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U.S. Fish and Wildlife Service Streamlines Bald and Golden Eagle Protection Act Permitting for Wind Energy and Power Line Projects

On February 12, 2024, the U.S. Fish and Wildlife Service (USFWS) released its final rule revising its permit regulations for “take” under the Bald and Golden Eagle Protection Act (BGEPA), an overhaul that has been several years in the making. The updated regulations establish, for the first time, general permits for incidental take, two of which are focused on wind energy and power line projects. The rule also updates and simplifies the regulations for specific permits.

What’s New

General permits for incidental take associated with (1) wind energy, (2) power lines, (3) other specified activities that result in eagle disturbance, and (4) narrow categories of activity that result in the take of bald eagle nests:

  • Incidental Take General Permits Generally: An “incidental take” is a take (for example, wounding, killing, disturbing) that is foreseeable and results from an activity, but is not the purpose of that activity. The new general permits for incidental take apply to different categories of activities. As their names suggest, the wind energy and power line permits apply to construction and operation of those types of infrastructure. The disturbance general permit is available for a wider range of activities, including constructing buildings, constructing and maintaining linear infrastructure, and altering shorelines and vegetation. The general permit for incidental take of eagle nests is the most limited, as it only allows impacts to bald eagle nests (and not golden eagle nests) and only when the activity is justified in an emergency or to protect, for example, health and safety.
  • Coverage: For new projects seeking to rely on a general permit, an applicant must self-identify eligibility, register with the USFWS, and then comply with the general permit’s conditions and reporting requirements. General permits covering take associated with wind energy and power line projects are valid for five years from the date of registration. The general permit for other activities that may result in eagle disturbance and the general permit for impacts to bald eagle nests are each valid up to one year. USFWS states that it will audit approximately 1 percent of general permit registrants each year to ensure compliance.
  • Take from Wind Energy Projects: The wind energy general permit is limited to land-based wind turbines in the lower 48 states. In addition, to qualify for the wind energy general permit, a project must be located in an area that is low risk to eagles. New turbines must be two miles from any golden eagle nest and 660 feet from any bald eagle nest. In addition, the USFWS will apply criteria that considers the relative abundance of eagles. Existing projects that cannot meet these various location-based criteria may, as part of specific permitting, request a letter of authorization to be covered by the general permit, which USFWS says it will grant if the existing project’s take rates are consistent with, or lower than, take rates at similar-sized wind facilities that qualify for the general permit. Wind energy general permits require compensatory mitigation in the form of eagle credits from approved conservation banks or in-lieu fee payments, in each case, based on metrics related to the physical size of hazard areas around turbines and location in the country.
  • Take from Power Lines: Qualifying for the power line general permit is based on meeting a set of standardized conditions and implementing four plans. Those plans govern how the permittee will (1) respond to and reduce collision-caused take, (2) proactively retrofit existing infrastructure, (3) reactively retrofit infrastructure in response to incidents, and (4) cooperate with law enforcement if shooting is the suspected cause of eagle mortality or injury.
  • Disturbance Take: The general permit for disturbance take is available for a wider variety of activities that may agitate a bald eagle to a degree that causes, or is likely to cause: (1) injury; (2) a decrease in eagle productivity by interfering with normal breeding, feeding, or sheltering behavior; or (3) nest abandonment. Unlike the general permits for wind energy or power lines, this take permit does not cover activities resulting in eagle mortality. The USFWS retained the existing definition of “disturb” but provided additional statements in the rule’s preamble providing guidance on its views of what does and does not constitute a disturbance take. Although preamble guidance is not legally binding as part of the agency’s rule, the regulated public may look at the preamble to understand how the agency intends to approach ambiguities or gaps that it failed to address in the actual rule. In its preamble, the USFWS states that “hazing” (the use of non-lethal methods to disperse eagles from a site) does not constitute disturbance requiring a permit, unless it is adjacent to an in-use nest and disrupts breeding activity. The USFWS also identifies buffer distances from eagle nest sites where it believes activities within the buffer may cause a disturbance, and clarifies its view that activities occurring outside of the buffer do not require a permit because they are unlikely to cause a disturbance. The USFWS further acknowledges that regularly occurring activities within the buffer zones that pre-date an eagle pair’s selection of a nest site are assumed to be tolerated, unlikely to cause a disturbance, and do not require a permit.
  • Bald Eagle Nest Take: General permits authorizing the take of bald eagle nests are only available for activities justified as necessary to alleviate an existing or rapidly developing safety emergency for humans or eagles, to ensure public health and safety, to address a nest on a human-engineered structure that creates a functional hazard making the structure inoperable, to protect a species protected under the Endangered Species Act, and certain “other purposes” where the take or its mitigation will provide a net benefit to bald eagles. In sum, general permits for bald eagle nest take focus on situations that are typically hazardous to bald eagles or where the eagles benefit from resolving the situation requiring the permit or where there is an urgent human health or safety need. Any take of a golden eagle nest will still require a specific permit. In its preamble, the USFWS clarified that the “take” of a nest includes relocating or obstructing a nest.

Updates to specific permit requirements when an activity cannot qualify for a general permit:

  • Specific permits remain available to authorize the take of bald or golden eagles for activities that cannot meet the requirements of a general permit. Specific permits for wind energy and power lines are valid for up to 30 years. Specific permits for disturbance or nest take are valid for up to five years.
  • The USFWS has revised the specific permit provisions for wind energy and power lines to sort projects into tiers by project complexity and the amount of time it will take the USFWS to review the application — Tier 1, Tier 2, and Tier 2 with a reimbursement agreement. However, the graduated costs associated with projects under each tier may be overshadowed by some procedural realities associated with the different tiers. For example, Tier 1 projects are those that can comply with the general permit conditions or require only minor modifications, and among other requirements, also qualify for being categorically excluded from requiring additional National Environmental Policy Act (NEPA) review. Tier 2 projects are those that grow in complexity, not only in terms of agency time required for permit review, but also in terms of whether the USFWS will need to complete additional NEPA review — a process that often takes many months or longer.

Updated take thresholds and limits:

  • The final rule updates thresholds and take limits to reflect the most recent analyses on eagle populations. Permits will no longer specify a number of eagles that may be killed or injured; instead, the USFWS will track the estimated number of eagles and use this number to calculate compensatory mitigation requirements. This means that permittees will no longer automatically be out of compliance with their permits for exceeding a certain number of eagle takes.
  • The USFWS reserves for itself the prerogative to suspend the general permit program in whole or in part to address potential concerns, such as the status of any local area population.

General permit registration for wind energy and power lines is anticipated to be available beginning on May 6, 2024, and for disturbance and nest take, July 8, 2024. General permits will be registered via an online system. However, project proponents may apply early by completing an application form by email. After the online registration system is available, early applicants will then have 10 business days to register via the system, or the previous coverage will become void. Registration for disturbance and nest take permits is anticipated to begin on September 1, 2024, after the 2024 nesting season ends.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.