Under the Bald and Golden Eagle Protection Act, take, possession, and transportation of bald and golden eagles is prohibited, unless determined to be compatible with eagle preservation and authorized under regulations issued by the U.S. Fish and Wildlife Service ("USFWS"). (16 U.S.C. § 668a). USFWS recently issued a final rule adding general eagle take permits for qualifying wind energy and power line projects to its existing eagle take permitting program. The revised rule also authorizes general permits for bald eagle disturbance and take of bald eagle nests under certain circumstances. The new general permits should significantly streamline the eagle take permitting process for qualifying projects. Specific (i.e., individual) permits are still available for projects and activities that do not qualify for a general permit under the new program.1

Issuance of eagle take permits was first authorized by USFWS in 2009, and since 2016 individual eagle take permits (which have been known, confusingly, as "programmatic permits") with a term of up to 30 years have been available. However, the individual eagle take permitting process has often taken years to complete and has been expensive for applicants. USFWS's new program will simplify the permitting process for qualifying wind energy and power line projects by allowing them to "self-certify" and register for coverage under a general permit, thus finally making the process actually "programmatic."

To qualify for coverage under the new wind energy general permit, a project must be in an area that presents low risk to eagles. Specifically: (1) a project must be located in an area with eagle abundance below the thresholds specified in the new rule, and (2) all turbine infrastructure must be located at least two miles from the nearest golden eagle nest and at least 660 feet from the nearest bald eagle nest. Both existing and proposed projects that do not meet these criteria may still seek an individual eagle take permit, and existing projects may also apply for a letter of authorization to obtain coverage under a general permit. Both general and individual wind energy permittees must provide compensatory mitigation and implement a wide variety of avoidance and minimization measures to reduce the likelihood of take. While individual permits may be issued with a maximum term of up to 30 years, wind energy general permits will be valid for five years from the date of registration. General permittees may reapply for a new five-year permit following expiration of the prior five-year general permit term. Changes in eagle abundance or nest proximity occurring during the term of a project's first general permit will not disqualify the project from receiving a subsequent general permit, provided it has discovered fewer than four dead or injured eagles of any one species during the previous permit term and has had no lapse in general permit coverage.

The wind energy general take permit does not include authorization for eagle take resulting from power lines, but take associated with operation of project power lines may be obtained through the new power line general permit. All power line entities are eligible for coverage under the power line general permit, provided they can comply with the permit's standardized conditions. Among other things, these conditions require power line entities to develop collision response, proactive retrofit, reactive retrofit, and shooting response strategies. As with wind energy general permits, power line general permits will be valid for five years from the date of registration, and general permittees may reapply for a new five-year permit following expiration of the prior five-year general permit term. Both general and individual power line permittees will also be required to provide compensatory mitigation and implement extensive avoidance and minimization measures to reduce the likelihood of take.

The new rule also authorizes general disturbance take permits for some activities occurring near bald eagle nests. General permits for bald eagle disturbance and nest take will be valid for up to one year, and individual permits will be valid for up to five years. Individual permits will still be necessary for activities causing disturbance of golden eagles, take of golden eagle nests, or for disturbance of bald eagle nests resulting from activities that aren't specified in the new regulations.

While USFWS's new regulations should dramatically simplify the eagle take permitting process for qualifying projects, it is not clear how meaningful the new general permit program's streamlining benefits will be for renewable energy development. For example, the new wind energy general permit's eagle abundance and nest proximity eligibility criteria may significantly reduce the availability of general permits in areas where eagle take is more likely to occur. Under these circumstances, a specific permit will be required. Unfortunately, obtaining such permits may be as time-consuming and expensive as permits available under USFWS's prior regulations. Under the new rule, solar energy projects located near golden eagle nests would also still need to undergo the expensive individual permitting process to address construction-related disturbance or disturbance resulting from removal of foraging areas. Solar energy companies may want to ask USFWS to consider adding general permits for solar projects if they would otherwise need a specific permit for disturbance resulting from removal of foraging area or project activities occurring near nests.

Footnote

1. The new rule refers to individual, project-specific permits as "specific permits.

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