Eagle Incidental Take Permit Questions and Answers

Eagle Incidental Take Permit Questions and Answers
Question: When does required offsetting compensatory mitigation have to be accomplished?
Answer: Ideally all mitigation should be accomplished over the full term of the permit, with any
detailed commitments specified in the terms and conditions of the permit. The Resource
Equivalency Analysis (REA) used by the Service to determine mitigation requirements takes the
timing of mitigation relative to the timing of take into account. The REA provides a discount for
mitigation performed prior to the take occurring, and a penalty on mitigation performed after the
take has occurred. Thus, it is to the permittee’s advantage to perform the required mitigation
before the take occurs if it is possible to do so.
Keywords: mitigation, REA, offset
Question: The initial fatality prediction for permits for eagle take at wind energy facilities is
designed to purposely overestimate actual take, and yet all of this take is required to be offset
through compensatory mitigation. Once the actual take for this initial phase of the permit is
estimated (within at least five years of initial permit issuance), can any excess mitigation be
carried forward to offset future take?
Answer: Yes, any compensatory mitigation carried out to offset the initial fatality prediction that
is determined to be in excess of actual take1 may be carried forward to offset future predicted
take. If the mitigation was actually carried out during the initial phase of the permit, it will be
credited as mitigation accomplished in advance of the actual take, which increases the ‘value’
attributed to it in the REA.
mortalities estimated based on the number of eagle remains found during formal post-construction monitoring,
corrected for observer detection probability, probability of carcass persistence, and search effort.
1

Keywords: mitigation, REA, offset
Question: If a permittee is implementing an experimental approach that is expected to reduce
eagle fatalities below the collision risk model predicted number but the reduction cannot be
quantified, can the take limit on the permit still be reduced by some amount to acknowledge the
expected benefits?
Answer: No, if the Service has no credible way to estimate the expected reduction in take, we
would have no defensible basis for reducing the take limit for the initial phase of the permit. The
Service will therefore set the initial take limit without a reduction. In cases where there is reason
to believe the initial take limit will greatly exceed the actual take, the Service and the permittee
can agree to shorten the initial phase of the permit to 2, 3, or 4 years. In these cases the Service
will use post-construction fatality data collected in the initial phase to update the fatality
prediction. The new fatality rate will reflect any minimization benefits of the experimental
approach and it will be used to predict take over the next phase of the permit. Over time, and
with a number of facilities participating, the Service may be able to develop a collision prior for
a specific minimization approach that can be used in the future for initial fatality estimates at
sites using the technology.

Keywords: mimization, fatality estimate, CRM, collision risk
Question: If a permittee adopts an avoidance or minimization technology that will reduce
fatalities by a known amount, can the difference between the unadjusted predicted number and
the actual number of fatalities be considered compensatory mitigation?
Answer: Avoidance and minimization of take to the maximum degree practicable is a
fundamental requirement of any eagle take permit, and reductions in take attributable to these
measures are not considered compensatory mitigation. The one exception is for a project that
was operating prior to 2009, the take for which is considered part of the biological baseline under
the Eagle Rule. Any documented reduction in take from baseline levels can be considered
compensatory mitigation in the sense it can be used to offset new take authorized subsequent to
the baseline year.
Keywords: mimization, fatality estimate, CRM, collision risk
Question: If operational wind facilities must have a waiver in order to apply for an incidental
take permit, is the waiver automatic for projects that were operational prior to January 17, 2017
(the effective date of the eagle incidental take rule revisions)? Does the Service memo constitute
a waiver for projects that qualify?
Answer: The 2017 memorandum does not itself constitute the waiver for wind projects that were
operational prior to January 17, 2017 because the regulations require the applicant to consult
with and receive written concurrence from the Service that the waiver applies.
Keywords: waiver, operational