TAKEAWAYS

• Beginning April 12, 2024, USFWS will offer a general permit application for incidental take of bald and golden eagles for wind energy and power line projects.
• The general permit option will provide an alternative to project-specific permits, formerly known as Incidental Take Permits. Projects in areas with a high incidence of eagles will still be required to obtain a specific permit, but the vast majority will be eligible for the general permit.
• General permits will have shorter terms than specific permits, can be renewed at the end of each term, and will be significantly less expensive to apply for and implement than the Incidental Take Permit.

On February 12, 2024, the U.S. Fish and Wildlife Service (USFWS) published a final rule revising the eagle permit program under the Bald and Golden Eagle Protection Act (BGEPA). 89 Fed. Reg. 9920. The new rule streamlines the issuance of project-specific incidental take permits by establishing, for the first time, general permits for certain eligible wind energy generation and power line infrastructure projects. The rule, codified at 50 C.F.R. Parts 13 and 22, also improves the project-specific permitting process for those projects that would not otherwise qualify for the general permit by removing the requirement that permits include a specific take limit and third-party monitoring provisions for wind projects. The new permitting regime can potentially result in significant time and cost savings for eligible projects.

NEW GENERAL PERMITS (50 C.F.R. § 22.210)

An “incidental take” is a take (wounding, killing, disturbing) that is foreseeable and results from—but is not the direct purpose of—an activity. Pursuant to the final rulemaking, the new general permits for incidental take apply to four categories of activities: (1) wind energy, (2) power lines, (3) other specified activities that result in eagle disturbance, and (4) narrow categories of activity that result in the take of bald eagle nests. For these types of activities, a general permit offers a streamlined process for obtaining authorization to construct and operate the facility without the need for a more robust and time-consuming site-specific application process, though specific permits will still be available for projects ineligible for a general permit.

For new projects seeking a general permit, per 50 C.F.R. § 13.11, applicants must self-proclaim their eligibility, register with the U.S. Fish and Wildlife Service, and then comply with the general permit conditions and reporting requirements, which are as follows:

Take from Wind Projects (50 C.F.R. § 22.250)
The wind general permit is available for wind turbine projects in areas of the lower 48 states that are at low risk to eagles. To be eligible, all turbines at the project must be at least two miles from a golden eagle nest and at least 660 feet from a bald eagle nest, and all turbines must be in a low-risk area for eagles. Some features of the general permit are as follows:

• Take Avoidance, Minimization and Mitigation: The permit requires implementation of all practicable avoidance and minimization measures to reduce the likelihood of a take, including reducing eagle attractants such as prey populations or perch locations, minimizing human-caused food sources, and implementing adaptive management plans. Compensatory mitigation is required, either through a USFWS-approved in-lieu fee program or conservation bank.
• Eagle Take Allowance: There is no longer specific, authorized number of eagles that can be taken on the face of the permit. If three eagles of one species are found during the general permit period, however, an adaptive management plan must be implemented. If a fourth eagle of the same species is found after an adaptive management plan is implemented, the project will not qualify for future general permits.
• Timeframe of Permit Validity: The permits are valid for a period of five years, at which point in time applicants may reapply for a new five-year permit. The terms of the permit are non-negotiable.
• Permitting Costs (Average):

- Permit Application Fee: $1,000

- Administration Fee: $2,500 (Tier 1), or $10,000 (Tier 2)

- Compensatory Mitigation: $37,200

- Monitoring: $0

- Total: $40,700 (Tier 1), or $48,200 (Tier 2)

Existing projects may request to convert a specific permit to a general permit—even if it cannot otherwise meet the various location-based criteria—if it can demonstrate that the existing project’s take rates are consistent with or lower than that of comparable wind facilities that can qualify for the general permit. 50 C.F.R. § 22.200(b)(7).

Power Line Take (50 C.F.R. § 22.260)
All power line entities will be eligible for this general permit, as long as they can comply with the general permit conditions and implement plans to: (1) respond to and reduce collision-caused take, (2) proactively retrofit existing infrastructure to minimize eagle take, (3) reactively retrofit infrastructure in response to incidents to minimize eagle take, and (4) cooperate with law enforcement if shooting is the suspected cause of eagle mortality or injury. There is no longer a specific, authorized number of eagles that can be taken, but if an eagle take does occur the permit holder must comply with applicable regulations to perform compensatory mitigation and take avoidance measures going forward. The permit is valid for five years, at which point in time the applicants may reapply for a new five-year permit. Average permitting costs are as follows: the permit application fee is $1,000, an administration fee of $2,500 (Tier 1 – low-complexity projects with minor modifications to the general permit conditions and where the decision can be categorically excluded under the National Environmental Policy Act (NEPA)), or $10,000 (Tier 2 – more complex projects that require negotiated provisions, but which are still categorically excluded from additional NEPA requirements), with a total cost of $3,500 (Tier 1), or $11,000 (Tier 2).

Eagle Disturbance Take (50 C.F.R. § 22.280)
The final rulemaking created a separate category of general permits for projects where eagles are incidentally taken through eagle disturbance rather than eagle death or injury. To effectuate this aspect of the general permit rule, USFWS retains the existing definition of “disturb” but provides new, nonbinding guidance in the rule preamble to further clarify what constitutes a disturbance. For example, non-lethal “hazing” methods to disperse eagles from a site does not constitute a disturbance, and activities occurring outside of identified buffer zones are unlikely to cause a disturbance.

The “disturbance” provisions of the general permit are applicable only to take by disturbance of bald eagles and are not provided for disturbance of golden eagles, which must be addressed through project-specific permits. General permits will be available when a disturbance to bald eagles occurs as a result of any of the following activities: alteration of water bodies and shorelines, vegetation alteration, building construction, motorized recreation, linear infrastructure maintenance and construction, nonmotorized recreation, aircraft operation, intermittent loud noises, and prescribed burn operations.

Under the eagle disturbance provisions of the general permit, permit holders must provide the precise locations of the nests. Monitoring, avoidance and minimization measures are required, but compensatory mitigation is not. The general permit’s provisions on eagle disturbance have a one-year tenure. The permit is renewable, although the rulemaking acknowledged that eagle disturbance over a long period of time is unlikely to be covered. Permitting costs are limited to a permit application fee of $500.

Bald Eagle Nest Take (50 C.F.R. § 22.300) The nest take general permit allows the take of bald eagle nests under certain circumstances; notably, take of golden eagle nests is only authorized pursuant to nest take specific permits. Four justifications authorize eagle nest take, including health and safety, emergency, removal of human-engineered structures, and certain other purposes (in Alaska only). The general permit authorizes removal of specific eagle nests and subsequent efforts to create new nests in the surrounding area; however, take of an additional eagle nest at a distance more than 0.5 miles away would require a project-specific permit.

Monitoring and compensatory mitigation will not be required for general permits. Permit applicants must provide the coordinates of the nests for which take authorization is requested. The permit term is one year, but the permit is renewable. Permitting costs are limited to a permit application fee of $500.

UPDATED PROJECT-SPECIFIC PERMITS (50 C.F.R. § 22.200)

Project-specific permits remain available for activities that are ineligible for a general permit.

Project-Specific Wind Permit (50 C.F.R. § 22.250)
The project-specific wind permit is designed for wind projects that do not qualify for the general permit due to a high incidence of eagles in the area or a high incidence of take at the site. These permits require applicants to fill out a revised version of what was formerly known as the Incidental Take Permit application. There are three tiers of specific permits, depending on the complexity of the project:

• Tier 1: Tier 1 permits are for wind project applications with low-complexity that (1) generally require few modifications from the general permit structure; (2) involve fatality estimates that can be estimated using site-specific data or where the permittee agrees to use the Service’s general process for estimating fatalities; (3) agree to use conservation bank or in-lieu programs for fees that are approved by the Service to complete compensatory mitigation; and (4) do not require a determination under NEPA. The final rule also expedites processing of Tier 1 project-specific permit applications.
• Tier 2: Tier 2 permits are for moderately complex permit applications that (1) require general permit condition modifications, including compensatory mitigation requirements that are negotiated; (2) require additional study of site-specific data for fatality estimation; or (3) necessitate additional negotiated requirements.
• Tier 2 with Reimbursable Agreement: For highly complex applications, such as those that cannot be excluded from NEPA requirements, or that require extensive negotiation over permit requirements, the Service will charge a fee for the Tier 2 application and also require the applicants to agree to reimburse the Service’s additional costs associated with review time if it that exceeds 275 hours.

Some features of the project-specific permit are as follows:

• Take Avoidance and Mitigation Measures: The permit requires take avoidance and minimization measures and compensatory mitigation. The specific permit uses the general permit as a foundation, but it can be modified.
• Eagle Take Allowance: There is no specific, authorized number of eagles that can be taken on the face of the permit, but any incident of eagle take must comply with applicable regulations.
• Timeframe of Permit Validity: The permit is authorized for any duration, in one-year increments, for up to a maximum of 30 years.
• Permitting Costs (Average):

- Permit Application Fee: $26,000

- Administration Fee: $10,000

- Compensatory Mitigation: $1,080,000

- Monitoring: $1,100,000

- Total: $2,216,000

Eagle Disturbance Take Specific Permit (50 C.F.R. § 22.280)
The final rule also creates a separate category of specific permits for projects where eagles are incidentally taken through eagle disturbance rather than eagle death or injury. Specific permits are available for disturbance of bald eagles due to activities that are not eligible for general permits, as well as for any activity that may result in disturbance of golden eagles. Under the permit, monitoring, avoidance and mitigation measures are required and compensatory mitigation measures will also be required under some circumstances. The precise location of nests must be provided. Specific permits have a five-year tenure. The permit is renewable, though the rulemaking acknowledged that eagle disturbance over a long period of time is unlikely. The permit application fee is $2,500.

Power Line Specific Permit (50 C.F.R. § 22.260)
The power line specific permit is available to any power line entity that seeks customized permit conditions. There are two tiers of permits: Tier 1 for low-complexity projects, and Tier 2 for moderately complex applications. The permit requires compensatory mitigation, avoidance and minimization measures. There is no specific, authorized number of eagles that can be taken on the face of the permit, but eagle take must comply with applicable regulations. The permit is authorized for any duration, in one-year increments, for up to a maximum of 30 years. Permitting costs will be variable depending on customization of permit applications.

Nest Take Specific Permit (50 C.F.R. § 22.300)
The final rule also includes provisions for project-specific nest take permits to allow some take of golden eagle nests and bald eagle nests (where the bald eagle nest situation is not covered by the general permit application). For these project-specific permits, monitoring of the nest and compensatory mitigation may be required. Permit applicants also will be required to provide the coordinates of the nests for which take authorization is requested. The permit term is five years, and the permit is renewable. The nest take permit application requires payment of $2,500, but no other fees.

Take Thresholds and Limits
Under the final rule, the U.S. Fish and Wildlife Service will no longer provide on the face of either the general or specific permits a specified number of eagles that may be taken. Permittees can therefore remain in compliance for exceeding authorized eagle take levels, though they will still be required to remain in compliance with the discovered eagle provisions of their permits. To ensure consistency, the Service will determine estimated eagle takes for calculating compensatory mitigation and for internal tracking.

Implementation
Online applications for general permit registration for wind energy projects and power lines will be available starting on May 6, 2024. 89 Fed. Reg. 9920, 9930. However, for developers interested in applying for wind energy or power line permits between the rule’s effective date and the date the application system becomes available, developers can apply as early as April 12, 2024, by (1) completing application 3–200–71 and (2) emailing the complete, signed application to the following email address: migratorybirdpermits@fws.gov. USFWS will reply with the general permit conditions, which the applicant must comply with until the general permit application is available online. Once the permit becomes available, the entity will need to submit the application online within 10 business days, including paying applicable fees. Registration for disturbance and nest take permits is anticipated to begin on September 1, 2024, after the 2024 nesting season ends.

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