USFWS Extends Eagle Take Permits to 30 Years

The U.S. Fish and Wildlife Service extended the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act to 30 years. This means that renewable energy project developers – particularly wind project developers – can apply for permits that authorize recurring “take” (i.e., disturbance or killing) of eagles that is unavoidable even with mitigation. The rule eclipses the five-year limit on programmatic take permits instituted in 2009.

The act prohibits the “take” of bald and golden eagles, their nests, or eggs, unless allowed by permit; specifically, one cannot “pursue, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” the eagles without permission. Wind energy projects can result in accidental takes when eagles fly into the windmill blades. While most project developers implement measures to direct eagles away from the blades, such as by attracting the birds to reflective material above the blades and locating the projects in less-populated zones, some takes are unavoidable even with such mitigation.

Until now, many developers opted not to apply for programmatic take permits, given the inefficiency of the permit’s five-year duration compared to the decades-long timeframe of renewable energy project operations. Instead, developers would either apply for standard permits, which authorize individual takes, or not apply for any permits. The new regulations do not change the fact that project developers are not legally required to apply for take permits before proceeding with their projects. The downside to this approach, however, is that a developer faces civil and criminal penalties for unpermitted takes done “knowingly” or with “wanton disregard.”

Although the permits can now extend up to 30 years, the length of each permit will depend on the characteristics of the projects, such as the project’s duration and the projected impacts to eagles. Additionally, permits issued for longer than a five-year period will undergo evaluations every five years to assess fatality rates, conservation and mitigation effectiveness, and eagle population levels. Applicants for these longer permits are also required to commit to adaptive management, which involves system monitoring with the goal of continually understanding and improving a project’s effect on eagles.

The issuance of a take permit is a federal action requiring compliance with the National Environmental Policy Act, meaning applicants must prepare an environmental assessment or an environmental impact statement in order to obtain a permit. The rule went into effect on January 8, 2014.