Eagle Permits; Incidental Take

CourtFish And Wildlife Service
Citation86 FR 51094
Publication Date14 Sep 2021
Record Number2021-19717
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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