FWS retools plans for 30-year permits to kill eagles

Source: Phil Taylor, E&E reporter • Posted: Thursday, May 5, 2016

The Fish and Wildlife Service yesterday revived a proposal to allow energy companies to obtain 30-year permits to disturb or kill protected bald and golden eagles, a move aimed at encouraging more firms to commit to eagle conservation measures.

The agency released a draft rule along with a draft programmatic environmental impact statement (PEIS) analyzing the rule’s effect on eagles and a requirement that companies perform mitigation to offset harm to golden eagles.

Since 2009, FWS has allowed companies to obtain five-year eagle “take” permits. Take, which includes disturbance, injury or death, is generally prohibited under the Bald and Golden Eagle Protection Act of 1940 (BGEPA).

The new regulations offer a “path forward” for the agency to maintain stable or increasing eagle populations while keeping better tabs on how wind farms, power lines and other developments affect the birds, said FWS Director Dan Ashe.

“The permitting system provides a mechanism for private companies to do the right thing,” Ashe said in a statement. “Many companies are making efforts to avoid killing migratory birds during design, construction and operation of industrial facilities, and we look forward to working with additional permit applicants to ensure their operations are compatible with efforts to conserve eagles.”

Under the agency’s proposal, in order to take golden eagles, applicants would be required to fund conservation measures designed to protect more than one eagle for every eagle expected to be taken, FWS said.

Today’s proposal marks the second time FWS has pushed to extend eagle take permits to 30 years. Its first 30-year take rule finalized in late 2013 was struck down last August by a federal judge in Northern California who said FWS had to first prepare a National Environmental Policy Act review analyzing the rule’s impacts (E&ENews PM, Aug. 12, 2015).

Today’s PEIS, which was initiated before the court’s ruling, will attempt to rectify that.

FWS said longer-term permits are needed because the types of projects that seek them — wind farms, power lines, road construction and airports, to name a few — last much longer than five years and need the legal certainty that they won’t run afoul of BGEPA. Today’s proposal seeks to encourage more firms to seek permits, which would secure longer-term commitments to eagle conservation.

Ashe said the current five-year limitation appears to be the primary factor discouraging many firms from seeking eagle take permits. “We’re losing opportunities to work collaboratively with those industries,” he said.

But the previous 30-year permit rule hit major opposition from bird advocacy groups, which argued FWS lacked the resources or know-how to ensure the permits actually benefit the nation’s official bird and its golden kin.

It’s unclear how bird advocates and industry stakeholders, namely wind developers, will react to today’s announcement.

BGEPA requires FWS to determine that any take of eagles it authorizes is “compatible with the preservation of bald eagles or golden eagles.” The agency’s current regulations define that preservation standard as “consistent with the goal of maintaining stable or increasing breeding populations.”

The agency today is proposing to add the clause “and the persistence of local populations, throughout the geographic range of both species” to that standard.

The agency said it will take 60 days of public comment on the proposed changes to its eagle conservation and management program and the related draft PEIS.

It also released a new report on the status, trends and resilience of bald and golden eagle populations.

It found that the bald eagle, which was once endangered with fewer than 500 nesting pairs, now numbers more than 143,000 birds and is expected to rise in areas outside the Southwest potentially until the population reaches “equilibrium” at 228,000 birds.

Based on that finding, the agency is proposing allowing up to 4,200 bald eagle takes annually without requiring compensatory mitigation. This compares to a take limit of 1,103 established in 2009, FWS said.

Golden eagle populations have remained steady over the past five years at roughly 40,000 birds, but population models suggest golden eagles in the West might be starting to decline due mostly to human-caused mortality, FWS said.

Based on that finding, the golden eagle take allowance would remain at zero unless compensatory mitigation is provided, FWS said. In addition to retrofitting power poles, FWS is proposing to expand potential mitigation options to less-proven steps like abating lead, the agency said. New mitigation techniques would need to be performed “at a greater ratio and with credible monitoring due to the uncertainty,” FWS said.

In addition, the 30-year permits would be reviewed at least every five years to ensure that predicted take levels are not being exceeded. If they are, FWS could place additional mitigation requirements on the permit holder.

FWS is also proposing to impose additional fees on companies that apply for 30-year permits.

The proposal would mandate a $36,000 permit application processing fee for eagle incidental take permits of five years’ duration or longer, which is the same fee currently applied to five-year permits. The proposal would also charge a $15,000 administration fee every five years to cover the agency’s cost of evaluating the permit’s effectiveness.