USFWS Proposes General Permits for Wind and Powerline Projects That May Disturb Bald Eagles

In today’s Federal Register, the U.S. Fish and Wildlife Service (USFWS or Service) proposed the creation of general permits for bald and golden eagle incidental takes that would be available to qualifying wind energy generation projects and powerline infrastructure projects.

The USFWS manages bald eagles and golden eagles under the Bald and Golden Eagle Protection Act (Eagle Act), which prohibits the “taking” of bald or golden eagles or their nests without a permit. A “take” includes disturbing an eagle, which regulations define as “to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.”

Specific (individual) permits, which include conditions specific to the permitted project, are the current approach to permitting eagle take. While this approach will be maintained for projects that have high or uncertain risks to eagles, the USFWS believes a general permit approach is appropriate for activities that have relatively consistent and low effects on eagles and well-established avoidance, minimization, compensatory mitigation, monitoring, and other permit conditions where take may be authorized without a site-specific analysis.

For such activities, the USFWS has determined that the current permitting framework unnecessarily places an administrative burden on the public that is not commensurate with what is required to effectively preserve bald eagles. The Service proposes using general permits for the following activities:

1. Incidental take for permitting wind energy (proposed § 22.250)
2. Incidental take for permitting powerlines (proposed § 22.260)
3. Certain categories of disturbance take (proposed § 22.280)
4. Certain categories of nest take (proposed § 22.300)

USFWS review would not be required prior to obtaining a general permit. Instead, general permit applicants would self-identify eligibility and register with the Service, and certify that they meet eligibility criteria and will implement (non-negotiable) permit conditions and reporting requirements. General permit conditions would include a requirement that pole infrastructure be electrocution safe, for example. The USFWS intends to conduct annual audits for a small percentage of all general permits to ensure applicants are appropriately interpreting and applying eligibility criteria. As with specific permits, general permits authorizing eagle take require compliance with the Eagle Act’s preservation standard but reduce the administrative burden in obtaining a permit.

Comments on the proposed rule are due by November 29, 2022, and the Service is specifically seeking information from utilities regarding timelines for maintenance/reconstruction of infrastructure and compensatory mitigation amounts, among other topics. Public information sessions via webinar will be held on October 20 at 12 pm and November 3 at 2 pm.

If you have any questions on the proposed rule or how it impacts your business, or would like assistance drafting comments, please contact Pierce Atwood environmental attorneys Lisa Gilbreath  (207.791.1397) or Georgia Bolduc (207.791.1249).