Eagle Management
Final Eagle Rule Frequently Asked Questions
About Migratory Birds
Eagle incidental take permits authorize incidental take (disturbance, injury or loss) of eagles that results from a broad spectrum of public and private activities, such as utility infrastructure development and maintenance, energy development, road construction, operation of airports, commercial or residential construction, resource recovery, recreational activity development, etc. The vast majority of these permits authorize eagle disturbance rather than lethal take.
The Service is committed to the conservation of eagles throughout the United States. Certain otherwise lawful activities may result in unintentional (also called non-purposeful or incidental) harm to eagles. Human activities across the landscape have increased over time, resulting in harm in the form of disturbance, encroachment on nests, and loss of individual eagles. Although this harm may be unintended, it is a violation of the Bald and Golden Eagle Protection Act (also known as the Eagle Act)
The take permitting system under the Eagle Act provides an effective means for the Service to work proactively with public and private entities to reduce this harm. It also provides a mechanism to gain critical data to track mortality rates and causes. In return for working with the Service to reduce harm to eagles, the permittee is provided a guarantee that they will not be prosecuted for the loss or disturbance of a specific number of birds.
The incidental take permit system is not new; it was employed for bald eagles while they were listed under the Endangered Species Act, during which time bald eagle populations increased dramatically. Permits provide a comprehensive conservation mechanism to reduce loss of and disturbance to eagles. Permitting involves engaging the permittee in a process to avoid and mitigate the loss of eagles to the maximum extent practicable. Only after all practicable conservation measures are incorporated will remaining take be authorized and then allowed only up to a specific number of birds. This ensures compatibility with our goal of stable or increasing eagle populations. The permits themselves act as an important feedback mechanism by providing additional information on eagle mortality to Service scientists to help inform future permitting decisions
The final rule is based on new data and information about bald and golden eagle populations that can be found in this report (3.6MB), released in April 2016. The final rule also represents information acquired during an extensive public input process that has taken place during the last several years. Highlights of the final rule include:
- Elimination of the two types of permits (standard and programmatic) referenced in the 2009 rule and renaming them as “incidental take” permits, setting a single standard for all permits: that take must be avoided and minimized to the maximum extent practicable.
- Increasing the maximum duration of incidental take permits from five to 30 years. Longer-term (more than five-year) permits will be required to include adaptive management provisions and are subject to five-year reviews.
- Longer-term permits now require that monitoring be conducted by qualified, independent third parties that report directly to the Service.
- For incidental take of golden eagles, compensatory mitigation is required at a ratio of 1.2 to 1.
Each permittee works with the Service to implement avoidance and minimization mechanisms to reduce the chance of harm to eagles. The Service is conservative in its permitting, meaning that in all likelihood, the minimization and avoidance measures the permittee has implemented will result in far fewer eagle deaths than the permit allows. In the case of golden eagles, permit applicants will be expected to implement or otherwise provide for conservation measures designed to protect more than one eagle for every eagle expected to be taken.
However, should take of eagles exceed the expected rate, the permittee has the opportunity to work with the Service to implement additional measures to reduce eagle mortality before the take permit limit is exceeded. If the permittee fails to do so and permitted take is exceeded, the entity would be in violation of the Eagle Act. Any additional take over the allowed level would be considered unlawful, and the permitee could be prosecuted.
No! Nor is it conceivable that we could. Some have promoted this mischaracterization of the ceiling of about 4,000 bald eagles cited in our documents. In truth, this number represents the maximum number of bald eagles in the lower 48 states (with an equivalent number in Alaska) that our best scientific estimates indicate could be lost annually over and above current mortality rates by any means – both natural and human-caused – without resulting in population declines. The reality is, we expect to issue just a few dozen permits annually, most for nest disturbance, some for mortality from wind power projects and other sources, such as power lines. We expect that a significant portion of the permits we issue will be to existing operations already taking eagles without authorization. The total number of eagle deaths we expect to authorize annually from new sources may eventually be in the hundreds, not thousands, and we believe actual eagle loss will be significantly lower.
Bald eagle populations are increasing; the population throughout the United States is now estimated to exceed 143,000 individuals. The population outside the Southwest is predicted to continue to increase, potentially until populations reach equilibrium at about 228,000.
We estimate the total population size for the golden eagle throughout the United States to be approximately 40,000 individuals. Although their population trend appears relatively stable, population models similar to those used for the bald eagle suggest that golden eagle populations in the western United States might be starting to decline. Human-impacts account for the majority of golden eagle mortality. This is why, in order to meet our goal of stable or increasing eagle populations, no permits will be given authorizing loss of golden eagles unless the permittee compensates for this loss at a greater rate (1.2 to 1).
To reduce the ongoing loss of eagles, we want as many entities as possible to apply for eagle permits and implement conservation measures. The five-year maximum duration for programmatic permits appears to be a primary factor in discouraging many project proponents from seeking eagle take permits. Many activities that incidentally take eagles due to ongoing operations have lifetimes that far exceed five 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. Bringing more projects into compliance with the Eagle Act would result in implementation of additional eagle conservation measures.
Thirty years is a maximum permit length, not the automatic permit length. Permits of shorter duration may be granted where appropriate, e.g., for road construction. Long-term permits require the permittee to consult with the Service every five years to ensure expected take levels are not being exceeded. Additional requirements developed as part of the permit’s adaptive management plan may be placed on the permittee at those five-year reviews, and if the permittee is found not to be complying with avoidance, mitigation or compensation requirements, the permit can be revoked.
The rule emphasizes use of broader compensatory options, including third-party funds such as mitigation banks. The types of accepted offsetting mitigation measures (e.g., power pole retrofits) are expanded by allowing measures with more uncertainty and risk with regard to their effectiveness (e.g., lead abatement) to be used. However, if such techniques are employed, they would need to be applied at a greater ratio and with credible monitoring due to the uncertainty.
The Service believes it should be possible to identify criteria that can be used in advance to identify projects that pose little risk to eagle populations and to develop an expedited permitting process for such projects. However, after formally soliciting public input on the topic and after considerable internal deliberation, the Service has not been able to reach a consensus on what constitutes a low-risk project. The Service expects that data collected through permits issued under this regulation will help identify the criteria that can be used to predict which projects pose little risk to eagles, but setting a timeline for that objective is not feasible because it depends on the number of projects that are permitted and how quickly they become operational and begin generating information. In the meantime, the Programmatic Environmental Impact Statement (PEIS) programmatically analyzes eagle take within certain levels and the effects of complying with compensatory mitigation requirements to allow the Service to tier from the PEIS when conducting project-level National Environmental Protection Act (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 Eagle Management Unit (EMU) (unless take is offset); (2) the project does not result in Service-authorized take (individually or cumulatively) in excess of 5 percent of the Local Area Population (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.
EMUs are a functional way for the Service to track eagle populations and trends and effectively manage the population to ensure species survival at an ecologically meaningful scale. Currently the Service uses its regional administrative structure as the basis for bald eagle EMUs and Bird Conservation Regions for golden eagle EMUs. The final rule changes this to base EMUs on eagle flyways with some modifications. For bald eagles, EMUs constitute the Atlantic, Mississippi, Central and Pacific flyways, with the Pacific Flyway divided into three smaller EMUs based on latitude. Golden eagles have three EMUs: Pacific, Central, and combined Mississippi/Atlantic flyways.
Yes.
Existing permits are unchanged by the revisions to the eagle permit regulations. When permittees apply for a new or renewed permit, they are subject to the new regulations.
The new regulations include a six-month “grandfathering” period, under which projects under construction may apply for an eagle take permit using either the 2009 or the new regulations. The regulations also provide flexibility for operational projects, including wind projects, to be permitted. For projects that are already in operation, prospective applicants will need to coordinate directly with the Service to ensure that the project is eligible for a permit, and to evaluate the data that are available to assess the project’s risk to eagles.
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 five years duration or longer. This is the same cost as the current permit processing fee for five-year programmatic permit applications. We will assess a $8,000 administration fee every five years for long-term permits. This fee will cover the cost to the Service of conducting each five-year evaluation and developing any appropriate modifications to the permit. The fees will also help cover the costs of the staffing needed to ensure that longer-term permit applications are handled efficiently and consistently across the country.
A commercial applicant for an incidental take permit of less than five years’ duration 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 incidental take permit application processing fee for homeowners will remain at $500.
The higher fees for commercial entities will 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 permit application package. Commercial entities have the opportunity to recoup the costs of doing business by passing those costs on to their customers.
The National Environmental Policy Act (NEPA), requires federal agencies to consider the effects of their proposed actions on the human environment to ensure that decisions are based on an understanding of environmental and human consequences. A programmatic environmental document such as the PEIS for these regulations is prepared when an agency proposes to carry out a broad action, program, or policy. The programmatic approach creates a comprehensive, analytical framework that supports subsequent analyses of specific actions at site- and ecoregion-specific locations within the nation. Programmatic analysis can save resources by providing NEPA coverage for many of the activities associated with the program, allowing subsequent NEPA analyses to be more narrowly focused on specific activities at specific locations.