Eagle Non-Purposeful Take Permit (12-FD-b)
The Eagle Act prohibits anyone from “taking” bald or golden eagles unless authorized by permit or regulation. Bald and Golden Eagle Protection Act, 16 U.S.C. § 668. “Take” means: pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb. 50 C.F.R. § 22.3. The USFWS is responsible for administering the Eagle Act and may issue permits, which enable activities that are otherwise prohibited under the Eagle Act.
Energy projects that may impact bald or golden eagles, typically require a Non-Purposeful Eagle Take Permit, which authorizes the take of bald and golden eagles, where the take is not the purpose of an activity, but cannot practicably be avoided. 50 C.F.R. § 22.26. A Non-Purposeful Eagle Take Permit may authorize disturbance of bald and golden eagles, or lethal take. 50 C.F.R. § 22.26.
Under the Eagle Act, “disturb” means to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available:
- Injury to an eagle;
- A decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior; or
- Nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.
The applicable permit regulations (50 C.F.R. § 22.26):
- Apply to both golden eagles and bald eagles;
- Authorize take only where compatible with the preservation of the eagle. For purposes of these regulations, “compatible with the preservation of the bald eagle and the golden eagle” means consistent with the goal of stable or increasing breeding populations;
- Include provisions for programmatic take. Programmatic take (take that is recurring and not in a specific, identifiable timeframe and/or location) can be authorized only where it is unavoidable despite implementation of comprehensive measures developed in cooperation with the USFWS to reduce the take below current levels. Examples of programmatic take include:
- Collisions with and electrocutions on electric utility lines;
- Strikes from turbine blades at wind facilities; and
- Disturbance at large projects such as some mines, where mining activity and also the eagles move to different locations within the project area throughout the life of the mining operation.
Eagle Non-Purposeful Take Permit Process
12-FD-b.1 - Develop Eagle Conservation Plan (ECP)
The USFWS encourages developers to consult with the relevant Fish and Wildlife Service field office in preparing an Eagle Conservation Plan (ECP). Although submission of an ECP is voluntary, developers who choose not to submit an ECP and subsequently engage in activities that result in the take of bald or golden eagles risk liability under the Eagle Act. The USFWS provides an Eagle Conservation Plan Guidance (ECPG) document that may assist developers in understanding the ECP process and requirements. The ECPG is specific to wind-energy development projects, however, many of the concepts and approaches outlined in the document can be readily exported to other situations including solar facilities and electric power lines. The ECPG calls for:
- Preliminary landscape‐level assessments to assess potential wildlife interactions;
- Site‐specific surveys and risk assessments prior to construction;
- Monitoring project operations; and
- Reporting eagle fatalities to the USFWS and state and tribal wildlife agencies.
12-FD-b.2 to 12-FD-b.4 - Review ECP for Sufficiency to Avoid or Minimize Take
The USWFS will review the ECP for sufficiency to avoid or minimize take. In cases where the ECP is structured in such a way that the project can avoid take, the USFWS will likely issue an acknowledgement that the ECP is sufficient and the developer may continue with the project as contemplated under the ECP. Where the ECP does not completely avoid take, but instead minimizes take, the USFWS will make a sufficiency determination that is less certain. If the ECP does not sufficiently minimize take, the developer will either need to modify the project proposal or apply for a Nonpurposeful Eagle Take Permit.
12-FD-b.5 to 12-FD-b.6 – Can Project Proposal be Modified?
If the project proposal/ECP can be modified to avoid or further minimize take, the developer should modify the project proposal/ECP and re-submit the modified proposal to the USFWS. If the project proposal/ECP cannot be modified, the developer will need to consult with the USFWS and develop an Application for Nonpurposeful Eagle Take Permit. For more information on how to avoid disturbing bald eagles, developers should consult the National Bald Eagle Management Guidelines, which provide recommended spatial and temporal buffers for different types of activities.
12-FD-b.7 – Application for Nonpurposeful Eagle Take Permit
After close consultation with the USFWS, the developer should submit a complete Application for Nonpurposeful Eagle Take Permit. For programmatic take, the application must show that the take is unavoidable even though the developer is implementing advanced conservation practices (ACPs). 50 C.F.R. § 22.26(a)(2). ACPs are scientifically supportable measures that are approved by the USFWS and represent the best available techniques to reduce eagle disturbance and ongoing mortalities to a level where remaining take is unavoidable. 50 C.F.R. § 22.3. Although no ACPs have been approved by the USFWS for energy projects as of this writing (Eagle Conservation Plan Guidance), the USFWS does recognize actions known as “compensatory mitigation” that can reduce/mitigate take down to a no-net-loss standard in cases of programmatic take. Examples of compensatory mitigation activities might include:
- Retrofitting power lines to reduce eagle electrocutions;
- Removing road‐killed animals along roads where vehicles hit and kill scavenging eagles; or
- Increasing prey availability.
12-FD-b.8 to 12-FD-b.9 – Review Application
- The magnitude of likely take based on the nature of the activities’ impacts;
- Whether the take is compatible with the preservation of the bald and golden eagle, including consideration of indirect effects and the cumulative effects of other permitted take and other additional factors affecting eagle populations; and
- Whether the developer has proposed avoidance and minimization measures to reduce the take to the maximum degree practicable.
50 C.F.R. § 22.26(e)(1-3). Developers should be aware that the authorization granted by a Nonpurposeful Eagle Take Permit is not valid unless the developer is also in compliance with all federal, tribal, state, and local laws and regulations applicable to take of eagles. 50 C.F.R. § 22.26(c)(10).
12-FD-b.10 – Nonpurposeful Eagle Take Permit
If the Application for Nonpurposeful Eagle Take Permit meets all regulatory criteria, the USFWS will issue a Nonpurposeful Eagle Take Permit. The permit will specify duration (not to exceed 5 years) and required monitoring and annual reporting requirements. Any substantial changes in operations contemplated under the permit require notice to the USFWS and may require renewed regulatory evaluation by the USFWS.
12-FD-b.11 – Monitor Eagle Population for Agreed Upon Period
The Nonpurposeful Eagle Take Permit will specify monitoring requirements both during the course of contemplated operations and post-completion. Developers may be required to monitor eagle use of important eagle-use areas where eagles are likely to be affected by the activities for up to 3 years after completion of the activity or as otherwise set forth in the permit. 50 C.F.R. § 22.26(c)(2).
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