect this consideration. We use the 330-
and 660-foot distances for bald eagles because we are generally
unconcerned with activities beyond these ranges, and we discourage
proponents from applying for permits where best available science
suggests they are unnecessary. Within those distances, project
proponents may assess their relative risk to eagles (e.g., whether or
not a similar activity is or has occurred closer to the nest) and
determine whether or not to apply for a permit.
Regarding alternate nests, we agree that, by definition, activities
at these nests cannot expose breeding eagles to sensory disturbance, as
the eagles are not present. However, as the National Bald Eagle
Management Guidelines (2007) note, alterations to the nest site and
surrounding habitat may discourage eagles from breeding when
encountered by eagles returning to that nest site. We will continue to
update the National Bald Eagle Management Guidelines as well as develop
similar guidelines for golden eagles.
Issue. We received requests for a regulatory authorization for
State wildlife agencies for land-management activities that may improve
eagle-nesting habitat, including prescribed fire and mowing.
Response. The Service acknowledges the usefulness of regulatory
authorizations; however, we do not consider regulatory authorizations
an appropriate mechanism to authorize the mortality or injury of bald
eagles or golden eagles at this time. Most land-management activities,
such as alteration of shorelines, alteration of vegetation, and
prescribed burns, are eligible for general permits for eagle
disturbance take. General permits for disturbance caused by
agriculture, mining, and oil and gas operations are not available at
this time. We have received permit requests for these activities
infrequently, thus we have not yet developed standard avoidance and
minimization measures. Operators of these and other activities may
apply for specific permits. As we gain more information on the effects
of these activities and identify effective avoidance and minimization
measures, we may in future rulemakings add general-permit regulations
for these and other activities.
Issue. Commenters asked whether a single general permit authorizes
several types of disturbance or whether a separate general permit will
be needed for each type of disturbance that could occur.
Response. Consistent with our current approach to permitting, a
single permit for disturbance of bald eagle nests can authorize
disturbance of a nest from multiple sources of disturbance of a single
project or operation. For example, a general permit could authorize
disturbance from land clearing, external construction, blasting, and
operations and management activities associated with one project. The
bald eagle nest disturbance permit is a ``one permit, one nesting
territory'' system that simplifies our bald eagle population management
tracking and reduces the amount of monitoring we require from
permittees.
Issue. Commenters also expressed the desire for one permit for all
bald eagle disturbance associated with a given activity for the 5-year
permit term.
Response. Allowing coverage for an unspecified number of nests and
ad hoc accounting of effects would hinder our ability to ensure take is
consistent with the preservation standard established by the Eagle Act
and implementing regulations. Individuals or entities that want to
obtain coverage for disturbance of multiple nesting territories may
apply for a specific permit.
Nest Take
Issue. Comments related to nest take centered on the creation of
general permits and the lack of Service review of those permits.
Response. General permits are generally limited to three scenarios:
emergency circumstances, health and human safety concerns, or nests on
human-engineered structures. These situations, such as wildfire hazard
and structural failure, often pose risks to both the nest and for
people. In these situations, it is often imperative that the permit be
issued as quickly as possible, as doing so often reduces the risk or
effects to eagles. The Service also has been implementing permits for
these activities since 2009 and has well-developed permit conditions
with avoidance and minimization measures. The expedient processing and
standardized approach make these permits a great fit for general
permits.
The Service will review these permits. In reviewing bald eagle nest
take permits at the program scale, given the current and expected
number of permits issued and the status of the bald eagle, the Service
is confident that issuance is consistent with the preservation of the
bald eagle. We will continue to review nest take at the program scale
to ensure that general permit issuance is consistent with the
preservation of bald eagles. The Service will also audit a percentage
of nest take permits, to ensure that the applicants meet eligibility
criteria and comply with permit conditions. We will work to
[[Page 9938]]
address any compliance concerns with individual permittees.
Issue. Some commenters requested that a single general permit for
nest take authorize the take of multiple nests from a single project or
across a defined area.
Response. Issuing one general permit for each nest allows the
Service to efficiently track take. If the Service allowed coverage for
an unspecified number of nests, the associated ad-hoc accounting of
effects would make it much more difficult for the Service to ensure
authorized take is consist with the preservation standard. Specific
permits remain available for the take of multiple nests.
Issue. One commenter stated that the proposed regulation would no
longer require the Service to make a finding of net benefit to eagles
for nest take authorized under ``other purposes.'' The commenter
interpreted the proposed rule to state that compensatory mitigation is
required only when the take exceeds the limit of the applicable EMU.
Response. Since 2009, the regulations require the finding of a net
benefit to eagles for nest take authorized under ``other purposes.''
For all nest-take requests outside of Alaska, a specific permit is
required for the purposes of the Service determining whether a net
benefit will be achieved by the proposed action, or, if the activity
does not provide the net benefit, the compensatory mitigation proposal.
The net benefit to eagles is scaled to the effects of the nest removal.
The Service did include a general permit for ``other purposes'' in
Alaska because of the scaled effects of nest removal. In Alaska, well-
established permit conditions provide sufficient avoidance,
minimization, and compensatory mitigation scaled to the effects of nest
removal, given the robust population status of the bald eagle and the
available nesting habitat.
Issue. Some entities expressed support for the creation of general
permits for golden eagle nest take.
Response. The Service did not include but will continue to work to
develop general permits for golden eagle nest take. The Service has
issued few golden-eagle nest take permits and therefore does not have
sufficient, well-established measures to create general conditions for
golden eagle nest take.
Issue. One commenter suggested that authorizing the take of eagle
nests to protect threatened or endangered species should apply only to
bald eagles due to the golden eagle's population status.
Response. With expanding bald eagle populations, the Service
foresees situations arising where the take of an eagle nest may be
necessary for the recovery of threatened or endangered species.
However, the Service acknowledges the tradeoffs are more complex with
golden eagles. Because this is an emerging issue, a specific permit
must be obtained for this type of activity. The Service added an
additional precaution in that the Federal, State, or Tribal agency
responsible for the species of concern must obtain the permit. The
Service will assess the tradeoffs between the eagle species taken and
the endangered or threatened species. The Service will consider the
evidence that eagles are limiting the recovery of a threatened or
endangered species and analyze whether the eagle nest removal will
improve recovery for the threatened or endangered species in question.
The Service will consider if issuing this permit, including required
avoidance and minimization measures and compensatory mitigation, is
consistent with our preservation standard at both the LAP and EMU
scale. Finally, the Service will consider if other methods are feasible
that have less effect on eagles but will still abate or prevent the
problem. As a final protection for golden eagles, the Service may
require compensatory mitigation for the take of golden eagle nests.
Permit Conditions
Issue. Commenters asked whether the provisions in the new rule
would apply to entities that currently have long-term incidental take
permits and entities that applied but have yet to receive a permit.
Response. Projects that have submitted an application as of
February 12, 2024, will have until August 12, 2024, to choose whether
to have their application reviewed and administered under all the
provisions of the 2016 regulations or all the provisions of these new
regulations. Projects permitted under the 2016 regulations may continue
under existing permit conditions until the permit expires. Permittees
that want to modify existing permit conditions to comply with the new
regulations may contact their permitting office at any time to
determine whether a substantive amendment request or a new application
is most appropriate. For qualifying projects that elect to have their
pending applications reviewed and administered under all the provisions
of these new regulations, application fees paid prior to August 12,
2024, may be used to pay for application and administration fees
required under the new regulations.
Issue. Multiple commenters expressed concerns over operations and
maintenance staff conducting monitoring, suggesting that they might
underreport their findings or that they would find too few available
carcasses to provide useful information on eagle take.
Response. There are two aspects to this concern. The Service
acknowledges the concern about staff intentionally underreporting their
findings. Based on input the Service received, we predict this will be
a rare circumstance and one that can be discovered and addressed with
the assistance of the Office of Law Enforcement. With any permit, there
will be good actors and bad actors, and the Service will address bad
actors accordingly.
For the second aspect, the Service disagrees that concurrent
monitoring will not provide useful information. Service analysis
suggests that, on a large scale (e.g., aggregation of all general
permits), concurrent monitoring will provide sufficient information
over time to allow the Service to be confident that our resulting
program-wide take estimates are consistent with the preservation of
eagles.
Issue. A commenter requested clarification as to when an adaptive
management plan is required.
Response. It is expected that wind energy project proponents will
develop an adaptive management plan prior to or on obtaining a general
permit. However, implementation of the adaptive management plan is
required only if a certain number of fatalities are discovered at a
wind energy facility. If three bald eagle injuries or mortalities, or
three golden eagle injuries or mortalities, are discovered at a project
during the 5-year general permit tenure, the permittee must provide the
Service with an adaptive management plan and specify which avoidance
and minimization measures the permittee will implement. If an injury or
mortality of a fourth eagle of that species attributable to the project
is discovered, the permittee must identify and implement the avoidance
and minimization measures outlined in the adaptive management plan.
Adaptive management plans may be revised during the permit tenure. A
copy of adaptive management plan(s) may be requested by the Service at
any time as part of an audit.
Issue. One commenter asked for clarification whether circumstances
impacting eagles outside of a specific permittee's control (e.g.,
decrease or shift in population due to disease, climatic factors, or
illegal take like poisoning and poaching) could result in
[[Page 9939]]
new obligations being imposed on a specific permit holder.
Response. Circumstances outside the permittee's and the Service's
control will continue to affect eagle populations. The permittee's
responsibility is to comply with the requirements of their permit. The
Service's responsibility is to ensure permits issued are consistent
with the preservation of eagles, including at the EMU and LAP scales.
If situations arise at the EMU and LAP scale that are detrimental to
eagle populations, the Service may need to act to ensure preservation
of eagles, which may include programmatic changes to permits or changes
to a subset of permits. Generally, we will first attempt to address
these issues modifying the requirements for or restricting new permits.
However, consistent with 50 CFR 13.23(b), the Service reserves the
right to amend any permit for just cause at any time during its term,
upon written finding of necessity.
Power Lines
Issue. Comments regarding eagle incidental take permits for power
lines were focused primarily on the required conditions and definitions
in the regulation.
Response. The Service made several improvements to the power line
regulation:
1. To better align with standard industry terminology, the Service
revised the term ``electrocution-safe'' to ``avian-safe.''
2. The Service clarified that power line entities are required to
ensure that all poles constructed in high-risk eagle areas are avian-
safe, allowing the entity to determine those areas within the
parameters provided by Service guidance.
3. To address concerns regarding the siting of projects and buffer
distances, we revised the conditions to read as follows: ``For new
construction and rebuild projects, reconstruction, or replacement
projects, incorporate information on eagles into siting and design
considerations. Minimize eagle risk by siting away from eagle use areas
(e.g., nests and winter roosts), accounting for the risk to and
population status of the species, unless this requirement would unduly
impact human health and safety; require overly burdensome engineering;
or have significant adverse effects on biological, cultural, or
historical resources.''
4. The Service modified the definition of ``collision response
strategy'' to reflect that any risk-reduction strategies implemented
post-collision should be commensurate with the collision risk. This may
include no changes for one-off situations that are unlikely to reoccur.
References to changes in engineering design have been removed and will
instead be included in guidance.
5. Many companies were concerned that the proactive retrofit
strategy would be infeasible to implement. Proactive retrofit
strategies are important, as they serve as the compensatory mitigation
requirement for power line entities. However, the Service also wants to
ensure that requirements are feasible. The Service modified the
requirement to a 50-year strategy for investor-owned utilities and a
75-year strategy for non-investor-owned utilities, with 5-year
benchmarks. We also clarified that this requirement applies only to
poles in high-risk eagle areas that are not avian-safe but may include
other poles in the service area as well. The Service provides for
delayed implementation to allow utilities to develop proactive retrofit
strategies. The Service also provides for extenuating circumstances,
such as catastrophic weather, wildfire, or other events that
substantively disrupt power delivery, in implementing these strategies.
Finally, we note that specific permits are available for any utility
that is unable to implement the general permit requirements.
6. The Service amended the conditions associated with the reactive
retrofit strategy to clarify that the evaluation of the incident must
be completed within 90 days and the response implemented within 1 year
of the incident.
7. The Service clarified that the minimum expectation for the eagle
shooting response strategy is for utilities to notify the Office of Law
Enforcement in the case of a confirmed or suspected shooting. However,
we will work with industry to develop other common-sense response
options.
Issue. Several comments expressed concerns regarding the costs
associated with implementing the avoidance and minimization measures
for power lines.
Response. The fees and costs to applicants to participate in the
permitting framework have been updated and are included in the FEA. See
tables 5-1 (No Action Alternative), 5-4 (Alternative 2), 5-10
(Alternative 3), and 5-14 (Alternative 4). These tables comprise all
fees and costs that a permittee is expected to accrue in applying for
and complying with all permits. As stated in section 5.6.5 of the FEA,
the Service assumes that power line entities most likely to apply for a
permit are entities that have a risk of taking eagles and are already
retrofitting power poles, thus already meeting this requirement.
Therefore, the Service does not anticipate an added cost to power line
entities for the retrofit requirement.
Specific Permits
Issue. Several commenters expressed concerns with delays in
specific permit issuance review and requested that the Service further
streamline the specific permit process.
Response. The Service will be implementing several approaches to
improve efficiency in the specific permit process. One approach
codified in this rulemaking is the creation of new tiers for reviewing
specific permit applications. These tiers separate the specific permit
applications that require extensive review and negotiation from those
that do not, creating a streamlined approach and corresponding reduced
application fee for projects that meet the new Tier-1 criteria.
In addition to creating a tiered approach allowing faster
processing for Tier-1 specific permits, the Service will institute a
procedural change to further expedite review of some projects. To date,
42 eagle incidental take permits have been issued to wind energy
projects across the country. While all permit decisions were analyzed
in an EA or, occasionally, an EIS, our experience with issuing these
permits has led us to conclude that a categorical exclusion would be
appropriate for most permit decisions because relevant environmental
impacts for most decisions have already been analyzed in the 2016 PEIS
and extraordinary circumstances are unlikely to apply, given the
general impacts we disclosed in our NEPA analyses for previously
analyzed decisions. Specific permit decisions we expect to
categorically exclude from further NEPA analysis must, at a minimum,
include the following criteria: (1) Estimated annual eagle take, after
compensatory mitigation (if required), is below EMU take limits; (2)
estimated annual eagle take, combined with other authorized take in the
vicinity, does not exceed five percent of the project-specific Local
Area Population; (3) permit conditions do not have the potential to
cause effects on cultural resources or other historic properties
protected by the National Historic Preservation Act; (4) permit
issuance will not be precedent setting; (5) the permit decision and
permit conditions will not be based on take estimates produced from new
or unpublished methods or models; and (6) no other extraordinary
circumstances that prevent application of the categorical exclusion
exist. If the Service determines categorical exclusion is not
appropriate, the Service
[[Page 9940]]
will initiate an EA or EIS in accordance with NEPA. To ensure linear
and efficient progress, substantive Service work on these documents
will begin after the applicant and the Service have completed
negotiations on the conditions of the permit.
Tribal Concerns
Issue. There were concerns expressed regarding the removal of
protections from Sec. 22.85 of the existing regulations, including the
following:
<bullet> Evaluation of cultural significance of a local eagle
population;
<bullet> Finding of a practicable alternative to nest removal;
<bullet> Finding of a net benefit to eagles and subsequent
compensatory mitigation;
<bullet> Determination of whether suitable nesting and foraging
habitat is available to accommodate eagles displaced by nest removal;
and
<bullet> Finding that permits will not preclude higher priorities,
including Native American Tribal religious use.
Response. The Service did not intend to remove the protections
listed above. Many were moved to other sections or condensed with other
regulatory language with the intent to provide clarity. However,
comments indicate this rearrangement did not improve clarity. We have
re-expanded the regulatory language or relocated the language to the
expected locations.
Issue. Several comments from Tribes focused on the creation of
general permits, particularly for nest take and nest disturbance.
Response. Regarding opposition to general permits for nest take and
nest disturbance, the Service notes that these permits are only for
emergencies, for health and safety issues, or on human-engineered
structures. In most cases, these situations are a risk to both eagles
and humans. The qualifications for specific and general permits for
nest disturbance and nest take are comparable to the standards
established in 2016. Additionally, the conditions for our general
permits will be based on the conditions the Service commonly requires
in its current specific nest take and nest disturbance permits. While
we are aiming to make applying easier for project proponents by
simplifying the administrative process, we are not making permits
easier to secure in the sense of relaxing requirements to protect
eagles.
The standards we are establishing around general permits for take
and disturbance of bald eagle nests will assure continued preservation
of this species for two reasons: First, because those standards are
based on the knowledge and experience we have gained from issuing and
monitoring hundreds of permits over nearly two decades, and second, a
growing body of scientific literature has demonstrated that breeding
bald eagles show a higher tolerance and resilience to disturbance and
other impacts than previously thought. We do not have comparable data
or experience in managing golden eagle nests and have therefore not
opened the general-permit program up to removal or disturbance of
golden-eagle nests in this rulemaking.
We acknowledge and appreciate Tribal concerns regarding the degree
of oversight required for general permits when compared to specific
permits. As part of this final rule, we have added a new eligibility
restriction for nest-disturbance and nest-take activities in Indian
country, as defined in 18 U.S.C. 1151, after recent consultation with
Tribes. General permits will not be available for nest take or nest
disturbance for nest structures located in Indian country, unless
requested by the Tribe itself. Furthermore, the Service will make
publicly available a list of all general permits issued, which Tribes
can review. We will be implementing an audit program to ensure that
those participating in our general permits are truly eligible and are
complying with the permits' terms. For specific permits, the Service
will continue to notify Tribes regarding activities conducted on their
lands.
Issue. Many Tribes believe the new regulations remove opportunities
for Tribal engagement and bypass government-to-government consultation,
especially for potential impacts to Tribal lands or resources.
Response. Throughout all phases of the rulemaking process, the
Service has encouraged and continues to welcome government-to-
government consultation. In addition, we conducted multiple information
sessions specifically for Tribes. The Service acknowledges our Federal
Tribal trust responsibilities and deeply honors our sovereign nation-
to-nation relationship with Tribes. To date, one Tribe requested
government-to-government consultation regarding this regulation. The
Service made modifications to the final rule based on this
consultation. We invite bilateral government-to-government consultation
at any time.
Wind Energy
Issue. Some commenters expressed concerns about the cumulative
impacts of wind energy projects on the landscape on eagle populations,
particularly at the LAP scale.
Response. The Service has considered at length how to implement
general permits for wind projects that are consistent with the
regulatory preservation standard at the LAP scale. The Service will use
all available information and the best available tools to estimate
where authorized take rates may be the highest relative to our
estimated eagle-population densities. Further, we will require Service-
approved in-lieu fee programs to allocate a small amount of
compensatory mitigation from each general permittee to be available to
address LAP concerns. With these extra mitigation funds, in-lieu fee
programs can deploy compensatory mitigation for eagles in areas where
LAP thresholds are close to being exceeded (or have been exceeded). If,
after expenditure of these funds, the Service still determines that
general-permit issuance is not consistent with the preservation
standard, we retain the right to amend, suspend, or revoke general
permits in order to safeguard local eagle populations.
Issue. We received comments regarding the take thresholds
associated with wind energy general permits, including comments that
such thresholds are not necessary for bald eagles, that such thresholds
may cause the general permit program to fail, and requests to remove
species-specific take thresholds.
Response. The Service calculated the take threshold for bald eagles
and the take threshold for golden eagles to ensure general permitting
is consistent with the preservation of both eagle species. The
calculated threshold for each species ended up being four eagles.
Ensuring take is compatible with eagle preservation primarily depends
on the take rates for each eagle species, not the combined take rate of
eagles in general. Therefore, there are separate take thresholds for
each species, not a combined threshold for ``eagles.'' Finding four
golden eagles creates a fatality estimate similar to what we would
expect to see at an average-sized project in the specific-permit zone.
Finding four bald eagles would produce a similar result. However, a
project that discovers two dead bald eagles and two dead golden eagles
during one permit term would be taking eagles at lower rates than
expected under specific permits and, thus, a general permit is
appropriate.
In response to comments that general permit take thresholds are not
necessary for bald eagles, we reiterate that the goal of these
thresholds is to ensure that the Service has appropriately accounted
for the level of eagle take for projects
[[Page 9941]]
receiving general permits in a way that is consistent with our
preservation standard and ensure that projects with relatively high
risk to eagles (of either species) are paired with the most appropriate
management actions that are commensurate with higher or uncertain take
rates. Exceeding the discovered eagles thresholds established by these
regulations is not a violation of the permit. Rather, a project that
discovers more than established thresholds indicates that there are
potentially unique circumstances at the project site that would benefit
from Service engagement through the specific permit process. The
specific permit process allows for Service review of site-specific data
and collaboration with the permit applicant on development of
additional data collection and avoidance and minimization approaches
appropriate for the project to ensure permit issuance criteria are met
and that authorized take is consistent with our preservation standard,
particularly at the local scale. This is not possible under an
automated general permit process.
In response to the comment that the general permit program is
likely to fail, our analysis of take in the general permit zones
suggests that it should be a rare wind project in the general permit
zone that takes eagles at rates high enough to discover four or more
bald eagles within a 5-year period. Our estimates for even large wind
projects in the general permit zone are substantially lower than
estimated bald eagle fatalities at a similar-sized project in the
specific permit zone, on which the four-eagle threshold was based.
Thus, we expect that only a small proportion of projects receiving
general permits will exceed the bald eagle threshold.
Issue. The Service received multiple comments regarding the use of
Evidence of Absence software (Dalthrop et al. 2017) for specific
permits; many of the comments requested that the Service eliminate the
use of Evidence of Absence software as a compliance measure. Instead of
Evidence of Absence software, one commenter suggested the Service
should instead assess compliance based on the actual number of eagles
found during fatality monitoring.
Response. The Service recognizes the limitations of Evidence of
Absence software. Therefore, on specific permits the Service will
authorize incidental take of bald eagles, golden eagles, or both but
will not specify a take limit. The Service will continue to use the
best available statistical programs to evaluate and estimate mortality
rates. Currently Evidence of Absence software is the best estimator
available to handle zero-inflated data (i.e., data that has an excess
of zero counts). The Service will use estimated mortality rates to
calculate compensatory mitigation requirements. The Service will also
use estimated mortality rates to estimate the number of eagles
authorized for internal tracking purposes. The Service will use
estimated mortality rates for eagles instead of number of eagles found,
as this approach is more appropriate for understanding how permit
issuance effects eagle populations.
Issue. Multiple comments expressed disapproval of the Collision
Risk Model (CRM), with some stating the lack of predictability with the
CRM results in increased costs and timelines.
Response. The Service recognizes that, as with all models, we must
continue working to improve the CRM. However, the CRM represents the
best science available today. The CRM was developed using site-specific
and species-specific eagle exposure and eagle collision data provided
from wind energy facilities across the Nation and represents the best
available data to assess risk to eagles by turbines. The Service's CRM
evaluates risk across projects in a consistent and predictable way
while accounting and managing for uncertainty. The Service uses site-
specific data to inform the CRM and have the estimate reflect risk for
a given project while accounting for variability in both eagle use and
collision risk. In the 2016 eagle rule and PEIS, the Service described
the adaptive management framework for authorization of eagle take. At
wind facilities, the Services uses monitoring data--consistent with
methods outlined in the Land-Based Wind Energy Guidelines (<a href="http://www.fws.gov/media/land-based-wind-energy-guidelines">www.fws.gov/media/land-based-wind-energy-guidelines</a>)--to inform the initial take
authorization for a permit. We use monitoring data collected under the
permit to update the estimates over time. Any mitigation paid by the
permittee initially that exceeds updated take estimates is credited
forward, reducing future mitigation burden.
The Service can evaluate alternative models as part of the adaptive
management framework over time; however, to ensure consistency and
adherence to management objectives, initial permit estimates are based
on our peer-reviewed modeling framework. Monitoring can be designed, in
coordination with the Service, to compare updates to the CRM modeling
framework to results from other models. Any comparison would need to
evaluate the model's ability to quantify uncertainty. Similarly, the
Service's eagle permit biologists consider all site-specific data
available when thinking about potential avoidance and minimization
measures that may reduce risk at a given project, but rely on the CRM
and consistent, representative monitoring data to represent risk across
all permitted projects. Site-specific data (e.g., mortality monitoring)
without use of a model designed to extrapolate beyond the monitoring
period does not appropriately account for variability in eagle risk.
The Service will use the CRM to calculate eagle fatalities for
internal tracking and calculating mitigation requirements for specific
permits. While the Service generally does not recommend that project
proponents propose an alternative CRM, under the new rule Tier 2
specific permittees with a reimbursable agreement may request
consideration of an alternative CRM. The Service will review these
requests on a case-by-case basis and anticipates requiring, at a
minimum, publication of the alternative CRM in the Federal Register for
public review at the cost of the applicant, including quantification of
the uncertainty of the model (i.e., confidence in the estimate). The
Service may also require third-party monitoring to validate the model.
Issue. Commenters requested clarification on take limits associated
with the permits.
Response. Wind energy general permits and specific permits will not
have a take limit associated with them. Wind projects with a general
permit cannot discover four or more bald eagles or four or more golden
eagles within a 5-year permit term and remain eligible for another
general permit in the future. We will continue to estimate take at wind
projects for both general and specific permits to ensure consistency
with the preservation standard and, for specific permits, determine
required compensatory mitigation. For specific permits, the Service
will require additional compensatory mitigation if it concludes
(through data received in annual reporting or otherwise) that permitted
take exceeds the level of compensatory mitigation already provided. If
we determine that take at a permitted facility is not consistent with
our preservation standard, we will conduct an administrative check-in
and likely require amendments to the permit.
[[Page 9942]]
Required Determinations
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order 12866 (E.O. 12866), as reaffirmed by E.O. 13563 and
E.O. 14094, provides that the Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget (OMB) will review
all significant rules. OIRA has determined that this rulemaking action
is significant.
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. 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 rule in a manner consistent with these
requirements.
Costs and benefits of the rule can be broken down into three
categories; impacts to permittees, impacts to the Service, and societal
impacts. Impacts to permittees include permitting costs as described in
Table 1, below, as well as other unquantifiable costs such as the costs
associated with reading and understanding the rule, time spent on
permit application, and costs associated with training staff on the
requirements of the rule. Benefits to permittees include the ability to
acquire a permit and eliminate the risk of enforcement associated with
incidental eagle take. Where the costs of the proposed permit exceed
the benefits associated with the risk of enforcement (e.g., projects
with low risk of incidental eagle take or projects with perceived low
risk of legal enforcement), we do not expect entities to apply for a
permit. Impacts to the Service include costs associated with processing
and auditing these permits; these costs are anticipated to be less than
the benefits of anticipated reductions in staff time associated with
processing these permits, as general permits can be issued without the
need for Service interaction. Societal impacts include benefits
associated with an anticipated increase in eagle populations associated
with reduced incidental take and beneficial activities associated with
compensatory mitigation requirements; no societal costs are assumed.
Table 1 below shows the permit count and cost under the 2016
regulations, the expected number of permits and average permit costs
under this rule, and the estimated marginal costs and impacts between
the 2016 regulations and this rule. Additional analysis is available in
the supporting FEA.
BILLING CODE 4333-15-P
[[Page 9943]]
[GRAPHIC] [TIFF OMITTED] TR12FE24.010
[[Page 9944]]
[GRAPHIC] [TIFF OMITTED] TR12FE24.011
BILLING CODE 4333-15-C
The maximum total estimated annual cost to industry for this rule
is $16,821,500. The maximum total estimated cost over 5 years for all
permits is $84,107,500. The average annual equivalent cost is
$13,794,294 with a total net present value cost of $68,971,471 using a
7 percent discount rate. The average annual equivalent cost is
$15,407,509 with a total net present value of $77,037,544 at a 3
percent discount rate. These discount rates represent a range of values
that the Office of Management and Budget recommends as a Federal-
program discount rate for benefit-cost analysis for most Federal
programs. The above costs represent the total gross cost of the rule
and do not reflect the costs associated with the existing regulations.
This rule is expected to create an estimated maximum of $3,857,500 in
new costs annually and $19,287,500 in new marginal costs over 5 years,
as compared to the 2016 regulations. These estimates represent the
maximum quantifiable costs; they do not represent other costs that may
be incurred, such as the costs for entities to read and understand the
rule, time spent on permit application, and costs associated with
training staff on the requirements of the rule. However, these new
marginal costs are more than offset by savings to both industry and the
Service in terms of reduced Eagle Act enforcement costs and no
requirements for preconstruction monitoring under general permits and
the removed requirement for third-party monitoring under specific
permits. 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
[[Page 9945]]
the Eagle 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 the savings exceed the total new costs
associated with this rule. The costs of this rule are also offset by
the ecosystem-services benefits associated with potential decreased
take leading to increased populations of 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. 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 examined this rule's
potential effects on small entities as required by the Regulatory
Flexibility Act and certify 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 this rule.
To assess the effects of this rule on small entities, we focus on
the proposed general and specific permit approach for incidental take
by wind-energy facilities and electric-transmission companies. We also
address nest disturbance and nest take permits for businesses in other
sectors, such as housing and building construction, railroads, timber
companies, pipeline companies, and gold ore mining.
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. While the NAICS was updated in 2023, we are
using the 2017 NAICS to best compare to the most recent 2017 Statistics
of U.S. Businesses (SUSB) tables that contain information on receipts.
Relevant 2017 NAICS small business definitions include:
[ballot] fewer than 250 employees for ``Wind Electric Power
Generation'' (NAICS sector 221115),
[ballot] fewer than 1,000 employees for ``Electric Power
Distribution'' (NAICS sector 221122),
[ballot] fewer than 500 employees for ``Logging'' (NAICS sector
113310),
[ballot] less than $36.5 million of average annual receipts for
``Construction of Buildings'' (NAICS sectors 236115, 236116, 236117,
236210, and 236220),
[ballot] less than $36.5 million of average annual receipts for
``Highway, Street, and Bridge Construction'' (NAICS sector 237310),
[ballot] less than $15.0 million of average annual receipts for
``Support Activities for Rail Transportation'' (NAICS sector 488210),
and
[ballot] fewer than 1,500 employees for ``Gold Ore Mining'' (NAICS
sector 212221).
Table 2 indicates the number of businesses within each industry and
the estimated percentage of small businesses impacted by this rule.
Table 2--Distribution and Potential Impact to Businesses \1\
----------------------------------------------------------------------------------------------------------------
Total firms/ Small businesses
establishments potentially impacted by
-------------------------- this rule
NAICS code Description Number of Number of -------------------------
all small
businesses businesses Number Percentage
----------------------------------------------------------------------------------------------------------------
221115...................... Wind Electric Power Generation 459 135 22 16
\2\.
221122...................... Electric Power Distribution 1,233 1,169 0 0
\3\.
113310...................... Logging \4\................... 7,992 7,977 up to 13 <1
236115...................... New Single-family Housing 49,215 49,143 up to 13 <1
Construction (Except For-Sale
Builders) \4\.
236116...................... New Multifamily Housing 3,175 2,851 up to 13 <1
Construction (Except For-Sale
Builders) \4\.
236117...................... New Housing For-Sale Builders 15,483 15,099 up to 13 <1
\4\.
236118...................... Residential Remodelers \4\.... 103,079 102,998 up to 13 <1
236210...................... Industrial Building 2,997 2,847 up to 13 1
Construction \4\.
236220...................... Commercial and Institutional 38,079 36,100 up to 13 <1
Building Construction \4\.
237310...................... Highway, Street, and Bridge 8,826 8,198 up to 13 <1
Construction \4\.
237990...................... Other Heavy and Civil 4,165 4,052 up to 13 <1
Engineering Construction \4\.
488210...................... Support Activities for Rail 564 484 up to 13 3
Transportation \4\.
212221...................... Gold Ore Mining \4\........... 147 132 up to 2 2
----------------------------------------------------------------------------------------------------------------
\1\ Data is from the latest Statistics of U.S. Businesses (SUSB) tables that contain information on receipts,
which is from 2017.
\2\ The number of potentially impacted small businesses is based on the distribution of businesses by enterprise
size from 2017 SUSB data tables, the total number of estimated annual permits, and the small business
standards threshold from SBA.
\3\ Permitting will be required at a large utility scale similar to existing Special Purpose Utility permits
(SPUT permits) that the Service issues.
\4\ We estimate that the number of nest disturbance and nest take permits will be similar to the number issued
over the last 5 years: 677. The non-electric and wind power generation NAICS represent sectors that have
historically requested permits. We evenly distributed the estimated total amount of disturbance and take
permits across all sectors, with the exception of gold ore mining, for the 5-year period, which comes to 67
permits. Gold ore mining entities have historically applied for only 1 to 2 permits per year, or up to 10 over
a 5-year period. We also assumed an evenly distributed number of permits across each year, 13, for the
remainder of the sectors.
[[Page 9946]]
In the last 5 years (2017 through 2022), the Service has issued 26
permits to wind-energy generation facilities and 677 specific permits
to other entities, which averages about 141 permits annually. For the
677 non-wind specific permits, most were issued to businesses and to
government agencies, and the remaining were issued to individuals. The
number of specific permits issued under this rule over the first 5
years may be higher or lower than the existing permit program under the
2016 regulations due to the creation of general permits and the
remaining complexity associated with specific permits. General permits
typically allow the regulated community to apply for and obtain a
permit more easily, particularly when projects are designed at the
outset to comply with general-permit eligibility criteria. Specific
permits are available to wind-energy-project applicants that do not
meet general-permit eligibility criteria. Based on these assumptions,
we estimate that the number of specific permits under this rule will be
similar to the number of existing permits over the last 5 years, which
is close to 30 permits. Although small, noncommercial, wind-energy
facilities (e.g., single-turbine facilities connected to public
buildings) could apply for incidental take permits, we anticipate that
most of the applications for wind-energy facilities will be for
utility-scale projects. The largest expected impacts to small
businesses under this rule would be an increase in the number of
permits issued to wind-energy generation facilities due to the changes
being made in the application requirements and the availability of
general permits and the inclusion of general and specific permits
tailored to power-line entities. We expect that this rule will impact
16 percent of wind-energy generation small businesses, with the
expected costs of such permits described in tables 3 (general permits)
and 4 (specific permits), and a breakdown of general permits by
enterprise size category in table 5.
Electric power distribution entities are eligible for both general
and specific incidental take permits in the proposed regulation.
However, based on the NAICS definitions, we assume that none of the
potential electric power distribution permittees would be small
businesses.
Businesses that apply for nest take and nest-disturbance permits
typically include home construction, road construction, and various
other construction projects. We assume that the number of nest take and
nest disturbance permits will continue along this trend over the next 5
years. For this analysis, we evenly distributed those permits across
industry sectors that best represent the NAICS industry sectors that
applied for permits historically. We anticipate the number of permit
applicants in those sectors would be relatively small, on the order of
1 to 13 per year for each sector, except gold ore mining, which
historically applied for only 1 to 2 permits annually. As a result,
this rule will impact less than 1 to 2.5 percent of small businesses in
NAICS sectors 236115, 236116, 236117, 236118, 236210, 236220, 237310,
237990, 488210, and 212221. The cost per entity for nest take and nest
disturbance permitting under this rule is minimal, totaling $100 per
eagle or nest, per year. The minimal cost of these permits is not
expected to result in a significant impact to small businesses in these
sectors, regardless of the total percentage of small businesses
impacted as a whole.
As described above, the wind-energy generation industry is the only
industry for which specific and general permits could result in a
significant impact on small businesses. Table 3 shows the expected
difference between 5-year costs for specific permits and 5-year costs
for general permits for wind-energy generation facilities. Wind-energy
generation facilities will pay less for a general permit compared to
the costs associated with a standard permit under the 2016 regulations.
The permit application fee (including costs for auditing) is reduced
from $36,000 to $1,000 for a general permit. In addition, applicants
will pay an administration fee of either $2,500 (Tier 1) or $10,000
(Tier 2), as compared to the existing specific permit administration
fee of $8,000. Compensatory mitigation costs for general permits for a
wind-energy project will average $37,200. This is a significant
decrease from the specific-permit cost under the 2016 regulations of
$960,000 (using our calculation from the EA of $120,000 as the cost of
an eagle credit). The average costs for monitoring for a wind-energy
project will be negligible, a cost savings from the specific permit
monitoring cost estimates of $1,100,000 under the 2016 regulations. The
total estimated cost savings between a specific permit under the 2016
regulations and a general permit under this regulation is therefore
slightly over $2,000,000 per permit (depending on whether the project
is a Tier 1 or a Tier 2 project). The total number of estimated permits
shows an estimated overall increase in industry costs associated with
permitting under this rule, but only because the Service expects a
substantial jump in participation across industry due to the
improvements in the permit process and reduction in costs and time
required per permit.
Table 3--Wind General Permit Costs and Savings
[5-Year costs]
----------------------------------------------------------------------------------------------------------------
Specific--2016
Cost category regulations General--this rule Cost savings (average)
(average) (average)
----------------------------------------------------------------------------------------------------------------
Permit application fee................. $36,000 $1,000.................... $35,000.
Administration Fee..................... 8,000 2,500 (Tier 1); 10,000 5,500 (Tier 1); (2,000)
(Tier 2). (Tier 2).
Compensatory Mitigation Costs.......... 960,000 37,200.................... 922,800.
Monitoring Costs....................... 1,100,000 0......................... 1,100,000.
------------------------------------------------------------------------
Total Cost......................... 2,104,000 40,700 (Tier 1); 48,200 2,063,300 (Tier 1);
(Tier 2). 2,055,800 (Tier 2).
----------------------------------------------------------------------------------------------------------------
Table 4 displays the new cost for specific permits under this rule
compared to the cost for specific permits under the 2016 regulations.
Under this rule, entities will pay $1,080,000 for compensatory
mitigation, an increase of $120,000 from the $960,000 cost under the
2016 regulations. These costs have increased due to updates in the
estimated amount of required mitigation for projects in the specific-
permit category. The Service may issue three types of wind-energy
specific permits under this rule. Tier 1 permits are for the simplest
types of
[[Page 9947]]
projects and would require a $10,000 permit-application cost. Tier 2
permits are similar to existing specific permits and require a $26,000
permit application cost. Tier 2 with reimbursable agreement permits
require permittees to pay for staff time via a reimbursable agreement
above and beyond the $26,000 permit application cost. For purposes of
this analysis, we assume that the average specific permit will be a
Tier 2 permit with the same permit-application cost as the specific-
permit structure under the 2016 regulations. Entities will continue to
pay their own monitoring costs estimated at $1,100,000 over the life of
the permit. As a result, the total average cost increase to entities
receiving a wind-energy specific permit under this rule is $112,000.
Table 4--Wind Energy Specific Permit Costs and Savings
[5-Year costs]
----------------------------------------------------------------------------------------------------------------
Specific--2016 Specific--
Cost category regulations this rule Cost savings
(average) (average) (average)
----------------------------------------------------------------------------------------------------------------
Permit Application Fee........................................ $36,000 $26,000 $10,000
Administration Fee............................................ 8,000 10,000 (2,000)
Compensatory Mitigation Costs................................. 960,000 1,080,000 (120,000)
Monitoring Costs.............................................. 1,100,000 1,100,000 0
-------------------------------------------------
Total Cost................................................ 2,104,000 2,216,000 (112,000)
----------------------------------------------------------------------------------------------------------------
Businesses in the ``wind electric power generation industry'' are
defined as small if they have fewer than 250 employees. The 2017 SUSB
Annual Data Tables report the annual payroll amounts by industry that
fall within enterprise size categories. The data for ``wind electric
power generation'' does not contain a range for businesses with under
250 employees; the closest reporting range is fewer than 500 employees.
Table 5 shows a range of receipts by enterprise size and establishment
count as well as the projected percentage of receipts impacted by this
rule both at the individual establishments level and the total for that
enterprise size. The wind-energy project general-permit cost will be
paid in full at the time of the permit application; therefore, the 5-
year cost of $48,200 is assessed in the first year. This cost would
then be assessed again at the renewal of the permit in 5 years. Due to
this being a one-time cost that covers a 5-year period, this amount
equates to at most one percent of total annual receipts by enterprise
size (table 5). As a result, this cost will not create a substantial
impact on small businesses or specific industries. We base this
determination on permit costs for general permits. The number of
specific permits issued is expected to follow the same trend as under
the 2016 regulations, and permits are likely to be issued in areas of
higher risk to eagles to large, complex facilities that are well above
the industry-standard payroll amount. Therefore, we do not expect any
impacts to small businesses associated with these specific permits.
Table 5--Range of Receipts Impacted by This Rule: Wind Electric Power Generation General Permits
[Using 2017 SUSB annual data table]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average receipt
Annual for size Annual cost per Number of Total annual % Annual % of
Enterprise size \1\ Establishments receipts (=receipt/ permit for establishments of receipts receipts for
($1,000) establishments) establishment impacted impacted by impacted
($1,000) annually \2\ this rule establishments
--------------------------------------------------------------------------------------------------------------------------------------------------------
01: Total......................... 459 $8,001,761 $17,433 $48,200 74 0.04 0.3
02: <5 employees.................. 45 80,905 1,798 48,200 7 0.42 2.7
03: 5-9 employees................. 8 14,478 1,810 48,200 1 0.33 2.7
04: 10-14 employees............... 7 15,873 2,268 48,200 1 0.30 2.1
05: 15-19 employees............... 8 39,960 4,995 48,200 1 0.12 1.0
06: <20 employees................. 68 151,216 2,224 48,200 11 0.35 2.2
12: 50-74 employees............... 9 98,897 10,989 48,200 1 0.05 0.4
19: <500 employees................ 135 1,469,292 10,884 48,200 22 0.07 0.4
24: 2,000-2,499 employees......... 12 75,879 6,323 48,200 2 0.13 0.8
25: 2,500-4,999 employees......... 11 91,973 8,361 48,200 2 0.10 0.6
26: 5,000+ employees.............. 240 5,368,670 22,369 48,200 39 0.04 0.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 2017 NAICS thresholds for ``Wind Electric Power Generation'' (NAICS 221115) define small businesses as having fewer than 250 employees.
\2\ The number of establishments impacted annually is based on the weighting of the number of establishments in that enterprise size compared to the
total number of establishments. That weight value was multiplied by the total number of estimated annual permits (74) to derive the figures shown.
Note that the total sum of <500 and the enterprise sizes greater than 500 will not total 74 due to missing enterprise size categories from the SUSB
2017 data tables.
While electric-power-distribution companies are currently eligible
to apply for a specific permit, under this rule, these entities are
eligible to apply for general permits. The permit application fee for
these general permits is $1,000, and the administration fee is either
$2,500 (for Tier 1 permittees) or $10,000 (for Tier 2 permittees). The
costs for power-pole retrofits called for under the proactive retrofit
strategy are estimated to be $0. Many larger utilities already have
existing avian protection and retrofit strategies in place and would
not incur new costs or benefits associated with the proposed retrofit
strategy. For entities without an avian protection plan and a retrofit
strategy in place, we expect that the retrofit requirement for a
general permit will not create substantial new costs for those
entities. Any costs associated with retrofitting power poles to be
avian-safe (estimated from approximately $500-$2,500 per pole) would be
at least partly recouped by increased reliability and a reduction in
costs associated with eagle-
[[Page 9948]]
electrocution response. The Service assumes that the primary interest
in permits in the first 5 years would be from firms with existing
special-purpose-utility permits to salvage dead birds. These firms with
known incidental take of eagles will benefit from a permit authorizing
that take. No existing special-purpose-utility permit holder is a small
business, and, therefore, there will not be a substantial impact to
small businesses from this rule.
A commercial business applying for a standard nest disturbance or
nest take permit under the 2016 regulations would have to pay $500 per
nest per year, while a noncommercial entity would pay $100 per nest per
year. Under this rule, both commercial and noncommercial permittees
would pay $100 per nest per year for a general permit. Businesses in
the construction industry are defined as small if they have annual
revenue less than $36.5 million. Depending on the type of permit
applications submitted by an individual small business, the permit fees
represent less than one percent of revenue. Thus, the creation of a
general permit will not have a significant economic effect on a
substantial number of smal
[…truncated; see source link]Indexed from Federal Register on February 12, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.