On September 30, 2022 the U.S. Fish and Wildlife Service (“Service”) published notice in the Federal Register of a proposed rule amending its regulations authorizing permits for eagle incidental take and eagle nest take. Although the proposed rule includes other proposed revisions, the most notable change is the Service’s proposal to create general permits for certain projects and activities. Under these general permits, applicants would register with the Service, pay the required fees, and certify compliance with general permit conditions. By making general permits available to certain activities and projects, the Service aims to remove administrative barriers, reduce costs, and make the process less confusing for applicants. For projects or activities that do not qualify for a general permit, individual or specific permits will remain available.

In the proposed rule, the Service proposes general permits for four types of qualifying projects or activities: wind energy generation projects, power line infrastructure, disturbance of breeding bald eagles, and bald eagle nest take. We discuss each proposed general permit in turn below.

Eagle Incidental Take Permit for Qualifying Wind Energy Projects. To encourage broader participation in the eagle permitting program by wind energy developers and operators, the Service is proposing a five-year general permit for certain qualifying wind energy projects. Eligibility is determined based on the relative eagle abundance in the project area. To be eligible, all turbines associated with the project must be located in an area with seasonal relative eagle abundance (based on eBird data) below the threshold amounts across five eagle “seasons.” The project must also be greater than 660 feet from a bald eagle nest and two miles from a golden nest to qualify under the general permit.

For existing wind energy projects, the proposed rules would allow project operators to request coverage under the wind energy general permit even when a portion of the project is within an area that does not fall below the applicable relative abundance thresholds. The Service anticipates “issuing a letter of authorization for most existing projects where only a small percentage of existing turbines do not qualify under the relative abundance thresholds or when an existing project has conducted and provides monitoring data demonstrating fatality rates consistent with those expected for general turbines.”

The proposed wind energy general permit requires permittees to monitor eagle take but allows project proponents to use onsite employees rather than relying on third-party monitors. If a project is covered by a general permit and has four eagle fatalities during the permit term, the project will be required to implement adaptive management measures and seek an individual permit at the expiration of the general permit.

The proposed application fee for the wind energy general permit is $500, and the proposed administrative fee is $525 per turbine per year or $2,625 per turbine for a five-year permit. Under the current proposal, wind energy general permits would be valid for five years.

Eagle Incidental Take Permit for Power Lines. The Service is also proposing a general permit option for power line infrastructure. To qualify for coverage under the power line general permit, the applicant must, in addition to meeting other general requirements: (1) ensure that new construction is electrocution-safe for bald and golden eagles; (2) implement a reactive retrofit strategy following all eagle electrocutions; (3) implement a proactive retrofit strategy to retrofit a portion of existing infrastructure during each general permit term; (4) implement an eagle collision response strategy; (5) incorporate information on eagles into project siting and design; and (6) implement an eagle shooting response strategy (aimed at addressing illegal shooting of eagles on power lines). The proposed application fee for the power line general permit is $500 and the proposed administration fee is $5,000 for each state for which the power-line entity is seeking authorization. Like the wind energy general permits, under the current proposal, power line general permits would be valid for five years.

Bald Eagle Disturbance Take Permit. The Service is also proposing a general permit for “disturbance” take of bald eagles. Currently specific or individual permits are available for incidental eagle takes associated with disturbance, but the administrative burden on the Service is significant. (The Service notes that two-thirds of eagle take permits issued are for disturbance near bald eagle nests.) To alleviate this burden, the Service is proposing a one-year general incidental disturbance take permit covering the following activities: (1) building construction and maintenance within 660 feet of an in-use eagle nest or 330 feet of any bald eagle nest; (2) linear infrastructure construction within 660 feet of an in-use bald eagle nest or 330 feet of any bald eagle nest; (3) alteration of shorelines and water bodies within 660 feet of an in-use bald eagle nest or 330 feet of any bald eagle nest; (4) alteration of vegetation (e.g., timber removal) within 660 feet of an in-use bald eagle nest or 330 feet of any bald eagle nest; (5) motorized or nonmotorized recreation within 330 feet of any bald eagle nest; (6) aircraft operations within 1,000 feet of an in-use bald eagle nest; and (7) loud intermittent noises within one-half mile of an in-use bald eagle nest.

The Service also proposes to clarify that non-lethal methods to disperse eagles from a site (i.e., hazing) do not constitute eagle disturbance in most circumstances. In addition, activities conducted adjacent to a communal roost or foraging area do not constitute eagle disturbance and do not require a permit.

Bald Eagle Nest Take Permit. The Service is proposing a one-year general take permit for bald eagle nests where the justification is emergency, health and safety, or removal from human-engineered structures. Due to the robust Alaska bald eagle population, the Service is also proposing to issue a general permit in Alaska for the take of a bald eagle nest for “other purposes.” Applicants for general nest take permits must provide the coordinates of the nest(s) they are requesting to take. They must also certify which of the eligibility criteria they meet and that there is no practicable alternative.

Given the current permit backlog and the fact that it frequently takes multiple years to secure an individual permit, there is a lot to like about the Service’s proposal to create general permits. However, there is room for improvement and the regulated community has an opportunity to shape the final rule by submitting comments.

Although the Service will consider comments on all aspects of the program, the Service is specifically seeking information on the following:

  1. Are the anticipated number of annual permits to be issued for each permit type a reasonable estimate?
  2. Are the costs associated with each permit type reasonable estimates?
  3. For electric utilities, at what rate are power poles and other infrastructure planned for regular maintenance, rehabilitation, or reconstruction? What is the assumed life cycle of a typical power pole? How many utilities have an avian protection plan in place? At what rate do utilities schedule retrofits specifically of non-electrocution-safe equipment? Are the estimated costs associated with power-pole-retrofit strategies reasonable?
  4. We propose the use of abundance criteria as a threshold qualification for a wind energy general permit. Are there other eligibility criteria for wind-energy general permits, either based solely on population abundance or beyond population abundance, we should consider adopting that would provide certainty and simplicity in the permit process for eligible projects while still meeting the Eagle Protection Act’s preservation standard, including the criteria analyzed in Alternative 2 of the DEA?
  5. Should the relative abundance thresholds for wind energy general permits (listed in table 1) be updated automatically based on new data, and if so, how often?
  6. Should the Service consider different thresholds for when a project is disqualified from general-permit eligibility, such as creating categories based on the generalized probability of detection?
  7. Is the amount of compensatory mitigation required under this proposed rule sufficient to meet the preservation standard, considering risk, and uncertainty?
  8. How should the Service analyze the potential cost savings to industry from this rulemaking, and does the public have data to bolster this analysis in the final rule?
  9. Are there estimates or projections of the spatial distribution of anticipated wind energy industry growth that are relevant to this proposed rulemaking?
  10. In the DEA, the Service estimates that retrofitting 11 power poles is required to offset one eagle. Assuming a retrofit costs $7,500, each credit is therefore assumed to cost $82,500 in the marketplace. Are these assumptions, the retrofit cost, and the market price of an “eagle credit” reasonable?
  11. How should the Service implement the proposed audit program? Are there costs we should consider that ensure accuracy of the results while reducing the burden to the public?

The Service is accepting comments on this proposed rule through November 29, 2022. If you have specific questions about how the proposed amendments may impact your existing or proposed project(s) or infrastructure, or would like assistance preparing comments on the proposed rules, please contact:

Barbara Craig, barbara.craig@stoel.com
Sarah Stauffer Curtiss, sarah.curtiss@stoel.com

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Photo of Barbara Craig Barbara Craig

Barbara Craig is a partner of the firm practicing in the Natural Resources and Land Use group. She focuses her practice on federal environmental and natural resources law with an emphasis on endangered species compliance, and forestry and energy facility permitting and compliance…

Barbara Craig is a partner of the firm practicing in the Natural Resources and Land Use group. She focuses her practice on federal environmental and natural resources law with an emphasis on endangered species compliance, and forestry and energy facility permitting and compliance issues. Barbara has extensive experience on issues involving the Endangered Species Act (ESA), National Forest Management Act (NFMA), Federal Land Policy and Management Act, Federal Power Act (FPA), Natural Gas Act, Marine Mammal Protection Act (MMPA), Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection Act (Eagle Act), National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), Clean Water Act (CWA) and Administrative Procedures Act. Representative clients include forestry companies and associations, ports, pulp and paper interests, developers and owners of hydropower dams, wind energy projects, utilities, and oil and gas facilities in complex permitting matters. Governor Kulongoski appointed Barbara to the Oregon  Board of Forestry, where she served from 2004 through 2008.

Click here for Barbara Craig’s full bio.

Photo of Sarah Stauffer Curtiss Sarah Stauffer Curtiss

Sarah Stauffer Curtiss helps clients understand and comply with environmental and land use laws, navigate complex permitting processes, and develop compliance solutions that enhance business opportunities. On Oregon land use matters, Sarah helps clients secure permits from local governments. She has worked with…

Sarah Stauffer Curtiss helps clients understand and comply with environmental and land use laws, navigate complex permitting processes, and develop compliance solutions that enhance business opportunities. On Oregon land use matters, Sarah helps clients secure permits from local governments. She has worked with city and county planning departments throughout Oregon, and regularly represents clients before local governing bodies and the Oregon Land Use Board of Appeals. She also represents energy and utility clients on permitting and compliance matters related to project development and expansion through the Oregon Energy Facility Siting Council (EFSC). Her federal environmental expertise covers a myriad of environmental laws.

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Photo of Emily Schimelpfenig Emily Schimelpfenig

Emily Schimelpfenig is an associate in Stoel Rives’ Environment, Land Use & Natural Resources group, where she focuses on permitting before state and local governments. Emily advises and advocates for clients across multiple industries, including energy generation and residential, commercial, and industrial development.…

Emily Schimelpfenig is an associate in Stoel Rives’ Environment, Land Use & Natural Resources group, where she focuses on permitting before state and local governments. Emily advises and advocates for clients across multiple industries, including energy generation and residential, commercial, and industrial development.

Emily also has experience assisting with OSHA and MSHA compliance and counseling clients on issues that affect their mining operations.

Click here for Emily Schimelpfenig’s full bio.