On December 16, 2016, the U.S. Fish and Wildlife Service (USFWS) published in the Federal Register its final changes to eagle permitting regulations (Final Rule). Although the revised regulations pertain to all nonpurposeful take of eagles and eagle nests, specific requirements are included for wind energy facilities. The new rules will take effect January 15, 2017. Applicants submitting permit applications before July 14, 2017, may choose to be reviewed for coverage under the current regulations.

The changes are primarily intended to clarify regulations and improve implementation and compliance through updated definitions, standardization, and application of current information on eagle populations and fatality estimation. Other revisions include an extension of the maximum permit duration to 30 years, permit availability for golden eagles east of the 100th meridian, and specific monitoring and reporting requirements and fees. 

We have provided highlights of the revised regulations and potential implications for wind facility developers and operators. This is not a comprehensive summary, and our experts are continuing to review the revised regulations and associated documents to determine all possible ramifications.

Permit Availability and Permit Terms

• Take of golden eagles may now be permitted east of the 100th meridian.
• Permits for take of eagles will be referred to as Eagle Incidental Take Permits and the distinction between standard and programmatic permits for nonpurposeful take has been removed. This distinction has also been removed for eagle nest take permits.
• The maximum permit duration is extended from 5 years to 30 years. For permits with durations greater than 5 years, the following conditions apply:
  • Qualified third-parties, approved by USFWS, are required to monitor and assess project impacts and to report directly to USFWS, as well as to provide permittees with copies of reports and other materials. It is Tetra Tech’s understanding that the permittee will be responsible for funding of the monitoring.
  • In addition to annual reports, permittees must provide USFWS with summarized monitoring results at least every 5 years that will be reviewed to assess permit compliance and update future take predictions, authorized take levels, and mitigation.

Preservation Standard

• The Bald and Golden Eagle Protection Act’s standard that authorized take be “compatible with the preservation” of the species is further defined to mean “consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and the persistence of local populations throughout the geographic range of each species.” This modification provides a more focused definition of the geographic scope of breeding populations.
• Take must be reduced to where it is “practicably unavoidable” rather than “unavoidable.” As applied specifically to eagle permits, “practicable” is further defined as “available and capable of being done after taking into consideration existing technology, logistics, and cost in light of a mitigation measure’s beneficial value to eagles and the activity’s overall purpose, scope, and scale.” This modification clarifies factors that are considered by USFWS in assessing compensatory mitigation requirements.
• The requirement for Advanced Conservation Practices (ACP) has been removed from regulations.

Eagle Management Units and Local Area Populations

• The eagle management units (EMU) are revised to follow the four main migratory flyways:
  • Golden eagle – Pacific, Central, combined Mississippi, and Atlantic
  • Bald eagle – Atlantic, Mississippi, Central, and Pacific, with Pacific split into three management units from north to south
  • These EMUs are larger than the previous EMUs, resulting in increased take limits at the EMU-scale.
• Local Area Populations (LAP) are defined to allow finer-scale population analysis, with permits also requiring analyses of cumulative effects at the LAP-scale. Previously described in the USFWS Eagle Conservation Plan Guidance (ECPG), this level of analysis is now included in the regulations.
  • Golden eagle – 109-mile radius from a given project footprint (smaller than previous)
  • Bald eagle – 86-mile radius from a given project footprint (larger than previous)
  • The change in the LAP area for analysis directly correlates with decreased and increased allowable take at the LAP-scale for golden eagles and bald eagles, respectively.

Monitoring Requirements and Collision Risk Modelling for Wind Energy Facilities

• Recommendations for pre-construction eagle use surveys previously published in the ECPG are now incorporated into the regulations as the required minimum standard unless exceptional circumstances apply. Two of the specific survey standards that likely have the greatest implications for survey planning are:
  • Point-based recording of eagle flight activity in minutes for at least 1 hour per survey plot for at least 12 hours per year for 2 or more years;
  • Sample plots must include spatial coverage of at least 30% of the project footprint.
• Permit applicants are not required to use the USFWS Bayesian Collision Risk Model (CRM) to predict the number of eagle fatalities for their permit applications. However, USFWS will continue to use the CRM to generate a predicted number of fatalities for an incidental take permit and will continue to use the 80th quantile as the take limit, except under “exceptional” circumstances.
• To address concerns related to the accuracy of the collision prior in the CRM, USFWS intends to update the collision prior for golden eagles within 18 months using publicly available data collected at operational wind facilities. The USFWS plans to revise the CRM and Appendix D of the ECPG through a public process; this process is expected to include incorporating other eagle risk covariates as well as development of a species-specific collision prior for bald eagles.
• Monitoring for injured and killed eagles and estimation of total take using methods approved by USFWS will be required for permits associated with lethal take. Annual reports must be submitted to the USFWS for each year the permit is valid and up to 3 years after completion of the activity.
• Post-construction monitoring protocols will be determined in the terms and conditions of each permit. Third-party monitoring is required for permits with durations longer than 5 years and may also be required for some permits with shorter durations. Third-party monitors will report directly to USFWS.

Monitoring Requirements and Collision Risk Modelling for Wind Energy Facilities

• The revised regulations provide standardized requirements for compensatory mitigation. Compensatory mitigation will be required when permitted take exceeds authorized take limits at the EMU-scale.
  • The bald eagle take limit is set at 6% of the population for most EMUs (3.8% in Southwest).
  • The golden eagle take limit is set at 0% of the population for all EMUs. 
  • Compensatory mitigation must offset take at a ratio of 1:1 for bald eagles and 1.2:1 for golden eagles.
  • Compensatory mitigation may also be required if persistence of the local population is compromised or there is an unusually high level of unauthorized eagle mortality in the LAP.
• Compensatory mitigation must include compliance and effectiveness monitoring to demonstrate it achieved the intended outcomes and must provide benefits beyond those that would otherwise have occurred.
• USFWS is taking steps to establish third-party mitigation funds and/or conservation banks to facilitate the compensatory mitigation requirements. As such, they plan to develop guidance (e.g., methods, standards for calculating credits, mitigation ratios) for these and other types of compensatory mitigation projects for eagles.

Fees

The revisions include several modification to the permit fee schedule; those most relevant to the wind industry are summarized below.

• Commercial application fees for eagle incidental take and eagle nest take increased $2,000. The new fee is $2,500.
• Commercial amendment fees for eagle incidental take and eagle nest take increased $350. The new fee is $500.
• The Eagle Incidental Take application processing fee remains the same at $36,000. However, for permit terms greater than 5 years, an $8,000 review fee will be assessed for each 5-year review period. This brings the total fees for a 30-year Eagle Incidental Take Permit to $78,500.

Links to the final regulations published in the Federal Register, the Final Programmatic EIS, and the Record of Decision can be found here.