[Federal Register Volume 86, Number 175 (Tuesday, September 14, 2021)]
[Proposed Rules]
[Pages 51094-51097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19717]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 22

[Docket No. FWS-HQ-MB-2020-0023; FF09M2200-212-FXMB12320900000]
RIN 1018-BE70


Eagle Permits; Incidental Take

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Advance notice of proposed rulemaking; request for comments.

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SUMMARY: The U.S. Fish and Wildlife Service (Service, or we) seeks 
public and regulated-community input on potential approaches for 
further expediting and simplifying the permit process authorizing 
incidental take of eagles. This document also advises the public that 
the Service may, as a result of public input, prepare a draft 
environmental review pursuant to the National Environmental Policy Act 
of 1969, as amended. We are furnishing this advance notice of proposed 
rulemaking to advise other agencies and the public of our intentions 
and obtain suggestions and information on the scope of issues to 
include in the environmental review. Public and regulated community 
responses will be used to improve and make more efficient the 
permitting process for incidental take of eagles in a manner that is 
compatible with the preservation of bald and golden eagles.

DATES: You may submit comments on or before October 29, 2021. We will 
consider all comments on this advance notice of proposed rulemaking, 
including the scope of the draft environmental review, that are 
received or postmarked by that date. Comments received or postmarked 
after that date will be considered to the extent practicable.

ADDRESSES: You may submit written comments by one of the following 
methods:
    Electronically: Go to the Federal e-Rulemaking Portal: http://www.regulations.gov. Search for FWS-HQ-MB-2020-0023, which is the 
docket number for this document, and follow the directions for 
submitting comments.
    By hard copy: Submit by U.S. mail to: Public Comments Processing, 
Attn: FWS-HQ-MB-2020-0023, U.S. Fish and Wildlife Service, MS: PRB/3W, 
5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments by only one of the methods 
described above. We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see Public Availability of 
Comments, below, for more information).

FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director, 
Migratory Birds, at 202-208-1050. Individuals who use a 
telecommunications device for the deaf (TDD) may call the Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: This advance notice of proposed rulemaking 
seeks comment on several approaches that could potentially underpin a 
more streamlined eagle incidental-take-permitting framework that we 
first established in 2009. Specifically, the Service is interested in 
comments clarifying specific aspects of the current permitting process 
that hinder permit application, processing, or implementation. The 
Service is also seeking recommendations for additional guidance the 
Service could develop that would reduce the time and/or cost associated 
with applying for and implementing long-term, eagle incidental take 
permits under existing regulations. The Service further invites 
recommendations for targeted revisions that could be made to existing 
regulations consistent with the overall permitting framework that would 
reduce the time and/or cost associated with applying for and processing 
long-term permits for incidental take of eagles. Finally, the Service 
is interested in comments regarding potential new regulatory approaches 
to authorizing incidental take under the Eagle Act, particularly for 
projects that can be shown in advance to have minimal impacts on 
eagles, that would reduce the time and/or cost associated with applying 
for and operating under long-term permits for the incidental take of 
eagles.

I. Background

    The Bald and Golden Eagle Protection Act (Eagle Act; 16 U.S.C. 668-
668d) prohibits take of bald eagles and golden eagles except pursuant 
to Federal regulations. Service regulations in title 50 of the Code of 
Federal Regulations, consistent with the Eagle Act (16 U.S.C. 668c), 
define ``take'' as to pursue, shoot, shoot at, poison, wound, kill, 
capture, trap, collect, destroy, molest, or disturb (50 CFR 22.3). The 
Eagle Act authorizes the Secretary of the Interior to issue regulations 
to permit the taking of eagles for various purposes, provided the 
taking is compatible with the preservation of the bald eagle or the 
golden eagle. Regulations at 50 CFR 22.3 define ``compatible with the 
preservation of the bald eagle or the golden eagle'' as ``consistent 
with the goals of maintaining stable or increasing breeding populations 
in all eagle management units [EMUs] and the persistence of local 
populations throughout the geographic range of each species.'' Permits 
for the incidental, or unintentional, take of eagles were established 
in 2009 (74 FR 46877, Sep. 11) to authorize incidental take of bald and 
golden eagles that results from a broad spectrum of activities, such as 
utility infrastructure, energy development, construction, operation of 
airports, and resource recovery (50 CFR 22.26).
    In 2016, the Service published a final rule (81 FR 91494, Dec. 16, 
2016) revising the regulations to lengthen the maximum permit tenure 
from 5 years to 30 years and require a review of permit implementation 
periodically throughout the lifetime of the permit at intervals no 
longer than 5 years. For most projects, the Service assumes the actual 
take at a project will be less than the level of take initially 
authorized under a permit, which will result in a reduction in required 
offsetting mitigation measures over time. This is because initial 
estimates of eagle fatalities are purposely conservative to reduce the 
likelihood of a permittee exceeding their authorized level of take, and 
to ensure

[[Page 51095]]

the Service does not exceed the EMU take limits. The 2016 regulations 
also require specific methods for preconstruction eagle surveys and 
fatality modeling for wind-energy facilities, the industry with the 
largest demand for long-term, incidental take eagle permits.
    The 2016 regulations provide uniform standards for offsetting take 
of eagles when authorized take would exceed the sustainable take rate 
determined by the Service. To preserve bald and golden eagles, the 
Service surveys eagle populations, estimates population levels, and 
estimates the level of take, or mortality, each population can 
withstand without significantly declining. When the sustainable take 
rate is predicted to be exceeded by a permitted project, the 
regulations require the permittee to offset excess authorized take by 
reducing another form of mortality to eagles or increasing the carrying 
capacity of the population. The standards apply whether the offsetting 
mitigation is achieved via direct implementation by the permittee, an 
in-lieu fee program, or a mitigation bank. The Service has approved two 
privately developed in-lieu fee programs and is working with other 
entities to make additional third-party mitigation programs available 
to simplify the permit process for permittees.
    In conjunction with revising the permit regulations in 2016, the 
Service prepared a comprehensive programmatic environmental impact 
statement (PEIS) that analyzed the Service's overall permitting program 
for eagles. The PEIS established the sustainable take limits described 
above for both species of eagle and evaluated the effects of 
programmatically issuing permits within those take limits under the 
conditions included in the regulations. The Service determined that 
bald eagles could sustain additional mortality and established a 
nationwide sustainable take limit of 7,500 individuals per year. In 
contrast, given the status of the North American golden eagle 
population, the Service concluded that no additional mortality could be 
authorized without risking population declines. Therefore, additional 
take would not be consistent with the eagle preservation standard 
required by the Eagle Act. To remedy this issue, all new take of golden 
eagles authorized under permit must be offset by conservation measures 
that will reduce another form of ongoing mortality or enhance 
population numbers to a commensurate degree.
    Because the PEIS analyzed the cumulative impacts of permitting up 
to the established sustainable take levels, the Service is able to tier 
environmental analyses required under the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) from the PEIS, enabling the Service 
to significantly accelerate the permitting process for complex, long-
term projects, such as wind-energy facilities, while continuing to 
preserve eagles consistent with the Eagle Act.
    At the same time, human development and infrastructure continue to 
increase in the United States, and bald eagle populations continue to 
grow throughout their range. The result of these trends is an 
increasing number of interactions between eagles and industrial 
infrastructure and a corresponding need for the Service to process more 
applications for incidental take of eagles. The Service and the 
regulated community share an interest in introducing further 
efficiencies into the eagle incidental-take-permitting process to meet 
this demand, while preserving bald and golden eagles pursuant to the 
Eagle Act.

II. Action Requested From the Public

    We seek comments or suggestions from the public, governmental 
agencies, Tribes, the scientific community, industry, or any other 
interested parties. Should the Service promulgate a proposed rule and 
prepare a draft environmental review pursuant to NEPA, we will take 
into consideration all comments and any additional information 
received. The Service will act as the lead Federal agency responsible 
for completion of any environmental review resulting from this notice. 
To ensure that any proposed rulemaking effectively evaluates all 
potential issues and impacts, this document seeks the public's and 
regulated community's input on what changes could be made to the 
Service's eagle incidental-take-permitting program (50 CFR 22.26) to 
make the permitting process more efficient and effective. Any input 
should be consistent with statutory provisions of the Eagle Act and 
compatible with the preservation of eagles. The Service recommends that 
anyone planning to provide input first review the Service's 2016 
rulemaking (81 FR 91494, Dec. 16, 2016) and the PEIS discussed above; 
both documents are available on http://www.regulations.gov under Docket 
No. FWS-HQ-MB-2020-0023 (https://www.regulations.gov/docket/FWS-HQ-MB-2020-0023/document).
    The Service is interested in the public's and regulated community's 
responses to the following questions:
    1. Are there specific protocols, processes, requirements, or other 
aspects of the current permitting process for incidental take of eagles 
that hinder permit application, processing, or implementation?
    As an example, the Service has heard from some companies that the 
requirement that monitoring under long-term permits be carried out by 
independent third parties is not feasible or is prohibitively 
expensive. Additional details on these costs, including circumstances 
that increase third-party-monitoring costs, would be helpful.
    2. What additional guidance, protocols, analyses, tools, or other 
efficiencies could the Service develop that would reduce the time and/
or cost associated with applying for, implementing, and conducting 
monitoring associated with long-term permits for incidental take of 
eagles under existing regulations? What are the estimated costs of the 
suggested additional efficiencies, and how do those costs compare to 
industry's current practices?
    The Service is currently working on guidance for fatality 
monitoring at wind-energy facilities, standards for using power-pole 
retrofits as offsetting mitigation, revised protocols for minimizing 
disturbance of nesting bald eagles, golden eagle nest-buffer guidance, 
and reduced or more-streamlined permitting requirements in areas where 
the risk of take is low. We seek input on any additional tools and 
guidance the Service could develop to improve the permitting process.
    One concept the Service is considering that will potentially reduce 
required monitoring costs under the existing regulations is ``pooled'' 
post-construction monitoring of a selected subset of permitted 
projects. The Service could explore creation of an opportunity for 
permitted facilities to contribute funding the Service would use to 
direct post-construction monitoring across participating projects. Such 
a program would work by implementing monitoring in a systematic, 
stratified fashion across participating projects, eliminating the need 
for each project to implement a stand-alone third-party monitoring 
program yet still satisfying the permittee's post-construction 
monitoring requirements. We are seeking feedback on the concept of 
pooled monitoring; in particular:
     Would prospective eagle incidental take permittees take 
advantage of this opportunity?
     If so, how important are the tradeoffs between the cost of 
pooled

[[Page 51096]]

monitoring and obtaining project-specific fatality estimates?
     Is monitoring at a randomly selected subset of projects an 
acceptable alternative to monitoring at every project from the 
standpoint of ensuring the permit program is reasonably protective of 
bald and golden eagle populations?
    3. What targeted revisions could be made to existing regulations 
consistent with the overall permitting framework and PEIS that would 
reduce the time and/or cost associated with applying for and processing 
long-term permits for incidental take of eagles?
    4. Are there potential new regulatory approaches to authorizing 
incidental take under the Eagle Act, particularly for projects that can 
be shown in advance to have minimal impacts on eagles, that would 
reduce the time and/or cost associated with applying for and operating 
under long-term permits for incidental take of eagles?
    For example, we have received proposals for a new, regulatory 
approach to further streamline the permitting process for incidental 
take of eagles by establishing a ``nationwide'' or ``general'' permit 
program similar to the U.S. Army Corps of Engineers (USACE) Nationwide 
Permit Program (NWP program) for authorizing impacts to wetlands and 
other waters of the United States. Those permits can provide expedited 
or even eliminate review of proposed activities that have only minimal 
individual and cumulative adverse environmental effects.
    The USACE system for analyzing the environmental effects of its NWP 
program is much more complex and resource-intensive than the Service's 
current eagle permitting framework under the 2016 PEIS. The USACE uses 
a three-tiered approach in administering its NWP program, and ensuring 
that activities authorized by NWPs have no more than minimal individual 
and cumulative adverse environmental effects. For applicants under the 
majority of NWPs that require preconstruction notification, the data 
requirements entailed in completing the preconstruction notification 
are not insubstantial. Applicants must provide detailed information 
regarding proposed activities, their potential impacts, avoidance and 
minimization measures, and compensatory-mitigation commitments. 
Considering the complexity of the USACE program, we seek further input 
as to which aspects of the NWP program industry and the public are most 
interested in the Service emulating in our eagle-permitting program, as 
well as those aspects not recommended.
    A fundamental principle of the USACE nationwide permit program is 
that it is available only to activities that will have minimal impacts 
both individually and cumulatively. The concept of a general permit for 
incidental take of eagles could, in theory, similarly apply only to 
situations with minimal potential adverse effects on eagle populations, 
individually and cumulatively. Unlike wetland acreage lost under a 
USACE nationwide permit which can be monitored once to assess loss, 
obtaining a reasonably accurate estimate of eagle incidental take 
requires systematic monitoring of project impacts through-time. A 
challenge for adopting the general permit concept for eagle incidental 
take permits is the uncertainty over the actual effects of such 
permits, individually and cumulatively, on eagle populations.
    To reduce this level of uncertainty, the Service has required 
permitted facilities to implement monitoring protocols at a level 
sufficient to generate a reasonably reliable estimate of the actual 
take caused by the facility. To reduce the cost to industry as well as 
manage impacts to eagles (prior to accounting for offsetting mitigation 
measures), the Service could limit general permits to geographic areas 
with relatively lower numbers of eagles and require a reduced 
monitoring effort. Monitoring could be designed purely to detect 
whether eagle take is below a certain level, rather than to arrive at a 
reasonable estimate of the actual take level. We estimate the average 
monitoring burden to achieve this standard would be reduced by 50 
percent from current requirements. The Service has developed maps of 
relative abundance of both species of eagle across the coterminous 
United States using a variety of datasets (see Ruiz-Gutierrez et al., 
2021 and https://www.fws.gov/migratorybirds/pdf/management/Lowriskwebex.ppsx), These maps could serve as the basis for where 
general permits would be available. Comparing data from the U.S. 
Geological Survey wind-turbine database (Hoen et al. 2018), it appears 
that approximately 40 percent of existing wind-energy facilities would 
fall into areas the Service would consider low risk based on relative 
numbers of both species of eagles. We encourage feedback on the concept 
of a general permit that would be available in areas of relatively low 
eagle abundance and that would still include systematic monitoring, but 
at a reduced level, and whether companies would seek to obtain such 
permits. We also seek feedback on how a general permit would impact 
small businesses and whether it would result in cost savings compared 
to the current permit process. An alternative option would be to 
restrict general permits to projects seeking authorization only for 
take of bald eagles and not golden eagles. Available data indicate that 
bald-eagle populations are continuing to expand throughout their range. 
Therefore, a permitting scheme with some decrease in the level of 
certainty as to actual effects on bald eagles might be justified to 
reduce the burden on the regulated community. A significant 
complicating factor to consider, however, is the likelihood that a 
project authorized under a general permit to take bald eagles may also 
incidentally take golden eagles.
    Another concept for a streamlined general permit would be to 
eliminate systematic monitoring. Tracking eagle take would consist of 
permittees reporting all mortalities discovered opportunistically 
during normal operations and maintenance activities, but there would be 
no systematic fatality monitoring under a scientifically rigorous 
protocol. As described above, the take levels on these permits would 
need to be substantially higher than the level of take reported to 
account for the uncertainty regarding the actual take level of the 
permitted activity. We estimate that the probability of finding a dead 
eagle, if one has been killed, given the level of opportunistic 
monitoring at a typical wind energy facility, is approximately 10 to 15 
percent. Even at the higher end of this range, with a 15 percent 
probability of detecting a dead eagle, the opportunistic finding of one 
eagle over any time period would result in a fatality estimate of 
approximately 10 eagles, with an 80 percent uncertainty range (credible 
interval) of from 1 to 15 dead eagles. Cumulatively, over many such 
permitted facilities, the uncertainty regarding actual take would be 
compounded. For example, if the Service permitted 10 such separate 
facilities, each with one eagle fatality found over the first 5 years, 
we could only be relatively certain that actual fatalities at those 
projects combined did not exceed 150 eagles over the 5-year period.

[[Page 51097]]

This approach would introduce uncertainties into take estimates, 
requiring higher levels of authorized take, which would in turn 
necessitate more offsetting mitigation and affect overall take limits 
at the local area and EMU scales. Currently, the U.S. Fish and Wildlife 
Service has only approved retrofitting of power lines to avoid 
electrocution as a compensatory mitigation measure in permits that have 
been issued, and this form of mitigation can cost greater than $30,000 
per individual eagle replaced (Hosterman and Lane 2017).
    We welcome feedback on the topics described above and how some of 
the issues raised might be resolved. In addition, we would appreciate 
hearing from the public about other alternative proposals for how the 
Service could develop and administer a general permit program for 
incidental take of eagles that will, with reasonable certainty, protect 
eagles consistent with the Eagle Act.
    It is the policy of the Department of the Interior to recognize and 
fulfill its legal obligations to identify, protect, and conserve the 
trust resources of federally recognized Indian Tribes and Tribal 
members, and to consult with Tribes on a government-to-government basis 
whenever plans or actions affect Tribal trust resources, trust assets, 
or tribal health and safety. This policy draws from the President's 
memorandum of April 29, 1994, ``Government-to-Government Relations with 
Native American Tribal Governments'' (59 FR 22951), Executive Order 
13175 ``Consultation and Coordination with Indian Tribal Governments,'' 
and the Department of the Interior Manual at 512 DM 4. These documents 
confirm our trust responsibilities to Tribes, recognize that Tribes 
have sovereign authority to control Tribal lands, emphasize the 
importance of developing partnerships with Tribal governments, and 
direct the Services to consult with Tribes on a government-to-
government basis. Relative to our considerations for improving the 
permitting process for incidental take of eagles, we request comments 
that clarify appropriate consideration of Tribal sovereignty, including 
any agreements in which Tribes may choose to participate in 
consultation.
    5. We are seeking data to estimate the current industry costs on 
pre-application/pre-construction surveys for eagles, monitoring 
requirements of the permit itself, including paying for required third 
party monitors, and compensatory mitigation. We are seeking data on how 
costs will change if additional efficiencies are implemented. We are 
also requesting the submission of data regarding the number and type of 
small businesses affected, the scale and nature of economic effects in 
the current permitting process, and how costs would change for small 
businesses if additional efficiencies are implemented.

Literature Cited

Hoen, B.D., Diffendorfer, J.E., Rand, J.T., Kramer, L.A., Garrity, 
C.P., and Hunt, H.E., 2018, United States Wind Turbine Database 
(ver. 2.3, January 2020): U.S. Geological Survey, American Wind 
Energy Association, and Lawrence Berkeley National Laboratory data 
release, https://doi.org/10.5066/F7TX3DN0.
Hosterman, H., Lane, D., 2017. Proxies for the market value of bald 
and golden eagles: Final report (Contract Report to U.S. Fish and 
Wildlife Service No. F14PA000019). Abt Associates, Portland, OR.
Ruiz[hyphen]Gutierrez, V., E.R. Bjerre, M.C. Otto, G. S. Zimmerman, 
B.A. Millsap, D. Fink, E.F. Stuber, M. Strimas-Mackey, and O.J. 
Robinson. 2021. A pathway for citizen science data to inform policy: 
A case study using EBIRD data for defining low[hyphen]risk collision 
areas for wind energy development. Journal of Applied Ecology 
58:1104-1111.

Public Availability of Comments

    Written comments the Service receives become part of the public 
record associated with this action. Comments and materials we receive, 
as well as supporting documentation we used in preparing this document, 
will be available for public inspection on http://www.regulations.gov. 
Before including your address, phone number, email address, or other 
personal identifying information in your comment, you should be aware 
that the entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so. All submissions from organizations or businesses, and 
from individuals identifying themselves as representatives or officials 
of organizations or businesses, will be made available for public 
disclosure in their entirety.

Signing Authority

    The Assistant Secretary for Fish and Wildlife and Parks approved 
this document and authorized the undersigned to sign and submit the 
document to the Office of the Federal Register for publication 
electronically as an official document of the Department of the 
Interior. Shannon Estenoz, Assistant Secretary for Fish and Wildlife 
and Parks, approved this document on September 1, 2021, for 
publication.

Maureen D. Foster,
Chief of Staff, Office of the Assistant Secretary for Fish and Wildlife 
and Parks.
[FR Doc. 2021-19717 Filed 9-13-21; 8:45 am]
BILLING CODE 4333-15-P