The U.S. Fish and Wildlife Service recently issued a proposed rule amending the rules authorizing the issuance of permits for the incidental capture of eagles and the capture of eagle nests under the Bald and Golden Eagle Conservation Act (the “Act”). In addition to maintaining the individual permits already available under the law, the new rule proposes creating a “general” permit to qualify wind energy and powerline infrastructure projects. .
This law prohibits “taking” in general.[1] Possession and transportation of bald and golden eagles, except in accordance with federal regulations. However, the Act also authorizes the Secretary of the Interior to issue regulations permitting the capture of these eagle species for various purposes. Under current regulations, he has two types of permits for the accidental harvesting of eagles and eagle nests, issued separately for each project. Due in part to the inefficiencies of the application review and approval process, the issuance of these project-specific Eagle Take permits has historically been relatively rare. The service recognizes that although participation in permitting programs by wind energy projects has increased since his 2016, it still falls far short of service expectations.
According to the service, the new regulation aims to: (i) improve the efficiency and effectiveness of licensing; (ii) promote and improve regulatory compliance; (iii) increase protection for eagles; The service proposes to do this by creating a general permitting program to streamline the permitting process and provide more timely and cost-effective compensation for affected industries.
Common permissions are available to allow accidental acquisition by activities that occur frequently enough for the service to develop a standardized approach to permissions. Specifically, the service proposes activity-specific eligibility criteria and permit requirements in four new sections, based on activity and take type. (ii) an accidental eagle take to allow power lines; (iii) take the disturbance of the bald eagle; (iv) bald eagle nesting; As part of the revised application process, general permit applicants self-identify as eligible and register for services. Applicants must then submit an application containing all requested information and fees, as well as certification that the applicant meets the eligibility criteria and implements permit and reporting requirements.
Two specific proposed general permits for wind energy and powerline projects could prove particularly useful to renewable energy developers.
wind energy projects
Core to the general permit eligibility criteria for wind projects is the relative eagle population threshold, which a project must fall below to qualify for a general permit. The proposed rule includes specific population thresholds for bald and golden eagles, which apply during five defined periods of the year. For project eligibility, the seasonal abundance of vultures or golden eagles at all existing or proposed turbine locations must be below all five listed seasonal thresholds. Currently, the service supports this proposal because nearly 80% of all existing wind energy turbines in the contiguous United States are located in areas below the proposed relative abundance thresholds for both species. presumed to be eligible for a general permit under The service will provide a publicly available online mapping resource depicting the qualifying regions. Note, however, that for now, Alaska will be excluded from the General Permit Program under the proposed rules.
In addition to falling below relative eagle population thresholds, wind energy projects must stay at least 660 feet from bald eagle nests and at least 2 miles from golden eagle nests to be eligible for a general permit. should be placed in the right place.
For existing projects where not all turbines are located within areas below specified relative abundance thresholds, the project operator may apply for a separate Consideration should be requested. The service will review the project and issue a Letter of Approval if it deems it “appropriate” to expand the general permit.
Although the Service has not yet promulgated the full terms and conditions of general permits for wind energy projects, the proposed rule would require permit holders to take all practicable avoidance and minimization measures to reduce the likelihood of acquisition. requesting it to be implemented. The licensee also prohibits the project from reapplying for an additional five-year General Permit if a wind energy project covered by the General Permit is found to have four dead eagles. Subject to 4 spotted eagles permit conditions. Such projects must apply for a separate permit.
power line
In the proposed rule, the service acknowledged that it had a good understanding of how eagles interact with power lines and that it was developing general permits for eagle capture stemming from power line infrastructure.
Although the proposed rule does not contain detailed eligibility criteria, the service is considering six key conditions for a new powerline general permit.
- All new construction and reconstruction of pole infrastructure must be electrocution safe for bald and golden eagles, except where restricted by human health and safety.
- All new construction and reconstruction of pole infrastructure must be electrocution safe for bald and golden eagles, except where restricted by human health and safety. All new construction and reconstruction of transmission lines are limited by human health and safety, so eagle nesting, foraging, and roosting areas must be considered in placement and design. Specifically, we recommend that the utility install his infrastructure at least 2 miles from a golden eagle’s nest, 660 feet from a bald eagle’s nest, 660 feet from a bald eagle’s roost, and 1 mile from a bald or golden eagle feeding ground. recommends.
- A reactive retrofit strategy should be developed that governs the retrofitting of high-risk utility poles in the event an eagle electrocution is discovered. A reactive retrofit strategy responds to incidents in which an eagle is electrocuted or injured.
- A proactive refurbishment strategy should be developed and implemented to convert all existing infrastructure to electrocution safe and to prioritize utility poles identified as having the highest risk to eagles.
- A collision response strategy must be implemented for every eagle collision with a power line. If an eagle collision is detected, the strategy should outline the steps to identify and assess the collision, consider response options, and implement the response.
- If eagle fire is spotted near powerline infrastructure, an eagle fire response strategy should be developed and implemented.
Service review and approval is not required prior to obtaining coverage under any of these general permits. Rather, according to the service, a general permit authorization is “generated” using the permit conditions and reporting requirements of the proposed activity. Under the proposed rule, when you submit an application, the service “automatically issues general permission to approve takes requested in the application.”
The service will conduct an annual audit of a small portion of all General Permits to ensure applicants are properly interpreting and applying the eligibility criteria. The maximum term for general permits for wind energy and powerline projects is five years. After it has expired, projects can reapply for a new five-year General Permit, with certain narrow exceptions.
Finally, because the service conducts environmental reviews to support the final rule, a project-specific environmental review under the National Environmental Policy Act is not required to obtain coverage under the General Permit. However, applicants for general permits must prove, among other things: (ii) Applicant obtains a written agreement with the relevant State Historic Preservation Officer or Tribal Historic Preservation Officer outlining all actions that the applicant will take to reduce or prevent adverse impacts on historic property; and comply with it.
The service is accepting comments on the proposed rule until November 29, 2022. The service hosted its first public listening session on October 20th.thand will host an additional listening session on November 3, 2022.
footnote
[1]The Federal Endangered Species Act defines “taking” as “harassing, harming, pursuing, hunting, shooting, injuring, killing, entrapping, capturing, collecting, or attempting to engage in such actions.” increase.
