New Regulations to Streamline Permitting for Take of Bald and Golden Eagles

On April 12, 2024, the U.S. Fish and Wildlife Service’s (USFWS) new regulations for eagle take permitting under the Bald and Golden Eagle Protection Act will go into effect. The regulations, issued on February 12, 2024, maintain the specific-permit activities currently authorized by the USFWS and introduce a new general permit system for activities considered lower risk to eagles. The new regulations are expected to streamline federal permitting and provide industry certainty for a wide variety of activities and projects that affect bald and golden eagles, including qualifying wind energy projects, power lines, the construction and maintenance of buildings and linear infrastructure, and vegetation management.

Background

The Bald and Golden Eagle Protection Act was enacted in 1940 and prohibits the “take” (i.e., activities that may cause disturbance, injury, or killing/death, whether intentional or incidental) of bald and golden eagles and their nests and eggs without a federal permit.

To date, project proponents requesting eagle take authorization have been required to obtain an individual (or “specific,” as referred to in the regulations) permit from the USFWS. The new regulations slightly revise the specific permit regime process and establish a new “general” permit process, which is intended to streamline permitting for qualifying activities, with standardized conditions and expedited processing. General permits are authorized for four categories of actions considered lower risk to eagles: (1) incidental take of eagles by qualifying wind energy projects; (2) incidental take of eagles by power line infrastructure; (3) certain activities that may disturb breeding bald eagles; and (4) certain take of bald eagle nests. General permit applicants self-identify eligibility and register with the USFWS.

Specific permits are available for activities and projects that do not qualify for a general permit or if a permittee chooses not to pursue a general permit. Specific permits often have more individualized avoidance, minimization, and mitigation requirements and longer (usually non-renewable) terms than the new general permits. Notably, general and specific permits are similar in that they are only issued to a single permit holder. In cases where multiple entities operate a joint project or seek joint authorization, one entity identifies as the permit holder and must assume legal liability for any other entities under the permit.

According to the USFWS, the new regulations were promulgated because: (1) increasing bald eagle populations have resulted in more interactions with humans and the resulting need for take permits; (2) golden eagle populations are decreasing, in part due to a lack of wind energy project take permits being issued and unauthorized golden eagle take resulting without any mitigation conservation (since 2016, only 26 permits have been issued for more than 1,000 wind energy projects); and (3) the current permitting process is unduly burdensome and leads to uncertainty for those seeking a permit.

 

Wind Energy Incidental Take

The regulation’s new general permit system authorizes the incidental take of bald and golden eagles from the operation of certain wind energy projects. Qualifying projects must be located in the lower 48 states and in areas that meet specified eagle abundance values. Wind energy projects in Alaska, Hawaii, and island territories and offshore wind projects must still apply for take under the specific permit process. In addition, turbines must be situated at least two miles from a golden eagle nest and at least 660 feet from a bald eagle nest. The USFWS may authorize a general permit for existing wind energy projects that do not meet the general permit eligibility requirements if eagle risk at the project is consistent with the risk expected for general permits.

Key general permit conditions include the following:

• Permit Term and Renewal: A general permit is valid for five years and cannot be amended during the term. A general permit can be renewed as long as: (1) the project has had less than four eagle mortalities or injuries of the same species during the previous general permit tenure; (2) the project had no lapse in general permit coverage; and (3) any turbines not authorized under a previous general permit meet the location requirements to qualify for a general permit.
• Adaptive Management: Permittees must develop and implement an adaptive management plan. Permittees must notify the USFWS and implement adaptive management measures if at least three eagles of one species are discovered in the vicinity of project infrastructure during the term of the general permit.
• Risk Reduction: Permittees must remove and avoid creating anthropogenic features that increase the risk of eagle take by attracting eagles to the project site or encouraging foraging, roosting, or nesting behavior. In addition, permittees must minimize collision and electrocution risks. The USFWS’s permit terms and conditions provide more detail on how permittees must meet these requirements.
• Compensatory Mitigation: Permittees must obtain a specified amount of compensatory mitigation credits from a USFWS-approved conservation bank or in-lieu fee program, based on the size and number of turbines and location of the project.

Specific permits include the same avoidance, minimization, and mitigation requirements as general permits, but may include additional conditions such as potential permittee-responsible compensatory mitigation. Specific permits have a maximum term of up to 30 years.

 

Power Line Incidental Take

The new regulations also authorize general permits for incidental take associated with power line activities. A core component of this general permit is retrofitting power lines to be “avian-safe” by providing specified separation between wires, covering exposed parts to reduce electrocution risk if sufficient separation cannot be provided, or burying wires.

Key general permit conditions include the following:

• Permit Term: A general permit is valid for five years (renewable) and cannot be amended during its five-year term.
• Reactive Retrofit Strategy: Permittees must develop a reactive retrofit strategy to convert existing infrastructure in the vicinity of a suspected eagle electrocution or death to be avian-safe.
• Proactive Retrofit Strategy: Permittees must develop and implement a proactive retrofit strategy to convert all existing infrastructure to avian-safe within specified timeframes (50 years for investor-owned utilities and 75 years for non-investor-owned utilities) in areas identified as high risk to eagles.
• Collision Response Strategy: Permittees must develop and implement a collision response strategy that includes identifying collisions, evaluating factors that contributed to a collision, and implementing risk-reduction measures.
• Shooting Response Strategy: Permittees must develop and implement a shooting response strategy that includes identifying if shooting is suspected when killed or injured eagles are found near power line infrastructure; notifying law enforcement of suspected shootings; and, if multiple shooting events occur during the permit tenure, implementing shooting reduction measures.
• New and Replacement Infrastructure: All new construction and replacement projects must minimize risk by siting away from eagle-use areas, and new and replacement poles in high-risk eagle areas must be avian-safe. Permittees are exempt from this requirement if it would unduly impact human health and safety; require overly burdensome engineering; or have significant adverse effects on biological, cultural, or historical resources.

Specific permits for incidental take of eagles by power lines may also be requested and authorized for up to 30 years.

 

Disturbance Take

More than two-thirds of current eagle take permits are for incidental disturbance by activities conducted near bald eagle nests. The new regulation’s third type of general permit authorizes disturbance of bald eagles from the following activities near bald eagle nests:

• Building construction and maintenance
• Construction and maintenance of linear infrastructure (e.g., roads, rail, trails, power lines, and other utilities)
• Alteration of shorelines and water bodies
• Alteration of vegetation (e.g., mowing, timber operations, and forestry practices)
• Motorized and nonmotorized recreation
• Aircraft operation
• Prescribed burn operations
• Loud intermittent noises, such as blasting

General permits are valid for one year (renewable) and do not apply to golden eagles. Specific permits are issued for up to five years (renewable) and may be issued where a bald eagle nest is disturbed by an activity not mentioned above, for golden eagle nest disturbances, and for disturbance caused by the elimination of foraging area within a territory. Compensatory mitigation may be required for specific permits.

Both general and specific permittees must implement measures to avoid and minimize nest disturbance to the maximum degree practicable, avoid activities that may negatively affect the nesting substrate, and monitor and report whether nestlings have fledged from in-use nests. An “in-use nest” is defined as one that “contains one or more viable eggs or dependent young, or, for golden eagles only, has had adult eagles on the nest within the last 10 days during the breeding season.” The new regulations clarify that any eggs in the nest must be viable, which the USFWS presumes to be true unless and until the applicant provides evidence to the contrary (e.g., absence of adults for several days, presence of eggs outside of breeding season, etc.).

 

Nest Take

The last category of new general permit authorizes the take of bald eagle nests for four specific purposes: (1) to alleviate or prevent a safety emergency; (2) to protect health and safety; (3) for protection of human-engineered structures; and (4) for other purposes (applicable in Alaska only since standard regulatory conditions already exist and the state has a robust bald eagle population). General permits will not require monitoring and are valid until the start of the next breeding season, not to exceed one year (renewable).

Specific permits, with a term of up to five years (renewable), are required for the take of any golden eagle nest, as well as for the take of a bald eagle nest that is not eligible for a general permit.

 

Conclusion

The development of the new bald and golden eagle take permitting regulations has been closely monitored by multiple stakeholders since they were first proposed by the USFWS in September 2022. Up until now, individualized permits have been the only option available for the legal incidental take of these eagle species. However, with the introduction of general permits for qualifying wind energy projects, power lines, certain activities that may cause bald eagle disturbance take, and certain categories of bald eagle nest take, the USFWS anticipates a significantly more efficient and effective permitting process for project proponents going forward. For example, the USFWS estimates that more than 80 percent of existing wind turbines in the lower 48 states may be eligible for the new general permit for wind energy projects, and 85 percent of projects that cause eagle disturbance will qualify for the new general permit for disturbance take. The new regulations are expected to streamline the permitting process, provide greater regulatory certainty to project proponents, and encourage increased participation in the eagle take permitting program.