U.S. Fish and Wildlife Service Establishes Expedited Eagle Permits
U.S. Fish and Wildlife Service Establishes Expedited Eagle Permits

On February 12, 2024, the U.S. Fish and Wildlife Service (Service) published a final rule creating new permitting pathways and revising existing regulations for the take of bald eagles (Haliaeetus leucocephalus) and golden eagles (Aquila chrysaetos). Bald and golden eagles are protected under the Bald and Golden Eagle Protection Act (BGEPA), which prohibits take of the species except pursuant to federal regulations. The updated rule is the result of a settlement agreement between the Service and the Energy Wildlife and Action Coalition, which prompted the Service to revisit its existing eagle permit regulations.

The final rule establishes new general permits for qualifying activities resulting in take to eagles, known as general permits. The four general permit categories are for wind energy infrastructure, power line infrastructure, bald eagle disturbance, and bald eagle nest take. The four categories of general permits and the notable requirements of each are outlined below.

  1. Wind Energy Infrastructure General Permits
    • Permit Length: 5 years
    • First-Time Permit Qualifications: Turbines must be sited in areas with eagle relative abundance (estimated eagle count) less than the Service’s established thresholds for that region and be set back 2 miles or 660 feet from any golden eagle or bald eagle nests, respectively. Existing projects unable to meet the foregoing criteria may request a discretionary letter of authorization from the Service.
    • Permit Renewal Qualifications: Permits may be renewed if the project had no lapse in permit coverage, the project did not discover 4 or more eagle deaths of a certain species during the permit term, and any of the project’s turbines not authorized under the prior general permit must meet the requirements for first-time projects.
    • Monitoring Requirements: Permittees must train operations and maintenance staff to monitor for eagles on site and Service-conducted monitoring is not required.
    • Compensatory Mitigation: Permittees must obtain eagle management unit-specific credits from a Service-approved conservation bank or in-lieu fee program.
    • Disqualification: Projects are disqualified from future general permits if 4 or more of any eagle species are discovered during a 5-year permit term.
  2. Power Line Infrastructure General Permits
    • Permit Length: 5 years
    • Permit Requirements: Notable conditions include requirements to (a) proactively retrofit power poles in “high-risk areas” to avian-safe; (b) reactively retrofit poles in response to an eagle electrocution or death; (c) notify the Office of Law Enforcement within 72 hours of discovering an eagle shooting on site; and (d) construct all new or replacement poles in high eagle risk areas in a manner that is “avian-safe.”
    • Monitoring Requirements: Permittees are required to train operations and maintenance staff to monitor for eagles on site and Service-conducted monitoring is not required.
    • Compensatory Mitigation: Compensatory mitigation is covered by the proactive retrofit strategy requirements.
  3. Bald Eagle Nest Take General Permits
    • Permit Term: Valid through the start of the next bald eagle breeding season, but no longer than 1 year.
    • Eligible Purposes: Emergencies for humans or eagles, protection of health and safety, human-engineered structures, or for species protection.
    • Monitoring and Compensatory Mitigation: Not required.
    • Species Covered: Only covers bald eagles; applicants for golden eagle nest take can seek a specific permit.
  4. Bald Eagle Disturbance Take General Permits
    • Permit Term: 1 year
    • Eligible Activities: Building construction and maintenance, alteration of shorelines and water bodies, linear infrastructure construction and maintenance, alteration of vegetation and prescribed burning, motorized and nonmotorized recreation, aircraft operation, and loud intermittent noises. Applicants seeking coverage for activities not listed can seek a specific disturbance permit.
    • Distance Permitted: Range of 330 feet to 1,000 feet of an in-use eagle nest, depending on which of the eligible activities is undertaken.
    • Species Covered: Only covers bald eagles; applicants for golden eagle disturbance take can seek a specific permit.

For activities that do not qualify for general permit coverage, the rule provides for a “specific permit.” The specific permits each carry a higher application fee, but also allow for longer permit terms and customized mitigation and monitoring requirements. For wind energy and power line specific permits, the Service segmented specific permits into three new tiers to determine a permit’s processing speed and cost. A project’s tier is determined by its complexity, ability to comply with the Service’s general permit conditions, and ability to calculate eagle fatality estimates.

The Service anticipates that the updated permitting pathways will simplify and clarify the existing permitting processes under BGEPA. The rule takes effect on April 12, 2024, and the Service will be implementing an online general permit registration system with a phased rollout between May and July 2024. Applicants with permit applications pending before the Service on February 12, 2024, have until August 12, 2024, to notify the Service whether they would like their permit reviewed under the prior regulations or the new rule.

  • Noah S. DeWitt

    Noah DeWitt assists clients on a full range of environmental and land use law matters. Noah has experience conducting legal research and drafting memorandum regarding issues related to CEQA development compliance, local zoning ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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