[Federal Register Volume 81, Number 88 (Friday, May 6, 2016)]
[Proposed Rules]
[Pages 27933-27976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10542]
[[Page 27933]]
Vol. 81
Friday,
No. 88
May 6, 2016
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Parts 13 and 22
Eagle Permits; Revisions to Regulations for Eagle Incidental Take and
Take of Eagle Nests; Proposed Rule
Federal Register / Vol. 81 , No. 88 / Friday, May 6, 2016 / Proposed
Rules
[[Page 27934]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
[Docket No. FWS-R9-MB-2011-0094; FF09M20300-167-FXMB123109EAGLE]
RIN 1018-AY30
Eagle Permits; Revisions to Regulations for Eagle Incidental Take
and Take of Eagle Nests
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, propose revisions to
the eagle nonpurposeful take permit regulations and eagle nest take
regulations that we promulgated in 2009. Proposed revisions include the
following: Changes to permit issuance criteria and duration;
definitions; compensatory mitigation standards; criteria for eagle nest
removal permits; permit application requirements; and fees. The
revisions are intended to add clarity to the eagle permit regulations,
improve their implementation, and increase compliance, while providing
strong protection for eagles.
DATES: You may submit comments on the proposed rule until July 5, 2016.
The Environmental Protection Agency will soon publish a notice in the
Federal Register with information on the deadline for submitting
comments on the draft programmatic environmental impact statement.
Comments on the information collection aspects of this rule must be
received on or before June 6, 2016.
ADDRESSES: Document Availability: A draft programmatic environmental
impact statement (DPEIS) has been prepared in conjunction with
preparation of this proposed rule. Both the proposed rule and the DPEIS
are available at http://www.fws.gov/birds/management/managed-species/eagle-management.php and also at www.regulations.gov at Docket No. FWS-
R9-MB-2011-0094.
Comments on the Proposed Rule and DPEIS: You may submit comments by
one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R9-MB-2011-0094,
which is the docket number for this rulemaking. Then click on the
Search button. On the resulting page, you may submit a comment by
clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R9-MB-2011-0094; Division of Policy,
Performance, and Management Programs; U.S. Fish and Wildlife Service,
MS: BPHC; 5275 Leesburg Pike, Falls Church, VA 22041-3803.
Comments on the Information Collection Aspects of the Proposed
Rule: You may review the Information Collection Request online at
http://www.reginfo.gov. Follow the instructions to review Department of
the Interior collections under review by OMB. Send comments (identified
by 1018-AY30) specific to the information collection aspects of this
proposed rule to both the:
Desk Officer for the Department of the Interior at OMB-
OIRA at (202) 295-5806 (fax) or OIRA_Submission@omb.eop.gov (email);
and
Service Information Collection Clearance Officer; Division
of Policy, Performance, and Management Programs; U.S. Fish and Wildlife
Service, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803
(mail); or hope_grey@fws.gov (email).
See Public Comments under SUPPLEMENTARY INFORMATION for more
information regarding submission of comments.
FOR FURTHER INFORMATION CONTACT: Eliza Savage, 703-358-2329 or
eliza_savage@fws.gov.
SUPPLEMENTARY INFORMATION:
Executive Summary
The U.S. Fish and Wildlife Service proposes revisions to our
regulations regarding the issuance of permits for certain activities
involving eagles. We promulgated regulations covering authorization of
nonpurposeful (incidental) take of eagles and take of eagle nests in
2009. Revisions to these permit regulations are needed to create a
permitting framework that is more conducive to consistent
administration by the Service and public compliance. Our goal is also
to enhance protection of eagles throughout their ranges through
implementation of avoidance and minimization of, and compensatory
mitigation for, adverse impacts from otherwise lawful activities. The
regulations are primarily codified in part 22 of title 50 of the Code
of Federal Regulations.
The Service proposes a modified definition of the Eagle Act's
``Preservation Standard,'' which requires that permitted take be
compatible with the preservation of eagles. We also propose to remove
the distinction between standard and programmatic permits, codify
standardized mitigation requirements that comport with the Service's
draft mitigation policy, and extend the maximum permit duration for
eagle incidental take permits (50 CFR 22.26). These proposed
regulations also present a number of additional revisions to the eagle
incidental take and eagle nest take regulations at 50 CFR 22.27, as
well as revisions to the permit fee schedule at 50 CFR 13.11; new and
revised definitions in 50 CFR 22.3; revisions to 50 CFR 22.25 (permits
for golden eagle nest take for resource development and recovery
operations) for consistency with the Sec. 22.27 nest take permits; and
two provisions that apply to all eagle permit types (50 CFR 22.4 and
22.11).
Background
The Bald and Golden Eagle Protection Act (Eagle Act or BGEPA) (16
U.S.C. 668-668d) prohibits take of bald eagles and golden eagles except
pursuant to Federal regulations. The Eagle Act allows the Secretary of
the Interior to issue regulations to authorize the ``taking'' of eagles
for various purposes, including the protection of ``other interests in
any particular locality'' (16 U.S.C. 668a). In 2009, the Service
promulgated regulations at 50 CFR part 22 that established two new
permit types for take of eagles and eagle nests (50 FR 46836, September
11, 2009) (Eagle Permit Rule). One permit authorizes, under limited
circumstances, the take (removal, relocation, or destruction) of eagle
nests (50 CFR 22.27). The other permit type authorizes nonpurposeful
take (disturbance, injury, or killing) of eagles (50 CFR 22.26) where
the take is incidental to an otherwise lawful activity. These
regulations currently provide for standard permits, which authorize
individual instances of take that cannot practicably be avoided, and
programmatic permits, which authorize recurring take that is
unavoidable even after implementation of advanced conservation
practices.
The Eagle Act requires the Service to determine that any take of
eagles the Service authorizes is ``compatible with the preservation of
bald eagles or golden eagles.'' We refer to this clause as the Eagle
Act preservation standard. The preservation standard underpins the
Service's management objectives for eagles. In the preamble to the
final 2009 regulations for eagle nonpurposeful take permits, and in the
final environmental assessment (FEA) of the regulations, the Service
defined the preservation standard to mean ``consistent with the goal of
maintaining stable or increasing breeding populations'' (74 FR 46838,
September 11, 2009).
[[Page 27935]]
On April 13, 2012, the Service initiated two additional
rulemakings: (1) A proposed rule to extend the maximum permit tenure
for programmatic eagle nonpurposeful take permit regulations from 5 to
30 years, among other changes (``Duration Rule'') (77 FR 22267), and
(2) an advance notice of proposed rulemaking (ANPR) soliciting input on
all aspects of those eagle nonpurposeful take regulations (77 FR
22278).
The ANPR highlighted three main issues for public comment: Our
overall eagle population management objectives; compensatory mitigation
required under permits; and the nonpurposeful take programmatic permit
issuance criteria. As a next step, the Service issued a notice of
intent to prepare an environmental assessment (EA) or environmental
impact statement (EIS) pursuant to the National Environmental Policy
Act (NEPA) (42 U.S.C. 4321 et seq.) (79 FR 35564, June 23, 2014). The
Service then held five public scoping meetings between July 22 and
August 7, 2014.
The Duration Rule was finalized on December 9, 2013 (78 FR 73704).
However, it was the subject of a legal challenge, and on August 11,
2015, the U.S. District Court for the Northern District of California
vacated the provisions that extended the maximum programmatic permit
tenure to 30 years. Shearwater v. Ashe, No. CV02830-LHK (N.D. Cal.,
Aug. 11, 2015). The court held that the Service should have prepared an
EA or EIS rather than apply a categorical exclusion under NEPA. The
effect of the ruling was to return the maximum programmatic permit term
to 5 years.
The Service has prepared a draft programmatic environmental impact
statement (DPEIS) to analyze eagle management objectives and these
proposed revisions to the 2009 eagle permit regulations. The draft
DPEIS is available on the Service's Web site at: http://www.fws.gov/birds/management/managed-species/eagle-management.php and also at:
www.regulations.gov at Docket No. FWS-R9-MB-2011-0094.
Bald eagle populations have continued to increase throughout the
United States, increasing the potential need for permits for activities
that may disturb, injure, or kill bald eagles. There has also been
significant expansion within many sectors of the U.S. energy industry,
particularly wind energy operations, and much more interest in
permitting new long-term operations than was anticipated when the 2009
regulations were promulgated. At the same time, golden eagle
populations are potentially declining, heightening the challenge of
permitting incidental take of this species for otherwise lawful
activities. The 2009 permit regulations do not provide an optimal
framework for authorizing incidental take under these circumstances.
There is a general perception that the current permitting framework
does not provide enough flexibility to issue eagle take permits in a
timely manner. Indeed, few programmatic permits have been issued to
date. When projects go forward without permit authorization, the
opportunity to obtain benefits to eagles in the form of required
conservation measures is lost and project operators put themselves at
risk of violating the law.
Under the current management approach, established with the 2009
eagle permit regulations and FEA, permitted take of bald eagles is
capped at 5 percent of estimated annual productivity (i.e., successful
reproduction) of the population. Because the Service lacked data in
2009 to show that golden eagle populations could sustain any additional
unmitigated mortality, the Service set take limits for that species at
zero. This decision has meant that any new authorized take of golden
eagles must be at least equally offset by compensatory mitigation
(specific conservation actions to replace or offset project-induced
losses by reducing take elsewhere).
In the FEA for the 2009 regulations and in the preamble to those
regulations, the Service adopted a policy of not issuing take permits
for golden eagles east of the 100th meridian. At the time, the Service
determined there were not sufficient data to ensure that golden eagle
populations were stable or increasing such that permitting take would
not result in a decline in breeding pairs in this region. However,
after further analysis, the Service has determined that some take can
be permitted with implementation of offsetting mitigation. Rather than
providing an increased level of protection for golden eagles, this
policy has meant that activities that take golden eagles in the east
continue to proliferate without implementation of conservation measures
and mitigation to address impacts to golden eagles that would be
required as the result of the permitting process.
Since 2009, Service and U.S. Geological Survey (USGS) scientists
have undertaken considerable research and monitoring to improve the
Service's ability to track compliance with eagle management objectives
and reduce uncertainty. Of particular significance, the Service has
updated population estimates for both species of eagle and quantified
uncertainty in those estimates. For the bald eagle, the Service now
estimates substantially higher populations than was estimated in 2009,
and allowable take limits will likely increase considerably across most
of the country as a result (see further discussion below under Status
of Eagle Populations).
For golden eagles, recent research indicates that the population in
the coterminous western United States might be declining towards a
lower equilibrium size. Additionally, the Service now has a much better
understanding of the seasonal, annual, and age-related movement
patterns of golden eagles. These data will be incorporated into an
updated management framework.
In implementing the 2009 permit regulations, the Service has
identified several provisions that could be improved for the benefit of
both eagles and people, including the regulated community. One issue
that has hampered efficient permit administration (of both eagle
nonpurposeful take permits and eagle nest take permits) is the
difficulty inherent in applying the standard that take must be reduced
to the point where it is unavoidable, which the current regulations
require for programmatic permits. Additionally, a lack of specificity
in the regulations as to when compensatory mitigation is required can
lead to inconsistencies in what is required of permittees.
The 5-year maximum duration for programmatic permits appears to be
a primary factor discouraging many project proponents from seeking
eagle take permits. Many activities that incidentally take eagles due
to ongoing operations have lifetimes that far exceed 5 years. We need
to issue permits that align better, both in duration and the scale of
conservation measures, with the longer term duration of industrial
activities, such as electricity distribution and energy production.
Extending the maximum permit duration is consistent with other Federal
permitting for development and infrastructure projects.
The Service undertook the 2012 ANPR, 2014 notice of intent and
scoping meetings, and the DPEIS to improve the Service's permitting and
conservation framework for eagles by addressing the problems noted
above, among other issues. Moreover, since 2009, when the permits first
became available, new developments, changing circumstances, and new
information must be analyzed and incorporated into the Service's
management objectives for eagles.
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NEPA Scoping Process
The purpose of scoping is to provide interested agencies,
stakeholder organizations, Native American tribes, and the public an
opportunity to provide comments regarding potentially significant
environmental issues and the scope of the environmental analysis,
including alternatives, and help to inform the eagle management program
and the Service decision to prepare either an EA or an EIS. Service
staff implementing the 2009 eagle permit regulations identified a
number of priority issues for evaluation during this scoping process,
including the following: Eagle population management objectives;
programmatic permit conditions; compensatory mitigation; and criteria
for nest removal permits.
Five public scoping meetings were held in Sacramento, Minneapolis,
Albuquerque, Denver, and Washington, DC, between July 22, 2014, and
August 7, 2014. Representatives from the Service were available to
answer participants' questions and listen to their ideas and concerns.
Approximately 213 people attended the meetings, and all were encouraged
to submit written comments.
The Service also set up a Web site, http://www.eaglescoping.org, to
serve as a ``virtual meeting,'' where visitors could view the same
information that was presented at the public meetings, including the
overview video presentation and informational displays. Links to the
Service email for public comments were included on the site.
We received a total of 536 comments during the public comment
period. Upon removal of duplicates, there were a total of 517 unique
comments, of which many included additional attachments (e.g., scanned
letters, one picture, and supporting documents). In addition to the
comments received, two organizations provided spreadsheets with
additional comments. First, the Friends of Blackwater provided a
spreadsheet of 46 supporters of their comment. Secondly, the National
Audubon Society provided a spreadsheet of 25,349 comments in support of
their comment and 2,064 personalized comments. All comments were
reviewed and considered.
Status of Eagle Populations
The Service is proposing to modify current management objectives
for eagles established with the 2009 eagle permit regulations and FEA
of the regulatory permitting system under the Eagle Act. Management
objectives direct strategic management and monitoring actions and,
ultimately, determine what level of permitted eagle take can be
allowed. The Service recently completed a status report on bald and
golden eagles: ``Bald and Golden Eagles: Status, trends, and estimation
of sustainable take rates in the United States'' (``Status Report'')
(USFWS, 2016). The Status Report is available at: http://www.fws.gov/birds/management/managed-species/eagle-management.php. It estimates
population sizes, productivity, and survival rates for both species;
irdsanalyzes the effects of unauthorized take of golden eagles;
provides recommended take limits for both species and metrics for
converting take in the form of disturbance to debits from the take
limits; analyzes the cumulative effects of permitting take of up to 5%
of local area populations (the population in the vicinity of a
particular project or activity); and recommends a schedule of
population surveys to regularly update population size estimates for
both species. The Status Report is essentially a compilation of the
most current research on the population status and trends of bald and
golden eagles and as such serves as the biological basis for the
revised regulatory management framework we are proposing in these
regulation revisions and the preferred alternative in the DPEIS. The
following discussion pertaining to the status of bald and golden eagle
populations summarizes some of the information provided and explained
in more detail in the Status Report, available at http://www.fws.gov/birds/management/managed-species/eagle-management.php.
The Service has estimated the population size for the bald eagle in
the coterminous United States using a population model in conjunction
with estimates of the number of occupied nesting territories in 2009.
That population size estimate is 72,434, and when combined with a
previous estimate of population size for Alaska (70,544) is 143,000. We
derive our conservative estimate for the population size by using the
20th quantile of the population size estimate distribution (the 20th
quantile is the point on the probability distribution where there is
only a 20% chance of the estimate being lower than the true population
size). The 20th quantile represented 126,000 bald eagles for the United
States in 2009. This number represents an increase from our population
size estimate for the coterminous United States in 2007 (the year data
were gathered to support delisting under the Endangered Species Act),
which was 69,000. We attribute the difference to improved monitoring
and estimation efforts, as well as increases in bald eagle numbers.
Both the population model and Breeding Bird Survey (BBS) estimates
indicate bald eagle populations are continuing to increase throughout
the coterminous United States.
We estimated future bald eagle populations using a conservative
assumption that the number of suitable bald eagle nesting territories
will not increase above the 2009 estimate. Given limitations of the
data on Alaskan eagles and evidence from the BBS that bald eagle
populations are growing more slowly there, we did not model projections
for Alaska and assumed that Alaska's bald eagle population will remain
stable (though demographic rates suggested continued growth is
possible). With these constraints, our model forecasts that the number
of bald eagles in the coterminous United States outside the Southwest
will continue to increase until populations reach an equilibrium at
about 228,000 (20th quantile = 197,000) individuals. The model predicts
that bald eagles in the Southwest will also continue to increase from
the 2009 population estimate of 650 until reaching an equilibrium at
about 1,800 (20th quantile = 1,400) individuals. Again, these numbers
are based on assumptions that underlying demographic rates and other
environmental factors remain unchanged, and the predictions do not take
into account forecasted changes in climate nor how such changes may
affect bald eagle population vital rates and population size. These
projections also assume food and other factors will not become
limiting.
We estimated the total population size for the golden eagle in the
coterminous United States and Alaska was 39,000 (20th quantile =
34,000) in 2009 and 40,000 (20th quantile = 34,000) in 2014. However,
although the golden eagle population trend estimate based on current
surveys was stable, an estimate from a population model similar to that
used for the bald eagle suggested the population in the western United
States might be declining towards a lower equilibrium size of about
26,000 individuals.
Using unbiased cause-of-mortality data for a sample of 386
satellite-tagged golden eagles in the period 1997-2013, the Service
estimated contemporary age-specific survival rates with and without
current levels of anthropogenic mortality. Anthropogenic factors were
responsible for about 56% of satellite-tagged golden eagle mortality,
with the highest rates of anthropogenic mortality
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among adults (63%). We estimated the maximum rate of population growth
for the golden eagle in the coterminous United States in the absence of
existing anthropogenic mortality was 10.9% (20th quantile = 9.7%).
Sustainable take under these conditions is 2,000 individuals (20th
quantile = 1,600). The available information suggests ongoing levels of
human-caused mortality likely exceed this value, perhaps considerably.
This information supports the finding from the population model that
golden eagle populations may be declining to a new, lower level.
For much more detailed information about the current population
status and trends, see the Status Report available at: http://www.fws.gov/birds/management/managed-species/eagle-management.php.
Description of the Rulemaking
Preservation Standard
The Eagle Act requires that any authorized take of eagles be
``compatible with the preservation'' of bald eagles and golden eagles.
We defined this preservation standard in the preamble to the 2009
regulations to mean ``consistent with the goal of maintaining stable or
increasing breeding populations.'' The Service now proposes to modify
that standard and incorporate it into the regulations to mean
``consistent with the goals of maintaining stable or increasing
breeding populations in all eagle management units and persistence of
local populations throughout the geographic range of both species.''
The timeframe the Service used for modeling and assessing eagle
population demographics is over the next 100 years (at least eight
generations) for both eagle species relative to the 2009 baseline. This
objective is consistent with Presidential, Department of the Interior,
and Fish and Wildlife Service mitigation policies that aim to achieve a
net benefit, or at a minimum, no net loss, of natural resources. (See
the Service's mitigation policy (501 FW 2), Secretary's Order 3330,
entitled ``Improving Mitigation Policies and Practices of the
Department of the Interior'' (October 31, 2013), the Departmental
Manual Chapter on Implementing Mitigation at the Landscape-scale (600
DM 6 (October 23, 2015)), and the Presidential Memorandum on Mitigating
Impacts on Natural Resources from Development and Encouraging Related
Private Investment (November 3, 2015)).
The Service considered adoption of a purely qualitative
preservation standard such as ``to not meaningfully impair the bald or
golden eagle's continued existence.'' However, a qualitative approach
alone contains no standards for assessment, which could lead to
inconsistent implementation between Service regions. Inconsistent
implementation across Regions is a bigger concern with eagles than for
many ESA-listed species because the range of both bald and golden
eagles extends throughout the continental United States. Additional
drawbacks to adopting a qualitative approach are that it is less
compatible with formal adaptive management and does not provide a
mechanism to assess cumulative impacts. Also, considerable quantitative
information is available on eagle populations unlike many ESA-listed
species, and to ignore these data or to independently reassess them for
each permit is inconsistent with the Service's commitment to use the
best available information and practice the best science. For these
reasons, the Service has elected not to adopt a qualitative
preservation standard.
We propose to largely retain the quantitative approach we have used
since 2009 because it is explicit, allows less room for interpretation,
and can be consistently implemented across the country and across the
types of activities that require permits. Our proposed approach,
including the underlying population model, is consistent with other
wildlife management programs, including the North American Waterfowl
Management Plan and management of marine mammals under the Marine
Mammal Protection Act.
Our proposed modified preservation standard--``consistent with the
goals of maintaining stable or increasing breeding populations in all
eagle management units, and persistence of local populations throughout
the geographic range of both species''--seeks to ensure the persistence
of bald and golden eagle populations over the long term with sufficient
distribution to be resilient and adaptable to environmental conditions,
stressors, and likely future altered environments. To implement that
objective in a consistent, analytical, scientifically supportable
manner, these key terms mean: ``Population'' means eagle management
unit (EMU); ``persist'' means stable with 2009 as the baseline; ``long-
term'' means 100 years; and ``sufficient distribution'' means avoiding
the extirpation of local area populations (LAPs) by limiting Service-
authorized take rates to less than or equal to 5% of each LAP (see
discussion below). We have estimated that an EMU population that meets
these criteria has an approximately 50% (in the liberal DPEIS
alternatives) or 80% (in the conservative DPEIS alternatives)
likelihood of being ``resilient and adaptable to environmental
conditions and stressors and likely future environments'' under the
take rates analyzed, and assuming other conditions remain as they were
over the time period the biological data used in the models were
gathered.
The above criteria are used to populate national-, EMU-, and LAP-
scale population models that allow the Service to determine take limits
that are compatible with the preservation of eagles in this rule and
associated DPEIS. In defining the eagle preservation standard in this
way, and analyzing the effects of take within those take limits in the
DPEIS, the analytical burden for each permit decision is greatly
reduced, allowing the Service to make informed permitting decisions at
an expedited rate.
The regulation revisions we are proposing are based on the amended
definition of the preservation standard and the adoption of a
relatively conservative approach to estimating population values and
sustainable take rates based on the best available data and the
Service's level of risk tolerance in the face of uncertainty. This
relatively conservative approach is described below, and also in much
more detail, along with alternative approaches and the scientific and
technical information that underpins their analyses in the Status
Report and the draft DPEIS.
We estimate there are about 143,000 bald eagles in the United
States (including Alaska), and that populations continue to increase.
Given their continued population growth above the 2009 baseline, there
is considerable capacity to sustain take of bald eagles. Under our
proposed management approach, the annual take limit would be 4,200 bald
eagles nationwide. This compares to a take limit of 1,103 established
in 2009.
We estimate golden eagles currently number about 40,000 individuals
in the United States (including Alaska), and populations have been
relatively stable around that size since the mid-1960s. We estimate the
carrying capacity of golden eagles nationwide to be 73,000. We also
have data indicating that population size is limited by high levels of
anthropogenic mortality (i.e., populations could be larger were it not
for ongoing high levels of unpermitted take), and that adding
additional mortality will likely cause populations to decline to a
lower level. As a consequence, there is no opportunity for authorizing
additional unmitigated take
[[Page 27938]]
of this species without changing the population objective to a level
lower than the 2009 baseline. Under our proposed management framework,
we would operate under the conservative assumption that there is no
sustainable take, and take limits would be zero, without compensatory
mitigation to offset the take. However, even using the median values,
rather than the 20th quantile used in our preferred, conservative
approach, take of golden eagles nationwide would still be set at zero,
unless the take is offset by compensatory mitigation.
We are considering realigning EMUs to better reflect regional
populations and migration patterns of both species. The Service and its
partner agencies manage for migratory birds based on specific migratory
route paths within North America (Atlantic, Mississippi, Central, and
Pacific). Based on those route paths, State and Federal agencies
developed the four administrative flyways that administer migratory
bird resources. Both bald and golden eagles move over great distances
seasonally and across years. There is a well-described annual seasonal
migration of both species of eagles from northern regions southward in
winter. An annual northward migration of bald eagles from southern
regions is well-documented, and a similar northward migration of golden
eagles that winter in southern regions has been recently discovered.
The adoption of the administrative flyways as EMUs would better address
geographic patterns of risk given the seasonal movement patterns of
both species.
We propose to use the flyways as the EMUs for both species--with
some modifications. Banding data recovery records indicate that banded
eagles of both species were recovered more frequently in the same
flyway EMU than in the same 2009 EMU. Given the relatively small size
of the eastern golden eagle population and uncertainty about the
distribution of that population across the two eastern flyways, we are
proposing to combine the Mississippi and Atlantic Flyways into one
management unit for golden eagles. For bald eagles, data indicate the
Pacific Flyway should be split into three management units: Alaska,
Pacific flyway north of 40 degrees N latitude to the Canadian border,
and Pacific flyway south of 40 degrees N latitude to the Mexican
border. See the draft DPEIS for maps of the current and proposed EMUs.
To monitor eagle populations in the future and assess whether
different take thresholds are appropriate, our plan, assuming we have
sufficient appropriated funding, is to conduct surveys on a 6-year
rotation: One set of paired summer-winter golden eagle surveys in the
first and second and fourth and fifth years of each assessment period,
and to conduct bald eagle surveys in years three and six.
Because the flyway management scale is larger than the EMUs
currently in use, EMU take limits would also increase (for bald eagles;
golden eagle take limits would be zero in all management units, unless
offset), with the result that adoption of the flyways as EMUs could be
less protective of eagle populations at more local scales. These
proposed regulations include two provisions designed to increase
protection of eagles at more local scales. First, as noted earlier, we
propose to modify the preservation standard of the Eagle Act to include
the goal of maintaining the persistence of local populations throughout
the geographic range of both species. Also, we are proposing to codify
this new definition in the regulations at 50 CFR 22.3. The definition
would read: ``Compatible with the preservation of the bald eagle or the
golden eagle'' means ``consistent with the goals of maintaining stable
or increasing breeding populations in all eagle management units, and
persistence of local populations throughout the geographic range of
both species.''
In addition to codifying that modified definition for the
preservation standard, these proposed regulations would also enhance
protection of eagles at the local scale by incorporating a local area
population (LAP) cumulative effects analysis into the permit issuance
criteria. Currently, the LAP analysis is contained in a guidance
document (Appendix F of the Eagle Conservation Plan Guidance, Module
1--Land-based Wind Energy (ECPG) (USFWS, 2013).
The LAP analysis involves compiling information on permitted
anthropogenic mortality of eagles within a specified distance (derived
from each eagle species' natal dispersal distance) of the permitted
activities' boundary. If permitted eagle take exceeds 1% of the
estimated population size of either species within the LAP area,
additional take is of concern. If take exceeds 5% of the estimated
population size within the LAP area, additional take is considered
inadvisable unless the permitted activity will actually result in a
lowering of take levels (e.g., permitting a repowered wind project
that, in its repowered form, will take fewer eagles than before
repowering).
The numerical size of the LAP is derived by expanding estimated
eagle density at the eagle management unit scale, as set in the 2009
Final Environmental Assessment on the Eagle Take Rule, by the size of
the LAP area. We acknowledge that this approach is somewhat simplistic
for at least two reasons. First, as described previously, the eagle
density estimates come from nesting or late-summer population surveys
and do not account for seasonal influxes of eagles that occur through
migration and dispersal. Second, this approach assumes that eagle
density is uniform across the EMU, which is not the case. In most cases
the first simplification leads to an underestimate of true density,
particularly in core wintering areas during the non-breeding months,
and as such serves as an added buffer against overharvest of local
nesting eagles. Assuming uniform density leads to greater relative
protection of areas with higher than average eagle density within an
EMU, and less relative protection in areas of lower density. Ideally,
over time and with better information on resource selection and factors
accounting for variation in density, as well as improved knowledge of
seasonal changes in eagle density and population-specific movement
patterns, the LAP analysis can be improved to more realistically
account for the true LAP impacted by projects under consideration. For
now, however, LAP take thresholds allow the Service to authorize
limited take of eagles while favoring eagle conservation in the face of
the uncertainty.
Since publication of the ECPG, the Service has updated natal
dispersal distances (the linear distance between a bird's location of
origin and its first breeding or potential breeding location) for both
eagle species that are used to calculate LAPs. Those distances are
currently 86 miles for bald eagles or 109 miles for golden eagles.
These could change if additional data indicate the need for adjustment.
The LAP cumulative effects analysis is described in more detail in the
Status Report.
Currently the LAP cumulative effects analysis is used as guidance.
Under these proposed regulations, the LAP analysis would be required as
part of our review of each permit application. In order to issue a
permit we must find that cumulative authorized take does not exceed 5%
of the LAP, or we must demonstrate why allowing take to exceed that
limit is still compatible with the preservation of eagles. One
situation where we may issue a permit that would result in authorized
take above 5% of the LAP is if a project is already in operation and
the permit conditions would result in a reduction of take or
compensatory mitigation that offsets
[[Page 27939]]
impacts to eagles within the LAP. Unpermitted levels of eagle take
within the LAP, if known, would also be considered in assessing the
potential effects of the permit on the LAP.
Incorporation of the LAP 5% limit on authorized take into the
regulations would facilitate individual permit decisions; instead of
needing to evaluate under an independent NEPA analysis each project in
the context of other authorized take within the LAP, along with the
level of unauthorized take--which is difficult or impossible to
precisely determine--we will have already analyzed the effects of
authorizing take of up to 5% of the LAP in the draft DPEIS for these
proposed regulations, along with a qualitative analysis of unauthorized
take, and determined that it is compatible with the preservation of
eagles.
The primary aim of requiring this LAP analysis is to prevent
significant declines in, or extirpation of, local nesting populations.
However, there is also increasing evidence of a strong tendency in both
species of eagle to return to non-breeding areas (wintering areas,
migration routes, and staging areas) (McIntyre et al. 2008, Mojica et
al. 2008). The LAP take limits also provide protection from permitting
cumulatively high levels of take of these eagles that winter or migrate
through the LAP area.
The take authorized within the LAP take limits is in addition to an
average background rate of anthropogenic mortality (ongoing human-
caused eagle mortality, most of which is not currently permitted.) For
golden eagles, background anthropogenic mortality is about 10% (see the
Status Report). Thus, total anthropogenic mortality for a LAP
experiencing the maximum permitted take rate of 5% averages about 15%.
We do not have similar mortality information for bald eagles. While we
do not know exactly what level of unauthorized anthropogenic take of
bald eagles is occurring, we are reasonably certain that the take we
authorize for bald eagles would also be over and above a level of
preexisting ongoing unpermitted take. The level of ongoing unauthorized
take of bald eagles may be similar to that of golden eagles; however,
bald eagles have a maximum potential growth rate about twice that of
golden eagles and thus are more resilient to take. As part of the LAP
analysis for both species, Service biologists would consider any
available information on unpermitted take occurring within the LAP
area; evidence of excessive unpermitted take would be taken into
consideration in evaluating whether to issue the permit.
The Service considered developing specific eagle population size
goals (other than the 2009 baseline) for each EMU and then using those
targets to inform permit decisions within the EMUs. However, that
approach is not feasible at this time given the technical and
logistical complexities of working with State agencies and tribes to
set population objectives at this scale within the timeframe of this
action and the lack of fine-scale information on eagle populations that
would be necessary.
Nonpurposeful (Incidental) Take Permits (50 CFR 22.26)
The Service proposes to change the name of what we have been
calling ``nonpurposeful take permits'' to ``incidental take permits.''
Incidental take is what Sec. 22.26 permits authorize. We originally
called them ``nonpurposeful take'' permits in order to avoid confusion
with incidental take permits issued under the ESA for threatened and
endangered species. However, we believe the term ``nonpurposeful'' has
also caused confusion because it is not a commonly used word. We now
see advantage in using the term ``incidental'' because the meaning of
that term is better understood. Moreover, now that this permit system
is relatively well established, the potential for confusion with the
ESA incidental take permit system is much reduced. The change in
nomenclature does not in any way affect the circumstances and manner in
which these permits will be issued.
We propose to reduce the types of incidental take permits we can
issue under Sec. 22.26 from two to one. There would no longer be
separate categories for standard and programmatic permits. Having two
separate categories has sometimes led to confusion. It is not always
possible to distinguish between what should be authorized under a
programmatic versus a standard permit. Also, the term ``programmatic''
in the sense we have been using it is sometimes misunderstood because
it differs from how ``programmatic'' has been typically used in the
regulatory arena. ``Programmatic'' in the more traditional sense means
``following or relating to a plan or program.'' While we anticipate
sometimes issuing permits to cover the effects of multiple activities
within a given program (such as a military installation), our
experience so far is that the more complex requests for permits we have
had to date have been for single, long-term activities that have the
potential to periodically take one or more eagles over the life of the
project. To reduce confusion, we are proposing to eliminate the
distinction between standard and programmatic permits. All Sec. 22.26
permits would be simply ``eagle incidental take permits'' or just
``incidental take permits.''
Under the current (2009) regulations, the Service issues
programmatic permits predicated on implementation of advanced
conservation practices (ACPs) developed in coordination with the
Service. ACPs are defined as scientifically supportable measures
approved by the Service that represent the best available techniques to
reduce eagle disturbance and ongoing mortalities to a level where
remaining take is unavoidable (50 CFR 22.3).
In contrast, applicants for standard permits under the current
regulations must reduce potential take to a level where it is
``practicably unavoidable'' (emphasis added). So, currently,
programmatic permit applicants have a higher standard, at least
theoretically. In reality, the term ``unavoidable'' is more ambiguous
than it seems in theory; there is no clear distinction in practice
between ``practicably unavoidable'' and ``unavoidable.'' We are
proposing to apply the ``practicability standard'' to all Sec. 22.26
permits.
We propose to revise the definition of ``practicable'' by adopting
the definition from the Service's proposed mitigation policy (see 81 FR
12379, March 8, 2016), slightly modified for specific application to
eagle permits. The new definition would read: ``available and capable
of being done after taking into consideration existing technology,
logistics, and cost in light of a mitigation measure's beneficial value
to eagles and the activity's overall purpose, scope, and scale.'' This
proposed revised definition captures the essential elements of the
current definition, while promoting a consistent approach to how the
Service applies compensatory mitigation requirements.
Because the concept of ACPs is based on reducing take to the point
where it is unavoidable--versus ``practicably unavoidable''--and
applied to the category of programmatic permits, these proposed
regulations remove the requirement for ACPs. As discussed above, all
permittees would be required to avoid and minimize impacts to eagles to
the maximum degree practicable. Although the ACP requirement would be
removed, the Service would require potential permittees to implement
all practicable best management practices and other measures and
practices that are reasonably likely to reduce eagle take. Permit
applicants that cannot reduce or compensate for take to levels that are
compatible with eagle
[[Page 27940]]
preservation will not qualify for a permit.
We believe the 5-year maximum permit term for permits is
unnecessarily burdensome for entities engaged in long-term actions that
have the potential to incidentally take bald or golden eagles over the
lifetime of the activity. It has had the unintended effect of
discouraging proponents of long-term activities from applying for
permits, despite the risk of violating the statute. With longer-term
permits, the Service has the ability to build more effective adaptive
management measures into the permit conditions. This approach would
provide a degree of certainty to project proponents because they would
have a greater understanding of what measures may be required to remain
compliant with the terms and conditions of their permits in the future.
This increased level of certainty allows companies to plan accordingly
by allocating resources so they are available if needed to implement
additional conservation measures to benefit eagles and maintain their
permit coverage.
Although killing, injuring, and other forms of take of eagles are
illegal without a permit, the Service cannot require any entity to
apply for an eagle take permit (except under legal settlement
agreements). Some project proponents build and operate without eagle
take permits even in areas where they are likely to take eagles. When
such building occurs, the opportunity to achieve avoidance,
minimization, and other mitigation measures is lost. The Service
believes that permitting long-term activities that are likely to
incidentally take eagles, including working with project proponents to
minimize the impacts and secure compensatory mitigation, is far better
for eagle conservation than having companies avoid the permitting
process altogether because they perceive the process as overly onerous.
Under these proposed regulations, the Service would evaluate each
long-term permit at no more than 5-year intervals. These evaluations
would reassess fatality rates, effectiveness of measures to reduce
take, the appropriate level of compensatory mitigation, and eagle
population status. Additional commitments with regard to conservation
measures may be required of long-term permittees based on the 5-year
permit evaluations. In 2013, when the maximum term of programmatic
permits was extended from 5 to 30 years (a change subsequently vacated
by court order in 2015), language was included in the regulations
limiting additional conservation measures that could be required of the
permittee to those contemplated at the time the permit was issued.
However, that language was based on the requirement that all
programmatic permittees would be required to implement advanced
conservation practices that reduce take to the point where it is
unavoidable. Under this proposed rule, long-term permittees would be
subject to the same criterion as holders of standard permits: They
would be required to undertake all practicable measures to reduce take
to the point where any remaining take is unavoidable. To ensure that
eagles are adequately protected, based on the results of the 5-year
evaluations, after negotiation with the permittee, the Service may
require long-term permittees to undertake additional conservation
measures other than those originally contemplated, if they are both
practicable and reasonably likely to reduce risk to eagles based on the
best scientific information available.
To recoup the cost of processing longer-term permits, which are
generally complex due to the need to develop robust adaptive management
measures, we propose to assess a $36,000 permit application processing
fee for eagle incidental take permits of 5 years duration or longer.
The permit processing fee for 5-year programmatic permit applications
is $36,000 currently. A commercial applicant for an incidental take
permit of a duration less than 5 years would pay a $2,500 permit
application processing fee, an increase from the current fee of $1,000
for programmatic permits and $500 for standard permits. The higher fee
better reflects the costs of processing those permits. The amendment
fee for those permits would increase from $150 to $500. The incidental
take permit application processing fee for homeowners would remain $500
and the amendment fee for those permits would also remain unchanged at
$150. The proposed higher fees for commercial entities would recover a
larger portion of the actual cost to the Service, including technical
assistance provided to the potential applicant by the Service prior to
receiving the actual permit application package. Commercial entities
have the opportunity to recoup the costs of doing business by passing
those costs on to their customers. For homeowner permits, the fees
would remain the same, even though Federal agencies are directed to
recoup the full costs of processing permits. The reality is that many
of the homeowners who justifiably need eagle permits would not be able
to pay the actual full cost to the Service of providing technical
assistance to the homeowner and processing their permit applications.
We propose to assess a $15,000 user fee called an Administration
Fee every 5 years for long-term permits. This fee would cover the cost
to the Service of conducting the 5-year evaluation and developing any
appropriate modifications to the permit.
The Service has developed data standards, including protocols for
pre-construction eagle surveys and a fatality prediction model for wind
energy generation facilities. We propose to require that wind energy
generation facility permittees use these models and protocols, which
are contained in the Eagle Conservation Plan Guidance Module 1--Land-
based Wind Energy (USFWS, 2013) (``ECPG''), available at: https://www.fws.gov/migratorybirds/pdf/management/eagleconservationplanguidance.pdf. These standards include the steps
described in ECPG Appendix B for site-assessment prior to siting
projects; pre-construction survey requirements in ECPG Appendix C; and
the fatality prediction model from ECPG Appendix D. We are proposing to
incorporate these standards by reference in accordance with 1 CFR part
51. These standards will also be available in hard copy upon request
from the agency contact listed above.
The requirement to conduct surveys, fatality predictions, and
monitoring using Service-approved ECPG protocols for wind energy
generation facilities, and potentially for other industries in the
future, will result in more efficient permitting decisions by the
Service. Submission of inadequate data, or data gathered using methods
the Service cannot verify to be sound, has resulted in significant
extra work and time from our staff to assess wind energy project
impacts.
We recognize that the model recommended in the ECPG for predicting
fatalities is considered by some to be overly simplistic in its current
form. However, the use of standard protocols is an essential component
of the Service's adaptive management process for the eagle permit
program, which employs feedback loops between the initial survey data,
the fatality prediction model, and the post-construction fatality
estimates. Data from the latter process can be used to formally improve
the fatality prediction model, thereby increasing the performance and
complexity of the model as well as the Service's ability to accurately
predict project impacts. If the Service's protocols are not followed,
combining data from multiple projects is difficult if
[[Page 27941]]
not impossible, and the Service and regulated community loses the
ability to learn from the permitting process. Moreover, the Service has
no formal way to improve the fatality prediction for a project that
doesn't use our protocols in the future, thus those projects may have
to endure higher fatality predictions over the life of the project than
would otherwise be the case. Finally, the Service is not precluding
permit applicants from collecting other data or using other models to
assess risk, we are only requiring that the Service's protocols be
among those that are used.
While we have not officially issued fatality prediction models or
pre-application monitoring protocols for other activities, or finalized
post-permitting monitoring protocols for any single activity, the
Service has enough information about eagle behaviors and movements to
recommend and approve monitoring protocols for activities other than
wind energy generation on a project-specific basis during the technical
assistance process. We encourage project proponents to coordinate with
the Service as early as possible in the project planning process to
ensure they are aware of any protocols we have recommended and that
they use them appropriately. Our goal is to establish additional
formalized monitoring protocols for industries other than wind energy
in the future.
Most permittees will be required to monitor for purposes of
assessing whether and how much take occurs under the permit. Reported
take would be based on performance of permit conditions establishing
surveying and monitoring protocols. For permits for disturbance, such
monitoring is likely to consist of regular visits to the proximity of
the nest site or other important eagle-use area where disturbance is
likely to occur to observe whether eagles are using the area. We expect
that most long-term permits would authorize lethal take rather than
disturbance. Holders of permits that authorize eagle mortalities would
be required to use approaches to searching for injured and killed
eagles and for estimating total take that use statistically rigorous,
unbiased, estimators. Permittees would be required to document and
report all eagles that are found, the methodologies employed to search
for them (including whether or not they were detected as part of a
formal survey methodology), and the methods used to estimate what the
observed carcasses actually represent (the probability of detection).
``Observed take'' as used in these regulations refers to the amount of
take that is arrived at based on adherence to these protocols.
The Service defines ``mitigation'' to sequentially include:
Avoidance, minimization, rectification, reduction over time, and
compensation for negative impacts. The 2009 regulations lack
specificity with regard to when compensatory mitigation will be
required, and the preamble discussion of compensatory mitigation was
somewhat inconsistent. In reference to nonpurposeful take permits, the
preamble to the 2009 regulations contained the following language:
``Additional compensatory mitigation will be required only (1) for
programmatic take and other multiple take authorizations; (2) for
disturbance associated with the permanent loss of a breeding territory
or important traditional communal roost site; or (3) as necessary to
offset impacts to the local area population. Because permitted take
limits are population-based, the Service has already determined before
issuing each individual take permit that the population can withstand
that level of take. Therefore, compensatory mitigation for one-time,
individual take permits will not typically be necessary for the
preservation of eagles'' (74 FR 46844, September 11, 2009). Regarding
the Sec. 22.27 nest take permits, we indicated in the preamble that we
would require compensatory mitigation for all permits except those
issued for safety emergencies (74 FR 46845, September 11, 2009).
The Service also addressed compensatory mitigation in the 2009 FEA,
which contained the following language: ``For most individual take
permits resulting in short-term disturbance, the Service will not
require compensatory mitigation. The population-based permitting the
Service will propose is based on the level of take that a population
can withstand. Therefore, compensatory mitigation for individual
permits is not necessary for the preservation of eagles. However, the
Service will advocate compensatory mitigation in the cases of nest
removal, disturbance or [take resulting in mortality] that will likely
incur take over several seasons, result in permanent abandonment of
more than a single breeding territory, have large-scale impacts, occur
at multiple locations, or otherwise contribute to cumulative negative
effects'' (USFWS, 2009).
Because the 2009 regulations did not incorporate specific
compensatory mitigation provisions, the Service has required
compensatory mitigation on a case-by-case basis somewhat
inconsistently, particularly for bald eagles, which has at times
resulted in differing treatment of, and uncertainty for, permit
applicants. Accordingly, this proposed rule includes standardized
requirements for compensatory mitigation. In addition to the mitigation
requirements set out in this rule, the Service will implement these
regulations in a manner consistent with Service, Departmental, and
Presidential mitigation policies.
Since 2009, take limits for golden eagles have been set at zero
throughout the United States. Accordingly, all permits for golden eagle
take would exceed the take limits, and so must incorporate compensatory
mitigation in order to authorize that take. A permittee would have to
compensate for authorized take within the same EMU (except that we
would allow for compensatory mitigation of take of Alaskan golden
eagles throughout the migration and wintering range in the interior
western United States and northern Mexico).
The best available information indicates that ongoing levels of
human-caused mortality of golden eagles likely exceed sustainable take
rates, potentially significantly. As a result, compensatory mitigation
for any authorized take of golden eagles that exceeds take thresholds
would be designed to ensure that take is offset at a greater than one-
to-one ratio to achieve a net benefit to golden eagles to achieve an
outcome consistent with the preservation of golden eagles as the result
of the permit. Based on the uncertainty in the effectiveness of a
particular compensatory mitigation practice, we are likely to require
further adjustments to mitigation ratios to provide a buffer in the
event that the planned mitigation is less effective than anticipated.
Under the various mitigation policies that govern Service
permitting actions, compensatory mitigation must be in accordance with
the management goal for the protected resource or species. For take
that is within EMU take limits, compensatory mitigation is generally
not needed because we can permit that take and still achieve our
management goal. Cumulative authorized take exceeding 5% of the LAP
would also generally require compensatory mitigation to ensure our
eagle preservation standard is being met. An exception would be when
the EMU take limit is not exceeded (i.e., currently the case for bald
eagles in all EMUs), the permitted take is already occurring, and the
permit conditions would result in a reduction of take.
We may also require compensatory mitigation when there is an
unusually
[[Page 27942]]
high level of unauthorized eagle mortality in the LAP (for example,
when the Service has information indicating that unauthorized take
exceeds 10% of the LAP). The Service has no data to indicate that
ongoing unauthorized take of bald eagles is less than that of golden
eagles, and proposes to apply the LAP analysis and assessment of any
known ongoing unauthorized take to bald eagles as well as golden
eagles, as we have been doing while the LAP analysis remains guidance.
Although exceeding 5% permitted take of the LAP will have significantly
less dramatic effects to local bald eagle populations, States, tribes,
and localities have communicated their interest in seeing regulatory
safeguards to protect local bald eagles as well as golden eagles. In
the near future, it is unlikely that cumulative authorized take of
local area populations of bald eagles will exceed 5% anywhere in the
country. The Service will continue to collect data to refine our
understanding of cumulative mortality on both eagle species and may
adjust take rates in the future.
Under these proposed regulations, the LAP analysis would be the
formalized approach to documenting whether compensatory mitigation may
be necessary to maintain the persistence of local eagle populations.
However, there are other factors, particularly long-term and
cumulatively, that could also create the need for compensatory
mitigation to better protect or enhance populations. For example
climatic changes can have direct and indirect effects on species
abundance and distribution, and may exacerbate the effects of other
stressors, such as habitat fragmentation and diseases. The conservation
of habitats within ecologically functioning landscapes is essential to
sustaining the long-term persistence of populations. To ensure the
Service has the tools to address such circumstances, this proposed rule
would allow the Service to require compensatory mitigation ``if
otherwise necessary to maintain the persistence of local eagle
populations throughout their geographic range.''
The Service will encourage the use of in-lieu fee programs,
mitigation and/or conservation banks, and other established mitigation
programs and projects. We intend to facilitate the establishment of an
in-lieu fee program to allow permit applicants to contribute to a
compensatory mitigation fund as an alternative to developing individual
mitigation measures for each project. All compensatory mitigation must
comply with principles and standards set forth in Service and
Departmental policy. Per these principles and standards, compensatory
mitigation is considered after all appropriate and practicable
avoidance and minimization measures are applied and must achieve the
following: Be sited to address broader ecological contexts; adhere to a
mitigation planning goal; use best available science to ensure
effectiveness; be additional to any existing or foreseeably expected
conservation efforts; be durable and persist for at least the time-
frame of the impacts; incorporate adaptive management; and account for
uncertainty and risk. In approving compensatory mitigation mechanisms
and actions, the Service will ensure the application of equivalent
ecological, procedural, and administrative standards for all
compensatory mitigation mechanisms. The Service prefers that
compensatory mitigation is conducted prior to when the impacts of the
action occur. Conservation banking can provide a source of advance
credits.
Predictions about the effectiveness of compensatory mitigation
measures have varying degrees of uncertainty. Under the current
framework, the Service has required a relatively high degree of
confidence in the effectiveness of very few compensatory mitigation
options. We will consider compensatory mitigation measures and programs
that face more risk and uncertainty provided mitigation accounting
systems factor in risk and adjust metrics, mitigation ratios, and the
amount of required mitigation to account for uncertainty.
Where compensatory mitigation will be required, the applicant must
commit to the funding and method that will be used prior to or upon
permit issuance. For long-term permits, permittees would be required to
provide offsetting mitigation to compensate for predicted take over 5
years. If no observed take has occurred in the first 5 years, the
permittee need not pay for any additional mitigation. If reliable
reported data demonstrates that a given permit holder/project is
causing fewer impacts to eagles than originally permitted (e.g. actual
take of eagles is lower than predicted), permittees can carry forward
``unused'' compensatory mitigation credits to the next 5-year review
period.
We are proposing a change to the prioritization criteria that
govern the order in which the Service will prioritize authorization of
take if EMU take limits are approached. The priority after safety
emergencies for Native American take for religious purposes that
depends on take of wild eagles (and as such cannot be met with eagle
parts and/or feathers from another source, such as the National Eagle
Repository) will be amended slightly to apply to any increased need in
take for religious purposes. In such cases, that take would not be part
of the current baseline. Historical tribal take for religious use
requiring take of eagles from the wild that has been ongoing, but not
authorized, does not usually need to be prioritized because it is part
of the baseline. Thus, any authorization of such previously
unauthorized take would not affect EMU take limits. We also propose to
delete the reference to rites and ceremonies because traditional take
for religious and cultural purposes may not be limited to, or properly
characterized as being part of, specific rites and ceremonies.
We propose changing the prioritization order by removing the
priority for renewal of programmatic permits, since the regulations
would no longer contain a separate category for programmatic permits.
The definition of ``low-risk'' projects that was established in the
duration rule, which was subsequently vacated by the August 2015
district court decision (Shearwater v. Ashe, No. 5:14-cv-02830 LHK
(Sep. 16, 2015), was counter-productive. ``Low-risk'' was defined in a
footnote to 50 CFR 13.11(d)(4) as a project or activity that is
unlikely to take an eagle over a 30-year period and the applicant for a
permit for the project or activity has provided the Service with
sufficient data obtained through Service-approved models and/or
predictive tools to verify that the take is likely to be less than 0.03
eagles per year. This definition covers only those projects where take
is essentially negligible, and, therefore, the project does not require
a permit. The Service sees utility in redefining ``low-risk'' to
include projects with a slightly higher probability of taking eagles,
but which cumulatively will still be compatible with eagle management
objectives.
However, despite seeking input from the public and considerable
staff effort, we were unable to develop a definition of ``low-risk''
that could be applied throughout the United States while achieving the
desired goals for such a category. The Service considered basing the
low-risk category on (1) a flat number of eagles predicted to be taken,
(2) a percentage of the local area population (LAP), (3) a hybrid of
those two, and (4) the geographic and physical features of the area
where the project will be located. Each of these approaches produced
conflicting results due to the significant discrepancies that exist
between eagle population densities and resilience, habitat variability,
and project scales. Accordingly, we are not proposing a revised
definition for low-
[[Page 27943]]
risk projects in this proposed rule. We will continue to consider ways
that a category of lower risk projects could be defined for use in the
future. If you have suggestions for how to define ``low-risk'' or low-
impact'' take of eagles, including how a general permit authorization
should work or other approaches for authorizing such take, please
submit them as indicated under ADDRESSES. While such comments would be
outside the scope of this rulemaking action, we would keep them for
consideration if we decide to pursue further rulemaking in the future.
Eagle Nest Take Permits (50 CFR 22.27)
Under the current Sec. 22.27 eagle nest take regulations, the
Service can issue permits for removal, relocation, or destruction of
eagle nests where (1) necessary to alleviate a safety emergency to
people or eagles, (2) necessary to ensure public health and safety, (3)
the nest prevents the use of a human-engineered structure, or (4) the
activity or mitigation for the activity will provide a net benefit to
eagles. Only inactive nests may be taken except in the case of safety
emergencies. Inactive nests are defined by the continuous absence of
any adult, egg, or dependent young at the nest for at least 10
consecutive days leading up to the time of take.
As with Sec. 22.26 incidental take permits, we propose to
eliminate the distinction between programmatic and standard permits for
Sec. 22.27 nest take permits. The permit fee for removal or
destruction of a single nest will remain at $500. A commercial
applicant for a nest take permit for a single nest would pay a $2,500
permit application processing fee, an increase from the current fee of
$500 for standard permits and $1,000 for programmatic permits. The
amendment fee for those permits would also increase from $150 to $500.
For permits to take multiple nests, the fee would be 5,000 versus 1,000
for programmatic permits currently. For homeowners, the nest take
permit application processing fee and amendment fee would not change.
We are also proposing a number of relatively minor revisions to the
nest take permit regulations at 50 CFR 22.27 and several revisions to
definitions in 50 CFR 22.3 that apply to nest take permits. First, we
propose to change terminology referencing the status of nests to better
comport with applicable terms used in scientific literature. Nests that
are not currently being used for reproductive purposes would be defined
as ``alternate nests,'' while nests that are being used would be ``in-
use nests.'' Some commenters suggested the latter be called ``occupied
nests,'' but we believe that term would cause confusion because nests
are in use for breeding purposes prior to being physically ``occupied''
by nestlings or an incubating adult. Under our proposed definition, an
``in-use nest'' means ``a bald or golden eagle nest characterized by
the presence of one or more eggs, dependent young, or adult eagles on
the nest in the past 10 days during the breeding season.'' This
definition includes the period when adults are displaying courtship
behaviors and are building or adding to the nest in preparation for
egg-laying. We would define ``alternate nest'' as ``one of potentially
several nests within a nesting territory that is not an in-use nest at
the current time.'' When there is no in-use nest, all nests in the
territory are ``alternate nests.''
We propose to revise the definition of ``eagle nest'' from ``any
readily identifiable structure built, maintained, or used by bald
eagles or golden eagles for the purpose of reproduction'' to ``any
assemblage of materials built, maintained, or used by bald eagles or
golden eagles for the purpose of reproduction.'' The words ``readily
identifiable'' did nothing to clarify when a structure was or was not a
nest since a structure might appear to be just a pile of sticks to one
person, or an osprey nest to a second person, but clearly an eagle nest
to someone familiar with eagle nests. The confusion caused by the words
``readily identifiable'' sometimes put in jeopardy nests in the early
stages of being built, or nests that are used from year to year but are
substantially damaged during the non-breeding season by wind or
weather.
We propose changes to enable the Service to issue a permit to
remove an in-use nest to prevent a rapidly developing safety emergency
that otherwise would be likely to result in bodily harm to humans or
eagles while the nest is still in use for breeding purposes, instead of
waiting until the emergency is exigent. Without this clarification, the
Service has been faced with having to wait until the fully developed
state of emergency had arrived, and the delay has sometimes been to the
detriment of the eagles because, while the safety emergency developed,
the breeding pair had the opportunity to lay eggs.
Current regulations provide that the Service can issue a nest take
permit for an inactive (proposed ``alternate'') nest that is built on a
human-engineered structure and creates a functional hazard that renders
the structure inoperable for its intended use. We propose to change
this provision to also allow for removal of an in-use nest prior to
egg-laying to prevent the foreseeable functional hazard from coming to
fruition. The proposed regulatory language would allow nest removal at
an earlier stage that may allow for the eagles to re-nest elsewhere
while also preventing the nesting eagles from rendering the human-made
structure inoperable.
We also propose to remove the requirement that suitable nesting
habitat be available in the area nesting population to accommodate
displaced eagles for non-emergency nest take. The provision has been
problematic because, in many healthy populations of bald eagles,
suitable nest sites are all occupied. As part of the permit application
review process, the regulations would retain consideration of whether
alternate nest sites are available to the displaced eagles, but an
affirmative finding would not be a requirement for issuing a permit.
Also, we propose to change the scope of consideration to the
``nesting territory,'' not the ``area nesting population,'' which is
defined in current regulations as ``the number of pairs of golden
eagles known to have a resting [sic] attempt during the preceding 12
months within a 10-mile radius of a golden eagle nest.'' That
definition was codified in 1982 when a new permit was established for
removal or destruction of nests for resource development and recovery
operations. In addition to the typo (i.e., ``resting''), this
definition is problematic in the context of bald eagles, not only
because it omits reference to bald eagles, but also because a 10-mile
radius around a bald eagle nest has no particular biological
significance. For both species of eagles, consideration of whether the
nesting pair may be able to use a different nest should focus primarily
on the pair's nesting territory. In some cases, that determination may
require looking beyond any known alternate nests in order to verify
that those nests are not actually part of a different pair's nesting
territory. However, it will not always require surveys of the area
within the 10-mile radius of the nest that would be removed. We propose
the following definition for ``nesting territory'': ``the area that
contains one or more eagle nests within the home range of a mated pair
of eagles, regardless of whether such nests were built by the current
resident pair.'' This definition would replace the current definition
of ``territory.'' The two definitions are functionally similar, but the
one we are proposing is more in line with terminology used in the
biological community.
[[Page 27944]]
Under the current regulations, if a nest containing viable eggs or
nestlings must be removed, we require transfer of the nestlings or eggs
to a permitted rehabilitator or placement in a foster nest. However,
there are circumstances when such placement is simply not possible; for
example, in Alaska the closest permitted rehabilitator may be a day's
drive or more away. Nests with viable eggs or nestlings can be removed
only in safety emergencies, and the requirement has sometimes meant
that the Service could not legally issue a permit necessary to
alleviate the safety emergency. To address this problem, we propose to
retain the requirement that nestlings and viable eggs be transported to
a foster nest or permitted rehabilitator, but add a provision allowing
the Service to waive the requirement if such transfer is not feasible
or humane. The Service will determine the disposition of the nestlings
or eggs in that scenario. Euthanasia may sometimes be the most humane
option.
As with the prioritization criteria in Sec. 22.26, these
regulations would amend the prioritization criteria for nest take
permits to remove any priority for allocation of take to renewal of
programmatic permits because that permit category will be removed.
Also, the prioritization for Native American religious take would be
amended in the same manner as for Sec. 22.26 incidental take permits
(see earlier discussion).
These proposed regulations adopt mitigation standards for taking
eagles nests under Sec. 22.27 that are similar to those we are
proposing for Sec. 22.26. The exception is that permits issued under
paragraph (a)(1)(iv) must apply appropriate and practicable
compensatory mitigation measures as specified in your permit to provide
a net benefit to eagles if the permitted activity itself does not
provide a net benefit to eagles. Permits issued under paragraph
(a)(1)(iv) are not limited to situations involving a safety or health
issue or an obstruction to a manmade structure; they can be issued to
take alternate (currently called ``inactive'') nests for any reason as
long as there will be a net benefit to eagles scaled to the effects of
the nest removal. If the activity itself has a net benefit,
compensatory mitigation would not be required. For example, a nest
might be flooded during a riparian restoration project undertaken to
provide improved habitat for eagles. Where the activity itself does not
benefit eagles, the net benefit must be through compensatory
mitigation.
Several commenters suggested we eliminate the requirement for a
``net benefit'' for permits issued under paragraph (a)(1)(iv). In
general, we believe the requirement to provide a net benefit is
appropriate, particularly now that we will promote the use of
conservation banks, in-lieu fee programs, and other third-party
arrangements to carry out the necessary measures to benefit eagles.
These types of programs can leverage relatively small amounts of
funding to provide significant benefits on the ground. Also, many nests
for which permits are sought for removal are lower quality nests, not
having been used in some time and degraded, or alternate nests just
being built. In those cases, the amount of compensatory mitigation may
be relatively low. Additionally, in populations with high eagle
density, the biological value of a single nest to eagle populations
tends to be lower. Data shows that productivity in highly saturated
eagle populations decreases due to nests being built in less than ideal
locations in relation to food sources and/or increased competition and
fighting among nesting pairs. In such situations, the required net
benefit would reflect that lower biological value.
Permit Application Fees (50 CFR 13.11)
We also propose minor revisions to the permit application
processing fee table in 50 CFR 13.11. We would remove the column for
Administration Fees because those fees are applied only for eagle
incidental take permits and not for any other type of Service permit
listed in the table. The requirement for administration fees would be
incorporated into Sec. 22.26. The table would also include the updated
fees we are proposing for incidental take permit for commercial
entities, long-term incidental take permits, nest take permits for
commercial entities, and nest take permits for multiple nests.
Scope of Eagle Regulations (50 CFR 22.11)
The Service would revise Sec. 22.11(c) to replace ``[Y]ou must
obtain a permit under part 21 of this subchapter for any activity that
also involves migratory birds other than bald and golden eagles, and a
permit under part 17 of this subchapter for any activity that also
involves threatened or endangered species other than the bald eagle''
with ``[A] permit under this part authorizes take, possession, and/or
transport only under the Bald and Golden Eagle Protection Act and does
not provide authorization under the Migratory Bird Treaty Act or the
Endangered Species Act for the take, possession, and/or transport of
migratory birds or endangered or threatened species other than bald or
golden eagles.'' The original language was promulgated prior to the
bald eagle being removed from the ESA List of Endangered and Threatened
Wildlife as part of a final rule authorizing transport of eagle parts.
The original intent of Sec. 22.11(c), as explained in the final rule
published in the Federal Register, was that a permit holder
transporting items that contained not only eagle parts, but also parts
of other species protected by the Endangered Species Act or the
Migratory Bird Treaty Act, into or out of the country would need to
ensure he or she possessed the applicable permits for those protected,
non-eagle species in order to legally transport the item. See 64 FR
50467, September 17, 1999. However, this provision could be read to
limit the Service's discretion to decide the appropriate manner of
authorization for activities that affect other protected species
outside the context of transportation of items containing eagle parts.
For example, Sec. 22.11(c) could be read to preclude the Service from
using intra-Service section 7 consultation to analyze and exempt non-
jeopardizing ESA take that may result from the Service's issuance of an
Eagle Act permit to a project proponent. Thus, we are proposing to
amend Sec. 22.11(c) to ensure it does not limit our discretion to
apply the appropriate authorization under the ESA or the MBTA for
activities that involve other species protected by those statutes.
Golden Eagle Nest Take Permits for Resource Development and Recovery
(50 CFR 22.25)
We are proposing several revisions to the regulations for permits
for take of inactive golden eagle nests for resource development and
recovery operations. The current regulations were codified in 50 CFR
22.25 in 1983. We propose to amend them to use terminology that is
consistent with the Sec. 22.27 eagle nest take permit regulations. Our
intent in this rulemaking is to limit revisions to Sec. 22.25 to those
necessary for consistency with Sec. 22.27, plus a few additional minor
revisions, as explained below.
The proposed revisions include changing ``inactive nest'' to
``alternate nest'' and removing references to the ``area nesting
population.'' As with Sec. 22.27 nest take permits (discussed above),
the relevant area of consideration is the nesting territory. Rather
than needing to evaluate whether there is suitable nesting habitat
available within the area nesting population, the Service will consider
whether alternate nests are available within the nesting territory. It
may be
[[Page 27945]]
appropriate in some cases to survey golden eagle nests within the 10-
mile radius to determine whether nests assumed to be in the same
territory as the one being removed are not actually in a different
breeding pair's nesting territory. Loss of a nesting territory would
not preclude the Service from issuing a permit, but such loss would be
part of our consideration of whether the take is compatible with the
preservation standard and what mitigation would be necessary.
We propose to add the phrase ``and compatible with the preservation
of golden eagles'' to paragraph (b)(4) of the Sec. 22.25 permit
regulations. The introductory language for this permit regulation
already specifies that the taking must be compatible with the
preservation of golden eagles, but we believe it is important to
clarify in paragraph (b)(4) that mitigation can be used to provide that
compatibility. A final minor proposed revision is the addition of ``and
monitoring'' to paragraph (b)(4). We do, as a matter of course, require
monitoring as a condition of these permits, so it makes sense to
clarify in the regulation that we may do that.
Finally, we are proposing to replace the word ``feasible'' with
``practicable'' in reference to the mitigation that will be required,
consistent with Sec. 22.26, Sec. 22.27, and agency mitigation policy.
Response to Public Comments on the 2012 ANPR and 2014 Notice of Intent
To Prepare an Environmental Assessment or an Environmental Impact
Statement
NEPA Process on This Action
Comment: NEPA analysis for individual projects is the biggest
constraint associated with the current eagle take permit process. A
programmatic analysis under NEPA would streamline and expedite the
process for applicants and likely result in more participation by
electric utilities and others, particularly for projects with
relatively lower risk to eagles.
Comment: The Service should conduct a nationwide programmatic NEPA
analysis on the issuance of eagle permits for electric utilities so
that subsequent permit applications can be categorically excluded from
additional NEPA analysis.
Service response: In addition to the cost to project developers,
NEPA requirements for permitting individual projects have been
responsible for a significant portion of the Service's time and effort
in processing permit applications. We are developing a DPEIS in
association with this rulemaking. The DPEIS programmatically analyzes
eagle take within certain levels and the effects of complying with
compensatory mitigation requirements to allow the Service to tier from
the DPEIS when conducting project-level NEPA analyses. The DPEIS will
cover the analysis of effects to eagles under NEPA if the project: (1)
Will not take eagles at a rate that exceeds (individually or
cumulatively) the take limit of the EMU (unless take is offset); (2)
does not result in FWS authorized take (individually or cumulatively)
in excess of 5% of the LAP; and (3) where the applicant agrees to use a
FWS-approved offsetting mitigation bank to accomplish any required
offset for the authorized mortality. Projects that do not meet these
three criteria might still be authorized, but they would likely need to
undergo individual NEPA review of their effects on eagles. We would
also conduct a review of unpermitted take information available to us
to assess whether the unpermitted eagle take in the LAP is excessive,
and if that is the case, the project might still be authorized but may
be subject to additional NEPA review.
With regard to using a categorical exclusion for projects that pose
a low risk to eagles, we investigated the possibility of developing a
new categorical exclusion for such projects. However, we were unable to
define low risk in a manner that was workable nationwide (see above
discussion of the ``low-risk category'').
Comment: The benefits of various activities that impact eagles
should be analyzed in the EA or EIS. For example, renewable energy will
benefit eagles and other wildlife by reducing carbon emissions, and
utilities manage large water reservoirs that provide valuable foraging
habitat for bald eagles.
Service response: While the primary purpose of the DPEIS is to
analyze the effects of the Federal actions being undertaken
(establishment of eagle management objectives and revised permit
provisions), to the degree that beneficial effects to eagles can be
anticipated from categories of activities, the DPEIS broadly analyzes
those effects.
Tribal Consultation
Comment: To address the cultural value of eagles, the Service
should consult face-to-face with the National Congress of American
Indians and other tribal entities for their direction on this issue.
Comment: In recognition of the continued lack of tribal engagement
on these eagle matters, the Service should consult with and engage
tribes, tribal religious and spiritual leaders, and tribal conservation
and environmental experts regarding the development and implementation
of Federal policies related to eagles.
Comment: The Service should integrate tribal consultation
throughout the NEPA process for this rulemaking and for individual
permit applications to take eagles by providing tribes with clear
proposed rulemaking and permit application information in a timely
manner, disseminating information to a wide tribal audience, and
ensuring that in-person consultation meetings are conducted.
Comment: The NEPA analysis must consider the unique effects that
eagle handling and eagle takes have on tribes. For example, topics for
consideration should include: How a loss of eagles in an area where
tribes are present will affect such tribes; the extent to which tribes
can participate in handling the remains of eagles that are taken on
reservation lands; protection of tribal cultural resources and historic
properties by a project seeking a permit to take eagles; and whether
procedures for handling eagle remains are consistent with tribal
practices and beliefs.
Comment: Early and meaningful consultation with tribes should occur
so the Service can use traditional ecological knowledge.
Service response: The Service reached out to all federally
recognized tribes with a letter inviting government-to-government
consultation in late 2013. We then met with interested tribes in person
or through calls and Web conferences. A list of the tribes the Service
met with is provided in Table 6.2-1 of the DPEIS. We would and will
consider tribal ecological knowledge that is provided by tribes. We
continue to encourage tribes that wish to consult on this rulemaking
and eagle management in general to contact us to request meetings. In
addition, the DPEIS associated with this rulemaking examines potential
effects of this rulemaking on tribal resources, religion, and culture,
and we encourage comment and feedback, (and consultation if requested)
from tribes on that analysis.
At the individual project level, we invite consultation with tribes
in the vicinity of projects requesting permits, as well as tribes with
historical ties to the area who have advised us of their interest in
consulting with the Service.
Population Management Objectives
Comment: The fact that the Service is on record in its FONSI on the
2009 permit regulations stating that it will not
[[Page 27946]]
issue any permits for golden eagle take east of the 100th meridian is
very troubling. Failure to do so will result in industrial wind
development going ahead anyway without the NEPA analysis, public
review, and conservation measures.
Comment: The Service should retain its stance against permitting
any take of golden eagles east of the 100th meridian. If the Service is
contemplating altering this policy, it should not be an internal
decision; a public process is warranted.
Service response: We agree with the first commenter. The DPEIS
analyzes the effects of issuing permits for golden eagle take across
the United States, including east of the 100th meridian. The DPEIS
analysis, with its associated public process, also addresses the
concerns of the second commenter. We propose to issue permits to
qualifying applicants in the eastern United States if the take will be
offset and other required issuance criteria are met.
Comment: Golden eagle populations should be managed using western
and eastern take thresholds rather than Bird Conservation Region (BCR)-
based regional thresholds. Satellite telemetry data (published and
currently being collected) suggest a great deal of mixing across BCR
boundaries.
Comment: Management of golden eagles by BCRs is problematic because
most BCRs are large and span multiple jurisdictional boundaries;
individual eagles may use multiple BCRs throughout the year; and a
single BCR may host breeding, resident, and migratory eagles in
different locations and/or times of year. Management should be at three
scales: Flyway, state, and local.
Comment: The Service should consider using the States as the Eagle
Management Units (EMUs) for bald eagles.
Comment: The Service should treat Alaska as one EMU for both bald
and golden eagles. A lack of information regarding golden eagle
populations in Alaska does not justify the imposition of a rigid ``no
net loss'' standard. When combined with the emphasis on management by
EMUs, the Service has established a disproportionately high threshold
for the approval of golden eagle take permits. Accordingly, in Alaska,
the Service should discontinue the ``no net loss'' standard and the
application of multiple EMUs for golden eagles, and should instead
provide for a flexible approach to acceptable compensatory mitigation.
Service response: With the exception of management at the State
scale, we are proposing an approach to golden eagle management that
addresses the issues raised by the four comments above. As explained in
more detail earlier in this preamble, we propose to use the flyways as
EMUs but also incorporate a local area population cumulative take
analysis in the permit decision process. Flyways more closely
approximate eagle movement than the current EMUs, and the adoption of
flyways would also provide more flexibility for where to apply
compensatory mitigation. Under the management approach being proposed,
limits for take of golden eagles in Alaska, as in the rest of the
Pacific Flyway and United States would remain at zero. However, because
golden eagles from natal areas above 60 degrees N. Latitude are usually
migratory and much annual mortality occurs on migration or on the
wintering grounds (McIntyre et al., 2008; Status Report), these
proposed regulations would substantially increase flexibility in where
compensatory mitigation for take of golden eagles in Alaska can be
applied, extending it throughout the migration and wintering range of
Alaskan golden eagles in the interior western U.S. and northern Mexico.
Management at three scales would be overly complex in addition to the
fact that State boundaries have no relation to eagle movements or
migration patterns or to populations affected by a given project.
Accordingly, we are not proposing to manage either species of eagle at
the State scale. However, State management plays a crucial role in the
management and conservation of eagles, thus we will continue to
coordinate when issuing permits and partner with States on conservation
initiatives.
Comment: The Service should revise its interpretation of the eagle
preservation standard to apply to the national population of eagles and
should, therefore, issue an eagle take permit if issuance would not
reduce the likelihood of survival of the species of golden eagles and
bald eagles nationally, rather than individual eagles or local or sub-
regional populations.
Service response: Application of the preservation standard to only
a national scale would not protect eagles throughout their ranges. For
example, it would allow for loss of all bald or golden eagles on the
east or west coast, or even everywhere but Alaska, which is not an
effective or sufficiently protective management framework.
Comment: The Service should evaluate take not just in a regional
context, but also taking into account its impact on local and national
populations.
Comment: The Service should establish smaller local geographic
units (as defined by eagle biology and movement) in order to better
assess project-level impacts and mitigation.
Service response: Protection of eagle populations across the
flyways would protect eagles at the national scale. With regard to a
more local scale, these proposed regulations add protection in two
ways. First, we propose to modify and codify the Preservation Standard
to include the goal of maintaining the persistence of local populations
throughout the geographic range of both species. Second, these proposed
regulations would incorporate the LAP cumulative effects analysis into
the permit issuance criteria.
Comment: The Service should use smaller local geographic management
units within the larger regional units, which would allow the Service
to permit take in areas where the local breeding population exceeds the
regional averages. It would also mean that replacement mitigation would
not need to be tied to the larger regional population, but would be
based on the local population.
Service response: The Service assesses local population impacts as
part of the LAP assessment. However, at this time the fine-scale local
population data that would be needed to assess eagle abundance at this
scale in all seasons, and changes in that abundance between years, is
not available. Thus the Service relies on estimates of average summer
population density to approximate the size of local populations for
this assessment. Moreover, effects on local populations are complicated
by the fact that some currently unknown proportion of the fatalities
associated with any activity almost certainly involves individuals not
from the local breeding population (e.g., migrants). This assumption
further complicates tying take rates to local eagle abundance and is
the reason the Service allows offsetting mitigation at the larger scale
of the EMU.
Comment: The Service should allow for take thresholds to be
flexible in some cases to account for migrating, wintering, etc.,
eagles that come from other regions.
Service response: We do not have enough data in most cases to know
whether the take from a particular permitted activity comprises more or
less of the local breeding eagles than the average. As explained in our
response to the question above, the Service allows offsetting
mitigation at the EMU scale.
Comment: The Service should use the most current research and
scientific information (for example, telemetry data) to redraw and
update the EMU boundaries to more accurately reflect
[[Page 27947]]
breeding territories, wintering ranges, and migration corridors for
bald and golden eagles.
Service response: The Service considered and will continue to
evaluate banding and satellite-tagged data on eagle movements as part
of a reassessment of EMUs for this DPEIS. The Service's current
proposal to use flyways to delineate EMUs is based on current data,
including telemetry data.
Comment: The language in the Eagle Act that the Service refers to
as the ``Preservation Standard'' does not apply to nonpurposeful take
permits. Nonpurposeful take permits are not required to be compatible
with eagle preservation. The phrase ``compatible with the preservation
of the bald eagle or the golden eagle'' occurs within the first clause
within section 668a of the Act, which applies to take from certain
specified, narrow activities, including those for ``scientific or
exhibition purposes'' and ``for the religious purposes of Indian
tribes.'' The preamble to the Eagle Permit Rule makes it clear that the
authority for eagle take permits arises from the last half of the
second clause of section 668a: ``protection of . . . agricultural or
other purposes.'' Since Sec. 22.26 of the Eagle Permit Rule implements
the second clause of section 668a of the Eagle Act with respect to the
authorization of eagle take permits, it concerns a separate class of
activities than those enumerated in the first clause of section 668a.
Therefore, nonpurposeful take permits should not be limited to
situations compatible with the preservation of the golden eagle or bald
eagle (the standard from the first clause).
Service response: While we understand the argument being made by
this commenter, we believe it is more reasonable to conclude that
Congress did not intend to allow the Secretary to issue permits that
are incompatible with the preservation of eagles to protect any
conceivable interest. In our view, as the agency responsible for
interpreting and implementing the statute, it would be unreasonable to
conclude that Congress limited take of eagles for particularly
defensible interests, including research and Native American religious
use, to sustainable levels while allowing unfettered take, regardless
of the consequences, for other purposes. Therefore, we will not alter
our interpretation of the statute, which takes into account the plain
meaning of the Eagle Act's specific language, its purposes, its
legislative history, and our consistent past agency practice.
Comment: The preservation standard should be based on increasing
breeding populations, not just keeping them stable, and should apply to
all populations in all areas where eagles have traditionally been
found.
Service response: Under the current preservation standard, bald
eagle populations have continued to grow, and our data and modeling,
using conservative assumptions (see Appendix E of the DPEIS), estimate
they will stabilize at approximately 260,000 individuals nationwide, up
from approximately 174,000 in 2009. Ideally, golden eagle populations
would also grow, but our data show populations have been mostly stable
over the past 40 years, so an objective that called for increasing
golden eagle populations would require addressing limiting factors that
have been in place for at least 40 years. Our data show that the most
significant limiting factor for golden eagles is mortality, especially
of adult eagles, caused by unpermitted anthropogenic sources. Our hope
is that by converting currently unauthorized take to take authorized
under permits requiring implementation of conservation measures to
avoid and minimize take and offsetting compensatory mitigation for
remaining take at a greater than one-to-one ratio, golden eagle
populations can stabilize or modestly increase. As a final point of
clarification, our management objective is not just to maintain stable
populations, but rather to allow for stable or increasing populations.
Comment: The Service should remove the reference to ``breeding''
populations in the preservation standard and replace it with
``consistent with the goal of stable or increasing populations.'' This
change will better recognize recent findings clarifying the importance
of subadults and floaters to eagle populations.
Service response: The Service does recognize the demographic
importance of all age-classes of eagles, and believes a population
objective that maintains the potential for stable numbers of breeders
is protective of all ages. Recruits are available to replace breeders
that die only if subadult and floating adult populations are healthy,
and the Service's demographic models take this into account in our
estimates of sustainable take rates, so we are proposing to retain the
word ``breeding'' in the definition.
Comment: The Preservation Standard should incorporate the concept
of resilience, requiring maintenance of ``resilient and stable or
increasing'' breeding populations. For eagle populations to be
resilient to change, multiple factors (size, genetic diversity,
demographics) must be of sufficient quality to provide for long-term
persistence.
Service response: The concept of resilience is already inherent in
the preservation standard. Keeping ``breeding'' in the standard
provides for resiliency: In order for breeding populations to remain
stable or increase over time, their size, genetic diversity, and other
demographic factors must be sufficient to allow for the populations'
continued resilience. Our proposal to add ``persistence of local
populations throughout the geographic range'' to the preservation
standard also helps ensure resiliency.
Comment: In order to effectively balance the population with
development pressure, habitat loss, and other unanticipated impacts to
the eagle population, a management goal of increasing the population
would be a more conservative approach to protecting the eagle
population.
Service response: A management goal of increasing populations would
be more conservative in terms of authorizing take than the Service's
current and proposed goal: Maintaining stable or increasing breeding
populations. We believe the latter is sufficiently protective and
consistent with the plain language of the statute. It allows for
increasing populations, as evidenced by the fact that bald eagle
populations in the coterminous United States have continued to increase
since the Service adopted the standard. At some point, bald eagle
numbers will stabilize, however. We estimate that stabilization will
occur in roughly 25-30 years with a population of about 230,000
nationwide, including Alaska. For golden eagles, populations are at
about 40,000 individuals, but would, without unauthorized sources of
anthropocentric mortality (shooting, collisions, etc.), be stabilized
at approximately 70,000 individuals. Conversion of some of that
unauthorized take into authorized take through permitting secures
offsetting mitigation and other conservation measures and has the
potential to increase golden eagle populations from their current
equilibrium number.
Comment: The Service should replace the current ``preservation''
standard with ``to not meaningfully impair the Bald/Golden Eagle's
continued existence.''
Comment: The alternative qualitative approach described in the
scoping materials ``to not meaningfully impair the bald or golden
eagles' continued existence'' is vague, ambiguous, and subject to
interpretation. The suggestion that extinction is a threshold is
alarming and contradicts the regulatory standard
[[Page 27948]]
of the Eagle Act. While qualitative objectives may provide a larger
degree of flexibility, they often rely far too heavily on the judgment
of individuals, often working in isolation and overwhelmed with permit
reviews.
Service response: We are proposing to maintain a quantitative
approach to managing eagle populations for reasons discussed earlier in
this preamble.
Comment: The Service should adopt a Qualitative Prevention approach
rather than a Quantitative Allowance approach to allow for more
flexibility to issue permits even if mitigation options are not
available to fully compensate for impacts, thus increasing data
collection as the result of monitoring required by the permit.
Service response: We have enough data to understand that additional
take of golden eagles is not compatible with maintaining the current
population unless the take is offset. Not using the data we have for
the purported reason of obtaining more data would not be scientifically
defensible.
Comment: We believe the quantifiable approach is far too cumbersome
and makes for an overly complex management/permitting approach. Aside
from reducing the complexity of analysis for and issuing permits,
proceeding with a qualitative assessment approach would allow for
greater flexibility in compensatory mitigation options than the
quantitative approach--focusing more on ``growing'' eagles than saving
them from other anthropogenic sources of mortality.
Service response: The quantitative approach reduces complexity at
the permit issuance level because the allowable take limits are already
established. A qualitative standard would require complete, independent
population assessments for each permit, and would also make it
challenging to assess cumulative impacts. Greater flexibility in where
compensatory mitigation can be applied would be achieved under the
proposed flyway EMU approach. The Service is also expanding mitigation
options by establishing and encouraging the use of conservation banks
and in-lieu fee programs, which, when available, will simplify
mitigation requirements at the individual permit level. We agree that
data collection from monitoring permitted activities is of high value.
We do not agree that focus should be shifted from addressing
anthropogenic sources of mortality. Not only are anthropogenic sources
the ones most readily controlled, our data reflects that they are
responsible for almost 60% of golden eagle mortalities.
Comment: The preservation standard currently implemented requires
surveys and monitoring with the likely consequence that funds will be
redirected from more important resource needs.
Service response: The Service has the responsibility to ensure that
any take that we authorize is compatible with eagle preservation.
Surveys and monitoring are a critical part of any responsible wildlife
management framework that includes permitting take in populations that
are already significantly affected by anthropogenic sources of
mortality.
Comment: The Service should use both a quantitative and qualitative
approach. The qualitative criteria could be used when there is not
enough data in an area to set population objectives and take
thresholds.
Service response: We disagree that a qualitative approach is
warranted for setting regional population take limits in areas where we
have insufficient data to say whether permitting take will result in
population declines. The Service has the statutorily mandated
responsibility to make a positive determination that the take will be
compatible with eagle preservation when issuing eagle take permits.
Comment: The Service should exercise caution when permitting lethal
take of eagles where best science shows populations are compromised, or
especially where populations are proven to be `sink' populations.
Service response: We are proposing incorporation of the LAP
cumulative effects analysis into the permit evaluation criteria for
eagle incidental take regulations to better protect eagles at the local
scale.
Comment: For golden eagle management units with adequate population
data and robust populations, the Service should relax the ``no net
loss'' standard and implement the permitting process at levels
compatible with maintaining stable or increasing populations.
Service response: We would not require compensatory mitigation for
take in populations that could withstand additional take without
declines to levels below our population objective. Our data indicate
golden eagles may already be experiencing higher take rates from
unauthorized take than can be sustained. Accordingly, all take we
authorize above EMU take limits must be offset.
Comment: The Service should adopt a low-risk tolerance (cautious
approach) to management of golden eagles in the Southwest (Bird
Conservation Region 16) because of changes in climate, land management
and resource development, and continued human population growth.
Service response: We are proposing to adopt a risk-averse stance
that minimizes the chances that our permit program will negatively
affect the population trajectory of both species. The take limits we
are proposing are derived by using conservative estimates of population
size and then using a conservative approach to determine how much take
those (potentially underestimated) populations can absorb without
experiencing declines. We also use compensatory mitigation to offset
all take permitted that might exceed what is sustainable, and for
golden eagles, are proposing to compensate for take at a greater than
one-to-one ratio.
Comment: The Service should set population goals. Quantitative
objectives allow States to measure progress towards goals, are an
essential feature of adaptive management strategies, and are the best
way to ensure that eagle populations remain secure.
Comment: Numerical population objectives alone are not sufficient
to guide permitting decisions without appropriate take thresholds and/
or caps for regional and local populations.
Service response: We agree that an ideal approach would include
take limits and numerical population objectives based on conservation
plans. We would like to develop specific eagle population objectives
for each EMU and then use these objectives to inform permit decisions
within the EMUs. However, this goal is not feasible at this time given
the lack of fine-scale information on eagle populations that would be
necessary. The technical and logistical complexities of working with
State agencies and tribes to set population objectives within the
timeframe of this action are impractical.
Comment: The ECPG and the 2009 permit regulations are inconsistent
as to whether the maximum take thresholds are set at ``1% of annual
productivity'' or ``1% of population.''
Service response: The ECPG and 2009 regulations differ purposefully
with respect to the population component against which the take limit
is applied. The reason for this difference is described in detail on
page 80 of the ECPG. However, we are proposing to revise the current
approach and base take limits on a percentage of the EMU population
instead of estimated annual productivity, making the regulations, in
this respect, similar to the ECPG. We now believe it is more
appropriate to track and manage take limits when they are based on
applying a harvest rate to
[[Page 27949]]
total population size, since take is occurring in all age classes, and
we have conducted analyses to determine what take rates, when applied
in this way, are compatible with our management objectives.
Comment: The Service should develop a new Maximum Sustained Yield
take threshold model based on the take of adult individuals from the
population, rather than the removal of juveniles (as was the basis for
the 2009 FEA) because the removal of juveniles has less of an impact
than removal of mature individuals.
Service response: The 2009 FEA used a harvest model that imposed
take in proportion to abundance across all age classes. Take was not
assumed to be restricted to juveniles. In the draft DPEIS for this
action, the Service has updated and revised its modeling of the effects
of take on eagle populations, and we continue to assume incidental take
affects all age classes in proportion to abundance.
Comment: Eagle population status should be assessed every 5 years
using the best scientific methodologies available.
Comment: The Service should reevaluate new information (data) that
may affect management decisions or take permits on an annual basis.
Incorporation of new, peer-reviewed research needs to occur quickly
because predator populations can experience sudden, drastic changes.
Service response: Our intention is to assess population status
every 6 years, but management decisions and issuance of take permits
will incorporate the best available scientific information on an
ongoing basis.
Comment: The current rulemaking should take this opportunity to
address the differences between bald eagles and golden eagles in terms
of their natural history, habitat requirements, and behavior and
address how the management units, risk models, and mitigation measures
planned for each reflect the conservation requirements of that species.
Service response: In general, regulations should include provisions
that will apply based on the status, trends, and threats, as well as
the natural history and behaviors, of the species they protect, no
matter which species it is. For example, the ESA does not contain
species-specific criteria, but its provisions adaptively apply to any
species listed as threatened or endangered. The status of species tends
to change over time. For example, 30 years ago, more restrictive
provisions would have been appropriate for bald eagles than for golden
eagles. To adequately encompass changes in population size and trend,
the regulations should be designed to provide the appropriate level of
protection for either and both species. These regulations propose to do
that by incorporating take limits at the EMU level established in the
DPEIS and adjusted in the future, through subsequent surveys and
analysis. We also propose to require various analyses that are informed
by differences between the two species based on their conservation
status, as well as their natural history, habitat and prey
requirements, and behaviors. Those differences underpin our management
objectives and how we apply the regulations ``on the ground.'' The
DPEIS for this action and various guidance documents also reflects
biological and behavioral differences between the species.
Comment: The revised management scheme needs to clarify whether
take caps are hard or flexible. The Service has issued permits that
exceed the 5% local area population cap but has not articulated under
what circumstances ignoring the cap is acceptable and how it is
consistent with the preservation standard.
Service response: Currently, the 5% local area population ``cap''
is guidance, not a hard limit. Under the proposed regulations, the
Service would not issue permits that result in cumulative take within
the LAP exceeding 5% unless the Service conducts additional analysis
showing that permitting take over 5% of that LAP would not have a long-
term detrimental effect to the LAP that would be incompatible with the
preservation of eagles. Examples of situations where the Service may be
able to sufficiently document that a permit authorizing take above 5%
of the LAP would not be inconsistent with the preservation standard
might include: If the project is already in operation and the permit
conditions would result in a reduction of take; or compensatory
mitigation will be applied within the LAP.
Comment: The Service should reconsider the position that
``historic'' or ``baseline'' types of take should not count against the
take thresholds. Failure to evaluate these types of take will lead to
an over-estimation of the Maximum Sustained Yield as described in the
Final Environmental Assessment on the 2009 permit regulations.
Service response: Take thresholds (or limits) are measured against
population sizes that existed in 2009 when the two new eagle take
permit regulations were put in place. Those populations were
experiencing a certain amount of take at that point that we are
considering baseline for purposes of measuring how much additional take
the populations can sustain while maintaining stable or increasing
breeding populations. Take that was occurring prior to 2009 was
reflected in the population level (golden eagles) or rate of growth
(bald eagles) that existed in 2009. Accordingly, the Service's position
when it established the 2009 take levels is that applicants seeking the
newly available take permits for golden eagle take that had been
occurring prior to 2009, or bald eagle take in the EMU where take
limits were set at zero (i.e., in the Southwest), would not need to
provide offsetting mitigation because the take is not additive to
already existing take levels. Those applicants would be required to
avoid and minimize to the maximum degree practicable, with the goal of
reducing take from their activities. Recent data indicate golden eagle
populations would likely stabilize at a significantly higher population
level if sources of unauthorized take are removed. Applicants for
incidental take permits whose activities have been taking eagles prior
to 2009 and have had more than 6 years to apply for permits may be
required to address past take by entering a settlement agreement before
being issued a permit for future take. Such agreements would require
the company to undertake corrective actions and pay penalties for
unpermitted past take, among other actions.
Comment: The Service should conduct an analysis to assess the
relative contribution of `historical' or `baseline' types of take to
the overall take that might be expected.
Service response: We are unsure if this commenter meant that we
should analyze how much of the take we expect to permit will consist of
take that was historical (ongoing prior to 2009), or that we should
analyze how much take that will occur in the future, whether permitted
or not, was historical. At any rate, we agree that a better
understanding of how much eagle take was occurring prior to 2009 would
be useful. There is not an abundance of data to inform us about the
extent of different sources of take in years preceding 2009, but in
2015, we used survival rate estimates that omitted the fraction of
mortality caused by anthropogenic activities, under the assumption that
this artificially high mortality was keeping golden eagle populations
at a lower equilibrium size than would otherwise be the case. This
analysis suggested that, in the absence of ongoing anthropogenic take,
and assuming food did not become limiting, the western U.S. golden
eagle population would be stabilized at about
[[Page 27950]]
70,000 individuals, or 1.75 times its current size. Virtually none of
that ongoing anthropogenic take is authorized.
We have attempted to research the extent of one form of historical
take via the DPEIS on this action: Take for Native American religious
use. More information about this type of take would allow the Service
to better determine that the take can be considered baseline when we
issue eagle take permits to tribes.
Permit Duration/Tenure
Comment: The EIS should include an alternative that returns to 5
years as the maximum permit duration and also the effects of not
renewing a take permit after its 5-year duration.
Service response: Three of the five DPEIS alternatives include the
provision that 5 years is the maximum permit tenure. Analyzing the
effects of not renewing individual take permits after 5 years would be
speculative at this stage and would need to be considered on a case-by-
case basis.
Comment: The recent revisions to the permit regulations that allow
for permits to be issued for up to 30 years endanger eagles. There is
not enough data or analysis to support permits of this duration.
Comment: The extension of maximum permit tenure to 30 years is
appropriate and will encourage project proponents to obtain eagle take
permits and commit to the associated conservation measures that will
benefit eagles.
Comment: The programmatic take permittees should be subjected to a
3-year renewal and review cycle. Technology in the wind industry is
changing at a speed that long-term permit requirements would not be
able to capture.
Comment: The maximum programmatic permit tenure should be 15 years
with thorough and effective review every 5 years. These reviews should
be independent of permittee-derived monitoring results.
Comment: The maximum permit tenure should be 20 years with the
option for review and permit renewal for an additional 10 years.
However, this 20-year permit must require that post-construction
monitoring occur annually in years 1-5 and then every third year for
the balance of the permit.
Comment: For projects that will have a longer lifespan or a more
lengthy Federal license or permit term, the Service should revise the
regulations to retain the flexibility to grant programmatic take
permits that extend beyond 30 years so that the permit term is
coextensive with the life of the project, or at least consistent with
the term of the Federal authorization.
Service response: We believe the 5-year maximum permit term is
unnecessarily burdensome for businesses engaged in long-term actions
that have the potential to incidentally take bald or golden eagles over
the lifetime of the activity. It has also had the unintended effect of
discouraging proponents of long-term activities from applying for
permits, despite the risk of violating the statute. With longer term
permits, the Service has the ability to build adaptive management
measures into the permit conditions. This approach provides a degree of
certainty to project proponents because they understand what may be
required to remain compliant with the terms and conditions of their
permits in the future. This information allows companies to plan
accordingly by allocating resources so that they will be available if
needed to implement additional conservation measures if necessary to
remain in compliance with statutory and regulatory requirements.
The Service cannot require any entity to apply for an eagle take
permit (except under legal settlement agreements), with the result that
some project proponents build and operate without eagle take permits in
areas where eagles are likely to be taken. The 5-year permit duration
limit has exacerbated this situation for projects with lifetimes much
longer than 5 years. When proponents choose to build projects without
seeking permits because they perceive the application burdens are too
great, the opportunity to achieve mitigation and conservation measures
is lost. The Service believes that permitting long-term activities that
are likely to incidentally take eagles, including working with project
proponents to minimize the impacts, and securing compensatory
mitigation, is preferable to forgoing that opportunity because
companies perceive the permit process as being more onerous than it
should be. Enforcement becomes the other option when entities take
eagles without permits, and the Service is actively engaged in numerous
investigations focused on incidental take of eagles. However,
regulatory compliance is vastly preferred over resorting to
enforcement.
If the maximum permit tenure is extended to 30 years, the Service
will evaluate each permit at no more than 5-year intervals. These
evaluations will reassess fatality rates, effectiveness of measures to
reduce take, the appropriate level of compensatory mitigation, and
eagle population status. Additional commitments with regard to
conservation measures may be required of long-term permittees at the 5-
year permit evaluations. In 2013, when the maximum term of programmatic
permits was extended from 5 to 30 years (struck down in 2015), language
was included in the regulations limiting additional conservation
measures that could be required of the permittee to those contemplated
at the time the permit was issued. However, that language was based on
the requirement that all permittees would be required to implement
advanced conservation practices that reduce take to the point where it
is unavoidable. As part of the Management Common to All Action
Alternatives, long-term permittees would be subject to the same
criterion as holders of standard permits have been under the current
regulations: They would be required to undertake all practicable
measures to reduce take and would no longer be required to implement
ACPs to reduce take to the point where any remaining take is
unavoidable. To ensure eagles are adequately protected, based on the
results of the 5-year evaluations, the Service may require long-term
permittees to undertake additional conservation measures that are
practicable and reasonably likely to reduce risk to eagles based on the
best scientific information available.
With regard to the suggestion that maximum permit tenure should be
longer than 30 years, we disagree at this time because 30 years should
cover the duration of most projects that are likely to need incidental
take permits and is a reasonable period in which to adaptively manage
permitted activities without requiring a new permit. Permit renewal
will be an available option for permitted projects that operate for
longer than 30 years.
Comment: The regulations need to retain the provision that the
Service may suspend or revoke permits if necessary to protect eagles.
Service response: Revocation and suspension remain discretionary
options under these proposed regulations.
Permit Application Process, Permitting Decision Process, and Issuance
Criteria
Comment: Some Service Regions have imposed a requirement that
applicants prepare Service-approved Bird and Bat Conservation
Strategies as part of the permit application. The regulations do not
require this action, and evaluation of non-eagle species should not
rise to the level of an approved plan for a Service decision in support
of issuing an eagle take permit.
[[Page 27951]]
Service response: By regulation (50 CFR 13.21(c)), any permit
``automatically incorporates within its terms the conditions and
requirements of subpart D of this part and of any part(s) or section(s)
specifically authorizing or governing the activity for which the permit
is issued, as well as any other conditions deemed appropriate and
included on the face of the permit'' (emphasis added). Development and
compliance with Bird and Bat Conservation Strategies to reduce take of
other federally protected species is appropriate in light of the
Service's responsibilities under Federal wildlife protection laws.
Comment: The contents of the permit application form should be
explicitly spelled out in the regulations. The preamble to the current
regulations states that the application form requirements are
purposefully absent so the Service can modify them without undergoing
additional rulemaking. This lack of formal codification could lead to
unintentional, predecisional actions by the Service, such as deeming
applications incomplete.
Service response: The Service is required to have all its permit
application forms approved by the Office of Management and Budget every
3 years. During that process a notice is published in the Federal
Register allowing the public to comment on the contents of the forms.
Incorporating the contents of the forms into each permit regulation
would require the Service to undergo hundreds of additional rulemakings
every 3 years, which would be redundant, costly, and impracticable.
Comment: It would be beneficial for the public and government
agencies to clearly understand the approximate (or maximum) length of
time it would take the Service to complete various eagle permit
applications since the current process appears to differ from 50 CFR
13.11.
Comment: The regulations should establish a standardized timeline
for review proportional to the risk posed to eagles by any given
project.
Service response: We agree that implementation guidance containing
approximate timelines for issuing eagle take permits would be
beneficial. It is true that Sec. 13.11 implies that permit application
processing will take no more than 60 days because Sec. 13.11(c)
recommends applicants submit their applications at least 60 days prior
to commencement of the activity requiring authorization. Part 13
applies to all Service permits, most of which are much simpler to
process than eagle take permits. At present, there is considerable
variation in the time it takes to reach a decision on an eagle
incidental take permit, depending on project duration, complexity, and
other factors. Delays in processing permit applications are also
sometimes due in part to applicants providing inaccurate or incomplete
information in the application, including substandard data. In
addition, since the 2009 regulations were put in place, the Service has
been in the process of revising them. When the pace of revisions to the
regulations slows so that we can expect a given set of rule provisions
to be in place for the foreseeable future, and the Service is not
continually making revisions to the regulations, we plan to develop
implementation guidance given sufficient agency resources.
Comment: The regulations should specifically address the
requirements for each type of permit. For example, they should clarify
what level of studies and which types of documents are needed, the
level of NEPA that is appropriate, and whether an ECP is required for
each type of permit.
Service response: We do not agree that it is appropriate, or even
possible, to set out in regulations stipulations as to what level of
NEPA is required (i.e., categorical exclusion, EA, or EIS) for
different types of permits or when an eagle conservation plan is
required. There are too many project-specific factors to consider,
including whether there is another Federal nexus, the level of
controversy, the status of eagles in the area, the size and scale of
the project, whether the issuance of a permit for the activity is
precedent-setting, whether other trust resources will be affected, and
more.
Comment: All environmental reviews for take permits should be
published for public review and comment.
Service response: We publish a notice in the Federal Register to
notify the public of their opportunity to review and comment on most
environmental assessments and all environmental impact statements
undertaken under NEPA.
Comment: The Final EA, final rule, and guidance do not specify the
mechanism by which the NEPA document for individual projects should be
prepared. The regulations should continue to allow the Service to
accept applicant-prepared EAs to expedite the permitting process.
Comment: Independent, third parties not employed directly by the
permittee should conduct the environmental assessment (EA). This could
be accomplished by the permittee supplying funds for the EA managed by
the Service.
Service response: NEPA regulations allow applicants to prepare EAs,
and the preparation could be done in-house or by a third-party
contractor. No matter who prepares an EA, the Service is responsible
for the adequacy of the analysis on the effects of the permit issuance.
Comment: The Service should clarify that projects seeking take
permits will be subject to NEPA analysis only in regard to the effects
of the permit itself, and not the authorization of the project as a
whole.
Service response: The NEPA analysis required when the Service makes
a permit decision is based on the direct, indirect, and cumulative
effects of the authorization and any mitigation tied to the
authorization.
Comment: For the NEPA analysis on individual permits, the Service
should use the project-specific NEPA already undertaken by other
Federal agencies, rather than developing an additional NEPA document.
Service response: We prefer to be a cooperating agency and use
other Federal agencies' NEPA analyses rather than using our very
limited staff and resources to prepare a second NEPA document. However,
it is sometimes the case that other Federal agencies have not taken a
hard look at effects to eagles, particularly in light of the fact that
such effects may change after the Service works with project proponents
to reduce take. In such cases, we have needed to prepare an additional
NEPA analysis. Additionally, we receive many permit applications from
non-federal applicants for projects on private land. For those
applications, the Service has the sole responsibility for completing
the NEPA obligations. Under this DPEIS, we are analyzing the effects to
eagles of authorizing take up to certain levels, which will allow us--
and other agencies--to tier from the DPEIS when analyzing effects to
eagles in most cases.
Comment: The regulations should apply the same standard for both an
individual and programmatic take--that a take cannot be practicably
avoided.
Comment: The criteria for issuing programmatic permits under the
Eagle Act, consistent with the requirement for an Endangered Species
Act incidental take permit, should require avoidance and minimization
only to the maximum extent that take cannot practicably be avoided, and
then mitigation for residual take that cannot otherwise be avoided.
Comment: An ``unavoidable'' standard could present a high
threshold, where reliability, proven effectiveness, and cost are not
considered in developing and implementing
[[Page 27952]]
``advanced conservation practices.'' The cost of a conservation
practice should have a reasonable relationship to the potential
benefits derived from such a practice.
Comment: The Service should also amend the definition of ACPs, to
ensure consistency with the change to the definition of
``practicable,'' if the latter is adopted.
Comment: The standard for programmatic permits should not be
reduced to what is practicable; ``practicable'' speaks to money. Birds
should not be sacrificed so people can save money.
Comment: The standard for permitting programmatic take should not
be weakened. The only factor that, at least theoretically, prevents
developers from irresponsibly siting wind facilities is that remaining
take must be unavoidable in order to be permitted. The Service must
implement its own regulations requiring applicants to avoid and
minimize take to the degree that remaining take is unavoidable, and not
permit wind facilities at sites used by eagles for breeding, wintering,
and migration. Under the ``unavoidable'' standard, developers should be
forced to select sites outside of eagle habitat.
Comment: The ``unavoidable'' standard needs to be retained for
programmatic permits because of the unique cultural stature of the bald
eagle as our national symbol. The enacting clause of the Bald Eagle
Protection Act of 1940 stated that the bald eagle ``is no longer a mere
bird of biological interest but a symbol of the American ideals of
freedom.''
Comment: The ``unavoidability'' criterion provides the needed
pressure for technological advancement in conservation measures because
it calls for the implementation of technically ``achievable'' measures
even if some of those measures are costly, are not the current industry
standard, or must be further technically developed.
Service response: For the reasons explained earlier in this
preamble, the Service is proposing to eliminate the distinction between
standard and programmatic permits and apply the practicability standard
to all permits. In short, we believe there is no sound reason to allow
consideration of cost, technology, and logistics for some permits and
not for others. These proposed regulations would require potential
permittees to implement all practicable best management practices and
other measures and practices that are reasonably likely to reduce eagle
take.
Comment: To the extent that the Service amends the current issuance
criteria for programmatic permits to align with the ``practicable
avoidance,'' the term ``practicable'' should be redefined as ``capable
of being done after taking into consideration, relative to the
magnitude of the impacts to eagles: (1) The cost of the remedy for an
actual measurable impact as compared to the overall benefit and utility
of the project with respect to public interest; (2) existing
technology; and (3) logistics in light of overall project purposes.''
Service response: The problem with including consideration of the
``overall benefit and utility of the project with respect to the public
interest'' is that this is a subjective criterion. For example, some
might argue that expansion of an airport serves the public interest by
increasing safety and convenience in flight choices, while others might
point to the increased landfill, noise, and pollution as detrimental to
the public interest.
Comment: Although a proponent's ability to pay can be a relevant
factor in determining the extent of conservation measures, the
determination should also consider the benefit to the species derived
from the remedy. If the benefit to the species from an avoidance and
minimization measure is low and the cost is high, the measure would not
be considered ``practicable.''
Service response: We are proposing to adopt the Service's
definition of ``practicable'' in our proposed revised Mitigation Policy
(see 81 FR 12379, March 8, 2016). That definition includes
consideration of ``a mitigation measure's beneficial value to eagles.''
Comment: The ``practicable'' standard should not take into account
the project proponent's resources.
Service response: The proposed definition of ``practicable''
requires consideration of the activity's ``purpose, scope, and scale''
rather than ``proponent resources.''
Comment: The Service should make permitting decisions on a regional
scale where multiple projects are proposed, rather than issuing
mortality permits to each facility.
Service response: The option of issuing regional permits is
available. We have not had a proposal upon which to make such a
permitting decision. The potential applicants would be responsible for
taking the initiative to organize a sound regional proposal for the
Service to evaluate. Also, if there will be prohibited impacts to ESA-
listed species as well as eagles, there is the option of developing an
HCP and applying for an ESA incidental take permit that covers eagles
as non-listed species.
Comment: Recommendations from wildlife agencies should be
incorporated into the project planning.
Comment: State wildlife agencies should be consulted in the Federal
eagle take permit process, including the Service internal, 5-year, non-
public ``reviews'' of programmatic permit conditions for the 30-year
life of a permit.
Service response: The Service involves State wildlife agencies to
varying degrees based on the State's level of interest in the technical
assistance phase (between initial contact by an applicant through the
permit application process). We work with States that have an interest
in coordinating with regard to our eagle permitting process. We would
also work with those State agencies during the 5-year evaluations if
long-term permits are established through this rulemaking.
Comment: The authorized level of take for all programmatic permits
should be at least two eagles to avoid requiring immediate reevaluation
of a permit upon the take of one eagle.
Service response: The Service's fatality prediction model is
specifically designed to result in a 20% or lower chance of eagle take
exceeding the permitted number, as long as the pre-construction
monitoring data are representative of future eagle use in the project
area. We believe this percentage is adequate to ensure the permitted
number is not routinely exceeded. The point at which a formal
reevaluation of a permit is required is set on a permit-by-permit
basis, and not necessarily upon take of one eagle.
Comment: The permit review process should be transparent and open
to full public review and comment procedures.
Service response: In our view, a public-comment period for each
permit would not provide an additional benefit to eagles that would
justify the regulatory burden. In general, permits for larger scale
projects with significant impacts or that entail a high level of
controversy will be analyzed in a NEPA document that will be released
for public review and input. Public involvement may also be triggered
at the permit review or renewal stage if FWS determines that
supplemental NEPA analysis is required.
Comment: Areas of particular importance to eagles, such as
migratory corridors and high-density nesting areas, should not be
allowed for wind development or should have additional scrutiny in the
permitting process.
Service response: In numerous Service guidance documents and in the
[[Page 27953]]
technical assistance we provide at the project planning stage, we
recommend that developers avoid areas that are important to eagles.
However, we do not have the authority to prohibit development in areas
that are important to eagles. Our role is to evaluate the level of
impacts to eagles when a project proponent approaches us to inquire
about a permit to authorize eagle take. We do not have the authority to
approve or veto the actual project.
Data Collection and Analysis
Comment: Pre-construction surveys using rigorous methods
standardized by the Service for wind energy development should be
mandatory, not voluntary.
Comment: Two years of independent, pre-construction monitoring of
eagle behavior, nesting, foraging, and migration should be required.
Comment: The Service or other third-party, professional biologists
should conduct pre-construction surveys.
Service response: These proposed regulations would require
applicants for permits with durations longer than 5 years to conduct a
minimum of 2 years of pre-application surveys. Wind-energy generation
facility operators would be required to use the survey methods we are
proposing to incorporate by reference from the ECPG. The regulations
would provide for waivers if the wind-energy project applicant submits,
or the Service already possesses, sufficient documentation
demonstrating a low likelihood of risk to eagles due to: Physiographic
and biological factors of the project site, or the project design
(i.e., use of proven technology, micrositing, etc.); or that expediting
the permit process will benefit eagles.
The Service does not have the resources to conduct pre-construction
surveys and must rely on permit applicants to provide these data. The
Service does carefully review the pre-construction survey data for
accuracy and works with applicants to resolve any discrepancies before
accepting the data as reliable and accurate. Use of Service-approved or
recommended protocols would facilitate our review and allow us to
better identify data gaps and other insufficiencies.
Comment: The ECPG recommends 20 hours per turbine per year of
sampling effort, which is an amount far higher than suggested by
simulations using the Bayesian fatality model. The additional surveys
do not provide a corresponding benefit in terms of estimating risk, but
are imposing additional costs on developers. The sampling guidance
should be revised to avoid over-sampling. Also, permittees discovered
to have provided false information on their permit applications may be
subject to criminal penalties under 18 U.S.C. 1001.
Service response: Appendix C of the Eagle Conservation Plan
Guidance (Module 1, v2; hereafter, ECPG) discusses sampling effort in
multiple contexts: (1) In terms of the effort that may be required to
validate whether a project meets Category 3 criteria (e.g., no eagle
fatalities will occur over a 30-year time span), and (2) in terms of
the effort that the Service recommends when Stage 1 evidence supports
possible project classification of Category 2 (e.g., an eagle take
permit is recommended) and the main objective of the surveys is
estimating risk in terms of predicted fatalities. Given the variability
of natural systems, the current uncertainty in the site-specific
factors that can increase the risk of eagle fatalities, and the
sometimes inadequate information gathered during early site evaluation,
intensive sampling is required to be reasonably certain that eagle take
is not expected to occur and that the project would not require an
eagle take permit.
The example in the ECPG that calculates 20 hours of sampling
required per turbine is specific to a project with 40 2.5-MW turbines
with a 100-m rotor diameter where the objective is to validate a
Category 3 classification. For assessing risk of a potential Category 2
project, the ECPG recommends a minimum of 1 hour of observation per
800-meter survey plot per month, but at least 2 hours of observation
per survey plot is warranted for a season for which Stage 1 evidence is
ambiguous or suggests high use. The ECPG also recommends sampling at
least 30% of the total footprint of the project hazardous area and that
surveys should be conducted for at least 2 years prior to project
construction.
The per-turbine effort for this minimum level of sampling will
depend on turbine configuration and spacing. To accurately predict risk
to eagles, sampling must provide data that are representative of eagle
use at the site during all times of day across seasons and years. The
benefit of additional data in terms of predicting risk will depend in
part on the variability of eagle use at the site. The Service advises
potential permit applicants to coordinate closely with the Service
regarding the appropriate sampling effort, as sampling considerations
are complex and depend in part on case[hyphen]specific objectives.
Comment: The ECPG is intended to guide project proponents and
Service personnel in evaluating risk to eagles and developing eagle
conservation plans (ECPs) and permit applications. However, different
Service Regions have developed modified guidance. The Service should
ensure standardization of the guidance nationally.
Service response: Differences in regional recommendations for
applying the ECPG are expected, and not inconsistent with the ECPG,
which was designed to be an adaptable framework that provides for
flexibility in application based on geographic and project-specific
variability. However, the Service strives to be as consistent as
possible, and regularly coordinates between Regions to foster
consistent applications of our laws, regulations, policies, and
guidance governing eagles.
Comment: As it is critical for assessing risk, the Service should
require radar data at different times of the year and weather
conditions to monitor activity and height of migratory birds flying
through the area.
Service response: Our guidance does not exclude the use of radar.
It allows the most appropriate field method to be selected based on
site-specific factors. However, radar has so far not proven very useful
or effective, either for monitoring or for curtailment. None of the
current radar systems are capable of providing reliable data on eagles
(or raptors) at the necessary scales. That said, we are supporting
testing, and if practicable technology is developed that provides
useful and reliable data, we would likely require its use.
Comment: Fatality prediction models should be different for the two
species based on the apparently different behavior and risk profiles of
each species. The prior probabilities for exposure and collision of
golden eagles are based on data at old wind facilities in the western
United States and are unlikely to be representative of bald eagles and
will overestimate project risk. The Service should replace these priors
with empirical data on bald eagles at modern wind energy facilities.
Service response: We are aware of arguments that the Service wind
collision probability model predicts high rates of bald eagle
fatalities at wind facilities given the low number that have actually
been reported. We do not disagree that bald eagles may prove to be less
at risk from blade-strike mortality than golden eagles, but the data
available to us are not sufficient to make that conclusion at this
time. Reasons are: (1) The Service has yet to be provided with strong
pre- and post-construction bald eagle use and fatality data from any
wind project where there is high bald eagle use; (2) bald eagles
congregate in larger numbers than golden eagles, and, while in those
[[Page 27954]]
concentrations, they engage in social behaviors that may increase their
risk to blade strikes at a project sited in such an area; (3) in some
of the areas where bald eagles congregate, there are multiple
fatalities each year of bald eagles that fly into static power
distribution lines and vehicles, suggesting that as a species they do
not possess a superior ability to avoid collisions; and (4) there is a
thorough study in Norway that documents a substantial population-level
negative effect of a wind facility there on a population of the closely
related white-tailed eagle (Haliaeetus albicilla) as a result of blade-
strike mortality. For all these reasons, the Service currently
determines that it is reasonable and prudent to consider bald eagles to
be equally vulnerable to blade-strike mortality as golden eagles until
verifiable data become available to estimate a specific collision
probability for bald eagles. If data become available in the future
demonstrating that bald eagles are less (or more) vulnerable to blade-
strike mortality, we will revisit whether to draft a separate collision
probability model for bald eagles.
Comment: Exposure-based models used to predict mortality during
pre-construction risk assessments should be tested for accuracy, and
new models should be developed that take cumulative impacts of all
sources of mortality into account.
Service response: We agree, and the model framework the Service is
using is specifically designed to easily incorporate new information
gained through use and testing. We will periodically refine the model
as new data are obtained.
Comment: The Eagle Conservation Plan Guidelines (ECPG) indicate
that eagle nest surveys should be conducted in the project area, which
it defines as the area within the project boundary plus a 10-mile
radius surrounding the project. However, the 10-mile radius
recommendation was based on golden eagles in the desert southwest and
is of questionable value in other areas and unnecessary for bald
eagles. The Service should develop appropriate national standardized
criteria that are species-specific and based upon region-specific
information.
Service response: This comment is not accurate. Appendix C of the
ECPG, where the Stage 2 surveys are described, says, ``If recent (i.e.,
within the past 5 years) data are available on spacing of occupied
eagle nests for the project area nesting population, the data can be
used to delineate an appropriate boundary for the project area as
described in Appendix H. Otherwise, we suggest that project area be
defined as the project footprint and all area within 10 miles.'' In
Appendix H, the ECPG states, ``Eagle nesting territories most likely to
be affected by disturbance from a wind project are those that have use
areas within or adjacent to the project footprint. The Service will
accept an assumption that all eagle pairs at or within the mean
project[hyphen]area inter[hyphen]nest distance (as determined from the
Stage 2 assessment) of the project boundary are territories that may be
at risk of disturbance (e.g., if the mean nearest[hyphen]neighbor
distance between simultaneously occupied eagle territories in the Stage
2 assessment is 2 miles, we would expect disturbance to most likely
affect eagles within 2 miles of the project boundary; Figures H-1
though H-4). Eagle pairs nesting within \1/2\ the project-area mean
inter[hyphen]nest distance are the highest candidates for disturbance
effects, and should receive special attention and consideration.''
Thus, the ECPG advocates surveying for eagle nests within the mean
inter-nest distance of the project boundary, and only extending this
distance out to 10 miles if recent data on nest spacing is not
available.
Comment: There is a need for greater clarification on risk
assessment and monitoring specifications/requirements for electric
utilities and other industries, such as mining. The Service should
develop eagle conservation plan guidance for these other industries.
Service response: We intend to develop guidance for other
industries in the future, as resources allow.
Comment: All information generated for a proposed or operational
wind energy project should be downloaded to a free, user-friendly
Service docket to bring much needed transparency to the process.
Service response: We will consider developing a process that
requires more transparency for projects going through the permit
application process, although we note that such a process would not
allow public access to any confidential business information or other
trade secrets submitted to the Service by a project proponent.
Permit Conditions, Adaptive Management, Project Monitoring, and 5-Year
Reviews
Comment: An independent third party entity and not the permittee
should conduct monitoring, with oversight by the Service. The party
could be paid through a trustee by companies.
Service response: The Service is investigating the use of third
party environmental compliance monitors. There are benefits to using
third party monitors, particularly the more objective observation and
reporting of wildlife injuries and mortalities. However, there can be
considerable costs to using third party monitors, and so it may be
considered unreasonably burdensome for some smaller operations. It may
be a viable option for permits for large, utility-scale projects.
Comment: With regard to monitoring at wind power facilities, there
is a need for peer-reviewed research-based risk models and standardized
monitoring criteria.
Service response: These proposed regulations would require wind
energy project permittees to use the monitoring protocols in the ECPG.
We, along with USGS partners, have also published three scientific
papers on methods and approaches that we recommend for estimating risk
and fatality rates at wind projects, and we continue to work to improve
these assessment tools. As it becomes clear which approaches are best,
we intend to standardize monitoring protocols under permits to the
maximum extent practicable. However, the best monitoring approach may
differ under different site-specific conditions (e.g., the best
monitoring approach at a low-risk site is likely to be different than
the best approach at a high-risk site).
Comment: The regulations should provide that all data on bird
mortality at specific wind energy sites be made available for
meaningful stakeholder (public) review and analysis, including analyses
of the effectiveness of post-construction mitigation, and the status of
experimental measures and adaptive management prescriptions.
Service response: The current regulations provide that eagle
mortality reports from permitted facilities will be available to the
public. We will also release mortality data on other migratory birds if
we receive that data as a condition of the permit, provided no
exemptions of the Freedom of Information Act (FOIA) (5 U.S.C. 552)
apply to such a release. If we receive mortality data on a voluntary
basis and we conclude it is commercial information, it may be subject
to Exemption 4 of the FOIA, which prevents disclosure of voluntarily
submitted commercial information when that information is privileged or
confidential.
Comment: The revised rule should clarify what is required and what
analysis is performed at 5-year reviews.
Comment: The 5-year reviews should account for eagles that abandon
nests, eagles that continue to breed, any nest
[[Page 27955]]
that is removed, and all eagle mortalities associated with the project.
Comment: Five-year permit reviews should be informal discussions
bound by mitigation options and costs defined by the permit.
Service response: Under these proposed regulations, the 5-year
evaluations would be more than informal discussions with permittees.
During each 5-year review, we would reassess post-construction
monitoring, take rates, including disturbance, fatalities;
effectiveness of measures to reduce take; the appropriate amount and
effectiveness of compensatory mitigation; and the status of the eagle
population. Depending on the findings of the review, we may make
changes to a permit as necessary, including updating fatality
predictions for the facility; requiring implementation of additional
conservation measures that are practicable for the permittee to
implement; updating monitoring requirements; or adjusting compensatory
mitigation requirements. Additional post-implementation monitoring may
be required to determine the effectiveness of additional conservation
measures.
Comment: Five-year reviews create uncertainty for permittees. The
Service should incorporate provisions similar to the Habitat
Conservation Plan Assurance Rule for incidental take permits issued
under the Endangered Species Act. This approach would provide
regulatory assurances to permit holders and incorporate a greater
degree of certainty in the 30-year programmatic permit process.
Service response: There is sufficient management uncertainty
regarding this relatively new permit program to warrant the proposed 5-
year reviews, including the need for data to refine population models,
survey protocols and avoidance and minimization measures. We note that
many ESA incidental take permits contain adaptive management provisions
that may change management prescriptions or mitigation measures based
on new information that are similar in purpose as the proposed 5-year
reviews. Additionally, without such reviews, there would be detrimental
effects to permittees if long-term permit conditions prove to be
unnecessarily precautionary.
Comment: If the required post-construction monitoring determines
take will exceed the pre-construction estimates, the project should be
placed on a shorter reevaluation cycle.
Service response: Depending on the degree of discrepancy between
predicted and actual take, the Service may need to take timely action
to evaluate the permitted activity to determine whether the permittee
must implement additional measures and/or contribute additional
mitigation. However, one effect of adopting a conservative take
projection model is that only 20% of projects are likely to exceed
take. For 80% of the permits issued, take is expected to be
overestimated. This situation helps to provide the permittee more
certainty that the authorized take level will not be exceeded in the
majority of cases. While we have adopted such a model only for wind
energy projects at this point, we hope to develop similar predictive
models for other activities using information we gather under permits.
Comment: Trigger mechanisms that will require additional measures
by the permittee must be clearly identified prior to permit issuance
and spelled out in the permit.
Service response: We agree that reasonably foreseeable
circumstances that may require additional mitigation should be
identified and included in the permit conditions. Such circumstances
include but are not limited to: a higher-than-anticipated take rate,
take resulting from an unexpected source within the permittee's
purview, or an unanticipated significant detrimental change in the
status of the local area or regional eagle population. For long-term
take permits, during the 5-year review periods the Service may require
additional avoidance and minimization measures if such measures are
likely to reduce take and are practicable for the permittee to
implement. For example, if newer technology is shown to decrease eagle
mortality or increase carcass detection, and could be implemented
without unreasonable cost, employment of that technological advancement
may be required.
Comment: The Service must retain the option not to renew a take
permit at the 5-year review if the level of eagle kills exceeds the
permitted threshold and may impact populations.
Service response: With regard to long-term permits, if these
regulations result in the Service being able to issue permits with
terms longer than 5 years, the Service will make any necessary
amendments to the permit at each 5-year review, but will always retain
the ability to suspend and/or revoke the permit in accordance with 50
CFR 13.27 and 13.28. For expiring permits, we intend to retain the
ability to deny renewal of the permit in accordance with 50 CFR 13.22,
and if renewal is not consistent with the permit issuance criteria of
the regulation. Renewal of a permit constitutes issuance of a new
permit (see 50 CFR 13.11(d)(6)).
Comment: When changes to the permit terms and conditions are
expected by the Service during the term of the permit, the permittee
should be provided as much advance notice as possible to plan and
budget for potential changes in mitigation requirements. Periodic
meetings (e.g., annually) between the permittee and the Service would
be appropriate to ensure that both parties are informed on any
potential issues or concerns.
Service response: We agree that a permittee should be provided as
much advance notice as possible about potential changes in mitigation
requirements.
Comment: The 2013 revised regulations do not define what advanced
conservation practices will consist of for long-term permits. Standards
are needed for these advanced practices that evolve with changing
science.
Service response: We are proposing to eliminate the requirement for
ACPs. Permittees would still be required to implement all practicable
measures to avoid and minimize take. As the commenter notes, practices
and measures to reduce take evolve over time, even within a single
industry. For that reason, and because the regulations are not specific
to one industry, incorporation into the regulations of particular
practices for all activities that may take eagles would not be
feasible, nor would it be advisable, since doing so would mean the
regulations would constantly need updating.
Comment: The Service should redefine ACPs as ``scientifically
supportable measures or testing of experimental measures that are
approved by the Service to reduce eagle disturbance and ongoing
mortalities to a level where remaining take cannot practicably be
avoided.''
Service response: We are proposing to remove the requirement to
implement ACPs from the regulations. As part of requiring avoidance and
minimization to the maximum extent practicable, some permits require
implementation of experimental measures that show promise for reducing
take. Not only are such measures likely to reduce take at many
projects, their inclusion as conditions of permits provides the
opportunity to test their efficacy for wider use.
Comment: The Service should require the following measures at wind-
energy projects: Increase frequency of turbine site inspection to
search for physical evidence of mortality/injury event; develop and
employ video surveillance
[[Page 27956]]
and other technologies (impact alarms); and/or provide onsite personnel
quarters to facilitate monitoring of larger wind farms.
Service response: The practices listed by this commenter are not
demonstrated, effective best management practices at this time.
However, the Service could require a permittee to conduct any of these
activities as permit conditions if we determine such measures are
effective, practicable, and necessary.
Comment: Minimization strategies should include seasonal
curtailment during known periods of high avian use, as well as
observation-based shutdown of turbines when eagles are within a
specified distance of wind turbines. The cost of detection devices and
methods to discourage eagles from using a site should be built into the
project budget, as should the cost of temporary shutdown of the
project, if necessary, during migrations.
Service response: These are all minimization strategies that are
being evaluated. However, data collected so far are equivocal with
respect to their effectiveness, at least in some situations, so as a
result the Service is not currently proposing to require them
universally at all projects. The Service does consider appropriate
minimization strategies on a project-by-project basis, and we intend to
require permittees to continue to test their effectiveness as part of
the adaptive management process under permits and apply the strategies
that turn out to be effective.
Comment: In a migration pathway, the use of radar to detect
migrating raptors and on-the-ground observers should be considered
during migration periods.
Service response: As we explained in an earlier response to a
comment on our collision risk model for wind power, radar has not
proven effective, at this point, for either monitoring or curtailment.
If advances in technology result in radar systems that provide reliable
data on eagles (or raptors), we would likely encourage their use.
Compensatory Mitigation
Comment: The regulations should require compensatory mitigation for
all permits associated with (1) anticipated or known fatalities; (2)
anticipated or known loss of productivity; and anticipated or permanent
loss of an important use area, including breeding areas, nest sites,
foraging areas, and migration corridors.
Comment: The regulations should make compensatory mitigation
mandatory for all wind energy facilities and associated transmission
towers and lines at which federally protected birds are being taken.
Comment: All industrial permittees should be required to provide
compensatory mitigation in order to make preservation of eagles a
priority for those companies.
Comment: Compensatory mitigation requirements should be required as
replacement mitigation only for take that exceeds established take
thresholds and for populations that are not healthy enough to sustain
additional mortality.
Comment: There should be higher standards of avoidance and
mandatory mitigation for: populations not able to sustain take,
important eagle use areas, Important Bird Areas (IBAs) and other
special protection areas, eagle migration corridors, and areas of high-
value habitat--particularly areas known for eagle use for foraging,
nesting, or concentrated migration activity.
Comment: Compensatory mitigation should not be required for all
programmatic permits. The regulations should be amended to provide that
compensatory mitigation will be considered on a case-by-case basis.
Comment: All lethal take of eagles should require compensatory
mitigation.
Service response: One of the primary goals of these rule revisions
is to increase consistency with regard to compensatory mitigation
requirements. The approach we are proposing is to require compensatory
mitigation only where the permitted take would otherwise be
inconsistent with management goals (i.e., when it would be incompatible
with the preservation of eagles). The requirement would apply to any
take that would exceed EMU take thresholds. Compensatory mitigation may
also be required in some cases when take would exceed LAP cumulative
take limits, or if otherwise necessary to maintain the persistence of
local eagle populations throughout their geographic range. Accordingly,
these proposed regulations would not require compensatory mitigation
only for lethal take or for all lethal take.
We also do not agree that compensatory mitigation should be
required only for certain types of industries, or only for take that
results from a commercial or industrial activity. Whether an entity is
commercial does not, by itself, affect the degree of impacts to eagles.
To the degree that industrial permits entail greater detrimental
effects to eagles than a typical homeowner permit, those permittees
will be required to contribute additional compensatory mitigation.
Comment: The regulations should require that conservation measures
or monetary contributions be applied to the county where the impacts
are generated.
Comment: Compensatory mitigation for impacts should be implemented
within the local, or at least regional, area population to avoid
creating local population sinks.
Comment: The Service should allow mitigation to occur outside the
eagle management unit where the take occurred, based on whether the
eagle(s) taken was migratory or resident, as long as those mitigation
efforts help eagle populations in that EMU.
Service response: The approach we are proposing would require
compensatory mitigation to be applied within the EMU where the take
occurs, with the exception that effective mitigation for take of
Alaskan golden eagles could occur in the Central Flyway as opposed to
the Pacific Flyway because a substantial proportion of the mortality of
golden eagles originating in Alaska occurs on migration or during
winter in the interior western coterminous United States and north-
central Mexico (McIntyre 2012). If we had the ability to know what
percentage of eagles taken are from the breeding population of the EMU
versus eagles that are wintering there or migrating through, we could
allocate some compensatory mitigation for take of the non-breeding
population, but we do not at present have the means to precisely
calculate those numbers for most areas of the United States. A
requirement to apply compensatory mitigation at a finer scale than
within the EMU, whether at the county or local area population level,
is not feasible to administer, and also would not account for migrating
or wintering eagles. Allowing mitigation within the whole EMU better
addresses take of eagles from outside the local-area breeding
population. In most cases, allowing mitigation outside of the EMU may
not sufficiently mitigate for project impacts, which we generally
expect to affect eagles primarily within the EMU where the project is
located.
Comment: The Service should develop metrics to address compensatory
mitigation for impacts to eagles outside the breeding population (i.e.,
on wintering grounds and during migration).
Service response: We recognize that eagles taken under a permit do
not all originate from the local breeding population around that
project. However, just as eagles killed at a project do not all derive
locally, eagles benefitting from mitigation to reduce mortality near a
project also do not all derive from the project area. We agree
[[Page 27957]]
that metrics are needed to better track whether wintering, migrating,
or breeding eagles are impacted by a project, and we are working with
academic and agency collaborators to develop a genetic/isotopic
assignment test to allow us to better track the natal origins of eagles
killed under each of our permits.
Comment: It is appropriate not to require compensatory mitigation
for historic religious take by tribes; however, the Service should
direct other permittees' mitigation efforts into the areas where the
religious take occurs.
Service response: Compensatory mitigation would be carried out
within the EMU where the take occurred, unless the Service has reliable
data showing that the population affected by the take includes
individuals that are reasonably likely to use another EMU during part
of their seasonal migration. It may be appropriate in some instances to
implement compensatory mitigation measures on tribal lands, but it
would not be a requirement. We would encourage any interested tribe to
work with applicants or applicable national/regional mitigation banks
or in-lieu-fee programs to implement compensatory mitigation measures
on its lands if the tribe wishes to do so.
Comment: Options for mitigation should include:
An ammunition exchange in locations where eagles are
impacted by lead;
Funding for identification and carcass removal programs
that would remove carcasses from areas where eagles collide with
vehicles or trains;
Habitat enhancement funding or purchasing mitigation lands
through commercial habitat banks;
Funding for appropriate research efforts;
Reduction of unintentional poisoning;
Implementation of a reward system to reduce poaching;
Reduction of mortality from vehicle collisions and road
kill-collisions through road kill-carcass removal efforts;
Shifting to use of nontoxic ammunition via hunter
education and voluntary lead abatement;
Reduction of stock tank drowning;
Implementation of a whistleblower rewards system to reduce
poaching;
A reduction of the impacts of secondary trapping;
Funding of rehabilitation centers;
Chelation to reduce lead levels in eagles;
Funding of livestock depredation compensation programs to
encourage landowners to protect eagles;
Improved management of public recreational activities that
reduce eagle productivity;
Prey management programs;
Habitat preservation;
Habitat restoration;
Reduction of unintentional poisoning;
Captive-breeding programs;
Utility line marking to prevent collisions;
Nest discourager/excluder installation;
Contributions to eagle management programs.
Service response: We believe some of these actions have greater
potential than others to benefit eagles and compensate for permitted
take. Whether compensatory mitigation is provided by the permittee or a
third party like a conservation bank or in-lieu fee program, all
mitigation will be held to the same high, equivalent standards. For
mitigation actions with more uncertainty concerning their effectiveness
in compensating for project impacts, mitigation accounting systems
would be used to increase the amount of mitigation required.
Comment: Retrofitting cannot be the only replacement (offsetting)
mitigation option available. A utility should have the opportunity to
review proposed retrofitting and/or refuse. The Service needs to have
flexibility on type of mitigation required.
Service response: Power line retrofitting is not the only
compensatory mitigation approach allowed by the Service, a point that
is repeatedly made in the ECPG. In addition, under this proposed rule,
the Service will allow compensatory mitigation measures and programs
that face more risk and uncertainty provided mitigation accounting
systems factor in risk and adjust metrics, mitigation ratios, and the
amount of required mitigation to account for uncertainty.
Comment: Mitigation should focus upon the replacement of suitable
eagle habitat. Conservation of nest sites and potential nest sites in
vulnerable areas should be a high priority in light of the continued
loss of habitat and nesting sites. Habitat-based mitigation could
include: (1) Fire prevention measures in areas with golden eagle
breeding territories that are at high fire risk, (2) removal and
control of nonnative grasses, which are known to increase fire risk and
may also decrease golden eagle prey abundance, and (3) conservation
easements to protect known golden eagle breeding territories that are
at risk of residential, agricultural, or energy development.
Service response: All mitigation authorized in this proposed rule
must meet the same high, equivalent standards. With reference to eagle
permits, compensatory mitigation, when required, must consist of
actions that either reduce another ongoing form of mortality to a level
equal to or greater than the unavoidable mortality, or lead to an
increase in carrying capacity that allows the eagle population to grow
by an equal or greater amount. When we require compensatory mitigation,
the mitigation must demonstrate it is effectively replacing lost
eagles, is additional to what would have occurred without the
mitigation, and is durable for at least the length of the impacts of
the project.
Comment: Compensatory mitigation should not be applied to actions
that are not already required by law. Power companies should be
required to retrofit their own lines.
Comment: Compensatory mitigation should not be considered to offset
the take if it would have been done anyway. Compensatory mitigation
must consist of actions that are additive.
Comment: FWS should accept within-company mitigation for companies
that have both wind facilities and power line infrastructure. This
practice could streamline the mitigation process, facilitate assurances
and accountability, and reduce administrative costs.
Service response: One of the most well-established methods for
conserving and mitigating effects to eagles is power pole retrofits.
This rule adopts Presidential and Department of the Interior principles
for mitigation, including requiring that all mitigation be additional
to what would have been reasonably expected to occur without the
mitigation. For an entity to be able to work with a power pole owner to
retrofit power poles that pose high risk to eagles, the power line
owner must demonstrate they are already taking appropriate and
practicable steps to address their impacts to eagles by applying for an
eagle take permit. Entities engaged in other activities with impacts to
eagles, including units or subsidiaries of a company that owns power
poles, seeking to retrofit power poles to mitigate for their effects on
eagles would have to propose retrofits that are additional to what the
power pole owner (or unit within the same company) has already
committed in an eagle take permit.
Comment: The Service should establish minimum standards for
utilities for which the retrofits are done to avoid creating
disincentives for utilities to take responsibility for undertaking
their own retrofits. The
[[Page 27958]]
utility must: Systematically identify high-risk poles; demonstrate that
they have retrofitted, reframed, or otherwise responded appropriately
to mortalities of eagles and other protected birds on their system;
utilize avian-safe design standards that meet or exceed APLIC (Avian
Power Line Interaction Committee) standards; have an implemented avian
protection plan (APP); be able to maintain compensatory mitigation
poles as avian-safe for the duration of the permit/agreement; and
ensure that pole retrofitting is designed and installed correctly.
Service response: Electrocutions are among the leading cause of
mortalities of golden eagles. The Service recommends that utilities
with infrastructure that poses high risk to eagles work with the
Service to implement conservation and mitigation measures and seek an
eagle take permit. The commenter outlines many of the general standards
this rule requires of any applicant for an eagle take permit: That the
avoidance, minimization, and compensatory mitigation be proven
effective through science-based means, adopt best management practices
where they exist, and be durable for the length of the impacts to
eagles. Full application of APLIC standards could be incorporated into
the terms of a permit to meet the avoidance and minimization standards
of this proposed rule.
Comment: Permittees should have a choice as to whether to work
directly with an electric utility or pay into a fund administered by an
entity such as the National Fish and Wildlife Foundation.
Service response: Our general preference is that applicants provide
compensatory mitigation via a mitigation in-lieu fee program or eagle
conservation bank that we have previously approved, so Service staff
and the permit applicant do not have invest time on each permit
devising an appropriate mitigation approach. That said, if an applicant
provides robust analysis to demonstrate an alternative form of
mitigation method that will satisfy offsetting mitigation requirements,
we may accept the alternative method. However, additional analysis
under NEPA may be required, and the permit decision will be further
delayed if the applicant cannot provide adequate documentation of the
efficacy of the alternative mitigation.
Comment: A genetically diverse captive population of golden eagles
must be obtained and maintained as a breeding population. Falconers are
in a unique position to participate in compensatory mitigation
projects, including obtaining golden eagles from the wild, maintaining
them in good condition, rehabilitation, training, conditioning for
release, and release to the wild to become successful members of an
adult breeding population.
Comment: The regulations should explicitly provide that mitigation
will be focused on conservation of wild birds rather than hacking
captive-reared eagles as a mitigation measure.
Service response: The Service's position is that mitigation should
be focused on conservation of wild birds for various reasons. Although
we are looking at various methodologies for establishing a value for
``replacing eagles,'' including the costs of raising an eagle from an
egg to release, we currently have numerous concerns about using a
captive-bred population of golden eagles as an offsetting mitigation
method. First, there is ample documentation that captive-bred birds,
including raptors, have lower survival rates than their wild-born
relatives (e.g., Brown et al. 2006). The lower survival rates are
likely caused by a combination of lack of genetic diversity and
deficiencies in behavioral learning and conditioning that contribute to
greater rates of mortality. Second, even if survival of hacked eagles
was comparable to that of wild-raised eagles, captive-rearing and
release is not a very efficient means of accomplishing offsetting
mitigation. For example, only about 20% of wild-fledged golden eagles
survive to maturity, thus replacing one adult would require producing
and releasing at least five young under the best of circumstances.
Third, there is evidence of a high degree of natal philopatry (tendency
to stay in or return to the home area) among golden eagles, in
particular, meaning there may be important genetic structure in
populations that would need to be taken into account in such a program.
Releasing captive-bred eagles into a landscape where their primary
sources of mortality are not being addressed and reduced would not
serve much purpose. Overall, we believe that reducing ongoing mortality
is a more effective means of offsetting added mortality, and for
accomplishing golden eagle conservation in general.
Comment: Many projects have a long life span and a low possibility
of ``take.'' Here, the Service should provide a flexible method for
implementing compensatory mitigation over time.
Comment: Given that the Service cannot predict when programmatic
take will occur, benefits of proposed compensatory mitigation actions
should accrue as early in the life of the project as possible.
Comment: The applicant should, after each 5-year review period, be
able to apply unused mitigation credits by carrying them over to
subsequent review periods. Alternatively, these credits should be
tradable or transferable.
Comment: Allowing companies to receive credits for excess
compensation could lead to excess take in some years, especially at the
local scale. The Service needs to explain how the credit system will
avoid excess take.
Service response: Under the approach we envision, permittees would
be required to provide compensatory mitigation at the outset to offset
predicted take over 5 years. For permits longer than 5 years, if no
observed take has occurred in the first 5 years, or if observed take is
lower than the take already mitigated, the permittee's future
mitigation requirements would be adjusted downward to allow credit for
mitigation already accomplished, and to account for the lower-than-
initially predicted observed fatality rate. It would be the same at
each 5-year interval. If take exceeds the predicted take rate during
any 5-year period, the permittee would need to provide additional
compensatory mitigation (and may be subject to additional permit
conditions). As explained earlier, by ``observed take,'' we are
referring to take that is estimated using statistically rigorous,
unbiased, estimators and search protocols.
Comment: Additional compensatory mitigation should be required only
in response to changed circumstances previously provided for in the
permit and applied at the project level consistent with the ``no
surprises assurances'' provided by ESA incidental take permits. In
providing this type of assurance, cost uncertainty would be reduced,
thereby creating a situation where developers/owner operators would be
more likely to seek full-term permits and to comply with the related
conservation measures.
Service response: Additional compensatory mitigation for eagle
permits would be required if take exceeds the predicted and authorized
take level or if the best available scientific evidence demonstrates
that the additional mitigation measures are necessary for the
preservation of eagles. Also, the Service may require long-term
permittees to undertake additional conservation measures other than
those originally contemplated, if they are both practicable and
reasonably likely to reduce risk to eagles based on the best scientific
information available.
Comment: The length of time that the measurable benefits of
compensatory mitigation persist should meet or exceed
[[Page 27959]]
the length of time of the projected impacts.
Service response: We agree with this comment, particularly with
regard to offsetting mitigation, but also in the context of
compensatory mitigation in general. Compensatory mitigation under these
permits will be designed to be durable for at least as long as the
detrimental impacts to eagles from the permitted activity.
Comment: The Service should set a greater than 1:1 ratio of benefit
to take. The benefits provided by compensatory mitigation are
inherently more uncertain than those provided by avoidance of high-risk
sites and by operational mitigation (also known as Advanced
Conservation Practices). Until such time as actual field performance
data is compiled, equivalency standards for compensatory mitigation
must be more stringent than the computed levels of take. Compensatory
mitigation should be substantial in order to provide a strong incentive
for developers to properly site facilities away from eagle use areas.
Service response: We are proposing to require offsetting mitigation
for golden eagles at a greater than one-to-one ratio. In addition to
the reasons provided by the commenter, a greater than one-to-one ratio
is warranted because our data indicate golden eagles may be already
experiencing higher take rates than can be sustained and the greater
than one-to-one ratio is therefore necessary to ensure the permitted
take is compatible with the preservation of golden eagles.
Comment: Compensatory mitigation actions should be proven to be
reasonably likely to deliver expected conservation benefits.
Comment: The regulations should allow hypothesis-driven,
scientifically based research to count as part of a mitigation
strategy.
Service response: Under this proposed rule, the Service would allow
compensatory mitigation measures and programs that face more risk and
uncertainty provided mitigation accounting systems factor in risk and
adjust metrics, mitigation ratios, and the amount of required
mitigation to account for uncertainty.
Comment: A project proponent should not be able to avoid
compensatory mitigation if the entity proposes a project that fails to
reasonably consider avoidance or minimization measures. The regulations
should emphasize and incentivize avoidance in conservation plans and
institute the full mitigation hierarchy prior to requiring compensatory
mitigation.
Service response: Under these proposed regulations, implementation
of all practicable avoidance and minimization is required in order to
qualify for an eagle permit.
Comment: The Service should establish a standardized process for
reporting and monitoring of compensatory mitigation actions to ensure
compliance and the delivery of eagle conservation benefits.
Service response: This comment highlights one of the advantages of
using mitigation banks, in-lieu fee programs, and other third-party
arrangements. The third party is responsible for determining what level
of monitoring is needed and carrying it out. Funds collected will cover
that monitoring.
Comment: By calculating the risk of eagle take through a formula
that does not account for eagle avoidance behaviors (especially with
the bald eagle), and then requiring compensatory mitigation to
completely offset the level of assumed take (and, pursuant to the ECPG,
requiring significant mitigation upfront), the Service sets the
compensatory mitigation level too high and requires compensation for in
effect ``phantom'' takes that may never occur. The Service should
create separate risk models for bald and golden eagles based on their
biology and behavior, as take estimates are the basis for determining
the mitigation amounts.
Service response: As noted in our response to an earlier comment,
we believe it is reasonable and prudent to consider bald eagles to be
equally vulnerable to blade-strike mortality as golden eagles unless
and until verifiable data become available that demonstrate a different
collision probability for bald eagles. It is also important to
recognize that the initial model prediction would only be used to
estimate take for the first five years, after which time the observed
take rate would be used to update the model prediction for the next
five years (a process repeated for the life of the project). Any
mitigation that has been undertaken based on the initial model
predations that exceed the observed take can be carried forward and
applied against the updated predicted future take.
Comment: The Service needs to collaborate with utilities on how to
select which poles to retrofit and how to identify the highest priority
areas for mitigation.
Comment: The Service needs to recognize the cost differences in
retrofitting different companies' distribution systems. The types of
equipment and size, height, and location of the power pole being
retrofitted will affect the cost to complete. Utilities must calculate
specific cost or value according to pole type and the scope
modification to determine a cost to retrofit.
Comment: The ECPG calculates the average cost of retrofitting per
pole to be $7,500, which underestimates the cost of retrofitting the
average pole. In addition, the Service has also underestimated the life
of a pole at 10 years. The age and cost to replace poles vary greatly.
Costs to modify poles (particularly for transmission voltage) cost more
than $7,500 per pole depending on the type of work done, voltage,
location, climate, etc. The Service should work with electric utilities
to ensure appropriate costs are considered and that pole modification
programs are effective and durable.
Service response: Working with APLIC, the Service has updated the
resource equivalency analysis in the ECPG and re-run the model to come
up with a ``generic'' replacement cost for determining what the per-
eagle contribution to a mitigation fund should be with respect to power
pole offsets. We expect details on costs per pole to retrofit, life of
retrofits, evidence retrofits are of risky poles, etc., will be handled
by the mitigation fund administrator (and selection panel), likely
involving submission of proposals from potential recipients of the
retrofits before funds were allocated. Such a process could account for
actual costs on a case-by-case basis.
Permits for Taking Eagle Nests
Comment: The definitions found in the current regulations make
sense, but they conflict with how similar terms are used in scientific
literature.
Service response: We are proposing in 50 CFR 22.3 revised
definitions applicable to eagle nests that are more consistent with
terminology used in scientific literature.
Comment: Additional definitions should be added to the regulations,
including the following:
Active Nest--this definition would serve to clarify the
types of breeding behavior or evidence needed to prevent the take of a
nest during a particular breeding season.
Active Territory--this definition would supplement the
existing definition for area nesting population and relate to one
breeding pair making a nesting attempt within an established breeding
territory.
Inactive Territory or Historical Territory--this
definition would aid in dealing with a scenario where nest structures
are observed but no evidence
[[Page 27960]]
of use has been documented for a specific period of time.
Alternate Nest--this definition would apply to a
documented nest used by a breeding pair within the same territory in
which an applicant has applied for a nest removal permit.
Nest condition--this definition would describe the
qualitative evaluation of nest conditions used to determine the
likelihood of repeat nesting at this site.
Nonviable Nesting Structure or Historical Nest Site--this
definition would define a structure that has not been used for a period
of time or has been damaged from environmental conditions.
Existing Disturbance Regime--this definition is to provide
a qualitative evaluation of the baseline conditions for which a new
disturbance is proposed. For example, if an existing operation is
ongoing and eagles chose to nest nearby, this circumstance needs to be
considered when evaluating ``take'' or the risk for potential ``take.''
Service response: Most of these terms are not used in the
regulations and neither are the concepts embodied in them, so for
those, no definitions are needed. We are proposing a definition of
``nesting territory,'' but nothing in these proposed regulations hinges
on whether the territory (rather than the nest) is currently occupied
by breeding eagles. We also are proposing a definition for ``alternate
nest,'' but the proposed definition is more aligned with how the term
is used in scientific literature than what is being suggested by the
commenter. In our proposed definition, a nest is ``alternate'' in
relation to a nest that is used, rather than in relation to the nest
being considered for removal. Under our proposed definition, an
alternate nest may be the one for which a nest take permit is sought.
Comment: The high standard in the current regulations that limits
nest removal to limited situations should be retained. It has
contributed to the preservation of bald eagle nesting habitat and the
persistence of historic nest territories in Florida.
Comment: In addition to situations that present human health
hazards, the Service should retain the authority to issue nest removal
permits in instances of extreme hardship, such as a new nest
constructed following acquisition of a small housing lot.
Comment: The regulations should be revised to allow nests to be
removed to alleviate a threat of significant property damage.
Comment: Permits for removal of bald eagle nests should be less
stringent and easier to acquire, without requiring applicants to
provide ``net benefits'' to eagles or mitigation.
Comment: Additional circumstances that indicate a nesting pair may
continue to be viable, such as the identification of an alternative
nest within the territory, should allow for removal of one nest without
requiring ``net benefit'' measures.
Comment: The regulations should maintain the current standards with
respect to the ``net benefit'' requirement for removal of inactive
nests, including further clarifications and a clear definition of what
constitutes a ``net benefit.''
Service response: We are proposing to retain the standard that, in
cases other than health and safety or obstruction of human-built
structures, a successful applicant for an eagle nest removal permit
must provide a net benefit to eagles. The standard helps to protect
historic nest sites. In other cases, such as a new nest constructed on
a residential lot, the requirement to provide a net benefit should not
be unacceptably onerous. Generally speaking, when new eagle nests are
being established in areas with high human density, this activity
indicates the eagle population is expanding, and removal of a new nest
in a thriving population will have little or no long-term impact to
that population. A relatively small contribution to the national
mitigation fund would allow monies to be leveraged for maximum benefit
for eagles. Funding could be applied to improve conditions for eagles
by improving habitat somewhere where there is likely to be less
conflict from human activity or other eagles. Under the existing permit
system, an example of a net benefit we required in a nest removal
permit we have issued is a requirement to provide two alternative nest
platforms for eagles that once used a nest tree whose destruction was
permitted for a railway spur line. We are not proposing a standard
definition of what constitutes a net benefit, and will continue to
assess net benefit on a case-by-case basis. There is too much
variability in nest sites and the circumstances surrounding them that
determine the value of the nest to eagles to allow for a one-size-fits-
all definition. However, we will continue to require mitigation in
proportion to the impacts and we anticipate that the examples provided
here are the types and magnitude of net benefit compensatory mitigation
we would require for permits for removal of eagle nests for other than
health and safety reasons.
Comment: Nest removal should occur outside of the breeding period
and should occur only when there is an extreme safety situation.
Comment: Permits should not be made available for removal or
relocation of active nests with eggs or young for purposes other than
safety emergencies.
Service response: We agree with the second comment and are not
proposing any changes to the current provisions that restrict removal
of nests with eggs or young to safety emergencies. In response to the
first comment, we must be able and willing to issue nest take permits
for active nests to prevent injury or loss of life to humans or the
eagles associated with the nest.
Comment: The definition of ``eagle nest'' should have a temporal
aspect such that a nest that remains unused for 5 consecutive years and
has deteriorated to an unusable condition is no longer included.
Comment: Permitting exclusions or streamlined permitting should be
an option for inactive nest sites, which the applicant can demonstrate
are degraded and for which removal will not have a detrimental impact
on preservation of the species.
Service response: We considered defining eagle nests in a manner
that would exclude nests that have substantially deteriorated and which
have been unused for many years, but decided against it. It is rare to
have verifiable documentation that a nest has consistently not been
used for many years. Nests could be lost on the incorrect pretext or
assumption that they have been unused. It is quite unusual for
applicants to have 5 years of documentation of past eagle use (or
disuse) of nests. Sometimes nests are substantially destroyed by
storms, and in most cases, the Service would have no way of determining
whether eagles are likely to return to that site for breeding purposes.
If applicants are able to demonstrate the low biological value of the
site, that is, that eagles are unlikely to rely on it for breeding
purposes in the foreseeable future, then it would not be difficult to
provide the net benefit that is required to qualify for a nest removal
permit.
Comment: The definition of ``inactive eagle nest'' should be
revised to extend the time period when a nest is considered not
currently being used beyond 10 consecutive days.
Comment: The 10-day period used to define an ``inactive'' nest
should be reduced to 5 days, particularly for nests where young have
fledged. The shorter period is sufficient to identify eagle breeding
activity.
Service response: We are not proposing to revise the 10-day period
upward or downward; we have no data
[[Page 27961]]
indicating either that 10 days is insufficient to protect eagles or is
overly protective.
Comment: For cases where an inactive nest take permit is sought, a
standard monitoring methodology should be required for determining the
status of the nest so that such a determination can be reviewed and
approved similarly by multiple permitting agencies.
Service response: We agree that a standard monitoring protocol for
determining whether a nest is unused for 10 days would be useful, and
we will consider developing such guidance in the future. Due to the
size of eagles and the fact that they are easily recognized, we believe
it is not onerous for even untrained persons to determine whether a
nest is in use, but it might be advisable to contact the local Service
field office for guidance to ensure the monitoring activity will not
disturb eagles.
Comment: In order to prevent an anticipated (but not yet present)
emergency situation, permits should not be available to remove nests
with no eggs or young, but which adults attend for purposes of
breeding.
Comment: If the regulations will allow nests that are attended by
adults but contain no eggs yet to be removed for anticipated safety
emergencies, the regulations should include a clear decision process
for what constitutes an anticipated emergency.
Service response: We have tried without success to develop a
standard decision process for what constitutes a safety emergency
beyond the plain meaning of the definition in Sec. 22.3: ``A situation
that necessitates immediate action to alleviate a threat of bodily harm
to humans or eagles.'' Emergency situations and potential consequences
are simply too variable. We do not want to inadvertently create a
process that could prevent us from issuing a nest removal permit for a
situation we failed to anticipate or describe.
Comment: The regulations should allow more flexibility for removal
of active and inactive nests in urban areas and other areas of
potential risk to successful nests.
Service response: Generally speaking, eagle nests in urban areas
indicate a thriving local population of eagles. In robust populations,
the relative value to eagle populations of each individual nest is
lower than in lower density populations. Eagle nests that are of lower
biological value (including relative to other eagle nests) require less
mitigation as a ``net benefit'' with the result that there is more
flexibility to issue permits for their removal.
Comment: Due to the current population status of golden eagles,
golden eagle nest removal criteria are more restrictive in nature.
Mitigation, whether compensatory or replacement, should be implemented,
by the permit holder, for golden eagles. The destruction of golden
eagle nests should be avoided, if at all possible, unless the nest is
posing a safety emergency.
Service response: We largely agree with the commenter. Golden eagle
nest take permits will be more restrictive in nature, but without
including different criteria for the two species in the regulations.
All golden eagle take permits, except for those authorizing ongoing
take occurring prior to 2009 will require offsetting mitigation. Our
view is that regulations should not be species specific; rather, they
should address specific conditions that could apply to any of the
species they are designed to protect. The avoidance and minimization
requirements in the current and proposed regulations are designed to
ensure that removal of a nest of either species is the last option.
Comment: If a pair of eagles known to use one nest creates another
resulting in the abandonment of the original nest, the old nest should
be considered immediately abandoned.
Comment: A nest should not be considered abandoned unless it has
not been used for 5 years, as golden eagles sometimes return to a nest
after 2 or 3 years.
Comment: The term ``abandoned nest'' should be clarified so it is
clear in the literature that both species may have several nests that
they use on a rotational basis and will pick the current year's nest
based on things like disturbance.
Service response: Neither the current regulations, nor the proposed
revisions, include the term ``abandoned nest'' because that term is
misleading in this context. In these proposed regulations, a nest that
eagles are not currently using is referred to as an ``alternate nest''
and is still protected because eagles typically use nests on a
rotational basis and will sometimes return to a previously used nest
after several years. A 41-year study of golden eagle nests in Idaho
found that golden eagles used a nest site that had been unused for 39
years (Kochert and Steenhof, 2012). That study also found that 86% of
alternate golden eagle nests were used at least one breeding season.
Nest abandonment is a term used in our definition of what
constitutes disturbance under the Eagle Act at 50 CFR 22.3. It is not
relevant to determining the status of nests in a nesting territory and
is a different concept entirely. In the definition of ``disturb,'' a
nest is considered abandoned if eagles had been using it, or would have
used it, during the current breeding season, but did not raise young
there due to interference or perceived interference. If a proponent's
action causes nest abandonment, then the proponent has disturbed an
eagle under the definition and is liable for take. In the definition of
``disturb,'' nest abandonment does not refer to the long-term status of
the nest.
Comment: The Service should evaluate the establishment of nest
removal permits that would cover the removal of an active nest (without
eggs or dependent young) or an inactive nest multiple times for the
same location.
Service response: The current and proposed regulations allow the
Service to issue permits to remove nests being built in the same place
multiple times. We agree that there are circumstances that warrant this
type of authorization (e.g., when eagles persist in trying to build a
nest in a location where it would create a fire hazard).
Comment: The definition of ``area nesting population'' should be
modified to remove the 10-mile radius because it may not have any
bearing on the actual home-range of a nesting pair or on the project
impact area.
Service response: We agree and are proposing to remove the term
``area nesting population'' from the two permit regulations where it
occurs.
Comment: Establish and clearly define in the management objectives
acceptable distances from eagle nests necessary to avoid disturbance of
eagles in a given management area.
Service response: The Service's recommendations for buffer
distances and additional guidance for avoiding disturbance of bald
eagles are contained in the 2007 National Bald Eagle Management
Guidelines (USFWS, 2007). Ideally, if resources allow, we will revisit
that document to update our recommendations based on newer data and
observations of bald eagle behaviors. At this time we do not have
comparable official guidance for golden eagles, but may issue such
guidance in the future.
Comment: Any nest, abandoned or active, that is removed for any
reason, needs to be accounted for in the 5-year review.
Service response: We are tracking all authorized take of nests in a
database to ensure they are accounted for. In most cases where a permit
authorizes disturbance to breeding eagles, we require monitoring and
reporting, and we enter the reported status into the database. However,
it is not always
[[Page 27962]]
feasible to track whether authorized disturbance actually occurred, so
our database will not perfectly capture all outcomes.
Comment: When an active nest must be removed, the regulations
should not always require nestlings or eggs to be placed with a
rehabilitator. Instead, the language should be: ``In most instances,
nestlings and viable eggs must be immediately transported to foster/
recipient nests or a rehabilitation facility permitted to care for
eagles, as directed by the Service. The Service will make the
determination as to the fate of all nestlings and viable eggs.''
Service response: We agree that it is not always possible to
transport eggs or young to a rehabilitator in a safety emergency (the
only circumstances when removal of a nest with eggs or young can be
permitted), and we are proposing revisions that would allow us to waive
the requirement when it is not feasible or humane to carry out.
Comment: The Service should clarify the type of permit (disturbance
or nest take) that is needed for temporarily obstructing eagle access
to nests (prior to nesting season) to prevent disturbance during
nesting-season construction or maintenance activities.
Service response: The appropriate authorization for temporarily
obstructing eagle access to a nest is a permit for disturbance.
Although some eagle nest take involves disturbance, nest removal
permits authorize destruction, removal, relocation of, or persisting
damage to, a nest.
Low-Risk Category
Comment: The Service should revise the definition of ``low-risk''
to include projects with slightly higher probability of taking eagles,
provided the cumulative impacts would be compatible with eagle
management objectives. The current definition represents such a low
level of risk that the burdens of issuing take permits for both
developers and the Service outweigh the benefits of the permitting.
Comment: The Service should exempt issuance of permits for projects
with low effects or ``low risk'' by establishing a new categorical
exclusion for them in its NEPA regulations. Given the Service's
conservative take estimates and limited resources in its permitting
program, a categorical exclusion for low-risk projects would be
reasonable from the Service's and project proponents' standpoint.
Comment: The Service should establish criteria to identify low-risk
activities and set up a more streamlined permit process to address
these circumstances. For example, there could be a one-page permit
criteria checklist submitted with the ``take'' permit application that
qualifies a project for an exemption from NEPA or advanced conservation
practices.
Comment: The Service should redefine the probability of take
percentage for ``low-risk'' projects such that projects with the
probability of take of 0.03 or lower should be able to address their
potential impacts through the development of non-permit-based
conservation strategies.
Comment: The Service should modify the low-risk threshold from 0.03
eagles per year to 0.17 eagles per year. Annual take probabilities of
0.17 eagles per year are the lowest that produce 30-year take
probabilities rounding to 1.0 at two significant digits.
Comment: The Service should consider developing a ``Nationwide''
permit program, similar to the Section 404 Clean Water Act permits that
allow for projects to qualify under specific categories (low-risk).
These instances would permit take within an established threshold per
category.
Comment: The Service should broaden the category of ``low-risk''
projects established in the ``Duration Rule'' to include any projects
that are likely to take more than 0.03 eagles per year. The definition
of low-risk should be clearly defined and based not only on anticipated
project take (mortality and disturbance), but also on habitat
modification. ``Low-risk'' should also be defined in the context of
cumulative risk to regional and local eagle populations.
Service response: We agree that the former definition of ``low-
risk'' projects is counter-productive and needed to be revised or
eliminated. ``Low-risk'' was defined in a footnote to 50 CFR
13.11(d)(4) as a project or activity that is ``unlikely to take an
eagle over a 30-year period and the applicant for a permit for the
project or activity has provided the Service with sufficient data
obtained through Service-approved models and/or predictive tools to
verify that the take is likely to be less than 0.03 eagles per year.''
This definition covered only those projects where take is essentially
negligible, and, therefore, the project does not require a permit. The
definition has been removed from the regulations in complying with a
district court decision that vacated parts of the 2013 regulations that
established the definition.
We still see utility in redefining ``low-risk'' to include projects
with a slightly higher probability of taking eagles, but which
cumulatively will still be compatible with eagle management objectives.
However, we were not able to develop a definition of ``low-risk'' that
could be applied throughout the United States while achieving the
desired goals for such a category. The Service considered a variety of
criteria and/or metrics for the low-risk category, but each approach
resulted in significant discrepancies because of on-the-ground
differences in eagle population densities and resilience, habitat
variability, and project scales. Therefore, we are not including a
revised definition of low-risk projects into these proposed
regulations.
Although the proposed regulations changes do not include a category
for low-risk, we agree that streamlining the process for projects that
clearly demonstrate a likelihood of take being relatively low based on
siting and/or project design is a worthwhile goal. We plan to continue
our efforts to identify and establish a category of low-risk projects
that, without having to conduct required pre-application surveys, could
qualify for eagle take permits. We welcome comments on defining low-
risk activities and potential criteria for developing an authorization
process that minimizes costs of compliance and the demand for agency
resources for projects that will result in no more than minimal adverse
effects on eagles for our consideration in the future. Comments should
focus on (1) metrics that would be necessary to establish a category of
low-risk projects, (2) informational requirements, if any, for the
application and (3) appropriate terms and conditions to qualify for a
nationwide eagle take permit.
Comment: The Service should consider some types of projects as low-
risk to nesting and roosting bald eagles, specifically those that are:
Similar to existing activities that eagles in the area are
accustomed to;
Of limited duration, occurring no more than several days
at a time;
Implementing various minimization measures to reduce
impacts to eagles; and
Not going to have a project noise level above 92 decibels.
Comment: Criteria to evaluate whether a project is considered low
risk should include:
Proximity and view shed of proposed disturbance in
relation to nesting habitat;
Landscape-level migration patterns;
Quality of potential foraging habitat;
Project activities that have a potential interaction with
eagles or eagle habitats;
Timing of projects (short-term/long-term, within or
outside of breeding season); and
[[Page 27963]]
Specific operational practices (applicant-committed
protection measures).
Comment: If a project is beyond the Service-recommended buffer
distance from an eagle nest, the project should be considered ``low
risk'' and the permit issued under a simplified and shortened
application/approval permit process.
Service response: These comments incorporate good guidance for how
to evaluate whether disturbance is likely to occur. We consider these
types of elements when potential applicants contact us with questions
about whether their activities are likely to disturb eagles. If we
determine the risk of disturbance is low, we advise people that a
permit is not needed.
Research
Comment: The Service should establish regular, consistent surveys
to assess changes in population.
Service response: Our plan is to conduct surveys on a 6-year
rotation: One set of paired summer-winter golden eagle surveys in the
first and second and fourth and fifth years of each assessment period,
and to conduct bald eagle surveys in years three and six.
Comment: The Service should undertake a well-defined research
program that explores potential innovations in ACPs to supplement a
menu of validated, effective measures.
Service response: Private industry has the responsibility to avoid
and minimize take of eagles from their activities. Accordingly,
industry should fund research needed to identify measures to reduce the
risk to eagles posed by their activities. The Service will contribute
expertise regarding eagle biology and behaviors to the degree our
resources allow.
Comment: The Service would have an opportunity to use utility data
if the Service facilitates use of the reporting system and provides a
guarantee of security of the data.
Service response: Data on avian mortalities is needed to help us
understand risks to eagles and other birds and prioritize management
decisions. We have developed a new data system that will allow
companies to input, view, and manage such data. For more information on
the Service's Injury and Mortality Reporting System, go to: http://www.fws.gov/birds/management/project-assessment-tools-and-guidance/imr.php. The data is accessible by select FWS staff, but not viewable
by any other system users. In the event of a request for information
from the public, we will provide summarized data but would withhold any
information exempted from release under FOIA, including confidential
business information and personal information protected by the Privacy
Act. This may include information that would identify the submitter, or
any other details that would point to a particular company, unless the
company approves release of this information.
Comment: The Service should actively pursue research on many
factors that affect long-term population status of eagles in a changing
landscape, including climate, prey populations, wind-farm losses,
electrocutions, and lead poisoning.
Service response: We agree with this comment, and are engaged in
various research projects to assess how various factors affect eagle
populations.
Comment: The Service should use modeling to simulate populations of
known structure that are then impacted at known (simulated) levels as a
means to inform decisions. The substantial body of knowledge on bald
eagles could serve as an initial benchmark for developing simulation
models for golden eagles.
Service response: The Service has developed and is using these
types of population models for both bald and golden eagles.
Other
Comment: Penalties need to be increased, so violations are not just
a minor cost of doing business.
Service response: Penalties applicable to eagle take are
established by Congress in the statute itself. The Service does not
have the ability to modify those penalties.
Comment: Any dollars that come from enforcement and fines should be
applied to fund eagle research.
Service response: Congress has enacted a number of laws that limit
the use of fines and penalties assessed as part of the criminal or
civil enforcement of wildlife laws. In general, these statutory limits
are directed at protecting the Federal appropriations process through,
for example, prohibiting the augmentation of a Federal agency's budget
or funding a Federal program and by requiring that any money received
``for the Government'' from any source be deposited into the United
States Treasury as miscellaneous receipts unless a law provides
otherwise for retention and use of the funds. While there are
opportunities within these congressionally mandated constraints for
enforcement actions to recognize funding of eagle research, application
of Federal fiscal law mandates and how they apply to enforcement
actions can be complex and are addressed on a case-by-case basis,
taking into account the Federal laws applicable to the facts of a
particular situation.
Comment: The Service should revise the definition of ``programmatic
take'' to allow a programmatic take permit even if only indirect
effects would cause a ``take'' or a ``disturbance.''
Service response: We reviewed internal staff discussions that
occurred during development of the 2009 regulations about how the
Service should define ``programmatic take,'' and we believe the phrase
``and not caused solely by indirect effects'' was included because of
concern that people would request permits to cover effects to eagles
that were too attenuated to constitute take under the Eagle Act (e.g.,
actions that gradually affect climate and lead to decreases in the prey
base). Now, however, the scope of prohibited take under the Eagle Act
is better understood both within and outside of the Service, and we are
less concerned that people will seek permits for attenuated effects
that do not actually constitute take. Under this proposed rule, the
category and definition for programmatic take would be eliminated.
However, because we believe that it is appropriate for permits to cover
take that is caused by indirect effects, particularly in light of our
proposal to extend maximum permit duration to 30 years, nothing in
these proposed regulations would prevent us from issuing such permits.
Comment: The Service should consider shifting the focus of the
programmatic permit program from a lethal take focus to the
conservation of eagles and their habitat.
Service response: The Eagle Act, unlike how the ESA protects ESA-
listed species, does not give the Service authority to protect or
otherwise regulate eagle habitat (other than eagle nests and habitat
destruction that directly causes lethal take or disturbance), but we
can and do protect habitat as mitigation for permitted take. At
present, habitat loss is not the limiting factor for growth of either
species.
Comment: The Service should conduct a national programmatic wind
EIS and use it to identify areas where wind energy cannot be developed
due to unacceptable risk to public trust resources, including eagles
and other federally protected birds and bats.
Service response: The Service does not have the authority to
regulate where wind energy facilities can be sited. We have developed a
variety of tools for assessing whether a given area is likely to pose a
high risk to eagles or other birds if developed for wind power (see
[[Page 27964]]
the ECPG), and we encourage developers to avail themselves of those
tools prior to siting wind energy projects.
Comment: The preamble to the 2009 permit regulations, Final
Environmental Assessment conducted for those regulations, and the ECPG
all identify projects in operation prior to 2009 as being part of
baseline conditions on which take thresholds were established. In
practice, however, the Service has been inconsistent about how to treat
such projects. The Service should clarify the extent to which
mitigation is required for pre-2009 projects.
Comment: The Service should treat known permitted take that
occurred prior to 2009 as measureable when considering additional take,
and not consider it ``baseline.''
Service response: Take occurring prior to 2009 will still be
considered part of the baseline with regard to compensatory mitigation
requirements (i.e., none will be required). For developments already in
operation that have taken eagles prior to the permittee applying for a
take permit (available since 2009), the Service will work with the
applicant to resolve any unpermitted take when applying for a eagle
incidental take permit. The Service has developed a template eagle take
settlement agreement to provide consistency and transparency in our
enforcement actions.
Comment: Section 22.11(c) should be revised to state: ``You must
obtain a permit under part 21 of this subchapter for any activity that
also involves migratory birds other than bald and golden eagles, and a
permit under part 17 of this subchapter or a statement under Part 402
for any activity that also involves threatened or endangered species
other than the bald eagle.''
Service response: We are proposing revisions to accomplish what
this commenter proposed, i.e., allowing the use of section 7 where
appropriate to cover effects to ESA-listed species. We believe the
current wording, which requires the use of an ESA permit even for
Federal applicants, is the result of an oversight by the original
crafters.
Comment: A panel of eagle experts and eagle biologists should begin
a review of the Eagle Act. The Eagle Act is old, very expansive, less
complete, and harder to enforce than the more current Migratory Bird
Treaty Act (MBTA) and ESA, and it does not work well with current
regulations.
Service response: We, too, have identified areas where we believe
the Eagle Act could be improved, but as a Federal Executive Branch
agency, the Service cannot write or enact legislation. Statutory
amendments must be made by Congress.
Comment: The Service should move forward with the development of a
permitting process under the MBTA to augment those now available under
BGEPA and ESA.
Service response: We are in the process of developing regulations
to authorize incidental take under the MBTA. We published a notice of
intent to prepare an EIS on May 26, 2015 (80 FR 30032), and held four
scoping meetings in different U.S. cities. For more information, go to:
http://birdregs.org/.
Comment: The Service needs to enforce the ESA, BGEPA, and MBTA when
it comes to all energy development, whether traditional or alternative.
Shut down or relocate wind energy sites that greatly exceed their take
limits for federally protected species, especially if mitigation proves
ineffective in reducing bird (and bat) mortality. This means more
prosecutions for violation of the laws and predictable consequences for
noncompliance.
Comment: Wind turbines with predictable eagle mortality should not
be permitted, and those already permitted with future predictable
mortality should be taken offline.
Service response: The Service does not have the authority to shut
down, relocate, or take offline energy facilities. We have the
authority to bring enforcement actions against facilities that take
eagles without permits or that violate the conditions of their permits,
and we do. We also can and do issue permits that require conservation
measures and compensatory mitigation. We disagree that wind turbines
with predicted mortality should not be permitted; if mortality is not
predicted to occur, wind companies do not need permits. Through Service
guidance and in these proposed regulations, we discourage the siting of
facilities in areas of high risk to eagles, but our authority does not
extend to actually being able to prevent developers building there
despite our recommendations.
Comment: The 2013 revisions to the permit regulations provide that
the Service will make reported injury and mortality data available to
the public. The regulation should clarify whether the Service will
publish/post this data, or whether it will be available only upon
filing a request under the Freedom of Information Act.
Service response: We intend to post cumulative reported mortality
data summarized to a State and flyway level on a Web site that can be
viewed by the general public.
Comment: The scoping process documents mention timber harvesting as
an activity for which a programmatic permit may be appropriate.
However, timber harvesting should not qualify for programmatic permits
because the current eagle management guidelines for timber harvesting
are quite easy to follow.
Service response: We appreciate this comment. It is true that no
timber companies have approached us for a programmatic permit. That
said, if a timber company approaches the Service for a long-term
permit, we would consider the merits of its application. Also, the
National Bald Eagle Management Guidelines were developed specifically
for bald eagles and are not necessarily the best guidance for avoiding
golden eagle disturbance.
Comment: Bald eagle populations continue to grow exponentially in
much of the country, and as these populations grow, so does the amount
of incidental take. Therefore, a set amount of authorized take over a
period of time (i.e., 30 years) can be unpredictable and impractical.
As long as the population growth exceeds the take and the overall goal
of stable or increasing bald eagle populations is being met, no
individual permits would be necessary.
Service response: First, the Eagle Act requires a permit for bald
eagle take: ``Provided further, That bald eagles may not be taken for
any purpose unless, prior to such taking, a permit to do so is procured
from the Secretary of the Interior.'' (16 U.S.C. 668a) Second, without
individual permits, we could not require avoidance, minimization of
impacts, and compensatory mitigation, much less track how much take is
occurring in order to ensure that take is not exceeding the level at
which populations would start to decline.
Comment: The Service could implement a programmatic industry permit
with NEPA tiering as the Service uses for permits issued under the ESA.
Comment: The Service should consider issuing programmatic take
permits to cover a company's entire service territory.
Comment: As neither the Eagle Act nor the actual regulations
require that eagle take permits be available solely for individual
projects, the Service should allow for multi-project/facility permits
for bald eagles or regional permits that can serve as umbrella permits
for individual projects.
Service response: All of the scenarios mentioned by these
commenters are available under the current and
[[Page 27965]]
proposed regulations. The Service does have some constraints based on
our administrative structure. For example, although not precluded by
our regulations, it would be an administrative challenge for us to
issue permits to multiple companies for multiple types of activities
that cross Service regional boundaries (administrative jurisdictions).
It might be more efficient to pursue multiple, less complicated
permitting options in such cases.
Comment: The regulations and guidance documents should address the
roles and responsibilities of other permitting agencies. For example,
if a project involving the removal of an inactive nest is being
evaluated in a Bureau of Land Management (BLM) document and with
appropriate consultation, the Service would allow the BLM to become the
lead agency and establish appropriate mitigation, which would then be
written into the ``take'' permit. This provision would allow for a
streamlined approach for permitting and NEPA.
Service response: We agree that approaches such as that described
by this comment make sense. We also think it would be beneficial to
develop guidance for how to work with other agencies when issuing eagle
permits, and plan to do so as resources allow.
Comment: No industry should be given priority over another. For
example, a permit to support a wind energy project should not be given
precedence over a permit to support a mining operation.
Service response: We do not give priority to any type of industry.
If for some reason, we could permit only one of several interested
industries, we would issue the permit on a first-come, first-served
basis.
Comment: The regulations should require permittees to allow access
to State wildlife agency staff to monitor permit compliance. Currently,
the regulations require permittees to allow Service personnel and other
qualified persons designated by the Service such access.
Service response: We cannot unilaterally create requirements for
permittees that pertain to governmental agencies other than ourselves.
We would have to coordinate with each State agency on a case-by-case
basis. Many States do not want the extra burden of sharing management
of a Federal permit program. We are pleased to work with any particular
State that has the desire and resources to train and allocate staff to
monitor eagle permits.
Comment: A portion of the permit fees should fund a permit writer
in each regional office dedicated to eagle permits. This arrangement
will allow for consistency and efficiency in processing applications
and meeting permit timelines.
Service response: Permit application processing fees are returned
to the Regional Permit Office that issued the permit and are invested
into administration of the permit program.
Comment: The fees for these programmatic permits increased
substantially. The money from these fees should be used for wildlife
conservation, mitigation, and monitoring in the region affected.
Service response: The programmatic permit application processing
fees increased in 2013 because we learned from experience that they
require much more staff time than we had originally anticipated. At
this time, we estimate the fees are still not enough to recoup the
costs of the technical assistance we provide during the permit
application development phase for complex, long-term permits, so there
is no ``extra'' money to be used for conservation work.
Comment: The rule should incorporate provisions to allow land
managers to engage in habitat management activities that are beneficial
to wildlife or plants, such as prescribed burns, natural community
restoration, and nuisance species abatement, without liability for
temporary disturbance to eagle.
Service response: If ``temporary disturbance'' is used in this
comment to refer to mere annoyance and disruption, then a permit is not
necessary because no take is occurring. For ``temporary disturbance''
to meet the regulatory definition of disturb, there has to be a
biological effect to eagles in the form of injury or loss of
productivity. For golden eagles, because their populations are not
growing, any substantial injury or loss of productivity is likely to
have population effects. For that reason, we think a permit is the
appropriate tool to authorize those effects because of the conservation
measures and compensatory mitigation required under permits. For bald
eagles, the Eagle Act does not allow the Service to authorize take
unless it is done under a permit (16 U.S.C. 668a). We recognize the
importance of prescribed burns, habitat restoration, and nuisance
species abatement, and have issued a number of permits that cover
disturbance to bald eagles from prescribed burns. These permits
generally contain only reasonable--``no fuss''--conditions. We will
continue to issue eagle permits to our partners for activities that
benefit wildlife in an expeditious manner that best serves our common
goals.
Comment: The slow pace of the eagle permitting process often leaves
projects at risk of unauthorized take between the time the project is
constructed and when the permit is issued. The Service should provide a
mechanism such as a Technical Assistance Letter that includes a set of
criteria under which a project receives some level of protection from
prosecution during the interim period.
Service response: If project proponents are engaged in the
permitting process in good faith, that is, with an actual interest in
obtaining a permit, they should have a reasonable expectation that any
take that occurs during the technical assistance phase will have a low
priority for enforcement by the Service. Issuance of a letter ``with a
set of criteria'' could generate substantial staff time equivalent to a
mini permit process while not affording the project proponent legally
sufficient relief from liability. We believe our resources are better
served by focusing on the process of issuing the actual permit.
Comment: When a permit is transferred to another entity, the
original permit holder should be responsible for all mitigation
requirements that were required during the period of their ownership.
Allowing the new permittee to take responsibility for the outstanding
mitigation requirements may provide a disincentive for the original
permit holder to carry out the mitigation.
Service response: The original permit holder is responsible for any
mitigation that is required while the permit is in his or her name. If
some conservation measures are not finished or have not yet been
undertaken but were not anticipated to have been completed at the time
of permit transfer, it is logical that whoever takes over the permit
will be responsible for those measures. If the original permittee has
neglected to implement conservation measures that were required to be
done while the permit was in his or her name, the permittee could face
an enforcement action. However, if the subsequent permittee agrees to
carry out the outstanding mitigation and the resulting implemented
mitigation will be the same as if the original permittee did it, we
have no objection to two parties entering into such a contract.
Comment: Implementation of Avian Protection Plans allows for a
cooperative model to address concerns, rather than through a more rigid
permitting scheme that adds cost to avian protection activities. To
maintain this flexibility, development and implementation of APPs
should remain
[[Page 27966]]
a viable option to address the same concerns that a 30-year
programmatic permit would address.
Service response: We support development and implementation of APPs
and Eagle Conservation Plans, but such plans are not permitting
instruments and cannot remove liability for eagle take. It is the
project proponent's choice as to whether to apply for a permit, but we
wonder why, after going to the effort to develop a sound APP or ECP
that would provide comparable conservation measures for eagles as would
a permit, a project proponent would not want to secure the protection
from liability that a permit confers.
Comment: A programmatic permit to take golden eagle nests under
Sec. 22.25 (removal of nests for resource development and recovery
operations) should be the same length of time as other programmatic
permits and should not contain more stringent requirements to obtain a
permit than what would be authorized under Sec. Sec. 22.26 and 22.27.
Service response: We may consider extending the permit duration of
Sec. 22.25 permits if we open those regulations up for more
substantial revisions in the future. Doing so would essentially allow
for recurrent take of eagle nests for resource development and
recovery. However, we question how often there would be a need for
recurrent take authorization for resource development and recovery
operations. Also, we do not perceive any other provisions in those
regulations that are more stringent than what is required under Sec.
22.27 permits. In any case, a project proponent engaged in resource
development and recovery can apply for take authorization under Sec.
22.27 if he or she prefers the terms and conditions of that permit to
those of Sec. 22.25.
Comment: Similar to the ESA and its implementing regulations at 50
CFR 17.31, the eagle permit regulations should include provisions for
State wildlife agencies to take eagles as part of the agencies'
management activities, for example, aiding injured or sick individuals,
disturbing eagles while undergoing habitat management, salvaging
carcasses, euthanizing mortally wounded eagles, and removing nests for
specific management purposes.
Service response: Because of the requirement that a permit be
issued to authorize bald eagle take, we cannot authorize this take
through regulations that exempt a party from the permit requirement, as
is done under 50 CFR 17.21 and 17.31 for ESA-listed species, and 50 CFR
21.12 for migratory birds other than eagles. To achieve the same ends,
however, we issue a ``master'' permit to the directors of each State
wildlife agency that allows for the range of activities listed by the
commenter.
Comment: The regulations should clarify ``disturbance'' as it
relates to eagle take and how the Service may use disturbance to infer
a permit requirement.
Comment: The Service should establish and clearly define in the
management objectives acceptable distances from eagle nests that are
necessary to avoid disturbance of eagles in a given management area.
Service response: The Service defined ``disturb'' under the Eagle
Act in a 2007 rulemaking (72 FR 31132, June 5, 2007) (codified at 50
CFR 22.3). The preamble to that rulemaking clarifies how the term is to
be understood and applied. Our recommendations for buffer sizes and
timing restrictions for activities around bald eagle nests are set
forth in our 2007 National Bald Eagle Management Guidelines. We do not
at this time have a similar guidance document for how to avoid golden
eagle disturbance, but hope to develop one in the future. For more
background on other eagle-related rulemakings and guidance documents,
visit our eagle management Web page at: http://www.fws.gov/birds/management/managed-species/eagle-management.php.
Comment: The revised regulations should clarify if the provisions
of the Eagle Act usurp the authority of the ESA. The Service has made
it difficult or impossible to obtain a permit to remove a golden eagle
nest to protect California condors at their release site.
Service response: The ESA and the Eagle Act should be read together
to avoid conflicts. Neither law usurps or trumps the other. The
Service's preferred approach is to balance the interests of the various
species it is mandated to protect. That approach has entailed
consideration of other feasible alternatives before authorizing removal
of a golden eagle nest, but eventual removal for such purposes remains
a potential solution if other alternatives do not work.
Comment: New regulations should provide more information as to what
other entities are expected to apply for programmatic permits. Will the
regulations affect the aviation industry if there are more eagle
strikes? Will they apply to State natural resource agencies if there is
an increase in nontarget eagle catch associated with recreational
trapping?
Service response: Permits would remain available under these
proposed regulations to any person, organization, agency, or business
that wishes to receive authorization for recurrent take of eagles.
Experience so far is that airports have been more interested in permits
to remove nests in the vicinity of airfields rather than permits to
cover eagle strikes. Persons wishing to apply for eagle take permits
for incidental take of eagles associated with trapping would apply to
the Service, not to State natural resource agencies. If there have been
increases in nontarget eagle catch by recreational trappers, the
Service will consider bolstering educational efforts to reach trappers
to ensure they understand such take is illegal and they must make every
effort to avoid incidentally taking eagles.
Comment: The Service should establish an interagency consultation
process for authorizing eagle take similar to that provided by ESA
section 7(a)(2).
Service response: The ESA section 7 process is an exemption from
the prohibitions of take, not an authorization for take. The Eagle Act
does not provide for such exemptions and does not contain provisions
mandating a consultation process for federal agency actions that may
result in eagle take.
Comment: A condition of permits to wind companies should be to pick
up all dead birds as often as possible to minimize the risk to
scavenging eagles.
Service response: The Service supports and often requires removal
of animal carcasses to reduce eagle mortalities, but it is unclear
whether bird carcasses have the same attractant qualities for eagles as
dead livestock and other mammals. There may be circumstances where we
would condition wind companies to remove dead birds from the site, but
we do not agree that requirement should be a provision of every
incidental take permit we issue to a wind energy facility. We
explicitly do not want facilities to pick up dead eagles, and we have
required protocols for contacting our Office of Law Enforcement when
that happens. Sometimes, other birds protected under the MBTA must be
left where they are killed for enforcement reasons. Some companies are
conducting research to determine the effectiveness of different
fatality monitoring protocols, and picking up carcasses could interfere
with those studies. Additionally, some wind companies have also
received migratory bird Special Purpose Utility Permits to monitor for
purposes of methodically tracking where take occurs and collect the
carcasses for identification and/or to prevent counting the same
fatality twice.
[[Page 27967]]
Comment: The USFWS should reconsider the concept of ``depredation''
as applied to golden eagle take for the purpose of falconry. As with
wildlife, golden eagles that fly into windmill power generators, with
lethal results, become depredation involving wildlife. Therefore,
incidental take of golden eagles by wind farms is ``depredation''
within the meaning of the Eagle Act, which allows golden eagle take at
wind facilities for falconry purposes. Falconers permitted to trap
golden eagles prior to entering a ``wind farm'' are undertaking the
first mitigation priority--``avoiding'' the potential of lethal take by
the windmills. Golden eagles taken in this manner could be relocated to
another safer area, with a small percentage of these ``mitigated''
eagles available for falconry purposes.
Service response: Depredation does not mean accidental killing. A
review of several American English dictionaries consistently brings up
the following definition for ``depredate'': ``plunder and pillage.''
The eagle itself must be doing the depredating, not the wind turbines,
and an eagle that is killed by colliding with a turbine blade is not
plundering itself. Under the Eagle Act, falconers cannot take any
eagles except depredating eagles, so even if we supported the proposal
to relocate eagles from wind energy facility sites, falconers could not
legally retain them. With regard to whether a falconer--or anyone
else--is undertaking avoidance by removing golden eagles from the area
of a wind turbine, we do not agree: Routine eagle presence in the area
of a wind facility indicates the area is good eagle habitat. Removing
eagles out of a territory with good foraging opportunities and nest
sites will result in new or the same eagles returning as long as the
prey and site characteristics remain. Rather than creating a population
sink by continually removing eagles and relocating them to areas where
they may not be able to establish successful territories, the best way
to avoid eagle take at wind energy facilities is to site those
facilities outside of good eagle habitat and migration corridors.
Public Comments
We request comments or information from other concerned
governmental agencies, Native American tribes, the scientific
community, industry, and other interested parties concerning this
proposed rule. We also welcome comments on defining low-risk activities
and potential criteria for developing a general permit to minimize the
costs of compliance for the public and the demand for agency resources
for projects that will result in no more than minimal individual and
cumulative adverse effects on eagles for our consideration in the
future. While comments related to low-risk or general permits would be
outside the scope of this rulemaking action, we would keep them for
consideration if we decide to pursue further rulemaking in the future.
You may submit your comments and supporting materials by one of the
methods listed in ADDRESSES. We request that you submit comments by
only one method. We will not consider comments sent by email or fax, or
written comments sent to an address other than the one listed in
ADDRESSES. If you submit a comment via http://www.regulations.gov, your
entire comment--including any personal identifying information--will be
posted on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you may request that we withhold this
information from public review, but we cannot guarantee that we will be
able to do so. We will post all hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection at http://www.regulations.gov, or by
appointment, during normal business hours, by contacting the person
listed above under FOR FURTHER INFORMATION CONTACT.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this proposed
rule is significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effect of the rule on small businesses,
small organizations, and small government jurisdictions. However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule would not have a significant economic impact on a
substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide the statement of the factual basis for certifying
that a rule would not have a significant economic impact on a
substantial number of small entities. We have examined this proposed
rule's potential effects on small entities as required by the
Regulatory Flexibility Act and determined that this action would not
have a significant economic impact on a substantial number of small
entities.
In the first 6 years (FY 2010 through FY 2015) since the eagle
permit regulations at 50 CFR 22.26 and 50 CFR 22.27 were published, the
Service has received 626 permit applications for the two permit types
and issued approximately 490 permits, including renewals. Of those, we
estimate 410 permits were issued to small businesses. Over those 6
years, the annual number of applications received (including for
renewals) increased from 50 per year in FY 2010 to 140 per year in FY
2015.
We received a total of 34 programmatic permit applications and have
issued one programmatic permit thus far. We anticipate a greater volume
of applications for permits for long-term activities in the future,
although we expect the number to increase gradually for a period of
years and perhaps eventually reach an average of 30 or fewer per year.
Utility-scale wind energy facilities and electric transmission
companies are likely to be the most frequent long-term permit
applicants, because of the known risk to eagles from collisions with
wind turbines and electric power lines. Although smaller wind energy
facilities could seek permits, we anticipate that most of the
applications for wind energy
[[Page 27968]]
facilities will be for those that are commercial or utility scale.
Although businesses in other business sectors, such as railroads,
timber companies, and pipeline companies could also apply for permits,
we anticipate the number of permit applicants in such sectors to be
very small, on the order of one or two per year for each such sector.
Thus, we anticipate that the proposed rule would not have a significant
economic impact on a substantial number of small entities.
Under these proposed regulations, an applicant for a long-term
permit would pay a $15,000 Administration Fee (an increase from the
current fee of $2,600) every 5 years to cover the cost of the 5-year
permit evaluations. The initial permit application fee of $36,000 for a
long-term permit will remain the same. We do not believe the increased
Administration Fee would impose a significant economic impact on these
small entities.
A commercial applicant for an incidental take permit of a duration
less than 5 years would pay a $2,500 permit application processing fee,
an increase from the current fee of $1,000 for programmatic permits and
$500 for standard permits. The amendment fee for those permits would
increase from $150 to $500. A commercial applicant for a nest take
permit for a single nest would pay a $2,500 permit application
processing fee, an increase from the current fee of $500 for standard
permits. The amendment fee for those permits would also increase from
$150 to $500. An applicant for a nest take permit for multiple nests
would pay a $5,000 permit application processing fee, an increase from
the current fee of $1,000 for programmatic permits. None of these fee
increases are significant for commercial entities and all are necessary
to recoup as much of the Service's costs in providing these services to
these entities. The amendment fee for those permits would remain the
same as the current programmatic nest take amendment fee ($500).
Based on trends in the numbers of permit applications under the
current regulations, we project there would be fewer than 100 small
entities subject to the proposed fee increases annually, including
renewal and amendments, which will not result in a significant impact
on a substantial number of small entities. We request comments and
information from industry and any other interested parties regarding
probable economic impacts of this proposal.
Additional practicable mitigation measures that may be required
under the terms and conditions of permits issued with a term of longer
than 5 years could result in some additional costs to the permittee,
but those costs should be offset by the reduction in uncertainty for
the permittee achieved by securing a 30-year permit rather than a 5-
year permit. Consequently, we certify that because this proposed rule
would not have a significant economic effect on a substantial number of
small entities, an initial regulatory flexibility analysis is not
required.
We are also proposing minor revisions to the eagle nest take permit
regulations at 50 CFR 22.27, but none of the proposed changes are
expected to have a significant economic effect on a substantial number
of small entities.
This proposed rule is not a major rule under SBREFA (5 U.S.C.
804(2)) because:
a. This proposed rule would not have an annual effect on the
economy of $100 million or more.
b. This proposed rule would not cause a major increase in costs or
prices for consumers; individual industries; Federal, State, or local
government agencies; or geographic regions.
c. This proposed rule would not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
a. This proposed rule would not ``significantly or uniquely''
affect small governments. A small government agency plan is not
required. The proposed regulations changes would not affect small
government activities in any significant way.
b. This proposed rule would not produce a Federal mandate of $100
million or greater in any year. It is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.
Takings
In accordance with E.O. 12630, the rule would not have significant
takings implications. This proposed rule does not contain any
provisions that could constitute taking of private property. Therefore,
a takings implication assessment is not required.
Federalism
This proposed rule would not have sufficient Federalism effects to
warrant preparation of a Federalism assessment under E.O. 13132. It
would not interfere with the States' abilities to manage themselves or
their funds. No significant economic impacts are expected to result
from the proposed regulations change.
Civil Justice Reform
In accordance with E.O. 12988, the Office of the Solicitor has
determined that the proposed rule would not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Order.
Paperwork Reduction Act of 1995 (PRA)
This proposed rule contains a collection of information that we
have submitted to the Office of Management and Budget (OMB) for review
and approval under the PRA (44 U.S.C. 3501 et seq.). After publication
of the ``Duration Rule'' in 2013, we included the burden associated
with eagle permits in our renewal of OMB Control No. 1018-0022. OMB has
reviewed and approved the information collection requirements for
applications, annual reports, and nonhour cost burden associated with
eagle permits and assigned OMB Control Number 1018-0022, which expires
May 31, 2017. The approval includes long-term (more than 5 years) eagle
take permits.
This proposed rule does not revise the number of responses or total
annual burden hours associated with eagle permits. However, we believe
the approved estimates for the number of annual responses are high. We
will adjust our estimates when we renew OMB Control No. 1018-0022.
This proposed rule would:
(1) Establish an administration fee of $15,000 that each permittee
will pay every 5 years to cover the cost of the 5-year permit
evaluations. We will not collect this fee until the permittee has had a
permit for at least 5 years. We expect that we will not impose this fee
until at least 2022.
(2) Change the application fees associated with some permits.
(3) Require annual reports. This requirement is approved under OMB
Control Number 1018-0022. There are no fees associated with annual
reports.
(4) Establish a new reporting requirement and a new administration
fee for permits of over 5 years.
We are seeking OMB approval for changes in burden and nonhour cost
burden associated with the proposed rule. We are requesting that OMB
assign a new control number for the revised burden. When we publish the
final rule, we will incorporate the new nonhour cost burden into OMB
Control Number 1018-0022 and discontinue the new number. An agency may
not conduct or sponsor and you are not required to respond to a
collection of information
[[Page 27969]]
unless it displays a currently valid OMB control number.
Title: Eagle Take Permits and Fees, 50 CFR 22.
OMB Control Number: 1018-XXXX. This is a new collection.
Service Form Number(s): 3-200-71, 3-200-72.
Type of Request: New collection.
Description of Respondents: Individuals and businesses. We expect
that the majority of applicants seeking long-term permits will be in
the energy production and electrical distribution business.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
Table 1--Proposed Information Collection Requirements
--------------------------------------------------------------------------------------------------------------------------------------------------------
Difference
Existing approval (1018- Total approved Total proposed between 1018-
Activity/ requirement 0022) Current fee Proposed fee nonhour burden nonhour burden 0022 and
cost cost proposed
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGE IN NONHOUR COST BURDEN
--------------------------------------------------------------------------------------------------------------------------------------------------------
3-200-71--application, Eagle No. of responses and $500 $500--Homeowner........ $72,500 $12,500 +$240,000
Incidental Take--(not programmatic annual burden hours 500 $2,500--Commercial..... 300,000
or long-term) \1\. approved under OMB
Control No. 1018-0022.
This proposed rule
revises fees and
nonhour costs.
3-200-72--application, Eagle Nest No. of responses and 500 $500--Homeowner........ 15,000 55,000 +40,000
Take--single nest (formerly annual burden hours $2,500--Commercial.....
``standard'') \2\. approved under OMB
Control No. 1018-0022.
This proposed rule
revises fees and
nonhour costs.
3-200-72--application, Eagle Nest No. of responses and 0 $500--Homeowner........ 0 20,500 +20,500
Take--multiple nests (formerly annual burden hours $2,500--Commercial.....
``programmatic'') \3\. approved under OMB
Control No. 1018-0022.
This proposed rule
revises fees and
nonhour costs.
3-200-71 Eagle Incidental Take No. of responses and 150 $150--Homeowner........ \5\ 3,000 9,300 6,300
Amendment--less than 5 years annual burden hours $500--Commercial.......
(formerly ``standard'' \4\. approved under OMB
Control No. 1018-0022.
This proposed rule
revises fees and
nonhour costs.
3-200-72 Eagle Nest Take Amendment-- No. of responses and 150 $150--Homeowner........ \6\ 750 2,150 +1,400
``Single nest'' (formerly annual burden hours $500--Commercial.......
``standard'') \4\. approved under OMB
Control No. 1018-0022.
This proposed rule
revises fees and
nonhour costs.
3-200-71 Amendment--Eagle Incidental No. of responses and 1,000 No Fee \7\............. 2,000 .............. -2,000
Take Programmatic. annual burden hours
approved under OMB
Control No. 1018-0022.
This proposed rule
revises fees and
nonhour costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
NO CHANGE OR FEES--BURDEN INCLUDED IN EXISTING APPROVAL OF 1018-0022
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 22.26(c)(3)--Annual Report \8\ No. of responses and .............. ....................... .............. .............. ..............
annual burden hours
approved under OMB
Control No. 1018-0022.
This proposed rule
revises fees and
nonhour costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 27970]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated Difference
number of number of Total approved Total proposed between 1018-
Activity/requirement annual annual burden Current fee Proposed fee nonhour burden nonhour burden 0022 and
responses hours cost cost proposed
--------------------------------------------------------------------------------------------------------------------------------------------------------
NEW REPORTING REQUIREMENT AND NEW ADMINISTRATION FEE
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 22.26(c)(7)(ii)--Permit reviews. 4 32 0 $15,000 0 $60,000 +$60,000
At no more than 5 years from the date a
permit that exceeds 5 years is issued,
and every 5 years thereafter, the
permittee compiles and submits to the
Service, eagle fatality data or other
pertinent information that is site-
specific for the project. \9\..........
---------------------------------------------------------------------------------------------------------------
Total............................... 4 32 .............. .............. 93,250 459,450 366,200
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Approved under 1018-0022--145 annual responses (25 from individuals/households (homeowners) and 120 from the private sector (commercial) totaling
2,320 annual burden hours) (400 burden hours for individuals and 1,920 annual burden hours for private sector); $500 permit fee for both individuals
and private sector for a total nonhour burden cost of $72,500. This proposed rule changes the application fees: Homeowner fee would remain $500;
private sector fee (commercial) would increase to $2,500. Total for 25 homeowners--$12,500; Total for 125 commercial applicants--$300,000).
\2\ Approved under 1018-0022--30 responses (10 from Individuals/homeowners and 20 from private sector (commercial) totaling 480 burden hours (160 hours
(individuals) and 320 hours (private sector). Homeowner fee would remain $500; private sector fee (commercial) would increase to $2,500. Total for 10
homeowners--$5,000.; Total for 20 commercial applicants--$50.000).
\3\ Approved under 1018-0022--9 responses (1 from Individuals/homeowners and 8 from private sector (commercial) totaling 360 burden hours (40 hrs
(individuals) and 320 hrs (private sector). The approved non-hour burden cost is $0; however, that is an error. The permit application processing fee
for programmatic nest take permits under the current regulations is $1,000, so the total current burden cost should be $9,000 (9 responses). Under the
proposed rule, the homeowner fee would increase to $500; private sector fee (commercial) would increase to $2,500. Total for 1 homeowner--$500; total
for 8 commercial--$20,000.
\4\ The amendments for standard non-purposeful eagle take permits and standard eagle nest take permits are combined in the approved collection for a
total of 25. Here they are split into 20 eagle incidental take permit amendments and 5 eagle nest take permit amendments.
\5\ Two Homeowner, Eighteen Commercial.
\6\ One Homeowner; Four Commercial.
\7\ The amendment fee for long-term programmatic permits is approved under 1018-0022. Under this proposed rule, it is being removed because the costs
associated with it would be included under the proposed Administration Fee.
\8\ Approved under 1018-0022 (3-202-15)--540 responses (20 from individuals/households and 520 from private sector) totaling 16,200 annual burden hours;
nonhour cost burden $0. There are no fees for annual reports.
\9\ This is a new reporting requirement as well as a new Administration Fee. We will not receive any reports or assess the Administration Fee until
after a permittee has had a permit for 5 years (earliest probably 2022). We estimate that we will receive 19 responses every 5 years, annualized over
the 3-year period of OMB approval results in 4 responses annually. We estimate that each response will take 8 hours, for a total of 32 annual burden
hours. We will assess a $15,000 administration fee for each permittee for a total of $60,000. Note: this burden reflects what will be imposed in 5
years. Each 5 years thereafter, the burden and nonhour costs will increase because of the number of permittees holding 5-year or longer term permits.
Estimated Total Nonhour Burden Cost: $459,450 for administration
fees and application fees associated with changes in this proposed
rule. This does not include the nonhour cost burden for eagle/eagle
nest take permits approved under OMB Control No. 1018-0022. States,
local governments, and tribal governments are exempt from paying these
fees.
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary,
including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
respondents.
If you wish to comment on the information collection requirements
of this proposed rule, send your comments directly to OMB (see detailed
instructions under the heading Comments on the Information Collection
Aspects of this Proposal in the ADDRESSES section). Please identify
your comments with 1018-AY30. Provide a copy of your comments to the
Service Information Collection Clearance Officer (see detailed
instructions under the heading Comments on the Information Collection
Aspects of this Proposal in the ADDRESSES section).
National Environmental Policy Act
We have prepared a draft programmatic environmental impact
statement (DPEIS) under the requirements of the NEPA of 1969 (42 U.S.C.
4321 et seq.). The DPEIS analyzes the effects of this proposed rule and
our proposed associated management objectives, as well as alternatives
to these proposed rule revisions and proposed management objectives.
The DPEIS is available online at www.regulations.gov by clicking on the
link entitled ``Non-Eagle Management and Regulations DPEIS'' and is
also available on the Service's Web site at: http://www.fws.gov/birds/management/managed-species/eagle-management.php.
In addition, the Environmental Protection Agency (EPA) is
publishing a notice of availability in the Federal
[[Page 27971]]
Register announcing the DPEIS, as required under section 309 of the
Clean Air Act (42 U.S.C. 7401 et seq.). All EISs are filed with EPA,
which publishes a notice of availability on Fridays in the Federal
Register. For more information, see http://www.epa.gov/compliance/nepa/eisdata.html. The publication date of EPA's notice of availability is
the official start of the public comment period for the draft EIS.
Under the Clean Air Act, EPA also must subsequently announce the final
PEIS via the Federal Register.
The EPA is charged under section 309 of the Clean Air Act to review
all Federal agencies' environmental impact statements (EISs) and to
comment on the adequacy and the acceptability of the environmental
impacts of proposed actions in the EISs. EPA also serves as the
repository (EIS database) for EISs prepared by Federal agencies. The
Environmental Impact Statement (EIS) Database provides information
about EISs prepared by Federal agencies, as well as EPA's comments
concerning the EISs. You may search for EPA comments on EISs, along
with EISs themselves, at https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search.
Endangered and Threatened Species
Section 7 of the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531 et seq.), requires Federal agencies to ``insure that
any action authorized, funded, or carried out . . . is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). Service policies
require assessment of impacts to certain rare, candidate, declining,
and sensitive species. Before issuance of the final regulations and
final DPEIS, the Service will comply with provisions of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter the
Act), to ensure that the rulemaking is not likely to jeopardize the
continued existence of any species designated as endangered or
threatened or modify or destroy its critical habitat and is consistent
with conservation programs for those species. Consultations under
section 7 of the Act may cause us to change proposals in this and
future supplemental proposed rulemaking documents.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we have
evaluated potential effects on federally recognized Indian tribes and
have determined that this proposed rule would not interfere with
tribes' abilities to manage themselves, their funds, or tribal lands.
In September of 2013, we sent a letter to all federally recognized
tribes inviting them to consult about possible changes to the eagle
take permit regulations. The letter notified Tribes of the Service's
intent to amend the regulations and sought feedback about their
interest in consultation on the amendment. After sending these letters
and receiving responses from several Tribes, FWS conducted webinars,
group meetings, and meetings with individual Tribes. The FWS will
continue to respond to all Tribal requests for consultation on this
effort.
Several tribes that value eagles as part of their cultural heritage
objected to the 2013 rule that extended maximum permit duration for
programmatic permits based on a concern that the regulations would not
adequately protect eagles. Those tribes may perceive further negative
effects from similar provisions proposed in this rulemaking. However,
eagles would be sufficiently protected under this proposal because only
those applicants who commit to adaptive management measures to ensure
the preservation of eagles will receive permits with terms longer than
5 years and those permits will be reviewed at 5-year intervals and
amended if necessary.
Energy Supply, Distribution, or Use (Executive Order 13211)
E.O. 13211 addresses regulations that significantly affect energy
supply, distribution, and use. E.O. 13211 requires agencies to prepare
Statements of Energy Effects when undertaking certain actions. This
rule, if finalized as proposed, would likely be used by numerous energy
generation projects seeking compliance with the Eagle Act. However, the
rule is not a significant regulatory action under E.O. 13211, and no
Statement of Energy Effects is required.
Material Incorporated by Reference
These proposed regulations incorporate by reference two appendices
of the Service's Eagle Conservation Plan Guidance, Module 1--Land-based
Wind Energy (ECPG) (USFWS, 2013). The guidance went through two periods
of public notice and comment during its development and, separately,
was twice peer-reviewed by independent third-parties. The ECPG is
available in the Service's Web site at: http://www.fws.gov/migratorybirds/pdf/management/eagleconservationplanguidance.pdf.
Proposed provisions at Sec. 22.26(d)(3)(i) would incorporate by
reference are ECPG Appendix C: Stage 2--Site-Specific Surveys and
Assessment and ECPG Appendix D: Stage 3--Predicting Eagle Fatalities.
Literature Cited
Brown, J. L., M. W. Collopy, E. J. Gott, P. W. Juergens, A. B.
Montoya, and W. G. Hunt. 2006. Wild-reared aplomado falcons survive
and recruit at higher rates than hacked falcons in a common
environment. Biological Conservation 131:453-458.
Kochert, M.N., Steenhof, K., 2012. Frequency of nest use by golden
eagles in southwestern Idaho. J. Raptor Res. 46, 239-247. http://dx.doi.org/10.3356/JRR-12-00001.1.
McIntyre, C. L., D. C. Douglas, and M. W. Collopy. 2008. Movements
of golden eagles (Aquila chrysaetos) from interior Alaska during
their first year of independence. The Auk 125:214-224.
McIntyre, C. 2012. Quantifying sources of mortality and winter
ranges of golden eagles from interior Alaska using banding and
satellite tracking. Journal of Raptor Research 46:129-134.
Mojica, E. K., J. M. Meyers, B. A. Millsap, and K. L. Haley. 2008.
Migration of Florida sub-adult bald eagles. The Wilson Journal of
Ornithology 120:304-310.
U.S. Fish and Wildlife Service. 2007. National Bald Eagle Management
Guidelines. Division of Migratory Bird Management. http://www.fws.gov/birds/management/managed-species/eagle-management.php.
U.S. Fish and Wildlife Service. 2009. Final Environmental
Assessment: Proposal to Permit Take as Provided Under the Bald and
Golden Eagle Protection Act. Division of Migratory Bird Management.
http://www.fws.gov/migratorybirds/pdf/management/FEAEagleTakePermit.pdf.
U.S. Fish and Wildlife Service. 2013. Eagle conservation plan
guidance. Module 1--land-based wind energy. Version 2. Division of
Migratory Bird Management. https://www.fws.gov/migratorybirds/pdf/management/eagleconservationplanguidance.pdf.
U.S. Fish and Wildlife Service. 2016. Bald and Golden Eagles:
Status, trends, and estimation of sustainable take rates in the
United States. Division of Migratory Bird Management, Washington DC,
USA.
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
[[Page 27972]]
50 CFR Part 22
Birds, Exports, Imports, Migratory birds, Reporting and
recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
For the reasons described in the preamble, we propose to amend
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 13--GENERAL PERMIT PROCEDURES
0
1. The authority for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1374(g), 1382,
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C.
1202; 31 U.S.C. 9701.
0
2. In Sec. 13.11, revise the entries for ``Bald and Golden Eagle
Protection Act'' in the table in paragraph (d)(4) to read as follows:
Sec. 13.11 Application procedures.
* * * * *
(d) * * *
(4) * * *
----------------------------------------------------------------------------------------------------------------
Type of permit CFR citation Permit application fee Amendment fee
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Bald and Golden Eagle Protection Act
----------------------------------------------------------------------------------------------------------------
Eagle Scientific Collecting............ 50 CFR part 22............ 100........................ 50
Eagle Exhibition....................... 50 CFR part 22............ 75.........................
Eagle Falconry......................... 50 CFR part 22............ 100........................
Eagle--Native American Religion........ 50 CFR part 22............ No fee.....................
Eagle Take permits--Depredation and 50 CFR part 22............ 100........................
Protection of Health and Safety.
Golden Eagle Nest Take................. 50 CFR part 22............ 100........................ 50
Eagle Transport--Scientific or 50 CFR part 22............ 75.........................
Exhibition.
Eagle Transport--Native American 50 CFR part 22............ No fee.....................
Religious Purposes.
Eagle Incidental Take--Up to 5 years... 50 CFR part 22............ 2,500...................... 500
Eagle Incidental Take--Homeowner....... 50 CFR part 22............ 500........................ 150
Eagle Incidental Take--5-30 years...... 50 CFR part 22............ 36,000.....................
Eagle Incidental Take--Transfer of a 50 CFR part 22............ 1,000......................
permit.
Eagle Nest Take--Single nest........... 50 CFR part 22............ 2,500...................... 500
Eagle Nest Take--Multiple nests........ 50 CFR part 22............ 5,000...................... 500
Eagle Nest Take--Homeowner............. 50 CFR part 22............ 500........................ 150
Eagle Take--Exempted under ESA......... 50 CFR part 22............ No fee.....................
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
PART 22--EAGLE PERMITS
0
3. The authority citation for part 22 is revised to read as follows:
Authority: 16 U.S.C. 668-668d; 703-712; 1531-1544.
0
4. Amend Sec. 22.3 by:
0
a. Removing the definition of ``Advanced conservation practices'';
0
b. Adding a definition for ``Alternate nest'';
0
c. Removing the definition of ``Area nesting population'';
0
d. Adding definitions for ``Compatible with the preservation of the
bald eagle or the golden eagle'' and ``Eagle management unit'';
0
d. Revising the definition of ``Eagle nest'';
0
e. Removing the definition of ``Inactive nest'';
0
f. Adding definitions for ``In-use nest'' and ``Local area
population'';
0
g. Removing the definition of ``Maximum degree achievable'';
0
h. Adding a definition for ``Nesting territory'';
0
i. Revising the definition of ``Practicable''; and
0
j. Removing the definitions of ``Programmatic permit'', ``Programmatic
take'', and ``Territory''.
The additions and revisions read as follows:
Sec. 22.3 What definitions do you need to know?
* * * * *
Alternate nest means one of potentially several nests within a
nesting territory that is not a used nest at the current time. When
there is no used nest, all nests in the territory are alternate nests.
* * * * *
Compatible with the preservation of the bald eagle or the golden
eagle means consistent with the goals of maintaining stable or
increasing breeding populations in all eagle management units and
persistence of local populations throughout the geographic range of
both species.
* * * * *
Eagle management unit (EMU) means the geographic scale over which
permitted take is regulated to meet the management objective.
Eagle nest means any assemblage of materials built, maintained, or
used by bald eagles or golden eagles for the purpose of reproduction.
* * * * *
In-use nest means a bald or golden eagle nest characterized by the
presence of one or more eggs, dependent young, or adult eagles on the
nest in the past 10 days during the breeding season.
* * * * *
Local area population (LAP) means the bald or golden eagle
population within the area of a human activity or project bounded by
the natal dispersal distance for the respective species. The LAP is
estimated using the average eagle density of the EMU or EMUs where the
activity or project is located.
* * * * *
Nesting territory means the area that contains one or more eagle
nests within the home range of a mated pair of eagles, regardless of
whether such nests were built by the current resident pair.
* * * * *
Practicable means available and capable of being done after taking
into consideration existing technology, logistics, and cost in light of
a mitigation measure's beneficial value to
[[Page 27973]]
eagles and the activity's overall purpose, scope, and scale.
* * * * *
Sec. 22.4 [Amended]
0
5. Amend Sec. 22.4(a) by removing ``and 1018-0136'' in the first
sentence.
0
6. Amend Sec. 22.11 by revising paragraph (c) to read as follows:
Sec. 22.11 What is the relationship to other permit requirements?
* * * * *
(c) A permit under this part only authorizes take, possession, and/
or transport under the Bald and Golden Eagle Protection Act and does
not provide authorization under the Migratory Bird Treaty Act or the
Endangered Species Act for the take, possession, and/or transport of
migratory birds or endangered or threatened species other than bald or
golden eagles.
* * * * *
0
7. Amend Sec. 22.25 by:
0
a. Revising the first sentence of the introductory text;
0
b. Removing the semicolons at the ends of paragraphs (a)(1) and (2) and
adding periods in their place;
0
c. Revising paragraph (a)(4);
0
d. Removing the semicolon at the end of paragraph (a)(5) and adding a
period in its place;
0
e. Removing paragraph (a)(6) and redesignating paragraphs (a)(7)
through (9) as paragraphs (a)(6) through (8);
0
f. Removing the semicolon at the end of newly redesignated paragraph
(a)(6) and adding a period in its place and removing ``; and'' at the
end of newly redesignated paragraph (a)(7) and adding a period in its
place;
0
g. Revising paragraphs (b)(1) and (4);
0
h. Removing paragraphs (c)(3) and (6) and redesignating paragraphs
(c)(4) and (5) as paragraphs (c)(3) and (4); and
0
i. Revising newly designated paragraphs (c)(3) and (4).
The revisions read as follows:
Sec. 22.25 What are the requirements concerning permits to take
golden eagle nests?
The Director may, upon receipt of an application and in accordance
with the issuance criteria of this section, issue a permit authorizing
any person to take alternate golden eagle nests during a resource
development or recovery operation if the taking is compatible with the
preservation of golden eagles. * * *
(a) * * *
(4) Nest and territory occupancy data. (i) For each golden eagle
nest proposed to be taken, the applicant must identify on an
appropriately scaled map or plat the exact location of each golden
eagle nest in the nesting territory. The map or plat must contain
enough details so that each golden eagle nest can be readily located by
the Service.
(ii) A description of the monitoring that was done to verify that
eagles are not attending the nest for breeding purposes, and any
additional available documentation used in identifying which nests
within the territory were in-use nests in current and past breeding
seasons.
* * * * *
(b) * * *
(1) Only alternate golden eagle nests may be taken;
* * * * *
(4) The permittee must comply with any mitigation and monitoring
measures determined by the Director to be practicable and compatible
with the resource development or recovery operation; and
* * * * *
(c) * * *
(3) Whether suitable golden eagle nesting and foraging habitat
unaffected by the resource development or recovery operation is
available to accommodate any golden eagles displaced by the resource
development or recovery operation; and
(4) Whether practicable mitigation measures compatible with the
resource development or recovery operation are available to encourage
golden eagles to reoccupy the resource development or recovery site.
Mitigation measures may include, but are not limited to, reclaiming
disturbed land to enhance golden eagle nesting and foraging habitat,
relocating in suitable habitat any golden eagle nest taken, or
establishing one or more nest sites.
* * * * *
0
8. Amend Sec. 22.26 by:
0
a. Revising paragraphs (a) and (c)(1) through (3);
0
b. Redesignating paragraphs (c)(7) through (10) as (c)(8) through (11)
and adding new paragraph (c)(7);
0
c. Revising paragraph (d)(2) and adding paragraph (d)(3);
0
d. Revising paragraph (e)(1);
0
e. Redesignating paragraphs (e)(3), (4), and (5) as paragraphs (e)(5),
(7), and (9), adding new paragraphs (e)(3), (4), (6), and (8);
0
f. Revising newly redesignated paragraphs (e)(5) and (e)(7)(i) through
(iv);
0
g. Removing newly redesignated paragraph (e)(7)(v);
0
h. Revising paragraphs (f)(2) through (6);
0
i. Adding paragraphs (f)(7) and (8); and
0
j. Revising paragraph (h).
The revisions and additions read as follows:
Sec. 22.26 Permits for eagle take that is associated with, but not
the purpose of, an activity.
(a) Purpose and scope. This permit authorizes take of bald eagles
and golden eagles where the take is compatible with the preservation of
the bald eagle and the golden eagle; is necessary to protect an
interest in a particular locality; is associated with, but not the
purpose of, the activity; and cannot practicably be avoided.
* * * * *
(c) * * *
(1) You must comply with all avoidance, minimization, or other
mitigation measures specified in the terms of your permit to mitigate
for the detrimental effects on eagles, including indirect effects, of
the permitted take.
(i) Compensatory mitigation scaled to project impacts will be
required for any permit authorizing take that would exceed the
authorized take limits. Compensatory mitigation for this purpose must
ensure the preservation of the affected eagle species by reducing
another ongoing form of mortality by an amount equal to or greater than
the unavoidable mortality, or increasing carrying capacity to allow the
eagle population to grow by an equal or greater amount.
(ii) Compensatory mitigation may also be required in the following
circumstances:
(A) When cumulative authorized take, including the proposed take,
would exceed 5 percent of the local area population; or
(B) When available data indicate that cumulative unauthorized
mortality would exceed 10 percent of the local area population.
(iii) All required compensatory mitigation must:
(A) Be determined based on application of all practicable avoidance
and minimization measures;
(B) Be sited within the same eagle management unit where the
permitted take will occur unless the Service has reliable data showing
that the population affected by the take includes individuals that are
reasonably likely to use another EMU during part of their seasonal
migration;
(C) Use the best available science in formulating and monitoring
the long-term effectiveness of mitigation measures;
(D) Be additional to any existing or foreseeably expected
conservation and mitigation efforts planned for the future;
(E) Be durable and, at a minimum, maintain its intended purpose for
as
[[Page 27974]]
long as impacts of the authorized take persist; and
(F) Account for uncertainty and risk of failure with regard to the
amount of compensatory mitigation required.
(iv) Compensatory mitigation may include conservation banking, in-
lieu fee programs, and other third-party mitigation projects or
arrangements. Permittee-responsible mitigation may be approved provided
the permittee submits verifiable documentation sufficient to
demonstrate that the standards set forth in paragraph (c)(1)(iii) of
this section have been met and the alternative means of compensatory
mitigation will offset the permitted take to the degree that is
compatible with the preservation of eagles.
(2) Monitoring. (i) You may be required to monitor eagle use of
important eagle-use areas where eagles are likely to be affected by
your activities for up to 3 years after completion of the activity or
as set forth in a separate management plan, as specified on your
permit. For ongoing activities and enduring site features that will
likely continue to result in take, periodic monitoring may be required
for as long as the data are needed to assess impacts to eagles.
(ii) The frequency and duration of required monitoring will depend
on the form and magnitude of the anticipated take and the objectives of
associated avoidance, minimization, or other mitigation measures, not
to exceed what is reasonable to meet the primary purpose of the
monitoring, which is to provide data needed by the Service regarding
the impacts of the activity on eagles for purposes of adaptive
management. You must coordinate with the Service to develop project-
specific monitoring protocols. If the Service has officially issued or
endorsed, through rulemaking procedures, monitoring protocols for the
activity that will take eagles, you must follow them, unless the
Service waives this requirement.
(3) You must submit an annual report summarizing the information
you obtained through monitoring to the Service every year that your
permit is valid and for up to 3 years after completion of the activity
or termination of the permit, as specified in your permit. The Service
will make eagle mortality information from annual reports available to
the public.
* * * * *
(7) Additional conditions for permits with durations longer than 5
years--(i) Adaptive management. The permit may specify conditions under
which modifications to avoidance, minimization, or compensatory
mitigation measures or monitoring protocols may be required.
(ii) Permit reviews. At no more than 5 years from the date a permit
that exceeds 5 years is issued, and every 5 years thereafter, the
permittee will compile, and submit to the Service, eagle fatality data
or other pertinent information that is site-specific for the project,
as required by the permit. The Service will review the information to
determine:
(A) Whether adaptive management conditions specified in the permit
pursuant to paragraph (c)(7)(i) of this section have been reached that
would indicate that modifications to avoidance, minimization, or other
mitigation measures or monitoring protocols as described in the permit
should be implemented; and
(B) Whether, after negotiation with the permittee, to make
additional changes to a permit, including any of the following:
(1) Update fatality predictions and authorized take levels for the
facility.
(2) Add, remove, or adjust avoidance and minimization measures.
Such measures may be required if:
(i) Authorized take levels are, or likely will be, exceeded;
(ii) Additional or modified, appropriate and practicable avoidance
and/or minimization measures shown to be effective in reducing risk to
eagles become available and are feasible to implement at reasonable
cost to the permittee; or
(iii) Avoidance and/or minimization measures in place are shown to
be ineffective or unnecessary.
(3) Update monitoring requirements.
(4) Suspend or revoke the permit in accordance with part 13 of this
subchapter B.
(C) In consultation with the permittee, compensatory mitigation for
future years for the project, taking into account the observed levels
of take based on approved protocols for monitoring, searching, and
estimating total take, and also accounting for changes in operations or
permit conditions pursuant to paragraphs (c)(7)(ii)(A) and (B) of this
section.
(iii) Fees. For permits with terms longer than 5 years, an
Administration Fee of $15,000 will be assessed every 5 years for permit
review.
* * * * *
(d) * * *
(2) Your application must consist of a completed application Form
3-200-71 and all required attachments. Send applications to the
Regional Director of the Region in which the take would occur--
Attention: Migratory Bird Permit Office. You can find the current
addresses for the Regional Directors in Sec. 2.2 of subchapter A of
this chapter.
(3) Applicants must coordinate with the Service to develop project-
specific monitoring and survey protocols, take probability models, and
any other applicable data quality standards, and include in your
application all the data thereby obtained.
(i) If the Service has officially issued or endorsed, through
rulemaking procedures, survey, modeling, or other data quality
standards for the activity that will take eagles, you must follow them
and include in your application all the data thereby obtained, unless
the Service waives this requirement for your application. Applicants
seeking an eagle take permit for a wind-energy generation facility must
follow the data quality standards in Appendices C, and D of the Eagle
Conservation Plan Guidance, Module 1--Land-based Wind Energy, available
at https://www.fws.gov/migratorybirds/pdf/management/eagleconservationplanguidance.pdf, which are incorporated by reference
into this paragraph, and include in your application all the data
thereby obtained, unless the Service waives this requirement for your
application.
(ii) Application of the Service-endorsed data quality standards of
paragraph (d)(3)(i) of this section may not be needed if:
(A) The Service has data of sufficient quality to predict the
likely risk to eagles;
(B) Expediting the permit process will benefit eagles; or
(C) The Service determines the risk to eagles from the activity is
low enough relative to the status of the eagle population based on:
(1) Physiographic and biological factors of the project site; or
(2) The project design (i.e., use of proven technology,
micrositing, etc.).
(e) * * *
(1) Whether take is likely to occur based on the magnitude and
nature of the impacts of the activity.
* * * * *
(3) Whether the cumulative authorized take, including the proposed
take, would exceed 5 percent of the local area population.
(4) Any available data indicating that unauthorized take may exceed
10 percent of the local area population.
(5) Whether the applicant has proposed all avoidance and
minimization measures to reduce the take to the maximum degree
practicable relative to the magnitude of the impacts to eagles.
[[Page 27975]]
(6) Whether the applicant has proposed all appropriate and
practicable compensatory mitigation measures to compensate for
remaining unavoidable impacts after all appropriate and practicable
avoidance and minimization measures have been applied.
(7) * * *
(i) Safety emergencies;
(ii) Increased need for traditionally practiced Native American
tribal religious use that requires eagles be taken from the wild;
(iii) Non-emergency activities necessary to ensure public health
and safety; and
(iv) Other interests.
(8) For projects that are already operational and have taken eagles
without a permit, whether such past unpermitted eagle take has been
resolved or is in the process of resolution with the Office of Law
Enforcement through settlement or other appropriate means.
(f) * * *
(2) The take will not result in cumulative authorized take that
exceeds 5 percent of the local area population, or the Service can
determine that permitting take over 5 percent of that local area
population is compatible with the preservation of the bald eagle or the
golden eagle.
(3) The taking is necessary to protect a legitimate interest in a
particular locality.
(4) The taking is associated with, but not the purpose of, the
activity.
(5) The applicant has applied all appropriate and practicable
avoidance and minimization measures to reduce impacts to eagles.
(6) The applicant has applied all appropriate and practicable
compensatory mitigation measures, when required, pursuant to paragraph
(c) of this section, to compensate for remaining unavoidable impacts
after all appropriate and practicable avoidance and minimization
measures have been applied.
(7) Issuance of the permit will not preclude issuance of another
permit necessary to protect an interest of higher priority as set forth
in paragraph (e)(7) of this section.
(8) Issuance of the permit will not interfere with an ongoing civil
or criminal action concerning unpermitted past eagle take at the
project.
* * * * *
(h) Permit duration. The duration of each permit issued under this
section will be designated on its face and will be based on the
duration of the proposed activities, the period of time for which take
will occur, the level of impacts to eagles, and the nature and extent
of mitigation measures incorporated into the terms and conditions of
the permit. A permit for incidental take will not exceed 30 years.
* * * * *
0
9. Amend Sec. 22.27 by:
0
a. Revising paragraphs (a)(1)(i) through (iv), (a)(3), and (b)(1), (2),
and (7);
0
b. Redesignating paragraphs (b)(8) through (10) as paragraphs (b)(9)
through (11) and adding a new paragraph (b)(8); and
0
c. Revising paragraphs (e)(1), (e)(2) introductory text, (e)(2)(ii) and
(iii), and (e)(4) through (6).
The revisions and addition read as follows:
Sec. 22.27 Removal of eagle nests.
(a) * * *
(1) * * *
(i) An in-use or alternate nest where necessary to alleviate an
existing safety emergency, or to prevent a rapidly developing safety
emergency that is otherwise likely to result in bodily harm to humans
or eagles while the nest is still in use by eagles for breeding
purposes;
(ii) An alternate nest when the removal is necessary to ensure
public health and safety;
(iii) An alternate nest, or an in-use nest prior to egg-laying,
that is built on a human-engineered structure and creates, or is likely
to create, a functional hazard that renders the structure inoperable
for its intended use; or
(iv) An alternate nest, provided the take is necessary to protect
an interest in a particular locality and the activity necessitating the
take or the mitigation for the take will, with reasonable certainty,
provide a net benefit benefit to eagles.
* * * * *
(3) A permit may be issued under this section to cover multiple
nest takes over a period of up to 5 years, provided the permittee
complies with comprehensive measures developed in coordination with the
Service to minimize the need to remove nests and specified as
conditions of the permit.
* * * * *
(b) * * *
(1) The permit does not authorize take of in-use nests except:
(i) For safety emergencies as provided under paragraph (a)(1)(i) of
this section; or
(ii) Prior to egg-laying if the in-use nest is built on a human-
engineered structure and meets the provisions set forth in paragraph
(a)(1)(iii) of this section.
(2) When an in-use nest must be removed under this permit, any take
of nestlings or eggs must be conducted by a Service-approved, qualified
agent. All nestlings and viable eggs must be immediately transported to
foster/recipient nests or a rehabilitation facility permitted to care
for eagles, as directed by the Service, unless the Service waives this
requirement.
* * * * *
(7) You must comply with all avoidance, minimization, or other
mitigation measures specified in the terms of your permit to mitigate
for the detrimental effects on eagles, including indirect effects, of
the permitted take.
(8) Compensatory mitigation scaled to project impacts will be
required for any permit authorizing take that would exceed the
authorized take limits. Compensatory mitigation may also be required in
the following circumstances:
(i) When cumulative authorized take, including the proposed take,
would exceed 5 percent of the local area population;
(ii) When available data indicates that cumulative unauthorized
mortality would exceed 10 percent of the local area population;
(iii) If otherwise necessary to maintain the persistence of local
eagle populations throughout their geographic range; or
(iv) If the permitted activity does not provide a net benefit to
eagles, you must apply appropriate and practicable compensatory
mitigation measures as specified in your permit to provide a net
benefit to eagles scaled to the effects of the nest removal.
* * * * *
(e) * * *
(1) The direct and indirect effects of the take and required
mitigation, together with the cumulative effects of other permitted
take and additional factors affecting eagle populations, are compatible
with the preservation of the bald eagle or the golden eagle.
(2) For alternate nests:
* * * * *
(ii) The nest is built on a human-engineered structure and creates,
or is likely to create, a functional hazard that renders the structure
inoperable for its intended use; or
(iii) The take is necessary to protect a legitimate interest in a
particular locality, and the activity necessitating the take or the
mitigation for the take will, with reasonable certainty, provide a net
benefit to eagles.
(3) For in-use nests prior to egg-laying, the nest is built on a
human-engineered structure and creates, or is likely to create, a
functional hazard that
[[Page 27976]]
renders the structure inoperable for its intended use.
(4) For in-use nests, the take is necessary to alleviate an
existing safety emergency, or to prevent a rapidly developing safety
emergency that is otherwise likely to result in bodily harm to humans
or eagles while the nest is still in use by eagles for breeding
purposes.
(5) There is no practicable alternative to nest removal that would
protect the interest to be served.
(6) Issuing the permit will not preclude the Service from
authorizing another take necessary to protect an interest of higher
priority, according to the following prioritization order:
(i) Safety emergencies;
(ii) Increased need for traditionally practiced Native American
tribal religious use that requires eagles be taken from the wild;
(iii) Non-emergency activities necessary to ensure public health
and safety;
(iv) Resource development or recovery operations (under Sec.
22.25, for golden eagle nests only); and
(v) Other interests.
* * * * *
Dated: May 2, 2016.
Michael Bean,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-10542 Filed 5-4-16; 4:15 pm]
BILLING CODE 4333-15-P