The Nickel Report

On February 12, 2024, the U.S. Fish and Wildlife Service (USFWS or the Service) published a final rule revising the regulations governing the issuance of eagle take permits (ETPs) under the Bald and Golden Eagle Protection Act.  89 Fed. Reg. 9920 (Feb. 12, 2024).  The rule revises certain requirements for individual permits – referred to as “specific” permits in the rule – and creates a new program of general permits covering certain activities.  Activities for which general permits will be available include (i) incidental take of bald and golden eagles associated with qualifying wind energy projects, (ii) incidental take of bald and golden eagles associated with power line infrastructure, (iii) certain activities that may cause bald eagle disturbance take, and (iv) certain categories of bald eagle nest take.  We previously reported on the proposed version of the rule, which was published in September 2022.

Establishment of General Permits for Certain Activities

For the first time, the Service is creating general permits for incidental take of eagles from certain activities that, according to the Service, present “relatively consistent and low risk to eagles and [for which there are] well-established avoidance minimization and compensatory mitigation measures.”  89 Fed. Reg. at 9921.  To secure coverage under a general permit, applicants will identify their eligibility independently and register with the Service.  The general permits offer the opportunity for substantial reduction in enforcement risk for the wind energy industry, where developers have had to choose between the lengthy and expensive individual ETP process put in place in 2009 and revised in 2016 and reliance on enforcement discretion. 

General Permits for Wind Energy

The Service estimates that more than eighty percent of existing land-based wind energy turbines in the contiguous United States may be eligible to rely on a general permit for eagle take.  (The rule specifies that wind energy projects in Alaska, Hawaii, island territories, and offshore wind projects are not eligible to rely on the general permit and should apply for a specific permit for incidental take of eagles, as appropriate.) 

The eligibility criteria for a wind energy general permit are based on a combination of relative eagle abundance, as specified by regulation, and proximity to eagle nests at the time of application.  In order to be eligible, all turbines at the wind facility (including the space occupied by turbine blades and other turbine infrastructure) must be located (i) in an area with relative eagle abundance less than the threshold identified by the Service (provided at 50 CFR § 22.250(c)(1)(2) for each of bald and golden eagles, by season) and (ii) at least two miles from the nearest golden eagle nest and at least 660 feet from the nearest bald eagle nest.  Permits conditions are specified at 50 CFR § 22.250(f) and include requirements to:

• develop and implement an adaptive management plan;
• take measures to remove and avoid creating anthropogenic features that may increase the risk of take by attracting eagles to the project area (such as carcass removal programs);
• minimize collision and electrocution risks;
• submit reports to the Service; and
• provide compensatory mitigation, by obtaining eagle credits from a Service-approved conservation bank or in-lieu fee program in an amount based on the hazardous volume of the project (as calculated through an equation provided by regulation that factors in the number of turbines at the project, the diameter of the turbine blades and take rates specified by eagle management unit). 

Each general permit for eagle take from wind projects will be available for a five-year term and may be renewed, provided that the project remains in compliance with all other general permit terms.  A general permittee will remain eligible to renew its permit even if the Service has issued revised eagle relative abundance thresholds for the area where the project site is located, or if new eagle nests are constructed within the setback distances specified for bald and golden eagles, provided that the project remains in compliance with all other general permit requirements.  This includes a requirement that no more than four eagle carcasses or injured eagles of the same species are discovered at the project within a five-year term.  The regulations specify that a general permittee is required to notify the Service if three dead or injured eagles of the same species are discovered at the project within the general permit tenure, and implement an adaptive management plan; if a fourth eagle is discovered at the project, the permittee must repeat these steps and the project will no longer qualify for eligibility under the general permit in future years.  General permittees will be required to train employees to look for, recognize, and report eagle take as part of their regular duties.

Turbines authorized under the original general permit will remain eligible for coverage, regardless of any change in project or turbine ownership.   However, continued eligibility will not apply if turbines are added to a project or in the event of a lapse in coverage.  If turbines are added to an existing project covered under a general permit, the new turbines must meet the qualifications for a first-time general permit, and the entire project must qualify for a first-time general permit if there is a lapse in coverage. 

According to the preamble of the final rule, the Service estimates that more than 80% of existing land-based wind turbines may be eligible for general permit coverage.  For existing wind projects that do not meet the general permit eligibility criteria, the rule states that the project may submit an application for a specific ETP and include a letter requesting authorization to rely on the general permit.  The Service will issue a letter authorizing the project to rely on the general permit if it determines, based on site-specific information including any available pre- and post-construction data, that take rates at the project are likely to be lower than or consistent with eagle take rates at similar-sized wind projects that qualify to rely on the general permit.  General permit registration for wind energy projects is expected to be available beginning on May 6, 2024.

General Permits for Other Activities

The rule also creates general permits for eagle take from power line activities, disturbance, and take of eagle nests. 

Power Line Activities

The general permit for power lines activities will cover bald and golden eagles and is available to any power line entity that can comply with the standard conditions specified in the regulations.  These conditions include the development of four strategies: 

• a collision response strategy, which describes the process to identify collision-caused mortality events, evaluate factors, and implement risk-reduction strategies;
• a proactive retrofit strategy, which describes how existing infrastructure will be converted to avian-safe;
• a reactive retrofit strategy, which describes how infrastructure will be retrofit to avian-safe in response to an eagle electrocution or death; and
• a shooting response strategy, which 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. 

These strategies may be incorporated into an Avian Protection Plan or documented as stand-alone strategies.  In addition to developing and implementing these strategies, power line entities relying on the general permit are required to train onsite personnel to scan for and report the discovery of eagle remains, to 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 to the extent practicable.  Compensatory mitigation is required, as specified by regulation.  Registration for the general permit for power line activities is available in five-year terms and is expected to be available beginning on May 6, 2024.

Bald Eagle Disturbance and Take of Bald Eagle Nests

The general permit for disturbance authorizes take of bald eagles only resulting from one or more of the following activities, within distances specified by regulation: 

• 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. 

The general permits will cover the activity itself, as well as pre-construction and associated geotechnical work.  The setback distances specified are from bald eagle nests, and most are within 660 feet; setback distances for other activities include within 330 feet for both motorized and non-motorized recreation, within 1,000 feet for aircraft operation, and within 0.5 mile for loud, intermittent noises (such as blasting).  The rule specifies that activities beyond these distances do not require a permit, as they are unlikely to cause disturbance.  The Service also identifies certain additional activities in the preamble to the rule that do not require a permit, including hazing (the use of non-lethal methods to disperse eagles) that is not conducted adjacent to an in-use nest, as well as regularly-occurring activities within the specified distances that pre-date an eagle pair’s selection of a nest site, are therefore assumed tolerated by the eagles.

General permits for take of bald eagle nests are available to the public under the following circumstances and purposes: 

• emergency (i.e., when necessary to alleviate an existing safety emergency for humans or eagles);
• when the removal is necessary to ensure health and safety;
• take of an eagle nest built on a human-engineered structure that creates, or is likely to create, a functional hazard that renders the structure inoperable for its intended use; and
• nest take in Alaska only for other purposes. 

In addition, a general permit is available to federal, state, or tribal agencies for take of bald eagle nests for protection of species listed as endangered or threatened under the US Endangered Species Act. 

The general permits for disturbance activities and eagle nest take are not available for impact to golden eagles.  Registration of each of the general permits is each available in maximum one-year terms and is expected to be available beginning on July 8, 2024. Compensatory mitigation is not required under these general permits.

Changes to Regulatory Requirements for Individual Permits

Through the final rule, USFWS is also making several changes to the existing ETP regulations, intended to streamline the permitting process, provide greater regulatory certainty to stakeholders, and encourage participation in the ETP program.  As proposed, the rule eliminates the requirements for third-party monitoring and five-year reviews in most cases.  In the preamble to the rule, USFWS explains that it retains the ability to require third-party monitoring on a case-by-case basis, particularly where there are compliance concerns, and that the Service or the permittee may initiate periodic check-ins (not necessarily at five-year intervals) in response to events that warrant review.  With respect to elimination of the five-year review requirement imposed in 2016, when USFWS extended the maximum term for ETPs to 30 years, the Service acknowledges that “the [five]-year requirement has introduced unintended uncertainty which, according to public comment, has reduced participation in eagle take permitting.”

The rule also states that the Service will no longer specify a take limit in ETPs, so permittees will not be considered out of compliance for exceeding a specified number of eagle takes.  The Service will continue to estimate take levels on an individual-permit basis and may require additional compensation or otherwise require amendments to ETPs in the event that take is greater than expected.  The rule also provides several clarifying revisions to the ETP program, including modifying the definition of “eagle nest” to exclude nest structures that become so diminished or that are located on failed substrate and therefor are no longer useable.  Additionally, the Service revised the definition of “in-use-nest” to clarify that the eggs referenced in definition must be viable, allowing the possibility that nests that are no longer in use but that contain nonviable eggs can be removed.

The rule retains a 30-year maximum term for specific permits for wind projects and power line entities, and a maximum term of five years for disturbance and eagle nest take.  The rule is scheduled to take effect on April 12, 2024.