U.S. Fish and Wildlife Proposes Changes to Eagle Management Program

On May 4, 2016, the United States Fish and Wildlife Service (“FWS”) proposed amendments to regulations governing its comprehensive eagle conservation and management program. The proposal follows a successful challenge by environmental groups to FWS’ prior attempt to change its eagle rules, which was tossed out by a federal judge in 2013. The proposed modifications include changes to the manner by which FWS issues permits allowing otherwise prohibited activities which may unintentionally injure or disturb golden and bald eagles.

These permits, known as “take” permits, are issued pursuant to FWS authority under the Bald and Golden Eagle Protection Act (the “Eagle Act”). The Eagle Act and corresponding regulations provide that no person is permitted to “take” (i.e. kill, injure, or disturb) a golden or bald eagle without first obtaining a permit from FWS. The Eagle Act extends protection to golden and bald eagles due to their cultural importance, as well as their formerly dwindling numbers. Federal protections are credited with bringing the number of bald eagles in the contiguous United States from a low of 500 nesting couples to approximately 72,000 individuals today (that number more nearly doubles if the population of bald eagles in Alaska is included). Due in part to past conservation efforts, golden eagles and bald eagles are not federally-listed endangered species, but remain protected by the Eagle Act as well as the Migratory Bird Treaty Act.

A major provision of the rule proposal would extend the maximum duration of an incidental take permit to 30 years with a recurring five-year review process. The cost of a long-term take permit under the rule proposal is $36,000, with a $15,000 administrative fee charged every five years when the permit is reviewed. The proposed rule also increases the number of eagles which may be injured or disturbed by a particular permitted activity, determined as a percentage of regional eagle populations. FWS claims that the permitting system established by the proposed rule satisfies the standard created by the Eagle Act which requires FWS to ensure that any take of eagles is “compatible with the preservation of bald eagles or golden eagles.” FWS argues further that the proposal will allow FWS to work with industry in reducing eagle deaths and better track eagle populations.

The activities and operations of many industries create a risk for the incidental (i.e. unintentional) take of golden and bald eagles. One industry that is likely to be significantly impacted by the rule proposal is the wind energy industry. Wind turbines, often clustered into farms of several turbines, can result in injury, and even death, when the blades of the turbines strike passing eagles. While the wind energy industry and FWS tout the proposal as supporting both the goals of sound wildlife management and the development of alternative energy sources, conservation groups remain skeptical. At least one group has expressed concern over alleged lack of transparency in data on eagle deaths and the future siting of wind farms in migratory paths of eagles.

FWS is currently accepting comments on the proposed rule through July 5, 2016. Comments may be submitted either electronically or in hard copy as follows:

  1. Electronically: Go to the Federal eRulemaking Portal: 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 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.

Notably, both bald and golden eagles are found in New Jersey, as well as up and down the East Coast. Wind energy developers in the region should review the rule proposal closely, monitor the resulting amendments, and interface with FWS as necessary to obtain the proper permits as they develop wind energy projects.

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