Policy & Regulation

Fish and Wildlife Service simplifies incidental take permitting process for endangered eagles
Fish and Wildlife Service simplifies incidental take permitting process for endangered eagles
(Photo by Mathew Schwartz on Unsplash)

The U.S. Fish and Wildlife Service says it has finalized its revised regulations for how it processes permits for incidental taking of bald and golden eagles.

By simplifying the permitting process and developing a standard approach for take-through general permits, the Service expects an increase in permit applications under the Bald and Golden Eagle Protection Act. With broader participation in the voluntary permit program, more projects would be implementing avoidance, minimization, and compensatory mitigation measures to increase the conservation of eagles, the Service said.

The Endangered Species Act requires that an incidental take permit be obtained for any “take” of an endangered or threatened species incidental to an otherwise lawful activity. “Take” in this instance means to disturb or harass an endangered species. Incidental take permits may be sought when a non-federal entity believes their otherwise lawful activities may result in the taking of endangered or threatened animal species, the Fish and Wildlife Service said.

The revised regulations include a new system of general permits in addition to the specific permit system the Service has used in the past. These general permits allow applicants to receive immediate authorization by certifying that they meet eligibility requirements and commit to implementing pre-identified conservation measures like designing equipment to reduce harm to eagles. The general permits are designed for situations that pose low risks to eagle populations and are an alternative approach to authorize wind-energy generation projects, power-line infrastructure, disturbance of breeding bald eagles, and bald eagle nest take.

“This regulation is a win for eagles and a win for critical infrastructure, such as power lines and wind energy projects,” said Service Director Martha Williams. “These innovative regulations establish more expedited general permits where activities and infrastructure pose low risks for bald and golden eagles, allowing the Service to direct our resources toward permit applications and conservation issues that will have the largest impact on eagle conservation. Through a collaborative and transparent process, we’ve streamlined the permitting process, making it more efficient while ensuring the preservation of these iconic species for future generations.”

In parallel to this rulemaking, the Service is continuing to review and approve mitigation providers and new compensatory mitigation methods that it says will reduce threats and benefit eagle populations. The final rule will be published in the Federal Register on February 12, 2024, and will go into effect 60 days following publication, on April 12, 2024. 

“Wind energy and eagle conservation have proven to be compatible,” said Tom Vinson, American Clean Power Association (ACP) Vice President for Policy and Regulatory Affairs. “The bald eagle population is booming, and the golden eagle population has remained stable alongside a significant expansion of wind energy deployment. The wind industry is looking to reduce the remaining limited impacts even further, and we are hopeful the FWS final rule will expand the availability of permits so that eagle populations can experience increased conservation benefits from the deployment of wind energy, including those related to a reduction in greenhouse gases and other air pollution.”

The Service will continue to review specific permits for situations that have high or uncertain risks to eagles to further the preservation of eagles, it said. The Service said it also made improvements to the specific permit requirements and process, clarified definitions, and revised the permit fee structure. The updated approach to fee collection will support staffing and an online permit system, as well as continued conservation improvements such as GPS tracking to monitor populations and validation of additional methods.

The Bald and Golden Eagle Protection Act prohibits harm, possession, or disturbance of bald and golden eagles, their parts, nests, or eggs, except as permitted by federal regulations. Permits for the incidental, or unintentional, take of eagles were first established in 2009, then revised in 2016 to authorize incidental take of bald eagles and golden eagles that results from a broad spectrum of activities, such as utility infrastructure, energy development, residential and commercial construction and resource recovery.

In September 2021, the Service published an Advance Notice of Proposed Rulemaking seeking input from Tribal governments, the public, and the regulated community on maintaining and strengthening protections for eagles while considering potential approaches for further expediting and simplifying the permit process authorizing incidental take of eagles. In September 2022, the Service published a proposed rule and draft environmental assessment with approaches to improve the eagle incidental take permitting program to make the permitting process more efficient and effective. This final rule reflects additional adjustments to help streamline this process, following public input received through the public comment process.