[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