[Federal Register Volume 81, Number 242 (Friday, December 16, 2016)]
[Rules and Regulations]
[Pages 91494-91554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29908]
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Vol. 81
Friday,
No. 242
December 16, 2016
Part VI
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; Final Rule
Federal Register / Vol. 81 , No. 242 / Friday, December 16, 2016 /
Rules and Regulations
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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: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), are
revising the regulations for eagle nonpurposeful take permits and eagle
nest take permits. Revisions include changes to permit issuance
criteria and duration, definitions, compensatory mitigation standards,
criteria for eagle nest removal permits, permit application
requirements, and fees. We intend the revisions to add clarity to the
eagle permit regulations, improve their implementation, and increase
compliance, while maintaining strong protection for eagles.
DATES: Effective January 17, 2017.
ADDRESSES: Document Availability: The Record of Decision, Final PEIS,
and supplementary information used in the development of this rule,
including the public comments received and the programmatic
environmental impact statement, may be viewed online at http://www.fws.gov/birds/management/managed-species/eagle-management.php and
also at http://www.regulations.gov at Docket No. FWS-R9-MB-2011-0094.
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 is finalizing revisions to
permit regulations for nonpurposeful (incidental) take of eagles and
take of eagle nests in part 22 of title 50 of the Code of Federal
Regulations. The revisions are intended to create a permitting
framework that we can implement more efficiently and thus encourage
greater public compliance while ensuring protection of bald and golden
eagles. Our goal is to enhance protection of eagles throughout their
ranges through implementation of mitigation measures that avoid and
minimize, and compensate for, adverse impacts from otherwise lawful
activities.
The Service is modifying the definition of the Bald and Golden
Eagle Protection Act's ``preservation standard,'' which requires that
permitted take be compatible with the preservation of eagles. We are
also removing the distinction between standard and programmatic
permits, codifying standardized mitigation requirements, and extending
the maximum permit duration for eagle incidental take permits (50 CFR
22.26). The regulations also include a number of additional revisions
to the 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 authorizes the Secretary
of the Interior to issue regulations to permit the ``taking'' of eagles
for various purposes, including the protection of ``other interests in
any particular locality'' (16 U.S.C. 668a), provided the taking is
compatible with the preservation of eagles. In 2009, the Service
promulgated regulations at 50 CFR part 22 that established two new
permit types for take of eagles and eagle nests (74 FR 46836; Sept. 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. In these
revised regulations, we refer to nonpurposeful take as incidental take,
which has the same meaning as conveyed in the 2009 regulations: Take
that is associated with but not the purpose of an activity.
The Eagle Act requires the Service to determine that any take of
eagles the Service authorizes is ``compatible with the preservation of
the bald eagle or the golden eagle'' (16 U.S.C. 668a). 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 stable or increasing breeding
populations'' (74 FR 46836, see p. 46837).
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 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 environmental assessment (EA) or
environmental impact statement (EIS) to accompany the rulemaking rather
than apply a categorical exclusion under the National Environmental
Policy Act (NEPA; 42 U.S.C. 4321-4347). The effect of the ruling was to
return the maximum programmatic permit tenure to 5 years.
The 2012 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 EA or EIS pursuant to NEPA (79 FR 35564; June 23,
2014). The Service then held five public scoping meetings between July
22 and August 7, 2014. We received a total of 536 comments during that
public comment period. Upon removal of duplicates, there were a total
of 517 unique comments. We reviewed the comments and used them to
develop proposed regulations and a draft programmatic environmental
impact statement (DPEIS), which we released on May 6, 2016, for a 60-
day public comment period (81 FR 27934). The draft PEIS and proposed
regulations are available on the Internet at: http://eagleruleprocess.org/ and at http://www.regulations.gov at Docket No.
FWS-R9-MB-2011-0094. We received 780 comments on the proposed rule and
DPEIS from federal agencies, states,
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tribes, nongovernmental organizations, industry associations,
individual companies, and members of the public. These comments were
the basis for several changes, discussed below, that we made to the
proposed action in this rule.
In accordance with NEPA requirements (40 CFR 1506.6(b)), we
announce the availability of the Record of Decision (ROD) for the
Service's final PEIS for the eagle rule revisions and management
objectives. The ROD is the final step in the NEPA process for the eagle
rule revision process, which includes revisions to the regulations
governing permits for incidental take of eagles and take of eagle
nests. The ROD describes the Service's decision; identifies the other
alternatives considered, including the environmentally preferable
alternative; explains the Service's plans for mitigation; and states
what factors, including considerations of national policy, we
considered in making the decision. The ROD and final PEIS are available
at http://www.fws.gov/birds/management/managed-species/eagle-management.php and also at http://www.regulations.gov at Docket No.
FWS-R9-MB-2011-0094.
Bald eagle populations have continued to increase throughout the
United States, which effectively increases 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 have not
provided an optimal framework for authorizing incidental take under
these circumstances, particularly for incidental take resulting from
long-term, ongoing activities. Difficulties in establishing new permit
regulations are to be expected and the Service contemplated that
changes to the permit regulations would be necessary based on
experience gained through implementing the new permit framework. One of
these challenges has been a general perception that the 2009 permitting
framework did not provide enough flexibility to issue eagle take
permits in a timely manner. Indeed, only one programmatic permit has
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 management approach established with the 2009 eagle
permit regulations and final EA (FEA), permitted take of bald eagles
has been 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 mortality or disturbance 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 compensatory 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 were 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. Additionally, the Service now
has a much better understanding of the seasonal, annual, and age-
related movement patterns of golden eagles. These data are incorporated
into the updated management framework.
Through 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
have been 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.
Encouraging more proponents of activities that incidentally take
eagles to apply for permits is a critically important means of reducing
incidental take. The intent of these regulations is not to encourage
construction and operation of projects that take eagles (an eagle
incidental take permit only authorizes take of eagles; it is not a
prerequisite or an authorization to construct and operate projects that
will result in eagles being taken). Instead, we are strongly
encouraging such projects to seek authorization for eagle take and
thereby implement conservation measures that reduce incidental take and
benefit eagles. Unpermitted activities have taken and will continue to
take eagles with or without this permit program. In fact, the Service's
recent analysis of causes of death of golden eagles shows that, 56
years after enactment of the Eagle Act, unpermitted human-caused
mortality is still the leading cause of death of golden eagles in the
United States, and risks causing
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population declines for this species. Our goal is to reduce the number
of unauthorized activities through enforcement where appropriate and by
implementing an efficient regulatory framework that encourages
proponents of activities that incidentally take eagles to seek and
obtain legal authorization.
The Service has successfully pursued enforcement actions against
project proponents that incidentally take eagles and will continue to
do so, but enforcement alone is an inefficient means to manage and
conserve eagles nationwide and is constrained by our limited law
enforcement resources. Therefore, our primary means of conserving and
protecting eagles is to ensure that our incidental take permit
regulations encourage more proponents to seek and obtain permits for
activities that otherwise would continue to take eagles without
implementing the conservation measures that are critical to eagle
conservation nationally, regionally, and locally.
Status of Eagle Populations
The Service is updating its management objectives for eagles
established by the 2009 eagle permit regulations and FEA. Management
objectives direct strategic management and monitoring actions and
ultimately determine what level of permitted eagle take we can allow.
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, which is available at http://eagleruleprocess.org, estimates population sizes, productivity, and
survival rates for both species; analyzes 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 serves as the biological basis for
the revised regulatory management framework in these regulation
revisions and the preferred alternative in the programmatic EIS (PEIS).
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://eagleruleprocess.org.
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 of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.)), 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 41,500 (20th quantile = 35,000) in 2014, updated
from 40,000 in the draft PEIS based on comments we received from the
Alaska Department of Fish and Game. However, although the golden eagle
population trend estimate based on current surveys is stable, an
estimate from a population model similar to that used for the bald
eagle suggests the population in the western United States might be
declining toward 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 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 (the number of eagles that can be removed from the population
while still achieving a stable population compared to the 2009
baseline) of golden eagles under those conditions would be 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://eagleruleprocess.org.
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.
The Service defined this preservation standard in the preamble to the
2009 regulations to mean ``consistent with the goal of stable or
increasing breeding populations.'' We are incorporating a modified
definition of that standard into the regulations. We
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now define the preservation standard to mean ``consistent with the
goals of maintaining stable or increasing breeding populations in all
eagle management units and the persistence of local populations
throughout the geographic range of each species.'' The timeframe the
Service used for modeling and assessing eagle population demographics
is 100 years (at least eight generations) for both eagle species
relative to the 2009 baseline. ``Eagle management unit'' is defined as
``a geographically bounded region within which permitted take is
regulated to meet the management goal of maintaining stable or
increasing breeding populations of bald or golden eagles.''
The eagle management objective embodied in the revised definition
of the preservation standard 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)).
During the scoping period for the PEIS, the Service sought and
received public comment on how the preservation standard should be
defined and applied. We 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 elected to retain the quantitative approach because it is
explicit, allows less room for subjective interpretation, and can be
consistently implemented throughout the country and across the types of
activities that require permits. Our 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 (16
U.S.C. 1361 et seq.).
The revised preservation standard--``consistent with the goals of
maintaining stable or increasing breeding populations in all eagle
management units and the 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, and to better align
with State and tribal interests in local eagle population management.
To meet this objective in a scientifically rigorous manner, the Service
manages eagles at two scales: (1) Eagle management units (EMUs), which
are regional populations of eagles over which the Service strives to
meet the objective of population stability or growth, relative to
population size in the baseline year of 2009, over 100 years; and (2)
local area populations, which are finer-scale areas defined by eagle
dispersal criteria that are specific to each permitted action and over
which the Service seeks to ensure take does not cause the extirpation
of either eagle species. The Service used modern scientific methods to
estimate the take rate (the proportion of the population that can be
removed annually) that can be authorized for each species of eagle in
each EMU while meeting our management objectives. These estimates are
in the form of probability distributions that account for scientific
uncertainty in both the modeling process and in the biological data
used in the models. For the liberal PEIS alternatives, the Service used
the median of model estimates for important parameters (e.g.,
population size, take rate) to calculate take limits (the number of
eagles that can be removed annually at the EMU- and, separately, the
LAP-scale and still meet the management objective); this approach
shares the risk posed by uncertainty equally between being under-
protective of eagles and being unnecessarily over-restrictive on
activities that might take eagles. For the conservative PEIS
alternatives, the Service used values that allocated risk in an 80:20
ratio in favor of being over-protective of eagles. By defining the
eagle preservation standard in this way, and analyzing the effects of
take within those take limits in the PEIS, the analytical burden for
each permit decision is greatly reduced, allowing the Service to make
informed permitting decisions at an expedited rate.
The regulatory revisions in this final rule 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 PEIS.
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, and
considering the updated demographic data compiled by the Service and
presented in the Status Report, we have determined there is
considerable capacity for sustainable take of bald eagles. Under the
management approach we are adopting, the sustainable annual take limit
(without compensatory mitigation) would be 3,742 bald eagles in the
coterminous United States. Initially, the Service proposed to set
unmitigated take limits of only 500 bald eagles annually in Alaska
because our population data there are less rigorous than elsewhere in
the United States. However, in response to compelling comments from the
Alaska Department of Fish and Game (see Response to Public Comments,
below, for more details), we have revised the sustainable take rate for
Alaska to 3,776, based on the sustainable take rate of 6% under the
preferred alternative in the PEIS. The Service does not expect
authorized take under the revised sustainable take limits to approach
the new take limit in Alaska or nationwide. In fact, there is nothing
in the revised regulations that will increase take, though we hope more
ongoing unpermitted take will be captured under permits in the future.
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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 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, requiring that all authorized take be
offset by compensatory mitigation.
We are 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 are used to 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 in spring 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
better aligns with seasonal movement patterns of both species and
better addresses geographic patterns of risk given those seasonal
movement patterns.
We are aware of preliminary data on golden eagles tracked with
satellite telemetry that indicate a flyway configuration for EMUs may
not capture movement patterns of resident golden eagles as well as
finer-scale landscape mapping systems. The results of that study were
intended to be completed and included in the Status Report, but the
work was not completed in time. In its place the Service conducted an
analysis of banding data, and those results are reported in the Status
Report. Neither analysis is ideal because the distribution of deployed
bands and satellite tags has not been random. While the banding data
have the advantage of much larger sample sizes, the satellite-tag data
have the advantage of much more precise tracking of a smaller number of
individuals. The Service will consider the information from the
satellite telemetry study in future re-assessments of eagle status and
management objectives.
In the approach we are now adopting, we will use the flyways as the
EMUs for both species--with some modifications. The 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 combining 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 PEIS 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.
EMU take limits are increased accordingly because the flyway
management units are fewer and larger than the EMUs currently in use
(for bald eagles; golden eagle take limits would be zero in all
management units, unless offset). Each flyway unit covers several
current EMUs. In some ways, increasing the EMU size could be less
protective of eagle populations at more local scales. However, any
potential decreased protection of local eagle populations caused by
increasing the size of the EMUs is more than compensated for by two
provisions designed to increase protection of eagles at more local
scales. First, as noted earlier, we 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, and
codify the new definition in the regulations at 50 CFR 22.3. The
definition reads: ``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 the persistence of local populations throughout the geographic
range of each species.''
These revised regulations also enhance protection of eagles at the
local scale by incorporating a local area population (LAP) cumulative
effects analysis into the permit issuance criteria. The LAP analysis,
which is detailed in Appendix F of the Eagle Conservation Plan
Guidance, Module 1--Land-based Wind Energy (ECPG) (USFWS 2013),
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 a 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).
We derive the size of the LAP by multiplying the 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 movements 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
[[Page 91499]]
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 and 109 miles for golden eagles.
These could change in the future if additional data indicate the need
for adjustment. The LAP cumulative effects analysis is described in
more detail in the Status Report.
Prior to this rulemaking, the LAP cumulative effects analysis has
been used as guidance. Under these revised regulations, the LAP
analysis is 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 if compensatory mitigation offsets 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 will 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 have already analyzed the effects of
authorizing take of up to 5% of the LAP in the PEIS for these
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 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 will 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. While evidence of excessive unpermitted take does not necessarily
preclude the Service from issuing a permit, it would be taken into
consideration in evaluating whether to issue the permit and is likely
to entail additional environmental analysis to determine whether
issuance of the permit is compatible with the preservation of eagles.
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.
For disturbance to have the potential of a population effect, it
has to result in a loss of potential productivity. In 2009, the Service
used the EMU-specific mean number of young fledged per occupied nesting
territory for each species per year as the expected loss under nest
disturbance permits for each instance of nest disturbance. We use the
same approach in this revision, but with updated take values based on
the new productivity information for each eagle species (see the Status
Report).
Nonpurposeful (Incidental) Take Permits (50 CFR 22.26)
We are changing 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 endangered and
threatened species. However, the term ``nonpurposeful'' also caused
confusion because it is not a commonly used word. The meaning of
``incidental'' 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. Because
``nonpurposeful take'' and ``incidental take'' mean the same thing, the
change in nomenclature does not in any way affect the circumstances and
manner in which these permits will be issued.
In these revised regulations, the types of incidental take permits
we can issue under Sec. 22.26 are reduced from two to one. There will
no longer be separate categories for standard and programmatic permits.
Having two separate categories has sometimes led to confusion because
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 was 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 eliminate
the distinction between standard and programmatic permits. All Sec.
22.26 permits are now simply ``eagle incidental take permits'' or
``incidental take permits.''
[[Page 91500]]
Under the 2009 regulations, programmatic permits were contingent 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.'' In
contrast, we have required that applicants for standard permits under
the current regulations reduce potential take to a level where it is
``practicably unavoidable'' [emphasis added]. Thus, programmatic permit
applicants were subject to 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.'' Thus the revised regulations apply
the ``practicability standard'' to all Sec. 22.26 permits.
We are revising the definition of ``practicable'' by adopting the
definition from the Service's proposed mitigation policy (see 81 FR
12380; Mar. 8, 2016), slightly modified for specific application to
eagle permits. The new definition reads: ``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 eagles and the activity's overall purpose, scope,
and scale.'' The revised definition captures the essential elements of
the old definition, while promoting a consistent approach to how the
Service applies compensatory mitigation requirements across all
programs.
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, the requirement for
ACPs is removed from the regulations. As discussed above, all
permittees would be required to avoid and minimize impacts to eagles to
the maximum degree practicable. Although the ACP requirement no longer
applies, the Service will require potential permittees to implement all
practicable best management practices and other measures that are
reasonably likely to reduce eagle take. Permit applicants that cannot
reduce or compensate for take to levels that are compatible with eagle
preservation will not qualify for a permit.
We believe a 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. The 5-year maximum permit duration 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 will provide a degree of certainty to project proponents
because they will 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
that occurs, the opportunity to apply avoidance, minimization, and
other mitigation measures is lost. We believe 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, will enhance eagle conservation in contrast to
project proponents avoiding the permitting process altogether because
they perceive the process as overly onerous.
Under the revised regulations, the Service will evaluate each long-
term 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. Long-term permits are required to include adaptive management
provisions that provide for additional or changed mitigation measures
under specified conditions, for example, under increasing levels of
eagle take. Provided permittees are in compliance with their permit,
including adaptive management measures and take levels, 5-year reviews
will primarily consist of updating take estimates and related
compensatory mitigation for the next 5 years. Conversely, the 5-year
review provides an opportunity for the Service to amend the permit to
reduce or eliminate conservation measures or other permit conditions
that prove to be ineffective or unnecessary.
Under the proposed regulations, a long-term permittee may also have
been required to undertake additional, practicable conservation
measures not spelled out in the adaptive management permit conditions,
even if the permittee is in compliance with the terms of the permit, if
such measures were reasonably likely to reduce risk to eagles based on
the best scientific information available. However, these final
regulations limit such additional conservation measures to when
authorized take levels are exceeded in a manner or to a degree not
addressed in the adaptive management conditions of the permit. Based on
public comment, the proposed provision appeared likely to
disincentivize project proponents from seeking permits. Rather, for a
permittee in compliance with permit terms and conditions, conservation
and mitigation measures beyond the terms of a permit are voluntary.
Take estimates and compensatory mitigation requirements would be
adjusted if such measures were implemented. Permit suspension and
revocation procedures will remain available for extreme cases if new
measures sufficient to meet the preservation standard cannot be
negotiated with the permit holder.
The revised regulations require applicants and permittees to use
Service-approved protocols for conducting pre-application surveys,
fatality predictions, and monitoring under permits, unless waived by
the Service. The regulations provide that, if the Service has, through
rulemaking procedures, officially issued or endorsed survey, modeling,
or other data quality standards for the activity, those are the
standards and protocols that must be used (unless the Service waives
the requirement for that applicant). Applicants engaged in other
activities for which the Service has not adopted official protocols
must coordinate with the Service to develop project-specific monitoring
and survey protocols. The requirement to use Service-approved protocols
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.
Specific application of these requirements to wind energy facilities is
described below under Survey Requirements for Incidental Take Permits
for Wind Energy Facilities.
[[Page 91501]]
While we have not officially issued fatality prediction models or
pre-application monitoring protocols for activities other than wind
energy generation, 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 permit application 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.
Survey Requirements for Incidental Take Permits for Wind Energy
Facilities
Many of the comments on the proposed rule focused on the subset of
prospective incidental take permits that relate to wind energy. These
comments were helpful, yet indicated a general lack of understanding of
how the Service's proposed approach to manage incidental take at wind
facilities under an adaptive management framework is intended to work.
For this reason, and because the permitting approach developed for wind
facilities provides an example of how the Service intends to implement
incidental take permitting for other activities, we have expanded our
description of the overall approach here in the preamble to the rule.
The Service's emphasis on eagle incidental take permits for wind
facilities reflects Administration priorities for expanded wind energy
development and a desire to minimize the impacts of that growth on
eagles; it does not reflect a belief that wind development poses a
disproportionate risk compared to other activities that may
incidentally take eagles, nor does it reflect any greater availability
of permits to wind companies versus other types of industries that may
need eagle incidental take permits.
Preconstruction Survey Standards for Wind Energy Facilities
In the proposed rule, the Service proposed to incorporate by
reference Appendices C and D of the ECPG as standards for collection
and analysis of data to support eagle incidental take permit
applications for wind facilities, and we indicated our intent to
develop similar standards for other activities in the future. This
proposal was not supported by many commenters for a range of reasons,
but primarily because of a perceived lack of demonstrated scientific
credibility in the methods and tools. However, the Service does not
agree that abandoning the concept of standardized data collection for
permits is a tenable way forward. First, one major objective of this
rulemaking is to expedite the permitting process, and our experience
has been that the negotiation over and use of disparate methods for
initial data collection contribute greatly to the time required to
develop and process a permit application. Second, as we explain below,
the Service intends to use formal adaptive management to improve the
scientific rigor and the performance of the impact-prediction tools
used in the eagle permitting program. The Service's adaptive management
process requires a minimum level of standardization in the initial
input data where those standards exist, and this will result in each
permit contributing to and improving the scientific credibility of the
permitting process.
For now, the only activity for which we have such standards is wind
energy generation. Those standards have been through two rounds of
notice and public comment, as well as two rounds of scientific peer
review. Rather than incorporate the relevant appendices from the ECPG
into the rule by reference, in response to the comments received the
Service has instead decided to include minimal pre-construction survey
standards for eagle incidental take permits for wind facilities
directly in the rule itself. The rule language was developed from the
specific recommendations in Appendix C of the ECPG, and represents the
minimum level of information and the least sophistication in sampling
design that will be acceptable for the Service to evaluate and decide
whether to issue an eagle take permit for a wind facility. These
standards will ensure that representative eagle exposure data are
available with which to predict eagle fatalities consistent with the
Service's adaptive management program. The rule allows for deviations
from the minimum standards, but only if the applicant consults with the
Service early in the project-development process. In most cases both
the Service and permit applicant will benefit by using this exception
to design surveys that are designed to accommodate variation in eagle
abundance over both space and time.
The precision, consistency, and utility of data from point count
surveys for eagles can be much improved by incorporating some basic,
common-sense sideboards into the survey design as discussed in the ECPG
(Appendix C). These include: (1) Conducting eagle surveys and small
bird surveys separately, to avoid overlooking large birds while
searching at a much smaller scale for small songbirds; (2) using
trained observers that are capable of accurate bird identification and
distance estimation; (3) distributing surveys across daylight hours
(e.g., morning: Sunrise to 1100 hours; midday: 1101-1600 hours;
evening: 1601 hours to sunset), and by designing surveys to more
intensively cover the midday period in areas where eagle flight is more
likely at that time of day; and (4) conducting surveys under all
weather conditions except when visibility is less than 800 meters (m)
horizontally and 200 m vertically.
Adaptive Management and Wind Energy Collision Risk Modeling
An overarching issue with eagle incidental take permits is
uncertainty. For wind facilities, there is considerable uncertainty
regarding the risk of turbines to eagles, factors associated with that
risk, and whether there are tangible ways to reduce the risk. Moreover,
in 2009, when the Service established the incidental eagle take
regulations, there was no scientifically accepted approach for
quantitatively estimating the probability of eagle take at individual
wind facilities. This quantitative probability estimation is necessary
for the Service to establish a take limit for each permit and to ensure
that EMU take limits are not exceeded, or if they are exceeded, that
appropriate compensatory mitigation is accomplished. The Service has
adopted two key principles for eagle incidental take permitting at wind
facilities to address this uncertainty: (1) Use of formal adaptive
management; and (2) being risk-averse at the outset with respect to
estimating impacts on eagles.
The Department of the Interior has a long history of approaching
decisions in situations fraught with uncertainty using adaptive
management (Williams et al. 2009). Adaptive management is a process of
adaptive learning, whereby: (1) Predictions are made regarding
anticipated effects of an activity; (2) data regarding the outcomes of
the activity are collected; (3) the predictions are updated to reflect
the actual outcomes of the activity; and (4) the updated predictions
are used to change the activity, either in the future at the same site
or at other places where the same activity is being contemplated. The
Service has described its adaptive management framework for eagle
incidental take permits for wind energy facilities in the ECPG
(Appendix A)
[[Page 91502]]
(U.S. Fish and Wildlife Service 2013), and the overall framework is
intended to account for uncertainty in the effects of wind facility
siting, design, and operations on eagles. More broadly than for just
wind energy, the adaptive management process is also intended to
address uncertainty in compensatory mitigation and the effects of take
rates on eagles. With regard to managing risk, the survey, monitoring,
and information collection standards for eagle incidental take permits
are all designed to provide data that allow for the quantification of
uncertainty, primarily by providing estimates in the form of
probability distributions. This allows the Service to explicitly
describe its risk tolerance (i.e., being protective of eagles or
protective of interests that might take eagles) for each aspect of the
permitting process. Together, the adaptive management and risk
management processes function as a means for describing how the risk,
in the form of uncertainty, is shared between the protected resource
and the regulated community.
The part of the Service's adaptive management process for eagle
incidental take permits that has generated the greatest debate is the
approach and model used to predict eagle fatalities at wind facilities.
For that reason, and because this is an excellent example of the
Service's philosophy regarding the application of adaptive management
to eagle permitting, we describe the fatality prediction process here
in some detail. The Service's baseline fatality prediction model, also
referred to as a collision risk model (CRM), is thoroughly described in
Appendix D of the ECPG and in New, et al. (2015). The key points are
that the CRM uses: (1) A project-specific estimate of eagle exposure;
(2) a project-specific estimate of the amount of hazardous area and
time that will be created by the project; and (3) an estimate of the
probability that an exposed eagle that enters the hazardous area will
be struck and injured or killed by a turbine blade; to generate (4) an
annual eagle fatality estimate in the form of a probability
distribution. The model assumes a predictable relationship between
eagle exposure, hazardous area, and the risk of fatalities--a
relationship that existing literature, some commenters, and the Service
agree is not straightforward. The ECPG identifies 11 general categories
of covariates (variables that help explain variation in the parameter
of interest) that the Service believes may affect eagle collision
probability to some degree. However, these are not presently
incorporated into the CRM because, as pointed out by peer reviewers of
the draft ECPG, scientific support for the role of these factors in
collision risk is speculative and not quantifiable at this time.
Furthermore, the effects of these factors may be varied across
locations.
The CRM uses Bayesian statistics to formally combine existing
(prior) data with project-specific data to determine eagle exposure and
collision probability (assuming the number and size of turbines to be
built, and thus hazardous area, are known). The Service requires eagle
incidental take permit applicants to conduct pre-construction eagle use
surveys within the footprint of the planned wind facility to generate
project-specific data on pre-construction eagle exposure. These pre-
construction survey data are formally combined with prior information
on eagle exposure nationally to generate a probability distribution for
eagle use for the specific project area. In the case of collision
probability, however, there are no project-specific data to combine
with the prior data until after the project has operated for several
years; thus only the prior information is available to be used for the
initial collision probability estimate. The Service uses prior
information on collision probability from the only wind facilities that
had publicly available data on eagle use and post-construction
fatalities at the time the ECPG was written in 2013. These post-
construction data came from four facilities, did not include
information for bald eagles, and some data were from older-style wind
turbines that might have different collision probabilities than modern
turbines. However, these potential data deficiencies only affect the
initial eagle fatality estimates at permitted wind facilities. This is
because the Service's adaptive management approach calls for formally
combining the prior information with standardized data collected on
actual eagle fatalities after the facility becomes operational. These
updates would occur no less frequently than once every 5 years at each
facility. Such updates will naturally correct for any bias in the
initial ``collision-prior-based'' fatality estimate, so that the
fatality estimates over most of the life of a wind facility will be
heavily weighted towards actual fatality data from the site. Moreover,
because the post-construction fatality information will be collected
under standardized protocols required by the terms and conditions of
each permit, the data can be combined with data from other permitted
wind facilities to update and improve the collision probability prior
for the national CRM. Thus, the Service intends to improve the
predictive accuracy of the CRM both at the individual project level and
nationally through standardized use as a formal part of its adaptive
management process. We could not achieve improved accuracy of the CRM
without standardized use of these protocols.
Uncertainty in the project-specific fatality estimates comes from
both the prior and project-specific data for eagle exposure, and,
initially, from the prior information on collision probability. The
Service has made the decision to manage the quantified uncertainty in
the CRM estimates in a manner that reduces the risk of underestimating
eagle fatalities at wind facilities. The Service views this as
important both to ensure the risk to eagles is not underrated, but also
to minimize the chance that a permittee will illegally exceed his or
her authorized eagle take limit. The median (50th quantile) fatality
rate of the CRM-generated probability distribution is the point on the
distribution at which there is an equal risk of under- and
overestimating eagle fatalities. The Service uses the 80th quantile of
the CRM fatality probability distribution to determine the take limit
for incidental take permits, which shifts the risk to a 20% chance of
underestimating eagle take. Improvements in the precision of the CRM
estimates through adaptive management, both at the project level and
nationally, should decrease uncertainty and thus shrink the magnitude
of the difference between the median fatality rate and the permitted
take limit over time. For now, however, the Service acknowledges that
its fatality estimates for wind facilities are both higher than what is
expected and higher than what is likely to be observed, and that this
bias is intentional.
The Service's adaptive management approach for the incidental eagle
take permits necessitates the collection of standardized pre- and post-
construction data and the use of the CRM, or a model much like it, to
generate and update fatality estimates. For this reason, in the
proposed rule the Service contemplated codifying its current guidance
regarding data collection and fatality predictions in the regulations.
There was considerable opposition to this among commenters, with most
opponents citing the need to remain flexible so that new information
could be incorporated rapidly into the permitting process. In response
to these comments, the Service has modified its proposal for the final
rule in two substantive ways. First, the final regulations do not
incorporate by reference Appendices C and D of the ECPG. However,
because the adaptive
[[Page 91503]]
management process cannot function credibly without standardized pre-
construction site-specific eagle exposure data, the Service has instead
incorporated minimum standards for such data directly into the final
rule, subject to waiver under exceptional circumstances (see above
discussion on pre-construction survey protocols for wind energy
facilities). Second, the Service will not require permit applicants to
use the CRM to estimate eagle fatalities for their permit applications.
Instead, project proponents can use any credible, scientifically peer-
reviewed model to generate eagle fatality and associated uncertainty
estimates for their permit applications. The Service will then use the
standardized project data supplied by the permit applicant and the
Service's CRM to generate a predicted number of fatalities for each
incidental eagle take permit for a wind facility, and the 80th quantile
of the CRM estimate will be the take limit for the permit except under
exceptional circumstance. The Service will treat any alternative models
used by the permit applicant as candidate models whose performance may
be compared formally to that of the CRM as part of the adaptive
management process. Any alternative models that, over time, demonstrate
better or comparable predictive performance to the CRM could eventually
be formally incorporated into the adaptive management process for
estimating permit take limits.
The Service intends the adaptive management process to eventually
provide: (1) A better understanding of, and ability to quantify,
factors associated with eagle collision risk; (2) a more accurate
estimate of collision probability for bald eagles, and (3) data
suitable for updating the original golden eagle collision and exposure
priors (the exposure prior is the average eagle exposure value based on
all available previously existing information) for the CRM. However, to
date, so few incidental take permits have been issued at wind
facilities that no progress has been made in these areas. In
particular, the lack of progress towards updating the collision
probability prior has generated opposition to the entire eagle
incidental take permit adaptive management process. Wind facility
operators and their consultants believe the CRM with the original
collision prior (the estimated probability, based on all available
previously existing information, that an eagle that flies into the
hazardous area around wind turbine will collide with a blade) produces
fatality estimates that are too large, and in cases where compensatory
mitigation is required (e.g., for take of golden eagles), the
mitigation requirements exceed what is necessary. This concern is
offset somewhat by the Service's policy that excess mitigation
accomplished in the first 5 years of a wind project's operations will
be credited towards future year obligations (which, as described
briefly above and in more detail below, will be based on CRM estimates
that are adjusted after no more than 5 years of operation to include a
site-specific collision probability). However, this policy has not
appreciably reduced concern about use of the CRM, as expressed by many
commenters on the proposed rule. To address this particular concern,
within 18 months the Service intends to update the collision prior for
the CRM using publicly available data collected at wind facilities
operating without incidental eagle take permits. The Service believes
that these types of data can be appropriate for such an update,
provided the data and protocols under which they were collected can be
verified and shown to be appropriate, and that the wind facilities that
make their data available are sufficiently representative of a cross
section of wind facilities in operation today. The Service is already
engaged in a process to update priors and other data for modeling eagle
take and plans to revise the CRM and Appendix D of the ECPG through a
public process. As part of this process the Service will also consider
ways of expediting improvements in the CRM relative to incorporating
other covariates associated with eagle risk and a species-specific
prior collision probability for bald eagles.
As stated above, the Service intends to maintain its policy of
disproportionately sharing risk to avoid underestimating eagle take at
individual wind facilities. We believe this is appropriate because the
consequences of underestimating eagle take are far greater than the
consequences of overestimating take, and not just because of unintended
consequences on eagle populations. Avoiding underestimating eagle take
significantly reduces uncertainty for permittees. For example, if eagle
take at the individual permit level was consistently underestimated,
many permittees would exceed their permitted take limits, necessitating
permit amendments, additional costly and unplanned after-the-fact
compensatory mitigation actions, and possible enforcement with
associated fines. For bald eagles with positive EMU take thresholds,
consistently underestimating take could lead to permitted take
exceeding the EMU take limit, which would necessitate retroactively
requiring permittees that initially had no compensatory mitigation
requirements to implement mitigation after the fact. Further, if LAP
take limits were unexpectedly exceeded, NEPA compliance for permits
overlapping the affected LAP would have to be reviewed. Although these
consequences are most likely if there is a systematic bias in the
fatality estimates themselves, even with an unbiased estimator, some of
these consequences could be expected with 50% of permits if the Service
were to use the median fatality rate as the take limit for individual
permits. In contrast, if permitted take is set at a higher percentile
of the fatality prediction, the primary consequences are that the
permittee is likely to exceed actual compensatory mitigation
requirements over the first 5 years of operation (if compensatory
mitigation is required). Additionally, the Service would likely
routinely debit some take from the EMU and LAP take limits
unnecessarily, thereby underestimating available take when considering
new permit requests. Both of these issues are at least partially
remedied when initial take estimates for projects are adjusted with
project-specific fatality data after the first 5 years of operation. At
that time, permittees receive credit for any excess compensatory
mitigation they have achieved, as described above, and the debits from
the EMU and LAP take limits are recalibrated to reflect the updated
expectations for future take. These actions are comparatively simple to
implement, and do not have the same kind of far-reaching consequences
as with underestimates.
Monitoring and Mitigation
Most permittees will be required to monitor eagle take to assess
whether and how much take occurs under the permit. Reported take will
be based on surveying and monitoring protocols required by the permit.
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 agree with the large number of commenters that urged the Service
to require third-party monitoring for some permits. As we stated in the
preamble to the proposed regulations, we were considering that option.
These final regulations require that, for all permits with durations
longer than 5 years, monitoring must be conducted by qualified,
independent entities report
[[Page 91504]]
directly to the Service. In the case of permits of 5-year durations or
shorter, such third-party monitoring may be required on a case-by-case
basis. We do not believe there will be significant additional costs
imposed by the requirement for third-party monitoring. Most companies
already rely on and pay for consultants to conduct project monitoring,
presumably because it is more cost-effective than supporting those
activities ``in-house.''
We expect that most long-term permits will authorize incidental
lethal take rather than disturbance. Those conducting monitoring for
permits that authorize eagle mortalities will be required to search for
injured and killed eagles and to estimate total take using methods
approved by the Service. Permittees will 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 the
probability of detection.
The Service defines ``mitigation'' to sequentially include:
Avoidance, minimization, rectification, reduction over time, and
compensation for negative impacts. Under Departmental policy (600 DM
6), ``compensatory mitigation'' means ``to compensate for remaining
unavoidable impacts after all appropriate and practicable avoidance and
minimization measures have been applied, by replacing or providing
substitute resources or environments (see 40 CFR 1508.20) through the
restoration, establishment, enhancement, or preservation of resources
and their values, services, and functions.'' The 2009 eagle 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, we have 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 46836, p. 46844). 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 46836, p. 46845).
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 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.
These regulations require compensatory mitigation for any permit
authorizing take that would exceed authorized take limits. Compensatory
mitigation for this purpose must demonstrate it offsets authorized take
by reducing another ongoing form of mortality by an equal or greater
amount than the unavoidable mortality, or increasing the eagle
population by an equal or greater amount.
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. This means that the golden eagle
population is likely in decline and not meeting the Service's
preservation goal of a stable or increasing breeding population. As a
result, compensatory mitigation for any authorized take of golden
eagles that exceeds take thresholds will be designed to offset the
authorized take at a 1.2 to 1 mitigation ratio to further an outcome
consistent with the preservation of golden eagles as the result of the
permit. We believe this baseline mitigation ratio appropriately
balances meeting our obligations under the Eagle Act with what is
reasonable, fair, and practicable to permittees. Based on the
uncertainty in the effectiveness of a particular compensatory
mitigation practice and other factors common to mitigation programs, we
may require further adjustments to mitigation ratios.
To be compatible with the preservation of eagles, take that would
compromise the persistence of local populations of eagles may also
require compensatory mitigation. The regulations account for this by
generally requiring compensatory mitigation for cumulative authorized
take exceeding 5% of the LAP 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 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). We have no data to indicate that ongoing
unauthorized take of bald eagles is less than that of golden eagles,
and intend 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 because of the
improved status of bald eagles, states, tribes, and localities have
communicated their interest in seeing regulatory safeguards to protect
local bald eagles as well as golden eagles. In
[[Page 91505]]
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. We received comments asserting that it
is unfair for the Service to impose a greater than one to one
compensatory mitigation ratio for golden eagle take permits because
people seeking to comply with the regulations should not be required to
address impacts caused by other human activities for which no one is
being held accountable. Similar concerns were expressed regarding the
consideration of unauthorized take within the LAP when making
permitting decisions. Additional commenters asserted that the Service
does not adequately enforce the Eagle Act. In response to all of those
comments, we wish to clarify that, outside of its permitting programs,
the Service is addressing unauthorized take of bald eagles and golden
eagles through a variety of means. The Service's Office of Law
Enforcement expends considerable time and resources protecting both
species. Because golden eagles in particular are experiencing
significant amounts of human caused mortality, they are receiving high
levels of investigative effort throughout the western United States.
These investigations have covered the unlawful killing and trafficking
of eagles and their parts, electrocutions of eagles from electrical
distribution infrastructure, intentional or incidental poisoning of
eagles, eagle mortality due to wind turbine strikes, eagle nest
destruction, and a host of other human activities that result in eagle
deaths. Investigation and prosecution of these crimes can be very time
intensive, with some investigations requiring many hundreds of hours to
complete.
Many of these investigations require thorough review of historical
information on the activity causing the mortality, investigation of the
responsible party's efforts to avoid the eagle deaths, and presentation
of investigative results to the Department of Justice (DOJ) for
potential prosecution. This is often accomplished through subpoenas,
search warrants, field inspections (often in remote areas), evidence
collection, interviews, and report writing. For activities involving
the intentional killing and trafficking of eagles, the investigative
techniques can also include the use of undercover operations to gain
evidence and better document the extent of the unlawful activity. In
short, the Service's Office of Law Enforcement places a high priority
on protecting bald and golden eagles, and expends considerable effort
on education, outreach, and investigations to fulfill this
responsibility.
This final rule establishes standards applicable to all
compensatory mitigation in accordance with principles and standards set
forth in Service and Departmental and Executive Branch policy.
Compensatory mitigation is to be used to offset remaining impacts after
the application of all practicable avoidance and minimization measures.
Compensatory mitigation must 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. Compensatory mitigation must be based on
the best available science and must use rigorous compliance and
effectiveness monitoring and evaluation to make certain that mitigation
measures achieve their intended outcomes or that necessary changes are
implemented to achieve them.
Compensatory mitigation must provide benefits beyond those that
would otherwise have occurred through routine or required practices or
actions, or obligations required through other legal authorities or
contractual agreements. A compensatory mitigation measure is
``additional'' when the benefits of the measure improve upon the
baseline conditions of the impacted eagle species in a manner that is
demonstrably new and would not have occurred without the required
compensatory mitigation measure. Voluntary actions taken to benefit
eagles in anticipation of and prior to issuance of an eagle take permit
may be credited towards compensatory mitigation requirements. Such
actions must meet all mitigation standards set forth in the rule for
compensatory mitigation. Applicants must provide clear evidence that
the voluntary action was undertaken to fulfill compensatory mitigation
requirements under this rule. The Service will determine whether and
how much to credit such actions. Potential applicants intending to take
voluntary conservation actions prior to permit application are
encouraged to seek technical assistance from the Service.
Compensatory mitigation must be durable and, at a minimum, maintain
its intended purpose for as long as the impacts of the authorized take
persist. The Service will require that implementation assurances,
including legal, contractual, and financial assurances, be in place
when necessary to assure the development, maintenance, and long-term
viability of the mitigation measure. Compensatory mitigation must also
include mechanisms to account for and address uncertainty and risk of
failure of a compensatory mitigation measure. This could be in the form
of greater mitigation ratios, the establishment of buffers or reserve
accounts, or other mechanisms.
Compensatory mitigation may include conservation banking, in-lieu
fee programs, and other third-party mitigation projects or
arrangements. 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. Where compensatory mitigation is 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 will be
required to provide compensatory mitigation to offset predicted take
over each 5-year period. If reliable reported data demonstrate 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.
The Service will develop guidance for different types of
compensatory mitigation projects for eagles, for example power pole
retrofits to reduce eagle electrocution. Guidance will include methods
and standards for determining credits (i.e., how much of the type of
mitigation is needed to offset one eagle), mitigation ratios based on
uncertainty, temporal loss and related factors, durability assurance
requirements, compliance and effectiveness monitoring requirements, and
other important implementation considerations. When practical, we will
involve stakeholders in the development of such guidance.
Additional Revisions
These regulations include several minor revisions 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
[[Page 91506]]
be met with eagle parts and/or feathers from another source, such as
the National Eagle Repository) is amended so that it applies to
increased need for take for religious purposes. Historical tribal take
for religious use requiring take of eagles from the wild that has been
ongoing, but not authorized, generally does not need to be prioritized
because it is part of the environmental baseline set in the 2009 FEA.
However, increases in historical take levels would not be part of the
current baseline. We also are removing 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. In addition, we are 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.
Unauthorized eagle take is prohibited by law. The options available
for addressing future eagle take differ from those for addressing past
take. Future take may be addressed proactively through a nonpurposeful
(incidental) take permit issued under the Eagle Act and the 50 CFR part
22 permit regulations. If such a permit is sought by an applicant and
issued by the Service, it will protect the permittee from criminal
prosecution or civil law enforcement for any eagle take authorized by
the permit.
If enforcement action has been taken to address past eagle take by
an applicant, then the Service will consider any pending or completed
resolution of that enforcement when evaluating an application and
determining whether to issue an eagle incidental take permit. The
Service will do so in order to be consistent with the general
responsibility criteria set out in 50 CFR part 13 for all permits
(whether or not eagle permits) issued under 50 CFR Subchapter B. A
permit can be issued without resolving unauthorized past eagle take;
however, the applicant continues to be subject to an enforcement action
at any time for unpermitted prior take of eagles. Depending on the
circumstances of a past take, the U.S. Department of Justice or the
Service's Office of Law Enforcement may determine that enforcement is
warranted using appropriate enforcement authorities. The Service will
take into consideration the nature, circumstances, extent, and gravity
of the prohibited acts committed in the violation and with respect to
the violator the degree of culpability and cooperation, history of
noncompliance, levels of past take, and efforts to reduce take. The
statute of limitations for criminal and civil enforcement actions is
five years.
These revised regulations include a provision at Sec. 22.26(f)(7)
that requires the Service to determine, before issuing a permit, that
issuance of the permit will not interfere with an ongoing civil or
criminal action concerning unpermitted past eagle take at the project.
One element of civil and criminal cases is establishing that take of
eagles is not permitted, requiring coordination between the Service law
enforcement and migratory bird programs early in an investigation.
Later in the process, court judgments may include a sentencing or
probation condition that an eagle take permit be sought, or where
settlement negotiations have been successful, the settlement agreement
often includes a requirement that a company apply for an eagle take
permit. Without such a determination, issuance of a permit might in
some cases disrupt the ongoing investigation, prosecution, or
negotiation process.
To recoup the cost of processing longer-term permits, which are
generally complex due to the need to develop robust adaptive management
measures, we will assess a $36,000 permit application processing fee
for eagle incidental take permits of 5 years duration or longer. This
fee is the same as the fee we currently require to process programmatic
permits. A commercial applicant for an incidental take permit of a
duration less than 5 years will 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. 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. The incidental take permit application processing fee for
homeowners and other non-commercial entities remains $500, and the
amendment fee for those permits is unchanged at $150.
We will assess a user fee called an ``administration fee'' every 5
years for long-term permits to cover the cost to the Service of
conducting the 5-year evaluation and developing any appropriate
modifications to the permit. The proposed rule would have implemented a
$15,000 administration fee but, based on changes to the rule, and upon
subsequent analysis, we have determined that an $8,000 administration
fee more accurately accounts for costs the Service is likely to incur
during a ``typical'' 5-year permit review. We will adjust the fee
amount in future rulemakings if experience shows that $8,000 is either
too high or too low to accurately account for costs.
We are removing the provisions for transfer of a programmatic
permit from a permittee to another entity that were codified at Sec.
22.26(i). Those provisions were unnecessary because Sec. 13.25(b)
already provides for transfer of Sec. 22.26 eagle incidental take
permits. The Service is reviewing permit applications from, and
continuing to provide technical assistance to, applicants with complex
projects who are in the process of applying for eagle take permits. To
prevent many of them from having to effectively restart the application
process due to these revisions to the regulations, we are incorporating
a 6-month ``grandfathering'' period wherein applicants (persons and
entities who have already submitted applications) and project
proponents who are in the process of developing permit applications can
choose to apply (or re-apply) either under all the provisions of the
2009 regulations or all the provisions of these final regulations.
The 2013 Duration Rule established a definition of ``low-risk''
projects that was subsequently vacated by a federal district court
decision (Shearwater v. Ashe, No. 5:14-cv-02830 LHK (N.D. Cal. Aug. 11,
2015)). After subsequent consideration, we found this definition to be
counter-productive. In the Duration Rule, the Service defined ``low-
risk'' 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 (or less than 1 eagle over a 30-year period).
In retrospect, that definition would not have proved useful because it
would have covered only those projects where take is essentially
negligible, and, therefore, the project would likely not require a
permit in the first place. We 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, despite seeking input from the public and
considerable staff effort, we were unable to develop
[[Page 91507]]
a definition of ``low-risk'' that could be consistently applied
throughout the United States while achieving our desired goals for a
``low-risk'' 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 did not propose a revised definition for low-risk
projects in the proposed rule. Instead, we again sought comment on how
to define ``low-risk'' or ``low-impact'' take of eagles, and on other
approaches for authorizing take, such as a general permit
authorization. The proposed rule stated that while comments would be
outside the scope of this rulemaking action, we would keep them on file
for later consideration in a future rulemaking. Several commenters
provided input on this topic, and we will retain those comments to help
inform future guidance or rulemaking. We intend to continue the public
process to further develop criteria and an approach that minimizes 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.
Eagle Nest Take Permits (50 CFR 22.27)
Under the 2009 eagle nest take regulations (50 CFR 22.27), 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, these rule revisions
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. For the same reasons
as described above for Sec. 22.26 permits, a commercial applicant for
a nest take permit for a single nest will 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 will increase from $150 to $500. For permits to
take multiple nests, the fee is $5,000 versus $1,000 for programmatic
permits, currently. For homeowners and other non-commercial entities,
the nest take permit application processing fee and amendment fee will
not change.
These revised regulations also revise several definitions
applicable to nest take permits to better comport with terms used in
scientific literature. Nests that are not currently being used for
reproductive purposes are defined as ``alternate nests,'' while nests
that are being used are ``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. An
``in-use nest'' is defined as ``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 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 are revising 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''
were not helpful for clarifying 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.
The revised provision at Sec. 22.27(a)(1)(i) enables us to issue a
permit to remove an in-use nest to prevent a rapidly developing safety
emergency situation, instead of waiting until the emergency is exigent.
Without this addition, 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.
The 2009 regulations provide that the Service can issue a nest take
permit for an inactive (``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 are revising this
provision to also allow for removal of an in-use nest prior to egg-
laying in order to prevent the foreseeable functional hazard from
coming to fruition. The revised regulatory language allows nest removal
at an earlier stage that may provide eagles an opportunity to re-nest
elsewhere while also preventing the nesting eagles from rendering the
human-made structure inoperable.
We are removing 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 retain consideration of whether alternate nest
sites are available to the displaced eagles, but an affirmative finding
is not a requirement for issuing a permit.
The Service will consider whether other nests are available in the
``nesting territory,'' rather than in the ``area nesting population.''
We defined ``area nesting population'' in 1982 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.''
In addition to the typo (i.e., ``resting'' instead of ``nesting''), the
definition is problematic for 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
[[Page 91508]]
radius of the nest. We define ``nesting territory'' as ``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 replaces the current definition of
``territory.'' The two definitions are functionally similar, but the
new definition of ``nesting territory'' is more in line with
terminology used in the biological community.
Under the 2009 regulations, if a nest containing viable eggs or
nestlings must be removed, transfer of the nestlings or eggs to a
permitted rehabilitator or placement in a foster nest was required.
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 for
transfer of eggs and nestlings has sometimes meant that the Service
could not legally issue a permit necessary to alleviate the safety
emergency. To address this problem, we are adding 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 on a case-by-case basis in that scenario.
As with the prioritization criteria in Sec. 22.26, these
regulations amend the prioritization criteria for nest take permits to
remove any priority for allocation of take to renewal of programmatic
permits since that permit category is being removed. Also, the
prioritization for Native American religious take is amended in the
same manner as for Sec. 22.26 incidental take permits (see earlier
discussion).
These revised regulations adopt mitigation standards for taking
eagles nests under Sec. 22.27 that are similar to those we are
adopting 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 the 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 some new nests in areas
of high eagle density. In those cases, the amount of compensatory
mitigation may be relatively low. Data show 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)
The regulations include minor revisions to the permit application
processing fee table in 50 CFR 13.11. We are removing the column for
Administration Fees because those fees apply only to eagle incidental
take permits and not to any other type of Service permit listed in the
table. The requirement for administration fees is instead incorporated
into Sec. 22.26. The table at Sec. 13.11 also includes the updated
fees for incidental take permits 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)
Paragraph Sec. 22.11(c) is revised by replacing ``[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 (MBTA; 16
U.S.C. 703-712) 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 MBTA, 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; Sept. 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 amending 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)
The regulations include several revisions to the regulations for
permits for take of inactive golden eagle nests for resource
development and recovery operations. The purpose of these revisions is
to incorporate terminology consistent with the Sec. 22.27 eagle nest
take permit regulations. Changes to Sec. 22.25 in this rulemaking are
limited to those necessary for consistency with Sec. 22.27, with a few
additional minor revisions, as explained below.
A new definition, ``alternate nest'' refers to a nest that is not
currently being attended by eagles for breeding purposes. Under the
2009 regulations, such a nest was an ``inactive nest,'' the definition
for which is removed from the regulations. We are also 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
[[Page 91509]]
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 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 does not preclude the Service from issuing a permit,
but such loss will be part of our consideration of whether the take is
compatible with the preservation standard and what amount of mitigation
is necessary.
We add the phrase ``and monitoring'' to paragraph (b)(4) of the
Sec. 22.25 permit regulations. We do, as a matter of course, require
monitoring as a condition of these permits, so the regulation should be
clear that we may require the permittee to monitor effects to eagles
from the permitted activity and mitigation measures. Lastly, we replace
the word ``feasible'' with ``practicable'' in reference to the
mitigation that we will require, consistent with Sec. 22.26, Sec.
22.27, and agency mitigation policy.
Response to Public Comments
The following section contains the substantive public comments we
received on the proposed regulation revisions and our responses that
explain why we do or do not incorporate the changes suggested by each
commenter into this final rule. Comments that pertain to the biological
framework and eagle management objectives described in the Status
Report and PEIS are not included below, and are instead addressed in
Appendix A to the final PEIS. Also not included below are the many
comments supporting various provisions of the rulemaking. We also
received numerous comments recommending regulatory actions pertaining
to permits for eagle depredation, eagle falconry, and eagle
propagation. We do not respond to those comments here because they are
outside the scope of this rulemaking, but we will consider them if and
when we initiate a rulemaking process for those permit types.
Rulemaking Process
Comment: Because the proposed rule will have cumulative effects on
endangered and threatened species that share habitats with eagles, the
Service must engage in section 7 consultation on the entire rule. The
Service's assertion that the issuance of an eagle act permit is not the
``direct cause of habitat degradation,'' and hence such degradation
need not be addressed as part of the NEPA process or in section 7
consultation, is legally unsupportable. Since the Eagle Act
categorically prohibits the ``take'' of eagles without the Service's
permission, a Service authorization of eagle takes that could not
otherwise lawfully occur surely is the legal ``cause'' of not only the
deaths of eagles and other wildlife from turbine operation, but also
the associated habitat degradation due to road and associated
infrastructure construction.
Response: Section 7 of the ESA requires Federal agencies to consult
to ``insure that any action authorized, funded, or carried out'' by
them ``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).
Intra-Service consultations and conferences consider the effects of the
Service's actions on listed, proposed, and candidate species. Our
proposed action of issuing regulations regarding take of non-ESA-listed
eagles does not authorize, fund, or carry out any activity that may
affect--directly or indirectly--any ESA-listed species or their
critical habitat. See, e.g., Sierra Club v. Bureau of Land Mgmt., 786
F.3d 1219 (9th Cir. 2015). Indeed, the Eagle Act does not empower us to
authorize, fund or carry out project activities by third parties. The
BGEPA empowers us to authorize take of bald and golden eagles. Thus, we
have determined that these revisions have no effect on any listed,
proposed, or candidate species or their critical habitat. As a result,
section 7 consultation is not required on this proposed action. As
appropriate, we will conduct project-specific section 7 consultations
in the future if our proposed act of issuing a permit for take of
eagles may, in and of itself, affect ESA-listed species or critical
habitat. Regarding NEPA, we have analyzed the environmental effects of
this rulemaking and our eagle permit framework in general in the PEIS
associated with this rulemaking.
Comment: The Service should have extended or should re-open the
public comment period prior to finalization of the regulations to
ensure a fully vetted and transparent process as required by NEPA. The
60-day comment period was unreasonably short given the importance of
the issue and the magnitude of information provided in the documents.
Response: NEPA does not address the public comment periods required
for rulemaking. Whether a comment period is long enough to allow for
sufficient opportunity for public input is governed by the
Administrative Procedure Act (APA; 5 U.S.C. subchapter II). However,
the APA also does not require specific durations for public comment
periods or establish a minimum time period for public comment; rather
it provides that ``the agency shall give interested persons an
opportunity to participate in the rule making through submission of
written data, views, or arguments with or without opportunity for oral
presentation'' (5 U.S.C. 553(c)). For example, in Fleming Cos. v. U.S.
Dept. of Agric., 322 F. Supp. 2d 744, 764 (E.D. Tex. 2004), the court
held that a 30-day notice and comment period is sufficient. We believe
that 60 days was sufficient to allow for public input by interested
parties on these regulations, and the quantity and quality of the
substantive comments the Service received bear this out.
Comment: Failure to meaningfully consult with Indian tribes on
issues affecting their interests can affect the tribes' ability to
effectively comment on policy changes. Consultation is still needed to
provide the tribes with particularized information about how the rule
revisions would affect them and the eagles around their lands. Due to
the failure on the part of the Service to consult with tribes prior to
proposing the regulations, issuance of the final rule should be delayed
until government-to-government consultation is conducted and the tribes
have an opportunity to comment following consultation.
Response: In September of 2013, the Service sent all federally
recognized tribes throughout the United States a letter inviting them
to consult with the Service on development of these regulations. The
Service then held meetings with all tribes that requested such
meetings. We also held a number of regional informational webinars for
tribes. In response to tribal comments on the proposed regulations
asking for consultation, we reached out to each tribe that asked and
met with them to gather their input and hear their concerns. Individual
tribes will also have an opportunity to consult on individual permitted
projects that may affect tribal interests.
Comment: We ask that outstanding items that the Service is unable
to address in this revision be acknowledged with a firm commitment by
the Service to address the problematic elements of the program under a
clearly defined schedule.
Response: There are some ``outstanding items'' that the Service is
likely to address through future guidance and, where necessary and
[[Page 91510]]
appropriate, future rulemakings. Issuing a schedule for when most of
these items will be addressed would be an exercise in futility for a
number of reasons, including the Service's inability to predict the
size of its' future budget and work force, what the priorities under a
new Administration might be, and what new information the Service will
have that may bear on how we would prioritize the outstanding items to
be addressed.
Preservation Standard
Comment: The Service should adopt a stepwise approach to analyzing
preservation under the modified preservation standard. A stepwise
approach would first look at the LAP. If the LAP is healthy, then a
project should be deemed to have satisfied the preservation standard
and not be required to undertake compensatory mitigation. If the LAP is
stressed or undeterminable, then a project could be required to
consider populations at the EMU and/or throughout the geographic range
of the species, in that order, to determine if and where mitigation is
required. A stepwise approach would help ensure a rational relationship
between a project's impacts, if any and the required mitigation to
offset for those impacts.
Response: Eagles move over much larger areas than LAPs, and simply
looking at the effects of a project at the local area scale would
ignore impacts to migratory and dispersing eagles from outside the LAP
area. Moreover, it is not feasible to collect eagle population data at
the scale of the local population everywhere permits are sought,
meaning the kind of analysis described here would be infeasible over
much of the United States. Finally, shifting the focus of compensatory
mitigation to the LAP will greatly complicate and artificially
constrain implementation of mitigation efforts. Given the current
challenges with implementing effective mitigation, we will not further
constrain options at this time.
Comment: The Service should apply the Eagle Act's preservation
standard to only the national and EMU levels for each eagle species. As
long as the national and EMU populations stay stable or increase, which
they currently are in the absence of [programmatic] eagle permits being
issued, the Service's goals for eagles have been met and there should
be no need to look at a smaller geographical area.
Response: The Service's goals would not be met by allowing local
eagle populations to significantly decline or disappear. There is no
reason to believe that Congress's intent in enacting the Eagle Act and
including the preservation standard was to preserve bald eagles only in
pockets of their range. Moreover, current data, as presented in the
Status Report, indicate that golden eagle populations at the national
and EMU levels are likely not currently stable or increasing.
Comment: Before proceeding with a take permit process using EMUs,
the Service should strengthen the biological foundation of eagle
demographic organization as a basis for assessing wind energy impacts,
or take another approach altogether.
Response: There is already an eagle take permitting process in
place that has used both the LAP and EMU-based analyses, as described
in the final environmental assessment conducted for that rulemaking
action and the 2013 Eagle Conservation Plan Guidance. The proposal to
shift to use of Flyways rather than Bird Conservation Regions (BCRs)
for EMUs (background for which is provided in the Status Report) is
based on our experience implementing the 2009 eagle regulations. Data
collected under incidental take permits will allow the Service and
partners to better assess the performance of the Flyway EMUs in
capturing connectivity of eagle-use areas from a risk management
perspective, or to determine if another configuration would be
preferable.
Comment: We are concerned that the preservation standard will
result in the mere persistence of the two species without accounting
for demographic sustainability. The mere presence of birds alone may
not be ecologically sustainable unless there is a demographic
preservation standard, the lack of which will potentially create
population sinks. It is not apparent within the population models how
the cumulative take of eagles affects their demographic preservation.
The definition of ``persist'' is ``stable with 2009 as the baseline.''
We think there is room for misinterpretation of this definition.
Persistence is related to local populations, and, thus, it may be
difficult to link persistence to the 2009 baseline, given that this
baseline was calculated at a different spatial scale (i.e., not at the
level of local populations). We request further assessment or a better
explanation that clarifies how this concept would apply at local
populations.
Response: The Service's population objective is to maintain stable
or increasing populations of both species of eagle at the EMU-scale,
while at the same time ensuring the persistence of local populations.
It is the EMU component of the objective that has been analyzed
demographically and determined to be consistent with maintaining viable
populations; we show in the Status Report that take at the maximum
level allowed at the LAP-scale will have negative effects on local
populations, though our analysis suggests local populations should
still persist. Taken together, the two-tiered population objective
means that across an EMU, we might well have areas where eagle take is
high and local populations decline to lower equilibriums, whereas
elsewhere in the EMU eagle populations are not affected substantially
by authorized take to the same degree (or are increasing as a result of
the application of compensatory mitigation), such that across the whole
of the EMU the population, on average, is stable or increasing.
Comment: The preservation standard proposed for two species not
listed under the ESA generally exceeds federal ESA standards. There was
an expectation that the Service would revise the preservation standard
used for the two eagles as the standard provides greater protection
than is required and contributes to a number of management actions
(calibrating population estimates, estimating take, monitoring efforts)
that detract from management needs related to numerous other species
for which there are legitimate and often urgent conservation concerns.
Response: The Service is charged with upholding the Eagle Act by
protecting and conserving the two species it covers. In the case of
bald eagles, we recognize that there are many other species
experiencing significantly greater threats to their populations.
However, the Eagle Act requires that we allocate resources to protect
bald eagles consistent with congressional purpose stated in the
enacting clause of the 1940 Eagle Protection Act: ``by tradition and
custom during the life of this Nation, the bald eagle is no longer a
mere bird of biological interest but a symbol of the American ideals of
freedom.'' And, of course, bald eagles, as well as golden eagles, have
special cultural significance to Native American tribes.
Golden eagle populations appear to be well below what their
carrying capacity would be were it not for high levels of anthropogenic
mortality. We acknowledge that attempting to maintain current numbers
of golden eagles is in part a policy choice: The Service could have
chosen any reasonable interpretation of Congressional intent, as long
as it was consistent with the statutory language and the legislative
history behind it. For
[[Page 91511]]
example, we could have argued that the preservation standard allows for
golden eagle populations to further decline to some new lower level and
then preserve golden eagles at that lower population level. We also
could have argued that recovery to a much higher population is
warranted. However, the policy choice we made is based on what we
consider, in our best scientific judgment, to be the most appropriate
interpretation of the preservation standard and the overall statutory
mandate to conserve and protect both eagle species, which factors in
science, legislative history, and the value of golden eagles
culturally, symbolically, and ecologically. We considered all these
factors in defining ``preservation'' under the Eagle Act so as to
protect the golden eagle populations that we have. In short, we believe
that is our responsibility and our mandate.
This legislative mandate to protect eagles under the Eagle Act is
separate and apart from our mandate to conserve, protect, and recover
species under the Endangered Species Act. The purposes and policy goals
of both statutes overlap to some extent, but are also different in many
ways. As such, it is not appropriate to create parallel species
conservation, protection, and recovery standards under each statute or
to establish an equivalent standard under the Eagle Act that provides
less protection than the Endangered Species Act. Instead, our
regulations under each statute protect covered species in different
ways, consistent with legislative intent.
Comment: The proposed rule inaccurately cites the current
definition of the preservation standard as ``consistent with the goal
of maintaining stable or increasing breeding populations'' (81 FR
27934, May 6, 2016, p. 27937). But the 2009 rule expressly rejected use
of the word ``maintaining,'' which was in the proposed rule, explaining
that it could be misapplied to constrain any authorization of take
because any take of a bald or golden eagle by some degree results in a
population decrease, even if short-term and inconsequential for the
long-term preservation of the species. Thus, the word ``maintaining''
would render the Service unable to authorize any take (74 FR 46836,
September 11, 2009, pp. 74 FR 46838-46839). Now, the Service proposes
to revive the very same word it found would improperly restrict
issuance of take permits in 2009.
Response: We appreciate this comment, which is accurate. The
wording in the 2009 regulations did not contain the word
``maintaining,'' and we are correcting it with reference to the 2009
regulations While we concede that ``maintaining'' could be
misinterpreted as noted in the preamble to 2009 regulations, we have
built enough of a record by now that our intent should be clear: That
the goal is to maintain populations over the long term. For the
definition we are codifying in this final rule, we are retaining the
word ``maintaining'' because it serves a constructive role in relating
the two goals of the revised definition together.
Comment: The addition of the term ``persistence'' to the
preservation standard is confusing, as it adds another layer of
definitions, with the Service stating that ``persist'' is defined as
``stable with 2009 as a baseline.'' At worst, this seems to decrease
the current standard and at best, it adds unneeded complexity and
confusion. We recommend that the preservation standard keep ``stable or
increasing'' as the standard for both EMUs and LAPs, by deleting
``persistence of'' in the proposed definition. The revised preservation
standard would read, ``consistent with the goals of maintaining stable
or increasing breeding populations in all eagle management units and
local populations throughout the geographic range of both species.''
Response: We have clarified in the preamble discussion of the
preservation standard that we intend the 2009 baseline to apply to
regional EMU populations, but not local populations. For one, the LAP
analysis requirement helps us ensure the persistence of local
populations, but does not measure a fixed local population. The LAP
analysis calculates the authorized take within the area of an activity
that may take eagles, and uses the average density of eagles in the EMU
as an estimate of the number of eagles within a certain distance of the
project. Therefore, there are no specific local populations that we
could track as increasing or decreasing, even if we had the capacity to
obtain data at that fine a scale, which we do not. Because there would
be no means of measuring whether theoretically discrete local
populations were stable, decreasing, or increasing, we are not adopting
the commenter's suggested modification of the standard. Retaining
``persistence'' in the definition helps to clarify our intent in that
regard.
Comment: The inclusion of a management goal for populations on a
more localized scale is appropriate. However, the Service should use
consistent terms when referring to this scale by using the term local
area population (LAP) in the preservation standard: ``. . . in all
eagle management units and persistence of LAPs throughout the
geographic range of both species.''
Response: We appreciate the intent behind this recommendation, but
a ``LAP'' is not a discrete population, but rather a calculation of the
number of eagles within the area of a given project or activity,
specifically, the number of eagles estimated to be within the area
bounded by the natal dispersal distance for the respective species. See
our response to the previous comment for more explanation.
Comment: Despite extensive discussion of management objectives in
the preamble to the proposed rule, it is unclear how the Service
intends to establish its take ``baseline,'' from which permissible
future take in any given EMU will be calculated. The Service fails to
provide a defensible rationale for establishing a take baseline based
on eagle populations as they existed in 2009, or any other point in
history.
Response: The approach used by the Service to establish the
baseline and subsequent take limits is covered extensively in the first
35 pages of the Status Report and in the chapters of the programmatic
environmental impact statement (PEIS) on bald and golden eagles. Please
refer to these documents.
With respect to the assertion that the Service failed to provide a
rationale for its population objective, we disagree and point out that
the current management objective is directly derived from and
consistent with the determination made with the adoption of the initial
nonpurposeful take permit regulations in 2009. We do not doubt that
continental populations of both species were at times larger or smaller
than they are today, but that is not a compelling reason to set a
different and likely unattainable population objective. The Status
Report indicates there is a high probability that meeting the
objectives the Service proposed for both species will ensure healthy
populations at the EMU level for the foreseeable future. Moreover, the
commitment to collect and consider new population information regularly
as part of the adaptive management process ensures that there will be
opportunities to adjust the objectives, take rates, and take limits on
a recurring basis.
Comment: In the proposed rule, there is no consideration of age and
sex of eagles taken under incidental take permits, nor is there regard
for the time of year when the impacts will occur or of the status of
the population affected. There is no consideration of carrying capacity
or of how the loss of specific individuals might have affected other
eagles. The proposed rule largely
[[Page 91512]]
ignores the context in which the impacts of incidental take will occur.
Response: The Service agrees with this commenter that the
population status, age, and (in some circumstances) the sex of eagles
killed matters in terms of the scale of population impact; however, we
disagree that we have ignored these factors in setting up the
permitting program. With regard to spatial variation in status, the
Service examined existing demographic data for regional differences in
vital rates, and established EMUs and population estimates for EMUs
accordingly. With regard to other factors, how or whether the
probability of take under various activities varies according to eagle
age and sex has not been quantified broadly for either species of
eagle. Thus, the Service's models assume that take under incidental
take permits will be in proportion to the abundance of exposed age
classes and sexes. The Service has established a policy to determine
the age and sex of eagles taken under permits, and over time as part of
the adaptive management process, and as this information accrues we
will evaluate whether risk is disproportionate for any of these groups
across the various activities that incidentally take eagles. The Eagle
Conservation Plan Guidance (ECPG; U. S. Fish and Wildlife Service 2013)
identifies age, in particular, as a factor the Service suspects
influences collision risk at wind facilities. The implications of the
data collected on the age and sex of eagles taken under permits will be
considered by the Service in future updates to the Status Report, and,
if warranted, these assessments could lead to other changes in the
permit program.
Comment: Proposed Sec. 22.3 articulates the preservation standard
as ``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 [eagle]
species.'' It is unclear what ``persistence of local populations''
means, and the basis for including local management in a standard
intended to manage the take of eagles at a national level is puzzling.
At a minimum, the preservation standard articulates a management scale
that is internally contradictory.
Response: With respect to the relevancy of the LAP scale of eagle
management, recent data from satellite tracking studies show that while
both bald and golden eagles range widely, there is high philopatry (the
tendency of an organism to stay in or return to a particular area) to
natal, wintering, and migration stopover areas. Thus, local impacts can
have far-reaching effects on eagle populations. Local populations of
eagles also are of great cultural and social importance. The Service
received many comments from states, tribes, local governments, and
environmental organizations in support of including the persistence of
local eagle populations in the management objective for eagles. The
Service disagrees that including this scale of management is
contradictory. The LAP population size estimate is based on the eagle
densities estimates in the surrounding region, and those density
estimates are biologically based and derived from actual eagle count
data at the finest scale available. As to the LAP area, it is based on
the natal dispersal distance of each eagle species, and as such
represents the most applicable area over which the effect of an
individual incidental take permit should be measured. The Service
believes that preservation of local eagle populations accomplishes both
important biological and cultural objectives, and that the EMU-scale
analysis alone is not sufficient to evaluate and account for local and
cumulative effects of an incidental eagle take permit.
Comment: Congress intended the Secretary to treat take authorized
for scientific and religious purposes differently than take authorized
for the protection of wildlife or agricultural or ``other'' purposes.
Specifically, while Congress expressly conditioned the Secretary's
ability to authorize scientific/religious take to take that is
``compatible with the preservation of the species,'' Congress's
subsequent text imposes no similar condition on the Secretary's ability
to authorize take for the protection of wildlife, agricultural, or
``other'' interests, except that such take is ``necessary'' to protect
the interest at issue. Accordingly, Congress did not intend to limit
the Secretary's ability to issue permits for non-scientific, non-
religious take only to situations where doing so would be ``compatible
with the preservation of the species.'' This conclusion is supported by
the legislative history of the Eagle Act, which nowhere suggests that
each take authorized for agricultural or ``other'' interests should be
conditioned on compatibility with the preservation of the species. To
the contrary, one of the express purposes of amending the Eagle Act in
1960 was to provide the Secretary with the authority necessary to issue
eagle take permits to accommodate overriding local or commercial
interests (see, e.g., Senate Report No. 87-1986, at 85,007-008, 85,011,
85,013 (1960) (explaining Congressional intent to carve out an
exception from the preservation standard where necessary to protect
important commercial interests); House Report No. 87-1450, at 72,007,
72,010-011 (same)). Because the Service proposes to condition all eagle
take on the preservation standard that Congress intended to apply only
to scientific and religious take, the proposal is inconsistent with law
and vulnerable under the APA.
Response: The legislative history does not support the commenter's
position. The referenced Senate Report states that ``it is expected
that thus the conservation purposes of the bill will be preserved,
while at the same time any potential economic hardship to limited areas
can be obviated.'' Although the Committee was referring to the proposed
new authority to allow a state Governor to request a depredation
control order, this language supports interpreting the preservation
standard to apply to the whole of 16 U.S.C. 668a, or at least to a
clause other than the religious and scientific or exhibition purposes
clause. The testimony also refers to both religious take and control to
protect agricultural interests. In neither context does the testimony
reference the preservation standard as limiting that authorization, and
as such it provides no indication Congress intended that the two
exceptions be treated differently. As noted by the commenter, the House
Report is similar.
The crux of the issue is that the statutory language authorizes the
Secretary to permit the take of eagles for the protection of ``other
interests in any particular locality''; it does not provide a blanket
exception to the take prohibition or the Eagle Act's civil or criminal
penalties for those interests. This means the Secretary has discretion
to apply reasonable conditions to that authorization. Thus, even if the
commenter were correct that the preservation standard does not apply on
the face of the statute, the Secretary may place restrictions on take
necessary to protect the species consistent with the purposes of the
statute (which references a preservation standard in at least some
contexts).
Comment: The Service's population management objectives should be
focused on the continued growth of all eagle populations in every
extent of their current and historical geographic ranges, and any
management strategy should support this tenet or be amended to meet
that objective.
Comment: The preservation standard should be re-phrased to make the
goal of this permitting program to increase eagle populations. The
Service should clarify that the relatively arbitrary 2009
[[Page 91513]]
baseline represents a minimum ``floor'' for population management. This
floor does not represent the Service's aspirational goal but rather a
threshold that will trigger additional action should populations fall
below it. To this end, we recommend that the Service rephrase the
preservation standard under 50 CFR 22.3 as follows: ``Consistent with
the goals of increasing breeding populations, or at a minimum maintain
stable breeding populations.''
Response: We are confident that the management approach we are
adopting will allow bald eagle populations to continue to grow for some
time in most EMUs. As we describe in the Status Report, we expect bald
eagle numbers to eventually stabilize at approximately 228,000 eagles
by about 2030. We believe that maintaining current numbers of golden
eagles is a worthy and achievable goal for the near term. It is our
hope that our management approach may also provide for eventual, modest
growth in golden eagle populations to better approximate what carrying
capacity would be in the absence of high levels of human-caused sources
of mortality. The 1.2 to 1 compensatory mitigation ratio and the
reduction of unauthorized take as it comes under the permit
requirements to avoid and minimize impacts to eagles are the primary
regulatory mechanisms by which these regulations could provide that
outcome in the long term.
As the second commenter states, the 2009 baseline does indeed
represent a minimum ``floor'' for population management. It is not the
Service's aspirational goal. It is a threshold below which our
management goal for eagles would not be met. With regard to the
specific recommendation that the standard should read ``consistent with
the goals of increasing breeding populations, or at a minimum maintain
stable breeding populations . . . ,'' we do not agree that it would be
good public policy to stipulate a goal of increasing a species'
population size without also being specific as to why, by how much, and
where, all factors for which the Service lacks any specific objective
criteria. The Status Report indicates there is a high probability that
meeting the objectives the Service proposed for both species will
ensure healthy populations at the EMU level for the foreseeable future.
As noted above, we believe bald eagle populations will continue to
increase despite some additional authorized take. At present, the
Service has not been presented with evidence that suggests stable
populations of golden eagles would not satisfy both reasonable
biological and societal needs.
Comment: The Service proposes to add the clause ``and the
persistence of local populations, throughout the geographic range of
both species'' to the definition of the preservation standard. This
contradicts and undermines the assumptions of the Service's biological
opinions issued in support of habitat conservation plans (HCPs) and ESA
incidental take permits that cover golden eagles. In approving those
HCPs, the Service issued multiple biological opinions concluding that
local populations of golden eagles were not critical for the long-term
survival of the species.
Response: The ESA and the Eagle Act have different conservation
standards and purposes. While the ESA has as its bottom line that
permitted take must not more than negligibly contribute to the
extirpation of a species, the Service interprets the Eagle Act's
preservation standard, even prior to the amendments to our regulations
being made by this final rule, as intended to maintain sustainable
population levels throughout the range of each species. We note that at
the time that the HCPs and ESA take permits covering golden eagles were
developed, the permits conferred no authorization to take golden eagles
under the Eagle Act, but rather included statements that the Service
would exercise its enforcement discretion so long as the permittees
remained in compliance with the incidental take permits' terms and
conditions specific to eagles. Since then, because of revisions we made
to our regulations in 2008, ESA incidental take permits that cover
eagles, if conditioned in accordance with Eagle Act standards, also
convey take authorization under the Eagle Act. In that regulation, we
stated the following with respect to existing incidental take permits
that included golden eagles as a covered species: ``The statutory and
regulatory criteria for issuing those ESA authorizations included
minimization, mitigation, or other conservation measures that also
satisfied the statutory mandate under [the] Eagle Act that authorized
take must be compatible with the preservation of the bald or golden
eagle.'' 73 FR 29,075 (May 20, 2008). This means the existing ESA
golden eagle incidental take permits are ``grandfathered'' by the 2008
regulation revision and as such are not contradicted or undermined by
these final regulations.
Avoidance and Minimization
Comment: The proposed removal of the ``unavoidable standard'' and
replacement with a standard of practicability is too lenient and leaves
unacceptable room for subjective interpretation.
Response: The Service views the requirement that programmatic
permittees reduce take to the point where any take that occurs is
completely unavoidable as just as subjective in practice as a standard
requiring reduction of take to the maximum degree practicable. In
addition, the practicability standard is clearer, more reasonable, and
realistic.
Comment: The Service should provide more details regarding how the
various considerations in the definition of ``practicable'' will be
accounted for, weighted, and implemented in an objective manner.
Response: The Service's definition of ``practicable'' in this rule
mirrors the definition of that term in Service mitigation policy, as
well as other federal agency mitigation policies and regulations. The
Service also intends to implement the consideration of practicability
with regard to mitigation measures in a manner consistent with these
mitigation policies and regulations. The consideration of what is
practicable is complex and context-dependent and is described in more
detail in the preamble to this rulemaking above. Further details about
how practicable considerations are implemented may be detailed in
future guidance.
Comment: Under the proposed rule, 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. The Service should not impose such measures on projects
unless outlined in the permit conditions, or if take has exceeded
anticipated levels. Instead, the Service should include a ``No
Surprises'' concept in the final rule that would protect permittees
from unforeseen circumstances beyond a permittee's control.
Response: We modified the language covering 5-year reviews for this
final rule such that additional conservation measures to be implemented
based on the review will be limited to those described in the adaptive
management plan for the permit, unless the take exceeds the authorized
take levels or the permittee is otherwise out of compliance with the
permit conditions. The final rule also includes the following language:
``However, with consent of the permittee, the Service may make
additional changes to a permit, including additional or modified
appropriate and practicable avoidance and/or minimization measures
shown to be effective in
[[Page 91514]]
reducing risk to eagles'' (50 CFR 22.26(c)(7)(iv)(D)).
Comment: It is inappropriate to consider cost in the definition of
``practicable.'' The Service has the legal authority to require
permittees who take eagles to comply with the best available
scientifically defensible measures to limit take regardless of cost.
Response: The previous definition of practicable included
considering cost, as do most definitions of the term in federal policy.
If an applicant cannot afford a mitigation measure, or if the cost of a
mitigation measure renders a commercial project financially infeasible,
then the mitigation measure is not capable of being done by that
applicant, and is not practicable. However, the burden of proof is on
the applicant to demonstrate a mitigation measure is not practicable.
Comment: The Service proposes to revise the definition of the term
``practicable.'' However, the new definition seems to provide ample
room for debate and interpretation with project proponents. The Service
should define mechanisms to ensure that projects meet this definition
and that proponents truly are avoiding take to the greatest extent
practicable.
Response: We hope to develop future guidance to ensure a
consistent, objective approach is taken when evaluating the
practicability of mitigation measures. In any case, the previous
definition of the term practicable has already provided plenty of room
for debate and interpretation. We do not expect our new definition to
change that dynamic and that was not our intent.
Comment: The Service's proposed definition of practicable is
inconsistent with the Service's obligation and authority to permit
eagle take only when it is ``compatible with the preservation of the
bald eagle or the golden eagle.''
Response: Both standards apply. If there are no practicable
measures or compensatory mitigation actions that a project proponent
can undertake to ensure compatibility with the preservation of eagles,
the Service will not issue an incidental eagle take permit.
Comment: The Service should add ``project economics and location''
to the definition of ``practicable'' at proposed 50 CFR 22.3 to
harmonize the language of the regulations with the intended purpose to
establish a workable ``practicability'' standard.
Response: We do not agree that the addition of ``project economics
and location'' is appropriate. Project economics implies that permits
are always issued for commercial activities, but many eagle incidental
take permits are issued to homeowners and government agencies. The
addition of location is not appropriate because whether a project can
be sited elsewhere may be part of the consideration of what is
practicable.
Comment: Courts have noted that the Service's definition of
practicable ``looks to whether the mitigation is rationally related to
the level of take under the plan.'' Key language from the existing
regulations recognized this rational relationship requirement:
``Practicable means capable of being done after taking into
consideration, relative to the magnitude of the impacts to eagles, the
following three things: The cost of remedy compared to proponent
resources; existing technology; and logistics in light of overall
project purposes.'' The Service should ensure that this rational
relationship requirement carries over into the new definition of
practicable.
Response: We agree that the determination of what is practicable
must include consideration of the magnitude of the impacts of the
activity on eagles. The regulations capture this consideration at 50
CFR 22.26(e)(5) addressing the factors the Service must consider in
determining whether to issue a permit, which reads: ``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.''
Comment: In the final rule, the Service should provide a more
detailed description of elements of an adaptive management program
suitable for protection of eagles, to include: Details on the process
for development of the plan; opportunities for regulated entities to
participate in discussions about adding or removing mitigation
measures; mitigation measures that the Service identifies as suitable
for the objective of reduced eagle disturbance or mortality; and at 5-
year reviews, the process for determining which mitigation measures
will be included for a subsequent 5-year period.
Response: The elements cited by the commenter as needing more
detailed description (e.g., suitable mitigation measures, the process
for determining when mitigation measures will be applied) will vary
significantly depending on the type of activity that is being permitted
and how it affects eagles. For example, mitigation measures and the
trigger points for implementing them are likely to be very different
for mining operations versus wind energy facilities. The ECPG contains
a detailed description of the process the Service is using for adaptive
management under incidental take permits at wind facilities, and we
refer this commenter to that document for an example of how adaptive
management will be implemented under permits for wind energy
facilities.
Comment: The Service has apparently not heeded any of the elements
of the precautionary principle or the advice of the National Research
Council when making decisions about rare or precious resources in the
face of high uncertainty.
Response: The entire eagle incidental take program has been built
around explicitly accounting for uncertainty and then being clear about
how that uncertainty is addressed in decisions. Adaptive management is
a process of adaptive learning, whereby: (1) Predictions are made
regarding anticipated effects of an activity; (2) data regarding the
outcomes of the activity are collected; (3) the predictions are updated
to reflect the actual outcomes of the activity; and (4) the updated
predictions are used to change the activity, either in the future at
the same site or at other places where the same activity is being
contemplated. The Service has described its adaptive management
framework for eagle incidental take permits in the ECPG (Appendix A),
and in the preamble to this final rule. The overall framework is
intended to account for, and over time to reduce, uncertainty in the
effects of wind facility siting, design, and operations on eagles. More
broadly than for just wind energy, the adaptive management process is
also intended to address uncertainty in compensatory mitigation and the
effects of established take rates on eagles. This uncertainty is
reduced over time by using information collect on the actual outcomes
of the activity to update the predictive models used initially to
estimate those effects; over time, the accuracy and precision of the
predictive models is improved through these updates. We describe how
the risk posed by uncertainty is addressed in the response to other
comments, but we reiterate here that in all cases the Service has
adopted approaches that are protective of eagles.
Comment: Permittees should also be required to conduct research and
analysis to test methods to reduce lethal take during their permit
life. There should be an expectation that all projects will be required
to reduce their lethal takes over time.
Response: The adaptive management framework outlined by the Service
includes a requirement that permittees monitor eagle take and, on a
case-by-case basis, other factors associated with
[[Page 91515]]
that take under their permits. The Service will use this information as
part of the adaptive management process outlined in the ECPG to
determine or add to existing knowledge of factors associated with eagle
mortality under different activities and to evaluate the effectiveness
of different avoidance and minimization measures. Through monitoring,
5-year reviews, and the adaptive management process, our goal is to
reduce take over time.
Comment: A coordinated research program should be instituted to
develop new and effective mitigation measures for wind energy
facilities.
Response: We agree additional research would benefit eagle
conservation and the Service's permitting program. The permit program
is designed to collect relevant data that can be used to evaluate the
effectiveness of minimization, avoidance, and mitigation measures. This
adaptive management approach allows for the incorporation of new
information and practices over time. This approach is described in
detail for eagle take permits for wind facilities in the ECPG.
Comment: The Service should retain the requirement for applying
advance conservation measures (ACPs) to mitigate eagle take.
Experimental ACPs are appropriate where established ACPs are not
available.
Response: The Service eliminated ACPs from the regulations due to
confusion about the standards by which ACPs were to be developed and
what it means to reduce take to the point where it is unavoidable. We
believe the new language is more consistent with Service policy and is
clearer. Applicants must still implement all practicable avoidance and
minimization strategies for their activities, and, conditioned on terms
and conditions set in the initial permit, testing of experimental
measures to reduce eagle take as, for example, described for wind
energy facilities in the ECPG as part of the adaptive management
process.
Comment: Application of minimization strategies should be on a
project-by-project basis to determine whether the measure is
practicable for that project.
Response: All practicable avoidance and minimization measures
demonstrated to reduce take levels will be required. There are many
considerations in determining whether mitigation measures are
practicable for a particular project, including the magnitude of the
impact to eagles. For example, if a project poses a relatively low risk
of eagle take, imposing expensive monitoring and curtailment measures
is not commensurate with the risk, whereas this strategy may be
appropriate at a high risk site.
Duration and 5-Year Reviews
Comment: The proposed change from 5-year permits to 30-year permits
has the potential to decrease golden eagle population numbers in the
Southwest, making it more difficult for tribes who rely on the
ceremonial and religious take of golden eagles (as they have for
centuries), to secure their own permits for take under the Eagle Act.
Even with the prioritization given to tribal take permits, a tribe's
ability to engage in longstanding religious and traditional take of
golden eagles may nevertheless be constrained if golden eagles are so
impacted by wind energy on a local or regional basis as to become
unavailable for this purpose.
Response: The regulations are designed not only to protect eagles
but, in the case of golden eagles, to improve their condition. The
management approach we are adopting through this rulemaking is risk-
averse with respect to estimating impacts on eagles. Population sizes,
sustainable take rates, and, for wind facility permits, eagle fatality
estimates for individual projects are all based on scientifically peer-
reviewed models that are designed to provide data that allow the
Service to explicitly select the level of risk with respect to being
more versus less protective of eagles. For each aspect of the
management and permitting process, we are using values for decision-
making that shift the risk in an 80:20 ratio towards being protective
of eagles. Thus, the actual eagle population size in each EMU and the
true sustainable take rate are both highly likely (80% likely) to be
larger than the values used by the Service, so that when they are
multiplied together to get the take limit, that value is even more
unlikely to exceed the actual sustainable take limit for the EMU.
Similarly, the eagle fatality estimates for individual wind projects
are unlikely to underestimate the actual take rates, and as a result,
authorized take over all wind projects is very unlikely to exceed the
EMU take limits. While improvements in the precision of all of these
estimates through adaptive management should decrease uncertainty and
thus shrink the magnitude of the difference between the expected
fatality rate and the permitted take limit over time, as a matter of
policy, the difference will always be in favor of protection of eagles.
Furthermore, all golden eagle take authorized under this permit
regulation will require compensatory mitigation at a 1.2 to 1 ratio,
meaning that for every five incidental takes of golden eagles, six
golden eagles will be protected that otherwise would have been lost.
Comment: The final rule should clarify that its increased take
limits and permit durations apply to all industries. The Service should
clarify that permits will be issued to all applicants on an equal basis
and that the number of eagle takes authorized and the term of the
permit will not depend on the applicant's industry.
Response: The increased take limits apply equally to all industry
types. The increased permit duration also applies to all types of
entities. We will issue permits to all applicants on an equal basis.
The number of eagle takes authorized and the term of the permit will
depend on the specifics of the individual project and not the
applicant's industry.
Comment: While the short duration may be a deterrent to industries
to applying for permits and participating in a regulation scheme, a
600% increase in duration is too large of a leap. The Service should
consider a 15-year initial permit duration, with a renewal option every
5 years. This approach balances the need for a longer, more realistic
permitting procedure with the need to closely regulate the potential
for loss of life and nests of these eagles, which remain protected
species.
Comment: Given the rapid changes due to climate change in the
region, especially related to water regimens and their impact on
habitat and eagle prey populations, it would seem prudent to limit the
maximum permit duration to 5 years in order to more rapidly respond to
changes in local eagle populations and productivity wrought by climate
change. A more conservative, shorter-duration permit than 30 years
provides opportunities for real-time incorporation of rapidly evolving
scientific knowledge, especially regarding population estimates, take
thresholds and caps, and evaluation of unforeseen impacts and changes
in the population dynamics of eagles.
Comment: The rule should be clear that permit duration will be
tiered to certainty of risk and expected impacts to eagles, both of
which remain extremely uncertain.
Response: These final regulations establish a maximum permit
duration of 30 years. Permits valid for longer than 5 years can be of
any duration between 5 years and 30 years. The Service will consider
the degree of uncertainty as to the effects of the permitted activity,
site-specific factors, and other information to determine appropriate
durations for individual permits.
[[Page 91516]]
Comment: The 5-year reviews of long-term permits are unnecessary,
especially for projects for which the adaptive management strategy can
respond to actual events. Every project that receives a permit under
this rule will provide annual reports to the Service, providing the
Service the opportunity to regularly review the specific eagle
mortality, avoidance, minimization, adaptive management, and mitigation
measures addressed in a permit. Formal review periods short of the
permit term would invalidate the protections and intent of the 30-year
permit.
Comment: While the 5-year review periods are appropriate, they
would not be necessary for all projects, particularly if a fatality
prediction is low. Any in-depth review should be reserved for extreme
cases where data prove continued operation under current permit
conditions would result in population-level impacts.
Comment: A wind project 20- to 30-year eagle permit with
substantive reviews every 5 years is very difficult to finance and
operate commercially. Opening up the eagle permit for substantive
reviews every 5 years is a significant financial uncertainty,
burdensome to already overly committed Service staff, and a cost for
applicants that presents a significant disincentive to seek a permit.
Response: The 5-year review is a reasonable and justified provision
that appropriately balances the Service's responsibility to ensure the
preservation of bald and golden eagles, while also creating benefits to
industries seeking long-term permits. In response to the comment that
the reviews are unnecessary, particularly for projects for which the
adaptive management strategy can respond to actual events, the 5-year
review is the mechanism by which we determine whether the adaptive
management strategy is able to respond to actual events. Annual reports
are important, but eagle presence and exposure to permitted activities
varies from year to year, such that it would be imprudent (not to
mention impractical) for the Service to react annually to those
variable events.
We anticipate that the 5-year reviews will typically benefit
permittees because, under the conservative management approach we are
taking, the authorized take will usually be higher than the actual
take. For golden eagles, this means that excess compensatory mitigation
can be credited to the permittee at that point and the excess
``rolled'' into the next 5-year period. Without the 5-year review, most
long-term permittees will contribute more compensatory mitigation than
is needed to meet the compensatory mitigation ratio of 1.2 to 1. The
typically lower take rate will also mean the Service can adjust the
authorized take to a lower amount for permits for both species of
eagles, and adjust debits to the EMU and LAP take limits appropriately.
Additionally, the 5-year review may demonstrate that some conservation
measures or other permit conditions may not be effective or necessary,
allowing the Service to reduce or eliminate those requirements.
Even for permits with low fatality predictions, we believe it would
be remiss not to review whether eagle take is within the authorized
level, and whether there are elements of the adaptive management
strategy that should be implemented. That a long-term permit with
substantive reviews every 5 years might in some cases be ``very
difficult to finance and operate commercially'' is a factor that
project proponents will need to consider when siting projects in eagle
habitat.
In response to concerns that shorter-term permits are necessary to
protect eagles from effects of climate change or other factors that
could affect eagle populations, we agree that under the most ideal
circumstances for eagles, owners and operators of projects in eagle
habitat could be persuaded or, if necessary, be required to revisit and
modify any aspect of their operations to benefit eagles. That ideal is
simply not realistic, whether the activity is permitted under a 5-, 10-
, or 30-year permit. For good or for worse, much of the physical
infrastructure that humans establish on the landscape is semi-permanent
in nature, and projects are as unlikely to be significantly altered at
the end of a 5-year eagle take permit term as they are at the 5-year
point of a 30-year permit. The situation up until the time of this
final rule being issued is that the Service has issued only four
permits for ongoing take that may occur over decades. We expect many
more projects to seek permits with longer durations because the longer
duration is the single biggest change project proponents and operators
have attested they need for this permit program to be workable for
longer-term activities. Compared to a scenario where activities that
take eagles do so with little to no avoidance and minimization measures
to protect eagles, and no compensatory mitigation, we anticipate that
long-term permits with adaptive management strategies and 5-year
reviews will be beneficial to eagle populations.
Comment: It may be justifiable for projects that exceed the take
authorization specified in the permit to be required to implement
additional measures and seek a permit amendment. However, the permit
cannot be re-opened for reasons unrelated to the project or outside the
permittee's control. These reasons may include unanticipated
detrimental changes in the status of the local population due to
factors such as non-permitted take (e.g., shooting, poisoning);
disease; or shifting/declining ranges due to climate change, fire, or
other environmental factors. The rule must be clear that permittees
would not be responsible for implementing additional mitigation or
minimization measures due to these circumstances. At a minimum, the
rule should establish long-term adaptive management cost caps that can
be relied on to ensure project viability.
Comment: Given that eagle populations can change significantly over
30 years, the final rule should detail an adaptive management approach
that ensures the Service retains the ability to reduce take if eagle
populations are negatively influenced during the life of the permit.
Comment: The final rule should incorporate clarifying language
indicating that the Service retains the ability to revoke a permit for
continued excessive take, and it should more clearly define a process
by which permits may be revoked.
Response: This final rule incorporates modified language to address
the adaptive management provisions and the types of actions the Service
may take in 5-year reviews. Specifically, more emphasis will be placed
on building in a robust suite of adaptive management measures upfront
in the permit. If a permittee is in compliance with permit terms and
the authorized take under the permit is not exceeded, no other actions
will be required. With consent of the permittee, the Service may make
additional changes to a permit, including additional or modified,
appropriate and practicable avoidance and/or minimization measures that
are likely to reduce risk to eagles. If the permittee agrees to
undertake such additional measures, appropriate adjustments will be
made in fatality predictions, take estimates, and compensatory
mitigation.
If authorized take is exceeded, that will generally trigger
modifications by the Service. However, whether modifications to permit
terms are required will depend on the circumstances. Because the
Service will set take authorizations conservatively, we expect actual
take to be lower than what was authorized 80% of the time and higher
than what was authorized only 20% of the time, at least during the
first 5 years, prior to predicted take
[[Page 91517]]
being adjusted based on the observed levels of take in the first 5
years. Because 20% of permitted projects are expected to exceed the
authorized take levels, the appropriate response when that occurs
depends on the circumstances, including how much actual take exceeded
authorized take, and what other factors, if any, may have affected the
take level.
Permit revocation criteria that apply to all Service permits are
found at 50 CFR 13.28. Section 13.28(a)(5) provides that a permit may
be revoked if ``the population(s) of the wildlife or plant that is the
subject of the permit declines to the extent that continuation of the
permitted activity would be detrimental to maintenance or recovery of
the affected population.'' Prior to any permit revocation under such
conditions, the Service is likely to request that the permittee adopt
additional measures to avoid and minimize take of eagles rather than be
subject to permit revocation.
Comment: The idea of a periodic review of a permit for
effectiveness has merit, but is a 5-year period for the 30-year permit
the best timeframe? If in the first year or two the actual documented
take significantly exceeds the predicted take, should action not be
initiated sooner? Or, if actual take is at predicted levels, or lower
than predicted, would that create the basis for the permit to move to a
10-year mandatory review period? The use of an arbitrary timeframe
versus actual impacts as the trigger for a review raises questions.
Comment: If the final rule retains the provision for long-term
permits, they should be evaluated at shorter intervals than 5 years.
Permits should be automatically reviewed if the number of take exceeds
the average annual ``take'' (e.g., a 3-year permit that allots a total
take of 10 ``units'' should be reviewed if there are more than 4
``units'' of take in that year).
Comment: The statement that the Service will evaluate each long-
term permit at no more than 5-year intervals presents ambiguity that
may result in inconsistent administration of the program. The statement
implies that the evaluation interval could be conducted at less than 5
years. If a definitive timeframe cannot be established, the final rule
should describe when evaluations would occur at less than a 5-year
interval.
Response: The rationale for the 5-year timeframe for the periodic
review is as follows. The observed level of take is likely to vary from
year to year. For example, in the first 2 years, there may be no take,
but in the third year, perhaps due to environmental factors, estimated
take (based on observed levels of take using approved protocols for
monitoring, searching, and estimating take) is three eagles. If no take
occurs in years four and five, then take over the 5-year period totals
three eagles, which gives the Service and the permittee a reasonable
idea of what the average level of take is likely to be. If it happened
that three eagles were taken the first year, but none in the next 4
years, the average would be the same: Three eagles over a 5-year
period, but it might have appeared after the first year that annual
take would be higher because year one had a much higher level of take
than the four subsequent years. For that reason, we are unlikely to
revisit the permit terms within the 5-year period unless the level of
take exceeds anticipated and authorized take levels for the 5-year
period.
Comment: The final rule should describe, at a minimum: (1) The
consequences to, and expectations for, the applicant of unexpected
take; (2) the specific additional mitigation measures that may be
required; and (3) any relevant ``triggers,'' such as when permits will
be reviewed.
Response: In general, as noted in our response to the previous
comments, the Service will conduct permit reviews for long-term permits
every 5 years. As noted above, if authorized take levels for the 5-year
period are exceeded, we may need to revisit the permit terms and
conditions sooner than in year 5. Individual permits will have
different adaptive management measures tailored for the type of
activity and site-specific factors spelled out, including when the
permittee would need to implement them.
Comment: The Service must adopt a process by which the public and
concerned conservation organizations will be routinely involved in the
``internal'' 5-year reviews if a 30-year permit is approved. Otherwise,
to adhere to the NEPA provisions for public involvement in the
permitting process, the Service will need to continue with a 5-year
permitting system.
Response: There is not a requirement under NEPA to involve the
public in a permit renewal process or a 5-year review process unless
there is a need to supplement the associated NEPA analysis underpinning
the original permit decision. Public involvement would be limited to
reviewing a draft supplemental EA/EIS and would not be part of
Service's regulatory review procedure set out for the permit itself,
whether the action is permit renewal for a 5-year permit or a permit
evaluation conducted every 5 years. Accordingly, there is no difference
in public involvement through NEPA between a 5-year review and a 5-year
renewal.
Comment: The internal review process could eliminate or
significantly curtail public and state agency participation, input, and
oversight after the permit is initially granted. Language should be
included in the rule that expressly allows for public/state agency
mortality and other data sharing, input, and review at each 5-year
interval.
Response: We will coordinate with states and other government
agencies (e.g., federal and tribal) that have regulatory oversight over
the permitted activity and which could be affected by changes to the
federal authorization, when conducting the 5-year reviews. Involving
the public would entail public hearings or notice and comment in the
Federal Register, greatly increasing Service workload and costs,
resulting in delays, and generally making the 5-year review unworkable.
Comment: The Service should notify all affected tribes when it is
conducting a 5-year review of a permit. Upon notice, affected tribes
should be invited to consult or provide input on the permit, including
a consideration of whether eagle takes under the permit necessitate
permit modification.
Response: The same factors would trigger consultation at 5-year
reviews as for the initial permit issuance, i.e., whether the action
(permit issuance or 5-year review) may affect particular tribes. If, at
the beginning of the 5-year review based on information supplied by the
permittee, we determine it is not likely any changes will need to be
made to the permit, or that any required changes are unlikely to affect
particular tribes, then consultation would not be warranted. There may
be unusual circumstances when consultation would be appropriate on a 5-
year review for a project when changes may affect tribal interests,
even when the activity did not need consultation in the first place
when initially permitted.
Comment: The Service should commit to conduct NEPA reviews at the
time it considers issuance of an eagle permit, not at additional 5-year
intervals over the life of the permit.
Response: Some level of NEPA review (EIS, EA, or categorical
exclusion) is always required when a federal agency issues a permit to
authorize any otherwise-prohibited activity. We would only need to
conduct additional NEPA analysis at the 5-year review stage if the
scope or conditions of the authorization substantially change to the
point where supplemental NEPA analysis would be required.
[[Page 91518]]
Comment: The Service has failed to outline how the results of its
5-year review process will be shared with the public at large or
interested tribes or how the review process will trigger additional
obligations to engage in informed and meaningful tribal consultation
about the project under existing laws and policy, including section 106
of the National Historic Preservation Act (NHPA).
Response: The Service will continue to make mortality information
from the annual reports that each permittee is required to submit under
Sec. 22.26(c)(3) available to the public. Neither the 5-year review
process nor the original permit-issuance process contains a public-
notice requirement. Public participation in the initial permit issuance
process is currently, and will remain, limited to any NEPA analysis
that is required to accompany permit issuance, if appropriate (for
example, public participation would be required for an EIS and is
discretionary, consistent with Council on Environmental Quality (CEQ)
and Department of the Interior (DOI) NEPA regulations, for an EA; see
40 CFR parts 1500-1508 and 43 CFR part 46, respectively). Similarly,
public participation in the 5-year-review process will be limited to
any NEPA compliance necessary at that time, which would most likely
take the form of supplementation of the original NEPA analysis
accompanying permit issuance. NHPA compliance is unlikely to be
triggered at the 5-year-review stage unless the Service determines it
is necessary to supplement the original permit-issuance NEPA analysis.
The Service will continue to engage and consult with federally
recognized tribes if the 5-year-review process reveals significant
changes in the effects of the permitted activity on eagles or leads to
any changes to the permit that may affect those tribes.
Comment: A 5-year permit term does not pose any unreasonable
hardship to permittees or to the Service. The permittee has the
opportunity to renew the permit at the end of the 5-year term, and
there is no reason to believe that a permittee who is compliant with
applicable law and the permit conditions will be denied renewal. For
permittees whose projects are not in compliance with their permit or
applicable law, the Service will retain its leverage in ensuring
compliance if it has the opportunity to not renew the permit. Once a
permit is issued, a permittee will vigorously resist any new measures
being imposed on its permit, will argue that additional measures are
not worth the cost, and will likely challenge imposition of costly new
measures in court rather than complying with them at the outset. At
minimum, the permittee will have significantly more (and the Service
less) leverage if the Service is in the position of adding new
conditions to an existing permit as opposed to a permit renewal
context.
Response: We agree that a 5-year permit was not ``an unreasonable
hardship'' to permittees and also that there is no reason to believe
that a permittee who is compliant with applicable law and the permit
conditions will be denied renewal. However, many potential applicants
had a different perspective that appears to have dissuaded them from
obtaining permit coverage. And, we do not agree with the commenter that
we lose leverage under longer-term permits to ensure compliance with
permit terms. We also do not agree that long-term permittees are more
likely to resist new measures than permittees needing to renew permits
for ongoing operations. If anything, long-term permittees would be less
likely to resist changes imposed at the 5-year stage because the
additional measures will, in many cases, already be part of the
adaptive management terms and conditions of long-term permits.
Comment: The Service's commitment to engage in a 5-year review
process offers little comfort, since little can be done to avoid any
unanticipated level of take of eagles after the facility is developed.
The Service's assertion that it will ``always retain the ability to
suspend and/or revoke the permit'' (presumably should it find that the
activity is not compatible with the preservation of the eagle) is not
convincing. Practical, financial, and political constraints will make
it virtually impossible for the Service to live up to this assertion.
Response: The statement that ``little can be done to avoid any
unanticipated level of take of eagles after the facility is developed''
is not a good argument for a 5-year permit over a permit of longer
duration. How would the Service's failure to renew a 5-year permit for
a long-term project have greater effect than our ability to continue to
work with longer-term permittees to adapt avoidance and minimization
measures and ensure appropriate compensatory mitigation is carried out?
The statement that practical, financial, and political constraints will
make it virtually impossible for the Service to suspend or revoke long-
term permits is purely speculative. We acknowledge that suspension and
revocation are options of last resort and that we would prefer, and
intend, to work with permittees to rectify compliance issues prior to
taking those steps. Such an approach is not less protective of eagles.
Comment: The proposal to extend permit terms to 30 years fails to
recognize that subsequent administrations of federal or state
governments might pass new laws or regulations within the next 30 years
that strengthen protections applicable to eagles or wildlife. In such
case, permittees will likely try to resist compliance with new
protections by arguing that they have ``grandfathered'' rights under
their permits.
Response: We cannot predict future laws or regulations that may
strengthen (or reduce) protections for bald and golden eagles, and we
do not have the resources to monitor every new change in laws and
regulations at the state, tribal, and local level. We will continue to
rely on our working relationships with state, tribal, and local
wildlife agencies to coordinate management and protection of bald and
golden eagle populations. We do not enforce or interpret non-federal
laws and will continue to rely on state, tribal, and local government
entities to notify us of any potential violations for projects
authorized under eagle incidental take permits. If we receive notice of
a potential violation, we will work with the permittee and the relevant
state, tribal, or local government entity with authority to enforce the
applicable law or regulation to ensure the authorized project complies
with the relevant law or regulation. This may require modification of
permit conditions.
Comment: The Service continues to rely on the notion that the 5-
year maximum permit duration is the ``primary factor'' discouraging
permit applications, which is based on anecdotal information. Other
science-based factors, such as lack of mitigation options and effective
risk analysis, have significantly precluded eagle permit issuance.
Response: We agree that the 5-year maximum permit duration has not
been the only factor discouraging applications from the industrial
sector. The lack of compensatory mitigation options has also been the
subject of criticism from industry, and we are working with partners to
develop metrics that would allow us to be confident that methods other
than power line retrofits can be relied on to appropriately offset
authorized take of eagles. We are also taking steps to establish third-
party mitigation funds and/or banks to facilitate compensatory
mitigation requirements. Some potential applicants may be dissatisfied
by the requirement for compensatory
[[Page 91519]]
mitigation for every authorized take of a golden eagle, but that
requirement is ``science-based.'' It also stems from the statutory
mandate that authorized take be compatible with the preservation of
eagles.
Comment: During the 5-year reviews, the Service should consider
using the ``evidence of absence'' model, which is designed to tell how
likely it is that take has not exceeded a certain number (with a
certain degree of confidence). The model can be used to predict take
and then a check-in may occur every few years to ensure a permittee
does not go over its take limit.
Response: The Service agrees with the commenter that robust
estimators such as the ``evidence of absence estimator'' (Huso et al.
2015) should be used to obtain unbiased estimates of mortality from
systematic searches for animal remains. Such estimators should account
for the proportion of animals killed that fall into the search area
(which should also consider the spatial distribution of killed animal
remains), the likelihood animal remains that fall into the search area
will persist long enough to have an opportunity to be detected during a
scheduled search, and the probability that a searcher will detect the
remains during a search, and should include measures of uncertainty.
However, there are a variety of robust estimators in the literature
(see Korner-Nievergelt et al. 2015 for discussion of several), and the
appropriate estimator for a particular site or survey may vary
depending on details specific to the objectives and survey design;
therefore, estimators should include the elements discussed above and
should be considered on a case-by-case basis. The Service uses a
Bayesian model to predict potential take of eagles at proposed land-
based wind facilities based on information collected before a facility
is constructed and then incorporates data from systematic searches for
eagle remains to update the model and predictions and evaluate take
relative to what is authorized by a permit (see the ECPG, Appendix D,
for additional details).
Comment: Rather than issuing permits for up to 30 years, the
Service should consider automatic renewal of 5-year permits in limited
situations; for example, if impacts are less than expected; if eagle
take has not occurred; or if eagle minutes are less than expected, the
LAP is increasing, and eagle populations are stable.
Response: Automatic or automated renewal under the described
circumstances would be challenging, since some review would always be
needed to ascertain whether these conditions are met. We agree that
permit renewal should be relatively straightforward under these
circumstances and we anticipate that being the case.
Definitions
Comment: It seems pointless to try to make a distinction between
``purposeful'' and ``incidental'' take.
Response: While the impacts on eagles may be the same, we disagree
that it is pointless to distinguish between purposeful and incidental
take of eagles for the purposes of regulations. Purposeful take is
generally very limited and different in practice than incidental take
and requires different regulations to properly and efficiently regulate
the various activities that fall within those categories.
Eagle Permit Fees
Comment: The proposed fee is very high, including the proposed
administration fee for long-term permits. High fee structures may
discourage take permit applications. To the extent that the Service
maintains this fee structure in the final rule, permit fees should be
committed exclusively to the processing and administration of eagle
take permits to expedite review of applications and permit processing.
Response: The purpose of establishing such a fee structure is to
provide capacity to process permits. Office of Management and Budget
(OMB) Circular No. A-25 requires federal agencies to recoup the costs
of ``special services'' that provide benefits to identifiable
recipients. Permits are special services that authorize recipients to
engage in activities that are otherwise prohibited. Our ability to
provide effectively these special services is dependent upon either
general appropriations, which are needed for other agency functions, or
on user fees. Accordingly, the permit fees associated with eagles
permits are intended to cover the costs the Service incurs processing
the average permit. Nonetheless, in response to comments on the
proposed rule, these final regulations adopt an $8,000 administration
fee for long-term permits, rather than the proposed $15,000 fee.
Comment: For small independent energy producers to enter the
market, permit cost should be scaled properly, based, for example, on
number of turbines, electric output, or risk to the local eagle
population.
Response: It is not practicable for the Service to assess and
charge a unique fee per project seeking take authorization. As
described in the fee section of this rule, the application fee for
long-term permits was derived from average costs associated with
processing these complex permits. Monitoring and mitigation costs,
however, are scaled to the project, and would be expected to be lower
for smaller-scale projects. The Service intends to involve the public
in developing additional guidance for projects that pose a low risk of
eagle take, which may be particularly relevant for small projects.
Finally, in response to comments on the proposed rule, this final
regulation adopts an $8,000 administration fee for long-term permits,
rather than the proposed $15,000 fee.
Comment: Increased fees will likely address some of the required
costs to implement a revised program, but the Service is already
greatly understaffed. The preferred alternative will be no more
efficient or effective, nor will wait times for permits be improved, in
the absence of sufficient and appropriate funding.
Response: We cannot collect fees from the public to cover the costs
of agency functions that are covered through funds appropriated by
Congress. We can and do assess fees to cover the costs of special
services that accrue only to certain members of the public, such as
permit applicants and permittees.
Comment: The proposed rule is not clear whether the fee structure
changes for non-purposeful/incidental take (Sec. 22.26) and nest
removal (Sec. 22.27) permit applications will apply to government
entities, including municipalities, tribes, and state and federal
agencies, or if these entities will remain exempt.
Response: Regulations at 50 CFR 13.11(d)(3), which apply to these
permits, waive the permit application fee for any federal, tribal,
state, or local government agency or to any individual or institution
acting on behalf of such agency.
Comment: The application fee of $500 for a residential incidental
take permit, plus a second $500 fee for an eagle nest take permit,
seems prohibitively high for the average homeowner.
Response: The $500 application processing fees for the incidental
take permit and the eagle nest take permit have been in place since
2009, and are not changing for homeowner applications. Also, we note
that it is very rare that anyone needs both permits. Permits to remove
nests cover associated disturbance to the eagles, and even the need for
that is rare, since most nest take permits are for removal of alternate
nests.
[[Page 91520]]
Comment: The proposed permit fees and other costs associated with
implementing required elements of an eagle permit drive up costs and
provide little benefit to eagles.
Response: We disagree that these regulations provide little benefit
to eagles. These regulations require permittees to avoid and minimize
impacts to eagles to the maximum extent practicable. Such measures will
greatly benefit eagles.
Fatality Prediction Model
Comment: The proposed rule implies that survey protocols the
Service has developed for the wind industry will be applied to all
activities that may require incidental take permits. This is
inefficient and ignores that other protocols might be more suited to
other activities.
Response: The Service's proposal would only require use of
industry- or activity-specific protocols when they exist. At this
point, the only such standards are those included in this final rule
for estimating eagle take at wind facilities. The Service plans to
develop standards for other industries in the future, and will seek
industry input in the development of those protocols.
Comment: The collision risk model (CRM) recommended by the Service
for eagle fatality estimation at wind projects relies on a sample size
that is too small and data that are too outdated to provide reliable
predictions for either golden or bald eagles. Research recently
published in a peer-reviewed scientific journal provides new collision
probability rate estimates that are based on more recent data and a
larger data set collected from modern wind facilities. The Service
should revise its model inputs to reflect this new information.
Comment: Codifying the Service's CRM to estimate eagle fatalities
at wind facilities is not appropriate because the model has changed
four times since it was introduced in 2013. Incorporation into the
regulations would inhibit further necessary improvements.
Response: The Service has always intended to revise the collision
probability component of the CRM using data collected under eagle
incidental take permits at wind facilities. However, to date, so few
incidental take permits have been issued at wind facilities that no
progress has been made in this area. As an alternative for the
immediate future, the Service believes that publicly available data
collected at wind facilities operating without incidental eagle take
permits can be appropriate for such an update, provided the data and
protocols under which the data were collected can be verified and shown
to be appropriate, and that the wind facilities that make their data
available constitute a representative cross section of wind facilities
in operation today. The Service is working with the authors of the
referenced paper to conduct an evaluation of their data to determine if
it meets the above criteria for use in updating the CRM. As to the CRM
having changed rapidly since it was introduced, that is not the case.
The CRM described in Appendix D of the ECPG is still the version being
used by the Service. The CRM has had to be adapted on occasion to
accommodate data collected by prospective permittees that did not
follow Service guidance in Appendix C of the ECPG, but the CRM remains
unchanged. As noted above, we do expect model inputs to change, and as
noted in response to other comments, over time we may incorporate other
scientifically supported covariates (variables that are possibly
predictive of the outcome under study) associated with eagle collision
risk into the CRM. In response to this and other comments, the Service
has decided not to incorporate any parts of the ECPG into the rule so
that future updates can be implemented without going through formal
rulemaking.
Comment: The rule should not restrict monitoring and survey options
for wind projects to Service-approved ECPG protocols. The best
available science should be applied to risk assessment and fatality
monitoring.
Response: The Service's eagle non-purposeful take permits program
follows DOI policy by using a formal adaptive management framework to
quantify and reduce scientific uncertainty. A major area of uncertainty
is the mortality risk posed to eagles by individual wind facilities.
When the Service created the non-purposeful take rule in 2009, there
was no scientifically accepted way to estimate such risk. However, the
Service must authorize a specific eagle take limit for each permit in
order to ensure cumulative take from all permitted projects does not
exceed regional take limits, or that appropriate compensatory
mitigation is carried out if the take limits are exceeded. Service and
U. S. Geological Survey scientists developed the CRM to estimate eagle
fatalities at individual wind facilities using adaptive management;
this approach necessitates the collection of standardized pre- and
post-construction data and the use of the CRM, or a model much like it,
to generate and update fatality estimates. For this reason, in the
proposed rule, the Service contemplated codifying its current guidance
regarding data collection and fatality predictions in the regulations.
As this comment reflects, there was considerable opposition to this
among commenters. In response, the Service has modified its proposal
for this final rule by omitting the proposal to codify parts of the
ECPG in the regulations. However, the adaptive management process
cannot function credibly without standardized pre-construction site-
specific eagle exposure data, so the Service has instead incorporated
minimum standards for such data for incidental take permits at wind
facilities directly into this final rule, subject to waiver under
exceptional circumstances. The Service also will not require permit
applicants to use the CRM to estimate eagle fatalities for their permit
applications; permit applicants can use any credible, scientifically
peer-reviewed model to generate eagle fatality and associated
uncertainty estimates for their applications. However, the Service will
use the CRM and applicant-provided data to predict fatalities for each
incidental eagle take permit for a wind facility. The Service will
treat any alternative models used by the permit applicant as candidate
models whose performance may be compared formally to that of the CRM as
part of the adaptive management process.
Comment: The Service's CRM is flawed and should not be required for
use to estimate fatalities at wind facilities.
Response: The Service's CRM was designed as an integral part of the
adaptive management process, with model complexity and performance
improving over time with use and formal updating. The CRM uses a
Bayesian framework that allows for the formal combination of existing
(prior) data with project-specific data for eagle exposure and
collision probability. The Service requires eagle incidental take
permit applicants to conduct pre-construction eagle-use surveys within
the footprint of the planned wind facility to generate project-specific
data on pre-construction eagle exposure. In the case of collision
probability, however, there are no project-specific data to combine
with the prior data until after the project has operated for several
years. The Service uses prior information on collision probability from
the only wind facilities that had publicly available data on eagle use
and post-construction fatalities in 2013; these data came from four
facilities; did not include information for bald eagles; and, for some,
were from older-style wind turbines that might have different collision
probabilities than modern
[[Page 91521]]
turbines. However, these deficiencies only affect the initial eagle
fatality estimates at permitted wind facilities. The adaptive
management approach calls for formally combining the prior information
with standardized data collected on actual eagle fatalities after each
facility becomes operational. These updates would occur no less
frequently than once every 5 years at each facility. Such updates will
naturally correct for any bias in the initial ``collision-prior-based''
fatality estimate, so that the fatality estimates over most of the life
of a wind facility will be heavily weighted towards actual fatality
data from the site. Moreover, the post-construction fatality
information can be combined with data from other permitted wind
facilities to update and improve the collision probability prior for
the national CRM. Thus, the Service intends to improve the predictive
accuracy of the CRM both at the individual project level and nationally
through standardized use as a formal part of its adaptive management
process.
Comment: Eagle use, the main predictor variable in the CRM, is a
poor predictor of eagle fatality risk. Use rates certainly failed to
predict the golden eagle fatality rate at several wind facilities in
Wyoming. Other factors besides eagle use are more important in
determining eagle collision risk.
Comment: The Service's current CRM assumes that modern wind
turbines have the same risk profile as wind turbines installed many
decades ago despite evidence to the contrary.
Response: The Service disagrees that use rates cannot be used to
predict eagle fatality risk. For example, the Service has demonstrated
that use rates actually performed very well as predictors of golden
eagle fatality risk at the same Wyoming wind facilities referenced in
this comment. In fact, those facilities were used to demonstrate the
effectiveness of the Service's CRM and adaptive management updating
process for a scientific peer-reviewed journal article (New et al.
2015). However, the Service agrees that other factors besides eagle use
likely affect collision risk. The ECPG identifies 11 general categories
of covariates that we believe may affect eagle collision probability to
some degree, including three that relate to turbine design. However,
these are not presently incorporated into the CRM because, as pointed
out by peer reviewers of the draft ECPG, scientific support for the
role of these factors in collision risk is speculative and not
quantifiable at this time. Furthermore, the effects of these factors
may vary across locations. The Service believes that over time, though
application of the adaptive management process, scientific support will
accrue for inclusion of some of these covariates in the CRM.
Comment: Our Project Eagle Conservation Plan uses the Service's CRM
estimated eagle take of one eagle per year. However, no eagle carcasses
have been found in 3\1/2\ years of professional biologists monitoring.
Response: The fact that no eagle mortalities have been discovered
does not mean that no eagles have been killed. Detection rates for
eagle carcasses on surveys are less than perfect, and scavengers can
remove carcasses before they are detected. The Service relies on
estimates that account for these factors that affect detection
probability to estimate the actual eagle fatality rate. Also, as
discussed in other responses, under the adaptive management framework,
estimates of the numbers of eagles killed that account for search
effort, detection, and scavenging based on the monitoring data would be
used to update the CRM for the project and improve future predictions
of fatalities based on site specific data.
Comment: The Service's CRM vastly overestimates golden eagle
mortality on the wind projects we have analyzed.
Response: The Service has made the explicit decision to manage the
quantified uncertainty in the CRM estimates in a manner that reduces
the risk of underestimating eagle fatalities at wind facilities. The
median (50th quantile) fatality rate estimate is the point at which
there is an equal risk of underestimating and overestimating eagle
fatalities. The Service uses the 80th quantile of the CRM estimate as
the take limit for incidental take permits, which shifts the risk in an
80:20 ratio away from underestimating eagle take. The Service believes
this is appropriate because the consequences of underestimating eagle
take are far greater than the consequences of overestimating take, and
not just because of unintended consequences on eagle populations. For
example, if eagle take at the individual permit level was consistently
underestimated, many permittees would exceed their permitted take
limits, necessitating permit amendments, additional costly and
unplanned after-the-fact compensatory mitigation actions, and possible
enforcement action with associated fines. For bald eagles with positive
EMU take thresholds, consistently underestimating take could lead to
permitted take exceeding the EMU take limit, which would necessitate
retroactively requiring permittees that initially had no compensatory
mitigation requirements to implement mitigation after the fact.
Finally, if LAP take limits were unexpectedly exceeded, NEPA compliance
for permits overlapping the affected LAP would have to be reviewed,
possibly resulting in the need to develop supplemental NEPA documents
or new EAs or EISs for operating wind projects. Although these
consequences are most likely if there is a systematic bias in the
fatality estimates themselves, even with an unbiased estimator some of
these consequences could be expected with 50% of permits if the Service
were to use the median fatality rate as the take limit for individual
permits. In contrast, if permitted take is set at a higher percentile
of the fatality prediction, the primary consequences are that the
permittee is likely to exceed actual compensatory mitigation
requirements over the first 5 years of operation (if compensatory
mitigation is required). Additionally, the Service would likely
routinely debit some take from the EMU and LAP take limits
unnecessarily, thereby underestimating available take when considering
new permit requests. Both of these issues are at least partially
remedied when initial take estimates for projects are adjusted with
project-specific fatality data after the first 5 years of operation.
Comment: The Service should adopt an approach that only requires
mitigation for actual, not predicted, eagle take under permits.
Otherwise, permittees unfairly have to overcompensate for the true
effect of their projects.
Response: The Service must authorize a specific eagle take limit
for each permit in order to ensure cumulative take from all permitted
projects does not exceed regional take limits, or that appropriate
compensatory mitigation is carried out if take limits are exceeded. As
discussed in the previous response, the Service purposefully uses an
estimator for wind projects that is unlikely to underestimate take to
avoid the severe negative consequences that brings. However, over-
mitigation can be confirmed and rectified when the initial take
estimates for projects are adjusted with project-specific fatality data
after the first 5 years of operation. At that time, permittees receive
credit for any excess compensatory mitigation they have achieved, and
those credits can be carried forward to offset future eagle take for
that project.
Comment: The Service's CRM predicts unrealistically high rates of
bald eagle fatalities at wind projects given the low number that have
actually been reported. The Service needs to develop and use a separate
fatality
[[Page 91522]]
prediction model for bald eagles based on new species-specific data
collected per the recommendations in the ECPG.
Comment: The Service recently released a draft Midwest Wind Multi-
Species Habitat Conservation Plan (HCP) for public comment. The draft
HCP uses a version of the CRM to predict bald eagle impacts based on
actual bald eagle data at wind energy facilities rather than solely
relying on data from golden eagles and applying those data to bald
eagles. The result is substantially different than the use of the
Bayesian model based on golden eagle data and presents an assessment of
bald eagle take that is both more realistic and more scientific than
the proposed method. The Service should similarly here use data that
are known to be specifically applicable to bald eagles. To that end,
there are a number of ongoing studies and/or recently completed studies
that could be used to provide a much better assessment of bald eagle
risk and wind farms once they are made public.
Response: We are aware of arguments that the CRM predicts
unreasonably high rates of bald eagle fatalities at wind facilities;
however, we have not received and had the opportunity to carefully
review data that are publicly available that actually confirms this.
The Service does not disagree that bald eagles may prove to be less at
risk from blade-strike mortality than golden eagles, but there are
plausible reasons to expect that bald eagle fatality rates may be more
variable than those for golden eagles, and under some conditions bald
eagle collision probabilities may actually be higher. The reasons are:
(1) Bald eagles congregate in larger numbers than golden eagles, and
while in those concentrations they engage in social behaviors that may
increase their risk to blade strikes at a project sited in such an
area; (2) 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 (3) a thorough
study in Norway documented a substantial population-level negative
effect of a wind facility there on a population of the closely related
white-tailed eagle as a result of blade-strike mortality (Nygaard
2010). Also, as noted in response to other comments, possible
overestimates of risk are likely to be a problem only for the first 5
years of operation, as the initial fatality estimates for permits at
wind facilities are intended to be updated with project-specific, post-
construction fatality data within that time. As noted in response to
other comments that expressed frustration with perceived frequent
updating of the Service's CRM, this is an area of active research and
investigation, and changes are to be expected as new information
becomes available. The Service will make every effort, using the tools
at its disposal, to disseminate information on changes or updates to
the CRM when they occur.
Comment: A process should be developed by which data and reports
associated with pre- and post-construction surveys can be made readily
available and the prior distributions can be updated in a streamlined
manner for real time application to inform management decisions.
Response: The proposed and this final rule state that monitoring
reports required under incidental eagle take permits will be available
for public inspection. The Service will use the data to perform formal
Bayesian updates of the CRM and to generate updated fatality
predictions for each individual project at no less than 5-year
intervals, and we will update the prior data for collision probability
and eagle exposure in the national model a regular interval, dependent
on the amount of new data that is available.
Comment: Eagle mortality related to electric transmission and
distribution is vastly different than other forms of eagle mortality.
These utility systems are complex, are located in varied landscapes,
and can extend hundreds of thousands of miles. Bald and golden eagles
interact with transmission and distribution facilities in different
ways. Performing surveys across the country and by utility would be
challenging and would provide varied results that may not be meaningful
to the Service or the utility. Utilities have provided eagle and
migratory bird mortality data to the Service for over a decade.
Additional monitoring and mortality data seem redundant and problematic
when this information has already been provided to the Service. The
resources required for monitoring efforts could be better utilized by
retrofitting high-risk poles.
Response: In general, the Service agrees with this comment and will
take these factors into consideration when developing pre-permitting
data standards and permit terms and conditions for monitoring
incidental take of eagles at electric transmission and distribution
facilities and structures.
Comment: While permittee monitoring of the permitted activity is
reasonable, the regulations should not place a burden on permittees to
monitor ``unpermitted take.''
Response: The regulations do not ask permittees to monitor
unpermitted take (except for take caused by the permitted activity that
exceeds the take authorization). The Service compiles such information
and uses the data in its LAP assessment, but this assessment does not
require any information on unpermitted take be provided by the
applicant.
Comment: The Service does not provide sufficient evidence that
monitoring is an effective use of resources that actually confers
conservation benefits to eagles. The high cost of monitoring is
especially concerning given that the Service has not indicated that
such a burden would actually further the purposes of the permit. Overly
burdensome monitoring requirements discourage permit applications.
Response: Monitoring is among the most important and essential
elements of the Service's eagle permitting program. The Service has
acknowledged in these responses to comments and elsewhere (e.g., the
ECPG, the proposed rule, and the PEIS) that considerable uncertainty
exists in all aspects of the eagle permitting program, particularly
with respect to the accuracy of models used to predict the effects of
actions like the operation of wind turbines on eagles. The Service has
followed DOI policy and designed the eagle permitting program within a
formal adaptive management framework, as described in response to other
comments, in the preamble to this final rule, and in detail in Appendix
A of the ECPG. Monitoring is an essential and fundamental element of
adaptive management; it is absolutely necessary to reduce uncertainty
and improve confidence in the permitting process; it is also essential
to account for and provide credit to permittees who over-mitigate for
their eagle take in the initial years of wind project operation. We
will continue to require monitoring as a condition of all incidental
take permits for which uncertainty exists to fulfill the Service's
adaptive management objectives and to ensure take of eagles is within
the terms and conditions of the permit.
Comment: Based on a review of data collected for pre-construction
eagle use surveys, little in the way of standardization actually exists
among the use rate data that the proposed rule characterizes as the
products of a standard protocol.
Response: We agree with this commenter that the ECPG, as non-
binding guidance, has not resulted in
[[Page 91523]]
the level of standardization that we had hoped. For that reason, we
proposed incorporating key elements of the ECPG into the final rule by
reference. Based on comments we received on the proposal, we have
decided to instead include key language directly in this rule on pre-
construction survey procedures and resulting data that will be required
for eagle incidental take permit applications at wind facilities, and
general guidance for other activities. We have not included similar
requirements in the rule regarding post-construction fatality
monitoring because these survey protocols are incorporated as binding
terms and conditions of the incidental take permits. We added language
to the preamble of this rule that explains why we believe this action
will improve standardization of data collection.
Comment: The Service must not rely on any for-profit industry to
monitor itself. Data obtained by third party monitors should be
provided directly to the Service before or at the same time it is
provided to project operators.
Comment: To the extent there are even benefits to using third-party
monitors, there are considerable costs to using them. Without a showing
or evidence that observation and/or the reporting has been biased, it
is unreasonably burdensome, arbitrary, and capricious to impose such
costs.
Response: We agree with the large number of entities that urged the
Service to require third-party monitoring for some permits. The final
regulations require that for all permits with durations longer than 5
years, monitoring must be conducted by qualified, independent entities
that report directly to the Service. In the case of permits of 5-year
durations or shorter, such third-party monitoring may be required on a
case-by-case basis. With regard to the second comment, we do not agree
that there will be significant additional costs imposed by the
requirement for third-party monitoring. Most companies already rely on
and pay for consultants to conduct project monitoring, presumably
because it is more cost-effective than supporting those activities
``in-house.''
Comment: The Service should not codify any parts of the ECPG as
that document needs to be a living document. To the extent that the
Service does codify parts of the ECPG, at a minimum the entire document
should be subject to further notice and comment.
Comment: The Service should provide a list of required data and
estimates it needs to process an eagle incidental take permit request,
rather than the methods by which the data must be obtained. The
feedback loops between data collection and analysis that the Service
notes as rationale for requiring standardized methods are not dependent
on collection methods, only on data types.
Response: In response to these and other comments, the Service has
withdrawn the proposal to codify Appendices C and D of the ECPG.
However, the adaptive management process underpinning the entire eagle
incidental take permit program absolutely requires standardized pre-
construction, site-specific eagle exposure data. The second comment
that the means by which the data are obtained do not matter for the
adaptive management process is simply incorrect. Instead, the Service
has incorporated minimum standards for such data for incidental take
permits at wind facilities directly into this final rule, subject to
waiver under exceptional circumstances. We also disagree with the
suggestion that requiring these data standards necessitates additional
notice and public comment. The rule language is restricted to key
elements of Appendix C of the ECPG, which has gone through and been
modified as a result of two rounds of public notice and comment, and
the survey data requirements have been through two rounds of scientific
peer review. These survey requirements should not be overly burdensome
or unexpected because they were substantially modified after the first
round of public comments on the ECPG to be largely compliant with the
wind industry's existing voluntary standards for pre-construction eagle
surveys. Moreover, these standards represent the minimum that the
Service has specified as necessary to support an eagle incidental take
permit application since 2013 (per the ECPG).
Comment: All wind farms should be outfitted with remote video
cameras on wind turbines that can be viewed at all times by the public
to aid enforcement of wildlife mortalities.
Response: The Service is unaware of data that show that video
cameras on wind turbines are an effective means for obtaining unbiased
estimates of eagle fatality rates. We firmly support the exploration
and development of such technology, however, and these regulations are
flexible enough to allow for their incorporation into post-construction
monitoring protocols when warranted.
Local Area Populations
Comment: In general the use of an LAP analysis to try to ensure no
impact on local populations has merit but how are LAPs determined?
Please provide a greater explanation with examples so there can be
greater clarity in understanding the implications of the proposed rule
and just how the more restrictive implications of the LAP analysis will
provide protection to key areas.
Response: The LAP is determined by extrapolating the average
density of eagles in the pertinent EMU to the LAP area, which is the
project area plus an 86-mile (bald eagle) or 104-mile (golden eagle)
buffer; these distances are based on natal dispersal distances of each
eagle species. As an example, consider a one-year golden eagle nest
disturbance permit application in western Colorado, which is in Bird
Conservation Region (BCR) 6 under the current 2009 EMUs. The activity
being undertaken could lead to the loss of one-year's productivity,
which has an expected value of 0.59 golden eagles removed from the
population (the average one-year productivity of an occupied golden
eagle territory in BCR 16 at the 80th quantile, as described in the
Status Report). This EMU has an estimated golden eagle population size
of 3,585 at the 20th quantile, and the BCR covers 199,523 square miles,
yielding an average golden eagle density of 0.018 golden eagles per
square mile. The local area around a single point (the nest to be
disturbed in this case) is a circle with a radius of 109 miles, which
yields an LAP area of 37,330 square miles, thus the estimated number of
golden eagles in this LAP would be 671 individuals. The 5% LAP take
limit for this permit under the current 2009 EMUs would be 34. The
Service has developed a Geographic Information System (GIS) application
that queries spatial databases on existing eagle take permit limits and
known unpermitted take within the LAP area, as well as for any other
permitted projects whose LAP intersects and overlaps the LAP of the
permit under consideration. If this query indicates existing cumulative
permitted (i.e., over all existing permits) take for the LAP area is
less than 34, and the unpermitted take database and other information
available to the Service does not suggest background take in the LAP is
higher than average, a permit for the take of 0.59 golden eagles could
be issued without further analysis of the effects on eagles by tiering
off this PEIS. If either condition were not true, the permit would
require additional NEPA analysis. In either case, if the permit is
issued, it would require compensatory mitigation to offset the
authorized take, because the EMU take limit for golden eagles is zero.
[[Page 91524]]
Comment: Given the nature of the golden eagle population in the
western United States, identification of local populations with
meaningful demographics is very difficult, primarily due to emigration
and immigration. Accordingly, the Service should focus on achieving
only a stable or increasing EMU population.
Comment: As long as national and EMU eagle populations stay stable
or increase, the Service's goals for eagles have been met. The LAP
analysis is unnecessary and burdensome, and has no biological value.
Response: The Service disagrees. Biologically, recent data from
satellite tracking studies show that while both bald and golden eagles
range widely, there is high philopatry to natal, wintering, and
migration stopover areas. Thus, local impacts can have far-reaching
effects on eagle populations. Local populations of eagles also are of
great cultural and social importance. The Service received many
comments from states, tribes, local governments, and environmental
organizations to this effect, and in support of including the
persistence of local eagle populations in the management objective for
eagles. Thus, the Service concludes that preservation of local eagle
populations accomplishes both important biological and cultural
objectives.
Comment: Assuming uniform density in the LAP analysis 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. The Service should account for variation in density, as well
as improved knowledge of seasonal changes in eagle density and
population-specific movement patterns.
Comment: We recommend that the Service's analysis includes more
precise bald eagle LAP data where available. This would ensure that
permitting decisions are well-aligned with the proposed preservation
standard, and would be consistent with the Service's commitment to use
the best available information and practice the best science.
Response: The Service agrees with these comments in principle. The
Service acknowledges two limitations in using the LAP method to
regulate incidental take. First, eagle density estimates are derived
from nesting or late-summer population surveys; therefore, estimates do
not account for seasonal influxes of eagles that occur through
migration and dispersal. Second, eagle density estimates are not
uniform across the EMU. Current LAP take thresholds allow the Service
to authorize limited take of eagles while favoring eagle conservation
in the face of the uncertainty. Given better information on resource
selection, seasonal variation in density, and an improved understanding
of seasonal changes in eagle density and population-specific movement
patterns, the Service will refine the LAP analysis to better assess
potential impacts of projects. We do not believe it would be
appropriate to make such adjustments piecemeal or on a case-by-case
basis, because LAP areas extend across state and even EMU boundaries;
thus, a common frame of reference is necessary throughout each LAP. We
are actively engaged in research designed to allow for better
accounting of spatial and temporal variation in eagle density in the
LAP calculations. We will incorporate these improvements to the LAP
analysis as better estimation procedures are developed through formal
updates to the ECPG after notice and public comment.
Comment: By requiring the LAP analysis and setting a take limit of
5% for the LAP, the Service appears to be setting a ``hard cap'' on
take at this scale. It is unclear whether any take exceeding 5% of the
LAP would be allowed, even if offset by compensatory mitigation.
Comment: The LAP analysis could unnecessarily limit incidental take
and add to the regulatory burden, thereby potentially limiting some
economic development in high-density bald eagle areas, without
providing conservation benefit. In contrast, implementing the LAP
analysis as proposed could put areas of low bald eagle densities at
higher than necessary risk of local depletion.
Comment: We recommend that the LAP provision be applied as
guidance, not regulation, especially for areas of high eagle densities
that are not at risk of local depletion from limited take.
Comment: The proposed rule language setting a 5% LAP take limit is
highly concerning. As written, it appears that no permits would be
issued to new projects unless those projects can somehow reduce their
own historic take.
Response: The purpose of the 5% LAP take limit is to ensure that
projects that tier off this PEIS will not cause the extirpation of
local eagle populations. Exceeding the 5% LAP take limit does not mean
that we cannot or would not issue a permit. Instead, it would trigger a
harder look at local eagle population effects at the individual project
level, often through development of a project-level EA or EIS. The
result of that analysis could be a determination that the permit would
be inconsistent with the Eagle Act preservation standard, in which case
the Service would either not issue the permit or might determine that,
with the application of LAP-level compensatory mitigation, a permit
could be issued. However, in some cases, mostly involving bald eagles,
we expect the closer look would show that, despite the high local take
rate, eagle populations at the LAP scale are robust enough to withstand
additional take, in which case LAP-level mitigation might not be
required in order to issue an incidental eagle take permit. The main
point is that the effect at the LAP scale of take exceeding 5% will
have to be determined on a case-by-case basis. Based on our analysis of
the population-level effects of take for bald eagles, we do not believe
that applying the LAP-scale analysis as proposed risks causing the
extirpation of local bald eagle populations even in areas of lower-
than-average density.
Comment: The unpermitted take is part of the baseline above which
the LAP permit thresholds are applied, and it therefore must not be
subtracted from available take at the scale of the LAP or EMU.
Response: The Service has determined that take, authorized or not,
that was occurring prior to 2009 does not need to be accounted for
within the EMU take limits. This determination does not apply to the
LAP take limits, nor does it apply to unpermitted take that has been
added since 2009.
Comment: Taking into account unpermitted take within an LAP is
problematic because many regions may already exceed the 5% take limit
cap by virtue of the existing activities to which unauthorized take is
attributed. This means that unpermitted projects are essentially given
priority over permitted projects.
Comment: The LAP approach seemingly penalizes developers for siting
projects in areas with fewer eagles, which, if true, is entirely
counter-intuitive, counterproductive, and opposite from what a permit
program of this nature should attempt to accomplish. In areas where
eagle densities are low, the chances that the 5% LAP take limit will be
exceeded is higher.
Response: Because the 5% LAP take limit only applies to Service-
authorized take, the take limit itself does not result in a priority
being given to unpermitted take. However, it would be irresponsible not
to consider such information when and where it is available, and that
is what this component of the proposed rule requires. For example, take
of golden eagles in the vicinity of the Altamont Wind Resource Area in
[[Page 91525]]
California is not currently under permit, yet that take has been well
studied and would necessarily have to be considered as part of the
cumulative effects considerations when evaluating an incidental eagle
take permit application in that region.
The LAP approach will not penalize developers for siting projects
in areas with fewer eagles. Because the Service uses the mean eagle
population density for all LAPs within an EMU, there is no difference
in the LAP population calculated for high- or low-density areas with
respect to the LAP analysis.
Comment: Using unpermitted take as a metric for permit issuance
provides deference to developers and others who choose not to obtain
eagle permits, and increases costs for those who do. This creates a de
facto prioritization of unpermitted take instead of penalizing those
who take eagles illegally.
Response: The Service agrees that eagle take that is not authorized
by permits should not take precedence over take for which permits are
sought. Yet, biologically, either form of take results in mortality,
which has the same effect on eagle populations, and so both must be
accounted for in the Service's analyses and its determinations of
whether additional mortality can be sustained relative to the
population objectives. Relative to illegal take, the Service's Office
of Law Enforcement and DOJ have placed a high priority on enforcement
of the eagle take regulations, and those efforts have resulted in
several recent settlement agreements with operating wind facilities.
The Service intends to increase its prioritization of Eagle Act
enforcement efforts following implementation of this rule change with
the hopes of increasing incentives for project proponents to seek
permits to cover take that is currently unpermitted but which might
meet the requirements for coverage under an incidental take permit.
Comment: Because the proposed rule intends to rely on an LAP take
limit to demonstrate no significant impact, it must analyze and
quantify all eagle impacts, including unauthorized take levels, based
upon the best available science and demonstrate how an LAP can sustain
additional authorized take. It is inappropriate to limit analyses to
authorized take only, which will severely underrepresent actual impacts
to eagles. A science-based approach would commit to using the best
available information to estimate the level of unauthorized take and
then updating that information on a regular basis.
Comment: Take estimates are necessarily speculative for these
unauthorized take sources, and Service personnel could use the proposed
5% LAP cap to deny an eagle permit on this basis.
Comment: In order to meet its preservation standard, the Service
must require permit issuance determinations that consider all sources
of anthropogenic take. The Service must address cumulative authorized
and unauthorized take in an LAP when determining permit eligibility by
revising 50 CFR 22.6(f)(2) as follows: The take will likely not result
in cumulative anthropogenic [remove: authorized] take that exceeds 15
percent of the LAP, or the Service can determine that permitting such
take [remove: over 5 percent of that LAP] is compatible with the
preservation of the bald eagle or the golden eagle.
Comment: The proposed rule states that Service biologists would
consider any available information on unpermitted take within the LAP
area; evidence of excessive unpermitted take would be taken into
consideration in evaluating whether to issue the permit. What would
constitute ``any available information''? Who would be responsible for
determining whether there was ``excessive unpermitted take''? How is
``excessive'' defined?
Response: The Service agrees that our estimates of unpermitted take
are generally going to be speculative. There is only so much that can
be done scientifically with anecdotal, incidental information, which
characterizes most of the information that exists on unpermitted eagle
take. However, the Service's proposal makes it very clear that we do
intend to consider available information on unpermitted take as part of
the LAP assessment. While the automatic trigger for additional analysis
that could lead to a negative permit finding is a permitted take rate
in excess of 5% of the estimated LAP, a high unpermitted take rate
could also trigger the need for additional analysis and a negative
finding with respect to permit issuance. For golden eagles, we have
identified that an unpermitted take rate in excess of 10% could be
considered high; for bald eagles, we have no scientific basis for
establishing such a threshold. However, because unpermitted take is
incompletely known and the degree of knowledge varies greatly from
place to place, there will be few if any locations where unpermitted
take can be accurately estimated, which means that in most cases the
known unpermitted take will be greater than what is indicated by the
available data. That is why the Service does not propose to set a hard
limit on overall take, or on unpermitted take specifically. Instead,
the Service will necessarily rely on best judgment to decide whether
unpermitted take in any particular LAP is in excess of levels that
would allow for additional take without risking extirpation of the LAP.
Where data show that unauthorized take exceeds 10% of the LAP, if the
incidental take permit is issued, the Service may require compensatory
mitigation even if the EMU take threshold has not been exceeded.
Finally, with respect to the burden on applicants, Service biologists
will conduct the LAP analysis, and as such it will not trigger
additional work for the permit applicant. To assist with the assessment
of unpermitted take at the LAP scale, the Service has compiled and will
continue to compile all available information from eagle necropsy
reports, Office of Law Enforcement investigations, Special Purpose
Utility Permit reports, and other sources into a national database that
will be queried by Service biologists using a spatial GIS tool as part
of each LAP analysis. We have also established internal processes that
will result in more dead eagles being necropsied (to provide
information about cause of death) and included in the database.
Comment: The Service should select an alternative in the PEIS where
the LAP analysis approach is not incorporated into the regulations.
Instead, it should develop specific eagle population size goals (other
than the 2009 baseline) for each EMU and then use those targets to
inform permit decisions within the EMUs, rather than the LAPs.
Response: The Service considered a number of other alternatives as
possible management objectives for EMUs, among them setting EMU-
specific population objectives. However, given the timeframe that was
established for this rulemaking, the complexity involved in setting
EMU-specific management objectives, and the lack of demographic data
specific to each EMU, the Service decided to consider only the 2009
EMUs and Flyways as EMU alternatives for the PEIS, and to incorporate
objectives for the persistence of local populations though a coupled
LAP assessment process.
Comment: The Service should ensure that EMU and LAP take level
analyses are aligned or provide an explanation as to why they are not.
Eagle density estimates should not account for wintering or migrating
birds for determining take levels in an LAP. Using density estimates is
a liberal approach, which could allow for more
[[Page 91526]]
take (e.g., involving overwintering birds that would eventually breed
far from the LAP) than can be sustained by the resident breeding
population in that same LAP. The Service should consider a mechanism
for segmenting the population being impacted (e.g., breeding/year-round
vs. wintering/migrating).
Response: The EMU and LAP take limits are aligned to the degree
that, across an EMU, we would expect a landscape with some areas (e.g.,
in proximity to permitted projects) having comparatively high levels of
authorized anthropogenic mortality but within the LAP take limit, but
offset by other areas where authorized anthropogenic take is low,
averaging to a maximum anthropogenic take across the entire EMU equal
to or less than the EMU take limit. The eagle density estimates used to
determine the 5% LAP take limit are summer population levels, and as
such do not account for or include wintering or migrant eagles that
will likely comprise some of the actual take. Thus, the take limits are
conservative with respect to local breeding populations, not liberal as
this comment suggests. The Service has initiated a genetic and isotopic
assignment test project in conjunction with other cooperators with the
goal of eventually being able to determine the approximate natal origin
of eagles taken under permits. If this effort is successful, the
Service will eventually be able to manage eagle take according to natal
population. Until such time, we will continue to manage take in the
conservative manner described here.
Comment: The proposed 5% LAP take limit for bald eagles in the
southwest EMU exceeds Arizona's population growth rate of an average of
3.7% annually and could cause population declines. The Service should
evaluate a separate EMU and a separate take limit for bald eagles in
Arizona.
Comment: Because the LAP analysis uses EMU densities instead of
local densities, it puts New Mexico's small breeding population of bald
eagles at elevated risk.
Comment: The LAP criteria should be applied more strictly in the
context of the Southwestern bald eagle population by either lowering
the take exceedance thresholds for that population or by making take
that exceeds the thresholds impermissible instead of merely
``inadvisable.''
Response: Application of the LAP analysis as explained in the PEIS
leads to an eagle density in the Southwestern Bald Eagle EMU of 0.001
bald eagles per square mile. This translates into a take limit of 1
individual per year per LAP. A single LAP centered in the middle of the
breeding distribution of bald eagles in Arizona encompasses most of the
other occupied breeding territories; thus it is unlikely take of more
than one to three bald eagles per year could be approved by the Service
in Arizona without conducting a supplemental NEPA analysis. Similarly,
in New Mexico, any project that would be predicted to take one or more
bald eagles per year would require supplemental analysis, and the
permit request could be denied. The Service's models suggest this level
of take is well within the sustainable take rate and will not cause
population declines in Arizona or elsewhere in the Southwest. A final
point relevant to this comment is that any Service permit for take of
eagles will specify that the permittee is responsible for complying
with all applicable state, tribal, and local laws. States have full
discretion to require more stringent protection for eagles under state
law.
Comment: The LAP criteria should be applied more strictly in the
context of the Sonoran Desert bald eagle population. The Service
proposes to set a lower take limit for bald eagles in the proposed
southern Pacific Flyway EMU; however, it appears that the proposed EMU
includes more populations of eagles than just the Sonoran Desert bald
eagle. The Service should separately manage the Sonoran Desert bald
eagle.
Response: Although we recognize that bald eagles from the Sonoran
Desert have special significance to many Native American tribes in the
region, for the purposes of the PEIS and overall management of bald
eagle incidental take, the Service does not recognize the Sonoran
Desert bald eagle as a distinct taxon or management unit. We do,
however, identify bald eagles in the Southwestern United States as a
separate management unit based on differences in vital rates compared
to other bald eagle populations. We note that not all of these
differences are lower; for example, survival of adult bald eagles in
the Southwest may be higher on average than in the other management
units. Nevertheless, these differences and a desire to allow for
continued population growth in the Southwest led the Service to propose
a lower take rate there than is indicated based on estimated vital
rates. Also, as noted in response to other comments, the LAP analysis
would allow very little take per year before additional review would be
necessary. For these reasons, we believe the selected PEIS alternative
is adequately protective of bald eagles in the Southwest.
Comment: With regard to the cumulative effects analysis within an
LAP, should all potential projects that might cause disturbance be
treated uniformly? For example, should the first intrusion of
relatively intensive human activity in close proximity to a natal area
be treated the same as a project at the outer edge of the natal area?
Response: In cases where nest disturbance may occur, it is nearly
always a matter of judgment to predict in advance whether the activity
will actually constitute disturbance to the degree that take might
occur (e.g., a nesting attempt is unsuccessful). The Service has
developed the National Bald Eagle Management Guidelines to help assess
when a take permit might be advisable, and we are working on similar
guidance for golden eagles.
Comment: Some activities are clear candidates for the use of the
cumulative impacts analysis. It is unclear, however, if all projects in
the LAP, particularly those which are relatively non-intrusive, should
be subject to the same cumulative analysis.
Response: Some form of cumulative effects analysis is required for
all eagle incidental take permits, and the LAP analysis provides a
consistent standardized way to conduct those analyses across all
activities, assuming the effect can be expressed in terms of estimated
fatalities or decreased productivity.
Comment: Take thresholds should only apply to unmitigated take. For
projects adhering to a no net loss standard, no take should be factored
into the EMU take limit, and if mitigated within the LAP, take should
also not be factored into the LAP threshold.
Response: The Service has not proposed to require compensatory
mitigation except in cases where take limits are exceeded. In cases
where projected take exceeds the EMU take limit, that projected take
will not be subtracted from the EMU take limits, because it is offset.
The take is subtracted from the LAP take limits, however, and if that
results in the LAP take limit being exceeded, that would trigger
additional environmental review. That additional environmental review
would take into account whether the take was offset within the LAP or
not, and how affects should be reflected in the LAP take accounting.
Comment: Defining the LAP using natal dispersal distance is a good
starting metric, but other factors such as proximity to suitable
habitat and topography should be taken into consideration, and the
latest information on population genetic differentiation, population
surveys, and
[[Page 91527]]
telemetry information should be taken into account.
Comment: We recommend that the Service's analysis includes more
precise bald eagle LAP data where available. This would ensure that
permitting decisions are well-aligned with the proposed preservation
standard, and would be consistent with the Service's commitment to use
the best available information and practice the best science.
Comment: It is important to recognize that Alaska contains a wide
variety of eagle habitats, ranging from temperate rainforests in
southeast Alaska to boreal forests and tundra in the north, that
support differing densities of bald eagles. A one-size-fits-all
management strategy, such as the proposed level of sustainable take for
LAPs, is not appropriate in an EMU as diverse as Alaska, and thus
levels of allowable take should not be uniform throughout the state.
Response: We agree that incorporating fine-scale biological data
into the LAP analysis is a desirable goal. However, because such
detailed data are not available for the vast majority of locales where
incidental take permit applications are desired, it is not practical to
require this level of detail in LAP analyses at present. Where such
data are available and would contradict conclusions from the standard
LAP analysis, they may be considered by the Service, although likely
after additional NEPA analysis.
Comment: The goal of simply maintaining the persistence of local
populations is not sufficient. The LAP objective, like the EMU
objective, should be ``consistent with the goals of maintaining stable
or increasing breeding populations.''
Response: Our analyses suggest the LAP take limit will actually
allow for additional bald eagle population growth at the LAP scale. All
golden eagle take will have to be offset at a 1.2 to 1 ratio, though
the mitigation will not necessarily occur in the same LAP as the take.
Comment: The Service should not use the overly conservative 90th
quantile for golden eagles to define the LAP area in order to match the
median for bald eagles. The area bounded by typical, not extreme,
movement is necessary to ensure fair analysis of the LAP under the
proposed rule.
Response: The natal dispersal value the Service uses to define the
LAP area for bald eagles is actually the median value for females; in
bald eagles, as in most raptors, natal dispersal is female-biased
(females disperse farther than males; Millsap et al. 2015). By adopting
the median value for female bald eagles, the Service was able to
capture most of the natal dispersal distribution for males as well.
Millsap et al. (2015) lacked enough known-sex individuals to compute
separate estimates of natal dispersal distance for male and female
golden eagles, and so the Service used an updated 90th quantile for the
pooled distribution instead. This is explained in Appendix A5 in the
Status Report.
Comment: The Service advocates for siting of wind energy facilities
in areas where impacts to eagles are expected to be low; however,
siting facilities in low-use areas may inadvertently increase the
chance that the project is sited in an area that already exceeds the 5%
LAP take limit, making it more difficult or costly to obtain a permit
than for a project sited in an area with higher eagle density.
Response: The Service uses the mean eagle population density for
all LAPs within an EMU; thus, there is no difference in the LAP
population calculated for high- or low-density areas with respect to
the LAP analysis. Thus, this scenario is implausible.
Comment: Codification of the LAP cumulative effects analysis
creates an economic burden on companies that have fewer resources.
Response: Actually, the LAP analysis will likely reduce costs for
permits. First, the LAP cumulative effects analysis is a relatively
simple exercise that is conducted by the Service, so no additional
resources are required from the applicant to conduct the analysis other
than what would be required otherwise. Second, in cases where the LAP
analysis is conducted as analyzed in this PEIS, further project-
specific NEPA analyses of the cumulative effects of the activity on
eagles will not be necessary when projected take is within LAP take
thresholds, thereby reducing overall costs for prospective permittees.
Comment: The LAP approach is problematic for long, linear projects
such as electric transmission lines that may extend hundreds of miles
or for large utility service areas that contain thousands of miles of
distribution lines. Calculating and analyzing impacts over multiple
LAPs for a single transmission line project or utility service area
would be overly complex and very difficult for both the project
proponent and the Service, particularly if the lines cross LAPs where
the 5% cap is already exceeded.
Comment: The LAP analysis is specific to the wind farm and
utilities industry. It cannot be fairly applied to real estate projects
or any other industries.
Response: The Service has developed a spatial GIS tool that allows
its biologists to compute the LAP calculations quickly, easily, and
accurately. The LAP analysis can be applied to any project with borders
that can be defined, including linear projects. As noted elsewhere, if
these analyses indicate that take in excess of the 5% limit exists
within the LAP, more thorough analysis is triggered. It does not
necessarily mean an eagle incidental take permit cannot be issued.
Mitigation
Comment: The Service must clarify how proposed compensatory
mitigation: (1) Would not have occurred in the absence of a specific
permitting requirement; and (2) does more than require permittees to
complete actions that a third party is otherwise legally required to
complete under federal, state, or local law.
Response: This final rule adopts new language at 50 CFR
22.26(c)(1)(iii)(D) consistent with DOI policy requiring compensatory
mitigation to be additional and improve upon the baseline conditions of
the impacted eagle species in a manner that is demonstrably new and
would not have occurred without the compensatory mitigation measure.
Compensatory mitigation must provide benefits beyond those that would
otherwise have occurred through routine or required practices or
actions, or obligations required through legal authorities or
contractual agreements.
Comment: The concept of requiring mitigation to exceed existing,
ongoing, or future conservation efforts is speculative and should be
removed. This concept would remove incentives for applicants to
participate in voluntary actions promoting eagle conservation,
especially if no credit is given for these actions.
Response: We have removed language requiring compensatory
mitigation to be additional to ``foreseeably expected'' conservation or
mitigation efforts. In addition, we have added language clarifying that
voluntary actions to benefit eagles taken prior to permit application
may be credited towards compensatory mitigation requirements.
Comment: Clear guidance on how to quantify the level of
compensatory mitigation that will be required for golden eagle take,
other than that it will be greater than 1:1, is currently lacking and
should be provided.
Response: The preamble to this rule states that compensatory
mitigation for any authorized take of golden eagles that exceeds take
thresholds would be designed to ensure that take is offset at
[[Page 91528]]
a 1.2 to 1 mitigation ratio to achieve an outcome consistent with the
preservation of golden eagles as the result of the permit. We believe
this baseline mitigation ratio appropriately balances meeting our
obligations under the Eagle Act with what is reasonable, fair, and
practicable to permittees.
Comment: The Service should define what the unit of mitigation is,
for example, territories, nests, or eagles.
Response: Impacts of an authorized project and benefits of
compensatory mitigation are reflected in terms of numbers of eagles.
For example, disturbance take would be analyzed for its impact on
breeding success (see Tables 13 and 14 in the Status Report). Habitat
restoration would be analyzed for its potential benefits to the eagle
population.
Comment: Requiring compensatory mitigation at a greater than 1:1
ratio runs the risk of violating the ``rough proportionality''
requirement of the Fifth Amendment's takings clause (U.S. CONST.
amendment V; Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct.
2586, 2596 (2013) (``Extortionate demands for property in the land-use
permitting context run afoul of the Takings Clause not because they
take property[,] but because they impermissibly burden the right not to
have property taken without just compensation.'')). By definition,
requiring mitigation at a greater than 1:1 ratio will produce
conservation benefits higher than needed to offset actual impacts. The
government may ``choose whether and how a permit applicant is required
to mitigate the impacts of a proposed development, but it may not
leverage its legitimate interest in mitigation to pursue governmental
ends that lack an essential nexus and rough proportionality to those
impacts'' (Id. at 2595 (emphasis added) (There must be a `` `nexus' and
`rough proportionality' between the property that the government
demands and the social costs of the applicant's proposal'' (quoting
Dolan v. City of Tigard, 512 U.S. 374, 391 (1994).))). Also, because
the unconstitutional conditions doctrines forbids burdening an
individual's constitutional rights by coercively withholding benefits,
the Service may not require compensatory mitigation at a greater than
1:1 ratio in exchange for issuance of a take permit.
Response: The two cases cited by the commenter are not relevant to
the offsetting compensatory mitigation requirements in this regulation.
City of Tigard dealt with a specific regulatory encumbrance on a
portion of real property for an unrelated public benefit, and Koontz
dealt with a requirement for a conservation easement that was far in
excess of what was necessary to mitigate the impacts of the project.
Even if one could argue those cases are applicable here, the Court in
City of Tigard developed a ``rough proportionality'' test to determine
whether a permit approval condition constitutes a taking, as noted by
the commenter. This regulation requires an offsetting mitigation ratio
of 1.2 to 1, which, even if it could be considered more than necessary
to offset the impacts of a project, falls well within the bounds of
being roughly proportional to the impact being mitigated. The Court in
City of Tigard held that the regulating entity must make an
individualized determination that the condition imposed is ``related in
nature and extent to the impact of the proposed development,'' though
no precise mathematical calculation is required. Dolan v. City of
Tigard, 512 U.S. 374, 391 (1994). The Service has clearly explained in
this final rule that the compensatory mitigation ratio is required to
ensure that any authorization of golden eagle take is compatible with
the preservation of golden eagles. The compensation ratio is not a
generalized public benefit like the one struck down in City of Tigard,
rather it is an encumbrance tied directly to the purpose of the
regulations. Thus, this regulation clearly meets the Court's
requirement by explaining in detail the compensatory mitigation
requirement and its relation to the predicted impacts of a project and
whether those impacts are compatible with the preservation of eagles as
required by the statute.
Under the Eagle Act, the Service can issue a permit only if it is
compatible with the preservation of eagles. We have determined that
authorizing take of golden eagles while imposing compensatory
mitigation at a 1 to 1 ratio is not sufficient to meet our preservation
standard at this time. If eagles are not being preserved, one option is
simply not to authorize take until we can determine how to reduce
unpermitted take to the point where golden eagle breeding populations
are stable or increasing. However, a primary purpose of this rule is to
encourage more sources of unpermitted take to apply for permits and
implement conservation measures. Rather than imposing a moratorium on
new permits for golden eagles, we are requiring offsetting compensatory
mitigation at a 1.2 to 1 ratio. In order to authorize any take of
golden eagles under these regulations, we must ensure that take is
compatible with eagle preservation, and because golden eagles currently
are potentially facing declines, the 1.2 to 1 compensatory mitigation
ratio appropriately balances compliance with the Eagle Act with not
unduly burdening recipients of permits.
Comment: The Service should provide greater details in the rule
and/or in guidance to clarify the standards for approving compensatory
mitigation measures. Several commenters promoted the adoption of
specific mitigation measures including habitat-based conservation
banks, lead abatement programs, road carcass removal, support for
rehabilitation centers, and others.
Response: Quantifying the benefits of various compensatory
mitigation measures and developing standards for their application in
permitting is complex. The Service and partners, including industry and
NGO partners, has already spent considerable time and effort in
developing additional compensatory mitigation measures with the goal of
eventually approving their use as effective offsetting compensation. We
intend to engage stakeholders to develop additional guidance and the
standards for approving mitigation credits, setting appropriate
mitigation ratios to address particular mitigation measure
effectiveness and uncertainty, and establishing appropriate assurances
for durability of mitigation measures.
Comment: In-lieu fee programs frequently do not provide meaningful
compensatory mitigation prior to the onset of impacts.
Response: Any in-lieu fee program approved by the Service for use
in eagle permitting must meet the same high, equivalent standards as
any other mitigation type and must comply with DOI and Service
mitigation policy. Compensatory mitigation for eagle take is still
relatively new, with few approved methods. This final rule allows for
many different types of mitigation to be proposed to allow applicants
and the Service to expand the options available for providing
compensatory mitigation, providing all such measures comply with the
same fundamental standards. The Service will be developing additional
implementation guidance to further clarify the standards by which we
would approve particular compensatory mitigation types or measures.
Comment: Unproven mitigation measures should not be allowed.
Response: The Service agrees that proposed compensatory mitigation
measures that have no basis for their effectiveness would not be
approved. Approval of mitigation measures must be based on the best
available science. This does not mean that no uncertainties can remain
for a
[[Page 91529]]
mitigation measure to be approved. Any remaining uncertainties
regarding the effectiveness of a mitigation measure must be accounted
for to ensure that eagle take is appropriately offset. The Service
intends to establish baseline standards for particular mitigation
measures and involve the public in setting those standards.
Comment: To expand the breadth of defensible compensatory
mitigation options, targeted research should be funded as part of the
compensatory mitigation to facilitate the approval of additional
effective compensatory mitigation tools. Funding from compensatory
mitigation should not be directed toward activities that have less
tangible benefits to eagles such as research, population monitoring, or
education.
Response: Research and education, although important to the
conservation of eagles, are not typically considered compensatory
mitigation. This is because they do not, by themselves, replace
impacted resources or adequately compensate for adverse effects to
species or habitat. In rare circumstances, research and education that
can be linked directly to threats to the resource and provide a
quantifiable benefit to the resource may be included as part of a
mitigation package. These circumstances may include: (1) When the major
threat to a resource is something other than habitat loss; (2) when the
Service can reasonably expect the benefits of applying the research or
education results to more than offset the impacts; or (3) where there
is an adaptive management approach wherein the results/recommendations
of the research will then be applied to improve mitigation of the
impacts of the project or proposal.
Comment: As written, the regulations equate to a ``first come,
first served'' standard regardless of the number of eagles taken.
Because the ``first come, first served'' standard will create
inequities proportional to the level of take, we recommend establishing
standardized mitigation for each eagle taken, so that mitigation is
equitable to the level of take.
Response: We did consider requiring some level of mitigation for
all take, whether within the established take limits or not. However,
we have decided not to require mitigation for take that is within the
established EMU take limits. For golden eagles, due to their population
status, the EMU take limits are set at zero, and permits will all
requiring compensatory mitigation. Given the relatively robust
population status of bald eagles, and the likely demand for take
permits, the Service anticipates that bald eagle populations will
continue to grow without implementation of compensatory mitigation for
take within the EMU take limits.
Comment: The Service should not condition eagle take protection for
an individual project on a permittee acceding to compensatory
mitigation for unrelated actions by others. Doing so would raise APA
and due process concerns. Additionally, the Service should clarify that
no permittee will be required to offset take in excess of take levels
reasonably attributable to the activities covered in the permit.
Response: The Service will not impose compensatory mitigation
requirements on an individual project unless that project, either
singly or in conjunction with other projects in the same EMU (or
possibly the same LAP), takes eagles in excess of the take limit.
Projects removing eagles from the same EMU or LAP are not unrelated in
terms of the eagle populations they affect, and as such the Service
maintains it is appropriate and necessary to consider them cumulatively
in assessing whether compensatory mitigation is necessary or not. If
compensatory mitigation is required, it will be assessed in proportion
to the number of eagles estimated to be taken under each permit. For
golden eagles, permittees will be expected to contribute to reversing
potential population declines, a necessary action if the Service is to
allow any additional take of golden eagles and meet the stable
population objective. Permittees are not expected to carry the full
burden of offsetting unauthorized take; the Service has and will
continue to increase enforcement actions against those taking eagles
illegally so that unauthorized take will be reduced and restitution can
be obtained.
Comment: The proposed rule's modification of the preservation
standard with the goal of achieving a net conservation gain or no net
loss is premature in light of the Service's agency-wide mitigation
policy still being in draft form.
Response: The Service is relying primarily on the standards set
forth in the Eagle Act, as interpreted by the Service. The Service has
interpreted ``compatible with the preservation'' of eagles to mean
consistent with the goal of maintaining or improving breeding
populations of eagles since 2009. This final rule adopts the following
definition: ``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 the
persistence of local populations throughout the geographic range of
each species.'' We have coordinated the development of these revised
eagle regulations with development of the Service-wide mitigation
policy to ensure consistency. In addition, these final regulations are
in compliance with both Presidential and DOI mitigation policy, which
have both been finalized.
Comment: The provisions for compensatory mitigation state that it
must be based on ``best available science.'' Please provide a
definition for this term.
Response: For the purposes of the Eagle Rule, we regard the best
available science as scientific data that are available to the Service
and that the Service determines are the most accurate, reliable, and
relevant for use in a particular action.
Comment: It is not clear how compensatory mitigation requirements
will or will not apply to federal and other government entities that
apply for incidental take permits.
Response: Federal and other government agencies applying for an
eagle incidental take permit would have to comply with the compensatory
mitigation requirements of this rule, consistent with agency
authorities. The Service understands there may be some circumstances
where an agency does not have the discretion or available
appropriations to implement compensatory mitigation and would make
appropriate accommodations for these circumstances.
Comment: If a separate, distinct agency action benefits eagles, can
that action be used or credited towards its compensatory mitigation
requirements?
Response: Only actions that meet the additionality standards set
forth in this rule could be used for compensatory mitigation.
Compensatory mitigation must be additional and improve upon the
baseline conditions of the impacted eagle species in a manner that is
demonstrably new and would not have occurred without the compensatory
mitigation measure.
Comment: The payment into conservation banks and in-lieu fee
programs by a government agency could be problematic and potentially in
violation of federal appropriations. Consequently, how does the Service
foresee compensatory mitigation being implemented by permit applicants
that are federal or state agencies?
Response: The Service cannot require a government agency to take an
action outside the scope of its authorities. This rule does not assign
a preference for any mitigation type. If an agency was
[[Page 91530]]
precluded from participating in an approved third-party mitigation
program, the agency could implement its own compensatory mitigation.
Comment: Take should not be authorized above EMU take limits,
regardless of compensatory mitigation.
Response: The Service believes that the rigorous standards for
monitoring and compensatory mitigation in this rule ensure that
authorized take over EMU take limits will be compatible with the
preservation of eagles. The Service reserves the right to deny a permit
if we determine the specific project is not compatible with the
preservation of eagles.
Comment: The Service should require compensatory mitigation for all
authorized take, including take within EMU take limits.
Response: The Service defines ``compatible with the preservation''
of eagles 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
each species.'' Based on the Service's status review of the two eagle
species, the Service has determined that the sustainable take rate for
golden eagles is zero, while the bald eagle population can withstand
the loss of several thousand individuals and still meet established
preservation goals. DOI mitigation policy requires that mitigation be
tiered to achieving landscape-level goals. The Service has determined
that when take is below modeled sustainable take rates, we can achieve
our conservation goals for the species without compensatory mitigation.
By including the persistence of local populations in the preservation
standard, the Service may also require compensatory mitigation if a
permittee's action would threaten the persistence of a local
population.
Comment: Compensatory mitigation should address project impacts by
being located in the same LAP as the project impacts.
Response: Authorized projects may affect both resident and
migratory individual eagles. Compensatory mitigation for eagle take is
still in its infancy, and there are currently limited options to
effectively compensate for the loss of eagles. Further limiting those
options to the LAP is not practicable to implement at this time. The
final rule retains the requirement to site within the same EMU where
the take occurred. This allows the Service to target compensatory
mitigation to have the greatest benefit to eagles while compensating
for the impacts of the authorized project in a biologically meaningful
way. For compensatory mitigation that is required to address concerns
for a LAP, the Service has a preference for compensatory mitigation
projects to be sited in the LAP where the impacts occurred. Projects
that raise concerns over a local population would generally require
site-specific environmental analysis, including would include
consideration of where to site compensatory mitigation.
Comment: Habitat conservation is important for eagles. The Service
should provide more guidance on how habitat conservation and
restoration may be used for compensatory mitigation.
Response: While the current primary limiting factors affecting both
eagle species are not habitat-based, the condition and availability of
habitat is an important factor in eagle conservation. The condition and
availability of habitat will likely be increasingly important in the
future in light of climate and land-use changes. As with other forms of
compensatory mitigation, the Service will continue to work with
stakeholders to develop further guidance on how to structure habitat
conservation efforts in ways that meet the standards set forth in the
rule.
Comment: Compensatory mitigation should be implemented prior to the
onset of impacts. The Service should allow for flexibility in the
timing of mitigation, recognizing that not all mitigation can be
provided prior to impacts.
Response: Service mitigation policy prefers that compensatory
mitigation be implemented prior to project impacts. This is important
to document the effectiveness of the mitigation measure. However,
requiring compensatory mitigation to be in place prior to project
impacts is not always practicable. All compensatory mitigation must
follow the standards set forth in this rule, which are designed to
ensure that compensatory mitigation is effective and offsets the
impacts of the authorized take of eagles. If compensatory mitigation is
implemented after project impacts, then it would have to account for
temporal loss of the eagles taken, and mitigation ratios would be
adjusted accordingly.
Comment: Unauthorized take and violations of the law are a law
enforcement issue, not a permit issue. Unusually high levels of
unauthorized eagle mortality within a LAP should not be a trigger for
compensatory mitigation.
Response: From a biological perspective, it does not matter whether
take is authorized or not; both unpermitted and permitted take result
in mortality, and the effects of that mortality on eagle populations is
the same. Thus, meeting the Service's management objective of not
causing the extirpation of local populations requires that we consider
and take into account existing levels of unpermitted take, and where
those levels are excessive, to either not issue a permit or to require
mitigation if we believe mitigation can be effective in offsetting
additional take in the LAP. The commenter is correct that unpermitted
take is also a law enforcement issue, and part of the solution lies in
increased compliance. Towards this end, the Service's Office of Law
Enforcement has and will continue to prioritize enforcement of illegal
take of eagles.
Comment: The Service should not employ a ``practicable'' standard
when evaluating compensatory mitigation. Compensatory mitigation must
be designed to effectively offset all authorized take.
Response: These final regulations better align compensatory
mitigation requirements with DOI and Service policy. Compensatory
mitigation is required for remaining unavoidable impacts after all
appropriate and practicable avoidance and minimization measures have
been applied.
Comment: The Service should refrain from establishing an explicit
preference for use of in-lieu fee programs, mitigation and/or
conservation banks at this time. The Service should continue working
with third-party mitigation providers to develop effective mitigation
programs and policies governed by equivalent mitigation standards.
Response: This rule does not state a specific preference for
mitigation type. While there could be advantages to certain mitigation
types in the future, like an in-lieu fee program targeting mitigation
actions to maximize benefits to eagles, third-party mitigation options
are not yet available for mitigating eagle take. This rule clearly
states that all forms of compensatory mitigation must meet the same
equivalency standards. More detailed guidance and standards for
particular mitigation methods will be developed with public input.
Comment: The Service should consider allowing mitigation proposed
under existing regulatory mechanisms, such as the U.S. Army Corps of
Engineers' Clean Water Act section 404 permitting and ESA section 10
permitting, to be used for eagle mitigation to avoid unnecessary
duplication among agencies and programs.
Response: The Service has particular mandates under the Eagle Act
that differ from requirements under the ESA and U.S. Army Corps of
Engineers' mandates under the Clean Water Act. To the
[[Page 91531]]
extent that existing mitigation programs meet the standards set forth
in this rule and future guidance, they could contribute to compensatory
mitigation for eagles.
Comment: Tribes are uniquely affected by eagle take permits. The
Service should look to tribes with the resources and expertise to
support the management of eagles to host mitigation activities,
including giving preference for tribal lands for compensatory
mitigation projects.
Response: The Service understands and respects that tribes have
religious and cultural relationships to eagles that are unique, and
that the Service has government-to-government consultation obligations
with tribes. The Service values its partnerships with tribes and will
continue to seek ways to strengthen these partnerships to advance
wildlife conservation, including eagle conservation. This rule states
that tribal take of eagles is a higher priority than incidental take
covered by these revised regulations. Compensatory mitigation for
eagles is relatively new, and there are currently only limited options
for permittees. It is not appropriate at this time to further narrow
the availability of compensatory mitigation projects to any specific
land ownership, including tribal lands. However, nothing in the rule
precludes the use of tribal lands as sites for compensatory mitigation,
and such matters could be appropriate subjects for tribal consultation
on individual permits that may affect tribal interests.
Miscellaneous--Sec. 22.26
Comment: With the Service's small staff and shrinking budget, the
commitment to gathering solid population data for eagles at least every
6 years may be impossible to meet. Adjusting eagle take permits every 5
years (whether they are part of a permit given once, or part of a 30-
year permit reexamined every 5 years), particularly based on local
scale information about eagle populations, is impossible to do if
population data are not gathered in a consistent, comprehensive way,
making it impossible for the Service to implement the rules in any
meaningful way ``consistent with the goal of maintaining stable or
increasing breeding populations.''
Response: The schedule of monitoring proposed in the PEIS balances
available dedicated eagle funding in the Service with the technical and
logistical demands of eagle monitoring. Under this schedule, eagle
monitoring will be conducted annually (not once every 6 years as
implied by the comment), but the three major eagle surveys (golden
eagle summer, golden eagle winter, bald eagle summer) will be conducted
in rotation once each, every 3 years, with reassessments and updates of
status every 6 years.
Comment: The Service misapplies the term ``take'' to include
injuries or mortalities caused by accidental collisions with wind
turbines, since such a statutory construction is inconsistent with the
statute's required mens rea, and generally ``would offend reason and
common sense'' See United States v. FMC Corp., 572 F.2d. 902 (2d Cir.
1978).
Response: Operating turbines that incidentally (accidentally) take
or kill migratory birds is a violation of the MBTA and the Eagle Act.
Collisions with wind turbines are foreseeable and can be avoided,
minimized, or mitigated for with the proper implementation of
conservation measures. The Second Circuit Court of Appeals in the
United States v. FMC Corp. decision cited by the commenter, along with
most other courts, interpreted the MBTA to be a strict liability crime
for misdemeanor violations, which means no mens rea (mental state) is
required to determine guilt See 572 F.2d at 905-08. The United States
v. FMC Corp. case dealt specifically with violations of the MBTA and
not the Eagle Act, although eagles are also protected by the MBTA.
Similar to the MBTA, the Eagle Act requires no mens rea for certain
violations, including those that incidental take would fall under. See
16 U.S.C. 668(b).
Courts have concluded that, under strict liability, incidental take
caused by many different activities violates the MBTA See, e.g., FMC
Corp. (hazardous wastewater pond); United States v. Corbin Farm Serv.,
444 F. Supp. 510 (E.D. Cal. 1978) (improper pesticide use); United
States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070 (D. Col. 1999)
(power line electrocution and collisions); Ctr. for Biological
Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002) (U.S. Navy
military training activities); United States v. Apollo Energies, Inc.,
611 F.3d 679 (10th Cir. 2010) (oil extraction equipment). But cf.
United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015)
(oil waste water facilities, but based on the conclusion that the MBTA
was primarily enacted to regulate hunting and poaching). Recently,
courts have reached similar conclusions with regard to wind-energy
operations See, e.g., Pub. Employees for Envtl. Responsibility v.
Hopper, 827 F.3d 1077, 1088 n.11 (D.C. Cir. 2016). There is no reason
to conclude that courts would reach different conclusions for
incidental take of eagles under the Eagle Act.
Comment: The revised 30-year eagle rule will allow wind energy
facilities to cumulatively kill up to 4,200 bald eagles and 2,000
golden eagles annually with no prosecution.
Response: This brief and widely publicized statement distorts the
actual facts about the proposed rule in at least four ways. First, it
simply ignores the existence of the permitting process and implies the
Service will ignore violations by wind companies. Second, the numbers
presented for bald eagles are in reality the amount of take that the
Service estimates could occur without resulting in a population decline
(and the actual number is likely significantly higher; this is a
conservative estimate that errs on the side of protection). The numbers
do not represent the level of take the Service anticipates authorizing
under permits. Third, mention of allowable take of 2,000 golden eagles
is completely without basis; the take level for golden eagles is set at
zero without offsetting compensatory mitigation. Finally, the estimated
sustainable take limits are not allotted to the wind energy industry;
the Service issues permits to homeowners and other individuals; local,
state, tribal, and federal agencies; and many types of businesses. In
fact, the majority of permits that have been issued under the 2009
regulations have been for temporary disturbance or removal of inactive
nests for safety purposes.
Comment: The Service does not adequately enforce the Eagle Act when
it comes to wind power. Companies, therefore, are not deterred from
constructing projects in essential habitats of eagles and other
migratory birds. Without increased enforcement, there is no reason to
assume the new regulations will lead to any greater degree of
compliance.
Response: Eagle take is prohibited by law, and violations may be
prosecuted criminally or through civil enforcement authorities. Which
type of enforcement is used depends upon the facts of each situation,
including the conduct of a wind energy company in siting and operating
wind projects. The Service and the U.S. DOJ have taken enforcement
action where and when warranted and will continue to do so. In the last
18 months, the Service has resolved five civil enforcement actions
concerning unauthorized incidental take of eagles at wind facilities.
However, when investigations are ongoing, information about them is not
released to the public. It is understandable that the public is unaware
of the enforcement actions being pursued by
[[Page 91532]]
the Service's Office of Law Enforcement. When investigations are
ongoing, information about them is not released to the public, or even
to other Service programs, until cases are resolved. In this case, the
commenter's statement is just wrong. In fact, just in the last 18
months, the Service has resolved four civil enforcement actions against
wind companies. Taken together, the four civil settlements reached over
the last 18 months have addressed legacy and interim eagle take at 15
different wind-energy facilities, resulting in 10 additional wind
energy facilities applying for eagle take permits (5 had applied for
permits at the time settlement discussions commenced) and commitments
by the wind energy facilities to spend a minimum of $1,855,000 over the
next 3 years on research and development of avian detection and
deterrent technologies and to pay $55,000 in civil penalties.
Comment: The Service should consider an approach to ensure
permitting and siting regulations are properly followed. In Osage
County, Oklahoma, although injunctions were granted at the federal
level against construction of wind turbine projects, lack of
enforcement meant construction continued without interference. The
Service must clarify and strengthen its approach for instances where
eagle permitting regulations are not followed by energy developers or
others.
Response: The Eagle Act does not directly regulate otherwise legal
activities that may result in the take of an eagle or eagles. Specific
effects of otherwise lawful activities, including construction and
operation of wind facilities, can constitute actions that are
prohibited under the Eagle Act, such as disturbance, injury, or killing
of eagles. The permit authorization is for the otherwise-prohibited
take, which is usually directly caused by the operation of the project.
The eagle permit does not authorize the construction of the facility
itself.
An injunction is an order issued by a court requiring a person to
do or cease doing a specific action. An injunction is considered to be
an extraordinary remedy and is available only in special cases where
the injunction is necessary to preserve the status quo or to require
some specific action in order to prevent irreparable injury or damages
that cannot adequately be remedied. The Service is not aware of any
injunctions currently in effect ordering any wind energy company to
cease taking eagles in Oklahoma. The injunction the commenter refers to
may be related to federal cases involving the potential intrusion of
subsurface mineral rights by construction of wind-turbine foundations
at a facility constructed in Osage County, Oklahoma. The cases did not
relate to eagles and construction continued because the cases were
resolved in favor of the wind company.
Comment: The Service has the ability to regulate the wind industry,
including influencing siting. For example, if the Service recommended
that a project not be placed at a particular site due to high risks to
federally protected species, but the developer ignored the
recommendation or failed to obtain appropriate permits, then the
Service could subject that facility to enhanced scrutiny, including
independent monitoring of fatalities and/or unannounced visits by law
enforcement. The developer could also be warned that, if protected
species are killed, the Service will refer the case to the Justice
Department and request prosecution to the greatest extent of the law,
including the possibility of temporary or permanent shut down.
Comment: Proper siting for wind energy projects and adequate
protection for eagles and migratory birds must take a higher priority.
There should be no siting of wind turbines in eagle breeding, nesting,
and migratory areas under any circumstances. While more stringent and
responsible guidelines on proper siting may be more difficult and
costly, we contend that this is an instance where the federal
government and the Service must stand firm and defend our eagle
populations.
Comment: The Service is wrong in asserting that it lacks any
authority to ``prohibit development in areas that are important to
eagles,'' and that the most it can do, is ``recommend'' that a company
not build its project in a high-risk site. 18 U.S.C. 371 makes it a
crime for any person to conspire ``to commit any offense against the
United States.'' The government has relied on this provision to
prosecute not only actual ``takings'' in violation of federal wildlife
protection laws, but also the predicate actions necessary to bring such
takings to fruition. The government need not wait until the actual
taking of an eagle, but may undertake appropriate enforcement action to
prevent harm to protected wildlife before it occurs.
Response: The Service has been consistent with our message that we
focus our resources on investigating and prosecuting individuals and
companies that take migratory birds, including eagles, without
identifying and implementing all reasonable, prudent, and effective
measures to avoid that take. Companies are encouraged to work closely
with the Service to identify available protective measures in their
avian protection plans when developing project plans, and to implement
those measures prior to/during and after construction and operation,
including during the siting process. However, if a wind company ignores
our advice and develops a project in an area that results in the take
of eagles or concerning numbers of other migratory birds or federally
protected bats, we can and do investigate and, if appropriate, pursue
appropriate enforcement action. The Service and DOJ have taken
enforcement action where and when warranted using the enforcement
authorities available to them and will continue to do so.
Comment: How is the Service going to find out if protected species
have been taken since it relies solely on the regulated industry to
volunteer that they have broken the law? The wind energy industry
(which is already paying for their own studies) should contribute to a
fund that the Service will use to hire independent experts to conduct
pre-construction risk studies and post-construction bird and bat
mortality studies.
Response: We agree that independent third parties reporting
directly to the Service should monitor take under long-term permits,
and we have incorporated this requirement into the final regulations.
Comment: The regulations should include a requirement that all
baseline and post-construction data on wildlife will be made fully
available to the public as soon as possible. Lack of transparency is a
pervasive problem. Reports of baseline studies and of impacts
monitoring at wind projects are increasingly kept confidential. These
data pertain to public trust resources, and should not be kept
confidential.
Comment: The Service should establish mechanisms to automatically
provide all data and reports, including raw data collected on-site, to
the public in real-time and as soon as it is available.
Comment: The Service should require that all monitoring data
(reports and raw monitoring data) be submitted electronically to a
publicly available database. Federal agencies are moving towards
electronic reporting as evidenced by the Environmental Protection
Agency's (EPA's) ``Next Generation Compliance'' initiative. The Service
should develop a public electronic portal/database from which it can
track permit compliance, authorize take across populations, and publish
proposed and final permitting decisions. This portal would allow
stakeholders and regulators to quickly search permits and quickly
access all available
[[Page 91533]]
monitoring reports and 5-year reviews. This approach would not only
facilitate transparency but also provide a valuable tool for its staff
to track permit compliance.''
Response: The permit regulations already contained the provision
that all mortality data will be available to the public prior to this
rulemaking. We will post cumulative reported mortality data that is
summarized to a state and flyway level on a Web site that can be viewed
by the general public. We will consider posting pre-construction (or
pre-permitting) data that we require as part of the permit application
for projects that receive eagle take permits.
Comment: The proposed rule is focused on eagle breeding
populations; however, the eagles killed in wind resource areas are not
necessarily participants in breeding populations at the times of their
deaths.
Response: The proposed rule did not focus on breeding populations,
and in fact one aspect of the proposal, to adopt Flyways rather than
maintain the current EMUs, was introduced to better account for non-
breeding season movements. The Service's population size estimates,
sustainable take rate estimates, and take limits all apply to eagles
across all age classes, both sexes, and throughout the year. Even the
LAP analysis, which does focus heavily on breeding eagle densities, is
not intended to only be protective of breeding populations, as
explained in the Status Report on page 27.
Comment: The Service should provide more clarity and transparency
concerning data collected concerning causes of eagle mortality in the
United States. As the agency responsible for the National Eagle
Repository (NER), the Service is in a unique position to obtain, track,
and disclose data surrounding eagles being sent to the repository.
Disclosure of these data would provide a necessary starting point to
check the accuracy of Service priorities regarding eagle mortality in
the United States.
Comment: Tribes should have access to eagle injury and death
reporting related to their historic reservation areas to provide for
better collaboration regarding eagle incidents. Eagle injury and death
incidents should be coordinated with tribal eagle research facilities
as a collaborative measure to ensure improved data and research related
to wind turbine impacts.
Response: The Service is in the process of developing a database to
centralize and grow the dataset on injury and mortality incidents
involving eagles and other birds across the nation. This will include
data on any eagles recovered by, reported to, or delivered to the
Service and/or any partners who data share with the Service, and will
include eagles that go on to be sent to the NER. The database is still
being populated with a number of historical records and prepared for
use by others outside of the Service, but is anticipated to be fully
functional by the end of 2017. Once the database is populated and fully
operational, we do anticipate that some level of information will be
made publicly available, along with information on the role these data
play in helping the agency address and research impacts to eagles and
other birds. It is important to note that the Service will not be
depending solely on the data collected in this database to accurately
depict the relative causes of eagle and other bird mortality across the
landscape. While some of the data collected in the database should help
to inform these questions, there are targeted, structured studies that
are more useful for this purpose. A list summarizing these studies is
available upon request, but a good example is a study the Service is
conducting that involves using the fates of a sample of satellite-
tagged eagles to estimate the importance of different mortality
factors, as described in the Status Report. We note that many Native
American tribes have been active participants and collaborators in that
study, and that collaboration has greatly improved the extent and
scientific quality of the findings.
Comments: The Service has stated that: ``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 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.'' That statement strongly suggests that the Service will
accede to the wishes of companies that desire to shield from the public
their impacts on public trust resources--which is hardly consistent
with the purposes of the Eagle Act, MBTA, or FOIA. Any wind energy
company could declare that disclosure of eagle kill data could hurt its
bottom line or is somehow ``confidential'' business information, with
the result that virtually all eagle mortality data will likely continue
to remain unavailable to the public and concerned conservation
organizations.
Response: Under the FOIA's Exemption 4, the Service independently
determines whether submitted data is commercial information not subject
to disclosure (confidential business information), whether or not it is
marked as such by the submitter. A submitter cannot simply insulate
information from disclosure under FOIA by marking it as privileged or
confidential and expect the Service to accede without an independent
analysis. Also, there is a distinction between ``voluntarily
submitted'' records and records that are required to be submitted, and
in the language quoted by the commenter, we were talking about other
birds in addition to eagles. Under eagle take permits, submission of
eagle mortality information is not voluntary, and our regulations, both
current and those made final with this rule, require data on permitted
eagle mortality to be publicly available.
Comment: While tribal members are required to apply for and receive
individual permits from the Service to even possess eagle feather or
parts--despite the Constitutional rights and religious freedoms of
tribal people that have long been acknowledged in the law--the Service
intends to issue permits for lethal take of eagles to the wind industry
for up to a 30-year term, not to protect eagles as the Service now
suggests, but rather to facilitate a purely commercial activity by wind
developers. The requirement that permits for traditional religious use
of tribal members be renewed annually imposes administrative and cost
burdens on the practice of religion, as well as on the Service's
limited resources. The Service should consider issuing take permits for
Native American religious use in perpetuity, or at a minimum for the
30-year term the Service proposes for non-religious incidental take.
The inequities between the durations of these two permits warrant
staying the final incidental take permit regulations until the Service
can address this very serious question.
Response: We are aware that the 1-year permit duration for permits
to take eagles for religious use may impose an unnecessary burden on
some tribes, and we are considering revisions to those permit
regulations to address a variety of issues, including the permit
duration. We will consult with tribal governments before proposing any
revisions.
Comment: The proposal lacks meaningful or specific guidance as to
how the Service will conduct tribal consultation with potentially
affected
[[Page 91534]]
Indian tribes on a project-by-project basis when the Service receives
permit applications. There is no assurance the Service will engage in
proper consultation with affected Indian tribes. Tribes are likely to
be cut out of the permitting process, depriving the Service of valuable
traditional ecological knowledge and tribal data about the historic and
current presence of eagles in the area.
Response: Where issuance of a permit has the potential to affect
Native American tribes, we will notify the potentially affected tribes
and provide them with the opportunity to consult. If tribes have
valuable traditional ecological knowledge they will share, we will
welcome that information. The Service relies on a numerous guidance
documents to inform how it consults with tribes, including Executive
Orders; Presidential memoranda; DOI Secretary's Orders; and policies of
the DOJ, DOI, and the Service. We do not see any advantage to tribes of
incorporating all this guidance into the eagle permit regulations, and
the result would be either a repetition of information already provided
or a summarized (and, therefore, more generalized and less helpful)
version of the existing authorities and guidance. Further, as with any
federal action warranting tribal consultation, the specific
circumstances of the actions will affect the process and parameters of
the consultations. Additionally, individual tribes have different
preferences for how they wish the consultation process to proceed. For
all these reasons, we did not address specific protocols for
consultation with tribes.
Comment: The Service should mandate that each permit application
identify affected tribes in the requisite eagle conservation plan.
Consultation with tribes should occur at every stage of the permitting
process. The regulations should ensure that affected tribes receive
notice by sending a copy of each eagle take permit application to
tribes. If this is not feasible due to legal, confidentiality, or other
concerns, tribes should at least receive notice of an application and
information necessary to allow for effective and meaningful
consultation. Also, affected tribes should be included in the NEPA
analysis of each permit. To ensure increased participation and input by
tribes in the NEPA process, affected tribes should be invited to serve
as cooperating agencies under NEPA. Further, the Service should send a
copy of an eagle take permit to all affected tribes upon the issuance
of that permit.
Comment: Tribes that will be affected by eagle take authorized
under a particular permit must be identified and contacted to
facilitate participation in the permit decision-making process. The
Service should cast the widest net possible to identify affected
tribes, which the regulations should broadly define to include: (1) All
tribes with an interest in eagles in the vicinity of a wind energy
project; or (2) all tribes that may have interest in eagles within the
relevant flyway.
Response: We maintain our commitment to consulting with interested
tribes as early as possible in the permitting process when issuance or
review of individual permits may affect a tribe's traditional
activities, practices, or beliefs. We do not think it is appropriate to
require a permit applicant to identify potentially affected tribes.
Instead, it is incumbent on the Service to make that determination.
Thus, we will continue to rely on our trust relationship and open
communication with each federally recognized tribe to help us determine
when a project may affect tribal interests. Because of the myriad
differences in the interests of federally recognized tribes regarding
eagles, we do not find it appropriate to limit or circumscribe
consultation with individual tribes by outlining a more specific
framework for the consultation process. Each consultation will depend
on the specific needs and concerns of the affected tribe. In some
cases, it may be appropriate to consult with a tribe regarding its
interest in projects occurring in a region or flyway. In other cases,
it may be appropriate for a tribe to act as a cooperating agency for
the NEPA process for an eagle permit. Regardless of any consultation
process, the effects of an eagle permit on tribal cultural, religious,
or socioeconomic interests will be analyzed in the appropriate NEPA
document for that permit.
Comment: The Service should clarify that projects that attempted in
good faith to comply with eagle take regulations, especially those that
also applied for permits but were unable to obtain a permit due to
difficulties inherent in the current permit program, should not be
required to undergo additional mitigation prior to being issued a take
permit under the new regulations. Consistent with the template eagle
settlement agreement framework, the Service should clarify in the eagle
permit program that not all such projects will need to enter into a
settlement agreement prior to being granted a permit; instead, the
Service will, in determining whether prior unpermitted take requires
any additional actions, take into consideration the nature,
circumstances, extent, and gravity of the acts with respect to the
degree of culpability and cooperation, history of noncompliance, levels
of past take, and efforts to reduce take.
Comment: The proposed rule implies that applicants would need to
take corrective actions and/or make payments for all takes over the
life of the project, which, for transmission line providers, may have
been in operation since the early 1900s. It is unreasonable and
ineffective to require that those seeking a voluntary permit must
``settle up.'' Voluntary applicants would then need to incriminate
themselves to obtain an eagle permit, creating a strong disincentive to
seek permits.
Comment: The Service should reconsider its position that applicants
may be required to address past take by entering a settlement
agreement; why does historic take need to be taken into account now
considering that take occurring prior to 2009 is already reflected in
the bald and golden eagle population status?
Response: A permit can be issued without resolving unauthorized
past eagle take; however, the applicant continues to be subject to an
enforcement action at any time for unpermitted prior take of eagles.
Such decisions will be made on a case-by-case basis considering the
totality of the circumstances. Project proponents have been encouraged
to consult with the Service early and often to avoid and mitigate
migratory bird and eagle take to the extent practicable, and to apply
for an eagle take permit where take cannot be avoided. The Service's
goal has been to work closely with project developers to ensure
unlawful (unpermitted) take does not occur. However, many entities have
chosen to avoid the Service's involvement all together, or only engage
with the Service after eagles were killed and a law enforcement
investigation began. A determination by the Service whether to pursue
criminal or civil enforcement of prohibited eagle take and, if so,
whether it is appropriate to resolve any such enforcement through a
settlement will consider the conduct of a company in siting and
operating projects. Settlement agreements may be appropriate under
either the criminal or civil provisions of the Eagle Act. Finally, in
response to the last comment, the statute of limitations for criminal
and civil enforcement actions is five years and we would not expect
enforcement of take prior to 2009.
Comment: In the original 2009 rulemaking, existing projects were
[[Page 91535]]
considered part of the baseline and were not required to implement any
additional mitigation requirement for take when obtaining a permit. The
Service should consider a similar approach here for existing projects
that have already invested significant resources in their projects and
are meeting the recommended measures outlined in the Wind Energy
Guidelines (WEG) and ECPG. Similar to the analysis for historical
tribal take for religious use, the Service should acknowledge that take
from existing infrastructure is part of the baseline. Authorization of
such take should not affect take limits established by the Service.
Many existing power line retrofit programs are improving the baseline
condition by reducing mortalities.
Response: Ongoing incidental take that has been occurring on a
relatively steady basis since before 2009 is part of the baseline and
therefore does not require offsetting compensatory mitigation. The
Service will take into consideration the conservation measures already
in place in developing permit conditions for these sources of take.
Comment: We agree with the Service's decision to decline to require
the following measures at wind energy projects: Increase in frequency
of turbine site inspection to search for physical evidence of
mortality/injury event; development and employment of video
surveillance and other technologies (impact alarms); and/or providing
onsite personnel to facilitate monitoring of larger wind farms. These
practices are clearly not demonstrated, effective best management
practices.
Response: We appreciate this opportunity to clarify our position.
We have not made any final decisions about the use of such measures; we
merely noted that they have not yet been shown to be effective.
Comment: The standard language on permits stating that the
authorization granted is not valid unless the permittee is in
compliance with all other federal, tribal, state, and local laws and
regulations is concerning. The language creates the result that some
federal permits could be of little value due to state restrictions on
issuing incidental take permits for ``fully protected'' species, such
as in California. The Service should consider alternative language that
would state that the applicant is responsible for ensuring compliance
with other federal, state, and local law.
Comment: Entities seeking a federal permit to take bald or golden
eagles may not be able to obtain a state-level permit to be in
compliance with state laws. This could potentially put the state fish
and wildlife agencies in the position of holding up the issuance of a
federal permit or revocation of a permit, due to the lack of authority
or ability to issue a state-level permit. The regulations should be
revised to include a framework or pathway within the permit structure
that requires coordination between the Service region, the state fish
and wildlife agency, and the applicant to discuss issuance of any state
permits. This will be imperative in states where there is no authority
or process to issue a state-level permit to reduce the potential
conflict between the state agency and the permit applicant.
Comment: The provision that permits can be issued to or valid only
for ``otherwise lawful'' activities should be removed. It is built into
the ESA statutory language, but is not present in the Eagle Act. The
concept under both ESA programs and the Eagle Act has been misconstrued
and inappropriately applied. Specifically, it can cause confusion,
leading to delays and to occasional litigation over permit processing
and issuance.
Response: We have revised the language that said the federal Eagle
Act authorization is not valid if a permittee is not in compliance with
the laws and regulations of other jurisdictions. The new language
states: ``You are responsible for ensuring that the permitted activity
is in compliance with all Federal, tribal, State, and local laws and
regulations applicable to eagles'' (Sec. 22.26(c)(11)). When seeking a
federal permit, persons should do their due diligence to determine
whether bald and golden eagles are protected under other laws and
whether their action may require additional authorizations. We will
defer to state, tribal, and local authorities' interpretation of their
own laws and regulations and will continue to work closely with those
entities in providing any requested assistance in enforcing non-federal
laws and regulations.
Comment: The timeframes associated with processing a permit
application were initially underestimated. Only one eagle permit has
been issued by the Service at the time of this letter. The final
regulations should contain processing timeframes.
Response: The Service has issued over 400 permits under the 2009
permit regulations. The false assertion that we have issued only one
permit has been made repeatedly by one industry for which we have
issued only one permit. We are not including permit issuance timeframes
in the regulations because the time it takes to issue a permit varies
enormously depending on the scale and complexity of the activity that
will result in take, the need to prepare an analysis under NEPA, the
quality and completeness of the data and other information provided by
the applicant, and many other factors.
Comment: We recommend more realistic penalties for violations be
instituted. The Service should review and address enforcement actions
and measures in the context of eagle take violations (under both the
MBTA and the Eagle Act). Presently, it appears that resources are
inadequate for enforcement in the field, as well as a reticence for the
Service and the courts to prosecute violators.
Response: The Service, as part of DOI, is an agency in the
Executive Branch of government. Civil and criminal penalties tied to
federal laws are set in statute and those statutes are set by the
Legislative Branch of government (Congress). However, in 2015 Congress
mandated that federal agencies update penalties for civil violations of
statutes they are responsible for enforcing. The Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015 requires
agencies to adjust the level of civil monetary penalties and to make
subsequent annual adjustments for inflation. See Public Law 114-74,
701, 129 Stat. 584. The Service subsequently updated civil penalty
amounts for all statutes it enforces, including the Eagle Act. See 81
FR 41862 (June 28, 2016). The maximum civil penalty under the Eagle Act
increased from $5,000 to $12,500 for any violation occurring after July
28, 2016, and the new penalty will be adjusted annually for inflation.
See 50 CFR 11.33 & 16 U.S.C. 668(b).
When issues of take are brought to the attention of the Service,
they become an investigative priority for the Service. If it appears
that the take violated federal law, the results of the investigation
are brought to the attention of either the DOJ or DOI's Office of the
Solicitor, for review and criminal or civil prosecution. The DOJ
decides, in consultation with the Service and the Office of the
Solicitor, whether or not to prosecute violations of federal law.
Comment: In the proposed rule, the Service provided a response to
comments that implies requiring a Bird and Bat Conservation Strategy
(BBCS) is consistent with its regulations: A BBCS is a vehicle created
by the 2012 land-based WEG. Requiring a BBCS contradicts the voluntary
nature of the WEG, and also contradicts the WEG-created concept of the
BBCS. The Service should clarify in the preamble
[[Page 91536]]
to the final rule that a BBCS (or collection of documents that serve
the function of a BBCS) is voluntary.
Response: Preparation of a BBCS is voluntary under the WEG.
Preparation of an eagle conservation plan is voluntary under the ECPG.
Neither the WEG nor the ECPG confers the take authorization necessary
to shield an entity from enforcement for prohibited take under the
Eagle Act. A permit is the necessary mechanism to confer the
authorization needed to take eagles, and permits require avoidance and
minimization measures. Some applications for eagle permits (e.g., for
most wind energy facilities and other projects that are large-scale and
have the potential for significant or ongoing impacts) will require
essentially all the information and commitments that are generally
found in a BBCS. In those cases, the compilation of information
submitted need not be referred to as a ``Bird and Bat Conservation
Strategy'' (particularly if take of bats is not likely) or an eagle
conservation plan, but whatever it is called does not change the
requirement that certain information necessary for the Service to
determine that the applicant will undertake appropriate avoidance and
minimization measures must be submitted by the applicant.
Comment: The Service should clearly define for its staff that the
scope of the NEPA analysis should only include an analysis of the
environmental effects of the issuance of an eagle permit and its
associated effects. As applying for the permit is voluntary, the
general siting, construction, and operation of a project should fall
outside of the typical NEPA analysis.
Response: We agree that the scope of the NEPA analysis should
include only an analysis of the environmental effects of the issuance
of an eagle permit and its associated effects, including the effects of
mitigation measures. Because nearly all of the environmental impacts
associated with issuance of an eagle permit relate to eagles, the
analysis already included for these species should already be covered
by the PEIS for the majority of permits. Among the exceptions would be
most cases where the 5% LAP take limit is exceeded and whenever there
exist extraordinary circumstances that require an exception to a
categorical exclusion as defined under NEPA. As such, any project-
specific NEPA analysis should truly be circumscribed, as a majority of
the necessary analysis has already been covered. The impacts of
construction and operation may be part of the impacts analysis to the
degree that the permit covers the effects of those activities,
including the mitigation for the permit. Thus, the environmental
effects of any permit conditions and any modifications to the proposed
construction or operation of the project triggered by the permit review
and issuance process should be analyzed as part of the NEPA process. We
also note that, although applying for a permit is voluntary in nature,
take of federally protected species such as eagles is a violation of
federal law unless that take has been authorized under a permit or
regulation.
Comment: The Service invokes the Eagle Act statutory language that
refers to the ``protection of . . . other interests in any particular
locality'' as the foundation for its proposed regulation. However,
promotion of a national renewable energy industry is not an
``interest'' that relates to a ``particular locality.''
Response: The fact that the permit program overall may enhance a
national interest does not mean it violates the Eagle Act. Individual
permits are not being issued to a national interest. As a comparison,
preservation of eagles is also a national interest, and we can issue a
permit that would benefit eagles in any particularly locality. In fact,
a specific town, city, county, or set of coordinates at which one or
more wind turbines is located would constitute a ``locality,'' which
accurately reflects the scale at which the Service issues individual
permits.
Comment: The language relating to ``resource development and
recovery operations'' indicates that, to the extent Congress considered
that the Service could use incidental take permits issued under the
Eagle Act as a tool to promote a national industry, the agency's
authority to issue them is specifically limited to ``the taking of
golden eagle nests.''
Response: This comment confuses two different provisions of the
Eagle Act that were established by Congress in separate amendments to
the Act, one in 1962 (``for the protection . . . of agricultural or
other interests in any particular locality'' (Pub. L. 87-884, October
24, 1962)), and one in 1978 (``the Secretary of the Interior, pursuant
to such regulations as [s]he may prescribe, may permit the taking of
golden eagle nests which interfere with resource development or
recovery operations'' (Pub. L. 95-616, November 8, 1978)). The two
clauses provide the Secretary authority to issue permits for different
activities and are separated by multiple clauses addressing separate
types of entities and interests that may receive permits.
Comment: The proposed regulation is inconsistent with the 1916
convention with Canada aimed at conservation of migratory birds and its
1995 protocol (``U.S.-Canada Convention''). Article II.3 of the
Convention specifies that ``the taking of migratory birds may be
allowed at any time of the year for scientific, educational,
propagative, or other specific purposes consistent with the
conservation principles of th[e] Convention.'' However, the rule is not
aimed at advancing ``scientific,'' ``educational,'' or ``propagative''
purposes. Also, none of the conservation principles listed in the
Convention includes promotion of wind energy or any efforts aimed at
addressing climate change.
Response: This regulation does not ``promote'' wind energy; it sets
forth a suite of new and amended provisions to increase protection of
eagles and streamline the permitting process to encourage any project
proponent that may take eagles to apply for permits and thereby
implement conservation measures to reduce and offset projected take of
eagles that otherwise would not be implemented. The regulatory
amendments are consistent with the preservation of eagles under the
Eagle Act, which is a standard that potentially provides more
protection to eagles than the MBTA or any of its underlying treaties.
Moreover, the Canada Convention does not prohibit the Service from
authorizing incidental take of eagles or other migratory birds by
industrial activities. As an initial matter, the Canada Convention
itself does not include eagles in the list of bird species and families
it applies to; the treaty with Mexico covers the avian family that
includes eagles, and the treaty with Russia specifically includes bald
and golden eagles. Second, as the commenter notes, the Canada
Convention, as amended by the 1995 protocol, authorizes the parties to
allow the taking of migratory birds for ``other specific purposes
consistent with the conservation principles of this Convention.'' The
1995 protocol called for a comprehensive approach to the conservation
and management of migratory birds, outlining several conservation
principles and the means to pursue those principles, including
monitoring, regulation, and enforcement. See Article II. Several court
cases have confirmed the Service's authority to regulate and enforce
the MBTA's take prohibitions in the context of incidental take (see,
e.g., United States v. FMC Corp., 572 F.2d 902 (2d. Cir. 1978) (holding
that it is appropriate for the Service to use enforcement
[[Page 91537]]
discretion to police activities that incidentally take migratory
birds); Publ. Employees for Envtl. Responsibility v. Hopper, 827 F.3d
1077, 1088, n. 11 (D.C. Cir. 2016) (noting that an offshore wind
facility could apply for a permit to cover its activities likely to
cause incidental take)). Third, Congress enacted legislation directing
the Service to specifically authorize incidental take caused by
military readiness activities, signifying that Congress both
interpreted the MBTA to otherwise prohibit incidental take and viewed
the incidental take authorization as consistent with the underlying
treaties. See Public Law 107-314, 315, 116 Stat. 2458 (2002); and 50
CFR 21.15.
Comment: If the Service actually believes any additional
anthropogenic mortality cannot be sustained by golden eagles, how can
they presently be giving out a permit for the take of 40 nestlings by
the Zuni Tribe? The Zuni Tribe has been getting a permit since 1987;
that is a long track record of very local mortality.
Response: The permit referenced by this commenter is actually
issued to the Hopi, not the Zuni, Tribe. Region 2 of the Service has
fully analyzed the effects of this permit in an April 2013
environmental assessment (U.S. Fish and Wildlife Service 2013b). That
document found the actual take, which averages around 23 annually, is
biologically sustainable under the Service's management objective for
golden eagles. It is also important to recognize that the Hopi take of
golden eagles pre-dates all other forms of recorded anthropogenic
mortality and is a protected activity under the Religious Freedom
Restoration Act (42 U.S.C. 2000bb et seq.). The Service assigned
priority over all but emergency take of eagles to Indian religious take
in the 2009 Eagle Rule; thus the Service has an obligation to reduce
other forms of more recently instituted anthropogenic take before it
impacts the Hopi by reducing their take.
Comment: The regulations should include an explanation of how the
Service intends to implement the United Nations Declaration on the
Rights of Indigenous People (``UN DRIP'') relative to the issuance of
30-year take permits for eagles. Relevant provisions of the UN DRIP
that should have been discussed include, among other things, the impact
of the following Articles on the Service's take regulations: Article 19
(requiring ``free, prior and informed consent'' of indigenous peoples
where the United States adopts or implements legislative or
administrative measures which may affect them); Article 24 (clarifying,
inter alia, that indigenous peoples have ``the right to their
traditional medicines and to maintain their health practices, including
the conservation of their vital medicinal plants, animals and
minerals''); and Article 25 (emphasizing the right of indigenous
peoples to ``maintain and strengthen their distinctive spiritual
relationship with their traditionally owned or otherwise occupied and
used lands, territories, waters and coastal seas and other
resources'').
Response: The United States did not originally vote in favor of the
United Nations Declaration on the Rights of Indigenous Peoples in 2007,
but in 2010, President Obama announced U.S. support for the Declaration
by Presidential Proclamation while noting that the Declaration is not
legally binding or a statement of current international law (see
Announcement of United States Support for the United Nations
Declaration on the Rights of Indigenous Peoples, U.S. Dept. of State
(2010), available at: http://www.state.gov/documents/organization/184099.pdf). The Service will continue to consult with federally
recognized tribes in the spirit of the Declaration when any potential
authorization of eagle take may affect tribal interests, consistent
with the Presidential Proclamation and the Service's Native American
Policy at 510 FW 1. The Federal Register publication of 50 CFR 22.26 in
2009 sets forth our policy with respect to consultation and NHPA
compliance when issuing permits (74 FR 46836, September 11, 2009, pp.
46844, 46873, 46874).
Comment: The rule needs more clarity as to when a permit is
required. For example, should items such as the distance from a known
natal area, significant presence of eagles based on telemetry data or
similar measures, or the density of eagles in the immediate vicinity of
the proposed project be made into clear triggers for consultation?
Furthermore, there is no specific guidance as to the type of projects
that may need to apply. Would, for example, a 10- to 12-story building
in a valley with minimal documented flyovers be treated the same as the
conversion of a small jeep road to a paved thoroughfare? If the newly
paved road brings significant and ongoing human disturbance to a
relatively pristine location in close proximity (say within 15 miles)
of known eagle nests or natal areas, would both have the same
consultation need?
Response: A permit is required to be in compliance with the Eagle
Act if take of an eagle occurs. It is difficult to predict with
certainty exactly what precise circumstances will result in an eagle
being taken. However, we have developed guidance documents to help
people understand when their activities may take eagles. Guidance for
how to avoid disturbance of bald eagles can be found in our 2007
National Bald Eagle Management Guidelines. It is important to note that
some of the recommended distance buffers in those guidelines should be
increased in more open and less forested landscapes. We are working on
official guidance for avoiding disturbance of golden eagles.
Comment: Projects with eagle permit applications that have been in
process prior to release of the final regulations should not be subject
to new rule provisions unless an applicant volunteers to incorporate
the new provisions. Such changes would significantly extend the time to
provide project information, increase Service staff time, drive up
costs further, delay permit processing, and adversely affect project
financing very late in the financing process. These applications should
be considered first in line for the purposes of consideration of the
LAP threshold. Many of the sites did not perform 2 years of
preconstruction eagle use monitoring because they believe they are low
risk. If these rules are finalized, they should not be required to
perform additional monitoring.
Response: The final regulations contain provisions that allow
applicants to obtain coverage under all of the provisions of the prior
regulations if they submit complete applications satisfying all of the
requirements of those regulations within 6 months of the effective date
of this final rule. However, with respect to one of the examples used
by the commenter, we note that the Service guidance since 2011 has
recommended 2 or more years of pre-construction eagle surveys, so any
prospective wind projects conceived since then should have been aware
of this.
Comment: We believe additional clarification is needed regarding
whether the proposed rule is retroactive.
Response: The regulations are not retroactive, and we are
incorporating a 6-month ``grandfathering'' period after the effective
date of this rule (see DATES, above, and Sec. 22.26(i), below) wherein
applicants (persons and entities who have already submitted
applications) and project proponents who are in the process of
developing permit applications can choose whether to apply (or re-
apply) to be permitted under all the provisions of the 2009 regulations
or all the provisions of these final regulations.
[[Page 91538]]
Comment: Existing HCPs that include golden eagle coverage should be
``grandfathered'' in without fear of these proposed regulations being
interpreted to undermine the HCP take authorization by imposing
additional mitigation requirements. These HCPs were designed to assure
permittees there would be ``no surprises,'' that they were not
committing to conservation measures, only to have the rules changed on
them part way into the permit term. The final eagle permit rule must
exempt from the final rule any eagle ESA incidental take permits whose
applications have been submitted prior to the effective date of the
final rule. The regulations should also exempt Natural Resource
Community Plans and HCPs that address eagles in anticipation of
obtaining ESA incidental take permits.
Response: In 2008, we issued a final rule addressing incidental
take authorization under the ESA and Eagle Act (73 FR 29075, May 20,
2008). This rule established regulations under 50 CFR 22.11 to provide
take authorization under the Eagle Act to ESA section 10(a)(1)(B)
permittees, where bald or golden eagles are included as covered
species, as long as the permittee is in full compliance with the terms
and conditions of the ESA permit. Compliance with the terms and
conditions of the permit includes not exceeding the amount of
incidental take that was authorized. Failure to abide by the ESA
section 10 permit requirements that pertain to eagles may, however,
potentially void the Eagle Act take authorization for these permits,
and result in permit revocation. In addition, the 2008 rule included a
provision clarifying the criterion for permit revocation for eagles:
Whether the activities covered under the permit are compatible with the
preservation of the bald or golden eagle, instead of the criterion set
forth in 16 U.S.C. 1539(a)(2)(B)(iv). For ESA permits already in
effect, the conservation measures required to cover bald and golden
eagles under previously issued ESA incidental take permits were deemed
to be compatible with the conservation standards of the Eagle Act. This
final rule does not modify those 2008 regulations. Thus, the terms and
conditions of existing ESA section 10 permits where eagles were
included as covered species, and where the permittee is in compliance
with the conditions of ESA permit, are not affected by this rulemaking.
In contrast, ESA incidental take authorizations for eagles that are not
already permitted are subject to the standards of permits issued under
the Eagle Act incidental take permit regulations, due to the Eagle Act
requirement that any permit issued must be ``compatible with the
preservation of eagles'' and the Service's 2009 interpretation and
application of that preservation standard under the Eagle Act. On May
10, 2011, the Service Director issued a memorandum to the Regional
Directors clarifying that the terms and conditions of new ESA
incidental take permits that cover eagles, including the mitigation
requirements, must meet the issuance criteria of the Eagle Act
regulations at 50 CFR 22.26. The memorandum reads, in part: ``[T]he
Service publically committed through its Finding of No Significant
Impact for the new Eagle Act regulations that it will not issue any
take permits for golden eagles beyond historically authorized take
levels, unless the impacts to golden eagles can be completely offset''
to achieve no net loss to the breeding population. This policy applies
to permits issued under the ESA as well as the Eagle Act. If bald or
golden eagles are included as covered species in a section 10 permit,
the avoidance, minimization, and other mitigation measures in the
project description and permit terms and conditions must meet the Eagle
Act permit issuance criteria of 50 CFR 22.26.'' Therefore, in order for
the Service to confer Eagle Act take coverage through the ESA section
10 permit program, ESA HCPs must meet the Eagle Act standards for
permitting, including mitigation requirements. We believe it is
appropriate to allow potential applicants who are well along in the
planning process to move forward under the existing regulations.
Therefore, we are taking a similar approach for potential ESA section
10 applicants as we are for potential Eagle Act permit applicants, in
that applicants who submit an ESA section 10 application that includes
take coverage for bald or golden eagles within 6 months of the
effective date of this rule may choose whether the standards of 50 CFR
22.26 that were in place prior to that effective date will apply to
their permits or the standards of these final regulations.
Comment: The Service encourages applicants to include bald and
golden eagles as covered species in HCPs developed for incidental take
permits under the ESA. The final eagle rule should make clear that
Eagle Act permits would satisfy the requirements under the ESA
regulations at 50 CFR part 17 for future permittees that are seeking
permit coverage for a single project for take of species covered by the
ESA and the Eagle Act.
Response: Eagle Act permit coverage that is not conferred under
issuance of an ESA section 10(a)(1)(B) incidental take permit
associated with an HCP explicitly does not satisfy the requirements
under the ESA regulations at 50 CFR part 17 for permit applicants
seeking permit coverage for take of species prohibited by the ESA and
the Eagle Act. Simply put, an Eagle Act permit issued under 50 CFR
22.26 does not provide take authorization under the ESA.
Comment: Affected tribes should be notified immediately upon
receiving notice of a take and invited to take culturally appropriate
action with respect to eagle remains with which the tribe has a
geophysical association.
Response: Regarding allowing affected tribes to take culturally
appropriate action with respect to remains of eagles taken under
permits, much depends on what those cultural practices are. For
example, we cannot authorize tribal rites on private land, and we also
will not allow tribes to take direct possession of the eagle remains.
We understand the desire of some tribes to retain eagles found on or
near Indian lands; however, to maintain a fair and equitable
distribution of eagle feathers to all federally recognized tribes, the
NER must fill orders on a first-come, first-served basis, and require
that all usable eagles be sent to the NER for distribution in this
manner. Any eagles diverted from coming to the NER would decrease the
number of eagles available to other tribal members, and may unfairly
impact some tribes.
Comment: Proposed new standards for ``required determinations''
found at 50 CFR 22.26(f)(2)-(8) are so vague as to render the refusal
of the Service to issue a permit wholly discretionary, and unreviewable
by judicial authority. A protected local interest such as a utility
must be reasonably allowed to receive a permit in order to meet the
statutory objective of continuing its activity without fear of
enforcement. While certain simple, objective, and inexpensive criteria
are appropriate, the proposed criteria are generally vague or
overreaching to the extent of flouting the statutory purpose of the
permit program for protected local interests. Any protected interest
should not have to satisfy the population requirement because the
statute mandates that a permit program must ``permit the taking of such
eagles for the protection of . . . other interests in a particular
locality . . . .'' [emphasis added]. In such instances, the statute
clearly requires that protected activities shall be
[[Page 91539]]
permitted over the interests of the birds in order for those activities
to be conducted without fear of enforcement. [This comment also
specifically objected to provisions of Sec. 22.26(f)(2)-(8) related to
the LAP, stipulations that permit issuance take into account ongoing
criminal or civil actions, and the priority afforded to take to satisfy
Native American religious needs.]
Response: We disagree with the commenter that the required
determinations in Sec. 22.26(f) are ``generally vague or overreaching
to the extent of flouting the statutory purpose of the permit program
for protected local interests.'' The preamble to the proposed rule
explains most of the criteria added to 50 CFR 22.26(f) in this
rulemaking in detail and clarifies how the Service will determine
whether an applicant is in compliance. The proposed required
determinations are consistent with the statutory purposes of the Eagle
Act. As we stated when first promulgating this regulation in 2009, the
Service interprets the statutory phrase ``for the protection of . . .
other interests in any particular locality'' as enabling us to
accommodate a broad spectrum of public and private interests that might
incidentally take eagles, as long as we can determine that any
authorized take is compatible with the preservation of eagles (see 74
FR 46836, September 11, 2009, p. 46837). We do not agree with the
commenter's interpretation that the ``protection of . . . other
interests'' language requires the Service to ensure the protection of
other interests without balancing those interests with the management
and protection of the species the statute was enacted to protect.
The commenter takes issue with the definition of ``LAP,''
referenced in proposed Sec. 22.26(f)(2), as being arbitrary and vague,
and the commenter misconstrues the effect of exceeding the LAP
threshold as requiring the rejection of a permit application. This
required determination does not compel us to reject an application when
take in the LAP exceeds 5%; it instead specifies that any take within
the limit is compatible with the preservation of eagles. Take above the
limit would require further environmental analysis over that conducted
in the PEIS for this rule. That analysis might show that no additional
action is required for the permit to be compatible with the
preservation of eagles, or it may show the take could be compatible
with additional action. Examples of such additional actions could be to
require implementation of additional compensatory mitigation to offset
take above the 5% LAP threshold or, for existing projects within the
LAP area, to require measures that reduce the project's take when they
seek incidental take permits. Many commenters, in particular state
agencies and federally recognized tribes, strongly support the decision
to ensure management and protection of not only the national population
of bald eagles and golden eagles, but also regional and local
populations. The LAP analysis, along with the regulatory requirements
contingent upon that analysis, is one of the primary methods by which
we can properly manage and adequately protect local eagle populations
and ensure that cumulative effects do not become significant.
To the extent the commenter argues that denial of a permit on any
of the grounds listed in Sec. 22.26(f) would be unverifiable and
arbitrary, the general permit regulations contain review procedures at
50 CFR 13.29 setting forth the administrative remedies an applicant may
pursue if a permit application is denied for any reason. These
administrative remedies require the issuing officer to state the
reasons for permit denial and to describe the evidence used to reach
that decision. A permit applicant would also be free to pursue judicial
review of a permit denial once all administrative remedies are
exhausted.
With regard to proposed Sec. 22.26(f)(8) (Sec. 22.26(f)(7) in
this final rule), which requires the Service to determine, before
issuing a permit, that issuance of the permit will not interfere with
an ongoing civil or criminal action concerning unpermitted past eagle
take at the project, one element of civil and criminal cases is
establishing that take of eagles is not permitted, requiring
coordination between the Service's law enforcement and migratory bird
divisions early in an investigation. Later in the process, court
judgments may include a sentencing or probation condition that an eagle
take permit be sought; or where settlement negotiations have been
successful, settlement agreement often includes a requirement that a
company apply for an eagle take permit. Without such a determination,
issuance of a permit may in some cases disrupt the ongoing
investigation, prosecution, or negotiation process.
Finally, the commenter disagrees that authorization of take for the
religious purposes of Indian tribes should be prioritized over
activities such as farming or utility development or maintenance. These
amendments do not change the relative priority order of religious take
and take for other activities. Moreover, we stand by the reasons for
originally establishing the priority order set forth in the preamble to
the 2009 regulation (74 FR 46836, September 11, 2009).
Comment: Rather than require a permit, the Service should develop
best management practices (BMPs) for industries to serve as a tool box
from which companies can select and tailor components as necessary to
operate under, monitor activities, and voluntarily report any passive
``take.'' Companies can choose either to rely on the guidelines or
instead to develop their own internal construction standards that meet
or exceed these guidelines. The use of BMPs, coupled with a commitment
by the Service to exercise enforcement discretion for situations in
which the BMPs did not avoid all impacts to eagles, could be an
alternative to permitting. The Service should evaluate an alternative
under which de minimis levels of passive ``take,'' including at oil and
gas facilities, would be explicitly exempted from regulation under the
incidental take permitting program. The Service should consider an
activity-based programmatic approach similar to that under the Clean
Water Act's nationwide permit program. That program covers specific
activities that may be used across a number of industry sectors.
Similarly, the Service should consider an approach utilizing the
permit-by-rule method, which may also improve the approval process for
activities that present known hazards and with known and effective
mitigation techniques.
Response: The process described in the first comment is exactly how
the permit process is designed to work, except under a permit: (1)
Enforcement discretion is not necessary because the take is authorized;
and (2) compensatory mitigation is required for take of golden eagles
to offset the effects of the take. Because of the statutory language of
the Eagle Act, the Service cannot exempt any take from regulation, and
cannot exempt any bald eagle take from take liability without a permit
(16 U.S.C. 668 and 668a). We will consider legal mechanisms for
streamlining take authorizations to low-risk or lower impact activities
in the future.
Comment: The Service should not postpone redefining the definition
of a ``low risk'' project of the eagle permit program in this
rulemaking. The effort to establish a low-risk permit category should
be a high-priority item for the Service as it is integral to
establishing a streamlined permitting process.
Response: We agree that this is a high priority item. In the
meantime, the PEIS programmatically analyzes eagle take within certain
levels and the effects of complying with compensatory
[[Page 91540]]
mitigation requirements to allow the Service to tier from the PEIS when
conducting project-level NEPA analyses. The PEIS will cover the
analysis of effects to eagles under NEPA if: (1) The project will not
take eagles at a rate that exceeds (individually or cumulatively) the
take limit of the EMU (unless take is offset); (2) the project does not
result in Service authorized take (individually or cumulatively) in
excess of 5% of the LAP; and (3) the applicant will mitigate using an
approach the Service has already analyzed (e.g., power pole
retrofitting), or the applicant agrees to use a Service-approved third-
party mitigation program such as a mitigation bank or in-lieu fee
program to accomplish any required offset for the authorized mortality.
The PEIS, therefore, should streamline the NEPA process for these
projects.
Nest Take Permits
Comment: The proposed rule leaves ``home range'' undefined, but it
is used in the definition of ``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.''
Response: Home range means the area an animal uses to secure food
and shelter, and through which the animal moves on a regular basis.
Comment: The proposed definition of ``eagle nest'' is ambiguous and
likely subject to misinterpretation. Using our residential development
project as an example, the Service has constructed two manmade
experimental platforms in the vicinity of our project with the intent
of encouraging golden eagle nesting. The experiment has not been
successful. No nests have been built since the platforms were installed
more than 3 years ago. Based on the ambiguous language of this
definition, however, the experimental platforms themselves could be
considered nests if a golden eagle simply lands on, and thereby
``uses'' the platform--which is an assemblage of material--during the
breeding season.
Comment: There seems to be ambiguity surrounding the definition of
an in-use nest. The proposed rule will allow for removal of an in-use
nest prior to egg-laying, yet the definition fails to determine if
alternate nests in which the adults regularly perch would also be
considered an in-use nest.
Response: The definition of ``eagle nest'' in this rule includes
the phrase ``for purposes of reproduction,'' so it does not encompass
nest structures that an eagle simply lands on.
Comment: With regard to the proposed definition of ``alternate
nest,'' it is unreasonable to assume that a nest is an alternate nest
in perpetuity, but this definition assumes that all nests not in use
within a nesting territory are, in fact, alternate nests without
reference to any time frame. Similarly, the definition makes no
reference to the condition of the nest.
Response: There is a great deal of variability as to how long a
nest will be unused before eagles return to use it again. Eagles
typically build nests where conditions are suitable for raising young
relative to other locations. Sometimes those conditions remain
relatively steady, sometimes they fluctuate between years, and
sometimes they disappear. Even nests in good locations may not be used
for many years. As for the condition of nests being the determining
factor in whether they should remain protected, eagle nests are not
infrequently damaged or partially destroyed by severe weather, but then
restored to good condition by the eagles early in the breeding season.
We think it is reasonable to err on the side of caution in protecting
potentially valuable nests by not providing an arbitrary timeframe for
when an eagle nest is no longer considered an eagle nest. At any rate,
these regulations provide for a permit process that allows for removal
of nests.
Comment: Loss of a nesting territory is far more significant than
the take of an individual, as the cumulative reproductive contribution
of the pair or territory over time is lost. For this reason, loss of
nesting territories should not be permitted unless it can be
affirmatively determined that such loss will not have a detrimental
effect on the LAP or on a critical subpopulation.
Response: The Service agrees with this comment, and does take into
account the effects of territory loss on the eagle management unit and
LAP take limits, as described in the Status Report on page 26.
Comment: Allowing removal of eagle nests just because it is outside
of the breeding season is short sighted, and ignores the underlying
role of adult pairs to annually defend their nests and near nest
proximity, so that reproduction can continue in subsequent years, not
just in the current nest cycle.
Response: Prohibiting removal of nests outside the breeding season
amounts to prohibiting eagle nest removal under any circumstances. It
is not realistic to place a total ban on removing eagle nests. As bald
eagle populations continue to grow, an increasing number of nests are
built in locations that pose safety hazards or severely restrict a
landowner's ability to use his or her property. The regulations for
permitting eagle nest removal include many safeguards to ensure that
nest removal is compatible with the preservation of eagles.
Comment: Established protocols for monitoring throughout the course
of nest take permits must be developed, and monitoring must be required
by trained and approved independent experts. Monitoring time for nest
and incidental take permits as required by permits should be similar to
that required by most eagle-nest monitoring programs--a minimum of 2
hours per week by a trained independent monitor.
Response: For nest take permits, as opposed to disturbance permits,
monitoring would be required mostly to detect whether the resident pair
of eagles nest successfully elsewhere. The level of monitoring will be
contingent on the biological significance of the nest site to the eagle
population or local (human) community, the ability to identify the pair
of eagles that were potentially displaced, the feasibility of
monitoring at different levels of intensity, and other case-specific
factors.
Comment: The Service should clarify that it is their intention that
wind energy projects apply the buffer distances set forth in the
National Bald Eagle Management Guidelines to wind farm infrastructure.
Response: The National Bald Eagle Management Guidelines do not
include recommended buffer distances between bald eagle nests and wind
turbines because the primary concern with turbines is blade strike
mortality and not disturbance. With respect to disturbance, many of the
other recommendations in the Guidelines would apply to wind turbines
during construction and maintenance. However, at this time, we do not
have sufficient information to recommend buffer distances between eagle
nests and wind turbines to avoid or reduce the likelihood of mortality.
More observation is needed before the Service will issue official
guidance for distance buffers between eagle nests and wind turbines.
Comment: Without an objective assessment (i.e., not based on nest
structures) of what the spatial extent of a specific pair's territory
is, there is no way to assess whether or not a nest is within a pair's
territory without circular reasoning, and therefore no way to determine
if a territory, rather than a nest or set of nests, was abandoned. Only
in cases where there is independent observation of the extent of
[[Page 91541]]
space use of a specific breeding pair, most likely through telemetry or
color-mark observations, will it be possible to assess territory
boundaries independently of nests. The Service should provide an
objective, operationally defined (i.e., defined in terms of observable
characteristics) definition of the spatial extent of an eagle territory
or abandon its reliance on availability of a nest ``within the nesting
territory'' to assess territory abandonment.
Response: What this commenter is suggesting is not possible. The
Service directly addresses this admittedly difficult issue in the
Status Report in the following way: ``We recognize that for golden
eagles in particular, nesting territories are often occupied by
successive generations of individuals. Additionally, for both species,
some nesting territories hold more value than others (Millsap et al.
2015, Watts 2015). Moreover, it is often difficult to predict in
advance whether an activity will result in loss of a nesting territory,
or simply the loss of a nest structure and cause a shift in use to an
existing or new alternative nest--which may have little or no
consequence to the eagle population (Watts 2015). For these reasons,
each instance where loss of a nesting territory is a possible outcome
requires additional review on the part of Service biologists.
Permitting the loss of high-value nesting territories with a long
history of occupancy and production could have greater population-level
consequences.''
Comment: The Service has described that in populations with high
eagle density, the biological value of a single nest to eagle
populations is lower, as productivity in highly saturated eagle
populations decreases due to nests being built in less than ideal
locations in relation to food sources and increased competition among
nesting pairs. Eagle nest-monitoring data by the Florida Fish and
Wildlife Conservation Commission do not support this conclusion. The
Service should consider data available from state agencies and similar
partners when determining biological value of individual nests in order
to ensure permitting decisions are evidence-based and consistent with
the proposed preservation standard.
Response: There is increasing evidence in raptor populations that
high-quality nesting sites are occupied first, and more consistently,
than lower quality nesting sites. This factor contributes to what is
known as the habitat heterogeneity effect, a biological process whereby
overall per capita productivity of a raptor population declines with
increasing density of nests because newer territories are in lesser
habitats and have lower productivity. This is the basis for the
Service's statement, and it is described in more detail in the Status
Report on page 6. However, the Service also acknowledges the importance
of taking individual circumstances into account, including shifts in
prey availability over time that may lead to temporal variation in
territory quality.
Comment: The Service refers to ``alternate nests just being built''
as having low biological value. However, in some territories, a newly
built nest may have greater biological value than the most recently
``in use'' nest depending on territory-specific factors. We recommend
that the Service allow for territory-specific factors to be considered
in determining biological value of nests when permitting nest removal.
Response: We fully agree with this comment. Assessing the
biological value of nests will include consideration of site-specific
factors, including information pertaining to the availability and past
use of other nests in the territory.
Comment: The Service should consider the potential for
inconsistency in determining and applying ``net benefit'' calculations,
similar to the issues raised in the Service's approach for determining
compensatory mitigation for permits under the 2009 regulations. The
Service should also consider whether the standard for ``net benefit''
incentivizes removal of nests over avoidance and minimization measures,
which could accelerate loss of nest territories. If acceptable ``net
benefit'' standards for nest removal are relatively low, as compared to
the cumulative cost for projects to avoid and minimize, it can be
expected that more projects will pursue nest removal permits rather
than incidental take permits.
Response: We acknowledge that the net benefit requirement is
somewhat vague and could potentially be applied inconsistently.
However, we have regular coordination calls between staff who issue
eagle permits from the different Service Regional Offices, and the
application of this standard to particular permits has been discussed
so far for every case where it has been applied. We hope to be able to
continue that level of coordination to further consistency in how this
provision is applied. We typically will require a disturbance permit
rather than a nest removal permit if it is possible for the potential
applicant to avoid actual removal of the nest. The regulations prevent
the Service from issuing a permit unless we determine there is no
practicable alternative to nest removal that would protect the interest
to be served.
Comment: We recommend the Service consider options to ensure the
persistence of local populations in areas where eagle nests on
artificial structures represent a larger percentage of the LAP.
Response: Nests that eagles build on artificial structures fall
within the definition of ``eagle nests'' protected under the Eagle Act,
the removal of which would require a permit. The LAP cumulative effects
analysis, and revised definition of the Eagle Act preservation standard
that includes the persistence of local populations, both apply to nest
removal permits and are designed to protect local populations even if a
large percentage of eagles breed on nests built on artificial
structures.
Comment: The proposed regulations would retain the requirement that
the Service consider the availability of alternative suitable nesting
habitat, but a finding that there is would not be a prerequisite for
issuing a permit. We request that the Service reconsider this proposal
to remove this requirement and instead require that suitable nesting
habitat be present, but not necessarily available, in the area. Removal
of this requirement would reduce or eliminate opportunities to apply
mitigation measures within the immediate vicinity of the affected area.
Response: The types of conditions that eagles nest in are widely
variable. In some circumstances, making nest removal contingent on
there being suitable nesting habitat available is not warranted or
reasonable. For example, more and more often, bald eagles are nesting
in risky infrastructure that does not provide the conditions needed for
successfully nesting and fledging of young. Such nests can also present
safety hazards and/or unduly restrict people's ability to conduct daily
routine activities. The regulations need to provide an option to issue
permits for removal of nests that have marginal biological value and
also pose problems or hazards to people or eagles, regardless of there
being suitable nesting habitat in the vicinity.
Comment: The Service proposes to use 10 consecutive days of
continuous absence as a national metric for declaring a nest inactive.
This metric should be researched further and should take into
consideration activity patterns of the species within the LAP where
nest take would occur. There is ample research showing that juvenile
bald eagles use their nests up to 45 days after fledging before they
migrate, and often
[[Page 91542]]
do not return to the nest for periods of more than 10 days.
Response: The metric of 10 consecutive days has been in the
regulations for several decades and has proven to be a reasonable
timeframe for purposes of both permitting and protection of eagles. If
young eagles have left and not returned to a nest over 10 consecutive
days, it is reasonable to conclude the nest structure is no longer
critical to them and can be removed, assuming other criteria warranting
nest removal have been met. We fully recognize that nests might be
revisited and used for longer periods of time, but loss of a nest after
10 days of non-use is unlikely to pose a threat to survival of the
juveniles.
Comment: The proposed new nest take rules do not give consideration
to the loss of habitat that accompanies a nest take in areas with
rampant growth and development.
Comment: The regulations should increase protection to the areas
surrounding active nests. The proposed rule does not directly address
buffers of protection surrounding nests throughout the year. Habitat
modification can undermine the viability of that food source,
threatening the continued success of the nest. This potential loss of
productivity is not accounted for in the permitting framework, yet
could have significant impacts on local populations.
Response: The Eagle Act does not provide direct protection to eagle
habitat, except for nests themselves. However, our regulations and
guidance include a variety of strategies that take habitat into
consideration, because habitat is, of course, necessary to preserve
eagles. With regard to nest take permits, they can be issued only for
specific limited purposes, unless a net benefit to eagles will be
provided. The biological value of a nest is closely tied to the value
of the surrounding habitat. Thus removal of a high-value nest would
require a significant net benefit to eagles. The Service's
recommendations for preventing disturbance to nesting bald eagles are
in our National Bald Eagle Management Guidelines, including recommended
buffer distances for construction and other activities near bald eagle
nests. We are in the process of developing comparable guidance for
golden eagles.
Comment: The Service should include in the final document a clear
decision-making process that includes discreet criteria as to what
constitutes an anticipated emergency situation. Permits should be
limited to cases where human health or safety is highly likely to be
endangered if no action is taken, and there is high confidence that the
nest does not contain eggs or young.
Comment: What is the definition of a safety emergency (as used in
the context of the proposed rule revision)? How does the Service make
this determination? Does the Service intend to gain insight/formal
input from other federal agencies (e.g., Federal Aviation
Administration, U.S. Department of Agriculture--Animal and Plant Health
Inspection Service--Wildlife Services, Federal Highway Administration)
that have expertise and/or regulatory authority in specific situations?
Response: We disagree with the suggestion that, unless there is
high confidence that no eggs or young are in a nest, the Service cannot
issue a permit for the purpose of protecting human or eagle lives. We
believe a safety risk to people or eagles should take precedence above
leaving eggs or nestlings undisturbed in the nest. In response to the
question about what constitutes a safety emergency, the term is defined
in the regulations at 50 CFR 22.3 as ``a situation that necessitates
immediate action to alleviate a threat of bodily harm to humans or
eagles.'' How we will make the determination is a fair question, but it
may not be advisable or helpful to codify specifications for what
factors must be present because of the risk of excluding circumstances
that we failed to consider but which present a serious risk of bodily
harm. However, we may develop some relatively broad guidance to assist
in making these determinations in the future.
Comment: Under the proposed changes to nest take permits, there is
a provision for the Service to waive the requirement that nestlings be
transported to a foster nest or permitted rehabilitator in the case of
an emergency nest removal. Even in cases where a nest is not near a
possible foster nest or rehabilitator, the Service should put forth all
efforts to ensure that nestlings are released back into the wild.
Response: The revision makes it possible for the Service to legally
authorize the nest removal in a case of emergency (imminent risk to
human or eagle safety) even when it is not feasible to place the eggs
or young with a rehabilitator. Where it is reasonably possible to do
so, the permit will require the eggs or young to be placed with a
permitted rehabilitator or other similarly authorized facility.
Comment: We support the Service's position that a minimal level of
compensatory mitigation is appropriate when authorizing take of golden
eagle nests; however, the Service should clarify that no compensatory
mitigation is required when these instances involve bald eagle nests.
Response: Actually, we did not and do not take the position that
only a minimal level of compensation is required for take of a golden
eagle nest. Our position then and now is that golden eagle nest take
permits will be more restrictive in nature, but without including
different criteria for the two species in the regulations. 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. All golden eagle take permits, except for
those authorizing ongoing take occurring prior to 2009, will require
offsetting mitigation. The avoidance and minimization requirements in
the existing and these regulations are designed to ensure that removal
of a nest of either species is the last option. 81 FR 27934, 27961 (May
6, 2016). Regarding bald eagle nests, mitigation will be required if
the activity that necessitates the take does not in itself provide a
``net benefit.'' As explained earlier in the preamble of this rule, the
mitigation is likely to be minimal for new bald eagle nests established
in areas densely populated by eagles, which are more and more typically
the nests for which applicants seek nest take permits.
Comment: Eagle nests may be subject to protections of the National
Historic Preservation Act (NHPA) due to the status of eagle nests as
traditional cultural properties (36 CFR 800.16(I)(1): Historic property
includes properties of traditional religious and cultural importance to
an Indian tribe). Therefore, for nesting sites subject to the NHPA, the
Service must comply with the NHPA's section 106 consultation process
prior to authorizing an undertaking that could affect eagle nesting
sites (36 CFR 800.2(c)(2)(ii) requires consultation with tribes where
properties of religious or cultural significance may be affected by a
federal undertaking). Consultation with tribal governments regarding
nest removal permits is also necessary to determine whether a vacant
nest site has or has not been permanently abandoned.
Response: The Service is responsible for compliance with the NHPA
and to review all projects that may have the potential to affect
historic properties. Traditional cultural properties, and religious and
sacred areas, are all elements that might be included within the
borders of projects under our review. As we follow the NHPA
consultation process, information about such sites will develop that
will help inform our decisions. With regard to the
[[Page 91543]]
status of the nest, that is, whether it has been used for breeding
purposes in recent years or is currently in use, we will rely on any
available and reliable source of such information, including through
consultation with tribes that have such information.
Comment: The eagle nest take permit regulations should take into
account existing practices adopted to address take or removal of eagle
and other raptor nests. For example, the Bridger Coal Mine in Wyoming
is operated under a permit from the Wyoming Department of Environmental
Quality. The mine permit incorporates a raptor mitigation plan that is
reviewed by the Service. Under the raptor mitigation plan, if the mine
operators locate an inactive (or ``alternate,'' as now defined in the
proposed rule) nest in an active mining area, in most cases it may
remove the nest as long as a substitute nest is constructed without
applying for a separate take permit.
Response: Wyoming's Coal Mine Migratory Bird Plans do not allow
removal of eagle nests without a permit, and the mining permit issued
by the Wyoming Department of Environmental Quality provides no
exemption from Service authorities or permitting processes. The plan
addresses when there is a need for a nest permit application and
proposed mitigation (which may or may not be the final mitigation
approved in the permit as determined by the Service's Migratory Bird
Office).
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 rule is
significant because it may raise novel legal or policy issues arising
out of legal mandates, the President's priorities, or the principles
set forth in E.O. 12866.
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 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, 201, 110 Stat. 847)), 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. Thus, for a regulatory
flexibility analysis to be required, impacts must exceed a threshold
for ``significant impact'' and a threshold for a ``substantial number
of small entities.'' See 5 U.S.C. 605(b). We have examined this rule's
potential effects on small entities as required by the Regulatory
Flexibility Act and determined that this action will not have a
significant economic impact on a substantial number of small entities.
This analysis first estimates the number of businesses impacted and
then estimates the economic impact of the rule.
To assess the effects of the rule on small entities, we focus on
home construction companies, wind energy facilities, and electric
transmission companies. Although small, non-commercial wind energy
facilities could seek permits, we anticipate that most of the
applications for wind energy 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.
The U.S. Small Business Administration (SBA) defines a small
business as one with annual revenue or employment that meets or is
below an established size standard, which is less than 250 employees
for ``Wind Electric Power Generation (NAICS 221115), less than 1,000
employees for ``Electric Power Distribution'' (NAICS 221122), less than
500 employees for ``Logging'' (NAICS 113310), less than $36.5 million
for ``Construction of Buildings'' (NAICS 236115, 236116, 236117,
236210, and 236220), less than $36.5 million for ``Highway, Street, and
Bridge Construction'' (NAICS 237310), less than $15.0 million for
``Support Activities for Rail Transportation'' (NAICS 488210), and less
than 1,500 employees for ``Gold Ore Mining'' (NAICS 212221). Table 1
describes the number of businesses within each industry and the
estimated percentage of small businesses impacted by this rule.
Table 1--Distribution of Potential Impacted Businesses
----------------------------------------------------------------------------------------------------------------
Total businesses Small businesses potentially
-------------------------------- impacted by rule
NAICS code Description Number of -------------------------------
Number of all small
businesses businesses Number Percentage
----------------------------------------------------------------------------------------------------------------
221115................. Wind Electric Power 410 402 10 2
Generation.
221122................. Electric Power 7,547 7,513 <26 <1
Distribution.
113310................. Logging................ 7,908 7,907 1 to 2 <1
236115................. New Single-family 30,380 29,469 <26 <1
Housing Construction
(Except For-Sale
Builders).
236116................. New Multifamily Housing 1,788 1,734 <26 <2
Construction (except
For-Sale Builders).
[[Page 91544]]
236117................. New Housing For-Sale 16,093 15,610 <26 <1
Builders.
236118................. Residential Remodelers. 77,855 75,519 <26 <1
236210................. Industrial Building 2,622 2,543 <26 <1
Construction.
236220................. Commercial and 35,758 34,685 <26 <1
Institutional Building
Construction.
237310................. Highway, Street, and 8,854 8,588 <26 <1
Bridge Construction.
237990................. Other Heavy and Civil 3,423 3,320 <26 <1
Engineering
Construction.
488210................. Support Activities for 1275 613 1 to 2 <1
Rail Transportation.
212221................. Gold Ore Mining........ 214 214 1 to 2 <1
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau, 2012 County Business Patterns.
In the first 5 years (2011 through 2015) since the eagle permit
regulations at 50 CFR 22.26 and 50 CFR 22.27 were published, the
Service has issued 347 standard permits which averages about 70 permits
annually. For the 347 standard permits, 131 permits were issued to
businesses, 172 permits to Government agencies, and 44 permits to
individuals. The average annual distribution was 26 permits to
businesses, 34 permits to government, and 9 permits to individuals.
Businesses that apply for permits typically include home construction,
road construction, and various other construction projects. Thus, the
maximum impact to any single construction industry would be less than
26 businesses annually. It is more likely that the permits would be
distributed across various construction industries. As a result, less
than 1to 2 percent of small businesses in these sectors will be
impacted by this rule.
Homeowners have no fee increases except for applications for
multiple eagle nest take ($500). Given the number of standard permits
issued (44), this rule will not have a significant economic effect on a
substantial number of homeowners. Commercial businesses will face
higher permit fees under this rule. A commercial business applying for
what was a standard permit would have to pay $2,500 (an increase of
$2,000). Businesses in the construction industry are defined as small
if they have annual revenue less than $36.5 million, yet many
construction businesses (38 percent) have revenue less than $250,000.
To conservatively estimate the potential impact to commercial
businesses applying for standard permits, we utilize $250,000 to depict
small businesses' sales. Depending on the type of permit applications
submitted by an individual small business, the permit fees will
represent 1 to 3 percent of revenue for this size of business. Thus,
the changes in standard permit fees will not have a significant
economic effect on a substantial number of small businesses in the
construction sectors. The changes in permit application processing and
amendment fees are shown in Table 2.
[[Page 91545]]
[GRAPHIC] [TIFF OMITTED] TR16DE16.035
From 2011 to 2015, we received a total of 37 programmatic permit
applications and have issued one programmatic permit thus far. All of
the applications except three are for wind energy projects. Two
applications were from electric utilities, while one application was
from a gold mining operation. We anticipate a greater volume of
applications for permits for long-term activities in the future,
although we expect the number to increase gradually over time. At the
current average rate (7 applications annually), approximately 2 percent
of small wind energy businesses apply for permits annually (Table 1).
Furthermore, less than 1 percent of small businesses within the
electric utility and mining sectors apply for permits (Table 1).
Assuming perhaps a ten-fold increase in such permit applications over
the foreseeable future, this rule will not impact a substantial number
of small entities.
Initial permit application processing fees for long-term permits
will not change from the current $36,000. If a permittee requests the
programmatic permit to exceed 5 years, then there will be an $8,000
review fee every 5 years to recoup the Service's review costs. With a
5-year maximum permit duration, renewal of a permit would require a
$36,000 permit application processing fee, so the $8,000 administration
fee reduces costs to small businesses engaged in long-term acitivities.
We therefore certify that the rule will not have a significant economic
impact on a substantial number of small entities, and no regulatory
flexibility analysis is required.
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 rule will not ``significantly or uniquely'' affect small
governments. A small government agency plan is not required. The
regulations changes will not affect small government activities in any
significant way.
b. This rule will 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 will not have significant
takings implications. This rule does not contain any provisions that
could constitute taking of private property. Therefore, a takings
implication assessment is not required.
Federalism
This rule will not have sufficient Federalism effects to warrant
preparation of a federalism summary impact statement under E.O. 13132.
It will not interfere with the States' abilities to manage themselves
or their funds. No significant economic impacts are expected to result
from the regulations change.
Civil Justice Reform
In accordance with E.O. 12988, the Office of the Solicitor has
determined that the rule will 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 final 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
[[Page 91546]]
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 final 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
final rule:
(1) Establishes an administration fee of $8,000 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) Changes the application fees associated with some permits.
(3) Requires annual reports. This requirement is approved under OMB
Control Number 1018-0022. There are no fees associated with annual
reports.
(4) Establishes a new reporting requirement and a new
administration fee for permits of over 5 years.
(5) Requires pre- and post-construction monitoring of eagle use of
the project area, which may include preparation of an Eagle
Conservation Plan, and requires immediate reporting of take of eagles
and Threatened and Endangered species.
OMB has not yet approved the information collection requirements
associated with this rule. We will announce the approval in a separate
notice in the Federal Register. When we seek renewal of OMB Control
Number 1018-0022, we will incorporate the new hour and nonhour burden
into that renewal and discontinue this OMB control number. An agency
may not conduct or sponsor and you are not required to respond to a
collection of information unless it displays a currently valid OMB
control number.
Title: Eagle Take Permits and Fees, 50 CFR 22.
OMB Control Number: 1018-0167 (number assigned by OMB).
Service Form Number(s): 3-200-71, 3-200-72.
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.
The Service inadvertently omitted Table 1 and its burden from the
proposed rule. The following Table cites the total burden for this
information collection.
Table 1--Estimated Hour and Cost Burden for Long Term Eagle Take Permits
----------------------------------------------------------------------------------------------------------------
Average
completion $ Value of
Activity/requirement Annual number time per Total annual Cost/hour annual burden
of responses response burden hours hours
(hours) (rounded)
----------------------------------------------------------------------------------------------------------------
Pre-construction Monitoring 15 650 9750 $34.26 $334,035
Surveys........................
Preparation of Eagle 15 200 3000 34.26 102,780
Conservation Plan..............
Post Construction Monitoring.... 15 700 10,500 34.26 359,730
Reporting Take of Eagles........ 10 2 20 34.26 685
Reporting Take of Threatened & 1 2 2 34.26 69
Endangered Species.............
Sec. 22.26(c)(7)(ii)--Permit 4 8 32 34.26 1,096
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 compiles and
submits to the Service, eagle
fatality data or other
pertinent information that is
site-specific for the
project.\9\ Footnote 9 may be
found in Table 2 Note that the
dollar value of the annual
burden cost is included in the
$8,000 permit 5-year permit
review fee.....................
-------------------------------------------------------------------------------
Total....................... 60 1562 23,304 .............. 798,395
----------------------------------------------------------------------------------------------------------------
Table 2--Changes in Nonhour Burden Fees for Eagle Take Permits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total approved Total proposed Difference
Activity/requirement Existing approval (1018- Current fee Proposed fee nonhour burden nonhour burden between 1018-0022
0022) cost cost and proposed
--------------------------------------------------------------------------------------------------------------------------------------------------------
3-200-71--application, Eagle No. of responses and $500 Non- $500 Non- $12,500 Non- $12,500 Non- $0 Non-
Incidental Take--(not annual burden hours commercial. commercial. commercial. commercial. commercial.
programmatic or long-term) \1\. approved under OMB
Control No. 1018-0022.
This rule revises fees $500 Commercial... $2,500 Commercial $60,000 $300,000 +$240,000
and nonhour costs. Commercial. Commercial. Commercial.
3-200-72--application, Eagle No. of responses and $500 Non- $500 Non- $5,000 Non- $5,000 Non- $0 Non-
Nest Take--single nest annual burden hours commercial. commercial. commercial. commercial. commercial.
(formerly ``standard'') \2\. approved under OMB
Control No. 1018-0022.
This rule revises fees $500 Commercial... $2,500 Commercial $10,000 $50,000 +$40,000
and nonhour costs. Commercial. Commercial. Commercial.
[[Page 91547]]
3-200-72--application, Eagle No. of responses and $1,000............ $500--Non- $0 \3\........... $500 Non- +$500 Non-
Nest Take--multiple nests annual burden hours commercial. commercial. commercial.
(formerly ``programmatic'') approved under OMB
\3\. Control No. 1018-0022.
This rule revises fees .................. $5,000--Commercia ................. $40,000 +$40,000
and nonhour costs. l. Commercial. Commercial.
3-200-71 Eagle Incidental Take No. of responses and $150 Non- $150--Non- $300 Non- $300 Non- $0 Non-
Amendment--less than 5 years annual burden hours commercial. commercial. commercial. commercial. commercial.
(formerly ``standard'' \4\. approved under OMB
Control No. 1018-0022.
This rule revises fees $150 Commercial... $500--Commercial. $2,700 \5\ $9,000 Commercial +$6,300
and nonhour costs. Commercial. Commercial.
3-200-72 Eagle Nest Take No. of responses and $150 Non- $150--Non- $150 Non- $150 Non- $0 Non-
Amendment--``Single nest'' annual burden hours commercial. commercial. commercial. commercial. commercial.
(formerly ``standard'') \4\. approved under OMB
Control No. 1018-0022.
This rule revises fees $150 Commercial... $500--Commercial. $600 \6\ $2,000 Commercial +$1,400
and nonhour costs. Commercial. Commercial.
3-200-71 Amendment--Eagle No. of responses and $1,000 Commercial. No Fee \7\....... $1,000 Commercial ................. - $1,000
Incidental Take Programmatic. annual burden hours Commercial.
approved under OMB
Control No. 1018-0022.
--------------------------------------------------------------------------------------------------------------------------------------------------------
NEW REPORTING REQUIREMENT AND NEW ADMINISTRATION FEE
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 22.26(c)(7)(ii)--Permit No. of responses and 0................. $8,000........... 0................ $32,000.......... +$32,000
reviews. At no more than 5 annual burden hours
years from the date a permit shown in Item 12,
that exceeds 5 years is Table 1.
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...................... ....................... .................. ................. $92,250.......... $431,450......... $359,200.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 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 (standard and programmatic permits were combined)--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 (standard and programmatic permits were combined)--9 responses (1 from Individuals/homeowners (non-commercial) 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 rule, the homeowner fee would increase to $500; private sector fee (commercial)
would increase to $5,000. Total for 1 homeowner--$500; total for 8 commercial--$40,000.
[[Page 91548]]
\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 rule, it is being removed because the costs associated
with it would be included under the Administration Fee.
\8\ ROCIS would not allow entering negative $1,000 to account for the elimination of fees. Therefore, in ROCIS, the elimination is reflected for the
eagle nest take amendment total nonhour cost burden.
\9\ This is a new reporting requirement as well as a new Administration Fee and applies only to Commercial permittees. 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 an $8,000 administration fee for each permittee for a total of $32,000. 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 Hour Burden: 23,304 hours, the total number of new
respondents is 60.
Estimated Total Hour Burden Cost: $798,395 for gathering
information required to support an application, which may include
preparation of an Eagle Conservation Plan (ECP). This includes 650
hours for pre-construction monitoring surveys of eagle use of the
project site and 700 hours of post-construction monitoring for each
respondent. Preparation of the application, which may include
preparation of an ECP, will take approximately 200 hours per
respondent. These burden hours only apply to those seeking a long-term
eagle take permit. In addition, those that receive a permit are
required to report take of eagles and Threatened or Endangered species
within 48 hours of discovery of the take. It is estimated that of the
15 projects permitted to take eagles each year, 10 will actually take
eagles, requiring 2 hours per respondent to report. Take of threatened
or endangered species is expected to be a rare event, and occur at only
one of the 15 projects permitted each year, requiring only 2 hours to
report. The burden hours also include the costs for the 5-year permit
review. We estimate 8 hours per respondent to complete the requirements
of the permit review for a total of 32 hours.
Estimated New Total Nonhour Burden Cost: $359,200 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.
Endangered and Threatened Species
Section 7 of the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531-1544), requires Federal agencies to consult to ``insure
that any action authorized, funded, or carried out'' by them ``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)). Intra-
Service consultations and conferences consider the effects of the
Service's actions on listed, proposed, and candidate species. Our final
action of issuing our regulations regarding take of non-ESA-listed
eagles does not authorize, fund, or carry out any activity that may
affect--directly or indirectly--any ESA-listed species or their
critical habitat. See, e.g., Sierra Club v. Bureau of Land Mgmt., 786
F.3d 1219 (9th Cir. 2015). Indeed, the Eagle Act does not empower us to
authorize, fund, or carry out project activities by third parties. The
Eagle Act empowers us to authorize take of bald and golden eagles.
Thus, we have determined these revisions have no effect on any listed,
proposed, or candidate species or their critical habitat. As a result,
section 7 consultation is not required on this proposed action. As
appropriate, we will conduct project-specific, intra-Service section 7
consultations in the future if our proposed act of issuing a permit for
take of eagles may affect ESA-listed species or critical habitat.
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 rule will not interfere with tribes'
abilities to manage themselves, their funds, or tribal lands. In
September of 2013, well before the Service published its notice of
intent to develop a draft PEIS for the rule and held public scoping
meetings, 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, we conducted webinars, group
meetings, and meetings with individual Tribes. We 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 will be sufficiently protected under this rule 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 will 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.
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eagles. Global Ecology and Conservation 3:234-241.
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.
New, L., Bjerre, E., Millsap, B., Otto, M., Runge, M. 2015. A
collision risk model to predict avian fatalities at wind facilities:
An example using golden eagles, Aquila chrysaetos. http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0130978.
Nygaard, T., K. Bevanger, E. Lie Dahl, [Oslash]. Flagstad, A.
Follestad, P.L. Hoel, R. May, and O. Reitan. 2010. A study of the
White-tailed eagle Haliaeetus albicilla movements and mortality at a
wind farm in Norway. BOU Proceedings-Climate Change and Birds.
British Ornithologists' Union. http://www.bou.org.uk/bouproc-net/ccb/nygard-etal.pdf.
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. 2013b. Issuance of a Bald and Golden
Eagle Act permit to take golden eagles to the Hopi Tribe for Native
American religious purposes. Amended Environmental Assessment.
Division of Migratory Bird Management, Southwest Region. https://www.fws.gov/southwest/migratorybirds/docs/Revised%20Final_EA%204_24_2013%20complete.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.
Watts, B.D. 2015. Estimating the residual value of alternate bald
eagle nests: Implications for nest protection standards. The Journal
of Wildlife Management 79:776-784.
Williams, B.K., J.D. Nichols, and M.J. Conroy. 2002. Analysis and
management of animal populations: Modeling, estimation, and decision
making. Academic Press, San Diego, California USA.
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
50 CFR Part 22
Exports, Imports, Reporting and recordkeeping requirements,
Transportation, Wildlife.
Regulation Promulgation
For the reasons described in the preamble, we hereby 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. Amend the table in Sec. 13.11(d)(4) by:
0
a. Removing the column with the heading ``Administration fee \1\''; and
0
b. Revising the section ``Bald and Golden Eagle Protection Act'' and
footnote 1.
The revision reads 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
Commercial.
Eagle Incidental Take--Non-commercial.. 50 CFR part 22........... 500......................... 150
Eagle Incidental Take--5-30 years \1\.. 50 CFR part 22........... 36,000 \1\.................. ..............
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
Commercial.
Eagle Nest Take--Single nest, Non- 50 CFR part 22........... 500......................... 150
commercial.
Eagle Nest Take--Multiple nests........ 50 CFR part 22........... 5,000....................... 500
Eagle Take--Exempted under ESA......... 50 CFR part 22........... No fee...................... ..............
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ An additional Administration Fee of $8,000 will be assessed every 5 years for permits with durations longer
than 5 years for permit review.
* * * * *
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:
[[Page 91550]]
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 (EMU)'';
0
e. Revising the definition of ``Eagle nest'';
0
f. Removing the definition of ``Inactive nest'';
0
g. Adding definitions for ``In-use nest'' and ``Local area population
(LAP)'';
0
h. Removing the definition of ``Maximum degree achievable'';
0
i. Adding a definition for ``Nesting territory'';
0
j. Revising the definition of ``Practicable''; and
0
k. 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 an in-use nest at the current time. When
there is no in-use 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 the
persistence of local populations throughout the geographic range of
each species.
* * * * *
Eagle management unit (EMU) means a geographically bounded region
within which permitted take is regulated to meet the management goal of
maintaining stable or increasing breeding populations of bald or golden
eagles.
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 eagles and the activity's
overall purpose, scope, and scale.
* * * * *
Sec. 22.4 [Amended]
0
5. In Sec. 22.4, amend paragraph (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. Revising the first sentence in paragraph (c) introductory text;
0
i. Removing paragraphs (c)(3) and (6), and redesignating paragraphs
(c)(4) and (5) as paragraphs (c)(3) and (4); and
0
j. Revising newly redesignated 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) Issuance criteria. The Director shall conduct an investigation
and not issue a permit to take any golden eagle nest unless such taking
is compatible with the preservation of golden eagles. * * *
* * * * *
(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
reoccupation by golden eagles of the resource development or recovery
site. Mitigation measures may include, but are not limited to,
reclaiming disturbed land to
[[Page 91551]]
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),
adding new paragraph (c)(7), and revising newly redesignated paragraphs
(c)(8), (9), and (11);
0
c. Revising paragraph (d)(2);
0
d. Adding paragraph (d)(3);
0
e. Revising paragraph (e)(1);
0
f. Redesignating paragraphs (e)(3), (4), and (5) as paragraphs (e)(5),
(7), and (9), and adding new paragraphs (e)(3), (4), (6), and (8);
0
g. Revising newly redesignated paragraphs (e)(5) and (e)(7)(i) through
(iv);
0
h. Removing newly redesignated paragraph (e)(7)(v); and
0
i. Revising paragraphs (f), (h) and (i).
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 and
cumulative effects, of the permitted take.
(i) Compensatory mitigation scaled to project impacts will be
required for any permit authorizing take that would exceed the
applicable eagle management unit 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 the
eagle population 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 eagle management unit during part of
their seasonal migration;
(C) Use the best available science in formulating and monitoring
the long-term effectiveness of mitigation measures and use rigorous
compliance and effectiveness monitoring and evaluation to make certain
that mitigation measures achieve their intended outcomes, or that
necessary changes are implemented to achieve them;
(D) Be additional and improve upon the baseline conditions of the
affected eagle species in a manner that is demonstrably new and would
not have occurred without the compensatory mitigation (voluntary
actions taken in anticipation of meeting compensatory mitigation
requirements for an eagle take permit not yet granted may be credited
toward compensatory mitigation requirements);
(E) Be durable and, at a minimum, maintain its intended purpose for
as long as impacts of the authorized take persist; and
(F) Include mechanisms to account for and address uncertainty and
risk of failure of a compensatory mitigation measure.
(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 impacts to
eagles from the permitted activity 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 cause take, periodic monitoring
will 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. Your permit may require that the
monitoring be conducted by qualified, independent third parties that
report directly to the Service.
(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) Monitoring. Monitoring to assess project impacts to eagles
and the effectiveness of avoidance and minimization measures must be
conducted by qualified, independent third parties, approved by the
Service. Monitors must report directly to the Service and provide a
copy of the reports and materials to the permittee.
(ii) Adaptive management. The permit will specify circumstances
under which modifications to avoidance, minimization, or compensatory
mitigation measures or monitoring protocols will be required, which may
include, but are not limited to: Take levels, location of take, and
changes in eagle use of the activity area. At a minimum, the permit
must specify actions to be taken if take approaches or reaches the
amount authorized and anticipated within a given time frame. Adaptive
management terms in a permit will include review periods of no more
than 5 years and may require prompt action(s) upon reaching specified
[[Page 91552]]
conditions at any time during the review period.
(iii) Permit reviews. At no more than 5 years from the date a
permit that exceeds 5 years is issued, and at least 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 this information, as well as information provided directly to
the Service by independent monitors, to determine whether:
(A) The permittee is in compliance with the terms and conditions of
the permit and has implemented all applicable adaptive management
measures specified in the permit; and
(B) Eagle take does not exceed the amount authorized to occur
within the period of review.
(iv) Actions to be taken based on the permit review. (A) In
consultation with the permittee, the Service will update fatality
predictions, authorized take levels and compensatory mitigation for
future years, taking into account the observed levels of take based on
approved protocols for monitoring and estimating total take, and, if
applicable, accounting for changes in operations or permit conditions
pursuant to the adaptive management measures specified in the permit or
made pursuant to paragraphs (c)(7)(iv)(B) through (D) of this section.
(B) If authorized take levels for the period of review are exceeded
in a manner or to a degree not addressed in the adaptive management
conditions of the permit, based on the observed levels of take using
approved protocols for monitoring and estimating total take, the
Service may require additional actions including but not limited to:
(1) Adding, removing, or adjusting avoidance, minimization, or
compensatory mitigation measures;
(2) Modifying adaptive management conditions;
(3) Modifying monitoring requirements; and
(4) Suspending or revoking the permit in accordance with part 13 of
this subchapter B.
(C) If the observed levels of take, using approved protocols for
monitoring and estimating total take, are below the authorized take
levels for the period of review, the Service will proportionately
revise the amount of compensatory mitigation required for the next
period of review, including crediting excess compensatory mitigation
already provided by applying it to the next period of review.
(D) Provided the permittee implements all required actions and
remains compliant with the terms and conditions of the permit, no other
action is required. However, with consent of the permittee, the Service
may make additional changes to a permit, including appropriate
modifications to avoidance and/or minimization measures or monitoring
requirements. If measures are adopted that have been shown to be
effective in reducing risk to eagles, appropriate adjustments will be
made in fatality predictions, take estimates, and compensatory
mitigation.
(v) Fees. For permits with terms longer than 5 years, an
administration fee of $8,000 will be assessed every 5 years for permit
review.
(8) The Service may amend, suspend, or revoke a permit issued under
this section if new information indicates that revised permit
conditions are necessary, or that suspension or revocation is
necessary, to safeguard local or regional eagle populations. This
provision is in addition to the general criteria for amendment,
suspension, and revocation of Federal permits set forth in Sec. Sec.
13.23, 13.27, and 13.28 of this chapter.
(9) Notwithstanding the provisions of Sec. 13.26 of this chapter,
you remain responsible for all outstanding monitoring requirements and
mitigation measures required under the terms of the permit for take
that occurs prior to cancellation, expiration, suspension, or
revocation of the permit.
* * * * *
(11) You are responsible for ensuring that the permitted activity
is in compliance with all Federal, Tribal, State, and local laws and
regulations applicable to eagles.
(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) Except as set forth in paragraph (d)(3)(ii) of this section, an
applicant 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 the 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.
(ii) Applications for eagle incidental take permits for wind
facilities must include pre-construction eagle survey information
collected according to the following standards, unless exceptional
circumstances apply and survey requirements can be modified to
accommodate those circumstances after consultation with, and written
concurrence by, the Service:
(A) Surveys must consist of point[hyphen]based recordings of bald
eagle and golden eagle flight activity (minutes of flight) within a
three-dimensional cylindrical plot (the sample plot). The radius of the
sample plot is 2,625 feet (ft) (800 meters (m)), and the height above
ground level must be either 656 ft (200 m) or 82 ft (25 m) above the
maximum blade reach, whichever is greater.
(B) The duration of the survey for each visit to each sample plot
must be at least 1 hour.
(C) Sampling must include at least 12 hours per sample plot per
year for 2 or more years. Each sample plot must be sampled at least
once per month, and the survey start time for a sampling period must be
selected randomly from daylight hours,\1\ unless the conditions in
paragraph (d)(3)(ii)(F) of this section apply.
---------------------------------------------------------------------------
\1\ Daylight hours are defined as the hours between sunrise and
sunset.
---------------------------------------------------------------------------
(D) Sampling design must be spatially representative of the project
footprint,\2\ and spatial coverage of sample plots must include at
least 30 percent of the project footprint. Sample plot locations must
be determined randomly, unless the conditions in paragraph
(d)(3)(ii)(F) of this section apply.
---------------------------------------------------------------------------
\2\ The project footprint is the minimum[hyphen]convex polygon
that encompasses the wind[hyphen]project area inclusive of the
hazardous area around all turbines and any associated utility
infrastructure, roads, etc.
---------------------------------------------------------------------------
(E) The permit application package must contain the following:
(1) Coordinates of each sample point in decimal degrees (specify
projection/datum).
(2) The radius and height of each sample plot.
(3) The proportion of each three-dimensional sample plot that was
observable from the sample point for each survey.
(4) Dates, times, and weather conditions for each survey, to
include the time surveys at each sample point began and ended.
(5) Information for each survey on the number of eagles by species
observed (both in flight and perched), and the amount of flight time
(minutes) that each was in the sample plot area.
[[Page 91553]]
(6) The number of proposed turbines and their specifications,
including brand/model, rotor diameter, hub height, and maximum blade
reach (height), or the range of possible options.
(7) Coordinates of the proposed turbine locations in decimal
degrees (specify projection/datum), including any alternate sites.
(F) Stratified-random sampling (a sample design that accounts for
variation in eagle abundance by, for example, habitat, time of day,
season) will often provide more robust, efficient sampling. Random
sampling with respect to time of day, month, or project footprint can
be waived if stratification is determined to be a preferable sampling
strategy after consultation and approval in advance with the Service.
(iii) Application of the Service-endorsed data quality standards of
paragraphs (d)(3)(i) and (ii) 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.
(6) Whether the applicant has proposed compensatory mitigation
measures that comply with standards set forth under paragraph (c)(1) of
this section 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 taking eagles 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) Required determinations. Before we issue a permit, we must find
that:
(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 the eagle populations within the
eagle management unit and the local area population, are compatible
with the preservation of bald eagles and golden eagles.
(2) The taking is necessary to protect an interest in a particular
locality.
(3) The taking is associated with, but not the purpose of, the
activity.
(4) The applicant has applied all appropriate and practicable
avoidance and minimization measures to reduce impacts to eagles.
(5) 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.
(6) 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.
(7) 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.
(i) Applicants for eagle incidental take permits who submit a
completed permit application by July 14, 2017 may elect to apply for
coverage under the regulations that were in effect prior to January 17,
2017 provided that the permit application satisfies the permit
application requirements of the regulations in effect prior to January
17, 2017. If the Service issues a permit to such applicants, all of the
provisions and conditions of the regulations that were in effect prior
to January 17, 2017 will apply.
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), adding a new paragraph (b)(8), and revising newly
designated paragraph (b)(11); and
0
c. Revising paragraphs (e)(1), (e)(2) introductory text, (e)(2)(ii) and
(iii), and (e)(3) 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 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
[[Page 91554]]
(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 and
cumulative effects, of the permitted take.
(8) Compensatory mitigation scaled to project impacts will be
required for any permit authorizing take that would exceed the
applicable eagle management unit take limits. Compensatory mitigation
must conform to the standards set forth at Sec. 22.26(c)(1)(iii).
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 indicate that cumulative unauthorized
mortality would exceed 10 percent of the local area population; or
(iii) 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.
* * * * *
(11) You are responsible for ensuring that the permitted activity
is in compliance with all Federal, Tribal, State, and local laws and
regulations applicable to eagles.
* * * * *
(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 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 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 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 taking eagles 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: December 8, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-29908 Filed 12-14-16; 8:45 am]
BILLING CODE 4333-15-P