Eagle Permits; Incidental Take

• Published date: 14 September 2021
• Citation: 86 FR 51094
• Record Number: 2021-19717
• Section: Proposed rules
• Court: Fish And Wildlife Service

51094

Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / Proposed Rules

Federal Register announcing updates.

Finally, NHTSA will post a video of the

hearing at http://www.nhtsa.gov/cafe

and will make a transcript of the hearing

available in the rulemaking docket as

soon as practicable.

How can I get copies of the proposed

action, the Draft Supplemental

Environmental Impact Statement, and

other related information?

NHTSA has established a docket for

the proposal under Docket ID No.

NHTSA–2021–0053 and a separate

docket for the Draft SEIS at Docket ID

No. NHTSA–2021–0054. Relevant

documents and information can also be

accessed at NHTSA’s CAFE website, at

https://www.nhtsa.gov/cafe. Please refer

to the notice of proposed rulemaking for

detailed information on accessing

information related to the proposal and

the Draft SEIS.

Issued on September 9, 2021, in

Washington, DC, under authority delegated

in 49 CFR 1.95.

Raymond R. Posten,

Associate Administrator for Rulemaking.

[FR Doc. 2021–19799 Filed 9–10–21; 11:15 am]

BILLING CODE 4910–59–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 22

[Docket No. FWS–HQ–MB–2020–0023;

FF09M2200–212–FXMB12320900000]

RIN 1018–BE70

Eagle Permits; Incidental Take

AGENCY

: Fish and Wildlife Service,

Interior.

ACTION

: Advance notice of proposed

rulemaking; request for comments.

SUMMARY

: The U.S. Fish and Wildlife

Service (Service, or we) seeks public

and regulated-community input on

potential approaches for further

expediting and simplifying the permit

process authorizing incidental take of

eagles. This document also advises the

public that the Service may, as a result

of public input, prepare a draft

environmental review pursuant to the

National Environmental Policy Act of

1969, as amended. We are furnishing

this advance notice of proposed

rulemaking to advise other agencies and

the public of our intentions and obtain

suggestions and information on the

scope of issues to include in the

environmental review. Public and

regulated community responses will be

used to improve and make more

efficient the permitting process for

incidental take of eagles in a manner

that is compatible with the preservation

of bald and golden eagles.

DATES

: You may submit comments on or

before October 29, 2021. We will

consider all comments on this advance

notice of proposed rulemaking,

including the scope of the draft

environmental review, that are received

or postmarked by that date. Comments

received or postmarked after that date

will be considered to the extent

practicable.

ADDRESSES

: You may submit written

comments by one of the following

methods:

Electronically: Go to the Federal

e-Rulemaking Portal: http://

www.regulations.gov. Search for FWS–

HQ–MB–2020–0023, which is the

docket number for this document, and

follow the directions for submitting

comments.

By hard copy: Submit by U.S. mail to:

Public Comments Processing, Attn:

FWS–HQ–MB–2020–0023, U.S. Fish

and Wildlife Service, MS: PRB/3W,

5275 Leesburg Pike, Falls Church, VA

22041–3803.

We request that you send comments

by only one of the methods described

above. We will post all information

received on http://www.regulations.gov.

This generally means that we will post

any personal information you provide

us (see Public Availability of Comments,

below, for more information).

FOR FURTHER INFORMATION CONTACT

:

Jerome Ford, Assistant Director,

Migratory Birds, at 202–208–1050.

Individuals who use a

telecommunications device for the deaf

(TDD) may call the Federal Relay

Service at 800–877–8339.

SUPPLEMENTARY INFORMATION

: This

advance notice of proposed rulemaking

seeks comment on several approaches

that could potentially underpin a more

streamlined eagle incidental-take-

permitting framework that we first

established in 2009. Specifically, the

Service is interested in comments

clarifying specific aspects of the current

permitting process that hinder permit

application, processing, or

implementation. The Service is also

seeking recommendations for additional

guidance the Service could develop that

would reduce the time and/or cost

associated with applying for and

implementing long-term, eagle

incidental take permits under existing

regulations. The Service further invites

recommendations for targeted revisions

that could be made to existing

regulations consistent with the overall

permitting framework that would

reduce the time and/or cost associated

with applying for and processing long-

term permits for incidental take of

eagles. Finally, the Service is interested

in comments regarding potential new

regulatory approaches to authorizing

incidental take under the Eagle Act,

particularly for projects that can be

shown in advance to have minimal

impacts on eagles, that would reduce

the time and/or cost associated with

applying for and operating under long-

term permits for the incidental take of

eagles.

I. Background

The Bald and Golden Eagle Protection

Act (Eagle Act; 16 U.S.C. 668–668d)

prohibits take of bald eagles and golden

eagles except pursuant to Federal

regulations. Service regulations in title

50 of the Code of Federal Regulations,

consistent with the Eagle Act (16 U.S.C.

668c), define ‘‘take’’ as to pursue, shoot,

shoot at, poison, wound, kill, capture,

trap, collect, destroy, molest, or disturb

(50 CFR 22.3). The Eagle Act authorizes

the Secretary of the Interior to issue

regulations to permit the taking of eagles

for various purposes, provided the

taking is compatible with the

preservation of the bald eagle or the

golden eagle. Regulations at 50 CFR 22.3

define ‘‘compatible with the

preservation of the bald eagle or the

golden eagle’’ as ‘‘consistent with the

goals of maintaining stable or increasing

breeding populations in all eagle

management units [EMUs] and the

persistence of local populations

throughout the geographic range of each

species.’’ Permits for the incidental, or

unintentional, take of eagles were

established in 2009 (74 FR 46877, Sep.

11) to authorize incidental take of bald

and golden eagles that results from a

broad spectrum of activities, such as

utility infrastructure, energy

development, construction, operation of

airports, and resource recovery (50 CFR

22.26).

In 2016, the Service published a final

rule (81 FR 91494, Dec. 16, 2016)

revising the regulations to lengthen the

maximum permit tenure from 5 years to

30 years and require a review of permit

implementation periodically throughout

the lifetime of the permit at intervals no

longer than 5 years. For most projects,

the Service assumes the actual take at a

project will be less than the level of take

initially authorized under a permit,

which will result in a reduction in

required offsetting mitigation measures

over time. This is because initial

estimates of eagle fatalities are

purposely conservative to reduce the

likelihood of a permittee exceeding their

authorized level of take, and to ensure

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the Service does not exceed the EMU

take limits. The 2016 regulations also

require specific methods for

preconstruction eagle surveys and

fatality modeling for wind-energy

facilities, the industry with the largest

demand for long-term, incidental take

eagle permits.

The 2016 regulations provide uniform

standards for offsetting take of eagles

when authorized take would exceed the

sustainable take rate determined by the

Service. To preserve bald and golden

eagles, the Service surveys eagle

populations, estimates population

levels, and estimates the level of take, or

mortality, each population can

withstand without significantly

declining. When the sustainable take

rate is predicted to be exceeded by a

permitted project, the regulations

require the permittee to offset excess

authorized take by reducing another

form of mortality to eagles or increasing

the carrying capacity of the population.

The standards apply whether the

offsetting mitigation is achieved via

direct implementation by the permittee,

an in-lieu fee program, or a mitigation

bank. The Service has approved two

privately developed in-lieu fee programs

and is working with other entities to

make additional third-party mitigation

programs available to simplify the

permit process for permittees.

In conjunction with revising the

permit regulations in 2016, the Service

prepared a comprehensive

programmatic environmental impact

statement (PEIS) that analyzed the

Service’s overall permitting program for

eagles. The PEIS established the

sustainable take limits described above

for both species of eagle and evaluated

the effects of programmatically issuing

permits within those take limits under

the conditions included in the

regulations. The Service determined

that bald eagles could sustain additional

mortality and established a nationwide

sustainable take limit of 7,500

individuals per year. In contrast, given

the status of the North American golden

eagle population, the Service concluded

that no additional mortality could be

authorized without risking population

declines. Therefore, additional take

would not be consistent with the eagle

preservation standard required by the

Eagle Act. To remedy this issue, all new

take of golden eagles authorized under

permit must be offset by conservation

measures that will reduce another form

of ongoing mortality or enhance

population numbers to a commensurate

degree.

Because the PEIS analyzed the

cumulative impacts of permitting up to

the established sustainable take levels,

the Service is able to tier environmental

analyses required under the National

Environmental Policy Act (NEPA; 42

U.S.C. 4321 et seq.) from the PEIS,

enabling the Service to significantly

accelerate the permitting process for

complex, long-term projects, such as

wind-energy facilities, while continuing

to preserve eagles consistent with the

Eagle Act.

At the same time, human

development and infrastructure

continue to increase in the United

States, and bald eagle populations

continue to grow throughout their range.

The result of these trends is an

increasing number of interactions

between eagles and industrial

infrastructure and a corresponding need

for the Service to process more

applications for incidental take of

eagles. The Service and the regulated

community share an interest in

introducing further efficiencies into the

eagle incidental-take-permitting process

to meet this demand, while preserving

bald and golden eagles pursuant to the

Eagle Act.

II. Action Requested From the Public

We seek comments or suggestions

from the public, governmental agencies,

Tribes, the scientific community,

industry, or any other interested parties.

Should the Service promulgate a

proposed rule and prepare a draft

environmental review pursuant to

NEPA, we will take into consideration

all comments and any additional

information received. The Service will

act as the lead Federal agency

responsible for completion of any

environmental review resulting from

this notice. To ensure that any proposed

rulemaking effectively evaluates all

potential issues and impacts, this

document seeks the public’s and

regulated community’s input on what

changes could be made to the Service’s

eagle incidental-take-permitting

program (50 CFR 22.26) to make the

permitting process more efficient and

effective. Any input should be

consistent with statutory provisions of

the Eagle Act and compatible with the

preservation of eagles. The Service

recommends that anyone planning to

provide input first review the Service’s

2016 rulemaking (81 FR 91494, Dec. 16,

2016) and the PEIS discussed above;

both documents are available on http://

www.regulations.gov under Docket No.

FWS–HQ–MB–2020–0023 (https://

www.regulations.gov/docket/FWS-HQ-

MB-2020-0023/document).

The Service is interested in the

public’s and regulated community’s

responses to the following questions:

1. Are there specific protocols,

processes, requirements, or other

aspects of the current permitting process

for incidental take of eagles that hinder

permit application, processing, or

implementation?

As an example, the Service has heard

from some companies that the

requirement that monitoring under long-

term permits be carried out by

independent third parties is not feasible

or is prohibitively expensive.

Additional details on these costs,

including circumstances that increase

third-party-monitoring costs, would be

helpful.

2. What additional guidance,

protocols, analyses, tools, or other

efficiencies could the Service develop

that would reduce the time and/or cost

associated with applying for,

implementing, and conducting

monitoring associated with long-term

permits for incidental take of eagles

under existing regulations? What are the

estimated costs of the suggested

additional efficiencies, and how do

those costs compare to industry’s

current practices?

The Service is currently working on

guidance for fatality monitoring at

wind-energy facilities, standards for

using power-pole retrofits as offsetting

mitigation, revised protocols for

minimizing disturbance of nesting bald

eagles, golden eagle nest-buffer

guidance, and reduced or more-

streamlined permitting requirements in

areas where the risk of take is low. We

seek input on any additional tools and

guidance the Service could develop to

improve the permitting process.

One concept the Service is

considering that will potentially reduce

required monitoring costs under the

existing regulations is ‘‘pooled’’ post-

construction monitoring of a selected

subset of permitted projects. The

Service could explore creation of an

opportunity for permitted facilities to

contribute funding the Service would

use to direct post-construction

monitoring across participating projects.

Such a program would work by

implementing monitoring in a

systematic, stratified fashion across

participating projects, eliminating the

need for each project to implement a

stand-alone third-party monitoring

program yet still satisfying the

permittee’s post-construction

monitoring requirements. We are

seeking feedback on the concept of

pooled monitoring; in particular:

•Would prospective eagle incidental

take permittees take advantage of this

opportunity?

•If so, how important are the

tradeoffs between the cost of pooled

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monitoring and obtaining project-

specific fatality estimates?

•Is monitoring at a randomly

selected subset of projects an acceptable

alternative to monitoring at every

project from the standpoint of ensuring

the permit program is reasonably

protective of bald and golden eagle

populations?

3. What targeted revisions could be

made to existing regulations consistent

with the overall permitting framework

and PEIS that would reduce the time

and/or cost associated with applying for

and processing long-term permits for

incidental take of eagles?

4. Are there potential new regulatory

approaches to authorizing incidental

take under the Eagle Act, particularly

for projects that can be shown in

advance to have minimal impacts on

eagles, that would reduce the time and/

or cost associated with applying for and

operating under long-term permits for

incidental take of eagles?

For example, we have received

proposals for a new, regulatory

approach to further streamline the

permitting process for incidental take of

eagles by establishing a ‘‘nationwide’’ or

‘‘general’’ permit program similar to the

U.S. Army Corps of Engineers (USACE)

Nationwide Permit Program (NWP

program) for authorizing impacts to

wetlands and other waters of the United

States. Those permits can provide

expedited or even eliminate review of

proposed activities that have only

minimal individual and cumulative

adverse environmental effects.

The USACE system for analyzing the

environmental effects of its NWP

program is much more complex and

resource-intensive than the Service’s

current eagle permitting framework

under the 2016 PEIS. The USACE uses

a three-tiered approach in administering

its NWP program, and ensuring that

activities authorized by NWPs have no

more than minimal individual and

cumulative adverse environmental

effects. For applicants under the

majority of NWPs that require

preconstruction notification, the data

requirements entailed in completing the

preconstruction notification are not

insubstantial. Applicants must provide

detailed information regarding proposed

activities, their potential impacts,

avoidance and minimization measures,

and compensatory-mitigation

commitments. Considering the

complexity of the USACE program, we

seek further input as to which aspects

of the NWP program industry and the

public are most interested in the Service

emulating in our eagle-permitting

program, as well as those aspects not

recommended.

A fundamental principle of the

USACE nationwide permit program is

that it is available only to activities that

will have minimal impacts both

individually and cumulatively. The

concept of a general permit for

incidental take of eagles could, in

theory, similarly apply only to

situations with minimal potential

adverse effects on eagle populations,

individually and cumulatively. Unlike

wetland acreage lost under a USACE

nationwide permit which can be

monitored once to assess loss, obtaining

a reasonably accurate estimate of eagle

incidental take requires systematic

monitoring of project impacts through-

time. A challenge for adopting the

general permit concept for eagle

incidental take permits is the

uncertainty over the actual effects of

such permits, individually and

cumulatively, on eagle populations.

To reduce this level of uncertainty,

the Service has required permitted

facilities to implement monitoring

protocols at a level sufficient to generate

a reasonably reliable estimate of the

actual take caused by the facility. To

reduce the cost to industry as well as

manage impacts to eagles (prior to

accounting for offsetting mitigation

measures), the Service could limit

general permits to geographic areas with

relatively lower numbers of eagles and

require a reduced monitoring effort.

Monitoring could be designed purely to

detect whether eagle take is below a

certain level, rather than to arrive at a

reasonable estimate of the actual take

level. We estimate the average

monitoring burden to achieve this

standard would be reduced by 50

percent from current requirements. The

Service has developed maps of relative

abundance of both species of eagle

across the coterminous United States

using a variety of datasets (see Ruiz-

Gutierrez et al., 2021 and https://

www.fws.gov/migratorybirds/pdf/

management/Lowriskwebex.ppsx),

These maps could serve as the basis for

where general permits would be

available. Comparing data from the U.S.

Geological Survey wind-turbine

database (Hoen et al. 2018), it appears

that approximately 40 percent of

existing wind-energy facilities would

fall into areas the Service would

consider low risk based on relative

numbers of both species of eagles. We

encourage feedback on the concept of a

general permit that would be available

in areas of relatively low eagle

abundance and that would still include

systematic monitoring, but at a reduced

level, and whether companies would

seek to obtain such permits. We also

seek feedback on how a general permit

would impact small businesses and

whether it would result in cost savings

compared to the current permit process.

An alternative option would be to

restrict general permits to projects

seeking authorization only for take of

bald eagles and not golden eagles.

Available data indicate that bald-eagle

populations are continuing to expand

throughout their range. Therefore, a

permitting scheme with some decrease

in the level of certainty as to actual

effects on bald eagles might be justified

to reduce the burden on the regulated

community. A significant complicating

factor to consider, however, is the

likelihood that a project authorized

under a general permit to take bald

eagles may also incidentally take golden

eagles.

Another concept for a streamlined

general permit would be to eliminate

systematic monitoring. Tracking eagle

take would consist of permittees

reporting all mortalities discovered

opportunistically during normal

operations and maintenance activities,

but there would be no systematic

fatality monitoring under a scientifically

rigorous protocol. As described above,

the take levels on these permits would

need to be substantially higher than the

level of take reported to account for the

uncertainty regarding the actual take

level of the permitted activity. We

estimate that the probability of finding

a dead eagle, if one has been killed,

given the level of opportunistic

monitoring at a typical wind energy

facility, is approximately 10 to 15

percent. Even at the higher end of this

range, with a 15 percent probability of

detecting a dead eagle, the opportunistic

finding of one eagle over any time

period would result in a fatality

estimate of approximately 10 eagles,

with an 80 percent uncertainty range

(credible interval) of from 1 to 15 dead

eagles. Cumulatively, over many such

permitted facilities, the uncertainty

regarding actual take would be

compounded. For example, if the

Service permitted 10 such separate

facilities, each with one eagle fatality

found over the first 5 years, we could

only be relatively certain that actual

fatalities at those projects combined did

not exceed 150 eagles over the 5-year

period.

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This approach would introduce

uncertainties into take estimates,

requiring higher levels of authorized

take, which would in turn necessitate

more offsetting mitigation and affect

overall take limits at the local area and

EMU scales. Currently, the U.S. Fish

and Wildlife Service has only approved

retrofitting of power lines to avoid

electrocution as a compensatory

mitigation measure in permits that have

been issued, and this form of mitigation

can cost greater than $30,000 per

individual eagle replaced (Hosterman

and Lane 2017).

We welcome feedback on the topics

described above and how some of the

issues raised might be resolved. In

addition, we would appreciate hearing

from the public about other alternative

proposals for how the Service could

develop and administer a general permit

program for incidental take of eagles

that will, with reasonable certainty,

protect eagles consistent with the Eagle

Act.

It is the policy of the Department of

the Interior to recognize and fulfill its

legal obligations to identify, protect, and

conserve the trust resources of federally

recognized Indian Tribes and Tribal

members, and to consult with Tribes on

a government-to-government basis

whenever plans or actions affect Tribal

trust resources, trust assets, or tribal

health and safety. This policy draws

from the President’s memorandum of

April 29, 1994, ‘‘Government-to-

Government Relations with Native

American Tribal Governments’’ (59 FR

22951), Executive Order 13175

‘‘Consultation and Coordination with

Indian Tribal Governments,’’ and the

Department of the Interior Manual at

512 DM 4. These documents confirm

our trust responsibilities to Tribes,

recognize that Tribes have sovereign

authority to control Tribal lands,

emphasize the importance of developing

partnerships with Tribal governments,

and direct the Services to consult with

Tribes on a government-to-government

basis. Relative to our considerations for

improving the permitting process for

incidental take of eagles, we request

comments that clarify appropriate

consideration of Tribal sovereignty,

including any agreements in which

Tribes may choose to participate in

consultation.

5. We are seeking data to estimate the

current industry costs on pre-

application/pre-construction surveys for

eagles, monitoring requirements of the

permit itself, including paying for

required third party monitors, and

compensatory mitigation. We are

seeking data on how costs will change

if additional efficiencies are

implemented. We are also requesting

the submission of data regarding the

number and type of small businesses

affected, the scale and nature of

economic effects in the current

permitting process, and how costs

would change for small businesses if

additional efficiencies are implemented.

Literature Cited

Hoen, B.D., Diffendorfer, J.E., Rand, J.T.,

Kramer, L.A., Garrity, C.P., and Hunt,

H.E., 2018, United States Wind Turbine

Database (ver. 2.3, January 2020): U.S.

Geological Survey, American Wind

Energy Association, and Lawrence

Berkeley National Laboratory data

release, https://doi.org/10.5066/F7T

X3DN0.

Hosterman, H., Lane, D., 2017. Proxies for the

market value of bald and golden eagles:

Final report (Contract Report to U.S. Fish

and Wildlife Service No. F14PA000019).

Abt Associates, Portland, OR.

Ruiz-Gutierrez, V., E.R. Bjerre, M.C. Otto, G.

S. Zimmerman, B.A. Millsap, D. Fink,

E.F. Stuber, M. Strimas-Mackey, and O.J.

Robinson. 2021. A pathway for citizen

science data to inform policy: A case

study using EBIRD data for defining

low-risk collision areas for wind energy

development. Journal of Applied Ecology

58:1104–1111.

Public Availability of Comments

Written comments the Service

receives become part of the public

record associated with this action.

Comments and materials we receive, as

well as supporting documentation we

used in preparing this document, will

be available for public inspection on

http://www.regulations.gov. Before

including your address, phone number,

email address, or other personal

identifying information in your

comment, you should be aware that the

entire comment—including your

personal identifying information—may

be made publicly available at any time.

While you can ask us in your comment

to withhold your personal identifying

information from public review, we

cannot guarantee that we will be able to

do so. All submissions from

organizations or businesses, and from

individuals identifying themselves as

representatives or officials of

organizations or businesses, will be

made available for public disclosure in

their entirety.

Signing Authority

The Assistant Secretary for Fish and

Wildlife and Parks approved this

document and authorized the

undersigned to sign and submit the

document to the Office of the Federal

Register for publication electronically as

an official document of the Department

of the Interior. Shannon Estenoz,

Assistant Secretary for Fish and Wildlife

and Parks, approved this document on

September 1, 2021, for publication.

Maureen D. Foster,

Chief of Staff, Office of the Assistant Secretary

for Fish and Wildlife and Parks.

[FR Doc. 2021–19717 Filed 9–13–21; 8:45 am]

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