The USFWS Issues Revised Eagle Take Permit Rule – Creates General Permit for Wind Energy Projects
February 22, 2024
On February 12, 2024, the US Fish and Wildlife Service (“USFWS”) published a final rule revising the regulations for permits issued under the Bald and Golden Eagle Protection Act (“BGEPA”). The BGEPA prohibits the “take” of bald or golden eagles or their nests without a permit. Under the rule, for the first time, wind energy projects and certain other activities may be eligible to rely on a general permit for incidental eagle takes. The rule also revises certain requirements for specific (individual) permits.
General Permit for Wind Energy Projects
The new general permit is anticipated to benefit the development and financing of wind energy projects, which previously required a choice between the lengthy process for obtaining a specific permit or operating without a permit and relying on the enforcement discretion of the USFWS in the event of an eagle take. The USFWS estimates that more than 80% of existing land-based wind turbines in the lower 48 states may be eligible for coverage under the general permit; wind turbines in Alaska, Hawaii, island territories, and offshore wind turbines are not eligible. In general, to be eligible, all of a project’s turbines must be located (i) in an area with eagle relative abundance less than the threshold identified in the regulation for both bald eagles and golden eagles, and (ii) at least two miles from any golden eagle nest and 660 feet from any bald eagle nest. Permit conditions include that the permittee:
- develop and implement an adaptive management plan;
- take measures to remove and avoid creating anthropogenic features that may increase the risk of take by attracting eagles to the project area or encouraging foraging, roosting, or nesting behaviors;
- minimize collision and electrocution risks;
- submit reports to the USFWS; and
- provide compensatory mitigation by obtaining eagle credits from a USFWS-approved conservation bank or in-lieu fee program.
Coverage under the general permit will be available for five years and may be renewed. Notably, a general permittee remains eligible to renew its permit, even if the USFWS revises the eagle relative abundance thresholds or new eagle nests are constructed within the species-specific setback distances as long as the project remains in compliance with the terms of the general permit, which include a requirement that the project does not discover the remains of four eagles of the same species within the 5-year permit period.
Other Permit Revisions
The rule also creates general permits for (i) power lines, (ii) “disturbance” from building construction and maintenance, linear infrastructure construction and maintenance, alteration of shorelines and water bodies, alteration of vegetation, motorized recreation, nonmotorized recreation, aircraft operation, prescribed burn operations, and loud intermittent noises, and (iii) take of eagle nests. In addition, the USFWS has issued improvements to its existing specific permit requirements that are intended to streamline the permitting process.
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. John D. Renneisen, an O'Melveny senior counsel licensed to practice law in the District of Columbia; John Rousakis, an O'Melveny partner licensed to practice law in New York; Junaid Chida, an O'Melveny partner licensed to practice law in California and New York; and Jeff Hoffner, an O'Melveny partner licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.
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