Changes to Federal Permit Regulations for Incidental Take of Eagles and Take of Eagle Nests

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Debra Mason
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1 Changes to Federal Permit Regulations for Incidental Take of Eagles and Take of Eagle Nests Katie Umekubo Staff Attorney, Western Renewable Energy Daly Edmunds Director of Policy & Outreach

Federal Wildlife Statutes: Eagle Protections Shane Bechler BGEPA ESA MBTA Bald and Golden Eagles Endangered & Threatened Species Migratory Birds No unauthorized

ammatic) Incidental take permits and take statements Very limited permitting

2 Federal Wildlife Statutes: Eagle Protections Shane Bechler BGEPA ESA MBTA Bald and Golden Eagles Endangered & Threatened Species Migratory Birds No unauthorized take No unauthorized take No take Standard permits (previously programmatic) Incidental take permits and take statements Very limited permitting (e.g. scientific collection) No citizen enforcement Citizen enforcement No citizen enforcement Civil & Criminal Civil & Criminal Criminal 2009 rulemaking, Eagle Conservation Plan Guidance and 2016 Rule Detailed statutory timelines, administration and public participation 2005 APLIC APP and 2012 Voluntary Land-based Wind Energy Guidelines

3 Addressing Unintentional Take... Incidental take (disturbance, injury or loss) of eagles results from a broad spectrum of public and private activities, such as utility infrastructure development and maintenance, energy development, road construction, operation of airports, commercial or residential construction, resource recovery, recreational activity development, etc. USFWS needs an effective permitting system to: Work proactively with public & private entities to reduce harm Establish transparent mechanisms to gain critical data to track mortality rates, assess risks and identify causes of take Efficiently allocate limited administrative resources

2009 Eagle Rule Preservation Standard stable or increasing breeding populations USFWS Established Eagle Permitting Program Voluntary to apply for permits, but

4 2009 Eagle Rule Preservation Standard stable or increasing breeding populations USFWS Established Eagle Permitting Program Voluntary to apply for permits, but can be prosecuted without Focused on nest disturbance & individual take ( Standard permits ) Envisioned Programmatic permits for the purpose of reducing ongoing take

5 2009 Eagle Rule Numbers of Permits Issued FY 2010 FY 2015: 626 permit applications received (34 programmatic), approx. 490 permits issued (including renewals; only 1 programmatic) Of those 490, 410 were issued to small businesses. Permit applications received increased: 50/year (FY 2010) to 140/year (FY 2015) Issued for Wind - Shiloh IV (CA); Alta East (CA) None issued for high voltage transmission lines; 2015 PG&E application for 30-year permit (CA)

Reason for Extending Permit Duration extending the maximum duration of incidental take permits to 30 years would create beneficial impacts to applicants over the long term for

6 Reason for Extending Permit Duration extending the maximum duration of incidental take permits to 30 years would create beneficial impacts to applicants over the long term for renewable energy and public infrastructure projects because the tenure would more closely match the long term financial agreements or contracts. Eagle Rule Revision, Draft PEIS, Summary p. xiii

7 Fixing the Permitting Program? New Rules 2013 Eagle Conservation Plan Guidance Scoping for Eagle Permitting Revisions year Permit Duration Rule USFWS 2015 CA District Court Decision Requires USFWS to halt issuance of longer-term permits based on inadequate NEPA analysis

8 2016 Proposed Permitting Revisions Population Status Report for Bald & Golden Eagles Preservation Standard; Permit Issuance Criteria and Duration; Standard Permits Draft EIS released May 2016, 780 comments received USFWS

9 Population Status Report Current research on the population status and trends Biological basis for the proposed rule revisions Estimates population sizes, productivity, and survival rates; cumulative effects to local area populations; and effects of unauthorized take of Golden Eagles Provides recommended take limits for both species > 143,000 ~40,000 6% for Bald Eagles (3.8% in SW) 0% for Golden Eagles

Maintain the persistence of local populations throughout the geographic range

10 Dec 2016: Regulations Finalized Management Objectives Maintain potential for stable or increasing breeding populations using the 2009 baseline (unchanged) Maintain the persistence of local populations throughout the geographic range (new)... plus changing management areas to eagle flyways 100 year timeframe (unchanged)

11 Other Major Changes to the 2009 Eagle Rule Eliminating 2 types of permits (standard & programmatic), renaming them incidental take permits, and setting a single standard for all permits: Increasing the maximum duration of incidental take permits from 5 years to 30 years. - Longer-term permits require monitoring by qualified, independent third-parties that report directly to USFWS. - Mortality data will be made publically available. Local Area Population cumulative effects analysis GOEA: Compensatory mitigation required at ratio of 1.2 to 1, more options/greater uncertainty (e.g. lead abatement) ratio

Criteria for Issuing an Eagle Take Permit Will not take eagles at a rate that exceeds (individually or cumulatively) the take limit of the Eagle Management Unit unless take is offset 0% for GOEA, 6%

12 Criteria for Issuing an Eagle Take Permit Will not take eagles at a rate that exceeds (individually or cumulatively) the take limit of the Eagle Management Unit unless take is offset 0% for GOEA, 6% for BAEA Does not result in USFWS-authorized take of > 5% of Local Area Population Applicant will mitigate using an approach the USFWS has already analyzed (e.g., power pole retrofitting), or applicant agrees to use a USFWS-approved third-party mitigation program Rule to go into effect January 17

13 USFWS Expectations Utility-scale wind energy facilities and electric transmission companies are likely to be the most frequent long-term permit applicants, because of the known risk to eagles from collisions with wind turbines and electric power lines. Expect the number to increase gradually for a period of years and perhaps eventually reach an average of 30 or fewer per year. Eagle Rule Revision, Final PEIS, p. 143

For More Information Migratory Bird Program https://www.fws.gov/birds/management/managedspecies/eagle-management.php For Region 6: Email: fw6_migratorybirds@fws.

14 For More Information Migratory Bird Program For Region 6: or call: For the Migratory Birds Permit Office, call Katie Umekubo Staff Attorney, Western Renewable Energy Daly Edmunds Director of Policy & Outreach

Eagle Take Permit Program Revamped Longer Permits and Clearer Mitigation Requirements

May 2016 Practice Groups: Energy Environmental, Land and Natural Resources Eagle Take Permit Program Revamped Longer Permits and Clearer By Ankur K. Tohan, James M. Lynch, Daniel C. Kelly-Stallings, Benjamin