Final Regulations for Eagle Incidental Take

On December 15, 2016, The U.S. Fish and Wildlife Service (USFWS) finalized the latest version of its eagle permitting regulations. The rule, first issued in 2009, governs the USFWS’s administration of the Bald and Golden Eagle Protection Act (BGEPA), which makes it a criminal offense to kill or injure a bald or golden eagle. Because the law allows for certain “incidental take”—unintentional deaths due to otherwise lawful activities—the USFWS must decide what activities qualify and how they are to be monitored. The new rules will take effect January 15, 2017.

The changes to the regulations are intended to clarify regulations and improve implementation and compliance through updated definitions, standardization, and application of current information on eagle populations and fatality estimation. There are no structural changes to the issuance process, but many of the proposed changes represent a significant step forward for applicants seeking regulatory certainty through the eagle permitting process. Key provisions of the new rules include the following:

• Take of golden eagles may now be permitted east of the 100th meridian, which essentially bisects the central US wind resource corridor. The previous rule prevented the USFWS from authorizing take of golden eagles east of the 100th meridian. The revised rule allows the USFWS to issue permits for golden eagle take in this region if the take will be offset and the issuance criteria are met.
   
• Permits for take of eagles will now be referred to as “incidental take permits” rather than “non-purposeful take permits” and the distinction between standard and programmatic permits has been eliminated. This distinction has also been removed for eagle nest take permits.
   
• The maximum permit duration is extended from 5 years to 30 years. In the Federal Register notice, the USFWS acknowledges that “[t]he 5-year maximum duration for programmatic permits appears to have been a primary factor discouraging many project proponents from seeking eagle take permits”. For permits with durations greater than 5 years, the following conditions would apply:
  • Monitoring must be conducted by qualified, independent entities that will report directly to the USFSW and provide permit applicants with copies of reports and other materials.
  • In addition to annual reports, permit applicants 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.
     
• The practicability standard will be applied to all permits. Under the previous rule, applicants for standard (non-programmatic) permits were required to reduce potential take to a level where it was “practicably” unavoidable, but applicants for programmatic permits were required to meet a higher standard; reducing take through the implementation of advanced conservation practices (ACP) to a level where remaining take is “unavoidable”. The revised rule applies the “practicability” standard to all eagle take permits and removes the “unavoidable” standard from the permit program. Thus, all permits will contain the standard that take must be avoided and minimized to the maximum degree practicable.
   
• 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. In addition, the USFWS will not require permit applicants to use the USFWS 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.
   
• Standardized requirements for compensatory mitigation are added. The previous rule did not include specific compensatory mitigation regulations. The revised rule requires compensatory mitigation where the permitted take is inconsistent with management goals (e.g., where take exceeds eagle management unit take thresholds).
   
• The new rules include several modifications to the permit fee schedule.