Eagle Take Proposed Rule

Vol. 81

Friday,

No. 88

May 6, 2016

Part IV

Department of the Interior

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Fish and Wildlife Service
50 CFR Parts 13 and 22
Eagle Permits; Revisions to Regulations for Eagle Incidental Take and
Take of Eagle Nests; Proposed Rule

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Federal Register / Vol. 81, No. 88 / Friday, May 6, 2016 / Proposed Rules

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
[Docket No. FWS–R9–MB–2011–0094;
FF09M20300–167–FXMB123109EAGLE]
RIN 1018–AY30

Eagle Permits; Revisions to
Regulations for Eagle Incidental Take
and Take of Eagle Nests
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:

We, the U.S. Fish and
Wildlife Service, propose revisions to
the eagle nonpurposeful take permit
regulations and eagle nest take
regulations that we promulgated in
2009. Proposed revisions include the
following: Changes to permit issuance
criteria and duration; definitions;
compensatory mitigation standards;
criteria for eagle nest removal permits;
permit application requirements; and
fees. The revisions are intended to add
clarity to the eagle permit regulations,
improve their implementation, and
increase compliance, while providing
strong protection for eagles.
DATES: You may submit comments on
the proposed rule until July 5, 2016. The
Environmental Protection Agency will
soon publish a notice in the Federal
Register with information on the
deadline for submitting comments on
the draft programmatic environmental
impact statement. Comments on the
information collection aspects of this
rule must be received on or before June
6, 2016.
ADDRESSES: Document Availability: A
draft programmatic environmental
impact statement (DPEIS) has been
prepared in conjunction with
preparation of this proposed rule. Both
the proposed rule and the DPEIS are
available at http://www.fws.gov/birds/
management/managed-species/eaglemanagement.php and also at
www.regulations.gov at Docket No.
FWS–R9–MB–2011–0094.
Comments on the Proposed Rule and
DPEIS: You may submit comments by
one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: http://
www.regulations.gov. In the Search box,
enter FWS–R9–MB–2011–0094, which
is the docket number for this
rulemaking. Then click on the Search
button. On the resulting page, you may
submit a comment by clicking on
‘‘Comment Now!’’
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments

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SUMMARY:

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Processing, Attn: FWS–R9–MB–2011–
0094; Division of Policy, Performance,
and Management Programs; U.S. Fish
and Wildlife Service, MS: BPHC; 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
Comments on the Information
Collection Aspects of the Proposed Rule:
You may review the Information
Collection Request online at http://
www.reginfo.gov. Follow the
instructions to review Department of the
Interior collections under review by
OMB. Send comments (identified by
1018–AY30) specific to the information
collection aspects of this proposed rule
to both the:
• Desk Officer for the Department of
the Interior at OMB–OIRA at (202) 295–
5806 (fax) or OIRA_Submission@
omb.eop.gov (email); and
• Service Information Collection
Clearance Officer; Division of Policy,
Performance, and Management
Programs; U.S. Fish and Wildlife
Service, MS: BPHC; 5275 Leesburg Pike;
Falls Church, VA 22041–3803 (mail); or
[email protected] (email).
See Public Comments under
SUPPLEMENTARY INFORMATION for more
information regarding submission of
comments.
FOR FURTHER INFORMATION CONTACT:

Eliza Savage, 703–358–2329 or eliza_
[email protected].
SUPPLEMENTARY INFORMATION:
Executive Summary
The U.S. Fish and Wildlife Service
proposes revisions to our regulations
regarding the issuance of permits for
certain activities involving eagles. We
promulgated regulations covering
authorization of nonpurposeful
(incidental) take of eagles and take of
eagle nests in 2009. Revisions to these
permit regulations are needed to create
a permitting framework that is more
conducive to consistent administration
by the Service and public compliance.
Our goal is also to enhance protection
of eagles throughout their ranges
through implementation of avoidance
and minimization of, and compensatory
mitigation for, adverse impacts from
otherwise lawful activities. The
regulations are primarily codified in
part 22 of title 50 of the Code of Federal
Regulations.
The Service proposes a modified
definition of the Eagle Act’s
‘‘Preservation Standard,’’ which
requires that permitted take be
compatible with the preservation of
eagles. We also propose to remove the
distinction between standard and
programmatic permits, codify
standardized mitigation requirements

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that comport with the Service’s draft
mitigation policy, and extend the
maximum permit duration for eagle
incidental take permits (50 CFR 22.26).
These proposed regulations also present
a number of additional revisions to the
eagle incidental take and eagle nest take
regulations at 50 CFR 22.27, as well as
revisions to the permit fee schedule at
50 CFR 13.11; new and revised
definitions in 50 CFR 22.3; revisions to
50 CFR 22.25 (permits for golden eagle
nest take for resource development and
recovery operations) for consistency
with the § 22.27 nest take permits; and
two provisions that apply to all eagle
permit types (50 CFR 22.4 and 22.11).
Background
The Bald and Golden Eagle Protection
Act (Eagle Act or BGEPA) (16 U.S.C.
668–668d) prohibits take of bald eagles
and golden eagles except pursuant to
Federal regulations. The Eagle Act
allows the Secretary of the Interior to
issue regulations to authorize the
‘‘taking’’ of eagles for various purposes,
including the protection of ‘‘other
interests in any particular locality’’ (16
U.S.C. 668a). In 2009, the Service
promulgated regulations at 50 CFR part
22 that established two new permit
types for take of eagles and eagle nests
(50 FR 46836, September 11, 2009)
(Eagle Permit Rule). One permit
authorizes, under limited
circumstances, the take (removal,
relocation, or destruction) of eagle nests
(50 CFR 22.27). The other permit type
authorizes nonpurposeful take
(disturbance, injury, or killing) of eagles
(50 CFR 22.26) where the take is
incidental to an otherwise lawful
activity. These regulations currently
provide for standard permits, which
authorize individual instances of take
that cannot practicably be avoided, and
programmatic permits, which authorize
recurring take that is unavoidable even
after implementation of advanced
conservation practices.
The Eagle Act requires the Service to
determine that any take of eagles the
Service authorizes is ‘‘compatible with
the preservation of bald eagles or golden
eagles.’’ We refer to this clause as the
Eagle Act preservation standard. The
preservation standard underpins the
Service’s management objectives for
eagles. In the preamble to the final 2009
regulations for eagle nonpurposeful take
permits, and in the final environmental
assessment (FEA) of the regulations, the
Service defined the preservation
standard to mean ‘‘consistent with the
goal of maintaining stable or increasing
breeding populations’’ (74 FR 46838,
September 11, 2009).

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Federal Register / Vol. 81, No. 88 / Friday, May 6, 2016 / Proposed Rules
On April 13, 2012, the Service
initiated two additional rulemakings: (1)
A proposed rule to extend the maximum
permit tenure for programmatic eagle
nonpurposeful take permit regulations
from 5 to 30 years, among other changes
(‘‘Duration Rule’’) (77 FR 22267), and (2)
an advance notice of proposed
rulemaking (ANPR) soliciting input on
all aspects of those eagle nonpurposeful
take regulations (77 FR 22278).
The ANPR highlighted three main
issues for public comment: Our overall
eagle population management
objectives; compensatory mitigation
required under permits; and the
nonpurposeful take programmatic
permit issuance criteria. As a next step,
the Service issued a notice of intent to
prepare an environmental assessment
(EA) or environmental impact statement
(EIS) pursuant to the National
Environmental Policy Act (NEPA) (42
U.S.C. 4321 et seq.) (79 FR 35564, June
23, 2014). The Service then held five
public scoping meetings between July
22 and August 7, 2014.
The Duration Rule was finalized on
December 9, 2013 (78 FR 73704).
However, it was the subject of a legal
challenge, and on August 11, 2015, the
U.S. District Court for the Northern
District of California vacated the
provisions that extended the maximum
programmatic permit tenure to 30 years.
Shearwater v. Ashe, No. CV02830–LHK
(N.D. Cal., Aug. 11, 2015). The court
held that the Service should have
prepared an EA or EIS rather than apply
a categorical exclusion under NEPA.
The effect of the ruling was to return the
maximum programmatic permit term to
5 years.
The Service has prepared a draft
programmatic environmental impact
statement (DPEIS) to analyze eagle
management objectives and these
proposed revisions to the 2009 eagle
permit regulations. The draft DPEIS is
available on the Service’s Web site at:
http://www.fws.gov/birds/management/
managed-species/eaglemanagement.php and also at:
www.regulations.gov at Docket No.
FWS–R9–MB–2011–0094.
Bald eagle populations have
continued to increase throughout the
United States, increasing the potential
need for permits for activities that may
disturb, injure, or kill bald eagles. There
has also been significant expansion
within many sectors of the U.S. energy
industry, particularly wind energy
operations, and much more interest in
permitting new long-term operations
than was anticipated when the 2009
regulations were promulgated. At the
same time, golden eagle populations are
potentially declining, heightening the

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challenge of permitting incidental take
of this species for otherwise lawful
activities. The 2009 permit regulations
do not provide an optimal framework
for authorizing incidental take under
these circumstances. There is a general
perception that the current permitting
framework does not provide enough
flexibility to issue eagle take permits in
a timely manner. Indeed, few
programmatic permits have been issued
to date. When projects go forward
without permit authorization, the
opportunity to obtain benefits to eagles
in the form of required conservation
measures is lost and project operators
put themselves at risk of violating the
law.
Under the current management
approach, established with the 2009
eagle permit regulations and FEA,
permitted take of bald eagles is capped
at 5 percent of estimated annual
productivity (i.e., successful
reproduction) of the population.
Because the Service lacked data in 2009
to show that golden eagle populations
could sustain any additional
unmitigated mortality, the Service set
take limits for that species at zero. This
decision has meant that any new
authorized take of golden eagles must be
at least equally offset by compensatory
mitigation (specific conservation actions
to replace or offset project-induced
losses by reducing take elsewhere).
In the FEA for the 2009 regulations
and in the preamble to those
regulations, the Service adopted a
policy of not issuing take permits for
golden eagles east of the 100th
meridian. At the time, the Service
determined there were not sufficient
data to ensure that golden eagle
populations were stable or increasing
such that permitting take would not
result in a decline in breeding pairs in
this region. However, after further
analysis, the Service has determined
that some take can be permitted with
implementation of offsetting mitigation.
Rather than providing an increased level
of protection for golden eagles, this
policy has meant that activities that take
golden eagles in the east continue to
proliferate without implementation of
conservation measures and mitigation to
address impacts to golden eagles that
would be required as the result of the
permitting process.
Since 2009, Service and U.S.
Geological Survey (USGS) scientists
have undertaken considerable research
and monitoring to improve the Service’s
ability to track compliance with eagle
management objectives and reduce
uncertainty. Of particular significance,
the Service has updated population
estimates for both species of eagle and

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quantified uncertainty in those
estimates. For the bald eagle, the Service
now estimates substantially higher
populations than was estimated in 2009,
and allowable take limits will likely
increase considerably across most of the
country as a result (see further
discussion below under Status of Eagle
Populations).
For golden eagles, recent research
indicates that the population in the
coterminous western United States
might be declining towards a lower
equilibrium size. Additionally, the
Service now has a much better
understanding of the seasonal, annual,
and age-related movement patterns of
golden eagles. These data will be
incorporated into an updated
management framework.
In implementing the 2009 permit
regulations, the Service has identified
several provisions that could be
improved for the benefit of both eagles
and people, including the regulated
community. One issue that has
hampered efficient permit
administration (of both eagle
nonpurposeful take permits and eagle
nest take permits) is the difficulty
inherent in applying the standard that
take must be reduced to the point where
it is unavoidable, which the current
regulations require for programmatic
permits. Additionally, a lack of
specificity in the regulations as to when
compensatory mitigation is required can
lead to inconsistencies in what is
required of permittees.
The 5-year maximum duration for
programmatic permits appears to be a
primary factor discouraging many
project proponents from seeking eagle
take permits. Many activities that
incidentally take eagles due to ongoing
operations have lifetimes that far exceed
5 years. We need to issue permits that
align better, both in duration and the
scale of conservation measures, with the
longer term duration of industrial
activities, such as electricity
distribution and energy production.
Extending the maximum permit
duration is consistent with other
Federal permitting for development and
infrastructure projects.
The Service undertook the 2012
ANPR, 2014 notice of intent and
scoping meetings, and the DPEIS to
improve the Service’s permitting and
conservation framework for eagles by
addressing the problems noted above,
among other issues. Moreover, since
2009, when the permits first became
available, new developments, changing
circumstances, and new information
must be analyzed and incorporated into
the Service’s management objectives for
eagles.

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NEPA Scoping Process
The purpose of scoping is to provide
interested agencies, stakeholder
organizations, Native American tribes,
and the public an opportunity to
provide comments regarding potentially
significant environmental issues and the
scope of the environmental analysis,
including alternatives, and help to
inform the eagle management program
and the Service decision to prepare
either an EA or an EIS. Service staff
implementing the 2009 eagle permit
regulations identified a number of
priority issues for evaluation during this
scoping process, including the
following: Eagle population
management objectives; programmatic
permit conditions; compensatory
mitigation; and criteria for nest removal
permits.
Five public scoping meetings were
held in Sacramento, Minneapolis,
Albuquerque, Denver, and Washington,
DC, between July 22, 2014, and August
7, 2014. Representatives from the
Service were available to answer
participants’ questions and listen to
their ideas and concerns.
Approximately 213 people attended the
meetings, and all were encouraged to
submit written comments.
The Service also set up a Web site,
http://www.eaglescoping.org, to serve as
a ‘‘virtual meeting,’’ where visitors
could view the same information that
was presented at the public meetings,
including the overview video
presentation and informational displays.
Links to the Service email for public
comments were included on the site.
We received a total of 536 comments
during the public comment period.
Upon removal of duplicates, there were
a total of 517 unique comments, of
which many included additional
attachments (e.g., scanned letters, one
picture, and supporting documents). In
addition to the comments received, two
organizations provided spreadsheets
with additional comments. First, the
Friends of Blackwater provided a
spreadsheet of 46 supporters of their
comment. Secondly, the National
Audubon Society provided a
spreadsheet of 25,349 comments in
support of their comment and 2,064
personalized comments. All comments
were reviewed and considered.
Status of Eagle Populations
The Service is proposing to modify
current management objectives for
eagles established with the 2009 eagle
permit regulations and FEA of the
regulatory permitting system under the
Eagle Act. Management objectives direct
strategic management and monitoring

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actions and, ultimately, determine what
level of permitted eagle take can be
allowed. The Service recently
completed a status report on bald and
golden eagles: ‘‘Bald and Golden Eagles:
Status, trends, and estimation of
sustainable take rates in the United
States’’ (‘‘Status Report’’) (USFWS,
2016). The Status Report is available at:
http://www.fws.gov/birds/management/
managed-species/eaglemanagement.php. It estimates
population sizes, productivity, and
survival rates for both species;
irdsanalyzes the effects of unauthorized
take of golden eagles; provides
recommended take limits for both
species and metrics for converting take
in the form of disturbance to debits from
the take limits; analyzes the cumulative
effects of permitting take of up to 5% of
local area populations (the population
in the vicinity of a particular project or
activity); and recommends a schedule of
population surveys to regularly update
population size estimates for both
species. The Status Report is essentially
a compilation of the most current
research on the population status and
trends of bald and golden eagles and as
such serves as the biological basis for
the revised regulatory management
framework we are proposing in these
regulation revisions and the preferred
alternative in the DPEIS. The following
discussion pertaining to the status of
bald and golden eagle populations
summarizes some of the information
provided and explained in more detail
in the Status Report, available at http://
www.fws.gov/birds/management/
managed-species/eaglemanagement.php.
The Service has estimated the
population size for the bald eagle in the
coterminous United States using a
population model in conjunction with
estimates of the number of occupied
nesting territories in 2009. That
population size estimate is 72,434, and
when combined with a previous
estimate of population size for Alaska
(70,544) is 143,000. We derive our
conservative estimate for the population
size by using the 20th quantile of the
population size estimate distribution
(the 20th quantile is the point on the
probability distribution where there is
only a 20% chance of the estimate being
lower than the true population size).
The 20th quantile represented 126,000
bald eagles for the United States in
2009. This number represents an
increase from our population size
estimate for the coterminous United
States in 2007 (the year data were
gathered to support delisting under the
Endangered Species Act), which was

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69,000. We attribute the difference to
improved monitoring and estimation
efforts, as well as increases in bald eagle
numbers. Both the population model
and Breeding Bird Survey (BBS)
estimates indicate bald eagle
populations are continuing to increase
throughout the coterminous United
States.
We estimated future bald eagle
populations using a conservative
assumption that the number of suitable
bald eagle nesting territories will not
increase above the 2009 estimate. Given
limitations of the data on Alaskan eagles
and evidence from the BBS that bald
eagle populations are growing more
slowly there, we did not model
projections for Alaska and assumed that
Alaska’s bald eagle population will
remain stable (though demographic
rates suggested continued growth is
possible). With these constraints, our
model forecasts that the number of bald
eagles in the coterminous United States
outside the Southwest will continue to
increase until populations reach an
equilibrium at about 228,000 (20th
quantile = 197,000) individuals. The
model predicts that bald eagles in the
Southwest will also continue to increase
from the 2009 population estimate of
650 until reaching an equilibrium at
about 1,800 (20th quantile = 1,400)
individuals. Again, these numbers are
based on assumptions that underlying
demographic rates and other
environmental factors remain
unchanged, and the predictions do not
take into account forecasted changes in
climate nor how such changes may
affect bald eagle population vital rates
and population size. These projections
also assume food and other factors will
not become limiting.
We estimated the total population size
for the golden eagle in the coterminous
United States and Alaska was 39,000
(20th quantile = 34,000) in 2009 and
40,000 (20th quantile = 34,000) in 2014.
However, although the golden eagle
population trend estimate based on
current surveys was stable, an estimate
from a population model similar to that
used for the bald eagle suggested the
population in the western United States
might be declining towards a lower
equilibrium size of about 26,000
individuals.
Using unbiased cause-of-mortality
data for a sample of 386 satellite-tagged
golden eagles in the period 1997–2013,
the Service estimated contemporary agespecific survival rates with and without
current levels of anthropogenic
mortality. Anthropogenic factors were
responsible for about 56% of satellitetagged golden eagle mortality, with the
highest rates of anthropogenic mortality

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among adults (63%). We estimated the
maximum rate of population growth for
the golden eagle in the coterminous
United States in the absence of existing
anthropogenic mortality was 10.9%
(20th quantile = 9.7%). Sustainable take
under these conditions is 2,000
individuals (20th quantile = 1,600). The
available information suggests ongoing
levels of human-caused mortality likely
exceed this value, perhaps considerably.
This information supports the finding
from the population model that golden
eagle populations may be declining to a
new, lower level.
For much more detailed information
about the current population status and
trends, see the Status Report available
at: http://www.fws.gov/birds/
management/managed-species/eaglemanagement.php.

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Description of the Rulemaking
Preservation Standard
The Eagle Act requires that any
authorized take of eagles be ‘‘compatible
with the preservation’’ of bald eagles
and golden eagles. We defined this
preservation standard in the preamble to
the 2009 regulations to mean
‘‘consistent with the goal of maintaining
stable or increasing breeding
populations.’’ The Service now
proposes to modify that standard and
incorporate it into the regulations to
mean ‘‘consistent with the goals of
maintaining stable or increasing
breeding populations in all eagle
management units and persistence of
local populations throughout the
geographic range of both species.’’ The
timeframe the Service used for modeling
and assessing eagle population
demographics is over the next 100 years
(at least eight generations) for both eagle
species relative to the 2009 baseline.
This objective is consistent with
Presidential, Department of the Interior,
and Fish and Wildlife Service
mitigation policies that aim to achieve
a net benefit, or at a minimum, no net
loss, of natural resources. (See the
Service’s mitigation policy (501 FW 2),
Secretary’s Order 3330, entitled
‘‘Improving Mitigation Policies and
Practices of the Department of the
Interior’’ (October 31, 2013), the
Departmental Manual Chapter on
Implementing Mitigation at the
Landscape-scale (600 DM 6 (October 23,
2015)), and the Presidential
Memorandum on Mitigating Impacts on
Natural Resources from Development
and Encouraging Related Private
Investment (November 3, 2015)).
The Service considered adoption of a
purely qualitative preservation standard
such as ‘‘to not meaningfully impair the

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bald or golden eagle’s continued
existence.’’ However, a qualitative
approach alone contains no standards
for assessment, which could lead to
inconsistent implementation between
Service regions. Inconsistent
implementation across Regions is a
bigger concern with eagles than for
many ESA-listed species because the
range of both bald and golden eagles
extends throughout the continental
United States. Additional drawbacks to
adopting a qualitative approach are that
it is less compatible with formal
adaptive management and does not
provide a mechanism to assess
cumulative impacts. Also, considerable
quantitative information is available on
eagle populations unlike many ESAlisted species, and to ignore these data
or to independently reassess them for
each permit is inconsistent with the
Service’s commitment to use the best
available information and practice the
best science. For these reasons, the
Service has elected not to adopt a
qualitative preservation standard.
We propose to largely retain the
quantitative approach we have used
since 2009 because it is explicit, allows
less room for interpretation, and can be
consistently implemented across the
country and across the types of
activities that require permits. Our
proposed approach, including the
underlying population model, is
consistent with other wildlife
management programs, including the
North American Waterfowl Management
Plan and management of marine
mammals under the Marine Mammal
Protection Act.
Our proposed modified preservation
standard—‘‘consistent with the goals of
maintaining stable or increasing
breeding populations in all eagle
management units, and persistence of
local populations throughout the
geographic range of both species’’—
seeks to ensure the persistence of bald
and golden eagle populations over the
long term with sufficient distribution to
be resilient and adaptable to
environmental conditions, stressors, and
likely future altered environments. To
implement that objective in a consistent,
analytical, scientifically supportable
manner, these key terms mean:
‘‘Population’’ means eagle management
unit (EMU); ‘‘persist’’ means stable with
2009 as the baseline; ‘‘long-term’’ means
100 years; and ‘‘sufficient distribution’’
means avoiding the extirpation of local
area populations (LAPs) by limiting
Service-authorized take rates to less
than or equal to 5% of each LAP (see
discussion below). We have estimated
that an EMU population that meets
these criteria has an approximately 50%

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(in the liberal DPEIS alternatives) or
80% (in the conservative DPEIS
alternatives) likelihood of being
‘‘resilient and adaptable to
environmental conditions and stressors
and likely future environments’’ under
the take rates analyzed, and assuming
other conditions remain as they were
over the time period the biological data
used in the models were gathered.
The above criteria are used to
populate national-, EMU-, and LAPscale population models that allow the
Service to determine take limits that are
compatible with the preservation of
eagles in this rule and associated DPEIS.
In defining the eagle preservation
standard in this way, and analyzing the
effects of take within those take limits
in the DPEIS, the analytical burden for
each permit decision is greatly reduced,
allowing the Service to make informed
permitting decisions at an expedited
rate.
The regulation revisions we are
proposing are based on the amended
definition of the preservation standard
and the adoption of a relatively
conservative approach to estimating
population values and sustainable take
rates based on the best available data
and the Service’s level of risk tolerance
in the face of uncertainty. This
relatively conservative approach is
described below, and also in much more
detail, along with alternative
approaches and the scientific and
technical information that underpins
their analyses in the Status Report and
the draft DPEIS.
We estimate there are about 143,000
bald eagles in the United States
(including Alaska), and that populations
continue to increase. Given their
continued population growth above the
2009 baseline, there is considerable
capacity to sustain take of bald eagles.
Under our proposed management
approach, the annual take limit would
be 4,200 bald eagles nationwide. This
compares to a take limit of 1,103
established in 2009.
We estimate golden eagles currently
number about 40,000 individuals in the
United States (including Alaska), and
populations have been relatively stable
around that size since the mid-1960s.
We estimate the carrying capacity of
golden eagles nationwide to be 73,000.
We also have data indicating that
population size is limited by high levels
of anthropogenic mortality (i.e.,
populations could be larger were it not
for ongoing high levels of unpermitted
take), and that adding additional
mortality will likely cause populations
to decline to a lower level. As a
consequence, there is no opportunity for
authorizing additional unmitigated take

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of this species without changing the
population objective to a level lower
than the 2009 baseline. Under our
proposed management framework, we
would operate under the conservative
assumption that there is no sustainable
take, and take limits would be zero,
without compensatory mitigation to
offset the take. However, even using the
median values, rather than the 20th
quantile used in our preferred,
conservative approach, take of golden
eagles nationwide would still be set at
zero, unless the take is offset by
compensatory mitigation.
We are considering realigning EMUs
to better reflect regional populations
and migration patterns of both species.
The Service and its partner agencies
manage for migratory birds based on
specific migratory route paths within
North America (Atlantic, Mississippi,
Central, and Pacific). Based on those
route paths, State and Federal agencies
developed the four administrative
flyways that administer migratory bird
resources. Both bald and golden eagles
move over great distances seasonally
and across years. There is a welldescribed annual seasonal migration of
both species of eagles from northern
regions southward in winter. An annual
northward migration of bald eagles from
southern regions is well-documented,
and a similar northward migration of
golden eagles that winter in southern
regions has been recently discovered.
The adoption of the administrative
flyways as EMUs would better address
geographic patterns of risk given the
seasonal movement patterns of both
species.
We propose to use the flyways as the
EMUs for both species—with some
modifications. Banding data recovery
records indicate that banded eagles of
both species were recovered more
frequently in the same flyway EMU than
in the same 2009 EMU. Given the
relatively small size of the eastern
golden eagle population and uncertainty
about the distribution of that population
across the two eastern flyways, we are
proposing to combine the Mississippi
and Atlantic Flyways into one
management unit for golden eagles. For
bald eagles, data indicate the Pacific
Flyway should be split into three
management units: Alaska, Pacific
flyway north of 40 degrees N latitude to
the Canadian border, and Pacific flyway
south of 40 degrees N latitude to the
Mexican border. See the draft DPEIS for
maps of the current and proposed
EMUs.
To monitor eagle populations in the
future and assess whether different take
thresholds are appropriate, our plan,
assuming we have sufficient

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appropriated funding, is to conduct
surveys on a 6-year rotation: One set of
paired summer–winter golden eagle
surveys in the first and second and
fourth and fifth years of each assessment
period, and to conduct bald eagle
surveys in years three and six.
Because the flyway management scale
is larger than the EMUs currently in use,
EMU take limits would also increase
(for bald eagles; golden eagle take limits
would be zero in all management units,
unless offset), with the result that
adoption of the flyways as EMUs could
be less protective of eagle populations at
more local scales. These proposed
regulations include two provisions
designed to increase protection of eagles
at more local scales. First, as noted
earlier, we propose to modify the
preservation standard of the Eagle Act to
include the goal of maintaining the
persistence of local populations
throughout the geographic range of both
species. Also, we are proposing to
codify this new definition in the
regulations at 50 CFR 22.3. The
definition would read: ‘‘Compatible
with the preservation of the bald eagle
or the golden eagle’’ means ‘‘consistent
with the goals of maintaining stable or
increasing breeding populations in all
eagle management units, and
persistence of local populations
throughout the geographic range of both
species.’’
In addition to codifying that modified
definition for the preservation standard,
these proposed regulations would also
enhance protection of eagles at the local
scale by incorporating a local area
population (LAP) cumulative effects
analysis into the permit issuance
criteria. Currently, the LAP analysis is
contained in a guidance document
(Appendix F of the Eagle Conservation
Plan Guidance, Module 1—Land-based
Wind Energy (ECPG) (USFWS, 2013).
The LAP analysis involves compiling
information on permitted anthropogenic
mortality of eagles within a specified
distance (derived from each eagle
species’ natal dispersal distance) of the
permitted activities’ boundary. If
permitted eagle take exceeds 1% of the
estimated population size of either
species within the LAP area, additional
take is of concern. If take exceeds 5%
of the estimated population size within
the LAP area, additional take is
considered inadvisable unless the
permitted activity will actually result in
a lowering of take levels (e.g., permitting
a repowered wind project that, in its
repowered form, will take fewer eagles
than before repowering).
The numerical size of the LAP is
derived by expanding estimated eagle
density at the eagle management unit

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scale, as set in the 2009 Final
Environmental Assessment on the Eagle
Take Rule, by the size of the LAP area.
We acknowledge that this approach is
somewhat simplistic for at least two
reasons. First, as described previously,
the eagle density estimates come from
nesting or late-summer population
surveys and do not account for seasonal
influxes of eagles that occur through
migration and dispersal. Second, this
approach assumes that eagle density is
uniform across the EMU, which is not
the case. In most cases the first
simplification leads to an underestimate
of true density, particularly in core
wintering areas during the non-breeding
months, and as such serves as an added
buffer against overharvest of local
nesting eagles. Assuming uniform
density leads to greater relative
protection of areas with higher than
average eagle density within an EMU,
and less relative protection in areas of
lower density. Ideally, over time and
with better information on resource
selection and factors accounting for
variation in density, as well as
improved knowledge of seasonal
changes in eagle density and
population-specific movement patterns,
the LAP analysis can be improved to
more realistically account for the true
LAP impacted by projects under
consideration. For now, however, LAP
take thresholds allow the Service to
authorize limited take of eagles while
favoring eagle conservation in the face
of the uncertainty.
Since publication of the ECPG, the
Service has updated natal dispersal
distances (the linear distance between a
bird’s location of origin and its first
breeding or potential breeding location)
for both eagle species that are used to
calculate LAPs. Those distances are
currently 86 miles for bald eagles or 109
miles for golden eagles. These could
change if additional data indicate the
need for adjustment. The LAP
cumulative effects analysis is described
in more detail in the Status Report.
Currently the LAP cumulative effects
analysis is used as guidance. Under
these proposed regulations, the LAP
analysis would be required as part of
our review of each permit application.
In order to issue a permit we must find
that cumulative authorized take does
not exceed 5% of the LAP, or we must
demonstrate why allowing take to
exceed that limit is still compatible with
the preservation of eagles. One situation
where we may issue a permit that would
result in authorized take above 5% of
the LAP is if a project is already in
operation and the permit conditions
would result in a reduction of take or
compensatory mitigation that offsets

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impacts to eagles within the LAP.
Unpermitted levels of eagle take within
the LAP, if known, would also be
considered in assessing the potential
effects of the permit on the LAP.
Incorporation of the LAP 5% limit on
authorized take into the regulations
would facilitate individual permit
decisions; instead of needing to evaluate
under an independent NEPA analysis
each project in the context of other
authorized take within the LAP, along
with the level of unauthorized take—
which is difficult or impossible to
precisely determine—we will have
already analyzed the effects of
authorizing take of up to 5% of the LAP
in the draft DPEIS for these proposed
regulations, along with a qualitative
analysis of unauthorized take, and
determined that it is compatible with
the preservation of eagles.
The primary aim of requiring this LAP
analysis is to prevent significant
declines in, or extirpation of, local
nesting populations. However, there is
also increasing evidence of a strong
tendency in both species of eagle to
return to non-breeding areas (wintering
areas, migration routes, and staging
areas) (McIntyre et al. 2008, Mojica et al.
2008). The LAP take limits also provide
protection from permitting cumulatively
high levels of take of these eagles that
winter or migrate through the LAP area.
The take authorized within the LAP
take limits is in addition to an average
background rate of anthropogenic
mortality (ongoing human-caused eagle
mortality, most of which is not currently
permitted.) For golden eagles,
background anthropogenic mortality is
about 10% (see the Status Report). Thus,
total anthropogenic mortality for a LAP
experiencing the maximum permitted
take rate of 5% averages about 15%. We
do not have similar mortality
information for bald eagles. While we
do not know exactly what level of
unauthorized anthropogenic take of bald
eagles is occurring, we are reasonably
certain that the take we authorize for
bald eagles would also be over and
above a level of preexisting ongoing
unpermitted take. The level of ongoing
unauthorized take of bald eagles may be
similar to that of golden eagles;
however, bald eagles have a maximum
potential growth rate about twice that of
golden eagles and thus are more
resilient to take. As part of the LAP
analysis for both species, Service
biologists would consider any available
information on unpermitted take
occurring within the LAP area; evidence
of excessive unpermitted take would be
taken into consideration in evaluating
whether to issue the permit.

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The Service considered developing
specific eagle population size goals
(other than the 2009 baseline) for each
EMU and then using those targets to
inform permit decisions within the
EMUs. However, that approach is not
feasible at this time given the technical
and logistical complexities of working
with State agencies and tribes to set
population objectives at this scale
within the timeframe of this action and
the lack of fine-scale information on
eagle populations that would be
necessary.
Nonpurposeful (Incidental) Take
Permits (50 CFR 22.26)
The Service proposes to change the
name of what we have been calling
‘‘nonpurposeful take permits’’ to
‘‘incidental take permits.’’ Incidental
take is what § 22.26 permits authorize.
We originally called them
‘‘nonpurposeful take’’ permits in order
to avoid confusion with incidental take
permits issued under the ESA for
threatened and endangered species.
However, we believe the term
‘‘nonpurposeful’’ has also caused
confusion because it is not a commonly
used word. We now see advantage in
using the term ‘‘incidental’’ because the
meaning of that term is better
understood. Moreover, now that this
permit system is relatively well
established, the potential for confusion
with the ESA incidental take permit
system is much reduced. The change in
nomenclature does not in any way affect
the circumstances and manner in which
these permits will be issued.
We propose to reduce the types of
incidental take permits we can issue
under § 22.26 from two to one. There
would no longer be separate categories
for standard and programmatic permits.
Having two separate categories has
sometimes led to confusion. It is not
always possible to distinguish between
what should be authorized under a
programmatic versus a standard permit.
Also, the term ‘‘programmatic’’ in the
sense we have been using it is
sometimes misunderstood because it
differs from how ‘‘programmatic’’ has
been typically used in the regulatory
arena. ‘‘Programmatic’’ in the more
traditional sense means ‘‘following or
relating to a plan or program.’’ While we
anticipate sometimes issuing permits to
cover the effects of multiple activities
within a given program (such as a
military installation), our experience so
far is that the more complex requests for
permits we have had to date have been
for single, long-term activities that have
the potential to periodically take one or
more eagles over the life of the project.
To reduce confusion, we are proposing

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to eliminate the distinction between
standard and programmatic permits. All
§ 22.26 permits would be simply ‘‘eagle
incidental take permits’’ or just
‘‘incidental take permits.’’
Under the current (2009) regulations,
the Service issues programmatic permits
predicated on implementation of
advanced conservation practices (ACPs)
developed in coordination with the
Service. ACPs are defined as
scientifically supportable measures
approved by the Service that represent
the best available techniques to reduce
eagle disturbance and ongoing
mortalities to a level where remaining
take is unavoidable (50 CFR 22.3).
In contrast, applicants for standard
permits under the current regulations
must reduce potential take to a level
where it is ‘‘practicably unavoidable’’
(emphasis added). So, currently,
programmatic permit applicants have a
higher standard, at least theoretically. In
reality, the term ‘‘unavoidable’’ is more
ambiguous than it seems in theory; there
is no clear distinction in practice
between ‘‘practicably unavoidable’’ and
‘‘unavoidable.’’ We are proposing to
apply the ‘‘practicability standard’’ to
all § 22.26 permits.
We propose to revise the definition of
‘‘practicable’’ by adopting the definition
from the Service’s proposed mitigation
policy (see 81 FR 12379, March 8, 2016),
slightly modified for specific
application to eagle permits. The new
definition would read: ‘‘available and
capable of being done after taking into
consideration existing technology,
logistics, and cost in light of a
mitigation measure’s beneficial value to
eagles and the activity’s overall purpose,
scope, and scale.’’ This proposed
revised definition captures the essential
elements of the current definition, while
promoting a consistent approach to how
the Service applies compensatory
mitigation requirements.
Because the concept of ACPs is based
on reducing take to the point where it
is unavoidable—versus ‘‘practicably
unavoidable’’—and applied to the
category of programmatic permits, these
proposed regulations remove the
requirement for ACPs. As discussed
above, all permittees would be required
to avoid and minimize impacts to eagles
to the maximum degree practicable.
Although the ACP requirement would
be removed, the Service would require
potential permittees to implement all
practicable best management practices
and other measures and practices that
are reasonably likely to reduce eagle
take. Permit applicants that cannot
reduce or compensate for take to levels
that are compatible with eagle

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preservation will not qualify for a
permit.
We believe the 5-year maximum
permit term for permits is unnecessarily
burdensome for entities engaged in
long-term actions that have the potential
to incidentally take bald or golden
eagles over the lifetime of the activity.
It has had the unintended effect of
discouraging proponents of long-term
activities from applying for permits,
despite the risk of violating the statute.
With longer-term permits, the Service
has the ability to build more effective
adaptive management measures into the
permit conditions. This approach would
provide a degree of certainty to project
proponents because they would have a
greater understanding of what measures
may be required to remain compliant
with the terms and conditions of their
permits in the future. This increased
level of certainty allows companies to
plan accordingly by allocating resources
so they are available if needed to
implement additional conservation
measures to benefit eagles and maintain
their permit coverage.
Although killing, injuring, and other
forms of take of eagles are illegal
without a permit, the Service cannot
require any entity to apply for an eagle
take permit (except under legal
settlement agreements). Some project
proponents build and operate without
eagle take permits even in areas where
they are likely to take eagles. When such
building occurs, the opportunity to
achieve avoidance, minimization, and
other mitigation measures is lost. The
Service believes that permitting longterm activities that are likely to
incidentally take eagles, including
working with project proponents to
minimize the impacts and secure
compensatory mitigation, is far better
for eagle conservation than having
companies avoid the permitting process
altogether because they perceive the
process as overly onerous.
Under these proposed regulations, the
Service would evaluate each long-term
permit at no more than 5-year intervals.
These evaluations would reassess
fatality rates, effectiveness of measures
to reduce take, the appropriate level of
compensatory mitigation, and eagle
population status. Additional
commitments with regard to
conservation measures may be required
of long-term permittees based on the 5year permit evaluations. In 2013, when
the maximum term of programmatic
permits was extended from 5 to 30 years
(a change subsequently vacated by court
order in 2015), language was included
in the regulations limiting additional
conservation measures that could be
required of the permittee to those

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contemplated at the time the permit was
issued. However, that language was
based on the requirement that all
programmatic permittees would be
required to implement advanced
conservation practices that reduce take
to the point where it is unavoidable.
Under this proposed rule, long-term
permittees would be subject to the same
criterion as holders of standard permits:
They would be required to undertake all
practicable measures to reduce take to
the point where any remaining take is
unavoidable. To ensure that eagles are
adequately protected, based on the
results of the 5-year evaluations, after
negotiation with the permittee, the
Service may require long-term
permittees to undertake additional
conservation measures other than those
originally contemplated, if they are both
practicable and reasonably likely to
reduce risk to eagles based on the best
scientific information available.
To recoup the cost of processing
longer-term permits, which are
generally complex due to the need to
develop robust adaptive management
measures, we propose to assess a
$36,000 permit application processing
fee for eagle incidental take permits of
5 years duration or longer. The permit
processing fee for 5-year programmatic
permit applications is $36,000
currently. A commercial applicant for
an incidental take permit of a duration
less than 5 years would pay a $2,500
permit application processing fee, an
increase from the current fee of $1,000
for programmatic permits and $500 for
standard permits. The higher fee better
reflects the costs of processing those
permits. The amendment fee for those
permits would increase from $150 to
$500. The incidental take permit
application processing fee for
homeowners would remain $500 and
the amendment fee for those permits
would also remain unchanged at $150.
The proposed higher fees for
commercial entities would recover a
larger portion of the actual cost to the
Service, including technical assistance
provided to the potential applicant by
the Service prior to receiving the actual
permit application package. Commercial
entities have the opportunity to recoup
the costs of doing business by passing
those costs on to their customers. For
homeowner permits, the fees would
remain the same, even though Federal
agencies are directed to recoup the full
costs of processing permits. The reality
is that many of the homeowners who
justifiably need eagle permits would not
be able to pay the actual full cost to the
Service of providing technical

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assistance to the homeowner and
processing their permit applications.
We propose to assess a $15,000 user
fee called an Administration Fee every
5 years for long-term permits. This fee
would cover the cost to the Service of
conducting the 5-year evaluation and
developing any appropriate
modifications to the permit.
The Service has developed data
standards, including protocols for preconstruction eagle surveys and a fatality
prediction model for wind energy
generation facilities. We propose to
require that wind energy generation
facility permittees use these models and
protocols, which are contained in the
Eagle Conservation Plan Guidance
Module 1—Land-based Wind Energy
(USFWS, 2013) (‘‘ECPG’’), available at:
https://www.fws.gov/migratorybirds/
pdf/management/
eagleconservationplanguidance.pdf.
These standards include the steps
described in ECPG Appendix B for siteassessment prior to siting projects; preconstruction survey requirements in
ECPG Appendix C; and the fatality
prediction model from ECPG Appendix
D. We are proposing to incorporate
these standards by reference in
accordance with 1 CFR part 51. These
standards will also be available in hard
copy upon request from the agency
contact listed above.
The requirement to conduct surveys,
fatality predictions, and monitoring
using Service-approved ECPG protocols
for wind energy generation facilities,
and potentially for other industries in
the future, will result in more efficient
permitting decisions by the Service.
Submission of inadequate data, or data
gathered using methods the Service
cannot verify to be sound, has resulted
in significant extra work and time from
our staff to assess wind energy project
impacts.
We recognize that the model
recommended in the ECPG for
predicting fatalities is considered by
some to be overly simplistic in its
current form. However, the use of
standard protocols is an essential
component of the Service’s adaptive
management process for the eagle
permit program, which employs
feedback loops between the initial
survey data, the fatality prediction
model, and the post-construction
fatality estimates. Data from the latter
process can be used to formally improve
the fatality prediction model, thereby
increasing the performance and
complexity of the model as well as the
Service’s ability to accurately predict
project impacts. If the Service’s
protocols are not followed, combining
data from multiple projects is difficult if

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not impossible, and the Service and
regulated community loses the ability to
learn from the permitting process.
Moreover, the Service has no formal
way to improve the fatality prediction
for a project that doesn’t use our
protocols in the future, thus those
projects may have to endure higher
fatality predictions over the life of the
project than would otherwise be the
case. Finally, the Service is not
precluding permit applicants from
collecting other data or using other
models to assess risk, we are only
requiring that the Service’s protocols be
among those that are used.
While we have not officially issued
fatality prediction models or preapplication monitoring protocols for
other activities, or finalized postpermitting monitoring protocols for any
single activity, the Service has enough
information about eagle behaviors and
movements to recommend and approve
monitoring protocols for activities other
than wind energy generation on a
project-specific basis during the
technical assistance process. We
encourage project proponents to
coordinate with the Service as early as
possible in the project planning process
to ensure they are aware of any
protocols we have recommended and
that they use them appropriately. Our
goal is to establish additional formalized
monitoring protocols for industries
other than wind energy in the future.
Most permittees will be required to
monitor for purposes of assessing
whether and how much take occurs
under the permit. Reported take would
be based on performance of permit
conditions establishing surveying and
monitoring protocols. For permits for
disturbance, such monitoring is likely to
consist of regular visits to the proximity
of the nest site or other important eagleuse area where disturbance is likely to
occur to observe whether eagles are
using the area. We expect that most
long-term permits would authorize
lethal take rather than disturbance.
Holders of permits that authorize eagle
mortalities would be required to use
approaches to searching for injured and
killed eagles and for estimating total
take that use statistically rigorous,
unbiased, estimators. Permittees would
be required to document and report all
eagles that are found, the methodologies
employed to search for them (including
whether or not they were detected as
part of a formal survey methodology),
and the methods used to estimate what
the observed carcasses actually
represent (the probability of detection).
‘‘Observed take’’ as used in these
regulations refers to the amount of take

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that is arrived at based on adherence to
these protocols.
The Service defines ‘‘mitigation’’ to
sequentially include: Avoidance,
minimization, rectification, reduction
over time, and compensation for
negative impacts. The 2009 regulations
lack specificity with regard to when
compensatory mitigation will be
required, and the preamble discussion
of compensatory mitigation was
somewhat inconsistent. In reference to
nonpurposeful take permits, the
preamble to the 2009 regulations
contained the following language:
‘‘Additional compensatory mitigation
will be required only (1) for
programmatic take and other multiple
take authorizations; (2) for disturbance
associated with the permanent loss of a
breeding territory or important
traditional communal roost site; or (3) as
necessary to offset impacts to the local
area population. Because permitted take
limits are population-based, the Service
has already determined before issuing
each individual take permit that the
population can withstand that level of
take. Therefore, compensatory
mitigation for one-time, individual take
permits will not typically be necessary
for the preservation of eagles’’ (74 FR
46844, September 11, 2009). Regarding
the § 22.27 nest take permits, we
indicated in the preamble that we
would require compensatory mitigation
for all permits except those issued for
safety emergencies (74 FR 46845,
September 11, 2009).
The Service also addressed
compensatory mitigation in the 2009
FEA, which contained the following
language: ‘‘For most individual take
permits resulting in short-term
disturbance, the Service will not require
compensatory mitigation. The
population-based permitting the Service
will propose is based on the level of
take that a population can withstand.
Therefore, compensatory mitigation for
individual permits is not necessary for
the preservation of eagles. However, the
Service will advocate compensatory
mitigation in the cases of nest removal,
disturbance or [take resulting in
mortality] that will likely incur take
over several seasons, result in
permanent abandonment of more than a
single breeding territory, have largescale impacts, occur at multiple
locations, or otherwise contribute to
cumulative negative effects’’ (USFWS,
2009).
Because the 2009 regulations did not
incorporate specific compensatory
mitigation provisions, the Service has
required compensatory mitigation on a
case-by-case basis somewhat
inconsistently, particularly for bald

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eagles, which has at times resulted in
differing treatment of, and uncertainty
for, permit applicants. Accordingly, this
proposed rule includes standardized
requirements for compensatory
mitigation. In addition to the mitigation
requirements set out in this rule, the
Service will implement these
regulations in a manner consistent with
Service, Departmental, and Presidential
mitigation policies.
Since 2009, take limits for golden
eagles have been set at zero throughout
the United States. Accordingly, all
permits for golden eagle take would
exceed the take limits, and so must
incorporate compensatory mitigation in
order to authorize that take. A permittee
would have to compensate for
authorized take within the same EMU
(except that we would allow for
compensatory mitigation of take of
Alaskan golden eagles throughout the
migration and wintering range in the
interior western United States and
northern Mexico).
The best available information
indicates that ongoing levels of humancaused mortality of golden eagles likely
exceed sustainable take rates,
potentially significantly. As a result,
compensatory mitigation for any
authorized take of golden eagles that
exceeds take thresholds would be
designed to ensure that take is offset at
a greater than one-to-one ratio to
achieve a net benefit to golden eagles to
achieve an outcome consistent with the
preservation of golden eagles as the
result of the permit. Based on the
uncertainty in the effectiveness of a
particular compensatory mitigation
practice, we are likely to require further
adjustments to mitigation ratios to
provide a buffer in the event that the
planned mitigation is less effective than
anticipated.
Under the various mitigation policies
that govern Service permitting actions,
compensatory mitigation must be in
accordance with the management goal
for the protected resource or species.
For take that is within EMU take limits,
compensatory mitigation is generally
not needed because we can permit that
take and still achieve our management
goal. Cumulative authorized take
exceeding 5% of the LAP would also
generally require compensatory
mitigation to ensure our eagle
preservation standard is being met. An
exception would be when the EMU take
limit is not exceeded (i.e., currently the
case for bald eagles in all EMUs), the
permitted take is already occurring, and
the permit conditions would result in a
reduction of take.
We may also require compensatory
mitigation when there is an unusually

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high level of unauthorized eagle
mortality in the LAP (for example, when
the Service has information indicating
that unauthorized take exceeds 10% of
the LAP). The Service has no data to
indicate that ongoing unauthorized take
of bald eagles is less than that of golden
eagles, and proposes to apply the LAP
analysis and assessment of any known
ongoing unauthorized take to bald
eagles as well as golden eagles, as we
have been doing while the LAP analysis
remains guidance. Although exceeding
5% permitted take of the LAP will have
significantly less dramatic effects to
local bald eagle populations, States,
tribes, and localities have
communicated their interest in seeing
regulatory safeguards to protect local
bald eagles as well as golden eagles. In
the near future, it is unlikely that
cumulative authorized take of local area
populations of bald eagles will exceed
5% anywhere in the country. The
Service will continue to collect data to
refine our understanding of cumulative
mortality on both eagle species and may
adjust take rates in the future.
Under these proposed regulations, the
LAP analysis would be the formalized
approach to documenting whether
compensatory mitigation may be
necessary to maintain the persistence of
local eagle populations. However, there
are other factors, particularly long-term
and cumulatively, that could also create
the need for compensatory mitigation to
better protect or enhance populations.
For example climatic changes can have
direct and indirect effects on species
abundance and distribution, and may
exacerbate the effects of other stressors,
such as habitat fragmentation and
diseases. The conservation of habitats
within ecologically functioning
landscapes is essential to sustaining the
long-term persistence of populations. To
ensure the Service has the tools to
address such circumstances, this
proposed rule would allow the Service
to require compensatory mitigation ‘‘if
otherwise necessary to maintain the
persistence of local eagle populations
throughout their geographic range.’’
The Service will encourage the use of
in-lieu fee programs, mitigation and/or
conservation banks, and other
established mitigation programs and
projects. We intend to facilitate the
establishment of an in-lieu fee program
to allow permit applicants to contribute
to a compensatory mitigation fund as an
alternative to developing individual
mitigation measures for each project. All
compensatory mitigation must comply
with principles and standards set forth
in Service and Departmental policy. Per
these principles and standards,
compensatory mitigation is considered

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after all appropriate and practicable
avoidance and minimization measures
are applied and must achieve the
following: Be sited to address broader
ecological contexts; adhere to a
mitigation planning goal; use best
available science to ensure
effectiveness; be additional to any
existing or foreseeably expected
conservation efforts; be durable and
persist for at least the time-frame of the
impacts; incorporate adaptive
management; and account for
uncertainty and risk. In approving
compensatory mitigation mechanisms
and actions, the Service will ensure the
application of equivalent ecological,
procedural, and administrative
standards for all compensatory
mitigation mechanisms. The Service
prefers that compensatory mitigation is
conducted prior to when the impacts of
the action occur. Conservation banking
can provide a source of advance credits.
Predictions about the effectiveness of
compensatory mitigation measures have
varying degrees of uncertainty. Under
the current framework, the Service has
required a relatively high degree of
confidence in the effectiveness of very
few compensatory mitigation options.
We will consider compensatory
mitigation measures and programs that
face more risk and uncertainty provided
mitigation accounting systems factor in
risk and adjust metrics, mitigation
ratios, and the amount of required
mitigation to account for uncertainty.
Where compensatory mitigation will
be required, the applicant must commit
to the funding and method that will be
used prior to or upon permit issuance.
For long-term permits, permittees would
be required to provide offsetting
mitigation to compensate for predicted
take over 5 years. If no observed take
has occurred in the first 5 years, the
permittee need not pay for any
additional mitigation. If reliable
reported data demonstrates that a given
permit holder/project is causing fewer
impacts to eagles than originally
permitted (e.g. actual take of eagles is
lower than predicted), permittees can
carry forward ‘‘unused’’ compensatory
mitigation credits to the next 5-year
review period.
We are proposing a change to the
prioritization criteria that govern the
order in which the Service will
prioritize authorization of take if EMU
take limits are approached. The priority
after safety emergencies for Native
American take for religious purposes
that depends on take of wild eagles (and
as such cannot be met with eagle parts
and/or feathers from another source,
such as the National Eagle Repository)
will be amended slightly to apply to any

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increased need in take for religious
purposes. In such cases, that take would
not be part of the current baseline.
Historical tribal take for religious use
requiring take of eagles from the wild
that has been ongoing, but not
authorized, does not usually need to be
prioritized because it is part of the
baseline. Thus, any authorization of
such previously unauthorized take
would not affect EMU take limits. We
also propose to delete the reference to
rites and ceremonies because traditional
take for religious and cultural purposes
may not be limited to, or properly
characterized as being part of, specific
rites and ceremonies.
We propose changing the
prioritization order by removing the
priority for renewal of programmatic
permits, since the regulations would no
longer contain a separate category for
programmatic permits.
The definition of ‘‘low-risk’’ projects
that was established in the duration
rule, which was subsequently vacated
by the August 2015 district court
decision (Shearwater v. Ashe, No. 5:14–
cv–02830 LHK (Sep. 16, 2015), was
counter-productive. ‘‘Low-risk’’ was
defined in a footnote to 50 CFR
13.11(d)(4) as a project or activity that
is unlikely to take an eagle over a 30year period and the applicant for a
permit for the project or activity has
provided the Service with sufficient
data obtained through Service-approved
models and/or predictive tools to verify
that the take is likely to be less than 0.03
eagles per year. This definition covers
only those projects where take is
essentially negligible, and, therefore, the
project does not require a permit. The
Service sees utility in redefining ‘‘lowrisk’’ to include projects with a slightly
higher probability of taking eagles, but
which cumulatively will still be
compatible with eagle management
objectives.
However, despite seeking input from
the public and considerable staff effort,
we were unable to develop a definition
of ‘‘low-risk’’ that could be applied
throughout the United States while
achieving the desired goals for such a
category. The Service considered basing
the low-risk category on (1) a flat
number of eagles predicted to be taken,
(2) a percentage of the local area
population (LAP), (3) a hybrid of those
two, and (4) the geographic and physical
features of the area where the project
will be located. Each of these
approaches produced conflicting results
due to the significant discrepancies that
exist between eagle population densities
and resilience, habitat variability, and
project scales. Accordingly, we are not
proposing a revised definition for low-

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risk projects in this proposed rule. We
will continue to consider ways that a
category of lower risk projects could be
defined for use in the future. If you have
suggestions for how to define ‘‘low-risk’’
or low-impact’’ take of eagles, including
how a general permit authorization
should work or other approaches for
authorizing such take, please submit
them as indicated under ADDRESSES.
While such comments would be outside
the scope of this rulemaking action, we
would keep them for consideration if we
decide to pursue further rulemaking in
the future.
Eagle Nest Take Permits (50 CFR 22.27)
Under the current § 22.27 eagle nest
take regulations, the Service can issue
permits for removal, relocation, or
destruction of eagle nests where (1)
necessary to alleviate a safety
emergency to people or eagles, (2)
necessary to ensure public health and
safety, (3) the nest prevents the use of
a human-engineered structure, or (4) the
activity or mitigation for the activity
will provide a net benefit to eagles. Only
inactive nests may be taken except in
the case of safety emergencies. Inactive
nests are defined by the continuous
absence of any adult, egg, or dependent
young at the nest for at least 10
consecutive days leading up to the time
of take.
As with § 22.26 incidental take
permits, we propose to eliminate the
distinction between programmatic and
standard permits for § 22.27 nest take
permits. The permit fee for removal or
destruction of a single nest will remain
at $500. A commercial applicant for a
nest take permit for a single nest would
pay a $2,500 permit application
processing fee, an increase from the
current fee of $500 for standard permits
and $1,000 for programmatic permits.
The amendment fee for those permits
would also increase from $150 to $500.
For permits to take multiple nests, the
fee would be 5,000 versus 1,000 for
programmatic permits currently. For
homeowners, the nest take permit
application processing fee and
amendment fee would not change.
We are also proposing a number of
relatively minor revisions to the nest
take permit regulations at 50 CFR 22.27
and several revisions to definitions in
50 CFR 22.3 that apply to nest take
permits. First, we propose to change
terminology referencing the status of
nests to better comport with applicable
terms used in scientific literature. Nests
that are not currently being used for
reproductive purposes would be defined
as ‘‘alternate nests,’’ while nests that are
being used would be ‘‘in-use nests.’’
Some commenters suggested the latter

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be called ‘‘occupied nests,’’ but we
believe that term would cause confusion
because nests are in use for breeding
purposes prior to being physically
‘‘occupied’’ by nestlings or an
incubating adult. Under our proposed
definition, an ‘‘in-use nest’’ means ‘‘a
bald or golden eagle nest characterized
by the presence of one or more eggs,
dependent young, or adult eagles on the
nest in the past 10 days during the
breeding season.’’ This definition
includes the period when adults are
displaying courtship behaviors and are
building or adding to the nest in
preparation for egg-laying. We would
define ‘‘alternate nest’’ as ‘‘one of
potentially several nests within a
nesting territory that is not an in-use
nest at the current time.’’ When there is
no in-use nest, all nests in the territory
are ‘‘alternate nests.’’
We propose to revise the definition of
‘‘eagle nest’’ from ‘‘any readily
identifiable structure built, maintained,
or used by bald eagles or golden eagles
for the purpose of reproduction’’ to ‘‘any
assemblage of materials built,
maintained, or used by bald eagles or
golden eagles for the purpose of
reproduction.’’ The words ‘‘readily
identifiable’’ did nothing to clarify
when a structure was or was not a nest
since a structure might appear to be just
a pile of sticks to one person, or an
osprey nest to a second person, but
clearly an eagle nest to someone familiar
with eagle nests. The confusion caused
by the words ‘‘readily identifiable’’
sometimes put in jeopardy nests in the
early stages of being built, or nests that
are used from year to year but are
substantially damaged during the nonbreeding season by wind or weather.
We propose changes to enable the
Service to issue a permit to remove an
in-use nest to prevent a rapidly
developing safety emergency that
otherwise would be likely to result in
bodily harm to humans or eagles while
the nest is still in use for breeding
purposes, instead of waiting until the
emergency is exigent. Without this
clarification, the Service has been faced
with having to wait until the fully
developed state of emergency had
arrived, and the delay has sometimes
been to the detriment of the eagles
because, while the safety emergency
developed, the breeding pair had the
opportunity to lay eggs.
Current regulations provide that the
Service can issue a nest take permit for
an inactive (proposed ‘‘alternate’’) nest
that is built on a human-engineered
structure and creates a functional
hazard that renders the structure
inoperable for its intended use. We
propose to change this provision to also

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allow for removal of an in-use nest prior
to egg-laying to prevent the foreseeable
functional hazard from coming to
fruition. The proposed regulatory
language would allow nest removal at
an earlier stage that may allow for the
eagles to re-nest elsewhere while also
preventing the nesting eagles from
rendering the human-made structure
inoperable.
We also propose to remove the
requirement that suitable nesting habitat
be available in the area nesting
population to accommodate displaced
eagles for non-emergency nest take. The
provision has been problematic because,
in many healthy populations of bald
eagles, suitable nest sites are all
occupied. As part of the permit
application review process, the
regulations would retain consideration
of whether alternate nest sites are
available to the displaced eagles, but an
affirmative finding would not be a
requirement for issuing a permit.
Also, we propose to change the scope
of consideration to the ‘‘nesting
territory,’’ not the ‘‘area nesting
population,’’ which is defined in
current regulations as ‘‘the number of
pairs of golden eagles known to have a
resting [sic] attempt during the
preceding 12 months within a 10-mile
radius of a golden eagle nest.’’ That
definition was codified in 1982 when a
new permit was established for removal
or destruction of nests for resource
development and recovery operations.
In addition to the typo (i.e., ‘‘resting’’),
this definition is problematic in the
context of bald eagles, not only because
it omits reference to bald eagles, but also
because a 10-mile radius around a bald
eagle nest has no particular biological
significance. For both species of eagles,
consideration of whether the nesting
pair may be able to use a different nest
should focus primarily on the pair’s
nesting territory. In some cases, that
determination may require looking
beyond any known alternate nests in
order to verify that those nests are not
actually part of a different pair’s nesting
territory. However, it will not always
require surveys of the area within the
10-mile radius of the nest that would be
removed. We propose the following
definition for ‘‘nesting territory’’: ‘‘the
area that contains one or more eagle
nests within the home range of a mated
pair of eagles, regardless of whether
such nests were built by the current
resident pair.’’ This definition would
replace the current definition of
‘‘territory.’’ The two definitions are
functionally similar, but the one we are
proposing is more in line with
terminology used in the biological
community.

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Under the current regulations, if a
nest containing viable eggs or nestlings
must be removed, we require transfer of
the nestlings or eggs to a permitted
rehabilitator or placement in a foster
nest. However, there are circumstances
when such placement is simply not
possible; for example, in Alaska the
closest permitted rehabilitator may be a
day’s drive or more away. Nests with
viable eggs or nestlings can be removed
only in safety emergencies, and the
requirement has sometimes meant that
the Service could not legally issue a
permit necessary to alleviate the safety
emergency. To address this problem, we
propose to retain the requirement that
nestlings and viable eggs be transported
to a foster nest or permitted
rehabilitator, but add a provision
allowing the Service to waive the
requirement if such transfer is not
feasible or humane. The Service will
determine the disposition of the
nestlings or eggs in that scenario.
Euthanasia may sometimes be the most
humane option.
As with the prioritization criteria in
§ 22.26, these regulations would amend
the prioritization criteria for nest take
permits to remove any priority for
allocation of take to renewal of
programmatic permits because that
permit category will be removed. Also,
the prioritization for Native American
religious take would be amended in the
same manner as for § 22.26 incidental
take permits (see earlier discussion).
These proposed regulations adopt
mitigation standards for taking eagles
nests under § 22.27 that are similar to
those we are proposing for § 22.26. The
exception is that permits issued under
paragraph (a)(1)(iv) must apply
appropriate and practicable
compensatory mitigation measures as
specified in your permit to provide a net
benefit to eagles if the permitted activity
itself does not provide a net benefit to
eagles. Permits issued under paragraph
(a)(1)(iv) are not limited to situations
involving a safety or health issue or an
obstruction to a manmade structure;
they can be issued to take alternate
(currently called ‘‘inactive’’) nests for
any reason as long as there will be a net
benefit to eagles scaled to the effects of
the nest removal. If the activity itself has
a net benefit, compensatory mitigation
would not be required. For example, a
nest might be flooded during a riparian
restoration project undertaken to
provide improved habitat for eagles.
Where the activity itself does not benefit
eagles, the net benefit must be through
compensatory mitigation.
Several commenters suggested we
eliminate the requirement for a ‘‘net
benefit’’ for permits issued under

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paragraph (a)(1)(iv). In general, we
believe the requirement to provide a net
benefit is appropriate, particularly now
that we will promote the use of
conservation banks, in-lieu fee
programs, and other third-party
arrangements to carry out the necessary
measures to benefit eagles. These types
of programs can leverage relatively
small amounts of funding to provide
significant benefits on the ground. Also,
many nests for which permits are sought
for removal are lower quality nests, not
having been used in some time and
degraded, or alternate nests just being
built. In those cases, the amount of
compensatory mitigation may be
relatively low. Additionally, in
populations with high eagle density, the
biological value of a single nest to eagle
populations tends to be lower. Data
shows that productivity in highly
saturated eagle populations decreases
due to nests being built in less than
ideal locations in relation to food
sources and/or increased competition
and fighting among nesting pairs. In
such situations, the required net benefit
would reflect that lower biological
value.
Permit Application Fees (50 CFR 13.11)
We also propose minor revisions to
the permit application processing fee
table in 50 CFR 13.11. We would
remove the column for Administration
Fees because those fees are applied only
for eagle incidental take permits and not
for any other type of Service permit
listed in the table. The requirement for
administration fees would be
incorporated into § 22.26. The table
would also include the updated fees we
are proposing for incidental take permit
for commercial entities, long-term
incidental take permits, nest take
permits for commercial entities, and
nest take permits for multiple nests.
Scope of Eagle Regulations (50 CFR
22.11)
The Service would revise § 22.11(c) to
replace ‘‘[Y]ou must obtain a permit
under part 21 of this subchapter for any
activity that also involves migratory
birds other than bald and golden eagles,
and a permit under part 17 of this
subchapter for any activity that also
involves threatened or endangered
species other than the bald eagle’’ with
‘‘[A] permit under this part authorizes
take, possession, and/or transport only
under the Bald and Golden Eagle
Protection Act and does not provide
authorization under the Migratory Bird
Treaty Act or the Endangered Species
Act for the take, possession, and/or
transport of migratory birds or
endangered or threatened species other

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than bald or golden eagles.’’ The
original language was promulgated prior
to the bald eagle being removed from
the ESA List of Endangered and
Threatened Wildlife as part of a final
rule authorizing transport of eagle parts.
The original intent of § 22.11(c), as
explained in the final rule published in
the Federal Register, was that a permit
holder transporting items that contained
not only eagle parts, but also parts of
other species protected by the
Endangered Species Act or the
Migratory Bird Treaty Act, into or out of
the country would need to ensure he or
she possessed the applicable permits for
those protected, non-eagle species in
order to legally transport the item. See
64 FR 50467, September 17, 1999.
However, this provision could be read
to limit the Service’s discretion to
decide the appropriate manner of
authorization for activities that affect
other protected species outside the
context of transportation of items
containing eagle parts. For example,
§ 22.11(c) could be read to preclude the
Service from using intra-Service section
7 consultation to analyze and exempt
non-jeopardizing ESA take that may
result from the Service’s issuance of an
Eagle Act permit to a project proponent.
Thus, we are proposing to amend
§ 22.11(c) to ensure it does not limit our
discretion to apply the appropriate
authorization under the ESA or the
MBTA for activities that involve other
species protected by those statutes.
Golden Eagle Nest Take Permits for
Resource Development and Recovery
(50 CFR 22.25)
We are proposing several revisions to
the regulations for permits for take of
inactive golden eagle nests for resource
development and recovery operations.
The current regulations were codified in
50 CFR 22.25 in 1983. We propose to
amend them to use terminology that is
consistent with the § 22.27 eagle nest
take permit regulations. Our intent in
this rulemaking is to limit revisions to
§ 22.25 to those necessary for
consistency with § 22.27, plus a few
additional minor revisions, as explained
below.
The proposed revisions include
changing ‘‘inactive nest’’ to ‘‘alternate
nest’’ and removing references to the
‘‘area nesting population.’’ As with
§ 22.27 nest take permits (discussed
above), the relevant area of
consideration is the nesting territory.
Rather than needing to evaluate whether
there is suitable nesting habitat
available within the area nesting
population, the Service will consider
whether alternate nests are available
within the nesting territory. It may be

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appropriate in some cases to survey
golden eagle nests within the 10-mile
radius to determine whether nests
assumed to be in the same territory as
the one being removed are not actually
in a different breeding pair’s nesting
territory. Loss of a nesting territory
would not preclude the Service from
issuing a permit, but such loss would be
part of our consideration of whether the
take is compatible with the preservation
standard and what mitigation would be
necessary.
We propose to add the phrase ‘‘and
compatible with the preservation of
golden eagles’’ to paragraph (b)(4) of the
§ 22.25 permit regulations. The
introductory language for this permit
regulation already specifies that the
taking must be compatible with the
preservation of golden eagles, but we
believe it is important to clarify in
paragraph (b)(4) that mitigation can be
used to provide that compatibility. A
final minor proposed revision is the
addition of ‘‘and monitoring’’ to
paragraph (b)(4). We do, as a matter of
course, require monitoring as a
condition of these permits, so it makes
sense to clarify in the regulation that we
may do that.
Finally, we are proposing to replace
the word ‘‘feasible’’ with ‘‘practicable’’
in reference to the mitigation that will
be required, consistent with § 22.26,
§ 22.27, and agency mitigation policy.
Response to Public Comments on the
2012 ANPR and 2014 Notice of Intent
To Prepare an Environmental
Assessment or an Environmental
Impact Statement

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NEPA Process on This Action
Comment: NEPA analysis for
individual projects is the biggest
constraint associated with the current
eagle take permit process. A
programmatic analysis under NEPA
would streamline and expedite the
process for applicants and likely result
in more participation by electric utilities
and others, particularly for projects with
relatively lower risk to eagles.
Comment: The Service should
conduct a nationwide programmatic
NEPA analysis on the issuance of eagle
permits for electric utilities so that
subsequent permit applications can be
categorically excluded from additional
NEPA analysis.
Service response: In addition to the
cost to project developers, NEPA
requirements for permitting individual
projects have been responsible for a
significant portion of the Service’s time
and effort in processing permit
applications. We are developing a
DPEIS in association with this

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rulemaking. The DPEIS
programmatically analyzes eagle take
within certain levels and the effects of
complying with compensatory
mitigation requirements to allow the
Service to tier from the DPEIS when
conducting project-level NEPA analyses.
The DPEIS will cover the analysis of
effects to eagles under NEPA if the
project: (1) Will not take eagles at a rate
that exceeds (individually or
cumulatively) the take limit of the EMU
(unless take is offset); (2) does not result
in FWS authorized take (individually or
cumulatively) in excess of 5% of the
LAP; and (3) where the applicant agrees
to use a FWS-approved offsetting
mitigation bank to accomplish any
required offset for the authorized
mortality. Projects that do not meet
these three criteria might still be
authorized, but they would likely need
to undergo individual NEPA review of
their effects on eagles. We would also
conduct a review of unpermitted take
information available to us to assess
whether the unpermitted eagle take in
the LAP is excessive, and if that is the
case, the project might still be
authorized but may be subject to
additional NEPA review.
With regard to using a categorical
exclusion for projects that pose a low
risk to eagles, we investigated the
possibility of developing a new
categorical exclusion for such projects.
However, we were unable to define low
risk in a manner that was workable
nationwide (see above discussion of the
‘‘low-risk category’’).
Comment: The benefits of various
activities that impact eagles should be
analyzed in the EA or EIS. For example,
renewable energy will benefit eagles and
other wildlife by reducing carbon
emissions, and utilities manage large
water reservoirs that provide valuable
foraging habitat for bald eagles.
Service response: While the primary
purpose of the DPEIS is to analyze the
effects of the Federal actions being
undertaken (establishment of eagle
management objectives and revised
permit provisions), to the degree that
beneficial effects to eagles can be
anticipated from categories of activities,
the DPEIS broadly analyzes those
effects.
Tribal Consultation
Comment: To address the cultural
value of eagles, the Service should
consult face-to-face with the National
Congress of American Indians and other
tribal entities for their direction on this
issue.
Comment: In recognition of the
continued lack of tribal engagement on
these eagle matters, the Service should

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consult with and engage tribes, tribal
religious and spiritual leaders, and
tribal conservation and environmental
experts regarding the development and
implementation of Federal policies
related to eagles.
Comment: The Service should
integrate tribal consultation throughout
the NEPA process for this rulemaking
and for individual permit applications
to take eagles by providing tribes with
clear proposed rulemaking and permit
application information in a timely
manner, disseminating information to a
wide tribal audience, and ensuring that
in-person consultation meetings are
conducted.
Comment: The NEPA analysis must
consider the unique effects that eagle
handling and eagle takes have on tribes.
For example, topics for consideration
should include: How a loss of eagles in
an area where tribes are present will
affect such tribes; the extent to which
tribes can participate in handling the
remains of eagles that are taken on
reservation lands; protection of tribal
cultural resources and historic
properties by a project seeking a permit
to take eagles; and whether procedures
for handling eagle remains are
consistent with tribal practices and
beliefs.
Comment: Early and meaningful
consultation with tribes should occur so
the Service can use traditional
ecological knowledge.
Service response: The Service reached
out to all federally recognized tribes
with a letter inviting government-togovernment consultation in late 2013.
We then met with interested tribes in
person or through calls and Web
conferences. A list of the tribes the
Service met with is provided in Table
6.2–1 of the DPEIS. We would and will
consider tribal ecological knowledge
that is provided by tribes. We continue
to encourage tribes that wish to consult
on this rulemaking and eagle
management in general to contact us to
request meetings. In addition, the DPEIS
associated with this rulemaking
examines potential effects of this
rulemaking on tribal resources, religion,
and culture, and we encourage comment
and feedback, (and consultation if
requested) from tribes on that analysis.
At the individual project level, we
invite consultation with tribes in the
vicinity of projects requesting permits,
as well as tribes with historical ties to
the area who have advised us of their
interest in consulting with the Service.
Population Management Objectives
Comment: The fact that the Service is
on record in its FONSI on the 2009
permit regulations stating that it will not

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issue any permits for golden eagle take
east of the 100th meridian is very
troubling. Failure to do so will result in
industrial wind development going
ahead anyway without the NEPA
analysis, public review, and
conservation measures.
Comment: The Service should retain
its stance against permitting any take of
golden eagles east of the 100th
meridian. If the Service is
contemplating altering this policy, it
should not be an internal decision; a
public process is warranted.
Service response: We agree with the
first commenter. The DPEIS analyzes
the effects of issuing permits for golden
eagle take across the United States,
including east of the 100th meridian.
The DPEIS analysis, with its associated
public process, also addresses the
concerns of the second commenter. We
propose to issue permits to qualifying
applicants in the eastern United States
if the take will be offset and other
required issuance criteria are met.
Comment: Golden eagle populations
should be managed using western and
eastern take thresholds rather than Bird
Conservation Region (BCR)-based
regional thresholds. Satellite telemetry
data (published and currently being
collected) suggest a great deal of mixing
across BCR boundaries.
Comment: Management of golden
eagles by BCRs is problematic because
most BCRs are large and span multiple
jurisdictional boundaries; individual
eagles may use multiple BCRs
throughout the year; and a single BCR
may host breeding, resident, and
migratory eagles in different locations
and/or times of year. Management
should be at three scales: Flyway, state,
and local.
Comment: The Service should
consider using the States as the Eagle
Management Units (EMUs) for bald
eagles.
Comment: The Service should treat
Alaska as one EMU for both bald and
golden eagles. A lack of information
regarding golden eagle populations in
Alaska does not justify the imposition of
a rigid ‘‘no net loss’’ standard. When
combined with the emphasis on
management by EMUs, the Service has
established a disproportionately high
threshold for the approval of golden
eagle take permits. Accordingly, in
Alaska, the Service should discontinue
the ‘‘no net loss’’ standard and the
application of multiple EMUs for golden
eagles, and should instead provide for a
flexible approach to acceptable
compensatory mitigation.
Service response: With the exception
of management at the State scale, we are
proposing an approach to golden eagle

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management that addresses the issues
raised by the four comments above. As
explained in more detail earlier in this
preamble, we propose to use the flyways
as EMUs but also incorporate a local
area population cumulative take
analysis in the permit decision process.
Flyways more closely approximate eagle
movement than the current EMUs, and
the adoption of flyways would also
provide more flexibility for where to
apply compensatory mitigation. Under
the management approach being
proposed, limits for take of golden
eagles in Alaska, as in the rest of the
Pacific Flyway and United States would
remain at zero. However, because
golden eagles from natal areas above 60
degrees N. Latitude are usually
migratory and much annual mortality
occurs on migration or on the wintering
grounds (McIntyre et al., 2008; Status
Report), these proposed regulations
would substantially increase flexibility
in where compensatory mitigation for
take of golden eagles in Alaska can be
applied, extending it throughout the
migration and wintering range of
Alaskan golden eagles in the interior
western U.S. and northern Mexico.
Management at three scales would be
overly complex in addition to the fact
that State boundaries have no relation to
eagle movements or migration patterns
or to populations affected by a given
project. Accordingly, we are not
proposing to manage either species of
eagle at the State scale. However, State
management plays a crucial role in the
management and conservation of eagles,
thus we will continue to coordinate
when issuing permits and partner with
States on conservation initiatives.
Comment: The Service should revise
its interpretation of the eagle
preservation standard to apply to the
national population of eagles and
should, therefore, issue an eagle take
permit if issuance would not reduce the
likelihood of survival of the species of
golden eagles and bald eagles
nationally, rather than individual eagles
or local or sub-regional populations.
Service response: Application of the
preservation standard to only a national
scale would not protect eagles
throughout their ranges. For example, it
would allow for loss of all bald or
golden eagles on the east or west coast,
or even everywhere but Alaska, which
is not an effective or sufficiently
protective management framework.
Comment: The Service should
evaluate take not just in a regional
context, but also taking into account its
impact on local and national
populations.
Comment: The Service should
establish smaller local geographic units

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(as defined by eagle biology and
movement) in order to better assess
project-level impacts and mitigation.
Service response: Protection of eagle
populations across the flyways would
protect eagles at the national scale. With
regard to a more local scale, these
proposed regulations add protection in
two ways. First, we propose to modify
and codify the Preservation Standard to
include the goal of maintaining the
persistence of local populations
throughout the geographic range of both
species. Second, these proposed
regulations would incorporate the LAP
cumulative effects analysis into the
permit issuance criteria.
Comment: The Service should use
smaller local geographic management
units within the larger regional units,
which would allow the Service to
permit take in areas where the local
breeding population exceeds the
regional averages. It would also mean
that replacement mitigation would not
need to be tied to the larger regional
population, but would be based on the
local population.
Service response: The Service assesses
local population impacts as part of the
LAP assessment. However, at this time
the fine-scale local population data that
would be needed to assess eagle
abundance at this scale in all seasons,
and changes in that abundance between
years, is not available. Thus the Service
relies on estimates of average summer
population density to approximate the
size of local populations for this
assessment. Moreover, effects on local
populations are complicated by the fact
that some currently unknown
proportion of the fatalities associated
with any activity almost certainly
involves individuals not from the local
breeding population (e.g., migrants).
This assumption further complicates
tying take rates to local eagle abundance
and is the reason the Service allows
offsetting mitigation at the larger scale
of the EMU.
Comment: The Service should allow
for take thresholds to be flexible in some
cases to account for migrating,
wintering, etc., eagles that come from
other regions.
Service response: We do not have
enough data in most cases to know
whether the take from a particular
permitted activity comprises more or
less of the local breeding eagles than the
average. As explained in our response to
the question above, the Service allows
offsetting mitigation at the EMU scale.
Comment: The Service should use the
most current research and scientific
information (for example, telemetry
data) to redraw and update the EMU
boundaries to more accurately reflect

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breeding territories, wintering ranges,
and migration corridors for bald and
golden eagles.
Service response: The Service
considered and will continue to
evaluate banding and satellite-tagged
data on eagle movements as part of a
reassessment of EMUs for this DPEIS.
The Service’s current proposal to use
flyways to delineate EMUs is based on
current data, including telemetry data.
Comment: The language in the Eagle
Act that the Service refers to as the
‘‘Preservation Standard’’ does not apply
to nonpurposeful take permits.
Nonpurposeful take permits are not
required to be compatible with eagle
preservation. The phrase ‘‘compatible
with the preservation of the bald eagle
or the golden eagle’’ occurs within the
first clause within section 668a of the
Act, which applies to take from certain
specified, narrow activities, including
those for ‘‘scientific or exhibition
purposes’’ and ‘‘for the religious
purposes of Indian tribes.’’ The
preamble to the Eagle Permit Rule
makes it clear that the authority for
eagle take permits arises from the last
half of the second clause of section
668a: ‘‘protection of . . . agricultural or
other purposes.’’ Since § 22.26 of the
Eagle Permit Rule implements the
second clause of section 668a of the
Eagle Act with respect to the
authorization of eagle take permits, it
concerns a separate class of activities
than those enumerated in the first
clause of section 668a. Therefore,
nonpurposeful take permits should not
be limited to situations compatible with
the preservation of the golden eagle or
bald eagle (the standard from the first
clause).
Service response: While we
understand the argument being made by
this commenter, we believe it is more
reasonable to conclude that Congress
did not intend to allow the Secretary to
issue permits that are incompatible with
the preservation of eagles to protect any
conceivable interest. In our view, as the
agency responsible for interpreting and
implementing the statute, it would be
unreasonable to conclude that Congress
limited take of eagles for particularly
defensible interests, including research
and Native American religious use, to
sustainable levels while allowing
unfettered take, regardless of the
consequences, for other purposes.
Therefore, we will not alter our
interpretation of the statute, which takes
into account the plain meaning of the
Eagle Act’s specific language, its
purposes, its legislative history, and our
consistent past agency practice.
Comment: The preservation standard
should be based on increasing breeding

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populations, not just keeping them
stable, and should apply to all
populations in all areas where eagles
have traditionally been found.
Service response: Under the current
preservation standard, bald eagle
populations have continued to grow,
and our data and modeling, using
conservative assumptions (see
Appendix E of the DPEIS), estimate they
will stabilize at approximately 260,000
individuals nationwide, up from
approximately 174,000 in 2009. Ideally,
golden eagle populations would also
grow, but our data show populations
have been mostly stable over the past 40
years, so an objective that called for
increasing golden eagle populations
would require addressing limiting
factors that have been in place for at
least 40 years. Our data show that the
most significant limiting factor for
golden eagles is mortality, especially of
adult eagles, caused by unpermitted
anthropogenic sources. Our hope is that
by converting currently unauthorized
take to take authorized under permits
requiring implementation of
conservation measures to avoid and
minimize take and offsetting
compensatory mitigation for remaining
take at a greater than one-to-one ratio,
golden eagle populations can stabilize
or modestly increase. As a final point of
clarification, our management objective
is not just to maintain stable
populations, but rather to allow for
stable or increasing populations.
Comment: The Service should remove
the reference to ‘‘breeding’’ populations
in the preservation standard and replace
it with ‘‘consistent with the goal of
stable or increasing populations.’’ This
change will better recognize recent
findings clarifying the importance of
subadults and floaters to eagle
populations.
Service response: The Service does
recognize the demographic importance
of all age-classes of eagles, and believes
a population objective that maintains
the potential for stable numbers of
breeders is protective of all ages.
Recruits are available to replace
breeders that die only if subadult and
floating adult populations are healthy,
and the Service’s demographic models
take this into account in our estimates
of sustainable take rates, so we are
proposing to retain the word ‘‘breeding’’
in the definition.
Comment: The Preservation Standard
should incorporate the concept of
resilience, requiring maintenance of
‘‘resilient and stable or increasing’’
breeding populations. For eagle
populations to be resilient to change,
multiple factors (size, genetic diversity,
demographics) must be of sufficient

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quality to provide for long-term
persistence.
Service response: The concept of
resilience is already inherent in the
preservation standard. Keeping
‘‘breeding’’ in the standard provides for
resiliency: In order for breeding
populations to remain stable or increase
over time, their size, genetic diversity,
and other demographic factors must be
sufficient to allow for the populations’
continued resilience. Our proposal to
add ‘‘persistence of local populations
throughout the geographic range’’ to the
preservation standard also helps ensure
resiliency.
Comment: In order to effectively
balance the population with
development pressure, habitat loss, and
other unanticipated impacts to the eagle
population, a management goal of
increasing the population would be a
more conservative approach to
protecting the eagle population.
Service response: A management goal
of increasing populations would be
more conservative in terms of
authorizing take than the Service’s
current and proposed goal: Maintaining
stable or increasing breeding
populations. We believe the latter is
sufficiently protective and consistent
with the plain language of the statute. It
allows for increasing populations, as
evidenced by the fact that bald eagle
populations in the coterminous United
States have continued to increase since
the Service adopted the standard. At
some point, bald eagle numbers will
stabilize, however. We estimate that
stabilization will occur in roughly 25–
30 years with a population of about
230,000 nationwide, including Alaska.
For golden eagles, populations are at
about 40,000 individuals, but would,
without unauthorized sources of
anthropocentric mortality (shooting,
collisions, etc.), be stabilized at
approximately 70,000 individuals.
Conversion of some of that
unauthorized take into authorized take
through permitting secures offsetting
mitigation and other conservation
measures and has the potential to
increase golden eagle populations from
their current equilibrium number.
Comment: The Service should replace
the current ‘‘preservation’’ standard
with ‘‘to not meaningfully impair the
Bald/Golden Eagle’s continued
existence.’’
Comment: The alternative qualitative
approach described in the scoping
materials ‘‘to not meaningfully impair
the bald or golden eagles’ continued
existence’’ is vague, ambiguous, and
subject to interpretation. The suggestion
that extinction is a threshold is alarming
and contradicts the regulatory standard

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of the Eagle Act. While qualitative
objectives may provide a larger degree
of flexibility, they often rely far too
heavily on the judgment of individuals,
often working in isolation and
overwhelmed with permit reviews.
Service response: We are proposing to
maintain a quantitative approach to
managing eagle populations for reasons
discussed earlier in this preamble.
Comment: The Service should adopt a
Qualitative Prevention approach rather
than a Quantitative Allowance approach
to allow for more flexibility to issue
permits even if mitigation options are
not available to fully compensate for
impacts, thus increasing data collection
as the result of monitoring required by
the permit.
Service response: We have enough
data to understand that additional take
of golden eagles is not compatible with
maintaining the current population
unless the take is offset. Not using the
data we have for the purported reason
of obtaining more data would not be
scientifically defensible.
Comment: We believe the quantifiable
approach is far too cumbersome and
makes for an overly complex
management/permitting approach.
Aside from reducing the complexity of
analysis for and issuing permits,
proceeding with a qualitative
assessment approach would allow for
greater flexibility in compensatory
mitigation options than the quantitative
approach—focusing more on ‘‘growing’’
eagles than saving them from other
anthropogenic sources of mortality.
Service response: The quantitative
approach reduces complexity at the
permit issuance level because the
allowable take limits are already
established. A qualitative standard
would require complete, independent
population assessments for each permit,
and would also make it challenging to
assess cumulative impacts. Greater
flexibility in where compensatory
mitigation can be applied would be
achieved under the proposed flyway
EMU approach. The Service is also
expanding mitigation options by
establishing and encouraging the use of
conservation banks and in-lieu fee
programs, which, when available, will
simplify mitigation requirements at the
individual permit level. We agree that
data collection from monitoring
permitted activities is of high value. We
do not agree that focus should be shifted
from addressing anthropogenic sources
of mortality. Not only are anthropogenic
sources the ones most readily
controlled, our data reflects that they are
responsible for almost 60% of golden
eagle mortalities.

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Comment: The preservation standard
currently implemented requires surveys
and monitoring with the likely
consequence that funds will be
redirected from more important
resource needs.
Service response: The Service has the
responsibility to ensure that any take
that we authorize is compatible with
eagle preservation. Surveys and
monitoring are a critical part of any
responsible wildlife management
framework that includes permitting take
in populations that are already
significantly affected by anthropogenic
sources of mortality.
Comment: The Service should use
both a quantitative and qualitative
approach. The qualitative criteria could
be used when there is not enough data
in an area to set population objectives
and take thresholds.
Service response: We disagree that a
qualitative approach is warranted for
setting regional population take limits
in areas where we have insufficient data
to say whether permitting take will
result in population declines. The
Service has the statutorily mandated
responsibility to make a positive
determination that the take will be
compatible with eagle preservation
when issuing eagle take permits.
Comment: The Service should
exercise caution when permitting lethal
take of eagles where best science shows
populations are compromised, or
especially where populations are proven
to be ‘sink’ populations.
Service response: We are proposing
incorporation of the LAP cumulative
effects analysis into the permit
evaluation criteria for eagle incidental
take regulations to better protect eagles
at the local scale.
Comment: For golden eagle
management units with adequate
population data and robust populations,
the Service should relax the ‘‘no net
loss’’ standard and implement the
permitting process at levels compatible
with maintaining stable or increasing
populations.
Service response: We would not
require compensatory mitigation for
take in populations that could
withstand additional take without
declines to levels below our population
objective. Our data indicate golden
eagles may already be experiencing
higher take rates from unauthorized take
than can be sustained. Accordingly, all
take we authorize above EMU take
limits must be offset.
Comment: The Service should adopt a
low-risk tolerance (cautious approach)
to management of golden eagles in the
Southwest (Bird Conservation Region
16) because of changes in climate, land

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management and resource development,
and continued human population
growth.
Service response: We are proposing to
adopt a risk-averse stance that
minimizes the chances that our permit
program will negatively affect the
population trajectory of both species.
The take limits we are proposing are
derived by using conservative estimates
of population size and then using a
conservative approach to determine
how much take those (potentially
underestimated) populations can absorb
without experiencing declines. We also
use compensatory mitigation to offset all
take permitted that might exceed what
is sustainable, and for golden eagles, are
proposing to compensate for take at a
greater than one-to-one ratio.
Comment: The Service should set
population goals. Quantitative
objectives allow States to measure
progress towards goals, are an essential
feature of adaptive management
strategies, and are the best way to
ensure that eagle populations remain
secure.
Comment: Numerical population
objectives alone are not sufficient to
guide permitting decisions without
appropriate take thresholds and/or caps
for regional and local populations.
Service response: We agree that an
ideal approach would include take
limits and numerical population
objectives based on conservation plans.
We would like to develop specific eagle
population objectives for each EMU and
then use these objectives to inform
permit decisions within the EMUs.
However, this goal is not feasible at this
time given the lack of fine-scale
information on eagle populations that
would be necessary. The technical and
logistical complexities of working with
State agencies and tribes to set
population objectives within the
timeframe of this action are impractical.
Comment: The ECPG and the 2009
permit regulations are inconsistent as to
whether the maximum take thresholds
are set at ‘‘1% of annual productivity’’
or ‘‘1% of population.’’
Service response: The ECPG and 2009
regulations differ purposefully with
respect to the population component
against which the take limit is applied.
The reason for this difference is
described in detail on page 80 of the
ECPG. However, we are proposing to
revise the current approach and base
take limits on a percentage of the EMU
population instead of estimated annual
productivity, making the regulations, in
this respect, similar to the ECPG. We
now believe it is more appropriate to
track and manage take limits when they
are based on applying a harvest rate to

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total population size, since take is
occurring in all age classes, and we have
conducted analyses to determine what
take rates, when applied in this way, are
compatible with our management
objectives.
Comment: The Service should
develop a new Maximum Sustained
Yield take threshold model based on the
take of adult individuals from the
population, rather than the removal of
juveniles (as was the basis for the 2009
FEA) because the removal of juveniles
has less of an impact than removal of
mature individuals.
Service response: The 2009 FEA used
a harvest model that imposed take in
proportion to abundance across all age
classes. Take was not assumed to be
restricted to juveniles. In the draft
DPEIS for this action, the Service has
updated and revised its modeling of the
effects of take on eagle populations, and
we continue to assume incidental take
affects all age classes in proportion to
abundance.
Comment: Eagle population status
should be assessed every 5 years using
the best scientific methodologies
available.
Comment: The Service should
reevaluate new information (data) that
may affect management decisions or
take permits on an annual basis.
Incorporation of new, peer-reviewed
research needs to occur quickly because
predator populations can experience
sudden, drastic changes.
Service response: Our intention is to
assess population status every 6 years,
but management decisions and issuance
of take permits will incorporate the best
available scientific information on an
ongoing basis.
Comment: The current rulemaking
should take this opportunity to address
the differences between bald eagles and
golden eagles in terms of their natural
history, habitat requirements, and
behavior and address how the
management units, risk models, and
mitigation measures planned for each
reflect the conservation requirements of
that species.
Service response: In general,
regulations should include provisions
that will apply based on the status,
trends, and threats, as well as the
natural history and behaviors, of the
species they protect, no matter which
species it is. For example, the ESA does
not contain species-specific criteria, but
its provisions adaptively apply to any
species listed as threatened or
endangered. The status of species tends
to change over time. For example, 30
years ago, more restrictive provisions
would have been appropriate for bald
eagles than for golden eagles. To

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adequately encompass changes in
population size and trend, the
regulations should be designed to
provide the appropriate level of
protection for either and both species.
These regulations propose to do that by
incorporating take limits at the EMU
level established in the DPEIS and
adjusted in the future, through
subsequent surveys and analysis. We
also propose to require various analyses
that are informed by differences
between the two species based on their
conservation status, as well as their
natural history, habitat and prey
requirements, and behaviors. Those
differences underpin our management
objectives and how we apply the
regulations ‘‘on the ground.’’ The DPEIS
for this action and various guidance
documents also reflects biological and
behavioral differences between the
species.
Comment: The revised management
scheme needs to clarify whether take
caps are hard or flexible. The Service
has issued permits that exceed the 5%
local area population cap but has not
articulated under what circumstances
ignoring the cap is acceptable and how
it is consistent with the preservation
standard.
Service response: Currently, the 5%
local area population ‘‘cap’’ is guidance,
not a hard limit. Under the proposed
regulations, the Service would not issue
permits that result in cumulative take
within the LAP exceeding 5% unless
the Service conducts additional analysis
showing that permitting take over 5% of
that LAP would not have a long-term
detrimental effect to the LAP that would
be incompatible with the preservation of
eagles. Examples of situations where the
Service may be able to sufficiently
document that a permit authorizing take
above 5% of the LAP would not be
inconsistent with the preservation
standard might include: If the project is
already in operation and the permit
conditions would result in a reduction
of take; or compensatory mitigation will
be applied within the LAP.
Comment: The Service should
reconsider the position that ‘‘historic’’
or ‘‘baseline’’ types of take should not
count against the take thresholds.
Failure to evaluate these types of take
will lead to an over-estimation of the
Maximum Sustained Yield as described
in the Final Environmental Assessment
on the 2009 permit regulations.
Service response: Take thresholds (or
limits) are measured against population
sizes that existed in 2009 when the two
new eagle take permit regulations were
put in place. Those populations were
experiencing a certain amount of take at
that point that we are considering

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baseline for purposes of measuring how
much additional take the populations
can sustain while maintaining stable or
increasing breeding populations. Take
that was occurring prior to 2009 was
reflected in the population level (golden
eagles) or rate of growth (bald eagles)
that existed in 2009. Accordingly, the
Service’s position when it established
the 2009 take levels is that applicants
seeking the newly available take permits
for golden eagle take that had been
occurring prior to 2009, or bald eagle
take in the EMU where take limits were
set at zero (i.e., in the Southwest),
would not need to provide offsetting
mitigation because the take is not
additive to already existing take levels.
Those applicants would be required to
avoid and minimize to the maximum
degree practicable, with the goal of
reducing take from their activities.
Recent data indicate golden eagle
populations would likely stabilize at a
significantly higher population level if
sources of unauthorized take are
removed. Applicants for incidental take
permits whose activities have been
taking eagles prior to 2009 and have had
more than 6 years to apply for permits
may be required to address past take by
entering a settlement agreement before
being issued a permit for future take.
Such agreements would require the
company to undertake corrective actions
and pay penalties for unpermitted past
take, among other actions.
Comment: The Service should
conduct an analysis to assess the
relative contribution of ‘historical’ or
‘baseline’ types of take to the overall
take that might be expected.
Service response: We are unsure if
this commenter meant that we should
analyze how much of the take we expect
to permit will consist of take that was
historical (ongoing prior to 2009), or
that we should analyze how much take
that will occur in the future, whether
permitted or not, was historical. At any
rate, we agree that a better
understanding of how much eagle take
was occurring prior to 2009 would be
useful. There is not an abundance of
data to inform us about the extent of
different sources of take in years
preceding 2009, but in 2015, we used
survival rate estimates that omitted the
fraction of mortality caused by
anthropogenic activities, under the
assumption that this artificially high
mortality was keeping golden eagle
populations at a lower equilibrium size
than would otherwise be the case. This
analysis suggested that, in the absence
of ongoing anthropogenic take, and
assuming food did not become limiting,
the western U.S. golden eagle
population would be stabilized at about

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70,000 individuals, or 1.75 times its
current size. Virtually none of that
ongoing anthropogenic take is
authorized.
We have attempted to research the
extent of one form of historical take via
the DPEIS on this action: Take for
Native American religious use. More
information about this type of take
would allow the Service to better
determine that the take can be
considered baseline when we issue
eagle take permits to tribes.
Permit Duration/Tenure
Comment: The EIS should include an
alternative that returns to 5 years as the
maximum permit duration and also the
effects of not renewing a take permit
after its 5-year duration.
Service response: Three of the five
DPEIS alternatives include the provision
that 5 years is the maximum permit
tenure. Analyzing the effects of not
renewing individual take permits after 5
years would be speculative at this stage
and would need to be considered on a
case-by-case basis.
Comment: The recent revisions to the
permit regulations that allow for permits
to be issued for up to 30 years endanger
eagles. There is not enough data or
analysis to support permits of this
duration.
Comment: The extension of maximum
permit tenure to 30 years is appropriate
and will encourage project proponents
to obtain eagle take permits and commit
to the associated conservation measures
that will benefit eagles.
Comment: The programmatic take
permittees should be subjected to a 3year renewal and review cycle.
Technology in the wind industry is
changing at a speed that long-term
permit requirements would not be able
to capture.
Comment: The maximum
programmatic permit tenure should be
15 years with thorough and effective
review every 5 years. These reviews
should be independent of permitteederived monitoring results.
Comment: The maximum permit
tenure should be 20 years with the
option for review and permit renewal
for an additional 10 years. However, this
20-year permit must require that postconstruction monitoring occur annually
in years 1–5 and then every third year
for the balance of the permit.
Comment: For projects that will have
a longer lifespan or a more lengthy
Federal license or permit term, the
Service should revise the regulations to
retain the flexibility to grant
programmatic take permits that extend
beyond 30 years so that the permit term
is coextensive with the life of the

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project, or at least consistent with the
term of the Federal authorization.
Service response: We believe the 5year maximum permit term is
unnecessarily burdensome for
businesses engaged in long-term actions
that have the potential to incidentally
take bald or golden eagles over the
lifetime of the activity. It has also had
the unintended effect of discouraging
proponents of long-term activities from
applying for permits, despite the risk of
violating the statute. With longer term
permits, the Service has the ability to
build adaptive management measures
into the permit conditions. This
approach provides a degree of certainty
to project proponents because they
understand what may be required to
remain compliant with the terms and
conditions of their permits in the future.
This information allows companies to
plan accordingly by allocating resources
so that they will be available if needed
to implement additional conservation
measures if necessary to remain in
compliance with statutory and
regulatory requirements.
The Service cannot require any entity
to apply for an eagle take permit (except
under legal settlement agreements), with
the result that some project proponents
build and operate without eagle take
permits in areas where eagles are likely
to be taken. The 5-year permit duration
limit has exacerbated this situation for
projects with lifetimes much longer than
5 years. When proponents choose to
build projects without seeking permits
because they perceive the application
burdens are too great, the opportunity to
achieve mitigation and conservation
measures is lost. The Service believes
that permitting long-term activities that
are likely to incidentally take eagles,
including working with project
proponents to minimize the impacts,
and securing compensatory mitigation,
is preferable to forgoing that
opportunity because companies
perceive the permit process as being
more onerous than it should be.
Enforcement becomes the other option
when entities take eagles without
permits, and the Service is actively
engaged in numerous investigations
focused on incidental take of eagles.
However, regulatory compliance is
vastly preferred over resorting to
enforcement.
If the maximum permit tenure is
extended to 30 years, the Service will
evaluate each permit at no more than 5year intervals. These evaluations will
reassess fatality rates, effectiveness of
measures to reduce take, the appropriate
level of compensatory mitigation, and
eagle population status. Additional
commitments with regard to

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conservation measures may be required
of long-term permittees at the 5-year
permit evaluations. In 2013, when the
maximum term of programmatic permits
was extended from 5 to 30 years (struck
down in 2015), language was included
in the regulations limiting additional
conservation measures that could be
required of the permittee to those
contemplated at the time the permit was
issued. However, that language was
based on the requirement that all
permittees would be required to
implement advanced conservation
practices that reduce take to the point
where it is unavoidable. As part of the
Management Common to All Action
Alternatives, long-term permittees
would be subject to the same criterion
as holders of standard permits have
been under the current regulations:
They would be required to undertake all
practicable measures to reduce take and
would no longer be required to
implement ACPs to reduce take to the
point where any remaining take is
unavoidable. To ensure eagles are
adequately protected, based on the
results of the 5-year evaluations, the
Service may require long-term
permittees to undertake additional
conservation measures that are
practicable and reasonably likely to
reduce risk to eagles based on the best
scientific information available.
With regard to the suggestion that
maximum permit tenure should be
longer than 30 years, we disagree at this
time because 30 years should cover the
duration of most projects that are likely
to need incidental take permits and is a
reasonable period in which to
adaptively manage permitted activities
without requiring a new permit. Permit
renewal will be an available option for
permitted projects that operate for
longer than 30 years.
Comment: The regulations need to
retain the provision that the Service
may suspend or revoke permits if
necessary to protect eagles.
Service response: Revocation and
suspension remain discretionary
options under these proposed
regulations.
Permit Application Process, Permitting
Decision Process, and Issuance Criteria
Comment: Some Service Regions have
imposed a requirement that applicants
prepare Service-approved Bird and Bat
Conservation Strategies as part of the
permit application. The regulations do
not require this action, and evaluation
of non-eagle species should not rise to
the level of an approved plan for a
Service decision in support of issuing
an eagle take permit.

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Service response: By regulation (50
CFR 13.21(c)), any permit
‘‘automatically incorporates within its
terms the conditions and requirements
of subpart D of this part and of any
part(s) or section(s) specifically
authorizing or governing the activity for
which the permit is issued, as well as
any other conditions deemed
appropriate and included on the face of
the permit’’ (emphasis added).
Development and compliance with Bird
and Bat Conservation Strategies to
reduce take of other federally protected
species is appropriate in light of the
Service’s responsibilities under Federal
wildlife protection laws.
Comment: The contents of the permit
application form should be explicitly
spelled out in the regulations. The
preamble to the current regulations
states that the application form
requirements are purposefully absent so
the Service can modify them without
undergoing additional rulemaking. This
lack of formal codification could lead to
unintentional, predecisional actions by
the Service, such as deeming
applications incomplete.
Service response: The Service is
required to have all its permit
application forms approved by the
Office of Management and Budget every
3 years. During that process a notice is
published in the Federal Register
allowing the public to comment on the
contents of the forms. Incorporating the
contents of the forms into each permit
regulation would require the Service to
undergo hundreds of additional
rulemakings every 3 years, which would
be redundant, costly, and impracticable.
Comment: It would be beneficial for
the public and government agencies to
clearly understand the approximate (or
maximum) length of time it would take
the Service to complete various eagle
permit applications since the current
process appears to differ from 50 CFR
13.11.
Comment: The regulations should
establish a standardized timeline for
review proportional to the risk posed to
eagles by any given project.
Service response: We agree that
implementation guidance containing
approximate timelines for issuing eagle
take permits would be beneficial. It is
true that § 13.11 implies that permit
application processing will take no
more than 60 days because § 13.11(c)
recommends applicants submit their
applications at least 60 days prior to
commencement of the activity requiring
authorization. Part 13 applies to all
Service permits, most of which are
much simpler to process than eagle take
permits. At present, there is
considerable variation in the time it

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takes to reach a decision on an eagle
incidental take permit, depending on
project duration, complexity, and other
factors. Delays in processing permit
applications are also sometimes due in
part to applicants providing inaccurate
or incomplete information in the
application, including substandard data.
In addition, since the 2009 regulations
were put in place, the Service has been
in the process of revising them. When
the pace of revisions to the regulations
slows so that we can expect a given set
of rule provisions to be in place for the
foreseeable future, and the Service is not
continually making revisions to the
regulations, we plan to develop
implementation guidance given
sufficient agency resources.
Comment: The regulations should
specifically address the requirements for
each type of permit. For example, they
should clarify what level of studies and
which types of documents are needed,
the level of NEPA that is appropriate,
and whether an ECP is required for each
type of permit.
Service response: We do not agree that
it is appropriate, or even possible, to set
out in regulations stipulations as to
what level of NEPA is required (i.e.,
categorical exclusion, EA, or EIS) for
different types of permits or when an
eagle conservation plan is required.
There are too many project-specific
factors to consider, including whether
there is another Federal nexus, the level
of controversy, the status of eagles in the
area, the size and scale of the project,
whether the issuance of a permit for the
activity is precedent-setting, whether
other trust resources will be affected,
and more.
Comment: All environmental reviews
for take permits should be published for
public review and comment.
Service response: We publish a notice
in the Federal Register to notify the
public of their opportunity to review
and comment on most environmental
assessments and all environmental
impact statements undertaken under
NEPA.
Comment: The Final EA, final rule,
and guidance do not specify the
mechanism by which the NEPA
document for individual projects should
be prepared. The regulations should
continue to allow the Service to accept
applicant-prepared EAs to expedite the
permitting process.
Comment: Independent, third parties
not employed directly by the permittee
should conduct the environmental
assessment (EA). This could be
accomplished by the permittee
supplying funds for the EA managed by
the Service.

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Service response: NEPA regulations
allow applicants to prepare EAs, and the
preparation could be done in-house or
by a third-party contractor. No matter
who prepares an EA, the Service is
responsible for the adequacy of the
analysis on the effects of the permit
issuance.
Comment: The Service should clarify
that projects seeking take permits will
be subject to NEPA analysis only in
regard to the effects of the permit itself,
and not the authorization of the project
as a whole.
Service response: The NEPA analysis
required when the Service makes a
permit decision is based on the direct,
indirect, and cumulative effects of the
authorization and any mitigation tied to
the authorization.
Comment: For the NEPA analysis on
individual permits, the Service should
use the project-specific NEPA already
undertaken by other Federal agencies,
rather than developing an additional
NEPA document.
Service response: We prefer to be a
cooperating agency and use other
Federal agencies’ NEPA analyses rather
than using our very limited staff and
resources to prepare a second NEPA
document. However, it is sometimes the
case that other Federal agencies have
not taken a hard look at effects to eagles,
particularly in light of the fact that such
effects may change after the Service
works with project proponents to reduce
take. In such cases, we have needed to
prepare an additional NEPA analysis.
Additionally, we receive many permit
applications from non-federal
applicants for projects on private land.
For those applications, the Service has
the sole responsibility for completing
the NEPA obligations. Under this
DPEIS, we are analyzing the effects to
eagles of authorizing take up to certain
levels, which will allow us—and other
agencies—to tier from the DPEIS when
analyzing effects to eagles in most cases.
Comment: The regulations should
apply the same standard for both an
individual and programmatic take—that
a take cannot be practicably avoided.
Comment: The criteria for issuing
programmatic permits under the Eagle
Act, consistent with the requirement for
an Endangered Species Act incidental
take permit, should require avoidance
and minimization only to the maximum
extent that take cannot practicably be
avoided, and then mitigation for
residual take that cannot otherwise be
avoided.
Comment: An ‘‘unavoidable’’
standard could present a high threshold,
where reliability, proven effectiveness,
and cost are not considered in
developing and implementing

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‘‘advanced conservation practices.’’ The
cost of a conservation practice should
have a reasonable relationship to the
potential benefits derived from such a
practice.
Comment: The Service should also
amend the definition of ACPs, to ensure
consistency with the change to the
definition of ‘‘practicable,’’ if the latter
is adopted.
Comment: The standard for
programmatic permits should not be
reduced to what is practicable;
‘‘practicable’’ speaks to money. Birds
should not be sacrificed so people can
save money.
Comment: The standard for
permitting programmatic take should
not be weakened. The only factor that,
at least theoretically, prevents
developers from irresponsibly siting
wind facilities is that remaining take
must be unavoidable in order to be
permitted. The Service must implement
its own regulations requiring applicants
to avoid and minimize take to the
degree that remaining take is
unavoidable, and not permit wind
facilities at sites used by eagles for
breeding, wintering, and migration.
Under the ‘‘unavoidable’’ standard,
developers should be forced to select
sites outside of eagle habitat.
Comment: The ‘‘unavoidable’’
standard needs to be retained for
programmatic permits because of the
unique cultural stature of the bald eagle
as our national symbol. The enacting
clause of the Bald Eagle Protection Act
of 1940 stated that the bald eagle ‘‘is no
longer a mere bird of biological interest
but a symbol of the American ideals of
freedom.’’
Comment: The ‘‘unavoidability’’
criterion provides the needed pressure
for technological advancement in
conservation measures because it calls
for the implementation of technically
‘‘achievable’’ measures even if some of
those measures are costly, are not the
current industry standard, or must be
further technically developed.
Service response: For the reasons
explained earlier in this preamble, the
Service is proposing to eliminate the
distinction between standard and
programmatic permits and apply the
practicability standard to all permits. In
short, we believe there is no sound
reason to allow consideration of cost,
technology, and logistics for some
permits and not for others. These
proposed regulations would require
potential permittees to implement all
practicable best management practices
and other measures and practices that
are reasonably likely to reduce eagle
take.

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Comment: To the extent that the
Service amends the current issuance
criteria for programmatic permits to
align with the ‘‘practicable avoidance,’’
the term ‘‘practicable’’ should be
redefined as ‘‘capable of being done
after taking into consideration, relative
to the magnitude of the impacts to
eagles: (1) The cost of the remedy for an
actual measurable impact as compared
to the overall benefit and utility of the
project with respect to public interest;
(2) existing technology; and (3) logistics
in light of overall project purposes.’’
Service response: The problem with
including consideration of the ‘‘overall
benefit and utility of the project with
respect to the public interest’’ is that
this is a subjective criterion. For
example, some might argue that
expansion of an airport serves the
public interest by increasing safety and
convenience in flight choices, while
others might point to the increased
landfill, noise, and pollution as
detrimental to the public interest.
Comment: Although a proponent’s
ability to pay can be a relevant factor in
determining the extent of conservation
measures, the determination should also
consider the benefit to the species
derived from the remedy. If the benefit
to the species from an avoidance and
minimization measure is low and the
cost is high, the measure would not be
considered ‘‘practicable.’’
Service response: We are proposing to
adopt the Service’s definition of
‘‘practicable’’ in our proposed revised
Mitigation Policy (see 81 FR 12379,
March 8, 2016). That definition includes
consideration of ‘‘a mitigation measure’s
beneficial value to eagles.’’
Comment: The ‘‘practicable’’ standard
should not take into account the project
proponent’s resources.
Service response: The proposed
definition of ‘‘practicable’’ requires
consideration of the activity’s ‘‘purpose,
scope, and scale’’ rather than
‘‘proponent resources.’’
Comment: The Service should make
permitting decisions on a regional scale
where multiple projects are proposed,
rather than issuing mortality permits to
each facility.
Service response: The option of
issuing regional permits is available. We
have not had a proposal upon which to
make such a permitting decision. The
potential applicants would be
responsible for taking the initiative to
organize a sound regional proposal for
the Service to evaluate. Also, if there
will be prohibited impacts to ESA-listed
species as well as eagles, there is the
option of developing an HCP and
applying for an ESA incidental take

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permit that covers eagles as non-listed
species.
Comment: Recommendations from
wildlife agencies should be
incorporated into the project planning.
Comment: State wildlife agencies
should be consulted in the Federal eagle
take permit process, including the
Service internal, 5-year, non-public
‘‘reviews’’ of programmatic permit
conditions for the 30-year life of a
permit.
Service response: The Service
involves State wildlife agencies to
varying degrees based on the State’s
level of interest in the technical
assistance phase (between initial contact
by an applicant through the permit
application process). We work with
States that have an interest in
coordinating with regard to our eagle
permitting process. We would also work
with those State agencies during the 5year evaluations if long-term permits are
established through this rulemaking.
Comment: The authorized level of
take for all programmatic permits
should be at least two eagles to avoid
requiring immediate reevaluation of a
permit upon the take of one eagle.
Service response: The Service’s
fatality prediction model is specifically
designed to result in a 20% or lower
chance of eagle take exceeding the
permitted number, as long as the preconstruction monitoring data are
representative of future eagle use in the
project area. We believe this percentage
is adequate to ensure the permitted
number is not routinely exceeded. The
point at which a formal reevaluation of
a permit is required is set on a permitby-permit basis, and not necessarily
upon take of one eagle.
Comment: The permit review process
should be transparent and open to full
public review and comment procedures.
Service response: In our view, a
public-comment period for each permit
would not provide an additional benefit
to eagles that would justify the
regulatory burden. In general, permits
for larger scale projects with significant
impacts or that entail a high level of
controversy will be analyzed in a NEPA
document that will be released for
public review and input. Public
involvement may also be triggered at the
permit review or renewal stage if FWS
determines that supplemental NEPA
analysis is required.
Comment: Areas of particular
importance to eagles, such as migratory
corridors and high-density nesting
areas, should not be allowed for wind
development or should have additional
scrutiny in the permitting process.
Service response: In numerous
Service guidance documents and in the

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technical assistance we provide at the
project planning stage, we recommend
that developers avoid areas that are
important to eagles. However, we do not
have the authority to prohibit
development in areas that are important
to eagles. Our role is to evaluate the
level of impacts to eagles when a project
proponent approaches us to inquire
about a permit to authorize eagle take.
We do not have the authority to approve
or veto the actual project.
Data Collection and Analysis
Comment: Pre-construction surveys
using rigorous methods standardized by
the Service for wind energy
development should be mandatory, not
voluntary.
Comment: Two years of independent,
pre-construction monitoring of eagle
behavior, nesting, foraging, and
migration should be required.
Comment: The Service or other thirdparty, professional biologists should
conduct pre-construction surveys.
Service response: These proposed
regulations would require applicants for
permits with durations longer than 5
years to conduct a minimum of 2 years
of pre-application surveys. Wind-energy
generation facility operators would be
required to use the survey methods we
are proposing to incorporate by
reference from the ECPG. The
regulations would provide for waivers if
the wind-energy project applicant
submits, or the Service already
possesses, sufficient documentation
demonstrating a low likelihood of risk
to eagles due to: Physiographic and
biological factors of the project site, or
the project design (i.e., use of proven
technology, micrositing, etc.); or that
expediting the permit process will
benefit eagles.
The Service does not have the
resources to conduct pre-construction
surveys and must rely on permit
applicants to provide these data. The
Service does carefully review the preconstruction survey data for accuracy
and works with applicants to resolve
any discrepancies before accepting the
data as reliable and accurate. Use of
Service-approved or recommended
protocols would facilitate our review
and allow us to better identify data gaps
and other insufficiencies.
Comment: The ECPG recommends 20
hours per turbine per year of sampling
effort, which is an amount far higher
than suggested by simulations using the
Bayesian fatality model. The additional
surveys do not provide a corresponding
benefit in terms of estimating risk, but
are imposing additional costs on
developers. The sampling guidance
should be revised to avoid over-

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sampling. Also, permittees discovered
to have provided false information on
their permit applications may be subject
to criminal penalties under 18 U.S.C.
1001.
Service response: Appendix C of the
Eagle Conservation Plan Guidance
(Module 1, v2; hereafter, ECPG)
discusses sampling effort in multiple
contexts: (1) In terms of the effort that
may be required to validate whether a
project meets Category 3 criteria (e.g., no
eagle fatalities will occur over a 30-year
time span), and (2) in terms of the effort
that the Service recommends when
Stage 1 evidence supports possible
project classification of Category 2 (e.g.,
an eagle take permit is recommended)
and the main objective of the surveys is
estimating risk in terms of predicted
fatalities. Given the variability of natural
systems, the current uncertainty in the
site-specific factors that can increase the
risk of eagle fatalities, and the
sometimes inadequate information
gathered during early site evaluation,
intensive sampling is required to be
reasonably certain that eagle take is not
expected to occur and that the project
would not require an eagle take permit.
The example in the ECPG that
calculates 20 hours of sampling required
per turbine is specific to a project with
40 2.5–MW turbines with a 100-m rotor
diameter where the objective is to
validate a Category 3 classification. For
assessing risk of a potential Category 2
project, the ECPG recommends a
minimum of 1 hour of observation per
800-meter survey plot per month, but at
least 2 hours of observation per survey
plot is warranted for a season for which
Stage 1 evidence is ambiguous or
suggests high use. The ECPG also
recommends sampling at least 30% of
the total footprint of the project
hazardous area and that surveys should
be conducted for at least 2 years prior
to project construction.
The per-turbine effort for this
minimum level of sampling will depend
on turbine configuration and spacing.
To accurately predict risk to eagles,
sampling must provide data that are
representative of eagle use at the site
during all times of day across seasons
and years. The benefit of additional data
in terms of predicting risk will depend
in part on the variability of eagle use at
the site. The Service advises potential
permit applicants to coordinate closely
with the Service regarding the
appropriate sampling effort, as sampling
considerations are complex and depend
in part on case-specific objectives.
Comment: The ECPG is intended to
guide project proponents and Service
personnel in evaluating risk to eagles
and developing eagle conservation plans

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(ECPs) and permit applications.
However, different Service Regions have
developed modified guidance. The
Service should ensure standardization
of the guidance nationally.
Service response: Differences in
regional recommendations for applying
the ECPG are expected, and not
inconsistent with the ECPG, which was
designed to be an adaptable framework
that provides for flexibility in
application based on geographic and
project-specific variability. However,
the Service strives to be as consistent as
possible, and regularly coordinates
between Regions to foster consistent
applications of our laws, regulations,
policies, and guidance governing eagles.
Comment: As it is critical for
assessing risk, the Service should
require radar data at different times of
the year and weather conditions to
monitor activity and height of migratory
birds flying through the area.
Service response: Our guidance does
not exclude the use of radar. It allows
the most appropriate field method to be
selected based on site-specific factors.
However, radar has so far not proven
very useful or effective, either for
monitoring or for curtailment. None of
the current radar systems are capable of
providing reliable data on eagles (or
raptors) at the necessary scales. That
said, we are supporting testing, and if
practicable technology is developed that
provides useful and reliable data, we
would likely require its use.
Comment: Fatality prediction models
should be different for the two species
based on the apparently different
behavior and risk profiles of each
species. The prior probabilities for
exposure and collision of golden eagles
are based on data at old wind facilities
in the western United States and are
unlikely to be representative of bald
eagles and will overestimate project
risk. The Service should replace these
priors with empirical data on bald
eagles at modern wind energy facilities.
Service response: We are aware of
arguments that the Service wind
collision probability model predicts
high rates of bald eagle fatalities at wind
facilities given the low number that
have actually been reported. We do not
disagree that bald eagles may prove to
be less at risk from blade-strike
mortality than golden eagles, but the
data available to us are not sufficient to
make that conclusion at this time.
Reasons are: (1) The Service has yet to
be provided with strong pre- and postconstruction bald eagle use and fatality
data from any wind project where there
is high bald eagle use; (2) bald eagles
congregate in larger numbers than
golden eagles, and, while in those

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concentrations, they engage in social
behaviors that may increase their risk to
blade strikes at a project sited in such
an area; (3) in some of the areas where
bald eagles congregate, there are
multiple fatalities each year of bald
eagles that fly into static power
distribution lines and vehicles,
suggesting that as a species they do not
possess a superior ability to avoid
collisions; and (4) there is a thorough
study in Norway that documents a
substantial population-level negative
effect of a wind facility there on a
population of the closely related whitetailed eagle (Haliaeetus albicilla) as a
result of blade-strike mortality. For all
these reasons, the Service currently
determines that it is reasonable and
prudent to consider bald eagles to be
equally vulnerable to blade-strike
mortality as golden eagles until
verifiable data become available to
estimate a specific collision probability
for bald eagles. If data become available
in the future demonstrating that bald
eagles are less (or more) vulnerable to
blade-strike mortality, we will revisit
whether to draft a separate collision
probability model for bald eagles.
Comment: Exposure-based models
used to predict mortality during preconstruction risk assessments should be
tested for accuracy, and new models
should be developed that take
cumulative impacts of all sources of
mortality into account.
Service response: We agree, and the
model framework the Service is using is
specifically designed to easily
incorporate new information gained
through use and testing. We will
periodically refine the model as new
data are obtained.
Comment: The Eagle Conservation
Plan Guidelines (ECPG) indicate that
eagle nest surveys should be conducted
in the project area, which it defines as
the area within the project boundary
plus a 10-mile radius surrounding the
project. However, the 10-mile radius
recommendation was based on golden
eagles in the desert southwest and is of
questionable value in other areas and
unnecessary for bald eagles. The Service
should develop appropriate national
standardized criteria that are speciesspecific and based upon region-specific
information.
Service response: This comment is not
accurate. Appendix C of the ECPG,
where the Stage 2 surveys are described,
says, ‘‘If recent (i.e., within the past 5
years) data are available on spacing of
occupied eagle nests for the project area
nesting population, the data can be used
to delineate an appropriate boundary for
the project area as described in
Appendix H. Otherwise, we suggest that

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project area be defined as the project
footprint and all area within 10 miles.’’
In Appendix H, the ECPG states, ‘‘Eagle
nesting territories most likely to be
affected by disturbance from a wind
project are those that have use areas
within or adjacent to the project
footprint. The Service will accept an
assumption that all eagle pairs at or
within the mean project-area inter-nest
distance (as determined from the Stage
2 assessment) of the project boundary
are territories that may be at risk of
disturbance (e.g., if the mean
nearest-neighbor distance between
simultaneously occupied eagle
territories in the Stage 2 assessment is
2 miles, we would expect disturbance to
most likely affect eagles within 2 miles
of the project boundary; Figures H–1
though H–4). Eagle pairs nesting within
1⁄2 the project-area mean inter-nest
distance are the highest candidates for
disturbance effects, and should receive
special attention and consideration.’’
Thus, the ECPG advocates surveying for
eagle nests within the mean inter-nest
distance of the project boundary, and
only extending this distance out to 10
miles if recent data on nest spacing is
not available.
Comment: There is a need for greater
clarification on risk assessment and
monitoring specifications/requirements
for electric utilities and other industries,
such as mining. The Service should
develop eagle conservation plan
guidance for these other industries.
Service response: We intend to
develop guidance for other industries in
the future, as resources allow.
Comment: All information generated
for a proposed or operational wind
energy project should be downloaded to
a free, user-friendly Service docket to
bring much needed transparency to the
process.
Service response: We will consider
developing a process that requires more
transparency for projects going through
the permit application process, although
we note that such a process would not
allow public access to any confidential
business information or other trade
secrets submitted to the Service by a
project proponent.
Permit Conditions, Adaptive
Management, Project Monitoring, and 5Year Reviews
Comment: An independent third
party entity and not the permittee
should conduct monitoring, with
oversight by the Service. The party
could be paid through a trustee by
companies.
Service response: The Service is
investigating the use of third party
environmental compliance monitors.

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There are benefits to using third party
monitors, particularly the more
objective observation and reporting of
wildlife injuries and mortalities.
However, there can be considerable
costs to using third party monitors, and
so it may be considered unreasonably
burdensome for some smaller
operations. It may be a viable option for
permits for large, utility-scale projects.
Comment: With regard to monitoring
at wind power facilities, there is a need
for peer-reviewed research-based risk
models and standardized monitoring
criteria.
Service response: These proposed
regulations would require wind energy
project permittees to use the monitoring
protocols in the ECPG. We, along with
USGS partners, have also published
three scientific papers on methods and
approaches that we recommend for
estimating risk and fatality rates at wind
projects, and we continue to work to
improve these assessment tools. As it
becomes clear which approaches are
best, we intend to standardize
monitoring protocols under permits to
the maximum extent practicable.
However, the best monitoring approach
may differ under different site-specific
conditions (e.g., the best monitoring
approach at a low-risk site is likely to
be different than the best approach at a
high-risk site).
Comment: The regulations should
provide that all data on bird mortality
at specific wind energy sites be made
available for meaningful stakeholder
(public) review and analysis, including
analyses of the effectiveness of postconstruction mitigation, and the status
of experimental measures and adaptive
management prescriptions.
Service response: The current
regulations provide that eagle mortality
reports from permitted facilities will be
available to the public. We will also
release mortality data on other
migratory birds if we receive that data
as a condition of the permit, provided
no exemptions of the Freedom of
Information Act (FOIA) (5 U.S.C. 552)
apply to such a release. If we receive
mortality data on a voluntary basis and
we conclude it is commercial
information, it may be subject to
Exemption 4 of the FOIA, which
prevents disclosure of voluntarily
submitted commercial information
when that information is privileged or
confidential.
Comment: The revised rule should
clarify what is required and what
analysis is performed at 5-year reviews.
Comment: The 5-year reviews should
account for eagles that abandon nests,
eagles that continue to breed, any nest

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that is removed, and all eagle mortalities
associated with the project.
Comment: Five-year permit reviews
should be informal discussions bound
by mitigation options and costs defined
by the permit.
Service response: Under these
proposed regulations, the 5-year
evaluations would be more than
informal discussions with permittees.
During each 5-year review, we would
reassess post-construction monitoring,
take rates, including disturbance,
fatalities; effectiveness of measures to
reduce take; the appropriate amount and
effectiveness of compensatory
mitigation; and the status of the eagle
population. Depending on the findings
of the review, we may make changes to
a permit as necessary, including
updating fatality predictions for the
facility; requiring implementation of
additional conservation measures that
are practicable for the permittee to
implement; updating monitoring
requirements; or adjusting
compensatory mitigation requirements.
Additional post-implementation
monitoring may be required to
determine the effectiveness of
additional conservation measures.
Comment: Five-year reviews create
uncertainty for permittees. The Service
should incorporate provisions similar to
the Habitat Conservation Plan
Assurance Rule for incidental take
permits issued under the Endangered
Species Act. This approach would
provide regulatory assurances to permit
holders and incorporate a greater degree
of certainty in the 30-year programmatic
permit process.
Service response: There is sufficient
management uncertainty regarding this
relatively new permit program to
warrant the proposed 5-year reviews,
including the need for data to refine
population models, survey protocols
and avoidance and minimization
measures. We note that many ESA
incidental take permits contain adaptive
management provisions that may
change management prescriptions or
mitigation measures based on new
information that are similar in purpose
as the proposed 5-year reviews.
Additionally, without such reviews,
there would be detrimental effects to
permittees if long-term permit
conditions prove to be unnecessarily
precautionary.
Comment: If the required postconstruction monitoring determines
take will exceed the pre-construction
estimates, the project should be placed
on a shorter reevaluation cycle.
Service response: Depending on the
degree of discrepancy between
predicted and actual take, the Service

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may need to take timely action to
evaluate the permitted activity to
determine whether the permittee must
implement additional measures and/or
contribute additional mitigation.
However, one effect of adopting a
conservative take projection model is
that only 20% of projects are likely to
exceed take. For 80% of the permits
issued, take is expected to be
overestimated. This situation helps to
provide the permittee more certainty
that the authorized take level will not be
exceeded in the majority of cases. While
we have adopted such a model only for
wind energy projects at this point, we
hope to develop similar predictive
models for other activities using
information we gather under permits.
Comment: Trigger mechanisms that
will require additional measures by the
permittee must be clearly identified
prior to permit issuance and spelled out
in the permit.
Service response: We agree that
reasonably foreseeable circumstances
that may require additional mitigation
should be identified and included in the
permit conditions. Such circumstances
include but are not limited to: a higherthan-anticipated take rate, take resulting
from an unexpected source within the
permittee’s purview, or an
unanticipated significant detrimental
change in the status of the local area or
regional eagle population. For long-term
take permits, during the 5-year review
periods the Service may require
additional avoidance and minimization
measures if such measures are likely to
reduce take and are practicable for the
permittee to implement. For example, if
newer technology is shown to decrease
eagle mortality or increase carcass
detection, and could be implemented
without unreasonable cost, employment
of that technological advancement may
be required.
Comment: The Service must retain the
option not to renew a take permit at the
5-year review if the level of eagle kills
exceeds the permitted threshold and
may impact populations.
Service response: With regard to longterm permits, if these regulations result
in the Service being able to issue
permits with terms longer than 5 years,
the Service will make any necessary
amendments to the permit at each 5year review, but will always retain the
ability to suspend and/or revoke the
permit in accordance with 50 CFR 13.27
and 13.28. For expiring permits, we
intend to retain the ability to deny
renewal of the permit in accordance
with 50 CFR 13.22, and if renewal is not
consistent with the permit issuance
criteria of the regulation. Renewal of a

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permit constitutes issuance of a new
permit (see 50 CFR 13.11(d)(6)).
Comment: When changes to the
permit terms and conditions are
expected by the Service during the term
of the permit, the permittee should be
provided as much advance notice as
possible to plan and budget for potential
changes in mitigation requirements.
Periodic meetings (e.g., annually)
between the permittee and the Service
would be appropriate to ensure that
both parties are informed on any
potential issues or concerns.
Service response: We agree that a
permittee should be provided as much
advance notice as possible about
potential changes in mitigation
requirements.
Comment: The 2013 revised
regulations do not define what
advanced conservation practices will
consist of for long-term permits.
Standards are needed for these
advanced practices that evolve with
changing science.
Service response: We are proposing to
eliminate the requirement for ACPs.
Permittees would still be required to
implement all practicable measures to
avoid and minimize take. As the
commenter notes, practices and
measures to reduce take evolve over
time, even within a single industry. For
that reason, and because the regulations
are not specific to one industry,
incorporation into the regulations of
particular practices for all activities that
may take eagles would not be feasible,
nor would it be advisable, since doing
so would mean the regulations would
constantly need updating.
Comment: The Service should
redefine ACPs as ‘‘scientifically
supportable measures or testing of
experimental measures that are
approved by the Service to reduce eagle
disturbance and ongoing mortalities to a
level where remaining take cannot
practicably be avoided.’’
Service response: We are proposing to
remove the requirement to implement
ACPs from the regulations. As part of
requiring avoidance and minimization
to the maximum extent practicable,
some permits require implementation of
experimental measures that show
promise for reducing take. Not only are
such measures likely to reduce take at
many projects, their inclusion as
conditions of permits provides the
opportunity to test their efficacy for
wider use.
Comment: The Service should require
the following measures at wind-energy
projects: Increase frequency of turbine
site inspection to search for physical
evidence of mortality/injury event;
develop and employ video surveillance

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and other technologies (impact alarms);
and/or provide onsite personnel
quarters to facilitate monitoring of larger
wind farms.
Service response: The practices listed
by this commenter are not
demonstrated, effective best
management practices at this time.
However, the Service could require a
permittee to conduct any of these
activities as permit conditions if we
determine such measures are effective,
practicable, and necessary.
Comment: Minimization strategies
should include seasonal curtailment
during known periods of high avian use,
as well as observation-based shutdown
of turbines when eagles are within a
specified distance of wind turbines. The
cost of detection devices and methods to
discourage eagles from using a site
should be built into the project budget,
as should the cost of temporary
shutdown of the project, if necessary,
during migrations.
Service response: These are all
minimization strategies that are being
evaluated. However, data collected so
far are equivocal with respect to their
effectiveness, at least in some situations,
so as a result the Service is not currently
proposing to require them universally at
all projects. The Service does consider
appropriate minimization strategies on a
project-by-project basis, and we intend
to require permittees to continue to test
their effectiveness as part of the
adaptive management process under
permits and apply the strategies that
turn out to be effective.
Comment: In a migration pathway, the
use of radar to detect migrating raptors
and on-the-ground observers should be
considered during migration periods.
Service response: As we explained in
an earlier response to a comment on our
collision risk model for wind power,
radar has not proven effective, at this
point, for either monitoring or
curtailment. If advances in technology
result in radar systems that provide
reliable data on eagles (or raptors), we
would likely encourage their use.

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Compensatory Mitigation
Comment: The regulations should
require compensatory mitigation for all
permits associated with (1) anticipated
or known fatalities; (2) anticipated or
known loss of productivity; and
anticipated or permanent loss of an
important use area, including breeding
areas, nest sites, foraging areas, and
migration corridors.
Comment: The regulations should
make compensatory mitigation
mandatory for all wind energy facilities
and associated transmission towers and

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lines at which federally protected birds
are being taken.
Comment: All industrial permittees
should be required to provide
compensatory mitigation in order to
make preservation of eagles a priority
for those companies.
Comment: Compensatory mitigation
requirements should be required as
replacement mitigation only for take
that exceeds established take thresholds
and for populations that are not healthy
enough to sustain additional mortality.
Comment: There should be higher
standards of avoidance and mandatory
mitigation for: populations not able to
sustain take, important eagle use areas,
Important Bird Areas (IBAs) and other
special protection areas, eagle migration
corridors, and areas of high-value
habitat—particularly areas known for
eagle use for foraging, nesting, or
concentrated migration activity.
Comment: Compensatory mitigation
should not be required for all
programmatic permits. The regulations
should be amended to provide that
compensatory mitigation will be
considered on a case-by-case basis.
Comment: All lethal take of eagles
should require compensatory
mitigation.
Service response: One of the primary
goals of these rule revisions is to
increase consistency with regard to
compensatory mitigation requirements.
The approach we are proposing is to
require compensatory mitigation only
where the permitted take would
otherwise be inconsistent with
management goals (i.e., when it would
be incompatible with the preservation of
eagles). The requirement would apply to
any take that would exceed EMU take
thresholds. Compensatory mitigation
may also be required in some cases
when take would exceed LAP
cumulative take limits, or if otherwise
necessary to maintain the persistence of
local eagle populations throughout their
geographic range. Accordingly, these
proposed regulations would not require
compensatory mitigation only for lethal
take or for all lethal take.
We also do not agree that
compensatory mitigation should be
required only for certain types of
industries, or only for take that results
from a commercial or industrial activity.
Whether an entity is commercial does
not, by itself, affect the degree of
impacts to eagles. To the degree that
industrial permits entail greater
detrimental effects to eagles than a
typical homeowner permit, those
permittees will be required to contribute
additional compensatory mitigation.
Comment: The regulations should
require that conservation measures or

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monetary contributions be applied to
the county where the impacts are
generated.
Comment: Compensatory mitigation
for impacts should be implemented
within the local, or at least regional,
area population to avoid creating local
population sinks.
Comment: The Service should allow
mitigation to occur outside the eagle
management unit where the take
occurred, based on whether the eagle(s)
taken was migratory or resident, as long
as those mitigation efforts help eagle
populations in that EMU.
Service response: The approach we
are proposing would require
compensatory mitigation to be applied
within the EMU where the take occurs,
with the exception that effective
mitigation for take of Alaskan golden
eagles could occur in the Central
Flyway as opposed to the Pacific
Flyway because a substantial proportion
of the mortality of golden eagles
originating in Alaska occurs on
migration or during winter in the
interior western coterminous United
States and north-central Mexico
(McIntyre 2012). If we had the ability to
know what percentage of eagles taken
are from the breeding population of the
EMU versus eagles that are wintering
there or migrating through, we could
allocate some compensatory mitigation
for take of the non-breeding population,
but we do not at present have the means
to precisely calculate those numbers for
most areas of the United States. A
requirement to apply compensatory
mitigation at a finer scale than within
the EMU, whether at the county or local
area population level, is not feasible to
administer, and also would not account
for migrating or wintering eagles.
Allowing mitigation within the whole
EMU better addresses take of eagles
from outside the local-area breeding
population. In most cases, allowing
mitigation outside of the EMU may not
sufficiently mitigate for project impacts,
which we generally expect to affect
eagles primarily within the EMU where
the project is located.
Comment: The Service should
develop metrics to address
compensatory mitigation for impacts to
eagles outside the breeding population
(i.e., on wintering grounds and during
migration).
Service response: We recognize that
eagles taken under a permit do not all
originate from the local breeding
population around that project.
However, just as eagles killed at a
project do not all derive locally, eagles
benefitting from mitigation to reduce
mortality near a project also do not all
derive from the project area. We agree

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that metrics are needed to better track
whether wintering, migrating, or
breeding eagles are impacted by a
project, and we are working with
academic and agency collaborators to
develop a genetic/isotopic assignment
test to allow us to better track the natal
origins of eagles killed under each of
our permits.
Comment: It is appropriate not to
require compensatory mitigation for
historic religious take by tribes;
however, the Service should direct other
permittees’ mitigation efforts into the
areas where the religious take occurs.
Service response: Compensatory
mitigation would be carried out within
the EMU where the take occurred,
unless the Service has reliable data
showing that the population affected by
the take includes individuals that are
reasonably likely to use another EMU
during part of their seasonal migration.
It may be appropriate in some instances
to implement compensatory mitigation
measures on tribal lands, but it would
not be a requirement. We would
encourage any interested tribe to work
with applicants or applicable national/
regional mitigation banks or in-lieu-fee
programs to implement compensatory
mitigation measures on its lands if the
tribe wishes to do so.
Comment: Options for mitigation
should include:
• An ammunition exchange in
locations where eagles are impacted by
lead;
• Funding for identification and
carcass removal programs that would
remove carcasses from areas where
eagles collide with vehicles or trains;
• Habitat enhancement funding or
purchasing mitigation lands through
commercial habitat banks;
• Funding for appropriate research
efforts;
• Reduction of unintentional
poisoning;
• Implementation of a reward system
to reduce poaching;
• Reduction of mortality from vehicle
collisions and road kill-collisions
through road kill-carcass removal
efforts;
• Shifting to use of nontoxic
ammunition via hunter education and
voluntary lead abatement;
• Reduction of stock tank drowning;
• Implementation of a whistleblower
rewards system to reduce poaching;
• A reduction of the impacts of
secondary trapping;
• Funding of rehabilitation centers;
• Chelation to reduce lead levels in
eagles;
• Funding of livestock depredation
compensation programs to encourage
landowners to protect eagles;

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• Improved management of public
recreational activities that reduce eagle
productivity;
• Prey management programs;
• Habitat preservation;
• Habitat restoration;
• Reduction of unintentional
poisoning;
• Captive-breeding programs;
• Utility line marking to prevent
collisions;
• Nest discourager/excluder
installation;
• Contributions to eagle management
programs.
Service response: We believe some of
these actions have greater potential than
others to benefit eagles and compensate
for permitted take. Whether
compensatory mitigation is provided by
the permittee or a third party like a
conservation bank or in-lieu fee
program, all mitigation will be held to
the same high, equivalent standards. For
mitigation actions with more
uncertainty concerning their
effectiveness in compensating for
project impacts, mitigation accounting
systems would be used to increase the
amount of mitigation required.
Comment: Retrofitting cannot be the
only replacement (offsetting) mitigation
option available. A utility should have
the opportunity to review proposed
retrofitting and/or refuse. The Service
needs to have flexibility on type of
mitigation required.
Service response: Power line
retrofitting is not the only compensatory
mitigation approach allowed by the
Service, a point that is repeatedly made
in the ECPG. In addition, under this
proposed rule, the Service will allow
compensatory mitigation measures and
programs that face more risk and
uncertainty provided mitigation
accounting systems factor in risk and
adjust metrics, mitigation ratios, and the
amount of required mitigation to
account for uncertainty.
Comment: Mitigation should focus
upon the replacement of suitable eagle
habitat. Conservation of nest sites and
potential nest sites in vulnerable areas
should be a high priority in light of the
continued loss of habitat and nesting
sites. Habitat-based mitigation could
include: (1) Fire prevention measures in
areas with golden eagle breeding
territories that are at high fire risk, (2)
removal and control of nonnative
grasses, which are known to increase
fire risk and may also decrease golden
eagle prey abundance, and (3)
conservation easements to protect
known golden eagle breeding territories
that are at risk of residential,
agricultural, or energy development.

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Service response: All mitigation
authorized in this proposed rule must
meet the same high, equivalent
standards. With reference to eagle
permits, compensatory mitigation, when
required, must consist of actions that
either reduce another ongoing form of
mortality to a level equal to or greater
than the unavoidable mortality, or lead
to an increase in carrying capacity that
allows the eagle population to grow by
an equal or greater amount. When we
require compensatory mitigation, the
mitigation must demonstrate it is
effectively replacing lost eagles, is
additional to what would have occurred
without the mitigation, and is durable
for at least the length of the impacts of
the project.
Comment: Compensatory mitigation
should not be applied to actions that are
not already required by law. Power
companies should be required to retrofit
their own lines.
Comment: Compensatory mitigation
should not be considered to offset the
take if it would have been done anyway.
Compensatory mitigation must consist
of actions that are additive.
Comment: FWS should accept withincompany mitigation for companies that
have both wind facilities and power line
infrastructure. This practice could
streamline the mitigation process,
facilitate assurances and accountability,
and reduce administrative costs.
Service response: One of the most
well-established methods for conserving
and mitigating effects to eagles is power
pole retrofits. This rule adopts
Presidential and Department of the
Interior principles for mitigation,
including requiring that all mitigation
be additional to what would have been
reasonably expected to occur without
the mitigation. For an entity to be able
to work with a power pole owner to
retrofit power poles that pose high risk
to eagles, the power line owner must
demonstrate they are already taking
appropriate and practicable steps to
address their impacts to eagles by
applying for an eagle take permit.
Entities engaged in other activities with
impacts to eagles, including units or
subsidiaries of a company that owns
power poles, seeking to retrofit power
poles to mitigate for their effects on
eagles would have to propose retrofits
that are additional to what the power
pole owner (or unit within the same
company) has already committed in an
eagle take permit.
Comment: The Service should
establish minimum standards for
utilities for which the retrofits are done
to avoid creating disincentives for
utilities to take responsibility for
undertaking their own retrofits. The

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utility must: Systematically identify
high-risk poles; demonstrate that they
have retrofitted, reframed, or otherwise
responded appropriately to mortalities
of eagles and other protected birds on
their system; utilize avian-safe design
standards that meet or exceed APLIC
(Avian Power Line Interaction
Committee) standards; have an
implemented avian protection plan
(APP); be able to maintain
compensatory mitigation poles as aviansafe for the duration of the permit/
agreement; and ensure that pole
retrofitting is designed and installed
correctly.
Service response: Electrocutions are
among the leading cause of mortalities
of golden eagles. The Service
recommends that utilities with
infrastructure that poses high risk to
eagles work with the Service to
implement conservation and mitigation
measures and seek an eagle take permit.
The commenter outlines many of the
general standards this rule requires of
any applicant for an eagle take permit:
That the avoidance, minimization, and
compensatory mitigation be proven
effective through science-based means,
adopt best management practices where
they exist, and be durable for the length
of the impacts to eagles. Full application
of APLIC standards could be
incorporated into the terms of a permit
to meet the avoidance and minimization
standards of this proposed rule.
Comment: Permittees should have a
choice as to whether to work directly
with an electric utility or pay into a
fund administered by an entity such as
the National Fish and Wildlife
Foundation.
Service response: Our general
preference is that applicants provide
compensatory mitigation via a
mitigation in-lieu fee program or eagle
conservation bank that we have
previously approved, so Service staff
and the permit applicant do not have
invest time on each permit devising an
appropriate mitigation approach. That
said, if an applicant provides robust
analysis to demonstrate an alternative
form of mitigation method that will
satisfy offsetting mitigation
requirements, we may accept the
alternative method. However, additional
analysis under NEPA may be required,
and the permit decision will be further
delayed if the applicant cannot provide
adequate documentation of the efficacy
of the alternative mitigation.
Comment: A genetically diverse
captive population of golden eagles
must be obtained and maintained as a
breeding population. Falconers are in a
unique position to participate in
compensatory mitigation projects,

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including obtaining golden eagles from
the wild, maintaining them in good
condition, rehabilitation, training,
conditioning for release, and release to
the wild to become successful members
of an adult breeding population.
Comment: The regulations should
explicitly provide that mitigation will
be focused on conservation of wild birds
rather than hacking captive-reared
eagles as a mitigation measure.
Service response: The Service’s
position is that mitigation should be
focused on conservation of wild birds
for various reasons. Although we are
looking at various methodologies for
establishing a value for ‘‘replacing
eagles,’’ including the costs of raising an
eagle from an egg to release, we
currently have numerous concerns
about using a captive-bred population of
golden eagles as an offsetting mitigation
method. First, there is ample
documentation that captive-bred birds,
including raptors, have lower survival
rates than their wild-born relatives (e.g.,
Brown et al. 2006). The lower survival
rates are likely caused by a combination
of lack of genetic diversity and
deficiencies in behavioral learning and
conditioning that contribute to greater
rates of mortality. Second, even if
survival of hacked eagles was
comparable to that of wild-raised eagles,
captive-rearing and release is not a very
efficient means of accomplishing
offsetting mitigation. For example, only
about 20% of wild-fledged golden eagles
survive to maturity, thus replacing one
adult would require producing and
releasing at least five young under the
best of circumstances. Third, there is
evidence of a high degree of natal
philopatry (tendency to stay in or return
to the home area) among golden eagles,
in particular, meaning there may be
important genetic structure in
populations that would need to be taken
into account in such a program.
Releasing captive-bred eagles into a
landscape where their primary sources
of mortality are not being addressed and
reduced would not serve much purpose.
Overall, we believe that reducing
ongoing mortality is a more effective
means of offsetting added mortality, and
for accomplishing golden eagle
conservation in general.
Comment: Many projects have a long
life span and a low possibility of ‘‘take.’’
Here, the Service should provide a
flexible method for implementing
compensatory mitigation over time.
Comment: Given that the Service
cannot predict when programmatic take
will occur, benefits of proposed
compensatory mitigation actions should
accrue as early in the life of the project
as possible.

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Comment: The applicant should, after
each 5-year review period, be able to
apply unused mitigation credits by
carrying them over to subsequent review
periods. Alternatively, these credits
should be tradable or transferable.
Comment: Allowing companies to
receive credits for excess compensation
could lead to excess take in some years,
especially at the local scale. The Service
needs to explain how the credit system
will avoid excess take.
Service response: Under the approach
we envision, permittees would be
required to provide compensatory
mitigation at the outset to offset
predicted take over 5 years. For permits
longer than 5 years, if no observed take
has occurred in the first 5 years, or if
observed take is lower than the take
already mitigated, the permittee’s future
mitigation requirements would be
adjusted downward to allow credit for
mitigation already accomplished, and to
account for the lower-than-initially
predicted observed fatality rate. It
would be the same at each 5-year
interval. If take exceeds the predicted
take rate during any 5-year period, the
permittee would need to provide
additional compensatory mitigation
(and may be subject to additional permit
conditions). As explained earlier, by
‘‘observed take,’’ we are referring to take
that is estimated using statistically
rigorous, unbiased, estimators and
search protocols.
Comment: Additional compensatory
mitigation should be required only in
response to changed circumstances
previously provided for in the permit
and applied at the project level
consistent with the ‘‘no surprises
assurances’’ provided by ESA incidental
take permits. In providing this type of
assurance, cost uncertainty would be
reduced, thereby creating a situation
where developers/owner operators
would be more likely to seek full-term
permits and to comply with the related
conservation measures.
Service response: Additional
compensatory mitigation for eagle
permits would be required if take
exceeds the predicted and authorized
take level or if the best available
scientific evidence demonstrates that
the additional mitigation measures are
necessary for the preservation of eagles.
Also, the Service may require long-term
permittees to undertake additional
conservation measures other than those
originally contemplated, if they are both
practicable and reasonably likely to
reduce risk to eagles based on the best
scientific information available.
Comment: The length of time that the
measurable benefits of compensatory
mitigation persist should meet or exceed

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the length of time of the projected
impacts.
Service response: We agree with this
comment, particularly with regard to
offsetting mitigation, but also in the
context of compensatory mitigation in
general. Compensatory mitigation under
these permits will be designed to be
durable for at least as long as the
detrimental impacts to eagles from the
permitted activity.
Comment: The Service should set a
greater than 1:1 ratio of benefit to take.
The benefits provided by compensatory
mitigation are inherently more
uncertain than those provided by
avoidance of high-risk sites and by
operational mitigation (also known as
Advanced Conservation Practices). Until
such time as actual field performance
data is compiled, equivalency standards
for compensatory mitigation must be
more stringent than the computed levels
of take. Compensatory mitigation should
be substantial in order to provide a
strong incentive for developers to
properly site facilities away from eagle
use areas.
Service response: We are proposing to
require offsetting mitigation for golden
eagles at a greater than one-to-one ratio.
In addition to the reasons provided by
the commenter, a greater than one-toone ratio is warranted because our data
indicate golden eagles may be already
experiencing higher take rates than can
be sustained and the greater than oneto-one ratio is therefore necessary to
ensure the permitted take is compatible
with the preservation of golden eagles.
Comment: Compensatory mitigation
actions should be proven to be
reasonably likely to deliver expected
conservation benefits.
Comment: The regulations should
allow hypothesis-driven, scientifically
based research to count as part of a
mitigation strategy.
Service response: Under this proposed
rule, the Service would allow
compensatory mitigation measures and
programs that face more risk and
uncertainty provided mitigation
accounting systems factor in risk and
adjust metrics, mitigation ratios, and the
amount of required mitigation to
account for uncertainty.
Comment: A project proponent
should not be able to avoid
compensatory mitigation if the entity
proposes a project that fails to
reasonably consider avoidance or
minimization measures. The regulations
should emphasize and incentivize
avoidance in conservation plans and
institute the full mitigation hierarchy
prior to requiring compensatory
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Service response: Under these
proposed regulations, implementation
of all practicable avoidance and
minimization is required in order to
qualify for an eagle permit.
Comment: The Service should
establish a standardized process for
reporting and monitoring of
compensatory mitigation actions to
ensure compliance and the delivery of
eagle conservation benefits.
Service response: This comment
highlights one of the advantages of
using mitigation banks, in-lieu fee
programs, and other third-party
arrangements. The third party is
responsible for determining what level
of monitoring is needed and carrying it
out. Funds collected will cover that
monitoring.
Comment: By calculating the risk of
eagle take through a formula that does
not account for eagle avoidance
behaviors (especially with the bald
eagle), and then requiring compensatory
mitigation to completely offset the level
of assumed take (and, pursuant to the
ECPG, requiring significant mitigation
upfront), the Service sets the
compensatory mitigation level too high
and requires compensation for in effect
‘‘phantom’’ takes that may never occur.
The Service should create separate risk
models for bald and golden eagles based
on their biology and behavior, as take
estimates are the basis for determining
the mitigation amounts.
Service response: As noted in our
response to an earlier comment, we
believe it is reasonable and prudent to
consider bald eagles to be equally
vulnerable to blade-strike mortality as
golden eagles unless and until verifiable
data become available that demonstrate
a different collision probability for bald
eagles. It is also important to recognize
that the initial model prediction would
only be used to estimate take for the first
five years, after which time the observed
take rate would be used to update the
model prediction for the next five years
(a process repeated for the life of the
project). Any mitigation that has been
undertaken based on the initial model
predations that exceed the observed take
can be carried forward and applied
against the updated predicted future
take.
Comment: The Service needs to
collaborate with utilities on how to
select which poles to retrofit and how
to identify the highest priority areas for
mitigation.
Comment: The Service needs to
recognize the cost differences in
retrofitting different companies’
distribution systems. The types of
equipment and size, height, and
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retrofitted will affect the cost to
complete. Utilities must calculate
specific cost or value according to pole
type and the scope modification to
determine a cost to retrofit.
Comment: The ECPG calculates the
average cost of retrofitting per pole to be
$7,500, which underestimates the cost
of retrofitting the average pole. In
addition, the Service has also
underestimated the life of a pole at 10
years. The age and cost to replace poles
vary greatly. Costs to modify poles
(particularly for transmission voltage)
cost more than $7,500 per pole
depending on the type of work done,
voltage, location, climate, etc. The
Service should work with electric
utilities to ensure appropriate costs are
considered and that pole modification
programs are effective and durable.
Service response: Working with
APLIC, the Service has updated the
resource equivalency analysis in the
ECPG and re-run the model to come up
with a ‘‘generic’’ replacement cost for
determining what the per-eagle
contribution to a mitigation fund should
be with respect to power pole offsets.
We expect details on costs per pole to
retrofit, life of retrofits, evidence
retrofits are of risky poles, etc., will be
handled by the mitigation fund
administrator (and selection panel),
likely involving submission of proposals
from potential recipients of the retrofits
before funds were allocated. Such a
process could account for actual costs
on a case-by-case basis.
Permits for Taking Eagle Nests
Comment: The definitions found in
the current regulations make sense, but
they conflict with how similar terms are
used in scientific literature.
Service response: We are proposing in
50 CFR 22.3 revised definitions
applicable to eagle nests that are more
consistent with terminology used in
scientific literature.
Comment: Additional definitions
should be added to the regulations,
including the following:
• Active Nest—this definition would
serve to clarify the types of breeding
behavior or evidence needed to prevent
the take of a nest during a particular
breeding season.
• Active Territory—this definition
would supplement the existing
definition for area nesting population
and relate to one breeding pair making
a nesting attempt within an established
breeding territory.
• Inactive Territory or Historical
Territory—this definition would aid in
dealing with a scenario where nest
structures are observed but no evidence

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of use has been documented for a
specific period of time.
• Alternate Nest—this definition
would apply to a documented nest used
by a breeding pair within the same
territory in which an applicant has
applied for a nest removal permit.
• Nest condition—this definition
would describe the qualitative
evaluation of nest conditions used to
determine the likelihood of repeat
nesting at this site.
• Nonviable Nesting Structure or
Historical Nest Site—this definition
would define a structure that has not
been used for a period of time or has
been damaged from environmental
conditions.
• Existing Disturbance Regime—this
definition is to provide a qualitative
evaluation of the baseline conditions for
which a new disturbance is proposed.
For example, if an existing operation is
ongoing and eagles chose to nest nearby,
this circumstance needs to be
considered when evaluating ‘‘take’’ or
the risk for potential ‘‘take.’’
Service response: Most of these terms
are not used in the regulations and
neither are the concepts embodied in
them, so for those, no definitions are
needed. We are proposing a definition
of ‘‘nesting territory,’’ but nothing in
these proposed regulations hinges on
whether the territory (rather than the
nest) is currently occupied by breeding
eagles. We also are proposing a
definition for ‘‘alternate nest,’’ but the
proposed definition is more aligned
with how the term is used in scientific
literature than what is being suggested
by the commenter. In our proposed
definition, a nest is ‘‘alternate’’ in
relation to a nest that is used, rather
than in relation to the nest being
considered for removal. Under our
proposed definition, an alternate nest
may be the one for which a nest take
permit is sought.
Comment: The high standard in the
current regulations that limits nest
removal to limited situations should be
retained. It has contributed to the
preservation of bald eagle nesting
habitat and the persistence of historic
nest territories in Florida.
Comment: In addition to situations
that present human health hazards, the
Service should retain the authority to
issue nest removal permits in instances
of extreme hardship, such as a new nest
constructed following acquisition of a
small housing lot.
Comment: The regulations should be
revised to allow nests to be removed to
alleviate a threat of significant property
damage.
Comment: Permits for removal of bald
eagle nests should be less stringent and

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easier to acquire, without requiring
applicants to provide ‘‘net benefits’’ to
eagles or mitigation.
Comment: Additional circumstances
that indicate a nesting pair may
continue to be viable, such as the
identification of an alternative nest
within the territory, should allow for
removal of one nest without requiring
‘‘net benefit’’ measures.
Comment: The regulations should
maintain the current standards with
respect to the ‘‘net benefit’’ requirement
for removal of inactive nests, including
further clarifications and a clear
definition of what constitutes a ‘‘net
benefit.’’
Service response: We are proposing to
retain the standard that, in cases other
than health and safety or obstruction of
human-built structures, a successful
applicant for an eagle nest removal
permit must provide a net benefit to
eagles. The standard helps to protect
historic nest sites. In other cases, such
as a new nest constructed on a
residential lot, the requirement to
provide a net benefit should not be
unacceptably onerous. Generally
speaking, when new eagle nests are
being established in areas with high
human density, this activity indicates
the eagle population is expanding, and
removal of a new nest in a thriving
population will have little or no longterm impact to that population. A
relatively small contribution to the
national mitigation fund would allow
monies to be leveraged for maximum
benefit for eagles. Funding could be
applied to improve conditions for eagles
by improving habitat somewhere where
there is likely to be less conflict from
human activity or other eagles. Under
the existing permit system, an example
of a net benefit we required in a nest
removal permit we have issued is a
requirement to provide two alternative
nest platforms for eagles that once used
a nest tree whose destruction was
permitted for a railway spur line. We are
not proposing a standard definition of
what constitutes a net benefit, and will
continue to assess net benefit on a caseby-case basis. There is too much
variability in nest sites and the
circumstances surrounding them that
determine the value of the nest to eagles
to allow for a one-size-fits-all definition.
However, we will continue to require
mitigation in proportion to the impacts
and we anticipate that the examples
provided here are the types and
magnitude of net benefit compensatory
mitigation we would require for permits
for removal of eagle nests for other than
health and safety reasons.
Comment: Nest removal should occur
outside of the breeding period and

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should occur only when there is an
extreme safety situation.
Comment: Permits should not be
made available for removal or relocation
of active nests with eggs or young for
purposes other than safety emergencies.
Service response: We agree with the
second comment and are not proposing
any changes to the current provisions
that restrict removal of nests with eggs
or young to safety emergencies. In
response to the first comment, we must
be able and willing to issue nest take
permits for active nests to prevent injury
or loss of life to humans or the eagles
associated with the nest.
Comment: The definition of ‘‘eagle
nest’’ should have a temporal aspect
such that a nest that remains unused for
5 consecutive years and has deteriorated
to an unusable condition is no longer
included.
Comment: Permitting exclusions or
streamlined permitting should be an
option for inactive nest sites, which the
applicant can demonstrate are degraded
and for which removal will not have a
detrimental impact on preservation of
the species.
Service response: We considered
defining eagle nests in a manner that
would exclude nests that have
substantially deteriorated and which
have been unused for many years, but
decided against it. It is rare to have
verifiable documentation that a nest has
consistently not been used for many
years. Nests could be lost on the
incorrect pretext or assumption that
they have been unused. It is quite
unusual for applicants to have 5 years
of documentation of past eagle use (or
disuse) of nests. Sometimes nests are
substantially destroyed by storms, and
in most cases, the Service would have
no way of determining whether eagles
are likely to return to that site for
breeding purposes. If applicants are able
to demonstrate the low biological value
of the site, that is, that eagles are
unlikely to rely on it for breeding
purposes in the foreseeable future, then
it would not be difficult to provide the
net benefit that is required to qualify for
a nest removal permit.
Comment: The definition of ‘‘inactive
eagle nest’’ should be revised to extend
the time period when a nest is
considered not currently being used
beyond 10 consecutive days.
Comment: The 10-day period used to
define an ‘‘inactive’’ nest should be
reduced to 5 days, particularly for nests
where young have fledged. The shorter
period is sufficient to identify eagle
breeding activity.
Service response: We are not
proposing to revise the 10-day period
upward or downward; we have no data

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indicating either that 10 days is
insufficient to protect eagles or is overly
protective.
Comment: For cases where an inactive
nest take permit is sought, a standard
monitoring methodology should be
required for determining the status of
the nest so that such a determination
can be reviewed and approved similarly
by multiple permitting agencies.
Service response: We agree that a
standard monitoring protocol for
determining whether a nest is unused
for 10 days would be useful, and we
will consider developing such guidance
in the future. Due to the size of eagles
and the fact that they are easily
recognized, we believe it is not onerous
for even untrained persons to determine
whether a nest is in use, but it might be
advisable to contact the local Service
field office for guidance to ensure the
monitoring activity will not disturb
eagles.
Comment: In order to prevent an
anticipated (but not yet present)
emergency situation, permits should not
be available to remove nests with no
eggs or young, but which adults attend
for purposes of breeding.
Comment: If the regulations will
allow nests that are attended by adults
but contain no eggs yet to be removed
for anticipated safety emergencies, the
regulations should include a clear
decision process for what constitutes an
anticipated emergency.
Service response: We have tried
without success to develop a standard
decision process for what constitutes a
safety emergency beyond the plain
meaning of the definition in § 22.3: ‘‘A
situation that necessitates immediate
action to alleviate a threat of bodily
harm to humans or eagles.’’ Emergency
situations and potential consequences
are simply too variable. We do not want
to inadvertently create a process that
could prevent us from issuing a nest
removal permit for a situation we failed
to anticipate or describe.
Comment: The regulations should
allow more flexibility for removal of
active and inactive nests in urban areas
and other areas of potential risk to
successful nests.
Service response: Generally speaking,
eagle nests in urban areas indicate a
thriving local population of eagles. In
robust populations, the relative value to
eagle populations of each individual
nest is lower than in lower density
populations. Eagle nests that are of
lower biological value (including
relative to other eagle nests) require less
mitigation as a ‘‘net benefit’’ with the
result that there is more flexibility to
issue permits for their removal.

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Comment: Due to the current
population status of golden eagles,
golden eagle nest removal criteria are
more restrictive in nature. Mitigation,
whether compensatory or replacement,
should be implemented, by the permit
holder, for golden eagles. The
destruction of golden eagle nests should
be avoided, if at all possible, unless the
nest is posing a safety emergency.
Service response: We largely agree
with the commenter. Golden eagle nest
take permits will be more restrictive in
nature, but without including different
criteria for the two species in the
regulations. All golden eagle take
permits, except for those authorizing
ongoing take occurring prior to 2009
will require offsetting mitigation. Our
view is that regulations should not be
species specific; rather, they should
address specific conditions that could
apply to any of the species they are
designed to protect. The avoidance and
minimization requirements in the
current and proposed regulations are
designed to ensure that removal of a
nest of either species is the last option.
Comment: If a pair of eagles known to
use one nest creates another resulting in
the abandonment of the original nest,
the old nest should be considered
immediately abandoned.
Comment: A nest should not be
considered abandoned unless it has not
been used for 5 years, as golden eagles
sometimes return to a nest after 2 or 3
years.
Comment: The term ‘‘abandoned
nest’’ should be clarified so it is clear in
the literature that both species may have
several nests that they use on a
rotational basis and will pick the
current year’s nest based on things like
disturbance.
Service response: Neither the current
regulations, nor the proposed revisions,
include the term ‘‘abandoned nest’’
because that term is misleading in this
context. In these proposed regulations, a
nest that eagles are not currently using
is referred to as an ‘‘alternate nest’’ and
is still protected because eagles
typically use nests on a rotational basis
and will sometimes return to a
previously used nest after several years.
A 41-year study of golden eagle nests in
Idaho found that golden eagles used a
nest site that had been unused for 39
years (Kochert and Steenhof, 2012).
That study also found that 86% of
alternate golden eagle nests were used at
least one breeding season.
Nest abandonment is a term used in
our definition of what constitutes
disturbance under the Eagle Act at 50
CFR 22.3. It is not relevant to
determining the status of nests in a
nesting territory and is a different

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concept entirely. In the definition of
‘‘disturb,’’ a nest is considered
abandoned if eagles had been using it,
or would have used it, during the
current breeding season, but did not
raise young there due to interference or
perceived interference. If a proponent’s
action causes nest abandonment, then
the proponent has disturbed an eagle
under the definition and is liable for
take. In the definition of ‘‘disturb,’’ nest
abandonment does not refer to the longterm status of the nest.
Comment: The Service should
evaluate the establishment of nest
removal permits that would cover the
removal of an active nest (without eggs
or dependent young) or an inactive nest
multiple times for the same location.
Service response: The current and
proposed regulations allow the Service
to issue permits to remove nests being
built in the same place multiple times.
We agree that there are circumstances
that warrant this type of authorization
(e.g., when eagles persist in trying to
build a nest in a location where it would
create a fire hazard).
Comment: The definition of ‘‘area
nesting population’’ should be modified
to remove the 10-mile radius because it
may not have any bearing on the actual
home-range of a nesting pair or on the
project impact area.
Service response: We agree and are
proposing to remove the term ‘‘area
nesting population’’ from the two
permit regulations where it occurs.
Comment: Establish and clearly
define in the management objectives
acceptable distances from eagle nests
necessary to avoid disturbance of eagles
in a given management area.
Service response: The Service’s
recommendations for buffer distances
and additional guidance for avoiding
disturbance of bald eagles are contained
in the 2007 National Bald Eagle
Management Guidelines (USFWS,
2007). Ideally, if resources allow, we
will revisit that document to update our
recommendations based on newer data
and observations of bald eagle
behaviors. At this time we do not have
comparable official guidance for golden
eagles, but may issue such guidance in
the future.
Comment: Any nest, abandoned or
active, that is removed for any reason,
needs to be accounted for in the 5-year
review.
Service response: We are tracking all
authorized take of nests in a database to
ensure they are accounted for. In most
cases where a permit authorizes
disturbance to breeding eagles, we
require monitoring and reporting, and
we enter the reported status into the
database. However, it is not always

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feasible to track whether authorized
disturbance actually occurred, so our
database will not perfectly capture all
outcomes.
Comment: When an active nest must
be removed, the regulations should not
always require nestlings or eggs to be
placed with a rehabilitator. Instead, the
language should be: ‘‘In most instances,
nestlings and viable eggs must be
immediately transported to foster/
recipient nests or a rehabilitation
facility permitted to care for eagles, as
directed by the Service. The Service will
make the determination as to the fate of
all nestlings and viable eggs.’’
Service response: We agree that it is
not always possible to transport eggs or
young to a rehabilitator in a safety
emergency (the only circumstances
when removal of a nest with eggs or
young can be permitted), and we are
proposing revisions that would allow us
to waive the requirement when it is not
feasible or humane to carry out.
Comment: The Service should clarify
the type of permit (disturbance or nest
take) that is needed for temporarily
obstructing eagle access to nests (prior
to nesting season) to prevent
disturbance during nesting-season
construction or maintenance activities.
Service response: The appropriate
authorization for temporarily
obstructing eagle access to a nest is a
permit for disturbance. Although some
eagle nest take involves disturbance,
nest removal permits authorize
destruction, removal, relocation of, or
persisting damage to, a nest.
Low-Risk Category
Comment: The Service should revise
the definition of ‘‘low-risk’’ to include
projects with slightly higher probability
of taking eagles, provided the
cumulative impacts would be
compatible with eagle management
objectives. The current definition
represents such a low level of risk that
the burdens of issuing take permits for
both developers and the Service
outweigh the benefits of the permitting.
Comment: The Service should exempt
issuance of permits for projects with
low effects or ‘‘low risk’’ by establishing
a new categorical exclusion for them in
its NEPA regulations. Given the
Service’s conservative take estimates
and limited resources in its permitting
program, a categorical exclusion for
low-risk projects would be reasonable
from the Service’s and project
proponents’ standpoint.
Comment: The Service should
establish criteria to identify low-risk
activities and set up a more streamlined
permit process to address these
circumstances. For example, there could

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be a one-page permit criteria checklist
submitted with the ‘‘take’’ permit
application that qualifies a project for an
exemption from NEPA or advanced
conservation practices.
Comment: The Service should
redefine the probability of take
percentage for ‘‘low-risk’’ projects such
that projects with the probability of take
of 0.03 or lower should be able to
address their potential impacts through
the development of non-permit-based
conservation strategies.
Comment: The Service should modify
the low-risk threshold from 0.03 eagles
per year to 0.17 eagles per year. Annual
take probabilities of 0.17 eagles per year
are the lowest that produce 30-year take
probabilities rounding to 1.0 at two
significant digits.
Comment: The Service should
consider developing a ‘‘Nationwide’’
permit program, similar to the Section
404 Clean Water Act permits that allow
for projects to qualify under specific
categories (low-risk). These instances
would permit take within an established
threshold per category.
Comment: The Service should
broaden the category of ‘‘low-risk’’
projects established in the ‘‘Duration
Rule’’ to include any projects that are
likely to take more than 0.03 eagles per
year. The definition of low-risk should
be clearly defined and based not only on
anticipated project take (mortality and
disturbance), but also on habitat
modification. ‘‘Low-risk’’ should also be
defined in the context of cumulative
risk to regional and local eagle
populations.
Service response: We agree that the
former definition of ‘‘low-risk’’ projects
is counter-productive and needed to be
revised or eliminated. ‘‘Low-risk’’ was
defined in a footnote to 50 CFR
13.11(d)(4) as a project or activity that
is ‘‘unlikely to take an eagle over a 30year period and the applicant for a
permit for the project or activity has
provided the Service with sufficient
data obtained through Service-approved
models and/or predictive tools to verify
that the take is likely to be less than 0.03
eagles per year.’’ This definition covered
only those projects where take is
essentially negligible, and, therefore, the
project does not require a permit. The
definition has been removed from the
regulations in complying with a district
court decision that vacated parts of the
2013 regulations that established the
definition.
We still see utility in redefining ‘‘lowrisk’’ to include projects with a slightly
higher probability of taking eagles, but
which cumulatively will still be
compatible with eagle management
objectives. However, we were not able

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to develop a definition of ‘‘low-risk’’
that could be applied throughout the
United States while achieving the
desired goals for such a category. The
Service considered a variety of criteria
and/or metrics for the low-risk category,
but each approach resulted in
significant discrepancies because of onthe-ground differences in eagle
population densities and resilience,
habitat variability, and project scales.
Therefore, we are not including a
revised definition of low-risk projects
into these proposed regulations.
Although the proposed regulations
changes do not include a category for
low-risk, we agree that streamlining the
process for projects that clearly
demonstrate a likelihood of take being
relatively low based on siting and/or
project design is a worthwhile goal. We
plan to continue our efforts to identify
and establish a category of low-risk
projects that, without having to conduct
required pre-application surveys, could
qualify for eagle take permits. We
welcome comments on defining lowrisk activities and potential criteria for
developing an authorization process
that minimizes costs of compliance and
the demand for agency resources for
projects that will result in no more than
minimal adverse effects on eagles for
our consideration in the future.
Comments should focus on (1) metrics
that would be necessary to establish a
category of low-risk projects, (2)
informational requirements, if any, for
the application and (3) appropriate
terms and conditions to qualify for a
nationwide eagle take permit.
Comment: The Service should
consider some types of projects as lowrisk to nesting and roosting bald eagles,
specifically those that are:
• Similar to existing activities that
eagles in the area are accustomed to;
• Of limited duration, occurring no
more than several days at a time;
• Implementing various minimization
measures to reduce impacts to eagles;
and
• Not going to have a project noise
level above 92 decibels.
Comment: Criteria to evaluate
whether a project is considered low risk
should include:
• Proximity and view shed of
proposed disturbance in relation to
nesting habitat;
• Landscape-level migration patterns;
• Quality of potential foraging
habitat;
• Project activities that have a
potential interaction with eagles or eagle
habitats;
• Timing of projects (short-term/longterm, within or outside of breeding
season); and

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• Specific operational practices
(applicant-committed protection
measures).
Comment: If a project is beyond the
Service-recommended buffer distance
from an eagle nest, the project should be
considered ‘‘low risk’’ and the permit
issued under a simplified and shortened
application/approval permit process.
Service response: These comments
incorporate good guidance for how to
evaluate whether disturbance is likely to
occur. We consider these types of
elements when potential applicants
contact us with questions about whether
their activities are likely to disturb
eagles. If we determine the risk of
disturbance is low, we advise people
that a permit is not needed.
Research
Comment: The Service should
establish regular, consistent surveys to
assess changes in population.
Service response: Our plan is to
conduct surveys on a 6-year rotation:
One set of paired summer-winter golden
eagle surveys in the first and second and
fourth and fifth years of each assessment
period, and to conduct bald eagle
surveys in years three and six.
Comment: The Service should
undertake a well-defined research
program that explores potential
innovations in ACPs to supplement a
menu of validated, effective measures.
Service response: Private industry has
the responsibility to avoid and
minimize take of eagles from their
activities. Accordingly, industry should
fund research needed to identify
measures to reduce the risk to eagles
posed by their activities. The Service
will contribute expertise regarding eagle
biology and behaviors to the degree our
resources allow.
Comment: The Service would have an
opportunity to use utility data if the
Service facilitates use of the reporting
system and provides a guarantee of
security of the data.
Service response: Data on avian
mortalities is needed to help us
understand risks to eagles and other
birds and prioritize management
decisions. We have developed a new
data system that will allow companies
to input, view, and manage such data.
For more information on the Service’s
Injury and Mortality Reporting System,
go to: http://www.fws.gov/birds/
management/project-assessment-toolsand-guidance/imr.php. The data is
accessible by select FWS staff, but not
viewable by any other system users. In
the event of a request for information
from the public, we will provide
summarized data but would withhold
any information exempted from release

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under FOIA, including confidential
business information and personal
information protected by the Privacy
Act. This may include information that
would identify the submitter, or any
other details that would point to a
particular company, unless the
company approves release of this
information.
Comment: The Service should
actively pursue research on many
factors that affect long-term population
status of eagles in a changing landscape,
including climate, prey populations,
wind-farm losses, electrocutions, and
lead poisoning.
Service response: We agree with this
comment, and are engaged in various
research projects to assess how various
factors affect eagle populations.
Comment: The Service should use
modeling to simulate populations of
known structure that are then impacted
at known (simulated) levels as a means
to inform decisions. The substantial
body of knowledge on bald eagles could
serve as an initial benchmark for
developing simulation models for
golden eagles.
Service response: The Service has
developed and is using these types of
population models for both bald and
golden eagles.
Other
Comment: Penalties need to be
increased, so violations are not just a
minor cost of doing business.
Service response: Penalties applicable
to eagle take are established by Congress
in the statute itself. The Service does
not have the ability to modify those
penalties.
Comment: Any dollars that come from
enforcement and fines should be
applied to fund eagle research.
Service response: Congress has
enacted a number of laws that limit the
use of fines and penalties assessed as
part of the criminal or civil enforcement
of wildlife laws. In general, these
statutory limits are directed at
protecting the Federal appropriations
process through, for example,
prohibiting the augmentation of a
Federal agency’s budget or funding a
Federal program and by requiring that
any money received ‘‘for the
Government’’ from any source be
deposited into the United States
Treasury as miscellaneous receipts
unless a law provides otherwise for
retention and use of the funds. While
there are opportunities within these
congressionally mandated constraints
for enforcement actions to recognize
funding of eagle research, application of
Federal fiscal law mandates and how
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be complex and are addressed on a caseby-case basis, taking into account the
Federal laws applicable to the facts of a
particular situation.
Comment: The Service should revise
the definition of ‘‘programmatic take’’ to
allow a programmatic take permit even
if only indirect effects would cause a
‘‘take’’ or a ‘‘disturbance.’’
Service response: We reviewed
internal staff discussions that occurred
during development of the 2009
regulations about how the Service
should define ‘‘programmatic take,’’ and
we believe the phrase ‘‘and not caused
solely by indirect effects’’ was included
because of concern that people would
request permits to cover effects to eagles
that were too attenuated to constitute
take under the Eagle Act (e.g., actions
that gradually affect climate and lead to
decreases in the prey base). Now,
however, the scope of prohibited take
under the Eagle Act is better understood
both within and outside of the Service,
and we are less concerned that people
will seek permits for attenuated effects
that do not actually constitute take.
Under this proposed rule, the category
and definition for programmatic take
would be eliminated. However, because
we believe that it is appropriate for
permits to cover take that is caused by
indirect effects, particularly in light of
our proposal to extend maximum permit
duration to 30 years, nothing in these
proposed regulations would prevent us
from issuing such permits.
Comment: The Service should
consider shifting the focus of the
programmatic permit program from a
lethal take focus to the conservation of
eagles and their habitat.
Service response: The Eagle Act,
unlike how the ESA protects ESA-listed
species, does not give the Service
authority to protect or otherwise
regulate eagle habitat (other than eagle
nests and habitat destruction that
directly causes lethal take or
disturbance), but we can and do protect
habitat as mitigation for permitted take.
At present, habitat loss is not the
limiting factor for growth of either
species.
Comment: The Service should
conduct a national programmatic wind
EIS and use it to identify areas where
wind energy cannot be developed due to
unacceptable risk to public trust
resources, including eagles and other
federally protected birds and bats.
Service response: The Service does
not have the authority to regulate where
wind energy facilities can be sited. We
have developed a variety of tools for
assessing whether a given area is likely
to pose a high risk to eagles or other
birds if developed for wind power (see

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the ECPG), and we encourage
developers to avail themselves of those
tools prior to siting wind energy
projects.
Comment: The preamble to the 2009
permit regulations, Final Environmental
Assessment conducted for those
regulations, and the ECPG all identify
projects in operation prior to 2009 as
being part of baseline conditions on
which take thresholds were established.
In practice, however, the Service has
been inconsistent about how to treat
such projects. The Service should
clarify the extent to which mitigation is
required for pre-2009 projects.
Comment: The Service should treat
known permitted take that occurred
prior to 2009 as measureable when
considering additional take, and not
consider it ‘‘baseline.’’
Service response: Take occurring prior
to 2009 will still be considered part of
the baseline with regard to
compensatory mitigation requirements
(i.e., none will be required). For
developments already in operation that
have taken eagles prior to the permittee
applying for a take permit (available
since 2009), the Service will work with
the applicant to resolve any
unpermitted take when applying for a
eagle incidental take permit. The
Service has developed a template eagle
take settlement agreement to provide
consistency and transparency in our
enforcement actions.
Comment: Section 22.11(c) should be
revised to state: ‘‘You must obtain a
permit under part 21 of this subchapter
for any activity that also involves
migratory birds other than bald and
golden eagles, and a permit under part
17 of this subchapter or a statement
under Part 402 for any activity that also
involves threatened or endangered
species other than the bald eagle.’’
Service response: We are proposing
revisions to accomplish what this
commenter proposed, i.e., allowing the
use of section 7 where appropriate to
cover effects to ESA-listed species. We
believe the current wording, which
requires the use of an ESA permit even
for Federal applicants, is the result of an
oversight by the original crafters.
Comment: A panel of eagle experts
and eagle biologists should begin a
review of the Eagle Act. The Eagle Act
is old, very expansive, less complete,
and harder to enforce than the more
current Migratory Bird Treaty Act
(MBTA) and ESA, and it does not work
well with current regulations.
Service response: We, too, have
identified areas where we believe the
Eagle Act could be improved, but as a
Federal Executive Branch agency, the
Service cannot write or enact

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legislation. Statutory amendments must
be made by Congress.
Comment: The Service should move
forward with the development of a
permitting process under the MBTA to
augment those now available under
BGEPA and ESA.
Service response: We are in the
process of developing regulations to
authorize incidental take under the
MBTA. We published a notice of intent
to prepare an EIS on May 26, 2015 (80
FR 30032), and held four scoping
meetings in different U.S. cities. For
more information, go to: http://
birdregs.org/.
Comment: The Service needs to
enforce the ESA, BGEPA, and MBTA
when it comes to all energy
development, whether traditional or
alternative. Shut down or relocate wind
energy sites that greatly exceed their
take limits for federally protected
species, especially if mitigation proves
ineffective in reducing bird (and bat)
mortality. This means more
prosecutions for violation of the laws
and predictable consequences for
noncompliance.
Comment: Wind turbines with
predictable eagle mortality should not
be permitted, and those already
permitted with future predictable
mortality should be taken offline.
Service response: The Service does
not have the authority to shut down,
relocate, or take offline energy facilities.
We have the authority to bring
enforcement actions against facilities
that take eagles without permits or that
violate the conditions of their permits,
and we do. We also can and do issue
permits that require conservation
measures and compensatory mitigation.
We disagree that wind turbines with
predicted mortality should not be
permitted; if mortality is not predicted
to occur, wind companies do not need
permits. Through Service guidance and
in these proposed regulations, we
discourage the siting of facilities in
areas of high risk to eagles, but our
authority does not extend to actually
being able to prevent developers
building there despite our
recommendations.
Comment: The 2013 revisions to the
permit regulations provide that the
Service will make reported injury and
mortality data available to the public.
The regulation should clarify whether
the Service will publish/post this data,
or whether it will be available only
upon filing a request under the Freedom
of Information Act.
Service response: We intend to post
cumulative reported mortality data
summarized to a State and flyway level

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on a Web site that can be viewed by the
general public.
Comment: The scoping process
documents mention timber harvesting
as an activity for which a programmatic
permit may be appropriate. However,
timber harvesting should not qualify for
programmatic permits because the
current eagle management guidelines for
timber harvesting are quite easy to
follow.
Service response: We appreciate this
comment. It is true that no timber
companies have approached us for a
programmatic permit. That said, if a
timber company approaches the Service
for a long-term permit, we would
consider the merits of its application.
Also, the National Bald Eagle
Management Guidelines were
developed specifically for bald eagles
and are not necessarily the best
guidance for avoiding golden eagle
disturbance.
Comment: Bald eagle populations
continue to grow exponentially in much
of the country, and as these populations
grow, so does the amount of incidental
take. Therefore, a set amount of
authorized take over a period of time
(i.e., 30 years) can be unpredictable and
impractical. As long as the population
growth exceeds the take and the overall
goal of stable or increasing bald eagle
populations is being met, no individual
permits would be necessary.
Service response: First, the Eagle Act
requires a permit for bald eagle take:
‘‘Provided further, That bald eagles may
not be taken for any purpose unless,
prior to such taking, a permit to do so
is procured from the Secretary of the
Interior.’’ (16 U.S.C. 668a) Second,
without individual permits, we could
not require avoidance, minimization of
impacts, and compensatory mitigation,
much less track how much take is
occurring in order to ensure that take is
not exceeding the level at which
populations would start to decline.
Comment: The Service could
implement a programmatic industry
permit with NEPA tiering as the Service
uses for permits issued under the ESA.
Comment: The Service should
consider issuing programmatic take
permits to cover a company’s entire
service territory.
Comment: As neither the Eagle Act
nor the actual regulations require that
eagle take permits be available solely for
individual projects, the Service should
allow for multi-project/facility permits
for bald eagles or regional permits that
can serve as umbrella permits for
individual projects.
Service response: All of the scenarios
mentioned by these commenters are
available under the current and

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proposed regulations. The Service does
have some constraints based on our
administrative structure. For example,
although not precluded by our
regulations, it would be an
administrative challenge for us to issue
permits to multiple companies for
multiple types of activities that cross
Service regional boundaries
(administrative jurisdictions). It might
be more efficient to pursue multiple,
less complicated permitting options in
such cases.
Comment: The regulations and
guidance documents should address the
roles and responsibilities of other
permitting agencies. For example, if a
project involving the removal of an
inactive nest is being evaluated in a
Bureau of Land Management (BLM)
document and with appropriate
consultation, the Service would allow
the BLM to become the lead agency and
establish appropriate mitigation, which
would then be written into the ‘‘take’’
permit. This provision would allow for
a streamlined approach for permitting
and NEPA.
Service response: We agree that
approaches such as that described by
this comment make sense. We also think
it would be beneficial to develop
guidance for how to work with other
agencies when issuing eagle permits,
and plan to do so as resources allow.
Comment: No industry should be
given priority over another. For
example, a permit to support a wind
energy project should not be given
precedence over a permit to support a
mining operation.
Service response: We do not give
priority to any type of industry. If for
some reason, we could permit only one
of several interested industries, we
would issue the permit on a first-come,
first-served basis.
Comment: The regulations should
require permittees to allow access to
State wildlife agency staff to monitor
permit compliance. Currently, the
regulations require permittees to allow
Service personnel and other qualified
persons designated by the Service such
access.
Service response: We cannot
unilaterally create requirements for
permittees that pertain to governmental
agencies other than ourselves. We
would have to coordinate with each
State agency on a case-by-case basis.
Many States do not want the extra
burden of sharing management of a
Federal permit program. We are pleased
to work with any particular State that
has the desire and resources to train and
allocate staff to monitor eagle permits.
Comment: A portion of the permit
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regional office dedicated to eagle
permits. This arrangement will allow for
consistency and efficiency in processing
applications and meeting permit
timelines.
Service response: Permit application
processing fees are returned to the
Regional Permit Office that issued the
permit and are invested into
administration of the permit program.
Comment: The fees for these
programmatic permits increased
substantially. The money from these
fees should be used for wildlife
conservation, mitigation, and
monitoring in the region affected.
Service response: The programmatic
permit application processing fees
increased in 2013 because we learned
from experience that they require much
more staff time than we had originally
anticipated. At this time, we estimate
the fees are still not enough to recoup
the costs of the technical assistance we
provide during the permit application
development phase for complex, longterm permits, so there is no ‘‘extra’’
money to be used for conservation work.
Comment: The rule should
incorporate provisions to allow land
managers to engage in habitat
management activities that are
beneficial to wildlife or plants, such as
prescribed burns, natural community
restoration, and nuisance species
abatement, without liability for
temporary disturbance to eagle.
Service response: If ‘‘temporary
disturbance’’ is used in this comment to
refer to mere annoyance and disruption,
then a permit is not necessary because
no take is occurring. For ‘‘temporary
disturbance’’ to meet the regulatory
definition of disturb, there has to be a
biological effect to eagles in the form of
injury or loss of productivity. For
golden eagles, because their populations
are not growing, any substantial injury
or loss of productivity is likely to have
population effects. For that reason, we
think a permit is the appropriate tool to
authorize those effects because of the
conservation measures and
compensatory mitigation required under
permits. For bald eagles, the Eagle Act
does not allow the Service to authorize
take unless it is done under a permit (16
U.S.C. 668a). We recognize the
importance of prescribed burns, habitat
restoration, and nuisance species
abatement, and have issued a number of
permits that cover disturbance to bald
eagles from prescribed burns. These
permits generally contain only
reasonable—‘‘no fuss’’—conditions. We
will continue to issue eagle permits to
our partners for activities that benefit
wildlife in an expeditious manner that
best serves our common goals.

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Comment: The slow pace of the eagle
permitting process often leaves projects
at risk of unauthorized take between the
time the project is constructed and
when the permit is issued. The Service
should provide a mechanism such as a
Technical Assistance Letter that
includes a set of criteria under which a
project receives some level of protection
from prosecution during the interim
period.
Service response: If project
proponents are engaged in the
permitting process in good faith, that is,
with an actual interest in obtaining a
permit, they should have a reasonable
expectation that any take that occurs
during the technical assistance phase
will have a low priority for enforcement
by the Service. Issuance of a letter ‘‘with
a set of criteria’’ could generate
substantial staff time equivalent to a
mini permit process while not affording
the project proponent legally sufficient
relief from liability. We believe our
resources are better served by focusing
on the process of issuing the actual
permit.
Comment: When a permit is
transferred to another entity, the
original permit holder should be
responsible for all mitigation
requirements that were required during
the period of their ownership. Allowing
the new permittee to take responsibility
for the outstanding mitigation
requirements may provide a
disincentive for the original permit
holder to carry out the mitigation.
Service response: The original permit
holder is responsible for any mitigation
that is required while the permit is in
his or her name. If some conservation
measures are not finished or have not
yet been undertaken but were not
anticipated to have been completed at
the time of permit transfer, it is logical
that whoever takes over the permit will
be responsible for those measures. If the
original permittee has neglected to
implement conservation measures that
were required to be done while the
permit was in his or her name, the
permittee could face an enforcement
action. However, if the subsequent
permittee agrees to carry out the
outstanding mitigation and the resulting
implemented mitigation will be the
same as if the original permittee did it,
we have no objection to two parties
entering into such a contract.
Comment: Implementation of Avian
Protection Plans allows for a
cooperative model to address concerns,
rather than through a more rigid
permitting scheme that adds cost to
avian protection activities. To maintain
this flexibility, development and
implementation of APPs should remain

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a viable option to address the same
concerns that a 30-year programmatic
permit would address.
Service response: We support
development and implementation of
APPs and Eagle Conservation Plans, but
such plans are not permitting
instruments and cannot remove liability
for eagle take. It is the project
proponent’s choice as to whether to
apply for a permit, but we wonder why,
after going to the effort to develop a
sound APP or ECP that would provide
comparable conservation measures for
eagles as would a permit, a project
proponent would not want to secure the
protection from liability that a permit
confers.
Comment: A programmatic permit to
take golden eagle nests under § 22.25
(removal of nests for resource
development and recovery operations)
should be the same length of time as
other programmatic permits and should
not contain more stringent requirements
to obtain a permit than what would be
authorized under §§ 22.26 and 22.27.
Service response: We may consider
extending the permit duration of § 22.25
permits if we open those regulations up
for more substantial revisions in the
future. Doing so would essentially allow
for recurrent take of eagle nests for
resource development and recovery.
However, we question how often there
would be a need for recurrent take
authorization for resource development
and recovery operations. Also, we do
not perceive any other provisions in
those regulations that are more stringent
than what is required under § 22.27
permits. In any case, a project
proponent engaged in resource
development and recovery can apply for
take authorization under § 22.27 if he or
she prefers the terms and conditions of
that permit to those of § 22.25.
Comment: Similar to the ESA and its
implementing regulations at 50 CFR
17.31, the eagle permit regulations
should include provisions for State
wildlife agencies to take eagles as part
of the agencies’ management activities,
for example, aiding injured or sick
individuals, disturbing eagles while
undergoing habitat management,
salvaging carcasses, euthanizing
mortally wounded eagles, and removing
nests for specific management purposes.
Service response: Because of the
requirement that a permit be issued to
authorize bald eagle take, we cannot
authorize this take through regulations
that exempt a party from the permit
requirement, as is done under 50 CFR
17.21 and 17.31 for ESA-listed species,
and 50 CFR 21.12 for migratory birds
other than eagles. To achieve the same
ends, however, we issue a ‘‘master’’

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permit to the directors of each State
wildlife agency that allows for the range
of activities listed by the commenter.
Comment: The regulations should
clarify ‘‘disturbance’’ as it relates to
eagle take and how the Service may use
disturbance to infer a permit
requirement.
Comment: The Service should
establish and clearly define in the
management objectives acceptable
distances from eagle nests that are
necessary to avoid disturbance of eagles
in a given management area.
Service response: The Service defined
‘‘disturb’’ under the Eagle Act in a 2007
rulemaking (72 FR 31132, June 5, 2007)
(codified at 50 CFR 22.3). The preamble
to that rulemaking clarifies how the
term is to be understood and applied.
Our recommendations for buffer sizes
and timing restrictions for activities
around bald eagle nests are set forth in
our 2007 National Bald Eagle
Management Guidelines. We do not at
this time have a similar guidance
document for how to avoid golden eagle
disturbance, but hope to develop one in
the future. For more background on
other eagle-related rulemakings and
guidance documents, visit our eagle
management Web page at: http://
www.fws.gov/birds/management/
managed-species/eaglemanagement.php.
Comment: The revised regulations
should clarify if the provisions of the
Eagle Act usurp the authority of the
ESA. The Service has made it difficult
or impossible to obtain a permit to
remove a golden eagle nest to protect
California condors at their release site.
Service response: The ESA and the
Eagle Act should be read together to
avoid conflicts. Neither law usurps or
trumps the other. The Service’s
preferred approach is to balance the
interests of the various species it is
mandated to protect. That approach has
entailed consideration of other feasible
alternatives before authorizing removal
of a golden eagle nest, but eventual
removal for such purposes remains a
potential solution if other alternatives
do not work.
Comment: New regulations should
provide more information as to what
other entities are expected to apply for
programmatic permits. Will the
regulations affect the aviation industry
if there are more eagle strikes? Will they
apply to State natural resource agencies
if there is an increase in nontarget eagle
catch associated with recreational
trapping?
Service response: Permits would
remain available under these proposed
regulations to any person, organization,
agency, or business that wishes to

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receive authorization for recurrent take
of eagles. Experience so far is that
airports have been more interested in
permits to remove nests in the vicinity
of airfields rather than permits to cover
eagle strikes. Persons wishing to apply
for eagle take permits for incidental take
of eagles associated with trapping
would apply to the Service, not to State
natural resource agencies. If there have
been increases in nontarget eagle catch
by recreational trappers, the Service will
consider bolstering educational efforts
to reach trappers to ensure they
understand such take is illegal and they
must make every effort to avoid
incidentally taking eagles.
Comment: The Service should
establish an interagency consultation
process for authorizing eagle take
similar to that provided by ESA section
7(a)(2).
Service response: The ESA section 7
process is an exemption from the
prohibitions of take, not an
authorization for take. The Eagle Act
does not provide for such exemptions
and does not contain provisions
mandating a consultation process for
federal agency actions that may result in
eagle take.
Comment: A condition of permits to
wind companies should be to pick up
all dead birds as often as possible to
minimize the risk to scavenging eagles.
Service response: The Service
supports and often requires removal of
animal carcasses to reduce eagle
mortalities, but it is unclear whether
bird carcasses have the same attractant
qualities for eagles as dead livestock and
other mammals. There may be
circumstances where we would
condition wind companies to remove
dead birds from the site, but we do not
agree that requirement should be a
provision of every incidental take
permit we issue to a wind energy
facility. We explicitly do not want
facilities to pick up dead eagles, and we
have required protocols for contacting
our Office of Law Enforcement when
that happens. Sometimes, other birds
protected under the MBTA must be left
where they are killed for enforcement
reasons. Some companies are
conducting research to determine the
effectiveness of different fatality
monitoring protocols, and picking up
carcasses could interfere with those
studies. Additionally, some wind
companies have also received migratory
bird Special Purpose Utility Permits to
monitor for purposes of methodically
tracking where take occurs and collect
the carcasses for identification and/or to
prevent counting the same fatality
twice.

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Comment: The USFWS should
reconsider the concept of ‘‘depredation’’
as applied to golden eagle take for the
purpose of falconry. As with wildlife,
golden eagles that fly into windmill
power generators, with lethal results,
become depredation involving wildlife.
Therefore, incidental take of golden
eagles by wind farms is ‘‘depredation’’
within the meaning of the Eagle Act,
which allows golden eagle take at wind
facilities for falconry purposes.
Falconers permitted to trap golden
eagles prior to entering a ‘‘wind farm’’
are undertaking the first mitigation
priority—‘‘avoiding’’ the potential of
lethal take by the windmills. Golden
eagles taken in this manner could be
relocated to another safer area, with a
small percentage of these ‘‘mitigated’’
eagles available for falconry purposes.
Service response: Depredation does
not mean accidental killing. A review of
several American English dictionaries
consistently brings up the following
definition for ‘‘depredate’’: ‘‘plunder
and pillage.’’ The eagle itself must be
doing the depredating, not the wind
turbines, and an eagle that is killed by
colliding with a turbine blade is not
plundering itself. Under the Eagle Act,
falconers cannot take any eagles except
depredating eagles, so even if we
supported the proposal to relocate
eagles from wind energy facility sites,
falconers could not legally retain them.
With regard to whether a falconer—or
anyone else—is undertaking avoidance
by removing golden eagles from the area
of a wind turbine, we do not agree:
Routine eagle presence in the area of a
wind facility indicates the area is good
eagle habitat. Removing eagles out of a
territory with good foraging
opportunities and nest sites will result
in new or the same eagles returning as
long as the prey and site characteristics
remain. Rather than creating a
population sink by continually
removing eagles and relocating them to
areas where they may not be able to
establish successful territories, the best
way to avoid eagle take at wind energy
facilities is to site those facilities outside
of good eagle habitat and migration
corridors.
Public Comments
We request comments or information
from other concerned governmental
agencies, Native American tribes, the
scientific community, industry, and
other interested parties concerning this
proposed rule. We also welcome
comments on defining low-risk
activities and potential criteria for
developing a general permit to minimize
the costs of compliance for the public
and the demand for agency resources for

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projects that will result in no more than
minimal individual and cumulative
adverse effects on eagles for our
consideration in the future. While
comments related to low-risk or general
permits would be outside the scope of
this rulemaking action, we would keep
them for consideration if we decide to
pursue further rulemaking in the future.
You may submit your comments and
supporting materials by one of the
methods listed in ADDRESSES. We
request that you submit comments by
only one method. We will not consider
comments sent by email or fax, or
written comments sent to an address
other than the one listed in ADDRESSES.
If you submit a comment via http://
www.regulations.gov, your entire
comment—including any personal
identifying information—will be posted
on the Web site. If you submit a
hardcopy comment that includes
personal identifying information, you
may request that we withhold this
information from public review, but we
cannot guarantee that we will be able to
do so. We will post all hardcopy
comments on http://
www.regulations.gov.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection at
http://www.regulations.gov, or by
appointment, during normal business
hours, by contacting the person listed
above under FOR FURTHER INFORMATION
CONTACT.
Required Determinations
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) in the Office of
Management and Budget will review all
significant rules. OIRA has determined
that this proposed rule is significant.
Executive Order 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open

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exchange of ideas. We have developed
this proposed rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq., as amended by the
Small Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996 (Pub. L.
104–121)), whenever an agency is
required to publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effect of the rule on small businesses,
small organizations, and small
government jurisdictions. However, no
regulatory flexibility analysis is required
if the head of an agency certifies the rule
would not have a significant economic
impact on a substantial number of small
entities.
SBREFA amended the Regulatory
Flexibility Act to require Federal
agencies to provide the statement of the
factual basis for certifying that a rule
would not have a significant economic
impact on a substantial number of small
entities. We have examined this
proposed rule’s potential effects on
small entities as required by the
Regulatory Flexibility Act and
determined that this action would not
have a significant economic impact on
a substantial number of small entities.
In the first 6 years (FY 2010 through
FY 2015) since the eagle permit
regulations at 50 CFR 22.26 and 50 CFR
22.27 were published, the Service has
received 626 permit applications for the
two permit types and issued
approximately 490 permits, including
renewals. Of those, we estimate 410
permits were issued to small businesses.
Over those 6 years, the annual number
of applications received (including for
renewals) increased from 50 per year in
FY 2010 to 140 per year in FY 2015.
We received a total of 34
programmatic permit applications and
have issued one programmatic permit
thus far. We anticipate a greater volume
of applications for permits for long-term
activities in the future, although we
expect the number to increase gradually
for a period of years and perhaps
eventually reach an average of 30 or
fewer per year. Utility-scale wind
energy facilities and electric
transmission companies are likely to be
the most frequent long-term permit
applicants, because of the known risk to
eagles from collisions with wind
turbines and electric power lines.
Although smaller wind energy facilities
could seek permits, we anticipate that
most of the applications for wind energy

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facilities will be for those that are
commercial or utility scale. Although
businesses in other business sectors,
such as railroads, timber companies,
and pipeline companies could also
apply for permits, we anticipate the
number of permit applicants in such
sectors to be very small, on the order of
one or two per year for each such sector.
Thus, we anticipate that the proposed
rule would not have a significant
economic impact on a substantial
number of small entities.
Under these proposed regulations, an
applicant for a long-term permit would
pay a $15,000 Administration Fee (an
increase from the current fee of $2,600)
every 5 years to cover the cost of the 5year permit evaluations. The initial
permit application fee of $36,000 for a
long-term permit will remain the same.
We do not believe the increased
Administration Fee would impose a
significant economic impact on these
small entities.
A commercial applicant for an
incidental take permit of a duration less
than 5 years would pay a $2,500 permit
application processing fee, an increase
from the current fee of $1,000 for
programmatic permits and $500 for
standard permits. The amendment fee
for those permits would increase from
$150 to $500. A commercial applicant
for a nest take permit for a single nest
would pay a $2,500 permit application
processing fee, an increase from the
current fee of $500 for standard permits.
The amendment fee for those permits
would also increase from $150 to $500.
An applicant for a nest take permit for
multiple nests would pay a $5,000
permit application processing fee, an
increase from the current fee of $1,000
for programmatic permits. None of these
fee increases are significant for
commercial entities and all are
necessary to recoup as much of the
Service’s costs in providing these
services to these entities. The
amendment fee for those permits would
remain the same as the current
programmatic nest take amendment fee
($500).
Based on trends in the numbers of
permit applications under the current
regulations, we project there would be
fewer than 100 small entities subject to
the proposed fee increases annually,
including renewal and amendments,
which will not result in a significant
impact on a substantial number of small
entities. We request comments and
information from industry and any other
interested parties regarding probable
economic impacts of this proposal.
Additional practicable mitigation
measures that may be required under
the terms and conditions of permits

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issued with a term of longer than 5 years
could result in some additional costs to
the permittee, but those costs should be
offset by the reduction in uncertainty for
the permittee achieved by securing a 30year permit rather than a 5-year permit.
Consequently, we certify that because
this proposed rule would not have a
significant economic effect on a
substantial number of small entities, an
initial regulatory flexibility analysis is
not required.
We are also proposing minor revisions
to the eagle nest take permit regulations
at 50 CFR 22.27, but none of the
proposed changes are expected to have
a significant economic effect on a
substantial number of small entities.
This proposed rule is not a major rule
under SBREFA (5 U.S.C. 804(2))
because:
a. This proposed rule would not have
an annual effect on the economy of $100
million or more.
b. This proposed rule would not cause
a major increase in costs or prices for
consumers; individual industries;
Federal, State, or local government
agencies; or geographic regions.
c. This proposed rule would not have
significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we have determined the following:
a. This proposed rule would not
‘‘significantly or uniquely’’ affect small
governments. A small government
agency plan is not required. The
proposed regulations changes would not
affect small government activities in any
significant way.
b. This proposed rule would not
produce a Federal mandate of $100
million or greater in any year. It is not
a ‘‘significant regulatory action’’ under
the Unfunded Mandates Reform Act.
Takings
In accordance with E.O. 12630, the
rule would not have significant takings
implications. This proposed rule does
not contain any provisions that could
constitute taking of private property.
Therefore, a takings implication
assessment is not required.
Federalism
This proposed rule would not have
sufficient Federalism effects to warrant
preparation of a Federalism assessment
under E.O. 13132. It would not interfere
with the States’ abilities to manage
themselves or their funds. No significant

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economic impacts are expected to result
from the proposed regulations change.
Civil Justice Reform
In accordance with E.O. 12988, the
Office of the Solicitor has determined
that the proposed rule would not
unduly burden the judicial system and
meets the requirements of sections 3(a)
and 3(b)(2) of the Order.
Paperwork Reduction Act of 1995 (PRA)
This proposed rule contains a
collection of information that we have
submitted to the Office of Management
and Budget (OMB) for review and
approval under the PRA (44 U.S.C. 3501
et seq.). After publication of the
‘‘Duration Rule’’ in 2013, we included
the burden associated with eagle
permits in our renewal of OMB Control
No. 1018–0022. OMB has reviewed and
approved the information collection
requirements for applications, annual
reports, and nonhour cost burden
associated with eagle permits and
assigned OMB Control Number 1018–
0022, which expires May 31, 2017. The
approval includes long-term (more than
5 years) eagle take permits.
This proposed rule does not revise the
number of responses or total annual
burden hours associated with eagle
permits. However, we believe the
approved estimates for the number of
annual responses are high. We will
adjust our estimates when we renew
OMB Control No. 1018–0022.
This proposed rule would:
(1) Establish an administration fee of
$15,000 that each permittee will pay
every 5 years to cover the cost of the 5year permit evaluations. We will not
collect this fee until the permittee has
had a permit for at least 5 years. We
expect that we will not impose this fee
until at least 2022.
(2) Change the application fees
associated with some permits.
(3) Require annual reports. This
requirement is approved under OMB
Control Number 1018–0022. There are
no fees associated with annual reports.
(4) Establish a new reporting
requirement and a new administration
fee for permits of over 5 years.
We are seeking OMB approval for
changes in burden and nonhour cost
burden associated with the proposed
rule. We are requesting that OMB assign
a new control number for the revised
burden. When we publish the final rule,
we will incorporate the new nonhour
cost burden into OMB Control Number
1018–0022 and discontinue the new
number. An agency may not conduct or
sponsor and you are not required to
respond to a collection of information

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Federal Register / Vol. 81, No. 88 / Friday, May 6, 2016 / Proposed Rules
unless it displays a currently valid OMB
control number.
Title: Eagle Take Permits and Fees, 50
CFR 22.
OMB Control Number: 1018–XXXX.
This is a new collection.

Service Form Number(s): 3–200–71,
3–200–72.
Type of Request: New collection.
Description of Respondents:
Individuals and businesses. We expect
that the majority of applicants seeking

long-term permits will be in the energy
production and electrical distribution
business.
Respondent’s Obligation: Required to
obtain or retain a benefit.
Frequency of Collection: On occasion.

TABLE 1—PROPOSED INFORMATION COLLECTION REQUIREMENTS
Activity/
requirement

Existing approval
(1018–0022)

Current fee

Proposed fee

Total approved
nonhour
burden cost

Total proposed
nonhour
burden cost

Difference
between
1018–0022
and
proposed

CHANGE IN NONHOUR COST BURDEN
3–200–71—application,
Eagle Incidental
Take—(not programmatic or longterm) 1.

3–200–72—application,
Eagle Nest Take—
single nest (formerly
‘‘standard’’) 2.

3–200–72—application,
Eagle Nest Take—
multiple nests (formerly ‘‘programmatic’’) 3.

3–200–71 Eagle Incidental Take Amendment—less than 5
years (formerly
‘‘standard’’ 4.

3–200–72 Eagle Nest
Take Amendment—
‘‘Single nest’’ (formerly ‘‘standard’’) 4.

3–200–71 Amendment—Eagle Incidental Take Programmatic.

No. of responses and
annual burden hours
approved under
OMB Control No.
1018–0022. This
proposed rule revises fees and
nonhour costs.
No. of responses and
annual burden hours
approved under
OMB Control No.
1018–0022. This
proposed rule revises fees and
nonhour costs.
No. of responses and
annual burden hours
approved under
OMB Control No.
1018–0022. This
proposed rule revises fees and
nonhour costs.
No. of responses and
annual burden hours
approved under
OMB Control No.
1018–0022. This
proposed rule revises fees and
nonhour costs.
No. of responses and
annual burden hours
approved under
OMB Control No.
1018–0022. This
proposed rule revises fees and
nonhour costs.
No. of responses and
annual burden hours
approved under
OMB Control No.
1018–0022. This
proposed rule revises fees and
nonhour costs.

$500
500

$500—Homeowner .....
$2,500—Commercial ...

$72,500

$12,500
300,000

+$240,000

500

$500—Homeowner .....
$2,500—Commercial ...

15,000

55,000

+40,000

0

$500—Homeowner .....
$2,500—Commercial ..

0

20,500

+20,500

150

$150—Homeowner .....
$500—Commercial ......

5 3,000

9,300

6,300

150

$150—Homeowner .....
$500—Commercial ......

6 750

2,150

+1,400

1,000

No Fee 7 ......................

2,000

........................

¥2,000

NO CHANGE OR FEES—BURDEN INCLUDED IN EXISTING APPROVAL OF 1018–0022

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§ 22.26(c)(3)—Annual
Report 8.

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No. of responses and
annual burden hours
approved under
OMB Control No.
1018–0022. This
proposed rule revises fees and
nonhour costs.

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Activity/requirement

Estimated
number of
annual
responses

Estimated
number of
annual burden
hours

Current fee

Proposed fee

Total approved
nonhour
burden cost

Total proposed
nonhour
burden cost

Difference
between
1018–0022
and
proposed

NEW REPORTING REQUIREMENT AND NEW ADMINISTRATION FEE
§ 22.26(c)(7)(ii)—Permit
reviews. At no more
than 5 years from the
date a permit that exceeds 5 years is
issued, and every 5
years thereafter, the
permittee compiles
and submits to the
Service, eagle fatality
data or other pertinent information that
is site-specific for the
project. 9 ....................

4

32

0

$15,000

0

$60,000

+$60,000

Total ......................

4

32

........................

........................

93,250

459,450

366,200

1 Approved

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under 1018–0022—145 annual responses (25 from individuals/households (homeowners) and 120 from the private sector (commercial) totaling 2,320 annual burden hours) (400 burden hours for individuals and 1,920 annual burden hours for private sector); $500 permit
fee for both individuals and private sector for a total nonhour burden cost of $72,500. This proposed rule changes the application fees: Homeowner fee would remain $500; private sector fee (commercial) would increase to $2,500. Total for 25 homeowners—$12,500; Total for 125 commercial applicants—$300,000).
2 Approved under 1018–0022—30 responses (10 from Individuals/homeowners and 20 from private sector (commercial) totaling 480 burden
hours (160 hours (individuals) and 320 hours (private sector). Homeowner fee would remain $500; private sector fee (commercial) would increase to $2,500. Total for 10 homeowners—$5,000.; Total for 20 commercial applicants—$50.000).
3 Approved under 1018–0022—9 responses (1 from Individuals/homeowners and 8 from private sector (commercial) totaling 360 burden hours
(40 hrs (individuals) and 320 hrs (private sector). The approved non-hour burden cost is $0; however, that is an error. The permit application
processing fee for programmatic nest take permits under the current regulations is $1,000, so the total current burden cost should be $9,000 (9
responses). Under the proposed rule, the homeowner fee would increase to $500; private sector fee (commercial) would increase to $2,500.
Total for 1 homeowner—$500; total for 8 commercial—$20,000.
4 The amendments for standard non-purposeful eagle take permits and standard eagle nest take permits are combined in the approved collection for a total of 25. Here they are split into 20 eagle incidental take permit amendments and 5 eagle nest take permit amendments.
5 Two Homeowner, Eighteen Commercial.
6 One Homeowner; Four Commercial.
7 The amendment fee for long-term programmatic permits is approved under 1018–0022. Under this proposed rule, it is being removed because the costs associated with it would be included under the proposed Administration Fee.
8 Approved under 1018–0022 (3–202–15)—540 responses (20 from individuals/households and 520 from private sector) totaling 16,200 annual
burden hours; nonhour cost burden $0. There are no fees for annual reports.
9 This is a new reporting requirement as well as a new Administration Fee. We will not receive any reports or assess the Administration Fee
until after a permittee has had a permit for 5 years (earliest probably 2022). We estimate that we will receive 19 responses every 5 years,
annualized over the 3-year period of OMB approval results in 4 responses annually. We estimate that each response will take 8 hours, for a total
of 32 annual burden hours. We will assess a $15,000 administration fee for each permittee for a total of $60,000. Note: this burden reflects what
will be imposed in 5 years. Each 5 years thereafter, the burden and nonhour costs will increase because of the number of permittees holding 5year or longer term permits.

Estimated Total Nonhour Burden
Cost: $459,450 for administration fees
and application fees associated with
changes in this proposed rule. This does
not include the nonhour cost burden for
eagle/eagle nest take permits approved
under OMB Control No. 1018–0022.
States, local governments, and tribal
governments are exempt from paying
these fees.
As part of our continuing effort to
reduce paperwork and respondent
burdens, we invite the public and other
Federal agencies to comment on any
aspect of this information collection,
including:
(1) Whether or not the collection of
information is necessary, including
whether or not the information will
have practical utility;
(2) The accuracy of our estimate of the
burden for this collection of
information;

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(3) Ways to enhance the quality,
utility, and clarity of the information to
be collected; and
(4) Ways to minimize the burden of
the collection of information on
respondents.
If you wish to comment on the
information collection requirements of
this proposed rule, send your comments
directly to OMB (see detailed
instructions under the heading
Comments on the Information
Collection Aspects of this Proposal in
the ADDRESSES section). Please identify
your comments with 1018–AY30.
Provide a copy of your comments to the
Service Information Collection
Clearance Officer (see detailed
instructions under the heading
Comments on the Information
Collection Aspects of this Proposal in
the ADDRESSES section).

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National Environmental Policy Act
We have prepared a draft
programmatic environmental impact
statement (DPEIS) under the
requirements of the NEPA of 1969 (42
U.S.C. 4321 et seq.). The DPEIS analyzes
the effects of this proposed rule and our
proposed associated management
objectives, as well as alternatives to
these proposed rule revisions and
proposed management objectives. The
DPEIS is available online at
www.regulations.gov by clicking on the
link entitled ‘‘Non-Eagle Management
and Regulations DPEIS’’ and is also
available on the Service’s Web site at:
http://www.fws.gov/birds/management/
managed-species/eaglemanagement.php.
In addition, the Environmental
Protection Agency (EPA) is publishing a
notice of availability in the Federal

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Register announcing the DPEIS, as
required under section 309 of the Clean
Air Act (42 U.S.C. 7401 et seq.). All EISs
are filed with EPA, which publishes a
notice of availability on Fridays in the
Federal Register. For more information,
see http://www.epa.gov/compliance/
nepa/eisdata.html. The publication date
of EPA’s notice of availability is the
official start of the public comment
period for the draft EIS. Under the Clean
Air Act, EPA also must subsequently
announce the final PEIS via the Federal
Register.
The EPA is charged under section 309
of the Clean Air Act to review all
Federal agencies’ environmental impact
statements (EISs) and to comment on
the adequacy and the acceptability of
the environmental impacts of proposed
actions in the EISs. EPA also serves as
the repository (EIS database) for EISs
prepared by Federal agencies. The
Environmental Impact Statement (EIS)
Database provides information about
EISs prepared by Federal agencies, as
well as EPA’s comments concerning the
EISs. You may search for EPA
comments on EISs, along with EISs
themselves, at https://
cdxnodengn.epa.gov/cdx-enepa-public/
action/eis/search.
Endangered and Threatened Species
Section 7 of the Endangered Species
Act (ESA) of 1973, as amended (16
U.S.C. 1531 et seq.), requires Federal
agencies to ‘‘insure that any action
authorized, funded, or carried out . . .
is not likely to jeopardize the continued
existence of any endangered species or
threatened species or result in the
destruction or adverse modification of
[critical] habitat’’ (16 U.S.C. 1536(a)(2)).
Service policies require assessment of
impacts to certain rare, candidate,
declining, and sensitive species. Before
issuance of the final regulations and
final DPEIS, the Service will comply
with provisions of the Endangered
Species Act of 1973, as amended (16
U.S.C. 1531–1543; hereinafter the Act),
to ensure that the rulemaking is not
likely to jeopardize the continued
existence of any species designated as
endangered or threatened or modify or
destroy its critical habitat and is
consistent with conservation programs
for those species. Consultations under
section 7 of the Act may cause us to
change proposals in this and future
supplemental proposed rulemaking
documents.
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations

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with Native American Tribal
Governments’’ (59 FR 22951), E.O.
13175, and 512 DM 2, we have
evaluated potential effects on federally
recognized Indian tribes and have
determined that this proposed rule
would not interfere with tribes’ abilities
to manage themselves, their funds, or
tribal lands. In September of 2013, we
sent a letter to all federally recognized
tribes inviting them to consult about
possible changes to the eagle take
permit regulations. The letter notified
Tribes of the Service’s intent to amend
the regulations and sought feedback
about their interest in consultation on
the amendment. After sending these
letters and receiving responses from
several Tribes, FWS conducted
webinars, group meetings, and meetings
with individual Tribes. The FWS will
continue to respond to all Tribal
requests for consultation on this effort.
Several tribes that value eagles as part
of their cultural heritage objected to the
2013 rule that extended maximum
permit duration for programmatic
permits based on a concern that the
regulations would not adequately
protect eagles. Those tribes may
perceive further negative effects from
similar provisions proposed in this
rulemaking. However, eagles would be
sufficiently protected under this
proposal because only those applicants
who commit to adaptive management
measures to ensure the preservation of
eagles will receive permits with terms
longer than 5 years and those permits
will be reviewed at 5-year intervals and
amended if necessary.
Energy Supply, Distribution, or Use
(Executive Order 13211)
E.O. 13211 addresses regulations that
significantly affect energy supply,
distribution, and use. E.O. 13211
requires agencies to prepare Statements
of Energy Effects when undertaking
certain actions. This rule, if finalized as
proposed, would likely be used by
numerous energy generation projects
seeking compliance with the Eagle Act.
However, the rule is not a significant
regulatory action under E.O. 13211, and
no Statement of Energy Effects is
required.
Material Incorporated by Reference
These proposed regulations
incorporate by reference two appendices
of the Service’s Eagle Conservation Plan
Guidance, Module 1—Land-based Wind
Energy (ECPG) (USFWS, 2013). The
guidance went through two periods of
public notice and comment during its
development and, separately, was twice
peer-reviewed by independent thirdparties. The ECPG is available in the

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Service’s Web site at: http://
www.fws.gov/migratorybirds/pdf/
management/
eagleconservationplanguidance.pdf.
Proposed provisions at § 22.26(d)(3)(i)
would incorporate by reference are
ECPG Appendix C: Stage 2—SiteSpecific Surveys and Assessment and
ECPG Appendix D: Stage 3—Predicting
Eagle Fatalities.
Literature Cited
Brown, J. L., M. W. Collopy, E. J. Gott, P. W.
Juergens, A. B. Montoya, and W. G.
Hunt. 2006. Wild-reared aplomado
falcons survive and recruit at higher
rates than hacked falcons in a common
environment. Biological Conservation
131:453–458.
Kochert, M.N., Steenhof, K., 2012. Frequency
of nest use by golden eagles in
southwestern Idaho. J. Raptor Res. 46,
239–247. http://dx.doi.org/10.3356/JRR12-00001.1.
McIntyre, C. L., D. C. Douglas, and M. W.
Collopy. 2008. Movements of golden
eagles (Aquila chrysaetos) from interior
Alaska during their first year of
independence. The Auk 125:214–224.
McIntyre, C. 2012. Quantifying sources of
mortality and winter ranges of golden
eagles from interior Alaska using
banding and satellite tracking. Journal of
Raptor Research 46:129–134.
Mojica, E. K., J. M. Meyers, B. A. Millsap, and
K. L. Haley. 2008. Migration of Florida
sub-adult bald eagles. The Wilson
Journal of Ornithology 120:304–310.
U.S. Fish and Wildlife Service. 2007.
National Bald Eagle Management
Guidelines. Division of Migratory Bird
Management. http://www.fws.gov/birds/
management/managed-species/eaglemanagement.php.
U.S. Fish and Wildlife Service. 2009. Final
Environmental Assessment: Proposal to
Permit Take as Provided Under the Bald
and Golden Eagle Protection Act.
Division of Migratory Bird Management.
http://www.fws.gov/migratorybirds/pdf/
management/FEAEagleTakePermit.pdf.
U.S. Fish and Wildlife Service. 2013. Eagle
conservation plan guidance. Module 1—
land-based wind energy. Version 2.
Division of Migratory Bird Management.
https://www.fws.gov/migratorybirds/pdf/
management/
eagleconservationplanguidance.pdf.
U.S. Fish and Wildlife Service. 2016. Bald
and Golden Eagles: Status, trends, and
estimation of sustainable take rates in the
United States. Division of Migratory Bird
Management, Washington DC, USA.

List of Subjects
50 CFR Part 13
Administrative practice and
procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping
requirements, Transportation, Wildlife.

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50 CFR Part 22
Birds, Exports, Imports, Migratory
birds, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
For the reasons described in the
preamble, we propose to amend
subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth
below:

PART 13—GENERAL PERMIT
PROCEDURES

in the table in paragraph (d)(4) to read
as follows:

1. The authority for part 13 continues
to read as follows:

§ 13.11

■

Authority: 16 U.S.C. 668a, 704, 712, 742j–
l, 1374(g), 1382, 1538(d), 1539, 1540(f), 3374,
4901–4916; 18 U.S.C. 42; 19 U.S.C. 1202; 31
U.S.C. 9701.

Application procedures.

*
*
(d) * * *
(4) * * *

*

*

2. In § 13.11, revise the entries for
‘‘Bald and Golden Eagle Protection Act’’

■

Permit
application
fee

CFR
citation

Type of permit

*

*

*

*

*

*

*

................................
................................
................................
................................
................................
................................
................................
................................
................................
................................
................................
................................
................................
................................
................................
................................

100 ..............
75 ................
100 ..............
No fee .........
100 ..............
100 ..............
75 ................
No fee .........
2,500 ...........
500 ..............
36,000 .........
1,000 ...........
2,500 ...........
5,000 ...........
500 ..............
No fee .........

*

*

Amendment
fee

*

Bald and Golden Eagle Protection Act
Eagle Scientific Collecting ...........................................................................
Eagle Exhibition ...........................................................................................
Eagle Falconry .............................................................................................
Eagle—Native American Religion ...............................................................
Eagle Take permits—Depredation and Protection of Health and Safety ...
Golden Eagle Nest Take .............................................................................
Eagle Transport—Scientific or Exhibition ....................................................
Eagle Transport—Native American Religious Purposes .............................
Eagle Incidental Take—Up to 5 years ........................................................
Eagle Incidental Take—Homeowner ...........................................................
Eagle Incidental Take—5–30 years ............................................................
Eagle Incidental Take—Transfer of a permit ..............................................
Eagle Nest Take—Single nest ....................................................................
Eagle Nest Take—Multiple nests ................................................................
Eagle Nest Take—Homeowner ...................................................................
Eagle Take—Exempted under ESA ............................................................
*

*

*

*

*

*

*

*

CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR

part
part
part
part
part
part
part
part
part
part
part
part
part
part
part
part

22
22
22
22
22
22
22
22
22
22
22
22
22
22
22
22

*

3. The authority citation for part 22 is
revised to read as follows:

j. Removing the definitions of
‘‘Programmatic permit’’, ‘‘Programmatic
take’’, and ‘‘Territory’’.
The additions and revisions read as
follows:

Authority: 16 U.S.C. 668–668d; 703–712;
1531–1544.

§ 22.3 What definitions do you need to
know?

4. Amend § 22.3 by:
a. Removing the definition of
‘‘Advanced conservation practices’’;
■ b. Adding a definition for ‘‘Alternate
nest’’;
■ c. Removing the definition of ‘‘Area
nesting population’’;
■ d. Adding definitions for ‘‘Compatible
with the preservation of the bald eagle
or the golden eagle’’ and ‘‘Eagle
management unit’’;
■ d. Revising the definition of ‘‘Eagle
nest’’;
■ e. Removing the definition of
‘‘Inactive nest’’;
■ f. Adding definitions for ‘‘In-use nest’’
and ‘‘Local area population’’;
■ g. Removing the definition of
‘‘Maximum degree achievable’’;
■ h. Adding a definition for ‘‘Nesting
territory’’;
■ i. Revising the definition of
‘‘Practicable’’; and

*

■

PART 22—EAGLE PERMITS
■

■
■

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50
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50
50
50
50
50
50
50
50
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*
*
*
Alternate nest means one of
potentially several nests within a
nesting territory that is not a used nest
at the current time. When there is no
used nest, all nests in the territory are
alternate nests.
*
*
*
*
*
Compatible with the preservation of
the bald eagle or the golden eagle means
consistent with the goals of maintaining
stable or increasing breeding
populations in all eagle management
units and persistence of local
populations throughout the geographic
range of both species.
*
*
*
*
*
Eagle management unit (EMU) means
the geographic scale over which
permitted take is regulated to meet the
management objective.
Eagle nest means any assemblage of
materials built, maintained, or used by

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50
500
150
500
500
150

*

bald eagles or golden eagles for the
purpose of reproduction.
*
*
*
*
*
In-use nest means a bald or golden
eagle nest characterized by the presence
of one or more eggs, dependent young,
or adult eagles on the nest in the past
10 days during the breeding season.
*
*
*
*
*
Local area population (LAP) means
the bald or golden eagle population
within the area of a human activity or
project bounded by the natal dispersal
distance for the respective species. The
LAP is estimated using the average eagle
density of the EMU or EMUs where the
activity or project is located.
*
*
*
*
*
Nesting territory means the area that
contains one or more eagle nests within
the home range of a mated pair of
eagles, regardless of whether such nests
were built by the current resident pair.
*
*
*
*
*
Practicable means available and
capable of being done after taking into
consideration existing technology,
logistics, and cost in light of a
mitigation measure’s beneficial value to

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eagles and the activity’s overall purpose,
scope, and scale.
*
*
*
*
*
§ 22.4

[Amended]

5. Amend § 22.4(a) by removing ‘‘and
1018–0136’’ in the first sentence.
■ 6. Amend § 22.11 by revising
paragraph (c) to read as follows:
■

§ 22.11 What is the relationship to other
permit requirements?

*

*
*
*
*
(c) A permit under this part only
authorizes take, possession, and/or
transport under the Bald and Golden
Eagle Protection Act and does not
provide authorization under the
Migratory Bird Treaty Act or the
Endangered Species Act for the take,
possession, and/or transport of
migratory birds or endangered or
threatened species other than bald or
golden eagles.
*
*
*
*
*
■ 7. Amend § 22.25 by:
■ a. Revising the first sentence of the
introductory text;
■ b. Removing the semicolons at the
ends of paragraphs (a)(1) and (2) and
adding periods in their place;
■ c. Revising paragraph (a)(4);
■ d. Removing the semicolon at the end
of paragraph (a)(5) and adding a period
in its place;
■ e. Removing paragraph (a)(6) and
redesignating paragraphs (a)(7) through
(9) as paragraphs (a)(6) through (8);
■ f. Removing the semicolon at the end
of newly redesignated paragraph (a)(6)
and adding a period in its place and
removing ‘‘; and’’ at the end of newly
redesignated paragraph (a)(7) and
adding a period in its place;
■ g. Revising paragraphs (b)(1) and (4);
■ h. Removing paragraphs (c)(3) and (6)
and redesignating paragraphs (c)(4) and
(5) as paragraphs (c)(3) and (4); and
■ i. Revising newly designated
paragraphs (c)(3) and (4).
The revisions read as follows:

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

§ 22.25 What are the requirements
concerning permits to take golden eagle
nests?

The Director may, upon receipt of an
application and in accordance with the
issuance criteria of this section, issue a
permit authorizing any person to take
alternate golden eagle nests during a
resource development or recovery
operation if the taking is compatible
with the preservation of golden eagles.
* * *
(a) * * *
(4) Nest and territory occupancy data.
(i) For each golden eagle nest proposed
to be taken, the applicant must identify
on an appropriately scaled map or plat

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the exact location of each golden eagle
nest in the nesting territory. The map or
plat must contain enough details so that
each golden eagle nest can be readily
located by the Service.
(ii) A description of the monitoring
that was done to verify that eagles are
not attending the nest for breeding
purposes, and any additional available
documentation used in identifying
which nests within the territory were inuse nests in current and past breeding
seasons.
*
*
*
*
*
(b) * * *
(1) Only alternate golden eagle nests
may be taken;
*
*
*
*
*
(4) The permittee must comply with
any mitigation and monitoring measures
determined by the Director to be
practicable and compatible with the
resource development or recovery
operation; and
*
*
*
*
*
(c) * * *
(3) Whether suitable golden eagle
nesting and foraging habitat unaffected
by the resource development or
recovery operation is available to
accommodate any golden eagles
displaced by the resource development
or recovery operation; and
(4) Whether practicable mitigation
measures compatible with the resource
development or recovery operation are
available to encourage golden eagles to
reoccupy the resource development or
recovery site. Mitigation measures may
include, but are not limited to,
reclaiming disturbed land to enhance
golden eagle nesting and foraging
habitat, relocating in suitable habitat
any golden eagle nest taken, or
establishing one or more nest sites.
*
*
*
*
*
■ 8. Amend § 22.26 by:
■ a. Revising paragraphs (a) and (c)(1)
through (3);
■ b. Redesignating paragraphs (c)(7)
through (10) as (c)(8) through (11) and
adding new paragraph (c)(7);
■ c. Revising paragraph (d)(2) and
adding paragraph (d)(3);
■ d. Revising paragraph (e)(1);
■ e. Redesignating paragraphs (e)(3), (4),
and (5) as paragraphs (e)(5), (7), and (9),
adding new paragraphs (e)(3), (4), (6),
and (8);
■ f. Revising newly redesignated
paragraphs (e)(5) and (e)(7)(i) through
(iv);
■ g. Removing newly redesignated
paragraph (e)(7)(v);
■ h. Revising paragraphs (f)(2) through
(6);
■ i. Adding paragraphs (f)(7) and (8);
and

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j. Revising paragraph (h).
The revisions and additions read as
follows:

■

§ 22.26 Permits for eagle take that is
associated with, but not the purpose of, an
activity.

(a) Purpose and scope. This permit
authorizes take of bald eagles and
golden eagles where the take is
compatible with the preservation of the
bald eagle and the golden eagle; is
necessary to protect an interest in a
particular locality; is associated with,
but not the purpose of, the activity; and
cannot practicably be avoided.
*
*
*
*
*
(c) * * *
(1) You must comply with all
avoidance, minimization, or other
mitigation measures specified in the
terms of your permit to mitigate for the
detrimental effects on eagles, including
indirect effects, of the permitted take.
(i) Compensatory mitigation scaled to
project impacts will be required for any
permit authorizing take that would
exceed the authorized take limits.
Compensatory mitigation for this
purpose must ensure the preservation of
the affected eagle species by reducing
another ongoing form of mortality by an
amount equal to or greater than the
unavoidable mortality, or increasing
carrying capacity to allow the eagle
population to grow by an equal or
greater amount.
(ii) Compensatory mitigation may also
be required in the following
circumstances:
(A) When cumulative authorized take,
including the proposed take, would
exceed 5 percent of the local area
population; or
(B) When available data indicate that
cumulative unauthorized mortality
would exceed 10 percent of the local
area population.
(iii) All required compensatory
mitigation must:
(A) Be determined based on
application of all practicable avoidance
and minimization measures;
(B) Be sited within the same eagle
management unit where the permitted
take will occur unless the Service has
reliable data showing that the
population affected by the take includes
individuals that are reasonably likely to
use another EMU during part of their
seasonal migration;
(C) Use the best available science in
formulating and monitoring the longterm effectiveness of mitigation
measures;
(D) Be additional to any existing or
foreseeably expected conservation and
mitigation efforts planned for the future;
(E) Be durable and, at a minimum,
maintain its intended purpose for as

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long as impacts of the authorized take
persist; and
(F) Account for uncertainty and risk
of failure with regard to the amount of
compensatory mitigation required.
(iv) Compensatory mitigation may
include conservation banking, in-lieu
fee programs, and other third-party
mitigation projects or arrangements.
Permittee-responsible mitigation may be
approved provided the permittee
submits verifiable documentation
sufficient to demonstrate that the
standards set forth in paragraph
(c)(1)(iii) of this section have been met
and the alternative means of
compensatory mitigation will offset the
permitted take to the degree that is
compatible with the preservation of
eagles.
(2) Monitoring. (i) You may be
required to monitor eagle use of
important eagle-use areas where eagles
are likely to be affected by your
activities for up to 3 years after
completion of the activity or as set forth
in a separate management plan, as
specified on your permit. For ongoing
activities and enduring site features that
will likely continue to result in take,
periodic monitoring may be required for
as long as the data are needed to assess
impacts to eagles.
(ii) The frequency and duration of
required monitoring will depend on the
form and magnitude of the anticipated
take and the objectives of associated
avoidance, minimization, or other
mitigation measures, not to exceed what
is reasonable to meet the primary
purpose of the monitoring, which is to
provide data needed by the Service
regarding the impacts of the activity on
eagles for purposes of adaptive
management. You must coordinate with
the Service to develop project-specific
monitoring protocols. If the Service has
officially issued or endorsed, through
rulemaking procedures, monitoring
protocols for the activity that will take
eagles, you must follow them, unless the
Service waives this requirement.
(3) You must submit an annual report
summarizing the information you
obtained through monitoring to the
Service every year that your permit is
valid and for up to 3 years after
completion of the activity or
termination of the permit, as specified
in your permit. The Service will make
eagle mortality information from annual
reports available to the public.
*
*
*
*
*
(7) Additional conditions for permits
with durations longer than 5 years—(i)
Adaptive management. The permit may
specify conditions under which
modifications to avoidance,

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minimization, or compensatory
mitigation measures or monitoring
protocols may be required.
(ii) Permit reviews. At no more than
5 years from the date a permit that
exceeds 5 years is issued, and every 5
years thereafter, the permittee will
compile, and submit to the Service,
eagle fatality data or other pertinent
information that is site-specific for the
project, as required by the permit. The
Service will review the information to
determine:
(A) Whether adaptive management
conditions specified in the permit
pursuant to paragraph (c)(7)(i) of this
section have been reached that would
indicate that modifications to
avoidance, minimization, or other
mitigation measures or monitoring
protocols as described in the permit
should be implemented; and
(B) Whether, after negotiation with
the permittee, to make additional
changes to a permit, including any of
the following:
(1) Update fatality predictions and
authorized take levels for the facility.
(2) Add, remove, or adjust avoidance
and minimization measures. Such
measures may be required if:
(i) Authorized take levels are, or likely
will be, exceeded;
(ii) Additional or modified,
appropriate and practicable avoidance
and/or minimization measures shown to
be effective in reducing risk to eagles
become available and are feasible to
implement at reasonable cost to the
permittee; or
(iii) Avoidance and/or minimization
measures in place are shown to be
ineffective or unnecessary.
(3) Update monitoring requirements.
(4) Suspend or revoke the permit in
accordance with part 13 of this
subchapter B.
(C) In consultation with the permittee,
compensatory mitigation for future
years for the project, taking into account
the observed levels of take based on
approved protocols for monitoring,
searching, and estimating total take, and
also accounting for changes in
operations or permit conditions
pursuant to paragraphs (c)(7)(ii)(A) and
(B) of this section.
(iii) Fees. For permits with terms
longer than 5 years, an Administration
Fee of $15,000 will be assessed every 5
years for permit review.
*
*
*
*
*
(d) * * *
(2) Your application must consist of a
completed application Form 3–200–71
and all required attachments. Send
applications to the Regional Director of
the Region in which the take would

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occur—Attention: Migratory Bird Permit
Office. You can find the current
addresses for the Regional Directors in
§ 2.2 of subchapter A of this chapter.
(3) Applicants must coordinate with
the Service to develop project-specific
monitoring and survey protocols, take
probability models, and any other
applicable data quality standards, and
include in your application all the data
thereby obtained.
(i) If the Service has officially issued
or endorsed, through rulemaking
procedures, survey, modeling, or other
data quality standards for the activity
that will take eagles, you must follow
them and include in your application all
the data thereby obtained, unless the
Service waives this requirement for your
application. Applicants seeking an eagle
take permit for a wind-energy
generation facility must follow the data
quality standards in Appendices C, and
D of the Eagle Conservation Plan
Guidance, Module 1—Land-based Wind
Energy, available at https://
www.fws.gov/migratorybirds/pdf/
management/
eagleconservationplanguidance.pdf,
which are incorporated by reference
into this paragraph, and include in your
application all the data thereby
obtained, unless the Service waives this
requirement for your application.
(ii) Application of the Serviceendorsed data quality standards of
paragraph (d)(3)(i) of this section may
not be needed if:
(A) The Service has data of sufficient
quality to predict the likely risk to
eagles;
(B) Expediting the permit process will
benefit eagles; or
(C) The Service determines the risk to
eagles from the activity is low enough
relative to the status of the eagle
population based on:
(1) Physiographic and biological
factors of the project site; or
(2) The project design (i.e., use of
proven technology, micrositing, etc.).
(e) * * *
(1) Whether take is likely to occur
based on the magnitude and nature of
the impacts of the activity.
*
*
*
*
*
(3) Whether the cumulative
authorized take, including the proposed
take, would exceed 5 percent of the
local area population.
(4) Any available data indicating that
unauthorized take may exceed 10
percent of the local area population.
(5) Whether the applicant has
proposed all avoidance and
minimization measures to reduce the
take to the maximum degree practicable
relative to the magnitude of the impacts
to eagles.

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(6) Whether the applicant has
proposed all appropriate and practicable
compensatory mitigation measures to
compensate for remaining unavoidable
impacts after all appropriate and
practicable avoidance and minimization
measures have been applied.
(7) * * *
(i) Safety emergencies;
(ii) Increased need for traditionally
practiced Native American tribal
religious use that requires eagles be
taken from the wild;
(iii) Non-emergency activities
necessary to ensure public health and
safety; and
(iv) Other interests.
(8) For projects that are already
operational and have taken eagles
without a permit, whether such past
unpermitted eagle take has been
resolved or is in the process of
resolution with the Office of Law
Enforcement through settlement or other
appropriate means.
(f) * * *
(2) The take will not result in
cumulative authorized take that exceeds
5 percent of the local area population,
or the Service can determine that
permitting take over 5 percent of that
local area population is compatible with
the preservation of the bald eagle or the
golden eagle.
(3) The taking is necessary to protect
a legitimate interest in a particular
locality.
(4) The taking is associated with, but
not the purpose of, the activity.
(5) The applicant has applied all
appropriate and practicable avoidance
and minimization measures to reduce
impacts to eagles.
(6) The applicant has applied all
appropriate and practicable
compensatory mitigation measures,
when required, pursuant to paragraph
(c) of this section, to compensate for
remaining unavoidable impacts after all
appropriate and practicable avoidance
and minimization measures have been
applied.
(7) Issuance of the permit will not
preclude issuance of another permit
necessary to protect an interest of higher
priority as set forth in paragraph (e)(7)
of this section.
(8) Issuance of the permit will not
interfere with an ongoing civil or
criminal action concerning unpermitted
past eagle take at the project.
*
*
*
*
*
(h) Permit duration. The duration of
each permit issued under this section
will be designated on its face and will
be based on the duration of the
proposed activities, the period of time
for which take will occur, the level of

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impacts to eagles, and the nature and
extent of mitigation measures
incorporated into the terms and
conditions of the permit. A permit for
incidental take will not exceed 30 years.
*
*
*
*
*
■ 9. Amend § 22.27 by:
■ a. Revising paragraphs (a)(1)(i)
through (iv), (a)(3), and (b)(1), (2), and
(7);
■ b. Redesignating paragraphs (b)(8)
through (10) as paragraphs (b)(9)
through (11) and adding a new
paragraph (b)(8); and
■ c. Revising paragraphs (e)(1), (e)(2)
introductory text, (e)(2)(ii) and (iii), and
(e)(4) through (6).
The revisions and addition read as
follows:
§ 22.27

Removal of eagle nests.

(a) * * *
(1) * * *
(i) An in-use or alternate nest where
necessary to alleviate an existing safety
emergency, or to prevent a rapidly
developing safety emergency that is
otherwise likely to result in bodily harm
to humans or eagles while the nest is
still in use by eagles for breeding
purposes;
(ii) An alternate nest when the
removal is necessary to ensure public
health and safety;
(iii) An alternate nest, or an in-use
nest prior to egg-laying, that is built on
a human-engineered structure and
creates, or is likely to create, a
functional hazard that renders the
structure inoperable for its intended
use; or
(iv) An alternate nest, provided the
take is necessary to protect an interest
in a particular locality and the activity
necessitating the take or the mitigation
for the take will, with reasonable
certainty, provide a net benefit benefit
to eagles.
*
*
*
*
*
(3) A permit may be issued under this
section to cover multiple nest takes over
a period of up to 5 years, provided the
permittee complies with comprehensive
measures developed in coordination
with the Service to minimize the need
to remove nests and specified as
conditions of the permit.
*
*
*
*
*
(b) * * *
(1) The permit does not authorize take
of in-use nests except:
(i) For safety emergencies as provided
under paragraph (a)(1)(i) of this section;
or
(ii) Prior to egg-laying if the in-use
nest is built on a human-engineered
structure and meets the provisions set
forth in paragraph (a)(1)(iii) of this
section.

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(2) When an in-use nest must be
removed under this permit, any take of
nestlings or eggs must be conducted by
a Service-approved, qualified agent. All
nestlings and viable eggs must be
immediately transported to foster/
recipient nests or a rehabilitation
facility permitted to care for eagles, as
directed by the Service, unless the
Service waives this requirement.
*
*
*
*
*
(7) You must comply with all
avoidance, minimization, or other
mitigation measures specified in the
terms of your permit to mitigate for the
detrimental effects on eagles, including
indirect effects, of the permitted take.
(8) Compensatory mitigation scaled to
project impacts will be required for any
permit authorizing take that would
exceed the authorized take limits.
Compensatory mitigation may also be
required in the following circumstances:
(i) When cumulative authorized take,
including the proposed take, would
exceed 5 percent of the local area
population;
(ii) When available data indicates that
cumulative unauthorized mortality
would exceed 10 percent of the local
area population;
(iii) If otherwise necessary to maintain
the persistence of local eagle
populations throughout their geographic
range; or
(iv) If the permitted activity does not
provide a net benefit to eagles, you must
apply appropriate and practicable
compensatory mitigation measures as
specified in your permit to provide a net
benefit to eagles scaled to the effects of
the nest removal.
*
*
*
*
*
(e) * * *
(1) The direct and indirect effects of
the take and required mitigation,
together with the cumulative effects of
other permitted take and additional
factors affecting eagle populations, are
compatible with the preservation of the
bald eagle or the golden eagle.
(2) For alternate nests:
*
*
*
*
*
(ii) The nest is built on a humanengineered structure and creates, or is
likely to create, a functional hazard that
renders the structure inoperable for its
intended use; or
(iii) The take is necessary to protect a
legitimate interest in a particular
locality, and the activity necessitating
the take or the mitigation for the take
will, with reasonable certainty, provide
a net benefit to eagles.
(3) For in-use nests prior to egglaying, the nest is built on a humanengineered structure and creates, or is
likely to create, a functional hazard that

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Federal Register / Vol. 81, No. 88 / Friday, May 6, 2016 / Proposed Rules

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

renders the structure inoperable for its
intended use.
(4) For in-use nests, the take is
necessary to alleviate an existing safety
emergency, or to prevent a rapidly
developing safety emergency that is
otherwise likely to result in bodily harm
to humans or eagles while the nest is
still in use by eagles for breeding
purposes.
(5) There is no practicable alternative
to nest removal that would protect the
interest to be served.

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(6) Issuing the permit will not
preclude the Service from authorizing
another take necessary to protect an
interest of higher priority, according to
the following prioritization order:
(i) Safety emergencies;
(ii) Increased need for traditionally
practiced Native American tribal
religious use that requires eagles be
taken from the wild;
(iii) Non-emergency activities
necessary to ensure public health and
safety;

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(iv) Resource development or
recovery operations (under § 22.25, for
golden eagle nests only); and
(v) Other interests.
*
*
*
*
*
Dated: May 2, 2016.
Michael Bean,
Deputy Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 2016–10542 Filed 5–4–16; 4:15 pm]
BILLING CODE 4333–15–P

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