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February 12, 2024

USFWS Introduces General Permit for Bald and Golden Eagle Incidental Take

On February 12, 2024, the US Fish and Wildlife Service (USFWS) issued a final rule establishing incidental take general permit requirements under the federal Bald and Golden Eagle Protection Act for qualifying wind energy generation projects, power lines, and other activities that disturb bald eagles and bald eagle nests. A “take” of bald or golden eagles is prohibited under the act absent permit authorization.

Qualifying wind projects include new projects with turbines that are at least two miles from a golden eagle nest and 660 feet from a bald eagle nest and that satisfy seasonal relative abundance value criteria. Existing projects may also be eligible under the general permit program through a letter of authorization. However, projects are not eligible or lose future eligibility for general permit coverage if four or more eagle fatalities or injuries are discovered during the term of the general permit. 

General permits are also available for qualifying transmission line projects and for activities that disturb bald eagles or bald eagle nests. General permit conditions for power lines include both reactive and proactive avian-safe infrastructure retrofits with a requirement for a certain percentage of replacement over the term of each permit. New builds and rebuilds in areas of high eagle risk must also utilize avian-safe equipment.

Activities eligible for a disturbance take of bald eagles include: 

  • Building construction and maintenance 
  • Linear infrastructure construction and maintenance
  • Shoreline alterations 
  • Vegetation management
  • Motorized and nonmotorized recreation 
  • Aircraft operation
  • Prescribed burns 
  • Loud noises, such as blasting 

A bald eagle nest may be removed under a general permit where there is a safety emergency for humans or eagles, for public health, and where a nest creates a functional hazard or interferes with the operation of a human-engineered structure.

General permittees must develop and implement avoidance and adaptive management measures to prevent and mitigate the take of eagles and may be required to obtain conservation bank or in-lieu fee program eagle credits. General permits will be issued only to a single permit holder even on jointly owned projects, where one applicant will have to assume legal liability for any other entities under the permit. General permits have a maximum term of five years.

Projects not eligible for a general permit may obtain a specific permit, which includes additional requirements, such as the potential for permittee-implemented compensatory mitigation. Specific permits are also necessary if an applicant wishes to combine activities that are not readily identifiable as being part of the same project under a consolidated permit. Specific permits have a maximum term of 30 years.

If you have any questions regarding the content of this alert, please contact Tom Paul, partner, at tpaul@barclaydamon.com, or another member of the firm’s Regulatory or Environmental Practice Areas or Energy Team. 
 

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