Permitting Updates for Incidental Take of Eagles and their Nests in 2024

The Bald and Golden Eagle Protection Act provides special protections to eagles in the United States beyond protections afforded by the Migratory Bird Treaty Act. The US Fish and Wildlife Service (Service) has detailed new rules that went into effect on April 12, 2024, that streamline the process for receiving an incidental take permit for Bald Eagles (Haliaeetus leucocephalus) and Golden Eagles (Aquila chrysaetos). The Service has created a mechanism for applying for general permits for wind power projects, power lines, disturbance, and nest take. The existing specific permit process was also updated, permit fees were revised, and definitions were clarified as part of these new rules. The goals of the changes are to increase permitting efficiency, improve clarity, and enhance the effectiveness of conservation measures for eagles. Fees should also be reduced for most permit situations.

Eagle Permitting History

The Service manages Bald and Golden Eagles under the Bald and Golden Eagle Protection Act. This act prohibits the taking of eagles except with specific take permits, which authorize the taking from an activity but do not authorize the activity itself.

Following the bald eagle's delisting from the endangered and threatened wildlife list in 2007, the Service established new permit types for incidental take of eagles and eagle nests. These regulations were revised in 2016 to extend their tenure, revise eagle management boundaries, and require preconstruction monitoring for wind energy projects.

In 2021, the Service published a notice informing the public of proposed changes to the permitting process that would expedite and simplify it. These rules went into effect on April 12, 2024 and are the focus of this post.

What Changes are Part of the New Rules?

One of the significant changes in the new regulations includes revised processing provisions for specific eagle permits and the creation of a permitting process for general permits; only specific permits were issued under the old rules. General permits are designed for consistent and relatively low-risk activities for eagles with established avoidance, minimization, and mitigation approaches. Specific permits will continue to be issued for situations where the risk to eagles is uncertain or increased. There are four types of activity-specific eligibility criteria and permit requirements based on activity and type of eagle take:

• Incidental take for permitting wind energy
• Incidental take for permitting power lines
• Disturbance take
• Nest take

Other changes to the new rules include clarifying definitions, changes to the permit fees, and moving content to new sections to improve readability.

Eagle Incidental Take Permits for Wind Energy

General permits

The Service estimates that as much as 80% of wind facilities in the lower 48 states would be eligible for a general permit as opposed to requiring a specific permit. Eligibility for a general permit is based on eagle relative abundance and proximity of eagle nests to turbine infrastructure. The Service maintains an online mapping tool (link opens to login page) to determine an area's relative abundance of eagles. The proximity of nests to turbine infrastructure must be less than 2 miles from a golden eagle nest and less than 660 feet from a bald eagle nest to qualify for a general permit. If three eagles of one species are found within the general permit tenure of five years, the utility must notify the service and implement an adaptive management plan with the goal of reducing eagle fatalities. If more than four eagle carcasses are found within five years, the project will no longer qualify for a general permit.

Specific Permits

Specific permits are for projects that do not meet general permit requirements, which are typically more complex than projects eligible for general permits. There are three tiers of specific permits: Tier 1, Tier 2, and Tier 2, with a reimbursable agreement. Tier 1 permits are for low-complexity projects with site-specific fatality data that agree to use a Service-approved conservation bank and where the Service's issuance of a permit can be categorically excluded under NEPA. Tier 2 permits are for projects that need compensatory mitigation or require detailed evaluation of fatality estimates; these are usually categorically excluded under NEPA as well. Tier 2 projects with a reimbursable agreement are used for complex projects that require a lot of review time; these projects may not be categorically excluded under NEPA.

Other Changes

The Service will no longer specify a specific number of eagles that may be incidentally killed or injured for general or specific permits; thus, permittees will not be considered out of compliance for exceeding an authorized level of eagle take. However, utilities are still responsible for maintaining take under thresholds established by the service in each eagle management unit (EMU) and local area population (LAP).

Compensatory mitigation is required for both specific and general permits. General permits must obtain eagle credits from a Service-approved conservation bank or fee program. An eagle credit is the compensatory mitigation needed to offset the take of an eagle. Permit applicants must include their expected method of compensatory mitigation in the permit application for specific permits. Compensatory mitigation is not required for infrastructure operating in its current configuration and size before September 11, 2009. Specific permits can be authorized between 1 and 30 years, while general permits are valid for five years.

Third-party eagle monitoring requirements from the previous rule have largely been removed and are now only required when addressing compliance concerns or applying controversial approaches.

Project proponents with an eagle take permit under the 2016 regulations may continue under that permit's conditions until it expires.

Eagle Incidental Take Permits for Power Lines

The new regulations now permit power line entities to apply for a general permit, Tier 1 specific permit, Tier 2 specific permit, or Tier 2 with a reimbursable agreement. General permits are for utilities that can meet the requirements described below. Tier 1 specific permits are for low-complexity projects that require minor modifications to general permit conditions and can be categorically excluded under NEPA. Tier 2 specific permits are more complex (e.g., have negotiated compensatory mitigation) than Tier 1 but can still be categorically excluded under NEPA. In rare cases where permit review time exceeds 275 hours, the Service will require a Tier 2 permit with a reimbursable agreement. Minimization and mitigation options the Service will accept can be found in the Avian Power Line Interaction Committee guidelines for reducing collisions and electrocutions. As with wind energy, the Service will not specify the number of eagles the utility is authorized to take on the permit.

Specific permits last for a maximum of 30 years. General permits for power line utilities are valid for five years, and the applicant can reapply for an extension. For general permits, the Service will require utilities to develop four strategies: collision response, proactive retrofit, reactive retrofit, and shooting response. These strategies should be incorporated into a utility's Avian Protection Plan (APP).

Collision response

A utility should have a process for identifying collision mortality events, evaluating factors influencing risk, and implementing risk reduction strategies. The utility should implement these strategies on high-risk power lines with repeat collision events.

Proactive retrofit strategy

A proactive retrofit strategy defines how existing lines will be converted to avian-safe designs over time. Investor-owned utilities must have a 50-year proactive retrofit strategy and convert 10% of poles in high-risk areas to avian-safe designs during each five-year general permit duration. Similarly, publicly owned or cooperatives must have a 75-year proactive retrofit strategy and retrofit 7% of high-risk poles during each permit duration. If a utility does not have a proactive retrofit strategy, it will have three years to develop one as a condition of a general permit.

Reactive Retrofit Strategy

This strategy describes how infrastructure will be retrofitted in response to an eagle electrocution or death. Typically, when an electrocution or death occurs, the pole that caused the electrocution and six poles in every direction are retrofitted; however, this approach is flexible if retrofitting different poles will be more beneficial to eagles. The retrofitting approach for each mortality must be evaluated within 90 days and completed within one year unless there are extenuating circumstances (e.g., catastrophic weather, fire, etc.).

Shooting Response

Power line utilities are not liable for law enforcement or eagle shooting events. However, if an eagle shooting is suspected, the utility must contact the Service's Office of Law Enforcement and implement appropriate shooting reduction strategies, which can be negotiated with the Service.

Eagle Disturbance Take Permits

This updated regulation revises portions of the previous disturbance take regulation (50 CFR 22.80) and provides a mechanism to receive an incidental take permit for eagle disturbance. Disturbance permits are valid when one or more of the following activities will occur in proximity to an eagle nest:

• Building construction
• Linear infrastructure construction and maintenance
• Alteration of shoreline and water bodies
• Alteration of vegetation
• Motorized and nonmotorized recreation
• Aircraft operation
• Prescribed burning (footprint of the burn and smoke, ash, and embers)
• Loud, intermittent noises

The proximity of the disturbance to the nest that necessitates a permit varies depending on the eagle species and the specific disturbance. Monitoring is required as part of the requirements for a general or specific permit, which typically involves collecting information to determine whether nestlings have fledged the nest or not. General permits have a one-year tenure, and specific permits have a five-year tenure.

Eagle Nest Take Permits

The Service considers five justifications for authorizing eagle nest take, which include the following:

• Emergency
• Health and Safety
• Removal from human-engineered structures and
• Other purposes (only relevant in Alaska)
• Protection of other threatened or endangered wildlife

General permits are limited to bald eagle nest take for emergencies, health and safety, removal from human-engineered structures and other purposes in Alaska only. Specific permits will be required for golden eagle nest take, bald eagle nest take for other purposes in the lower 48 states, and for protection of other listed wildlife. No monitoring is required for general permits but may be required for specific permits. Compensatory mitigation is also not needed for general permits unless for other purposes in Alaska; it may also be necessary for specific permits. Specific permits are valid for five years, and general permits are valid for one year.

How to Apply for an Incidental Eagle Take Permit

Eagle incidental take permits can be applied and paid for online. The rollout will be gradual, but all the above permits are expected to be available for application by September 1, 2024.