RIN 1018-AY30 Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
[Docket No. FWS–R9–MB–2011–0094;
FF09M20300–167–FXMB123109EAGLE]
RIN 1018–AY30

Eagle Permits; Revisions to
Regulations for Eagle Incidental Take
and Take of Eagle Nests
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:

We, the U.S. Fish and
Wildlife Service (Service or USFWS),
are revising the regulations for eagle
nonpurposeful take permits and eagle
nest take permits. Revisions include
changes to permit issuance criteria and
duration, definitions, compensatory
mitigation standards, criteria for eagle
nest removal permits, permit
application requirements, and fees. We
intend the revisions to add clarity to the
eagle permit regulations, improve their
implementation, and increase
compliance, while maintaining strong
protection for eagles.
DATES: Effective January 17, 2017.
ADDRESSES: Document Availability: The
Record of Decision, Final PEIS, and
supplementary information used in the
development of this rule, including the
public comments received and the
programmatic environmental impact
statement, may be viewed online at
http://www.fws.gov/birds/management/
managed-species/eaglemanagement.php and also at http://
www.regulations.gov at Docket No.
FWS–R9–MB–2011–0094.
FOR FURTHER INFORMATION CONTACT:
Eliza Savage, 703–358–2329 or eliza_
savage@fws.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:

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Executive Summary
The U.S. Fish and Wildlife Service is
finalizing revisions to permit
regulations for nonpurposeful
(incidental) take of eagles and take of
eagle nests in part 22 of title 50 of the
Code of Federal Regulations. The
revisions are intended to create a
permitting framework that we can
implement more efficiently and thus
encourage greater public compliance
while ensuring protection of bald and
golden eagles. Our goal is to enhance
protection of eagles throughout their
ranges through implementation of
mitigation measures that avoid and
minimize, and compensate for, adverse

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impacts from otherwise lawful
activities.
The Service is modifying the
definition of the Bald and Golden Eagle
Protection Act’s ‘‘preservation
standard,’’ which requires that
permitted take be compatible with the
preservation of eagles. We are also
removing the distinction between
standard and programmatic permits,
codifying standardized mitigation
requirements, and extending the
maximum permit duration for eagle
incidental take permits (50 CFR 22.26).
The regulations also include a number
of additional revisions to the eagle nest
take regulations at 50 CFR 22.27, as well
as revisions to the permit fee schedule
at 50 CFR 13.11; new and revised
definitions in 50 CFR 22.3; revisions to
50 CFR 22.25 (permits for golden eagle
nest take for resource development and
recovery operations) for consistency
with the § 22.27 nest take permits; and
two provisions that apply to all eagle
permit types (50 CFR 22.4 and 22.11).
Background
The Bald and Golden Eagle Protection
Act (Eagle Act or BGEPA) (16 U.S.C.
668–668d) prohibits take of bald eagles
and golden eagles except pursuant to
federal regulations. The Eagle Act
authorizes the Secretary of the Interior
to issue regulations to permit the
‘‘taking’’ of eagles for various purposes,
including the protection of ‘‘other
interests in any particular locality’’ (16
U.S.C. 668a), provided the taking is
compatible with the preservation of
eagles. In 2009, the Service promulgated
regulations at 50 CFR part 22 that
established two new permit types for
take of eagles and eagle nests (74 FR
46836; Sept. 11, 2009) (Eagle Permit
Rule). One permit authorizes, under
limited circumstances, the take
(removal, relocation, or destruction) of
eagle nests (50 CFR 22.27). The other
permit type authorizes nonpurposeful
take (disturbance, injury, or killing) of
eagles (50 CFR 22.26) where the take is
incidental to an otherwise lawful
activity. In these revised regulations, we
refer to nonpurposeful take as incidental
take, which has the same meaning as
conveyed in the 2009 regulations: Take
that is associated with but not the
purpose of an activity.
The Eagle Act requires the Service to
determine that any take of eagles the
Service authorizes is ‘‘compatible with
the preservation of the bald eagle or the
golden eagle’’ (16 U.S.C. 668a). We refer
to this clause as the Eagle Act
preservation standard. The preservation
standard underpins the Service’s
management objectives for eagles. In the
preamble to the final 2009 regulations

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for eagle nonpurposeful take permits,
and in the final environmental
assessment (FEA) of the regulations, the
Service defined the preservation
standard to mean ‘‘consistent with the
goal of stable or increasing breeding
populations’’ (74 FR 46836, see p.
46837).
On April 13, 2012, the Service
initiated two additional rulemakings: (1)
A proposed rule to extend the maximum
permit tenure for programmatic eagle
nonpurposeful take permit regulations
from 5 to 30 years, among other changes
(‘‘Duration Rule’’) (77 FR 22267); and (2)
an advance notice of proposed
rulemaking (ANPR) soliciting input on
all aspects of those eagle nonpurposeful
take regulations (77 FR 22278). The
Duration Rule was finalized on
December 9, 2013 (78 FR 73704).
However, it was the subject of a legal
challenge, and on August 11, 2015, the
U.S. District Court for the Northern
District of California vacated the
provisions that extended the maximum
programmatic permit tenure to 30 years
(Shearwater v. Ashe, No. CV02830–LHK
(N.D. Cal., Aug. 11, 2015)). The court
held that the Service should have
prepared an environmental assessment
(EA) or environmental impact statement
(EIS) to accompany the rulemaking
rather than apply a categorical exclusion
under the National Environmental
Policy Act (NEPA; 42 U.S.C. 4321–
4347). The effect of the ruling was to
return the maximum programmatic
permit tenure to 5 years.
The 2012 ANPR highlighted three
main issues for public comment: Our
overall eagle population management
objectives; compensatory mitigation
required under permits; and the
nonpurposeful take programmatic
permit issuance criteria. As a next step,
the Service issued a notice of intent to
prepare an EA or EIS pursuant to NEPA
(79 FR 35564; June 23, 2014). The
Service then held five public scoping
meetings between July 22 and August 7,
2014. We received a total of 536
comments during that public comment
period. Upon removal of duplicates,
there were a total of 517 unique
comments. We reviewed the comments
and used them to develop proposed
regulations and a draft programmatic
environmental impact statement
(DPEIS), which we released on May 6,
2016, for a 60-day public comment
period (81 FR 27934). The draft PEIS
and proposed regulations are available
on the Internet at: http://
eagleruleprocess.org/ and at http://
www.regulations.gov at Docket No.
FWS–R9–MB–2011–0094. We received
780 comments on the proposed rule and
DPEIS from federal agencies, states,

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tribes, nongovernmental organizations,
industry associations, individual
companies, and members of the public.
These comments were the basis for
several changes, discussed below, that
we made to the proposed action in this
rule.
In accordance with NEPA
requirements (40 CFR 1506.6(b)), we
announce the availability of the Record
of Decision (ROD) for the Service’s final
PEIS for the eagle rule revisions and
management objectives. The ROD is the
final step in the NEPA process for the
eagle rule revision process, which
includes revisions to the regulations
governing permits for incidental take of
eagles and take of eagle nests. The ROD
describes the Service’s decision;
identifies the other alternatives
considered, including the
environmentally preferable alternative;
explains the Service’s plans for
mitigation; and states what factors,
including considerations of national
policy, we considered in making the
decision. The ROD and final PEIS are
available at http://www.fws.gov/birds/
management/managed-species/eaglemanagement.php and also at http://
www.regulations.gov at Docket No.
FWS–R9–MB–2011–0094.
Bald eagle populations have
continued to increase throughout the
United States, which effectively
increases the potential need for permits
for activities that may disturb, injure, or
kill bald eagles. There has also been
significant expansion within many
sectors of the U.S. energy industry,
particularly wind energy operations,
and much more interest in permitting
new long-term operations than was
anticipated when the 2009 regulations
were promulgated. At the same time,
golden eagle populations are potentially
declining, heightening the challenge of
permitting incidental take of this
species for otherwise lawful activities.
The 2009 permit regulations have not
provided an optimal framework for
authorizing incidental take under these
circumstances, particularly for
incidental take resulting from long-term,
ongoing activities. Difficulties in
establishing new permit regulations are
to be expected and the Service
contemplated that changes to the permit
regulations would be necessary based
on experience gained through
implementing the new permit
framework. One of these challenges has
been a general perception that the 2009
permitting framework did not provide
enough flexibility to issue eagle take
permits in a timely manner. Indeed,
only one programmatic permit has been
issued to date. When projects go
forward without permit authorization,

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the opportunity to obtain benefits to
eagles in the form of required
conservation measures is lost and
project operators put themselves at risk
of violating the law.
Under the management approach
established with the 2009 eagle permit
regulations and final EA (FEA),
permitted take of bald eagles has been
capped at 5 percent of estimated annual
productivity (i.e., successful
reproduction) of the population.
Because the Service lacked data in 2009
to show that golden eagle populations
could sustain any additional
unmitigated mortality, the Service set
take limits for that species at zero. This
decision has meant that any new
authorized take of golden eagles must be
at least equally offset by compensatory
mitigation (specific conservation actions
to replace or offset project-induced
mortality or disturbance by reducing
take elsewhere).
In the FEA for the 2009 regulations
and in the preamble to those
regulations, the Service adopted a
policy of not issuing take permits for
golden eagles east of the 100th
meridian. At the time, the Service
determined there were not sufficient
data to ensure that golden eagle
populations were stable or increasing
such that permitting take would not
result in a decline in breeding pairs in
this region. However, after further
analysis, the Service has determined
that some take can be permitted with
implementation of compensatory
mitigation. Rather than providing an
increased level of protection for golden
eagles, this policy has meant that
activities that take golden eagles in the
east continue to proliferate without
implementation of conservation
measures and mitigation to address
impacts to golden eagles that would be
required as the result of the permitting
process.
Since 2009, Service and U.S.
Geological Survey (USGS) scientists
have undertaken considerable research
and monitoring to improve the Service’s
ability to track compliance with eagle
management objectives and reduce
uncertainty. Of particular significance,
the Service has updated population
estimates for both species of eagle and
quantified uncertainty in those
estimates. For the bald eagle, the Service
now estimates substantially higher
populations than were estimated in
2009, and allowable take limits will
likely increase considerably across most
of the country as a result (see further
discussion below under Status of Eagle
Populations). For golden eagles, recent
research indicates that the population in
the coterminous western United States

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might be declining towards a lower
equilibrium. Additionally, the Service
now has a much better understanding of
the seasonal, annual, and age-related
movement patterns of golden eagles.
These data are incorporated into the
updated management framework.
Through implementing the 2009
permit regulations, the Service has
identified several provisions that could
be improved for the benefit of both
eagles and people, including the
regulated community. One issue that
has hampered efficient permit
administration (of both eagle
nonpurposeful take permits and eagle
nest take permits) is the difficulty
inherent in applying the standard that
take must be reduced to the point where
it is unavoidable, which the current
regulations require for programmatic
permits. Additionally, a lack of
specificity in the regulations as to when
compensatory mitigation is required can
lead to inconsistencies in what is
required of permittees.
The 5-year maximum duration for
programmatic permits appears to have
been a primary factor discouraging
many project proponents from seeking
eagle take permits. Many activities that
incidentally take eagles due to ongoing
operations have lifetimes that far exceed
5 years. We need to issue permits that
align better, both in duration and the
scale of conservation measures, with the
longer-term duration of industrial
activities, such as electricity
distribution and energy production.
Extending the maximum permit
duration is consistent with other
Federal permitting for development and
infrastructure projects.
Encouraging more proponents of
activities that incidentally take eagles to
apply for permits is a critically
important means of reducing incidental
take. The intent of these regulations is
not to encourage construction and
operation of projects that take eagles (an
eagle incidental take permit only
authorizes take of eagles; it is not a
prerequisite or an authorization to
construct and operate projects that will
result in eagles being taken). Instead, we
are strongly encouraging such projects
to seek authorization for eagle take and
thereby implement conservation
measures that reduce incidental take
and benefit eagles. Unpermitted
activities have taken and will continue
to take eagles with or without this
permit program. In fact, the Service’s
recent analysis of causes of death of
golden eagles shows that, 56 years after
enactment of the Eagle Act, unpermitted
human-caused mortality is still the
leading cause of death of golden eagles
in the United States, and risks causing

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population declines for this species. Our
goal is to reduce the number of
unauthorized activities through
enforcement where appropriate and by
implementing an efficient regulatory
framework that encourages proponents
of activities that incidentally take eagles
to seek and obtain legal authorization.
The Service has successfully pursued
enforcement actions against project
proponents that incidentally take eagles
and will continue to do so, but
enforcement alone is an inefficient
means to manage and conserve eagles
nationwide and is constrained by our
limited law enforcement resources.
Therefore, our primary means of
conserving and protecting eagles is to
ensure that our incidental take permit
regulations encourage more proponents
to seek and obtain permits for activities
that otherwise would continue to take
eagles without implementing the
conservation measures that are critical
to eagle conservation nationally,
regionally, and locally.
Status of Eagle Populations
The Service is updating its
management objectives for eagles
established by the 2009 eagle permit
regulations and FEA. Management
objectives direct strategic management
and monitoring actions and ultimately
determine what level of permitted eagle
take we can allow. The Service recently
completed a status report on bald and
golden eagles: ‘‘Bald and Golden Eagles:
Status, trends, and estimation of
sustainable take rates in the United
States’’ (‘‘Status Report’’) (USFWS,
2016). The Status Report, which is
available at http://eagleruleprocess.org,
estimates population sizes, productivity,
and survival rates for both species;
analyzes the effects of unauthorized take
of golden eagles; provides
recommended take limits for both
species and metrics for converting take
in the form of disturbance to debits from
the take limits; analyzes the cumulative
effects of permitting take of up to 5% of
local area populations (the population
in the vicinity of a particular project or
activity); and recommends a schedule of
population surveys to regularly update
population size estimates for both
species. The Status Report is essentially
a compilation of the most current
research on the population status and
trends of bald and golden eagles and
serves as the biological basis for the
revised regulatory management
framework in these regulation revisions
and the preferred alternative in the
programmatic EIS (PEIS). The following
discussion pertaining to the status of
bald and golden eagle populations
summarizes some of the information

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provided and explained in more detail
in the Status Report, available at http://
eagleruleprocess.org.
The Service has estimated the
population size for the bald eagle in the
coterminous United States using a
population model in conjunction with
estimates of the number of occupied
nesting territories in 2009. That
population size estimate is 72,434, and,
when combined with a previous
estimate of population size for Alaska
(70,544), is 143,000. We derive our
conservative estimate for the population
size by using the 20th quantile of the
population size estimate distribution
(the 20th quantile is the point on the
probability distribution where there is
only a 20% chance of the estimate being
lower than the true population size).
The 20th quantile represented 126,000
bald eagles for the United States in
2009. This number represents an
increase from our population size
estimate for the coterminous United
States in 2007 (the year data were
gathered to support delisting under the
Endangered Species Act of 1973, as
amended (ESA; 16 U.S.C. 1531 et seq.)),
which was 69,000. We attribute the
difference to improved monitoring and
estimation efforts, as well as increases
in bald eagle numbers. Both the
population model and Breeding Bird
Survey (BBS) estimates indicate bald
eagle populations are continuing to
increase throughout the coterminous
United States.
We estimated future bald eagle
populations using a conservative
assumption that the number of suitable
bald eagle nesting territories will not
increase above the 2009 estimate. Given
limitations of the data on Alaskan eagles
and evidence from the BBS that bald
eagle populations are growing more
slowly there, we did not model
projections for Alaska and assumed that
Alaska’s bald eagle population will
remain stable (though demographic
rates suggested continued growth is
possible). With these constraints, our
model forecasts that the number of bald
eagles in the coterminous United States
outside the Southwest will continue to
increase until populations reach an
equilibrium at about 228,000 (20th
quantile = 197,000) individuals. The
model predicts that bald eagles in the
Southwest will also continue to increase
from the 2009 population estimate of
650 until reaching an equilibrium at
about 1,800 (20th quantile = 1,400)
individuals. Again, these numbers are
based on assumptions that underlying
demographic rates and other
environmental factors remain
unchanged, and the predictions do not
take into account forecasted changes in

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climate nor how such changes may
affect bald eagle population vital rates
and population size. These projections
also assume food and other factors will
not become limiting.
We estimated the total population size
for the golden eagle in the coterminous
United States and Alaska was 39,000
(20th quantile = 34,000) in 2009, and
41,500 (20th quantile = 35,000) in 2014,
updated from 40,000 in the draft PEIS
based on comments we received from
the Alaska Department of Fish and
Game. However, although the golden
eagle population trend estimate based
on current surveys is stable, an estimate
from a population model similar to that
used for the bald eagle suggests the
population in the western United States
might be declining toward a lower
equilibrium size of about 26,000
individuals.
Using unbiased cause-of-mortality
data for a sample of 386 satellite-tagged
golden eagles in the period 1997–2013,
the Service estimated contemporary agespecific survival rates with and without
current levels of anthropogenic
mortality. Anthropogenic factors were
responsible for about 56% of satellitetagged golden eagle mortality, with the
highest rates of anthropogenic mortality
among adults (63%). We estimated the
maximum rate of population growth for
the golden eagle in the coterminous
United States in the absence of existing
anthropogenic mortality was 10.9%
(20th quantile = 9.7%). Sustainable take
(the number of eagles that can be
removed from the population while still
achieving a stable population compared
to the 2009 baseline) of golden eagles
under those conditions would be 2,000
individuals (20th quantile = 1,600). The
available information suggests ongoing
levels of human-caused mortality likely
exceed this value, perhaps considerably.
This information supports the finding
from the population model that golden
eagle populations may be declining to a
new, lower level.
For much more detailed information
about the current population status and
trends, see the Status Report available
at: http://eagleruleprocess.org.
Description of the Rulemaking
Preservation Standard
The Eagle Act requires that any
authorized take of eagles be ‘‘compatible
with the preservation’’ of bald eagles
and golden eagles. The Service defined
this preservation standard in the
preamble to the 2009 regulations to
mean ‘‘consistent with the goal of stable
or increasing breeding populations.’’ We
are incorporating a modified definition
of that standard into the regulations. We

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now define the preservation standard to
mean ‘‘consistent with the goals of
maintaining stable or increasing
breeding populations in all eagle
management units and the persistence
of local populations throughout the
geographic range of each species.’’ The
timeframe the Service used for modeling
and assessing eagle population
demographics is 100 years (at least eight
generations) for both eagle species
relative to the 2009 baseline. ‘‘Eagle
management unit’’ is defined as ‘‘a
geographically bounded region within
which permitted take is regulated to
meet the management goal of
maintaining stable or increasing
breeding populations of bald or golden
eagles.’’
The eagle management objective
embodied in the revised definition of
the preservation standard is consistent
with Presidential, Department of the
Interior, and Fish and Wildlife Service
mitigation policies that aim to achieve
a net benefit, or at a minimum, no net
loss, of natural resources. (See the
Service’s mitigation policy (501 FW 2);
Secretary’s Order 3330, entitled
‘‘Improving Mitigation Policies and
Practices of the Department of the
Interior’’ (October 31, 2013); the
Departmental Manual Chapter on
Implementing Mitigation at the
Landscape-scale (600 DM 6 (October 23,
2015)); and the Presidential
Memorandum on Mitigating Impacts on
Natural Resources from Development
and Encouraging Related Private
Investment (November 3, 2015)).
During the scoping period for the
PEIS, the Service sought and received
public comment on how the
preservation standard should be defined
and applied. We considered adoption of
a purely qualitative preservation
standard such as ‘‘to not meaningfully
impair the bald or golden eagle’s
continued existence.’’ However, a
qualitative approach alone contains no
standards for assessment, which could
lead to inconsistent implementation
between Service regions. Inconsistent
implementation across Regions is a
bigger concern with eagles than for
many ESA-listed species because the
range of both bald and golden eagles
extends throughout the continental
United States. Additional drawbacks to
adopting a qualitative approach are that
it is less compatible with formal
adaptive management and does not
provide a mechanism to assess
cumulative impacts. Also, considerable
quantitative information is available on
eagle populations unlike many ESAlisted species, and to ignore these data
or to independently reassess them for
each permit is inconsistent with the

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Service’s commitment to use the best
available information and practice the
best science. For these reasons, the
Service has elected not to adopt a
qualitative preservation standard.
We elected to retain the quantitative
approach because it is explicit, allows
less room for subjective interpretation,
and can be consistently implemented
throughout the country and across the
types of activities that require permits.
Our approach, including the underlying
population model, is consistent with
other wildlife management programs,
including the North American
Waterfowl Management Plan and
management of marine mammals under
the Marine Mammal Protection Act (16
U.S.C. 1361 et seq.).
The revised preservation standard—
‘‘consistent with the goals of
maintaining stable or increasing
breeding populations in all eagle
management units and the persistence
of local populations throughout the
geographic range of both species’’—
seeks to ensure the persistence of bald
and golden eagle populations over the
long term with sufficient distribution to
be resilient and adaptable to
environmental conditions, stressors, and
likely future altered environments, and
to better align with State and tribal
interests in local eagle population
management. To meet this objective in
a scientifically rigorous manner, the
Service manages eagles at two scales: (1)
Eagle management units (EMUs), which
are regional populations of eagles over
which the Service strives to meet the
objective of population stability or
growth, relative to population size in
the baseline year of 2009, over 100
years; and (2) local area populations,
which are finer-scale areas defined by
eagle dispersal criteria that are specific
to each permitted action and over which
the Service seeks to ensure take does not
cause the extirpation of either eagle
species. The Service used modern
scientific methods to estimate the take
rate (the proportion of the population
that can be removed annually) that can
be authorized for each species of eagle
in each EMU while meeting our
management objectives. These estimates
are in the form of probability
distributions that account for scientific
uncertainty in both the modeling
process and in the biological data used
in the models. For the liberal PEIS
alternatives, the Service used the
median of model estimates for
important parameters (e.g., population
size, take rate) to calculate take limits
(the number of eagles that can be
removed annually at the EMU- and,
separately, the LAP-scale and still meet
the management objective); this

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approach shares the risk posed by
uncertainty equally between being
under-protective of eagles and being
unnecessarily over-restrictive on
activities that might take eagles. For the
conservative PEIS alternatives, the
Service used values that allocated risk
in an 80:20 ratio in favor of being overprotective of eagles. By defining the
eagle preservation standard in this way,
and analyzing the effects of take within
those take limits in the PEIS, the
analytical burden for each permit
decision is greatly reduced, allowing the
Service to make informed permitting
decisions at an expedited rate.
The regulatory revisions in this final
rule are based on the amended
definition of the preservation standard
and the adoption of a relatively
conservative approach to estimating
population values and sustainable take
rates based on the best available data
and the Service’s level of risk tolerance
in the face of uncertainty. This
relatively conservative approach is
described below, and also in much more
detail, along with alternative
approaches and the scientific and
technical information that underpins
their analyses, in the Status Report and
the PEIS.
We estimate there are about 143,000
bald eagles in the United States
(including Alaska), and that populations
continue to increase. Given their
continued population growth above the
2009 baseline, and considering the
updated demographic data compiled by
the Service and presented in the Status
Report, we have determined there is
considerable capacity for sustainable
take of bald eagles. Under the
management approach we are adopting,
the sustainable annual take limit
(without compensatory mitigation)
would be 3,742 bald eagles in the
coterminous United States. Initially, the
Service proposed to set unmitigated take
limits of only 500 bald eagles annually
in Alaska because our population data
there are less rigorous than elsewhere in
the United States. However, in response
to compelling comments from the
Alaska Department of Fish and Game
(see Response to Public Comments,
below, for more details), we have
revised the sustainable take rate for
Alaska to 3,776, based on the
sustainable take rate of 6% under the
preferred alternative in the PEIS. The
Service does not expect authorized take
under the revised sustainable take limits
to approach the new take limit in Alaska
or nationwide. In fact, there is nothing
in the revised regulations that will
increase take, though we hope more
ongoing unpermitted take will be
captured under permits in the future.

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We estimate golden eagles currently
number about 40,000 individuals in the
United States (including Alaska), and
populations have been relatively stable
around that size since the mid-1960s.
We estimate the carrying capacity of
golden eagles nationwide to be 73,000.
We also have data indicating that
population size is limited by high levels
of anthropogenic mortality (i.e.,
populations could be larger were it not
for ongoing high levels of unpermitted
take), and that adding additional
mortality will likely cause populations
to decline to a lower level. As a
consequence, there is no opportunity for
authorizing additional unmitigated take
of this species without changing the
population objective to a level lower
than the 2009 baseline. Under our
proposed management framework, we
would operate under the conservative
assumption that there is no sustainable
take, and take limits would be zero,
without compensatory mitigation to
offset the take. However, even using the
median values, rather than the 20th
quantile used in our preferred,
conservative approach, take of golden
eagles nationwide would still be set at
zero, requiring that all authorized take
be offset by compensatory mitigation.
We are realigning EMUs to better
reflect regional populations and
migration patterns of both species. The
Service and its partner agencies manage
for migratory birds based on specific
migratory route paths within North
America (Atlantic, Mississippi, Central,
and Pacific). Based on those route paths,
State and Federal agencies developed
the four administrative flyways that are
used to administer migratory bird
resources. Both bald and golden eagles
move over great distances seasonally
and across years. There is a welldescribed annual seasonal migration of
both species of eagles from northern
regions southward in winter. An annual
northward migration of bald eagles from
southern regions in spring is welldocumented, and a similar northward
migration of golden eagles that winter in
southern regions has been recently
discovered. The adoption of the
administrative flyways as EMUs better
aligns with seasonal movement patterns
of both species and better addresses
geographic patterns of risk given those
seasonal movement patterns.
We are aware of preliminary data on
golden eagles tracked with satellite
telemetry that indicate a flyway
configuration for EMUs may not capture
movement patterns of resident golden
eagles as well as finer-scale landscape
mapping systems. The results of that
study were intended to be completed
and included in the Status Report, but

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the work was not completed in time. In
its place the Service conducted an
analysis of banding data, and those
results are reported in the Status Report.
Neither analysis is ideal because the
distribution of deployed bands and
satellite tags has not been random.
While the banding data have the
advantage of much larger sample sizes,
the satellite-tag data have the advantage
of much more precise tracking of a
smaller number of individuals. The
Service will consider the information
from the satellite telemetry study in
future re-assessments of eagle status and
management objectives.
In the approach we are now adopting,
we will use the flyways as the EMUs for
both species—with some modifications.
The banding data recovery records
indicate that banded eagles of both
species were recovered more frequently
in the same flyway EMU than in the
same 2009 EMU. Given the relatively
small size of the eastern golden eagle
population and uncertainty about the
distribution of that population across
the two eastern flyways, we are
combining the Mississippi and Atlantic
Flyways into one management unit for
golden eagles. For bald eagles, data
indicate the Pacific Flyway should be
split into three management units:
Alaska, Pacific flyway north of 40
degrees N latitude to the Canadian
border, and Pacific flyway south of 40
degrees N latitude to the Mexican
border. See the PEIS for maps of the
current and proposed EMUs. To monitor
eagle populations in the future and
assess whether different take thresholds
are appropriate, our plan, assuming we
have sufficient appropriated funding, is
to conduct surveys on a 6-year rotation:
One set of paired summer–winter
golden eagle surveys in the first and
second and fourth and fifth years of
each assessment period, and to conduct
bald eagle surveys in years three and
six.
EMU take limits are increased
accordingly because the flyway
management units are fewer and larger
than the EMUs currently in use (for bald
eagles; golden eagle take limits would
be zero in all management units, unless
offset). Each flyway unit covers several
current EMUs. In some ways, increasing
the EMU size could be less protective of
eagle populations at more local scales.
However, any potential decreased
protection of local eagle populations
caused by increasing the size of the
EMUs is more than compensated for by
two provisions designed to increase
protection of eagles at more local scales.
First, as noted earlier, we modify the
preservation standard of the Eagle Act to
include the goal of maintaining the

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persistence of local populations
throughout the geographic range of both
species, and codify the new definition
in the regulations at 50 CFR 22.3. The
definition reads: ‘‘Compatible with the
preservation of the bald eagle or the
golden eagle means consistent with the
goals of maintaining stable or increasing
breeding populations in all eagle
management units and the persistence
of local populations throughout the
geographic range of each species.’’
These revised regulations also
enhance protection of eagles at the local
scale by incorporating a local area
population (LAP) cumulative effects
analysis into the permit issuance
criteria. The LAP analysis, which is
detailed in Appendix F of the Eagle
Conservation Plan Guidance, Module
1—Land-based Wind Energy (ECPG)
(USFWS 2013), involves compiling
information on permitted anthropogenic
mortality of eagles within a specified
distance (derived from each eagle
species’ natal dispersal distance) of the
permitted activities’ boundary. If
permitted eagle take exceeds 1% of the
estimated population size of either
species within the LAP area, additional
take is a concern. If take exceeds 5% of
the estimated population size within the
LAP area, additional take is considered
inadvisable unless the permitted
activity will actually result in a
lowering of take levels (e.g., permitting
a repowered wind project that, in its
repowered form, will take fewer eagles
than before repowering).
We derive the size of the LAP by
multiplying the estimated eagle density
at the eagle management unit scale, as
set in the 2009 Final Environmental
Assessment on the Eagle Take Rule, by
the size of the LAP area. We
acknowledge that this approach is
somewhat simplistic for at least two
reasons. First, as described previously,
the eagle density estimates come from
nesting or late-summer population
surveys and do not account for seasonal
movements of eagles that occur through
migration and dispersal. Second, this
approach assumes that eagle density is
uniform across the EMU, which is not
the case. In most cases, the first
simplification leads to an underestimate
of true density, particularly in core
wintering areas during the non-breeding
months, and as such serves as an added
buffer against overharvest of local
nesting eagles. Assuming uniform
density leads to greater relative
protection of areas with higher than
average eagle density within an EMU,
and less relative protection in areas of
lower density. Ideally, over time and
with better information on resource
selection and factors accounting for

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variation in density, as well as
improved knowledge of seasonal
changes in eagle density and
population-specific movement patterns,
the LAP analysis can be improved to
more realistically account for the true
LAP impacted by projects under
consideration. For now, however, LAP
take thresholds allow the Service to
authorize limited take of eagles while
favoring eagle conservation in the face
of the uncertainty.
Since publication of the ECPG, the
Service has updated natal dispersal
distances (the linear distance between a
bird’s location of origin and its first
breeding or potential breeding location)
for both eagle species that are used to
calculate LAPs. Those distances are
currently 86 miles for bald eagles and
109 miles for golden eagles. These could
change in the future if additional data
indicate the need for adjustment. The
LAP cumulative effects analysis is
described in more detail in the Status
Report.
Prior to this rulemaking, the LAP
cumulative effects analysis has been
used as guidance. Under these revised
regulations, the LAP analysis is required
as part of our review of each permit
application. In order to issue a permit,
we must find that cumulative
authorized take does not exceed 5% of
the LAP, or we must demonstrate why
allowing take to exceed that limit is still
compatible with the preservation of
eagles. One situation where we may
issue a permit that would result in
authorized take above 5% of the LAP is
if a project is already in operation and
the permit conditions would result in a
reduction of take, or if compensatory
mitigation offsets impacts to eagles
within the LAP. Unpermitted levels of
eagle take within the LAP, if known,
would also be considered in assessing
the potential effects of the permit on the
LAP.
Incorporation of the LAP 5% limit on
authorized take into the regulations will
facilitate individual permit decisions;
instead of needing to evaluate under an
independent NEPA analysis each
project in the context of other
authorized take within the LAP, along
with the level of unauthorized take—
which is difficult or impossible to
precisely determine—we have already
analyzed the effects of authorizing take
of up to 5% of the LAP in the PEIS for
these regulations, along with a
qualitative analysis of unauthorized
take, and determined that it is
compatible with the preservation of
eagles.
The primary aim of requiring this LAP
analysis is to prevent significant
declines in, or extirpation of, local

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nesting populations. However, there is
also increasing evidence of a strong
tendency in both species of eagle to
return to non-breeding areas (wintering
areas, migration routes, and staging
areas) (McIntyre et al. 2008; Mojica et al.
2008). The LAP take limits also provide
protection from permitting cumulatively
high levels of take of eagles that winter
or migrate through the LAP area.
The take authorized within the LAP
take limits is in addition to an average
background rate of anthropogenic
mortality (ongoing human-caused eagle
mortality, most of which is not currently
permitted.) For golden eagles,
background anthropogenic mortality is
about 10% (see the Status Report). Thus,
total anthropogenic mortality for a LAP
experiencing the maximum permitted
take rate of 5% averages about 15%. We
do not have similar mortality
information for bald eagles. While we
do not know exactly what level of
unauthorized anthropogenic take of bald
eagles is occurring, we are reasonably
certain that the take we authorize for
bald eagles will also be over and above
a level of preexisting ongoing
unpermitted take. The level of ongoing
unauthorized take of bald eagles may be
similar to that of golden eagles;
however, bald eagles have a maximum
potential growth rate about twice that of
golden eagles and thus are more
resilient to take. As part of the LAP
analysis for both species, Service
biologists would consider any available
information on unpermitted take
occurring within the LAP area. While
evidence of excessive unpermitted take
does not necessarily preclude the
Service from issuing a permit, it would
be taken into consideration in
evaluating whether to issue the permit
and is likely to entail additional
environmental analysis to determine
whether issuance of the permit is
compatible with the preservation of
eagles.
The Service considered developing
specific eagle population size goals
(other than the 2009 baseline) for each
EMU and then using those targets to
inform permit decisions within the
EMUs. However, that approach is not
feasible at this time given the technical
and logistical complexities of working
with state agencies and tribes to set
population objectives at this scale
within the timeframe of this action, and
the lack of fine-scale information on
eagle populations that would be
necessary.
For disturbance to have the potential
of a population effect, it has to result in
a loss of potential productivity. In 2009,
the Service used the EMU-specific mean
number of young fledged per occupied

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nesting territory for each species per
year as the expected loss under nest
disturbance permits for each instance of
nest disturbance. We use the same
approach in this revision, but with
updated take values based on the new
productivity information for each eagle
species (see the Status Report).
Nonpurposeful (Incidental) Take
Permits (50 CFR 22.26)
We are changing the name of what we
have been calling ‘‘nonpurposeful take
permits’’ to ‘‘incidental take permits.’’
Incidental take is what § 22.26 permits
authorize. We originally called them
‘‘nonpurposeful take’’ permits in order
to avoid confusion with incidental take
permits issued under the ESA for
endangered and threatened species.
However, the term ‘‘nonpurposeful’’
also caused confusion because it is not
a commonly used word. The meaning of
‘‘incidental’’ is better understood.
Moreover, now that this permit system
is relatively well established, the
potential for confusion with the ESA
incidental take permit system is much
reduced. Because ‘‘nonpurposeful take’’
and ‘‘incidental take’’ mean the same
thing, the change in nomenclature does
not in any way affect the circumstances
and manner in which these permits will
be issued.
In these revised regulations, the types
of incidental take permits we can issue
under § 22.26 are reduced from two to
one. There will no longer be separate
categories for standard and
programmatic permits. Having two
separate categories has sometimes led to
confusion because it is not always
possible to distinguish between what
should be authorized under a
programmatic versus a standard permit.
Also, the term ‘‘programmatic’’ in the
sense we have been using it was
sometimes misunderstood because it
differs from how ‘‘programmatic’’ has
been typically used in the regulatory
arena. ‘‘Programmatic’’ in the more
traditional sense means ‘‘following or
relating to a plan or program.’’ While we
anticipate sometimes issuing permits to
cover the effects of multiple activities
within a given program (such as a
military installation), our experience so
far is that the more complex requests for
permits we have had to date have been
for single, long-term activities that have
the potential to periodically take one or
more eagles over the life of the project.
To reduce confusion, we eliminate the
distinction between standard and
programmatic permits. All § 22.26
permits are now simply ‘‘eagle
incidental take permits’’ or ‘‘incidental
take permits.’’

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Under the 2009 regulations,
programmatic permits were contingent
on implementation of advanced
conservation practices (ACPs)
developed in coordination with the
Service. ACPs are defined as
‘‘scientifically supportable measures
approved by the Service that represent
the best available techniques to reduce
eagle disturbance and ongoing
mortalities to a level where remaining
take is unavoidable.’’ In contrast, we
have required that applicants for
standard permits under the current
regulations reduce potential take to a
level where it is ‘‘practicably
unavoidable’’ [emphasis added]. Thus,
programmatic permit applicants were
subject to a higher standard, at least
theoretically. In reality, the term
‘‘unavoidable’’ is more ambiguous than
it seems in theory; there is no clear
distinction in practice between
‘‘practicably unavoidable’’ and
‘‘unavoidable.’’ Thus the revised
regulations apply the ‘‘practicability
standard’’ to all § 22.26 permits.
We are revising the definition of
‘‘practicable’’ by adopting the definition
from the Service’s proposed mitigation
policy (see 81 FR 12380; Mar. 8, 2016),
slightly modified for specific
application to eagle permits. The new
definition reads: ‘‘Practicable means
available and capable of being done
after taking into consideration existing
technology, logistics, and cost in light of
a mitigation measure’s beneficial value
to eagles and the activity’s overall
purpose, scope, and scale.’’ The revised
definition captures the essential
elements of the old definition, while
promoting a consistent approach to how
the Service applies compensatory
mitigation requirements across all
programs.
Because the concept of ACPs is based
on reducing take to the point where it
is unavoidable—versus ‘‘practicably
unavoidable’’—and applied to the
category of programmatic permits, the
requirement for ACPs is removed from
the regulations. As discussed above, all
permittees would be required to avoid
and minimize impacts to eagles to the
maximum degree practicable. Although
the ACP requirement no longer applies,
the Service will require potential
permittees to implement all practicable
best management practices and other
measures that are reasonably likely to
reduce eagle take. Permit applicants that
cannot reduce or compensate for take to
levels that are compatible with eagle
preservation will not qualify for a
permit.
We believe a 5-year maximum permit
term for permits is unnecessarily
burdensome for entities engaged in

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long-term actions that have the potential
to incidentally take bald or golden
eagles over the lifetime of the activity.
The 5-year maximum permit duration
has had the unintended effect of
discouraging proponents of long-term
activities from applying for permits,
despite the risk of violating the statute.
With longer-term permits, the Service
has the ability to build more effective
adaptive management measures into the
permit conditions. This approach will
provide a degree of certainty to project
proponents because they will have a
greater understanding of what measures
may be required to remain compliant
with the terms and conditions of their
permits in the future. This increased
level of certainty allows companies to
plan accordingly by allocating resources
so they are available if needed to
implement additional conservation
measures to benefit eagles and maintain
their permit coverage.
Although killing, injuring, and other
forms of take of eagles are illegal
without a permit, the Service cannot
require any entity to apply for an eagle
take permit (except under legal
settlement agreements). Some project
proponents build and operate without
eagle take permits even in areas where
they are likely to take eagles. When that
occurs, the opportunity to apply
avoidance, minimization, and other
mitigation measures is lost. We believe
that permitting long-term activities that
are likely to incidentally take eagles,
including working with project
proponents to minimize the impacts and
secure compensatory mitigation, will
enhance eagle conservation in contrast
to project proponents avoiding the
permitting process altogether because
they perceive the process as overly
onerous.
Under the revised regulations, the
Service will evaluate each long-term
permit at no more than 5-year intervals.
These evaluations will reassess fatality
rates, effectiveness of measures to
reduce take, the appropriate level of
compensatory mitigation, and eagle
population status. Long-term permits
are required to include adaptive
management provisions that provide for
additional or changed mitigation
measures under specified conditions,
for example, under increasing levels of
eagle take. Provided permittees are in
compliance with their permit, including
adaptive management measures and
take levels, 5-year reviews will
primarily consist of updating take
estimates and related compensatory
mitigation for the next 5 years.
Conversely, the 5-year review provides
an opportunity for the Service to amend
the permit to reduce or eliminate

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conservation measures or other permit
conditions that prove to be ineffective or
unnecessary.
Under the proposed regulations, a
long-term permittee may also have been
required to undertake additional,
practicable conservation measures not
spelled out in the adaptive management
permit conditions, even if the permittee
is in compliance with the terms of the
permit, if such measures were
reasonably likely to reduce risk to eagles
based on the best scientific information
available. However, these final
regulations limit such additional
conservation measures to when
authorized take levels are exceeded in a
manner or to a degree not addressed in
the adaptive management conditions of
the permit. Based on public comment,
the proposed provision appeared likely
to disincentivize project proponents
from seeking permits. Rather, for a
permittee in compliance with permit
terms and conditions, conservation and
mitigation measures beyond the terms of
a permit are voluntary. Take estimates
and compensatory mitigation
requirements would be adjusted if such
measures were implemented. Permit
suspension and revocation procedures
will remain available for extreme cases
if new measures sufficient to meet the
preservation standard cannot be
negotiated with the permit holder.
The revised regulations require
applicants and permittees to use
Service-approved protocols for
conducting pre-application surveys,
fatality predictions, and monitoring
under permits, unless waived by the
Service. The regulations provide that, if
the Service has, through rulemaking
procedures, officially issued or
endorsed survey, modeling, or other
data quality standards for the activity,
those are the standards and protocols
that must be used (unless the Service
waives the requirement for that
applicant). Applicants engaged in other
activities for which the Service has not
adopted official protocols must
coordinate with the Service to develop
project-specific monitoring and survey
protocols. The requirement to use
Service-approved protocols will result
in more efficient permitting decisions
by the Service. Submission of
inadequate data, or data gathered using
methods the Service cannot verify to be
sound, has resulted in significant extra
work and time from our staff to assess
wind energy project impacts. Specific
application of these requirements to
wind energy facilities is described
below under Survey Requirements for
Incidental Take Permits for Wind
Energy Facilities.

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While we have not officially issued
fatality prediction models or preapplication monitoring protocols for
activities other than wind energy
generation, or finalized post-permitting
monitoring protocols for any single
activity, the Service has enough
information about eagle behaviors and
movements to recommend and approve
monitoring protocols for activities other
than wind energy generation on a
project-specific basis during the permit
application process. We encourage
project proponents to coordinate with
the Service as early as possible in the
project planning process to ensure they
are aware of any protocols we have
recommended and that they use them
appropriately. Our goal is to establish
additional formalized monitoring
protocols for industries other than wind
energy in the future.

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Survey Requirements for Incidental
Take Permits for Wind Energy Facilities
Many of the comments on the
proposed rule focused on the subset of
prospective incidental take permits that
relate to wind energy. These comments
were helpful, yet indicated a general
lack of understanding of how the
Service’s proposed approach to manage
incidental take at wind facilities under
an adaptive management framework is
intended to work. For this reason, and
because the permitting approach
developed for wind facilities provides
an example of how the Service intends
to implement incidental take permitting
for other activities, we have expanded
our description of the overall approach
here in the preamble to the rule. The
Service’s emphasis on eagle incidental
take permits for wind facilities reflects
Administration priorities for expanded
wind energy development and a desire
to minimize the impacts of that growth
on eagles; it does not reflect a belief that
wind development poses a
disproportionate risk compared to other
activities that may incidentally take
eagles, nor does it reflect any greater
availability of permits to wind
companies versus other types of
industries that may need eagle
incidental take permits.
Preconstruction Survey Standards for
Wind Energy Facilities
In the proposed rule, the Service
proposed to incorporate by reference
Appendices C and D of the ECPG as
standards for collection and analysis of
data to support eagle incidental take
permit applications for wind facilities,
and we indicated our intent to develop
similar standards for other activities in
the future. This proposal was not
supported by many commenters for a

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range of reasons, but primarily because
of a perceived lack of demonstrated
scientific credibility in the methods and
tools. However, the Service does not
agree that abandoning the concept of
standardized data collection for permits
is a tenable way forward. First, one
major objective of this rulemaking is to
expedite the permitting process, and our
experience has been that the negotiation
over and use of disparate methods for
initial data collection contribute greatly
to the time required to develop and
process a permit application. Second, as
we explain below, the Service intends to
use formal adaptive management to
improve the scientific rigor and the
performance of the impact-prediction
tools used in the eagle permitting
program. The Service’s adaptive
management process requires a
minimum level of standardization in the
initial input data where those standards
exist, and this will result in each permit
contributing to and improving the
scientific credibility of the permitting
process.
For now, the only activity for which
we have such standards is wind energy
generation. Those standards have been
through two rounds of notice and public
comment, as well as two rounds of
scientific peer review. Rather than
incorporate the relevant appendices
from the ECPG into the rule by
reference, in response to the comments
received the Service has instead decided
to include minimal pre-construction
survey standards for eagle incidental
take permits for wind facilities directly
in the rule itself. The rule language was
developed from the specific
recommendations in Appendix C of the
ECPG, and represents the minimum
level of information and the least
sophistication in sampling design that
will be acceptable for the Service to
evaluate and decide whether to issue an
eagle take permit for a wind facility.
These standards will ensure that
representative eagle exposure data are
available with which to predict eagle
fatalities consistent with the Service’s
adaptive management program. The rule
allows for deviations from the minimum
standards, but only if the applicant
consults with the Service early in the
project-development process. In most
cases both the Service and permit
applicant will benefit by using this
exception to design surveys that are
designed to accommodate variation in
eagle abundance over both space and
time.
The precision, consistency, and utility
of data from point count surveys for
eagles can be much improved by
incorporating some basic, commonsense sideboards into the survey design

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as discussed in the ECPG (Appendix C).
These include: (1) Conducting eagle
surveys and small bird surveys
separately, to avoid overlooking large
birds while searching at a much smaller
scale for small songbirds; (2) using
trained observers that are capable of
accurate bird identification and distance
estimation; (3) distributing surveys
across daylight hours (e.g., morning:
Sunrise to 1100 hours; midday: 1101–
1600 hours; evening: 1601 hours to
sunset), and by designing surveys to
more intensively cover the midday
period in areas where eagle flight is
more likely at that time of day; and (4)
conducting surveys under all weather
conditions except when visibility is less
than 800 meters (m) horizontally and
200 m vertically.
Adaptive Management and Wind Energy
Collision Risk Modeling
An overarching issue with eagle
incidental take permits is uncertainty.
For wind facilities, there is considerable
uncertainty regarding the risk of
turbines to eagles, factors associated
with that risk, and whether there are
tangible ways to reduce the risk.
Moreover, in 2009, when the Service
established the incidental eagle take
regulations, there was no scientifically
accepted approach for quantitatively
estimating the probability of eagle take
at individual wind facilities. This
quantitative probability estimation is
necessary for the Service to establish a
take limit for each permit and to ensure
that EMU take limits are not exceeded,
or if they are exceeded, that appropriate
compensatory mitigation is
accomplished. The Service has adopted
two key principles for eagle incidental
take permitting at wind facilities to
address this uncertainty: (1) Use of
formal adaptive management; and (2)
being risk-averse at the outset with
respect to estimating impacts on eagles.
The Department of the Interior has a
long history of approaching decisions in
situations fraught with uncertainty
using adaptive management (Williams
et al. 2009). Adaptive management is a
process of adaptive learning, whereby:
(1) Predictions are made regarding
anticipated effects of an activity; (2) data
regarding the outcomes of the activity
are collected; (3) the predictions are
updated to reflect the actual outcomes
of the activity; and (4) the updated
predictions are used to change the
activity, either in the future at the same
site or at other places where the same
activity is being contemplated. The
Service has described its adaptive
management framework for eagle
incidental take permits for wind energy
facilities in the ECPG (Appendix A)

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(U.S. Fish and Wildlife Service 2013),
and the overall framework is intended
to account for uncertainty in the effects
of wind facility siting, design, and
operations on eagles. More broadly than
for just wind energy, the adaptive
management process is also intended to
address uncertainty in compensatory
mitigation and the effects of take rates
on eagles. With regard to managing risk,
the survey, monitoring, and information
collection standards for eagle incidental
take permits are all designed to provide
data that allow for the quantification of
uncertainty, primarily by providing
estimates in the form of probability
distributions. This allows the Service to
explicitly describe its risk tolerance (i.e.,
being protective of eagles or protective
of interests that might take eagles) for
each aspect of the permitting process.
Together, the adaptive management and
risk management processes function as
a means for describing how the risk, in
the form of uncertainty, is shared
between the protected resource and the
regulated community.
The part of the Service’s adaptive
management process for eagle incidental
take permits that has generated the
greatest debate is the approach and
model used to predict eagle fatalities at
wind facilities. For that reason, and
because this is an excellent example of
the Service’s philosophy regarding the
application of adaptive management to
eagle permitting, we describe the fatality
prediction process here in some detail.
The Service’s baseline fatality
prediction model, also referred to as a
collision risk model (CRM), is
thoroughly described in Appendix D of
the ECPG and in New, et al. (2015). The
key points are that the CRM uses: (1) A
project-specific estimate of eagle
exposure; (2) a project-specific estimate
of the amount of hazardous area and
time that will be created by the project;
and (3) an estimate of the probability
that an exposed eagle that enters the
hazardous area will be struck and
injured or killed by a turbine blade; to
generate (4) an annual eagle fatality
estimate in the form of a probability
distribution. The model assumes a
predictable relationship between eagle
exposure, hazardous area, and the risk
of fatalities—a relationship that existing
literature, some commenters, and the
Service agree is not straightforward. The
ECPG identifies 11 general categories of
covariates (variables that help explain
variation in the parameter of interest)
that the Service believes may affect
eagle collision probability to some
degree. However, these are not presently
incorporated into the CRM because, as
pointed out by peer reviewers of the

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draft ECPG, scientific support for the
role of these factors in collision risk is
speculative and not quantifiable at this
time. Furthermore, the effects of these
factors may be varied across locations.
The CRM uses Bayesian statistics to
formally combine existing (prior) data
with project-specific data to determine
eagle exposure and collision probability
(assuming the number and size of
turbines to be built, and thus hazardous
area, are known). The Service requires
eagle incidental take permit applicants
to conduct pre-construction eagle use
surveys within the footprint of the
planned wind facility to generate
project-specific data on pre-construction
eagle exposure. These pre-construction
survey data are formally combined with
prior information on eagle exposure
nationally to generate a probability
distribution for eagle use for the specific
project area. In the case of collision
probability, however, there are no
project-specific data to combine with
the prior data until after the project has
operated for several years; thus only the
prior information is available to be used
for the initial collision probability
estimate. The Service uses prior
information on collision probability
from the only wind facilities that had
publicly available data on eagle use and
post-construction fatalities at the time
the ECPG was written in 2013. These
post-construction data came from four
facilities, did not include information
for bald eagles, and some data were
from older-style wind turbines that
might have different collision
probabilities than modern turbines.
However, these potential data
deficiencies only affect the initial eagle
fatality estimates at permitted wind
facilities. This is because the Service’s
adaptive management approach calls for
formally combining the prior
information with standardized data
collected on actual eagle fatalities after
the facility becomes operational. These
updates would occur no less frequently
than once every 5 years at each facility.
Such updates will naturally correct for
any bias in the initial ‘‘collision-priorbased’’ fatality estimate, so that the
fatality estimates over most of the life of
a wind facility will be heavily weighted
towards actual fatality data from the
site. Moreover, because the postconstruction fatality information will be
collected under standardized protocols
required by the terms and conditions of
each permit, the data can be combined
with data from other permitted wind
facilities to update and improve the
collision probability prior for the
national CRM. Thus, the Service intends
to improve the predictive accuracy of

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the CRM both at the individual project
level and nationally through
standardized use as a formal part of its
adaptive management process. We
could not achieve improved accuracy of
the CRM without standardized use of
these protocols.
Uncertainty in the project-specific
fatality estimates comes from both the
prior and project-specific data for eagle
exposure, and, initially, from the prior
information on collision probability.
The Service has made the decision to
manage the quantified uncertainty in
the CRM estimates in a manner that
reduces the risk of underestimating
eagle fatalities at wind facilities. The
Service views this as important both to
ensure the risk to eagles is not
underrated, but also to minimize the
chance that a permittee will illegally
exceed his or her authorized eagle take
limit. The median (50th quantile)
fatality rate of the CRM-generated
probability distribution is the point on
the distribution at which there is an
equal risk of under- and overestimating
eagle fatalities. The Service uses the
80th quantile of the CRM fatality
probability distribution to determine the
take limit for incidental take permits,
which shifts the risk to a 20% chance
of underestimating eagle take.
Improvements in the precision of the
CRM estimates through adaptive
management, both at the project level
and nationally, should decrease
uncertainty and thus shrink the
magnitude of the difference between the
median fatality rate and the permitted
take limit over time. For now, however,
the Service acknowledges that its
fatality estimates for wind facilities are
both higher than what is expected and
higher than what is likely to be
observed, and that this bias is
intentional.
The Service’s adaptive management
approach for the incidental eagle take
permits necessitates the collection of
standardized pre- and post-construction
data and the use of the CRM, or a model
much like it, to generate and update
fatality estimates. For this reason, in the
proposed rule the Service contemplated
codifying its current guidance regarding
data collection and fatality predictions
in the regulations. There was
considerable opposition to this among
commenters, with most opponents
citing the need to remain flexible so that
new information could be incorporated
rapidly into the permitting process. In
response to these comments, the Service
has modified its proposal for the final
rule in two substantive ways. First, the
final regulations do not incorporate by
reference Appendices C and D of the
ECPG. However, because the adaptive

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management process cannot function
credibly without standardized preconstruction site-specific eagle exposure
data, the Service has instead
incorporated minimum standards for
such data directly into the final rule,
subject to waiver under exceptional
circumstances (see above discussion on
pre-construction survey protocols for
wind energy facilities). Second, the
Service will not require permit
applicants to use the CRM to estimate
eagle fatalities for their permit
applications. Instead, project
proponents can use any credible,
scientifically peer-reviewed model to
generate eagle fatality and associated
uncertainty estimates for their permit
applications. The Service will then use
the standardized project data supplied
by the permit applicant and the
Service’s CRM to generate a predicted
number of fatalities for each incidental
eagle take permit for a wind facility, and
the 80th quantile of the CRM estimate
will be the take limit for the permit
except under exceptional circumstance.
The Service will treat any alternative
models used by the permit applicant as
candidate models whose performance
may be compared formally to that of the
CRM as part of the adaptive
management process. Any alternative
models that, over time, demonstrate
better or comparable predictive
performance to the CRM could
eventually be formally incorporated into
the adaptive management process for
estimating permit take limits.
The Service intends the adaptive
management process to eventually
provide: (1) A better understanding of,
and ability to quantify, factors
associated with eagle collision risk; (2)
a more accurate estimate of collision
probability for bald eagles, and (3) data
suitable for updating the original golden
eagle collision and exposure priors (the
exposure prior is the average eagle
exposure value based on all available
previously existing information) for the
CRM. However, to date, so few
incidental take permits have been
issued at wind facilities that no progress
has been made in these areas. In
particular, the lack of progress towards
updating the collision probability prior
has generated opposition to the entire
eagle incidental take permit adaptive
management process. Wind facility
operators and their consultants believe
the CRM with the original collision
prior (the estimated probability, based
on all available previously existing
information, that an eagle that flies into
the hazardous area around wind turbine
will collide with a blade) produces
fatality estimates that are too large, and

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in cases where compensatory mitigation
is required (e.g., for take of golden
eagles), the mitigation requirements
exceed what is necessary. This concern
is offset somewhat by the Service’s
policy that excess mitigation
accomplished in the first 5 years of a
wind project’s operations will be
credited towards future year obligations
(which, as described briefly above and
in more detail below, will be based on
CRM estimates that are adjusted after no
more than 5 years of operation to
include a site-specific collision
probability). However, this policy has
not appreciably reduced concern about
use of the CRM, as expressed by many
commenters on the proposed rule. To
address this particular concern, within
18 months the Service intends to update
the collision prior for the CRM using
publicly available data collected at wind
facilities operating without incidental
eagle take permits. The Service believes
that these types of data can be
appropriate for such an update,
provided the data and protocols under
which they were collected can be
verified and shown to be appropriate,
and that the wind facilities that make
their data available are sufficiently
representative of a cross section of wind
facilities in operation today. The Service
is already engaged in a process to
update priors and other data for
modeling eagle take and plans to revise
the CRM and Appendix D of the ECPG
through a public process. As part of this
process the Service will also consider
ways of expediting improvements in the
CRM relative to incorporating other
covariates associated with eagle risk and
a species-specific prior collision
probability for bald eagles.
As stated above, the Service intends
to maintain its policy of
disproportionately sharing risk to avoid
underestimating eagle take at individual
wind facilities. We believe this is
appropriate because the consequences
of underestimating eagle take are far
greater than the consequences of
overestimating take, and not just
because of unintended consequences on
eagle populations. Avoiding
underestimating eagle take significantly
reduces uncertainty for permittees. For
example, if eagle take at the individual
permit level was consistently
underestimated, many permittees would
exceed their permitted take limits,
necessitating permit amendments,
additional costly and unplanned afterthe-fact compensatory mitigation
actions, and possible enforcement with
associated fines. For bald eagles with
positive EMU take thresholds,
consistently underestimating take could

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lead to permitted take exceeding the
EMU take limit, which would
necessitate retroactively requiring
permittees that initially had no
compensatory mitigation requirements
to implement mitigation after the fact.
Further, if LAP take limits were
unexpectedly exceeded, NEPA
compliance for permits overlapping the
affected LAP would have to be
reviewed. Although these consequences
are most likely if there is a systematic
bias in the fatality estimates themselves,
even with an unbiased estimator, some
of these consequences could be
expected with 50% of permits if the
Service were to use the median fatality
rate as the take limit for individual
permits. In contrast, if permitted take is
set at a higher percentile of the fatality
prediction, the primary consequences
are that the permittee is likely to exceed
actual compensatory mitigation
requirements over the first 5 years of
operation (if compensatory mitigation is
required). Additionally, the Service
would likely routinely debit some take
from the EMU and LAP take limits
unnecessarily, thereby underestimating
available take when considering new
permit requests. Both of these issues are
at least partially remedied when initial
take estimates for projects are adjusted
with project-specific fatality data after
the first 5 years of operation. At that
time, permittees receive credit for any
excess compensatory mitigation they
have achieved, as described above, and
the debits from the EMU and LAP take
limits are recalibrated to reflect the
updated expectations for future take.
These actions are comparatively simple
to implement, and do not have the same
kind of far-reaching consequences as
with underestimates.
Monitoring and Mitigation
Most permittees will be required to
monitor eagle take to assess whether
and how much take occurs under the
permit. Reported take will be based on
surveying and monitoring protocols
required by the permit. For permits for
disturbance, such monitoring is likely to
consist of regular visits to the proximity
of the nest site or other important eagleuse area where disturbance is likely to
occur to observe whether eagles are
using the area.
We agree with the large number of
commenters that urged the Service to
require third-party monitoring for some
permits. As we stated in the preamble
to the proposed regulations, we were
considering that option. These final
regulations require that, for all permits
with durations longer than 5 years,
monitoring must be conducted by
qualified, independent entities report

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directly to the Service. In the case of
permits of 5-year durations or shorter,
such third-party monitoring may be
required on a case-by-case basis. We do
not believe there will be significant
additional costs imposed by the
requirement for third-party monitoring.
Most companies already rely on and pay
for consultants to conduct project
monitoring, presumably because it is
more cost-effective than supporting
those activities ‘‘in-house.’’
We expect that most long-term
permits will authorize incidental lethal
take rather than disturbance. Those
conducting monitoring for permits that
authorize eagle mortalities will be
required to search for injured and killed
eagles and to estimate total take using
methods approved by the Service.
Permittees will be required to document
and report all eagles that are found, the
methodologies employed to search for
them (including whether or not they
were detected as part of a formal survey
methodology), and the methods used to
estimate the probability of detection.
The Service defines ‘‘mitigation’’ to
sequentially include: Avoidance,
minimization, rectification, reduction
over time, and compensation for
negative impacts. Under Departmental
policy (600 DM 6), ‘‘compensatory
mitigation’’ means ‘‘to compensate for
remaining unavoidable impacts after all
appropriate and practicable avoidance
and minimization measures have been
applied, by replacing or providing
substitute resources or environments
(see 40 CFR 1508.20) through the
restoration, establishment,
enhancement, or preservation of
resources and their values, services, and
functions.’’ The 2009 eagle regulations
lack specificity with regard to when
compensatory mitigation will be
required, and the preamble discussion
of compensatory mitigation was
somewhat inconsistent. In reference to
nonpurposeful take permits, the
preamble to the 2009 regulations
contained the following language:
‘‘additional compensatory mitigation
will be required only (1) for
programmatic take and other multiple
take authorizations; (2) for disturbance
associated with the permanent loss of a
breeding territory or important
traditional communal roost site; or (3) as
necessary to offset impacts to the local
area population. Because permitted take
limits are population-based, we have
already determined before issuing each
individual take permit that the
population can withstand that level of
take. Therefore, compensatory
mitigation for one-time, individual take
permits will not typically be necessary
for the preservation of eagles’’ (74 FR

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46836, p. 46844). Regarding the § 22.27
nest take permits, we indicated in the
preamble that we would require
compensatory mitigation for all permits
except those issued for safety
emergencies (74 FR 46836, p. 46845).
The Service also addressed
compensatory mitigation in the 2009
FEA, which contained the following
language: ‘‘For most individual take
permits resulting in short-term
disturbance, the Service will not require
compensatory mitigation. The
population-based permitting the Service
will propose is based on the level of
take that a population can withstand.
Therefore, compensatory mitigation for
individual permits is not necessary for
the preservation of eagles. However, the
Service will advocate compensatory
mitigation in the cases of nest removal,
disturbance or [take resulting in
mortality] that will likely incur take
over several seasons, result in
permanent abandonment of more than a
single breeding territory, have largescale impacts, occur at multiple
locations, or otherwise contribute to
cumulative negative effects’’ (USFWS,
2009).
Because the 2009 regulations did not
incorporate specific compensatory
mitigation provisions, the Service has
required compensatory mitigation on a
case-by-case basis somewhat
inconsistently, particularly for bald
eagles, which has at times resulted in
differing treatment of, and uncertainty
for, permit applicants. Accordingly, this
rule includes standardized requirements
for compensatory mitigation. In addition
to the mitigation requirements set out in
this rule, the Service will implement
these regulations in a manner consistent
with Service, Departmental, and
Presidential mitigation policies.
These regulations require
compensatory mitigation for any permit
authorizing take that would exceed
authorized take limits. Compensatory
mitigation for this purpose must
demonstrate it offsets authorized take by
reducing another ongoing form of
mortality by an equal or greater amount
than the unavoidable mortality, or
increasing the eagle population by an
equal or greater amount.
Since 2009, take limits for golden
eagles have been set at zero throughout
the United States. Accordingly, all
permits for golden eagle take would
exceed the take limits, and so must
incorporate compensatory mitigation in
order to authorize that take. A permittee
would have to compensate for
authorized take within the same EMU
(except that we would allow for
compensatory mitigation of take of
Alaskan golden eagles throughout the

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migration and wintering range in the
interior western United States and
northern Mexico).
The best available information
indicates that ongoing levels of humancaused mortality of golden eagles likely
exceed sustainable take rates,
potentially significantly. This means
that the golden eagle population is
likely in decline and not meeting the
Service’s preservation goal of a stable or
increasing breeding population. As a
result, compensatory mitigation for any
authorized take of golden eagles that
exceeds take thresholds will be
designed to offset the authorized take at
a 1.2 to 1 mitigation ratio to further an
outcome consistent with the
preservation of golden eagles as the
result of the permit. We believe this
baseline mitigation ratio appropriately
balances meeting our obligations under
the Eagle Act with what is reasonable,
fair, and practicable to permittees.
Based on the uncertainty in the
effectiveness of a particular
compensatory mitigation practice and
other factors common to mitigation
programs, we may require further
adjustments to mitigation ratios.
To be compatible with the
preservation of eagles, take that would
compromise the persistence of local
populations of eagles may also require
compensatory mitigation. The
regulations account for this by generally
requiring compensatory mitigation for
cumulative authorized take exceeding
5% of the LAP to ensure our eagle
preservation standard is being met. An
exception would be when the EMU take
limit is not exceeded (i.e., currently the
case for bald eagles in all EMUs), the
permitted take is already occurring, and
the permit conditions would result in a
reduction of take.
We may also require compensatory
mitigation when there is an unusually
high level of unauthorized eagle
mortality in the LAP (for example, when
the Service has information indicating
that unauthorized take exceeds 10% of
the LAP). We have no data to indicate
that ongoing unauthorized take of bald
eagles is less than that of golden eagles,
and intend to apply the LAP analysis
and assessment of any known ongoing
unauthorized take to bald eagles as well
as golden eagles, as we have been doing
while the LAP analysis remains
guidance. Although exceeding 5%
permitted take of the LAP will have
significantly less dramatic effects to
local bald eagle populations because of
the improved status of bald eagles,
states, tribes, and localities have
communicated their interest in seeing
regulatory safeguards to protect local
bald eagles as well as golden eagles. In

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the near future, it is unlikely that
cumulative authorized take of local area
populations of bald eagles will exceed
5% anywhere in the country. The
Service will continue to collect data to
refine our understanding of cumulative
mortality on both eagle species and may
adjust take rates in the future. We
received comments asserting that it is
unfair for the Service to impose a greater
than one to one compensatory
mitigation ratio for golden eagle take
permits because people seeking to
comply with the regulations should not
be required to address impacts caused
by other human activities for which no
one is being held accountable. Similar
concerns were expressed regarding the
consideration of unauthorized take
within the LAP when making permitting
decisions. Additional commenters
asserted that the Service does not
adequately enforce the Eagle Act. In
response to all of those comments, we
wish to clarify that, outside of its
permitting programs, the Service is
addressing unauthorized take of bald
eagles and golden eagles through a
variety of means. The Service’s Office of
Law Enforcement expends considerable
time and resources protecting both
species. Because golden eagles in
particular are experiencing significant
amounts of human caused mortality,
they are receiving high levels of
investigative effort throughout the
western United States. These
investigations have covered the
unlawful killing and trafficking of eagles
and their parts, electrocutions of eagles
from electrical distribution
infrastructure, intentional or incidental
poisoning of eagles, eagle mortality due
to wind turbine strikes, eagle nest
destruction, and a host of other human
activities that result in eagle deaths.
Investigation and prosecution of these
crimes can be very time intensive, with
some investigations requiring many
hundreds of hours to complete.
Many of these investigations require
thorough review of historical
information on the activity causing the
mortality, investigation of the
responsible party’s efforts to avoid the
eagle deaths, and presentation of
investigative results to the Department
of Justice (DOJ) for potential
prosecution. This is often accomplished
through subpoenas, search warrants,
field inspections (often in remote areas),
evidence collection, interviews, and
report writing. For activities involving
the intentional killing and trafficking of
eagles, the investigative techniques can
also include the use of undercover
operations to gain evidence and better
document the extent of the unlawful

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activity. In short, the Service’s Office of
Law Enforcement places a high priority
on protecting bald and golden eagles,
and expends considerable effort on
education, outreach, and investigations
to fulfill this responsibility.
This final rule establishes standards
applicable to all compensatory
mitigation in accordance with
principles and standards set forth in
Service and Departmental and Executive
Branch policy. Compensatory mitigation
is to be used to offset remaining impacts
after the application of all practicable
avoidance and minimization measures.
Compensatory mitigation must be sited
within the same eagle management unit
where the permitted take will occur
unless the Service has reliable data
showing that the population affected by
the take includes individuals that are
reasonably likely to use another EMU
during part of their seasonal migration.
Compensatory mitigation must be based
on the best available science and must
use rigorous compliance and
effectiveness monitoring and evaluation
to make certain that mitigation measures
achieve their intended outcomes or that
necessary changes are implemented to
achieve them.
Compensatory mitigation must
provide benefits beyond those that
would otherwise have occurred through
routine or required practices or actions,
or obligations required through other
legal authorities or contractual
agreements. A compensatory mitigation
measure is ‘‘additional’’ when the
benefits of the measure improve upon
the baseline conditions of the impacted
eagle species in a manner that is
demonstrably new and would not have
occurred without the required
compensatory mitigation measure.
Voluntary actions taken to benefit eagles
in anticipation of and prior to issuance
of an eagle take permit may be credited
towards compensatory mitigation
requirements. Such actions must meet
all mitigation standards set forth in the
rule for compensatory mitigation.
Applicants must provide clear evidence
that the voluntary action was
undertaken to fulfill compensatory
mitigation requirements under this rule.
The Service will determine whether and
how much to credit such actions.
Potential applicants intending to take
voluntary conservation actions prior to
permit application are encouraged to
seek technical assistance from the
Service.
Compensatory mitigation must be
durable and, at a minimum, maintain its
intended purpose for as long as the
impacts of the authorized take persist.
The Service will require that
implementation assurances, including

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legal, contractual, and financial
assurances, be in place when necessary
to assure the development,
maintenance, and long-term viability of
the mitigation measure. Compensatory
mitigation must also include
mechanisms to account for and address
uncertainty and risk of failure of a
compensatory mitigation measure. This
could be in the form of greater
mitigation ratios, the establishment of
buffers or reserve accounts, or other
mechanisms.
Compensatory mitigation may include
conservation banking, in-lieu fee
programs, and other third-party
mitigation projects or arrangements. In
approving compensatory mitigation
mechanisms and actions, the Service
will ensure the application of equivalent
ecological, procedural, and
administrative standards for all
compensatory mitigation mechanisms.
The Service prefers that compensatory
mitigation is conducted prior to when
the impacts of the action occur. Where
compensatory mitigation is required, the
applicant must commit to the funding
and method that will be used prior to
or upon permit issuance. For long-term
permits, permittees will be required to
provide compensatory mitigation to
offset predicted take over each 5-year
period. If reliable reported data
demonstrate that a given permit holder/
project is causing fewer impacts to
eagles than originally permitted (e.g.,
actual take of eagles is lower than
predicted), permittees can carry forward
‘‘unused’’ compensatory mitigation
credits to the next 5-year review period.
The Service will develop guidance for
different types of compensatory
mitigation projects for eagles, for
example power pole retrofits to reduce
eagle electrocution. Guidance will
include methods and standards for
determining credits (i.e., how much of
the type of mitigation is needed to offset
one eagle), mitigation ratios based on
uncertainty, temporal loss and related
factors, durability assurance
requirements, compliance and
effectiveness monitoring requirements,
and other important implementation
considerations. When practical, we will
involve stakeholders in the
development of such guidance.
Additional Revisions
These regulations include several
minor revisions to the prioritization
criteria that govern the order in which
the Service will prioritize authorization
of take if EMU take limits are
approached. The priority after safety
emergencies for Native American take
for religious purposes that depends on
take of wild eagles (and as such cannot

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be met with eagle parts and/or feathers
from another source, such as the
National Eagle Repository) is amended
so that it applies to increased need for
take for religious purposes. Historical
tribal take for religious use requiring
take of eagles from the wild that has
been ongoing, but not authorized,
generally does not need to be prioritized
because it is part of the environmental
baseline set in the 2009 FEA. However,
increases in historical take levels would
not be part of the current baseline. We
also are removing the reference to rites
and ceremonies because traditional take
for religious and cultural purposes may
not be limited to, or properly
characterized as being part of, specific
rites and ceremonies. In addition, we
are changing the prioritization order by
removing the priority for renewal of
programmatic permits, since the
regulations would no longer contain a
separate category for programmatic
permits.
Unauthorized eagle take is prohibited
by law. The options available for
addressing future eagle take differ from
those for addressing past take. Future
take may be addressed proactively
through a nonpurposeful (incidental)
take permit issued under the Eagle Act
and the 50 CFR part 22 permit
regulations. If such a permit is sought by
an applicant and issued by the Service,
it will protect the permittee from
criminal prosecution or civil law
enforcement for any eagle take
authorized by the permit.
If enforcement action has been taken
to address past eagle take by an
applicant, then the Service will consider
any pending or completed resolution of
that enforcement when evaluating an
application and determining whether to
issue an eagle incidental take permit.
The Service will do so in order to be
consistent with the general
responsibility criteria set out in 50 CFR
part 13 for all permits (whether or not
eagle permits) issued under 50 CFR
Subchapter B. A permit can be issued
without resolving unauthorized past
eagle take; however, the applicant
continues to be subject to an
enforcement action at any time for
unpermitted prior take of eagles.
Depending on the circumstances of a
past take, the U.S. Department of Justice
or the Service’s Office of Law
Enforcement may determine that
enforcement is warranted using
appropriate enforcement authorities.
The Service will take into consideration
the nature, circumstances, extent, and
gravity of the prohibited acts committed
in the violation and with respect to the
violator the degree of culpability and
cooperation, history of noncompliance,

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levels of past take, and efforts to reduce
take. The statute of limitations for
criminal and civil enforcement actions
is five years.
These revised regulations include a
provision at § 22.26(f)(7) that requires
the Service to determine, before issuing
a permit, that issuance of the permit
will not interfere with an ongoing civil
or criminal action concerning
unpermitted past eagle take at the
project. One element of civil and
criminal cases is establishing that take
of eagles is not permitted, requiring
coordination between the Service law
enforcement and migratory bird
programs early in an investigation. Later
in the process, court judgments may
include a sentencing or probation
condition that an eagle take permit be
sought, or where settlement negotiations
have been successful, the settlement
agreement often includes a requirement
that a company apply for an eagle take
permit. Without such a determination,
issuance of a permit might in some
cases disrupt the ongoing investigation,
prosecution, or negotiation process.
To recoup the cost of processing
longer-term permits, which are
generally complex due to the need to
develop robust adaptive management
measures, we will assess a $36,000
permit application processing fee for
eagle incidental take permits of 5 years
duration or longer. This fee is the same
as the fee we currently require to
process programmatic permits. A
commercial applicant for an incidental
take permit of a duration less than 5
years will pay a $2,500 permit
application processing fee, an increase
from the current fee of $1,000 for
programmatic permits and $500 for
standard permits. The amendment fee
for those permits would increase from
$150 to $500. The proposed higher fees
for commercial entities would recover a
larger portion of the actual cost to the
Service, including technical assistance
provided to the potential applicant by
the Service prior to receiving the actual
permit application package. Commercial
entities have the opportunity to recoup
the costs of doing business by passing
those costs on to their customers. The
incidental take permit application
processing fee for homeowners and
other non-commercial entities remains
$500, and the amendment fee for those
permits is unchanged at $150.
We will assess a user fee called an
‘‘administration fee’’ every 5 years for
long-term permits to cover the cost to
the Service of conducting the 5-year
evaluation and developing any
appropriate modifications to the permit.
The proposed rule would have
implemented a $15,000 administration

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fee but, based on changes to the rule,
and upon subsequent analysis, we have
determined that an $8,000
administration fee more accurately
accounts for costs the Service is likely
to incur during a ‘‘typical’’ 5-year
permit review. We will adjust the fee
amount in future rulemakings if
experience shows that $8,000 is either
too high or too low to accurately
account for costs.
We are removing the provisions for
transfer of a programmatic permit from
a permittee to another entity that were
codified at § 22.26(i). Those provisions
were unnecessary because § 13.25(b)
already provides for transfer of § 22.26
eagle incidental take permits. The
Service is reviewing permit applications
from, and continuing to provide
technical assistance to, applicants with
complex projects who are in the process
of applying for eagle take permits. To
prevent many of them from having to
effectively restart the application
process due to these revisions to the
regulations, we are incorporating a 6month ‘‘grandfathering’’ period wherein
applicants (persons and entities who
have already submitted applications)
and project proponents who are in the
process of developing permit
applications can choose to apply (or reapply) either under all the provisions of
the 2009 regulations or all the
provisions of these final regulations.
The 2013 Duration Rule established a
definition of ‘‘low-risk’’ projects that
was subsequently vacated by a federal
district court decision (Shearwater v.
Ashe, No. 5:14–cv–02830 LHK (N.D.
Cal. Aug. 11, 2015)). After subsequent
consideration, we found this definition
to be counter-productive. In the
Duration Rule, the Service defined
‘‘low-risk’’ in a footnote to 50 CFR
13.11(d)(4) as a project or activity that
is unlikely to take an eagle over a 30year period and the applicant for a
permit for the project or activity has
provided the Service with sufficient
data obtained through Service-approved
models and/or predictive tools to verify
that the take is likely to be less than 0.03
eagles per year (or less than 1 eagle over
a 30-year period). In retrospect, that
definition would not have proved useful
because it would have covered only
those projects where take is essentially
negligible, and, therefore, the project
would likely not require a permit in the
first place. We see utility in redefining
‘‘low-risk’’ to include projects with a
slightly higher probability of taking
eagles, but which cumulatively will still
be compatible with eagle management
objectives. However, despite seeking
input from the public and considerable
staff effort, we were unable to develop

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a definition of ‘‘low-risk’’ that could be
consistently applied throughout the
United States while achieving our
desired goals for a ‘‘low-risk’’ category.
The Service considered basing the lowrisk category on (1) a flat number of
eagles predicted to be taken, (2) a
percentage of the local area population
(LAP), (3) a hybrid of those two, and (4)
the geographic and physical features of
the area where the project will be
located. Each of these approaches
produced conflicting results due to the
significant discrepancies that exist
between eagle population densities and
resilience, habitat variability, and
project scales.
Accordingly, we did not propose a
revised definition for low-risk projects
in the proposed rule. Instead, we again
sought comment on how to define ‘‘lowrisk’’ or ‘‘low-impact’’ take of eagles,
and on other approaches for authorizing
take, such as a general permit
authorization. The proposed rule stated
that while comments would be outside
the scope of this rulemaking action, we
would keep them on file for later
consideration in a future rulemaking.
Several commenters provided input on
this topic, and we will retain those
comments to help inform future
guidance or rulemaking. We intend to
continue the public process to further
develop criteria and an approach that
minimizes the costs of compliance for
the public and the demand for agency
resources for projects that will result in
no more than minimal individual and
cumulative adverse effects on eagles.
Eagle Nest Take Permits (50 CFR 22.27)
Under the 2009 eagle nest take
regulations (50 CFR 22.27), the Service
can issue permits for removal,
relocation, or destruction of eagle nests
where (1) necessary to alleviate a safety
emergency to people or eagles, (2)
necessary to ensure public health and
safety, (3) the nest prevents the use of
a human-engineered structure, or (4) the
activity or mitigation for the activity
will provide a net benefit to eagles. Only
inactive nests may be taken except in
the case of safety emergencies. Inactive
nests are defined by the continuous
absence of any adult, egg, or dependent
young at the nest for at least 10
consecutive days leading up to the time
of take.
As with § 22.26 incidental take
permits, these rule revisions eliminate
the distinction between programmatic
and standard permits for § 22.27 nest
take permits. The permit fee for removal
or destruction of a single nest will
remain at $500. For the same reasons as
described above for § 22.26 permits, a
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permit for a single nest will pay a
$2,500 permit application processing
fee, an increase from the current fee of
$500 for standard permits and $1,000
for programmatic permits. The
amendment fee for those permits will
increase from $150 to $500. For permits
to take multiple nests, the fee is $5,000
versus $1,000 for programmatic permits,
currently. For homeowners and other
non-commercial entities, the nest take
permit application processing fee and
amendment fee will not change.
These revised regulations also revise
several definitions applicable to nest
take permits to better comport with
terms used in scientific literature. Nests
that are not currently being used for
reproductive purposes are defined as
‘‘alternate nests,’’ while nests that are
being used are ‘‘in-use nests.’’ Some
commenters suggested the latter be
called ‘‘occupied nests,’’ but we believe
that term would cause confusion
because nests are in use for breeding
purposes prior to being physically
‘‘occupied’’ by nestlings or an
incubating adult. An ‘‘in-use nest’’ is
defined as ‘‘a bald or golden eagle nest
characterized by the presence of one or
more eggs, dependent young, or adult
eagles on the nest in the past 10 days
during the breeding season.’’ This
definition includes the period when
adults are displaying courtship
behaviors and are building or adding to
the nest in preparation for egg-laying.
We define ‘‘alternate nest’’ as ‘‘one of
potentially several nests within a
nesting territory that is not an in-use
nest at the current time.’’ When there is
no in-use nest, all nests in the territory
are ‘‘alternate nests.’’
We are revising the definition of
‘‘eagle nest’’ from ‘‘any readily
identifiable structure built, maintained,
or used by bald eagles or golden eagles
for the purpose of reproduction’’ to ‘‘any
assemblage of materials built,
maintained, or used by bald eagles or
golden eagles for the purpose of
reproduction.’’ The words ‘‘readily
identifiable’’ were not helpful for
clarifying when a structure was or was
not a nest since a structure might appear
to be just a pile of sticks to one person,
or an osprey nest to a second person,
but clearly an eagle nest to someone
familiar with eagle nests. The confusion
caused by the words ‘‘readily
identifiable’’ sometimes put in jeopardy
nests in the early stages of being built,
or nests that are used from year to year
but are substantially damaged during
the non-breeding season by wind or
weather.
The revised provision at
§ 22.27(a)(1)(i) enables us to issue a
permit to remove an in-use nest to

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prevent a rapidly developing safety
emergency situation, instead of waiting
until the emergency is exigent. Without
this addition, the Service has been faced
with having to wait until the fully
developed state of emergency had
arrived, and the delay has sometimes
been to the detriment of the eagles
because, while the safety emergency
developed, the breeding pair had the
opportunity to lay eggs.
The 2009 regulations provide that the
Service can issue a nest take permit for
an inactive (‘‘alternate’’) nest that is
built on a human-engineered structure
and creates a functional hazard that
renders the structure inoperable for its
intended use. We are revising this
provision to also allow for removal of an
in-use nest prior to egg-laying in order
to prevent the foreseeable functional
hazard from coming to fruition. The
revised regulatory language allows nest
removal at an earlier stage that may
provide eagles an opportunity to re-nest
elsewhere while also preventing the
nesting eagles from rendering the
human-made structure inoperable.
We are removing the requirement that
suitable nesting habitat be available in
the area nesting population to
accommodate displaced eagles for nonemergency nest take. The provision has
been problematic because, in many
healthy populations of bald eagles,
suitable nest sites are all occupied. As
part of the permit application review
process, the regulations retain
consideration of whether alternate nest
sites are available to the displaced
eagles, but an affirmative finding is not
a requirement for issuing a permit.
The Service will consider whether
other nests are available in the ‘‘nesting
territory,’’ rather than in the ‘‘area
nesting population.’’ We defined ‘‘area
nesting population’’ in 1982 as ‘‘the
number of pairs of golden eagles known
to have a resting [sic] attempt during the
preceding 12 months within a 10-mile
radius of a golden eagle nest.’’ In
addition to the typo (i.e., ‘‘resting’’
instead of ‘‘nesting’’), the definition is
problematic for bald eagles, not only
because it omits reference to bald eagles,
but also because a 10-mile radius
around a bald eagle nest has no
particular biological significance. For
both species of eagles, consideration of
whether the nesting pair may be able to
use a different nest should focus
primarily on the pair’s nesting territory.
In some cases, that determination may
require looking beyond any known
alternate nests in order to verify that
those nests are not actually part of a
different pair’s nesting territory.
However, it will not always require
surveys of the area within the 10-mile

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radius of the nest. We define ‘‘nesting
territory’’ as ‘‘the area that contains one
or more eagle nests within the home
range of a mated pair of eagles,
regardless of whether such nests were
built by the current resident pair.’’ This
definition replaces the current
definition of ‘‘territory.’’ The two
definitions are functionally similar, but
the new definition of ‘‘nesting territory’’
is more in line with terminology used in
the biological community.
Under the 2009 regulations, if a nest
containing viable eggs or nestlings must
be removed, transfer of the nestlings or
eggs to a permitted rehabilitator or
placement in a foster nest was required.
However, there are circumstances when
such placement is simply not possible;
for example, in Alaska, the closest
permitted rehabilitator may be a day’s
drive or more away. Nests with viable
eggs or nestlings can be removed only
in safety emergencies, and the
requirement for transfer of eggs and
nestlings has sometimes meant that the
Service could not legally issue a permit
necessary to alleviate the safety
emergency. To address this problem, we
are adding a provision allowing the
Service to waive the requirement if such
transfer is not feasible or humane. The
Service will determine the disposition
of the nestlings or eggs on a case-by-case
basis in that scenario.
As with the prioritization criteria in
§ 22.26, these regulations amend the
prioritization criteria for nest take
permits to remove any priority for
allocation of take to renewal of
programmatic permits since that permit
category is being removed. Also, the
prioritization for Native American
religious take is amended in the same
manner as for § 22.26 incidental take
permits (see earlier discussion).
These revised regulations adopt
mitigation standards for taking eagles
nests under § 22.27 that are similar to
those we are adopting for § 22.26. The
exception is that permits issued under
paragraph (a)(1)(iv) must apply
appropriate and practicable
compensatory mitigation measures as
specified in the permit to provide a net
benefit to eagles if the permitted activity
itself does not provide a net benefit to
eagles. Permits issued under paragraph
(a)(1)(iv) are not limited to situations
involving a safety or health issue or an
obstruction to a manmade structure;
they can be issued to take alternate
(currently called ‘‘inactive’’) nests for
any reason as long as there will be a net
benefit to eagles scaled to the effects of
the nest removal. If the activity itself has
a net benefit, compensatory mitigation
would not be required. For example, a
nest might be flooded during a riparian

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restoration project undertaken to
provide improved habitat for eagles.
Where the activity itself does not benefit
eagles, the net benefit must be through
compensatory mitigation.
Several commenters suggested we
eliminate the requirement for a ‘‘net
benefit’’ for permits issued under
paragraph (a)(1)(iv). In general, we
believe the requirement to provide a net
benefit is appropriate, particularly now
that we will promote the use of
conservation banks, in-lieu fee
programs, and other third-party
arrangements to carry out the necessary
measures to benefit eagles. These types
of programs can leverage relatively
small amounts of funding to provide
significant benefits on the ground. Also,
many nests for which permits are sought
for removal are lower quality nests, not
having been used in some time and
degraded, or some new nests in areas of
high eagle density. In those cases, the
amount of compensatory mitigation may
be relatively low. Data show that
productivity in highly saturated eagle
populations decreases due to nests
being built in less than ideal locations
in relation to food sources and/or
increased competition and fighting
among nesting pairs. In such situations,
the required net benefit would reflect
that lower biological value.
Permit Application Fees (50 CFR 13.11)
The regulations include minor
revisions to the permit application
processing fee table in 50 CFR 13.11. We
are removing the column for
Administration Fees because those fees
apply only to eagle incidental take
permits and not to any other type of
Service permit listed in the table. The
requirement for administration fees is
instead incorporated into § 22.26. The
table at § 13.11 also includes the
updated fees for incidental take permits
for commercial entities, long-term
incidental take permits, nest take
permits for commercial entities, and
nest take permits for multiple nests.
Scope of Eagle Regulations (50 CFR
22.11)
Paragraph § 22.11(c) is revised by
replacing ‘‘[Y]ou must obtain a permit
under part 21 of this subchapter for any
activity that also involves migratory
birds other than bald and golden eagles,
and a permit under part 17 of this
subchapter for any activity that also
involves threatened or endangered
species other than the bald eagle’’ with
‘‘[A] permit under this part authorizes
take, possession, and/or transport only
under the Bald and Golden Eagle
Protection Act and does not provide
authorization under the Migratory Bird

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Treaty Act (MBTA; 16 U.S.C. 703–712)
or the Endangered Species Act for the
take, possession, and/or transport of
migratory birds or endangered or
threatened species other than bald or
golden eagles.’’ The original language
was promulgated prior to the bald eagle
being removed from the ESA List of
Endangered and Threatened Wildlife as
part of a final rule authorizing transport
of eagle parts. The original intent of
§ 22.11(c), as explained in the final rule
published in the Federal Register, was
that a permit holder transporting items
that contained not only eagle parts, but
also parts of other species protected by
the Endangered Species Act or the
MBTA, into or out of the country would
need to ensure he or she possessed the
applicable permits for those protected,
non-eagle species in order to legally
transport the item (see 64 FR 50467;
Sept. 17, 1999). However, this provision
could be read to limit the Service’s
discretion to decide the appropriate
manner of authorization for activities
that affect other protected species
outside the context of transportation of
items containing eagle parts. For
example, § 22.11(c) could be read to
preclude the Service from using intraService section 7 consultation to
analyze and exempt non-jeopardizing
ESA take that may result from the
Service’s issuance of an Eagle Act
permit to a project proponent. Thus, we
are amending § 22.11(c) to ensure it
does not limit our discretion to apply
the appropriate authorization under the
ESA or the MBTA for activities that
involve other species protected by those
statutes.
Golden Eagle Nest Take Permits for
Resource Development and Recovery
(50 CFR 22.25)
The regulations include several
revisions to the regulations for permits
for take of inactive golden eagle nests
for resource development and recovery
operations. The purpose of these
revisions is to incorporate terminology
consistent with the § 22.27 eagle nest
take permit regulations. Changes to
§ 22.25 in this rulemaking are limited to
those necessary for consistency with
§ 22.27, with a few additional minor
revisions, as explained below.
A new definition, ‘‘alternate nest’’
refers to a nest that is not currently
being attended by eagles for breeding
purposes. Under the 2009 regulations,
such a nest was an ‘‘inactive nest,’’ the
definition for which is removed from
the regulations. We are also removing
references to the ‘‘area nesting
population.’’ As with § 22.27 nest take
permits (discussed above), the relevant
area of consideration is the nesting

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territory. Rather than needing to
evaluate whether there is suitable
nesting habitat available within the area
nesting population, the Service will
consider whether alternate nests are
available within the nesting territory. It
may be appropriate in some cases to
survey golden eagle nests within the 10mile radius to determine whether nests
assumed to be in the same territory as
the one being removed are not actually
in a different breeding pair’s nesting
territory. Loss of a nesting territory does
not preclude the Service from issuing a
permit, but such loss will be part of our
consideration of whether the take is
compatible with the preservation
standard and what amount of mitigation
is necessary.
We add the phrase ‘‘and monitoring’’
to paragraph (b)(4) of the § 22.25 permit
regulations. We do, as a matter of
course, require monitoring as a
condition of these permits, so the
regulation should be clear that we may
require the permittee to monitor effects
to eagles from the permitted activity and
mitigation measures. Lastly, we replace
the word ‘‘feasible’’ with ‘‘practicable’’
in reference to the mitigation that we
will require, consistent with § 22.26,
§ 22.27, and agency mitigation policy.

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Response to Public Comments
The following section contains the
substantive public comments we
received on the proposed regulation
revisions and our responses that explain
why we do or do not incorporate the
changes suggested by each commenter
into this final rule. Comments that
pertain to the biological framework and
eagle management objectives described
in the Status Report and PEIS are not
included below, and are instead
addressed in Appendix A to the final
PEIS. Also not included below are the
many comments supporting various
provisions of the rulemaking. We also
received numerous comments
recommending regulatory actions
pertaining to permits for eagle
depredation, eagle falconry, and eagle
propagation. We do not respond to those
comments here because they are outside
the scope of this rulemaking, but we
will consider them if and when we
initiate a rulemaking process for those
permit types.
Rulemaking Process
Comment: Because the proposed rule
will have cumulative effects on
endangered and threatened species that
share habitats with eagles, the Service
must engage in section 7 consultation
on the entire rule. The Service’s
assertion that the issuance of an eagle
act permit is not the ‘‘direct cause of

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habitat degradation,’’ and hence such
degradation need not be addressed as
part of the NEPA process or in section
7 consultation, is legally unsupportable.
Since the Eagle Act categorically
prohibits the ‘‘take’’ of eagles without
the Service’s permission, a Service
authorization of eagle takes that could
not otherwise lawfully occur surely is
the legal ‘‘cause’’ of not only the deaths
of eagles and other wildlife from turbine
operation, but also the associated
habitat degradation due to road and
associated infrastructure construction.
Response: Section 7 of the ESA
requires Federal agencies to consult to
‘‘insure that any action authorized,
funded, or carried out’’ by them ‘‘is not
likely to jeopardize the continued
existence of any endangered species or
threatened species or result in the
destruction or adverse modification of
[critical] habitat.’’ 16 U.S.C. 1536(a)(2).
Intra-Service consultations and
conferences consider the effects of the
Service’s actions on listed, proposed,
and candidate species. Our proposed
action of issuing regulations regarding
take of non-ESA-listed eagles does not
authorize, fund, or carry out any activity
that may affect—directly or indirectly—
any ESA-listed species or their critical
habitat. See, e.g., Sierra Club v. Bureau
of Land Mgmt., 786 F.3d 1219 (9th Cir.
2015). Indeed, the Eagle Act does not
empower us to authorize, fund or carry
out project activities by third parties.
The BGEPA empowers us to authorize
take of bald and golden eagles. Thus, we
have determined that these revisions
have no effect on any listed, proposed,
or candidate species or their critical
habitat. As a result, section 7
consultation is not required on this
proposed action. As appropriate, we
will conduct project-specific section 7
consultations in the future if our
proposed act of issuing a permit for take
of eagles may, in and of itself, affect
ESA-listed species or critical habitat.
Regarding NEPA, we have analyzed the
environmental effects of this rulemaking
and our eagle permit framework in
general in the PEIS associated with this
rulemaking.
Comment: The Service should have
extended or should re-open the public
comment period prior to finalization of
the regulations to ensure a fully vetted
and transparent process as required by
NEPA. The 60-day comment period was
unreasonably short given the
importance of the issue and the
magnitude of information provided in
the documents.
Response: NEPA does not address the
public comment periods required for
rulemaking. Whether a comment period
is long enough to allow for sufficient

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opportunity for public input is governed
by the Administrative Procedure Act
(APA; 5 U.S.C. subchapter II). However,
the APA also does not require specific
durations for public comment periods or
establish a minimum time period for
public comment; rather it provides that
‘‘the agency shall give interested
persons an opportunity to participate in
the rule making through submission of
written data, views, or arguments with
or without opportunity for oral
presentation’’ (5 U.S.C. 553(c)). For
example, in Fleming Cos. v. U.S. Dept.
of Agric., 322 F. Supp. 2d 744, 764 (E.D.
Tex. 2004), the court held that a 30-day
notice and comment period is sufficient.
We believe that 60 days was sufficient
to allow for public input by interested
parties on these regulations, and the
quantity and quality of the substantive
comments the Service received bear this
out.
Comment: Failure to meaningfully
consult with Indian tribes on issues
affecting their interests can affect the
tribes’ ability to effectively comment on
policy changes. Consultation is still
needed to provide the tribes with
particularized information about how
the rule revisions would affect them and
the eagles around their lands. Due to the
failure on the part of the Service to
consult with tribes prior to proposing
the regulations, issuance of the final
rule should be delayed until
government-to-government consultation
is conducted and the tribes have an
opportunity to comment following
consultation.
Response: In September of 2013, the
Service sent all federally recognized
tribes throughout the United States a
letter inviting them to consult with the
Service on development of these
regulations. The Service then held
meetings with all tribes that requested
such meetings. We also held a number
of regional informational webinars for
tribes. In response to tribal comments
on the proposed regulations asking for
consultation, we reached out to each
tribe that asked and met with them to
gather their input and hear their
concerns. Individual tribes will also
have an opportunity to consult on
individual permitted projects that may
affect tribal interests.
Comment: We ask that outstanding
items that the Service is unable to
address in this revision be
acknowledged with a firm commitment
by the Service to address the
problematic elements of the program
under a clearly defined schedule.
Response: There are some
‘‘outstanding items’’ that the Service is
likely to address through future
guidance and, where necessary and

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appropriate, future rulemakings. Issuing
a schedule for when most of these items
will be addressed would be an exercise
in futility for a number of reasons,
including the Service’s inability to
predict the size of its’ future budget and
work force, what the priorities under a
new Administration might be, and what
new information the Service will have
that may bear on how we would
prioritize the outstanding items to be
addressed.
Preservation Standard
Comment: The Service should adopt a
stepwise approach to analyzing
preservation under the modified
preservation standard. A stepwise
approach would first look at the LAP. If
the LAP is healthy, then a project
should be deemed to have satisfied the
preservation standard and not be
required to undertake compensatory
mitigation. If the LAP is stressed or
undeterminable, then a project could be
required to consider populations at the
EMU and/or throughout the geographic
range of the species, in that order, to
determine if and where mitigation is
required. A stepwise approach would
help ensure a rational relationship
between a project’s impacts, if any and
the required mitigation to offset for
those impacts.
Response: Eagles move over much
larger areas than LAPs, and simply
looking at the effects of a project at the
local area scale would ignore impacts to
migratory and dispersing eagles from
outside the LAP area. Moreover, it is not
feasible to collect eagle population data
at the scale of the local population
everywhere permits are sought, meaning
the kind of analysis described here
would be infeasible over much of the
United States. Finally, shifting the focus
of compensatory mitigation to the LAP
will greatly complicate and artificially
constrain implementation of mitigation
efforts. Given the current challenges
with implementing effective mitigation,
we will not further constrain options at
this time.
Comment: The Service should apply
the Eagle Act’s preservation standard to
only the national and EMU levels for
each eagle species. As long as the
national and EMU populations stay
stable or increase, which they currently
are in the absence of [programmatic]
eagle permits being issued, the Service’s
goals for eagles have been met and there
should be no need to look at a smaller
geographical area.
Response: The Service’s goals would
not be met by allowing local eagle
populations to significantly decline or
disappear. There is no reason to believe
that Congress’s intent in enacting the

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Eagle Act and including the
preservation standard was to preserve
bald eagles only in pockets of their
range. Moreover, current data, as
presented in the Status Report, indicate
that golden eagle populations at the
national and EMU levels are likely not
currently stable or increasing.
Comment: Before proceeding with a
take permit process using EMUs, the
Service should strengthen the biological
foundation of eagle demographic
organization as a basis for assessing
wind energy impacts, or take another
approach altogether.
Response: There is already an eagle
take permitting process in place that has
used both the LAP and EMU-based
analyses, as described in the final
environmental assessment conducted
for that rulemaking action and the 2013
Eagle Conservation Plan Guidance. The
proposal to shift to use of Flyways
rather than Bird Conservation Regions
(BCRs) for EMUs (background for which
is provided in the Status Report) is
based on our experience implementing
the 2009 eagle regulations. Data
collected under incidental take permits
will allow the Service and partners to
better assess the performance of the
Flyway EMUs in capturing connectivity
of eagle-use areas from a risk
management perspective, or to
determine if another configuration
would be preferable.
Comment: We are concerned that the
preservation standard will result in the
mere persistence of the two species
without accounting for demographic
sustainability. The mere presence of
birds alone may not be ecologically
sustainable unless there is a
demographic preservation standard, the
lack of which will potentially create
population sinks. It is not apparent
within the population models how the
cumulative take of eagles affects their
demographic preservation. The
definition of ‘‘persist’’ is ‘‘stable with
2009 as the baseline.’’ We think there is
room for misinterpretation of this
definition. Persistence is related to local
populations, and, thus, it may be
difficult to link persistence to the 2009
baseline, given that this baseline was
calculated at a different spatial scale
(i.e., not at the level of local
populations). We request further
assessment or a better explanation that
clarifies how this concept would apply
at local populations.
Response: The Service’s population
objective is to maintain stable or
increasing populations of both species
of eagle at the EMU-scale, while at the
same time ensuring the persistence of
local populations. It is the EMU
component of the objective that has

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been analyzed demographically and
determined to be consistent with
maintaining viable populations; we
show in the Status Report that take at
the maximum level allowed at the LAPscale will have negative effects on local
populations, though our analysis
suggests local populations should still
persist. Taken together, the two-tiered
population objective means that across
an EMU, we might well have areas
where eagle take is high and local
populations decline to lower
equilibriums, whereas elsewhere in the
EMU eagle populations are not affected
substantially by authorized take to the
same degree (or are increasing as a
result of the application of
compensatory mitigation), such that
across the whole of the EMU the
population, on average, is stable or
increasing.
Comment: The preservation standard
proposed for two species not listed
under the ESA generally exceeds federal
ESA standards. There was an
expectation that the Service would
revise the preservation standard used
for the two eagles as the standard
provides greater protection than is
required and contributes to a number of
management actions (calibrating
population estimates, estimating take,
monitoring efforts) that detract from
management needs related to numerous
other species for which there are
legitimate and often urgent conservation
concerns.
Response: The Service is charged with
upholding the Eagle Act by protecting
and conserving the two species it
covers. In the case of bald eagles, we
recognize that there are many other
species experiencing significantly
greater threats to their populations.
However, the Eagle Act requires that we
allocate resources to protect bald eagles
consistent with congressional purpose
stated in the enacting clause of the 1940
Eagle Protection Act: ‘‘by tradition and
custom during the life of this Nation,
the bald eagle is no longer a mere bird
of biological interest but a symbol of the
American ideals of freedom.’’ And, of
course, bald eagles, as well as golden
eagles, have special cultural significance
to Native American tribes.
Golden eagle populations appear to be
well below what their carrying capacity
would be were it not for high levels of
anthropogenic mortality. We
acknowledge that attempting to
maintain current numbers of golden
eagles is in part a policy choice: The
Service could have chosen any
reasonable interpretation of
Congressional intent, as long as it was
consistent with the statutory language
and the legislative history behind it. For

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example, we could have argued that the
preservation standard allows for golden
eagle populations to further decline to
some new lower level and then preserve
golden eagles at that lower population
level. We also could have argued that
recovery to a much higher population is
warranted. However, the policy choice
we made is based on what we consider,
in our best scientific judgment, to be the
most appropriate interpretation of the
preservation standard and the overall
statutory mandate to conserve and
protect both eagle species, which factors
in science, legislative history, and the
value of golden eagles culturally,
symbolically, and ecologically. We
considered all these factors in defining
‘‘preservation’’ under the Eagle Act so as
to protect the golden eagle populations
that we have. In short, we believe that
is our responsibility and our mandate.
This legislative mandate to protect
eagles under the Eagle Act is separate
and apart from our mandate to conserve,
protect, and recover species under the
Endangered Species Act. The purposes
and policy goals of both statutes overlap
to some extent, but are also different in
many ways. As such, it is not
appropriate to create parallel species
conservation, protection, and recovery
standards under each statute or to
establish an equivalent standard under
the Eagle Act that provides less
protection than the Endangered Species
Act. Instead, our regulations under each
statute protect covered species in
different ways, consistent with
legislative intent.
Comment: The proposed rule
inaccurately cites the current definition
of the preservation standard as
‘‘consistent with the goal of maintaining
stable or increasing breeding
populations’’ (81 FR 27934, May 6,
2016, p. 27937). But the 2009 rule
expressly rejected use of the word
‘‘maintaining,’’ which was in the
proposed rule, explaining that it could
be misapplied to constrain any
authorization of take because any take of
a bald or golden eagle by some degree
results in a population decrease, even if
short-term and inconsequential for the
long-term preservation of the species.
Thus, the word ‘‘maintaining’’ would
render the Service unable to authorize
any take (74 FR 46836, September 11,
2009, pp. 74 FR 46838–46839). Now, the
Service proposes to revive the very same
word it found would improperly restrict
issuance of take permits in 2009.
Response: We appreciate this
comment, which is accurate. The
wording in the 2009 regulations did not
contain the word ‘‘maintaining,’’ and we
are correcting it with reference to the
2009 regulations While we concede that

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‘‘maintaining’’ could be misinterpreted
as noted in the preamble to 2009
regulations, we have built enough of a
record by now that our intent should be
clear: That the goal is to maintain
populations over the long term. For the
definition we are codifying in this final
rule, we are retaining the word
‘‘maintaining’’ because it serves a
constructive role in relating the two
goals of the revised definition together.
Comment: The addition of the term
‘‘persistence’’ to the preservation
standard is confusing, as it adds another
layer of definitions, with the Service
stating that ‘‘persist’’ is defined as
‘‘stable with 2009 as a baseline.’’ At
worst, this seems to decrease the current
standard and at best, it adds unneeded
complexity and confusion. We
recommend that the preservation
standard keep ‘‘stable or increasing’’ as
the standard for both EMUs and LAPs,
by deleting ‘‘persistence of’’ in the
proposed definition. The revised
preservation standard would read,
‘‘consistent with the goals of
maintaining stable or increasing
breeding populations in all eagle
management units and local
populations throughout the geographic
range of both species.’’
Response: We have clarified in the
preamble discussion of the preservation
standard that we intend the 2009
baseline to apply to regional EMU
populations, but not local populations.
For one, the LAP analysis requirement
helps us ensure the persistence of local
populations, but does not measure a
fixed local population. The LAP
analysis calculates the authorized take
within the area of an activity that may
take eagles, and uses the average density
of eagles in the EMU as an estimate of
the number of eagles within a certain
distance of the project. Therefore, there
are no specific local populations that we
could track as increasing or decreasing,
even if we had the capacity to obtain
data at that fine a scale, which we do
not. Because there would be no means
of measuring whether theoretically
discrete local populations were stable,
decreasing, or increasing, we are not
adopting the commenter’s suggested
modification of the standard. Retaining
‘‘persistence’’ in the definition helps to
clarify our intent in that regard.
Comment: The inclusion of a
management goal for populations on a
more localized scale is appropriate.
However, the Service should use
consistent terms when referring to this
scale by using the term local area
population (LAP) in the preservation
standard: ‘‘. . . in all eagle management
units and persistence of LAPs

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throughout the geographic range of both
species.’’
Response: We appreciate the intent
behind this recommendation, but a
‘‘LAP’’ is not a discrete population, but
rather a calculation of the number of
eagles within the area of a given project
or activity, specifically, the number of
eagles estimated to be within the area
bounded by the natal dispersal distance
for the respective species. See our
response to the previous comment for
more explanation.
Comment: Despite extensive
discussion of management objectives in
the preamble to the proposed rule, it is
unclear how the Service intends to
establish its take ‘‘baseline,’’ from which
permissible future take in any given
EMU will be calculated. The Service
fails to provide a defensible rationale for
establishing a take baseline based on
eagle populations as they existed in
2009, or any other point in history.
Response: The approach used by the
Service to establish the baseline and
subsequent take limits is covered
extensively in the first 35 pages of the
Status Report and in the chapters of the
programmatic environmental impact
statement (PEIS) on bald and golden
eagles. Please refer to these documents.
With respect to the assertion that the
Service failed to provide a rationale for
its population objective, we disagree
and point out that the current
management objective is directly
derived from and consistent with the
determination made with the adoption
of the initial nonpurposeful take permit
regulations in 2009. We do not doubt
that continental populations of both
species were at times larger or smaller
than they are today, but that is not a
compelling reason to set a different and
likely unattainable population objective.
The Status Report indicates there is a
high probability that meeting the
objectives the Service proposed for both
species will ensure healthy populations
at the EMU level for the foreseeable
future. Moreover, the commitment to
collect and consider new population
information regularly as part of the
adaptive management process ensures
that there will be opportunities to adjust
the objectives, take rates, and take limits
on a recurring basis.
Comment: In the proposed rule, there
is no consideration of age and sex of
eagles taken under incidental take
permits, nor is there regard for the time
of year when the impacts will occur or
of the status of the population affected.
There is no consideration of carrying
capacity or of how the loss of specific
individuals might have affected other
eagles. The proposed rule largely

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ignores the context in which the
impacts of incidental take will occur.
Response: The Service agrees with
this commenter that the population
status, age, and (in some circumstances)
the sex of eagles killed matters in terms
of the scale of population impact;
however, we disagree that we have
ignored these factors in setting up the
permitting program. With regard to
spatial variation in status, the Service
examined existing demographic data for
regional differences in vital rates, and
established EMUs and population
estimates for EMUs accordingly. With
regard to other factors, how or whether
the probability of take under various
activities varies according to eagle age
and sex has not been quantified broadly
for either species of eagle. Thus, the
Service’s models assume that take under
incidental take permits will be in
proportion to the abundance of exposed
age classes and sexes. The Service has
established a policy to determine the
age and sex of eagles taken under
permits, and over time as part of the
adaptive management process, and as
this information accrues we will
evaluate whether risk is
disproportionate for any of these groups
across the various activities that
incidentally take eagles. The Eagle
Conservation Plan Guidance (ECPG; U.
S. Fish and Wildlife Service 2013)
identifies age, in particular, as a factor
the Service suspects influences collision
risk at wind facilities. The implications
of the data collected on the age and sex
of eagles taken under permits will be
considered by the Service in future
updates to the Status Report, and, if
warranted, these assessments could lead
to other changes in the permit program.
Comment: Proposed § 22.3 articulates
the preservation standard as ‘‘consistent
with the goals of maintaining stable or
increasing breeding populations in all
eagle management units and persistence
of local populations throughout the
geographic range of both [eagle]
species.’’ It is unclear what ‘‘persistence
of local populations’’ means, and the
basis for including local management in
a standard intended to manage the take
of eagles at a national level is puzzling.
At a minimum, the preservation
standard articulates a management scale
that is internally contradictory.
Response: With respect to the
relevancy of the LAP scale of eagle
management, recent data from satellite
tracking studies show that while both
bald and golden eagles range widely,
there is high philopatry (the tendency of
an organism to stay in or return to a
particular area) to natal, wintering, and
migration stopover areas. Thus, local
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eagle populations. Local populations of
eagles also are of great cultural and
social importance. The Service received
many comments from states, tribes,
local governments, and environmental
organizations in support of including
the persistence of local eagle
populations in the management
objective for eagles. The Service
disagrees that including this scale of
management is contradictory. The LAP
population size estimate is based on the
eagle densities estimates in the
surrounding region, and those density
estimates are biologically based and
derived from actual eagle count data at
the finest scale available. As to the LAP
area, it is based on the natal dispersal
distance of each eagle species, and as
such represents the most applicable area
over which the effect of an individual
incidental take permit should be
measured. The Service believes that
preservation of local eagle populations
accomplishes both important biological
and cultural objectives, and that the
EMU-scale analysis alone is not
sufficient to evaluate and account for
local and cumulative effects of an
incidental eagle take permit.
Comment: Congress intended the
Secretary to treat take authorized for
scientific and religious purposes
differently than take authorized for the
protection of wildlife or agricultural or
‘‘other’’ purposes. Specifically, while
Congress expressly conditioned the
Secretary’s ability to authorize
scientific/religious take to take that is
‘‘compatible with the preservation of the
species,’’ Congress’s subsequent text
imposes no similar condition on the
Secretary’s ability to authorize take for
the protection of wildlife, agricultural,
or ‘‘other’’ interests, except that such
take is ‘‘necessary’’ to protect the
interest at issue. Accordingly, Congress
did not intend to limit the Secretary’s
ability to issue permits for nonscientific, non-religious take only to
situations where doing so would be
‘‘compatible with the preservation of the
species.’’ This conclusion is supported
by the legislative history of the Eagle
Act, which nowhere suggests that each
take authorized for agricultural or
‘‘other’’ interests should be conditioned
on compatibility with the preservation
of the species. To the contrary, one of
the express purposes of amending the
Eagle Act in 1960 was to provide the
Secretary with the authority necessary
to issue eagle take permits to
accommodate overriding local or
commercial interests (see, e.g., Senate
Report No. 87–1986, at 85,007–008,
85,011, 85,013 (1960) (explaining
Congressional intent to carve out an

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exception from the preservation
standard where necessary to protect
important commercial interests); House
Report No. 87–1450, at 72,007, 72,010–
011 (same)). Because the Service
proposes to condition all eagle take on
the preservation standard that Congress
intended to apply only to scientific and
religious take, the proposal is
inconsistent with law and vulnerable
under the APA.
Response: The legislative history does
not support the commenter’s position.
The referenced Senate Report states that
‘‘it is expected that thus the
conservation purposes of the bill will be
preserved, while at the same time any
potential economic hardship to limited
areas can be obviated.’’ Although the
Committee was referring to the
proposed new authority to allow a state
Governor to request a depredation
control order, this language supports
interpreting the preservation standard to
apply to the whole of 16 U.S.C. 668a, or
at least to a clause other than the
religious and scientific or exhibition
purposes clause. The testimony also
refers to both religious take and control
to protect agricultural interests. In
neither context does the testimony
reference the preservation standard as
limiting that authorization, and as such
it provides no indication Congress
intended that the two exceptions be
treated differently. As noted by the
commenter, the House Report is similar.
The crux of the issue is that the
statutory language authorizes the
Secretary to permit the take of eagles for
the protection of ‘‘other interests in any
particular locality’’; it does not provide
a blanket exception to the take
prohibition or the Eagle Act’s civil or
criminal penalties for those interests.
This means the Secretary has discretion
to apply reasonable conditions to that
authorization. Thus, even if the
commenter were correct that the
preservation standard does not apply on
the face of the statute, the Secretary may
place restrictions on take necessary to
protect the species consistent with the
purposes of the statute (which
references a preservation standard in at
least some contexts).
Comment: The Service’s population
management objectives should be
focused on the continued growth of all
eagle populations in every extent of
their current and historical geographic
ranges, and any management strategy
should support this tenet or be amended
to meet that objective.
Comment: The preservation standard
should be re-phrased to make the goal
of this permitting program to increase
eagle populations. The Service should
clarify that the relatively arbitrary 2009

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baseline represents a minimum ‘‘floor’’
for population management. This floor
does not represent the Service’s
aspirational goal but rather a threshold
that will trigger additional action should
populations fall below it. To this end,
we recommend that the Service
rephrase the preservation standard
under 50 CFR 22.3 as follows:
‘‘Consistent with the goals of increasing
breeding populations, or at a minimum
maintain stable breeding populations.’’
Response: We are confident that the
management approach we are adopting
will allow bald eagle populations to
continue to grow for some time in most
EMUs. As we describe in the Status
Report, we expect bald eagle numbers to
eventually stabilize at approximately
228,000 eagles by about 2030. We
believe that maintaining current
numbers of golden eagles is a worthy
and achievable goal for the near term. It
is our hope that our management
approach may also provide for eventual,
modest growth in golden eagle
populations to better approximate what
carrying capacity would be in the
absence of high levels of human-caused
sources of mortality. The 1.2 to 1
compensatory mitigation ratio and the
reduction of unauthorized take as it
comes under the permit requirements to
avoid and minimize impacts to eagles
are the primary regulatory mechanisms
by which these regulations could
provide that outcome in the long term.
As the second commenter states, the
2009 baseline does indeed represent a
minimum ‘‘floor’’ for population
management. It is not the Service’s
aspirational goal. It is a threshold below
which our management goal for eagles
would not be met. With regard to the
specific recommendation that the
standard should read ‘‘consistent with
the goals of increasing breeding
populations, or at a minimum maintain
stable breeding populations . . . ,’’ we
do not agree that it would be good
public policy to stipulate a goal of
increasing a species’ population size
without also being specific as to why, by
how much, and where, all factors for
which the Service lacks any specific
objective criteria. The Status Report
indicates there is a high probability that
meeting the objectives the Service
proposed for both species will ensure
healthy populations at the EMU level
for the foreseeable future. As noted
above, we believe bald eagle
populations will continue to increase
despite some additional authorized take.
At present, the Service has not been
presented with evidence that suggests
stable populations of golden eagles
would not satisfy both reasonable
biological and societal needs.

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Comment: The Service proposes to
add the clause ‘‘and the persistence of
local populations, throughout the
geographic range of both species’’ to the
definition of the preservation standard.
This contradicts and undermines the
assumptions of the Service’s biological
opinions issued in support of habitat
conservation plans (HCPs) and ESA
incidental take permits that cover
golden eagles. In approving those HCPs,
the Service issued multiple biological
opinions concluding that local
populations of golden eagles were not
critical for the long-term survival of the
species.
Response: The ESA and the Eagle Act
have different conservation standards
and purposes. While the ESA has as its
bottom line that permitted take must not
more than negligibly contribute to the
extirpation of a species, the Service
interprets the Eagle Act’s preservation
standard, even prior to the amendments
to our regulations being made by this
final rule, as intended to maintain
sustainable population levels
throughout the range of each species.
We note that at the time that the HCPs
and ESA take permits covering golden
eagles were developed, the permits
conferred no authorization to take
golden eagles under the Eagle Act, but
rather included statements that the
Service would exercise its enforcement
discretion so long as the permittees
remained in compliance with the
incidental take permits’ terms and
conditions specific to eagles. Since then,
because of revisions we made to our
regulations in 2008, ESA incidental take
permits that cover eagles, if conditioned
in accordance with Eagle Act standards,
also convey take authorization under
the Eagle Act. In that regulation, we
stated the following with respect to
existing incidental take permits that
included golden eagles as a covered
species: ‘‘The statutory and regulatory
criteria for issuing those ESA
authorizations included minimization,
mitigation, or other conservation
measures that also satisfied the statutory
mandate under [the] Eagle Act that
authorized take must be compatible
with the preservation of the bald or
golden eagle.’’ 73 FR 29,075 (May 20,
2008). This means the existing ESA
golden eagle incidental take permits are
‘‘grandfathered’’ by the 2008 regulation
revision and as such are not
contradicted or undermined by these
final regulations.
Avoidance and Minimization
Comment: The proposed removal of
the ‘‘unavoidable standard’’ and
replacement with a standard of
practicability is too lenient and leaves

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unacceptable room for subjective
interpretation.
Response: The Service views the
requirement that programmatic
permittees reduce take to the point
where any take that occurs is
completely unavoidable as just as
subjective in practice as a standard
requiring reduction of take to the
maximum degree practicable. In
addition, the practicability standard is
clearer, more reasonable, and realistic.
Comment: The Service should
provide more details regarding how the
various considerations in the definition
of ‘‘practicable’’ will be accounted for,
weighted, and implemented in an
objective manner.
Response: The Service’s definition of
‘‘practicable’’ in this rule mirrors the
definition of that term in Service
mitigation policy, as well as other
federal agency mitigation policies and
regulations. The Service also intends to
implement the consideration of
practicability with regard to mitigation
measures in a manner consistent with
these mitigation policies and
regulations. The consideration of what
is practicable is complex and contextdependent and is described in more
detail in the preamble to this
rulemaking above. Further details about
how practicable considerations are
implemented may be detailed in future
guidance.
Comment: Under the proposed rule,
the Service may require additional
avoidance and minimization measures if
such measures are likely to reduce take
and are practicable for the permittee to
implement. The Service should not
impose such measures on projects
unless outlined in the permit
conditions, or if take has exceeded
anticipated levels. Instead, the Service
should include a ‘‘No Surprises’’
concept in the final rule that would
protect permittees from unforeseen
circumstances beyond a permittee’s
control.
Response: We modified the language
covering 5-year reviews for this final
rule such that additional conservation
measures to be implemented based on
the review will be limited to those
described in the adaptive management
plan for the permit, unless the take
exceeds the authorized take levels or the
permittee is otherwise out of
compliance with the permit conditions.
The final rule also includes the
following language: ‘‘However, with
consent of the permittee, the Service
may make additional changes to a
permit, including additional or
modified appropriate and practicable
avoidance and/or minimization
measures shown to be effective in

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reducing risk to eagles’’ (50 CFR
22.26(c)(7)(iv)(D)).
Comment: It is inappropriate to
consider cost in the definition of
‘‘practicable.’’ The Service has the legal
authority to require permittees who take
eagles to comply with the best available
scientifically defensible measures to
limit take regardless of cost.
Response: The previous definition of
practicable included considering cost,
as do most definitions of the term in
federal policy. If an applicant cannot
afford a mitigation measure, or if the
cost of a mitigation measure renders a
commercial project financially
infeasible, then the mitigation measure
is not capable of being done by that
applicant, and is not practicable.
However, the burden of proof is on the
applicant to demonstrate a mitigation
measure is not practicable.
Comment: The Service proposes to
revise the definition of the term
‘‘practicable.’’ However, the new
definition seems to provide ample room
for debate and interpretation with
project proponents. The Service should
define mechanisms to ensure that
projects meet this definition and that
proponents truly are avoiding take to
the greatest extent practicable.
Response: We hope to develop future
guidance to ensure a consistent,
objective approach is taken when
evaluating the practicability of
mitigation measures. In any case, the
previous definition of the term
practicable has already provided plenty
of room for debate and interpretation.
We do not expect our new definition to
change that dynamic and that was not
our intent.
Comment: The Service’s proposed
definition of practicable is inconsistent
with the Service’s obligation and
authority to permit eagle take only when
it is ‘‘compatible with the preservation
of the bald eagle or the golden eagle.’’
Response: Both standards apply. If
there are no practicable measures or
compensatory mitigation actions that a
project proponent can undertake to
ensure compatibility with the
preservation of eagles, the Service will
not issue an incidental eagle take
permit.
Comment: The Service should add
‘‘project economics and location’’ to the
definition of ‘‘practicable’’ at proposed
50 CFR 22.3 to harmonize the language
of the regulations with the intended
purpose to establish a workable
‘‘practicability’’ standard.
Response: We do not agree that the
addition of ‘‘project economics and
location’’ is appropriate. Project
economics implies that permits are
always issued for commercial activities,

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but many eagle incidental take permits
are issued to homeowners and
government agencies. The addition of
location is not appropriate because
whether a project can be sited elsewhere
may be part of the consideration of what
is practicable.
Comment: Courts have noted that the
Service’s definition of practicable
‘‘looks to whether the mitigation is
rationally related to the level of take
under the plan.’’ Key language from the
existing regulations recognized this
rational relationship requirement:
‘‘Practicable means capable of being
done after taking into consideration,
relative to the magnitude of the impacts
to eagles, the following three things: The
cost of remedy compared to proponent
resources; existing technology; and
logistics in light of overall project
purposes.’’ The Service should ensure
that this rational relationship
requirement carries over into the new
definition of practicable.
Response: We agree that the
determination of what is practicable
must include consideration of the
magnitude of the impacts of the activity
on eagles. The regulations capture this
consideration at 50 CFR 22.26(e)(5)
addressing the factors the Service must
consider in determining whether to
issue a permit, which reads: ‘‘Whether
the applicant has proposed all
avoidance and minimization measures
to reduce the take to the maximum
degree practicable relative to the
magnitude of the impacts to eagles.’’
Comment: In the final rule, the
Service should provide a more detailed
description of elements of an adaptive
management program suitable for
protection of eagles, to include: Details
on the process for development of the
plan; opportunities for regulated entities
to participate in discussions about
adding or removing mitigation
measures; mitigation measures that the
Service identifies as suitable for the
objective of reduced eagle disturbance
or mortality; and at 5-year reviews, the
process for determining which
mitigation measures will be included for
a subsequent 5-year period.
Response: The elements cited by the
commenter as needing more detailed
description (e.g., suitable mitigation
measures, the process for determining
when mitigation measures will be
applied) will vary significantly
depending on the type of activity that is
being permitted and how it affects
eagles. For example, mitigation
measures and the trigger points for
implementing them are likely to be very
different for mining operations versus
wind energy facilities. The ECPG
contains a detailed description of the

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process the Service is using for adaptive
management under incidental take
permits at wind facilities, and we refer
this commenter to that document for an
example of how adaptive management
will be implemented under permits for
wind energy facilities.
Comment: The Service has apparently
not heeded any of the elements of the
precautionary principle or the advice of
the National Research Council when
making decisions about rare or precious
resources in the face of high
uncertainty.
Response: The entire eagle incidental
take program has been built around
explicitly accounting for uncertainty
and then being clear about how that
uncertainty is addressed in decisions.
Adaptive management is a process of
adaptive learning, whereby: (1)
Predictions are made regarding
anticipated effects of an activity; (2) data
regarding the outcomes of the activity
are collected; (3) the predictions are
updated to reflect the actual outcomes
of the activity; and (4) the updated
predictions are used to change the
activity, either in the future at the same
site or at other places where the same
activity is being contemplated. The
Service has described its adaptive
management framework for eagle
incidental take permits in the ECPG
(Appendix A), and in the preamble to
this final rule. The overall framework is
intended to account for, and over time
to reduce, uncertainty in the effects of
wind facility siting, design, and
operations on eagles. More broadly than
for just wind energy, the adaptive
management process is also intended to
address uncertainty in compensatory
mitigation and the effects of established
take rates on eagles. This uncertainty is
reduced over time by using information
collect on the actual outcomes of the
activity to update the predictive models
used initially to estimate those effects;
over time, the accuracy and precision of
the predictive models is improved
through these updates. We describe how
the risk posed by uncertainty is
addressed in the response to other
comments, but we reiterate here that in
all cases the Service has adopted
approaches that are protective of eagles.
Comment: Permittees should also be
required to conduct research and
analysis to test methods to reduce lethal
take during their permit life. There
should be an expectation that all
projects will be required to reduce their
lethal takes over time.
Response: The adaptive management
framework outlined by the Service
includes a requirement that permittees
monitor eagle take and, on a case-bycase basis, other factors associated with

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that take under their permits. The
Service will use this information as part
of the adaptive management process
outlined in the ECPG to determine or
add to existing knowledge of factors
associated with eagle mortality under
different activities and to evaluate the
effectiveness of different avoidance and
minimization measures. Through
monitoring, 5-year reviews, and the
adaptive management process, our goal
is to reduce take over time.
Comment: A coordinated research
program should be instituted to develop
new and effective mitigation measures
for wind energy facilities.
Response: We agree additional
research would benefit eagle
conservation and the Service’s
permitting program. The permit
program is designed to collect relevant
data that can be used to evaluate the
effectiveness of minimization,
avoidance, and mitigation measures.
This adaptive management approach
allows for the incorporation of new
information and practices over time.
This approach is described in detail for
eagle take permits for wind facilities in
the ECPG.
Comment: The Service should retain
the requirement for applying advance
conservation measures (ACPs) to
mitigate eagle take. Experimental ACPs
are appropriate where established ACPs
are not available.
Response: The Service eliminated
ACPs from the regulations due to
confusion about the standards by which
ACPs were to be developed and what it
means to reduce take to the point where
it is unavoidable. We believe the new
language is more consistent with
Service policy and is clearer. Applicants
must still implement all practicable
avoidance and minimization strategies
for their activities, and, conditioned on
terms and conditions set in the initial
permit, testing of experimental
measures to reduce eagle take as, for
example, described for wind energy
facilities in the ECPG as part of the
adaptive management process.
Comment: Application of
minimization strategies should be on a
project-by-project basis to determine
whether the measure is practicable for
that project.
Response: All practicable avoidance
and minimization measures
demonstrated to reduce take levels will
be required. There are many
considerations in determining whether
mitigation measures are practicable for
a particular project, including the
magnitude of the impact to eagles. For
example, if a project poses a relatively
low risk of eagle take, imposing
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measures is not commensurate with the
risk, whereas this strategy may be
appropriate at a high risk site.
Duration and 5-Year Reviews
Comment: The proposed change from
5-year permits to 30-year permits has
the potential to decrease golden eagle
population numbers in the Southwest,
making it more difficult for tribes who
rely on the ceremonial and religious
take of golden eagles (as they have for
centuries), to secure their own permits
for take under the Eagle Act. Even with
the prioritization given to tribal take
permits, a tribe’s ability to engage in
longstanding religious and traditional
take of golden eagles may nevertheless
be constrained if golden eagles are so
impacted by wind energy on a local or
regional basis as to become unavailable
for this purpose.
Response: The regulations are
designed not only to protect eagles but,
in the case of golden eagles, to improve
their condition. The management
approach we are adopting through this
rulemaking is risk-averse with respect to
estimating impacts on eagles.
Population sizes, sustainable take rates,
and, for wind facility permits, eagle
fatality estimates for individual projects
are all based on scientifically peerreviewed models that are designed to
provide data that allow the Service to
explicitly select the level of risk with
respect to being more versus less
protective of eagles. For each aspect of
the management and permitting process,
we are using values for decision-making
that shift the risk in an 80:20 ratio
towards being protective of eagles.
Thus, the actual eagle population size in
each EMU and the true sustainable take
rate are both highly likely (80% likely)
to be larger than the values used by the
Service, so that when they are
multiplied together to get the take limit,
that value is even more unlikely to
exceed the actual sustainable take limit
for the EMU. Similarly, the eagle fatality
estimates for individual wind projects
are unlikely to underestimate the actual
take rates, and as a result, authorized
take over all wind projects is very
unlikely to exceed the EMU take limits.
While improvements in the precision of
all of these estimates through adaptive
management should decrease
uncertainty and thus shrink the
magnitude of the difference between the
expected fatality rate and the permitted
take limit over time, as a matter of
policy, the difference will always be in
favor of protection of eagles.
Furthermore, all golden eagle take
authorized under this permit regulation
will require compensatory mitigation at
a 1.2 to 1 ratio, meaning that for every

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five incidental takes of golden eagles,
six golden eagles will be protected that
otherwise would have been lost.
Comment: The final rule should
clarify that its increased take limits and
permit durations apply to all industries.
The Service should clarify that permits
will be issued to all applicants on an
equal basis and that the number of eagle
takes authorized and the term of the
permit will not depend on the
applicant’s industry.
Response: The increased take limits
apply equally to all industry types. The
increased permit duration also applies
to all types of entities. We will issue
permits to all applicants on an equal
basis. The number of eagle takes
authorized and the term of the permit
will depend on the specifics of the
individual project and not the
applicant’s industry.
Comment: While the short duration
may be a deterrent to industries to
applying for permits and participating
in a regulation scheme, a 600% increase
in duration is too large of a leap. The
Service should consider a 15-year initial
permit duration, with a renewal option
every 5 years. This approach balances
the need for a longer, more realistic
permitting procedure with the need to
closely regulate the potential for loss of
life and nests of these eagles, which
remain protected species.
Comment: Given the rapid changes
due to climate change in the region,
especially related to water regimens and
their impact on habitat and eagle prey
populations, it would seem prudent to
limit the maximum permit duration to
5 years in order to more rapidly respond
to changes in local eagle populations
and productivity wrought by climate
change. A more conservative, shorterduration permit than 30 years provides
opportunities for real-time
incorporation of rapidly evolving
scientific knowledge, especially
regarding population estimates, take
thresholds and caps, and evaluation of
unforeseen impacts and changes in the
population dynamics of eagles.
Comment: The rule should be clear
that permit duration will be tiered to
certainty of risk and expected impacts to
eagles, both of which remain extremely
uncertain.
Response: These final regulations
establish a maximum permit duration of
30 years. Permits valid for longer than
5 years can be of any duration between
5 years and 30 years. The Service will
consider the degree of uncertainty as to
the effects of the permitted activity, sitespecific factors, and other information
to determine appropriate durations for
individual permits.

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Comment: The 5-year reviews of longterm permits are unnecessary, especially
for projects for which the adaptive
management strategy can respond to
actual events. Every project that receives
a permit under this rule will provide
annual reports to the Service, providing
the Service the opportunity to regularly
review the specific eagle mortality,
avoidance, minimization, adaptive
management, and mitigation measures
addressed in a permit. Formal review
periods short of the permit term would
invalidate the protections and intent of
the 30-year permit.
Comment: While the 5-year review
periods are appropriate, they would not
be necessary for all projects, particularly
if a fatality prediction is low. Any indepth review should be reserved for
extreme cases where data prove
continued operation under current
permit conditions would result in
population-level impacts.
Comment: A wind project 20- to 30year eagle permit with substantive
reviews every 5 years is very difficult to
finance and operate commercially.
Opening up the eagle permit for
substantive reviews every 5 years is a
significant financial uncertainty,
burdensome to already overly
committed Service staff, and a cost for
applicants that presents a significant
disincentive to seek a permit.
Response: The 5-year review is a
reasonable and justified provision that
appropriately balances the Service’s
responsibility to ensure the preservation
of bald and golden eagles, while also
creating benefits to industries seeking
long-term permits. In response to the
comment that the reviews are
unnecessary, particularly for projects for
which the adaptive management
strategy can respond to actual events,
the 5-year review is the mechanism by
which we determine whether the
adaptive management strategy is able to
respond to actual events. Annual reports
are important, but eagle presence and
exposure to permitted activities varies
from year to year, such that it would be
imprudent (not to mention impractical)
for the Service to react annually to those
variable events.
We anticipate that the 5-year reviews
will typically benefit permittees
because, under the conservative
management approach we are taking,
the authorized take will usually be
higher than the actual take. For golden
eagles, this means that excess
compensatory mitigation can be
credited to the permittee at that point
and the excess ‘‘rolled’’ into the next 5year period. Without the 5-year review,
most long-term permittees will
contribute more compensatory

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mitigation than is needed to meet the
compensatory mitigation ratio of 1.2 to
1. The typically lower take rate will also
mean the Service can adjust the
authorized take to a lower amount for
permits for both species of eagles, and
adjust debits to the EMU and LAP take
limits appropriately. Additionally, the
5-year review may demonstrate that
some conservation measures or other
permit conditions may not be effective
or necessary, allowing the Service to
reduce or eliminate those requirements.
Even for permits with low fatality
predictions, we believe it would be
remiss not to review whether eagle take
is within the authorized level, and
whether there are elements of the
adaptive management strategy that
should be implemented. That a longterm permit with substantive reviews
every 5 years might in some cases be
‘‘very difficult to finance and operate
commercially’’ is a factor that project
proponents will need to consider when
siting projects in eagle habitat.
In response to concerns that shorterterm permits are necessary to protect
eagles from effects of climate change or
other factors that could affect eagle
populations, we agree that under the
most ideal circumstances for eagles,
owners and operators of projects in
eagle habitat could be persuaded or, if
necessary, be required to revisit and
modify any aspect of their operations to
benefit eagles. That ideal is simply not
realistic, whether the activity is
permitted under a 5-, 10-, or 30-year
permit. For good or for worse, much of
the physical infrastructure that humans
establish on the landscape is semipermanent in nature, and projects are as
unlikely to be significantly altered at the
end of a 5-year eagle take permit term
as they are at the 5-year point of a 30year permit. The situation up until the
time of this final rule being issued is
that the Service has issued only four
permits for ongoing take that may occur
over decades. We expect many more
projects to seek permits with longer
durations because the longer duration is
the single biggest change project
proponents and operators have attested
they need for this permit program to be
workable for longer-term activities.
Compared to a scenario where activities
that take eagles do so with little to no
avoidance and minimization measures
to protect eagles, and no compensatory
mitigation, we anticipate that long-term
permits with adaptive management
strategies and 5-year reviews will be
beneficial to eagle populations.
Comment: It may be justifiable for
projects that exceed the take
authorization specified in the permit to
be required to implement additional

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measures and seek a permit amendment.
However, the permit cannot be reopened for reasons unrelated to the
project or outside the permittee’s
control. These reasons may include
unanticipated detrimental changes in
the status of the local population due to
factors such as non-permitted take (e.g.,
shooting, poisoning); disease; or
shifting/declining ranges due to climate
change, fire, or other environmental
factors. The rule must be clear that
permittees would not be responsible for
implementing additional mitigation or
minimization measures due to these
circumstances. At a minimum, the rule
should establish long-term adaptive
management cost caps that can be relied
on to ensure project viability.
Comment: Given that eagle
populations can change significantly
over 30 years, the final rule should
detail an adaptive management
approach that ensures the Service
retains the ability to reduce take if eagle
populations are negatively influenced
during the life of the permit.
Comment: The final rule should
incorporate clarifying language
indicating that the Service retains the
ability to revoke a permit for continued
excessive take, and it should more
clearly define a process by which
permits may be revoked.
Response: This final rule incorporates
modified language to address the
adaptive management provisions and
the types of actions the Service may take
in 5-year reviews. Specifically, more
emphasis will be placed on building in
a robust suite of adaptive management
measures upfront in the permit. If a
permittee is in compliance with permit
terms and the authorized take under the
permit is not exceeded, no other actions
will be required. With consent of the
permittee, the Service may make
additional changes to a permit,
including additional or modified,
appropriate and practicable avoidance
and/or minimization measures that are
likely to reduce risk to eagles. If the
permittee agrees to undertake such
additional measures, appropriate
adjustments will be made in fatality
predictions, take estimates, and
compensatory mitigation.
If authorized take is exceeded, that
will generally trigger modifications by
the Service. However, whether
modifications to permit terms are
required will depend on the
circumstances. Because the Service will
set take authorizations conservatively,
we expect actual take to be lower than
what was authorized 80% of the time
and higher than what was authorized
only 20% of the time, at least during the
first 5 years, prior to predicted take

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being adjusted based on the observed
levels of take in the first 5 years.
Because 20% of permitted projects are
expected to exceed the authorized take
levels, the appropriate response when
that occurs depends on the
circumstances, including how much
actual take exceeded authorized take,
and what other factors, if any, may have
affected the take level.
Permit revocation criteria that apply
to all Service permits are found at 50
CFR 13.28. Section 13.28(a)(5) provides
that a permit may be revoked if ‘‘the
population(s) of the wildlife or plant
that is the subject of the permit declines
to the extent that continuation of the
permitted activity would be detrimental
to maintenance or recovery of the
affected population.’’ Prior to any
permit revocation under such
conditions, the Service is likely to
request that the permittee adopt
additional measures to avoid and
minimize take of eagles rather than be
subject to permit revocation.
Comment: The idea of a periodic
review of a permit for effectiveness has
merit, but is a 5-year period for the 30year permit the best timeframe? If in the
first year or two the actual documented
take significantly exceeds the predicted
take, should action not be initiated
sooner? Or, if actual take is at predicted
levels, or lower than predicted, would
that create the basis for the permit to
move to a 10-year mandatory review
period? The use of an arbitrary
timeframe versus actual impacts as the
trigger for a review raises questions.
Comment: If the final rule retains the
provision for long-term permits, they
should be evaluated at shorter intervals
than 5 years. Permits should be
automatically reviewed if the number of
take exceeds the average annual ‘‘take’’
(e.g., a 3-year permit that allots a total
take of 10 ‘‘units’’ should be reviewed
if there are more than 4 ‘‘units’’ of take
in that year).
Comment: The statement that the
Service will evaluate each long-term
permit at no more than 5-year intervals
presents ambiguity that may result in
inconsistent administration of the
program. The statement implies that the
evaluation interval could be conducted
at less than 5 years. If a definitive
timeframe cannot be established, the
final rule should describe when
evaluations would occur at less than a
5-year interval.
Response: The rationale for the 5-year
timeframe for the periodic review is as
follows. The observed level of take is
likely to vary from year to year. For
example, in the first 2 years, there may
be no take, but in the third year, perhaps
due to environmental factors, estimated

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take (based on observed levels of take
using approved protocols for
monitoring, searching, and estimating
take) is three eagles. If no take occurs in
years four and five, then take over the
5-year period totals three eagles, which
gives the Service and the permittee a
reasonable idea of what the average
level of take is likely to be. If it
happened that three eagles were taken
the first year, but none in the next 4
years, the average would be the same:
Three eagles over a 5-year period, but it
might have appeared after the first year
that annual take would be higher
because year one had a much higher
level of take than the four subsequent
years. For that reason, we are unlikely
to revisit the permit terms within the 5year period unless the level of take
exceeds anticipated and authorized take
levels for the 5-year period.
Comment: The final rule should
describe, at a minimum: (1) The
consequences to, and expectations for,
the applicant of unexpected take; (2) the
specific additional mitigation measures
that may be required; and (3) any
relevant ‘‘triggers,’’ such as when
permits will be reviewed.
Response: In general, as noted in our
response to the previous comments, the
Service will conduct permit reviews for
long-term permits every 5 years. As
noted above, if authorized take levels for
the 5-year period are exceeded, we may
need to revisit the permit terms and
conditions sooner than in year 5.
Individual permits will have different
adaptive management measures tailored
for the type of activity and site-specific
factors spelled out, including when the
permittee would need to implement
them.
Comment: The Service must adopt a
process by which the public and
concerned conservation organizations
will be routinely involved in the
‘‘internal’’ 5-year reviews if a 30-year
permit is approved. Otherwise, to
adhere to the NEPA provisions for
public involvement in the permitting
process, the Service will need to
continue with a 5-year permitting
system.
Response: There is not a requirement
under NEPA to involve the public in a
permit renewal process or a 5-year
review process unless there is a need to
supplement the associated NEPA
analysis underpinning the original
permit decision. Public involvement
would be limited to reviewing a draft
supplemental EA/EIS and would not be
part of Service’s regulatory review
procedure set out for the permit itself,
whether the action is permit renewal for
a 5-year permit or a permit evaluation
conducted every 5 years. Accordingly,

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there is no difference in public
involvement through NEPA between a
5-year review and a 5-year renewal.
Comment: The internal review
process could eliminate or significantly
curtail public and state agency
participation, input, and oversight after
the permit is initially granted. Language
should be included in the rule that
expressly allows for public/state agency
mortality and other data sharing, input,
and review at each 5-year interval.
Response: We will coordinate with
states and other government agencies
(e.g., federal and tribal) that have
regulatory oversight over the permitted
activity and which could be affected by
changes to the federal authorization,
when conducting the 5-year reviews.
Involving the public would entail public
hearings or notice and comment in the
Federal Register, greatly increasing
Service workload and costs, resulting in
delays, and generally making the 5-year
review unworkable.
Comment: The Service should notify
all affected tribes when it is conducting
a 5-year review of a permit. Upon
notice, affected tribes should be invited
to consult or provide input on the
permit, including a consideration of
whether eagle takes under the permit
necessitate permit modification.
Response: The same factors would
trigger consultation at 5-year reviews as
for the initial permit issuance, i.e.,
whether the action (permit issuance or
5-year review) may affect particular
tribes. If, at the beginning of the 5-year
review based on information supplied
by the permittee, we determine it is not
likely any changes will need to be made
to the permit, or that any required
changes are unlikely to affect particular
tribes, then consultation would not be
warranted. There may be unusual
circumstances when consultation would
be appropriate on a 5-year review for a
project when changes may affect tribal
interests, even when the activity did not
need consultation in the first place
when initially permitted.
Comment: The Service should commit
to conduct NEPA reviews at the time it
considers issuance of an eagle permit,
not at additional 5-year intervals over
the life of the permit.
Response: Some level of NEPA review
(EIS, EA, or categorical exclusion) is
always required when a federal agency
issues a permit to authorize any
otherwise-prohibited activity. We would
only need to conduct additional NEPA
analysis at the 5-year review stage if the
scope or conditions of the authorization
substantially change to the point where
supplemental NEPA analysis would be
required.

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Comment: The Service has failed to
outline how the results of its 5-year
review process will be shared with the
public at large or interested tribes or
how the review process will trigger
additional obligations to engage in
informed and meaningful tribal
consultation about the project under
existing laws and policy, including
section 106 of the National Historic
Preservation Act (NHPA).
Response: The Service will continue
to make mortality information from the
annual reports that each permittee is
required to submit under § 22.26(c)(3)
available to the public. Neither the 5year review process nor the original
permit-issuance process contains a
public-notice requirement. Public
participation in the initial permit
issuance process is currently, and will
remain, limited to any NEPA analysis
that is required to accompany permit
issuance, if appropriate (for example,
public participation would be required
for an EIS and is discretionary,
consistent with Council on
Environmental Quality (CEQ) and
Department of the Interior (DOI) NEPA
regulations, for an EA; see 40 CFR parts
1500–1508 and 43 CFR part 46,
respectively). Similarly, public
participation in the 5-year-review
process will be limited to any NEPA
compliance necessary at that time,
which would most likely take the form
of supplementation of the original
NEPA analysis accompanying permit
issuance. NHPA compliance is unlikely
to be triggered at the 5-year-review stage
unless the Service determines it is
necessary to supplement the original
permit-issuance NEPA analysis. The
Service will continue to engage and
consult with federally recognized tribes
if the 5-year-review process reveals
significant changes in the effects of the
permitted activity on eagles or leads to
any changes to the permit that may
affect those tribes.
Comment: A 5-year permit term does
not pose any unreasonable hardship to
permittees or to the Service. The
permittee has the opportunity to renew
the permit at the end of the 5-year term,
and there is no reason to believe that a
permittee who is compliant with
applicable law and the permit
conditions will be denied renewal. For
permittees whose projects are not in
compliance with their permit or
applicable law, the Service will retain
its leverage in ensuring compliance if it
has the opportunity to not renew the
permit. Once a permit is issued, a
permittee will vigorously resist any new
measures being imposed on its permit,
will argue that additional measures are
not worth the cost, and will likely

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challenge imposition of costly new
measures in court rather than complying
with them at the outset. At minimum,
the permittee will have significantly
more (and the Service less) leverage if
the Service is in the position of adding
new conditions to an existing permit as
opposed to a permit renewal context.
Response: We agree that a 5-year
permit was not ‘‘an unreasonable
hardship’’ to permittees and also that
there is no reason to believe that a
permittee who is compliant with
applicable law and the permit
conditions will be denied renewal.
However, many potential applicants had
a different perspective that appears to
have dissuaded them from obtaining
permit coverage. And, we do not agree
with the commenter that we lose
leverage under longer-term permits to
ensure compliance with permit terms.
We also do not agree that long-term
permittees are more likely to resist new
measures than permittees needing to
renew permits for ongoing operations. If
anything, long-term permittees would
be less likely to resist changes imposed
at the 5-year stage because the
additional measures will, in many cases,
already be part of the adaptive
management terms and conditions of
long-term permits.
Comment: The Service’s commitment
to engage in a 5-year review process
offers little comfort, since little can be
done to avoid any unanticipated level of
take of eagles after the facility is
developed. The Service’s assertion that
it will ‘‘always retain the ability to
suspend and/or revoke the permit’’
(presumably should it find that the
activity is not compatible with the
preservation of the eagle) is not
convincing. Practical, financial, and
political constraints will make it
virtually impossible for the Service to
live up to this assertion.
Response: The statement that ‘‘little
can be done to avoid any unanticipated
level of take of eagles after the facility
is developed’’ is not a good argument for
a 5-year permit over a permit of longer
duration. How would the Service’s
failure to renew a 5-year permit for a
long-term project have greater effect
than our ability to continue to work
with longer-term permittees to adapt
avoidance and minimization measures
and ensure appropriate compensatory
mitigation is carried out? The statement
that practical, financial, and political
constraints will make it virtually
impossible for the Service to suspend or
revoke long-term permits is purely
speculative. We acknowledge that
suspension and revocation are options
of last resort and that we would prefer,
and intend, to work with permittees to

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rectify compliance issues prior to taking
those steps. Such an approach is not
less protective of eagles.
Comment: The proposal to extend
permit terms to 30 years fails to
recognize that subsequent
administrations of federal or state
governments might pass new laws or
regulations within the next 30 years that
strengthen protections applicable to
eagles or wildlife. In such case,
permittees will likely try to resist
compliance with new protections by
arguing that they have ‘‘grandfathered’’
rights under their permits.
Response: We cannot predict future
laws or regulations that may strengthen
(or reduce) protections for bald and
golden eagles, and we do not have the
resources to monitor every new change
in laws and regulations at the state,
tribal, and local level. We will continue
to rely on our working relationships
with state, tribal, and local wildlife
agencies to coordinate management and
protection of bald and golden eagle
populations. We do not enforce or
interpret non-federal laws and will
continue to rely on state, tribal, and
local government entities to notify us of
any potential violations for projects
authorized under eagle incidental take
permits. If we receive notice of a
potential violation, we will work with
the permittee and the relevant state,
tribal, or local government entity with
authority to enforce the applicable law
or regulation to ensure the authorized
project complies with the relevant law
or regulation. This may require
modification of permit conditions.
Comment: The Service continues to
rely on the notion that the 5-year
maximum permit duration is the
‘‘primary factor’’ discouraging permit
applications, which is based on
anecdotal information. Other sciencebased factors, such as lack of mitigation
options and effective risk analysis, have
significantly precluded eagle permit
issuance.
Response: We agree that the 5-year
maximum permit duration has not been
the only factor discouraging
applications from the industrial sector.
The lack of compensatory mitigation
options has also been the subject of
criticism from industry, and we are
working with partners to develop
metrics that would allow us to be
confident that methods other than
power line retrofits can be relied on to
appropriately offset authorized take of
eagles. We are also taking steps to
establish third-party mitigation funds
and/or banks to facilitate compensatory
mitigation requirements. Some potential
applicants may be dissatisfied by the
requirement for compensatory

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mitigation for every authorized take of
a golden eagle, but that requirement is
‘‘science-based.’’ It also stems from the
statutory mandate that authorized take
be compatible with the preservation of
eagles.
Comment: During the 5-year reviews,
the Service should consider using the
‘‘evidence of absence’’ model, which is
designed to tell how likely it is that take
has not exceeded a certain number (with
a certain degree of confidence). The
model can be used to predict take and
then a check-in may occur every few
years to ensure a permittee does not go
over its take limit.
Response: The Service agrees with the
commenter that robust estimators such
as the ‘‘evidence of absence estimator’’
(Huso et al. 2015) should be used to
obtain unbiased estimates of mortality
from systematic searches for animal
remains. Such estimators should
account for the proportion of animals
killed that fall into the search area
(which should also consider the spatial
distribution of killed animal remains),
the likelihood animal remains that fall
into the search area will persist long
enough to have an opportunity to be
detected during a scheduled search, and
the probability that a searcher will
detect the remains during a search, and
should include measures of uncertainty.
However, there are a variety of robust
estimators in the literature (see KornerNievergelt et al. 2015 for discussion of
several), and the appropriate estimator
for a particular site or survey may vary
depending on details specific to the
objectives and survey design; therefore,
estimators should include the elements
discussed above and should be
considered on a case-by-case basis. The
Service uses a Bayesian model to
predict potential take of eagles at
proposed land-based wind facilities
based on information collected before a
facility is constructed and then
incorporates data from systematic
searches for eagle remains to update the
model and predictions and evaluate take
relative to what is authorized by a
permit (see the ECPG, Appendix D, for
additional details).
Comment: Rather than issuing permits
for up to 30 years, the Service should
consider automatic renewal of 5-year
permits in limited situations; for
example, if impacts are less than
expected; if eagle take has not occurred;
or if eagle minutes are less than
expected, the LAP is increasing, and
eagle populations are stable.
Response: Automatic or automated
renewal under the described
circumstances would be challenging,
since some review would always be
needed to ascertain whether these

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conditions are met. We agree that permit
renewal should be relatively
straightforward under these
circumstances and we anticipate that
being the case.
Definitions
Comment: It seems pointless to try to
make a distinction between
‘‘purposeful’’ and ‘‘incidental’’ take.
Response: While the impacts on
eagles may be the same, we disagree that
it is pointless to distinguish between
purposeful and incidental take of eagles
for the purposes of regulations.
Purposeful take is generally very limited
and different in practice than incidental
take and requires different regulations to
properly and efficiently regulate the
various activities that fall within those
categories.
Eagle Permit Fees
Comment: The proposed fee is very
high, including the proposed
administration fee for long-term
permits. High fee structures may
discourage take permit applications. To
the extent that the Service maintains
this fee structure in the final rule,
permit fees should be committed
exclusively to the processing and
administration of eagle take permits to
expedite review of applications and
permit processing.
Response: The purpose of establishing
such a fee structure is to provide
capacity to process permits. Office of
Management and Budget (OMB)
Circular No. A–25 requires federal
agencies to recoup the costs of ‘‘special
services’’ that provide benefits to
identifiable recipients. Permits are
special services that authorize recipients
to engage in activities that are otherwise
prohibited. Our ability to provide
effectively these special services is
dependent upon either general
appropriations, which are needed for
other agency functions, or on user fees.
Accordingly, the permit fees associated
with eagles permits are intended to
cover the costs the Service incurs
processing the average permit.
Nonetheless, in response to comments
on the proposed rule, these final
regulations adopt an $8,000
administration fee for long-term
permits, rather than the proposed
$15,000 fee.
Comment: For small independent
energy producers to enter the market,
permit cost should be scaled properly,
based, for example, on number of
turbines, electric output, or risk to the
local eagle population.
Response: It is not practicable for the
Service to assess and charge a unique
fee per project seeking take

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authorization. As described in the fee
section of this rule, the application fee
for long-term permits was derived from
average costs associated with processing
these complex permits. Monitoring and
mitigation costs, however, are scaled to
the project, and would be expected to be
lower for smaller-scale projects. The
Service intends to involve the public in
developing additional guidance for
projects that pose a low risk of eagle
take, which may be particularly relevant
for small projects. Finally, in response
to comments on the proposed rule, this
final regulation adopts an $8,000
administration fee for long-term
permits, rather than the proposed
$15,000 fee.
Comment: Increased fees will likely
address some of the required costs to
implement a revised program, but the
Service is already greatly understaffed.
The preferred alternative will be no
more efficient or effective, nor will wait
times for permits be improved, in the
absence of sufficient and appropriate
funding.
Response: We cannot collect fees from
the public to cover the costs of agency
functions that are covered through
funds appropriated by Congress. We can
and do assess fees to cover the costs of
special services that accrue only to
certain members of the public, such as
permit applicants and permittees.
Comment: The proposed rule is not
clear whether the fee structure changes
for non-purposeful/incidental take
(§ 22.26) and nest removal (§ 22.27)
permit applications will apply to
government entities, including
municipalities, tribes, and state and
federal agencies, or if these entities will
remain exempt.
Response: Regulations at 50 CFR
13.11(d)(3), which apply to these
permits, waive the permit application
fee for any federal, tribal, state, or local
government agency or to any individual
or institution acting on behalf of such
agency.
Comment: The application fee of $500
for a residential incidental take permit,
plus a second $500 fee for an eagle nest
take permit, seems prohibitively high
for the average homeowner.
Response: The $500 application
processing fees for the incidental take
permit and the eagle nest take permit
have been in place since 2009, and are
not changing for homeowner
applications. Also, we note that it is
very rare that anyone needs both
permits. Permits to remove nests cover
associated disturbance to the eagles, and
even the need for that is rare, since most
nest take permits are for removal of
alternate nests.

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Comment: The proposed permit fees
and other costs associated with
implementing required elements of an
eagle permit drive up costs and provide
little benefit to eagles.
Response: We disagree that these
regulations provide little benefit to
eagles. These regulations require
permittees to avoid and minimize
impacts to eagles to the maximum
extent practicable. Such measures will
greatly benefit eagles.
Fatality Prediction Model
Comment: The proposed rule implies
that survey protocols the Service has
developed for the wind industry will be
applied to all activities that may require
incidental take permits. This is
inefficient and ignores that other
protocols might be more suited to other
activities.
Response: The Service’s proposal
would only require use of industry- or
activity-specific protocols when they
exist. At this point, the only such
standards are those included in this
final rule for estimating eagle take at
wind facilities. The Service plans to
develop standards for other industries
in the future, and will seek industry
input in the development of those
protocols.
Comment: The collision risk model
(CRM) recommended by the Service for
eagle fatality estimation at wind projects
relies on a sample size that is too small
and data that are too outdated to
provide reliable predictions for either
golden or bald eagles. Research recently
published in a peer-reviewed scientific
journal provides new collision
probability rate estimates that are based
on more recent data and a larger data set
collected from modern wind facilities.
The Service should revise its model
inputs to reflect this new information.
Comment: Codifying the Service’s
CRM to estimate eagle fatalities at wind
facilities is not appropriate because the
model has changed four times since it
was introduced in 2013. Incorporation
into the regulations would inhibit
further necessary improvements.
Response: The Service has always
intended to revise the collision
probability component of the CRM
using data collected under eagle
incidental take permits at wind
facilities. However, to date, so few
incidental take permits have been
issued at wind facilities that no progress
has been made in this area. As an
alternative for the immediate future, the
Service believes that publicly available
data collected at wind facilities
operating without incidental eagle take
permits can be appropriate for such an
update, provided the data and protocols

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under which the data were collected can
be verified and shown to be appropriate,
and that the wind facilities that make
their data available constitute a
representative cross section of wind
facilities in operation today. The Service
is working with the authors of the
referenced paper to conduct an
evaluation of their data to determine if
it meets the above criteria for use in
updating the CRM. As to the CRM
having changed rapidly since it was
introduced, that is not the case. The
CRM described in Appendix D of the
ECPG is still the version being used by
the Service. The CRM has had to be
adapted on occasion to accommodate
data collected by prospective permittees
that did not follow Service guidance in
Appendix C of the ECPG, but the CRM
remains unchanged. As noted above, we
do expect model inputs to change, and
as noted in response to other comments,
over time we may incorporate other
scientifically supported covariates
(variables that are possibly predictive of
the outcome under study) associated
with eagle collision risk into the CRM.
In response to this and other comments,
the Service has decided not to
incorporate any parts of the ECPG into
the rule so that future updates can be
implemented without going through
formal rulemaking.
Comment: The rule should not restrict
monitoring and survey options for wind
projects to Service-approved ECPG
protocols. The best available science
should be applied to risk assessment
and fatality monitoring.
Response: The Service’s eagle nonpurposeful take permits program
follows DOI policy by using a formal
adaptive management framework to
quantify and reduce scientific
uncertainty. A major area of uncertainty
is the mortality risk posed to eagles by
individual wind facilities. When the
Service created the non-purposeful take
rule in 2009, there was no scientifically
accepted way to estimate such risk.
However, the Service must authorize a
specific eagle take limit for each permit
in order to ensure cumulative take from
all permitted projects does not exceed
regional take limits, or that appropriate
compensatory mitigation is carried out
if the take limits are exceeded. Service
and U. S. Geological Survey scientists
developed the CRM to estimate eagle
fatalities at individual wind facilities
using adaptive management; this
approach necessitates the collection of
standardized pre- and post-construction
data and the use of the CRM, or a model
much like it, to generate and update
fatality estimates. For this reason, in the
proposed rule, the Service contemplated
codifying its current guidance regarding

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data collection and fatality predictions
in the regulations. As this comment
reflects, there was considerable
opposition to this among commenters.
In response, the Service has modified its
proposal for this final rule by omitting
the proposal to codify parts of the ECPG
in the regulations. However, the
adaptive management process cannot
function credibly without standardized
pre-construction site-specific eagle
exposure data, so the Service has
instead incorporated minimum
standards for such data for incidental
take permits at wind facilities directly
into this final rule, subject to waiver
under exceptional circumstances. The
Service also will not require permit
applicants to use the CRM to estimate
eagle fatalities for their permit
applications; permit applicants can use
any credible, scientifically peerreviewed model to generate eagle
fatality and associated uncertainty
estimates for their applications.
However, the Service will use the CRM
and applicant-provided data to predict
fatalities for each incidental eagle take
permit for a wind facility. The Service
will treat any alternative models used
by the permit applicant as candidate
models whose performance may be
compared formally to that of the CRM
as part of the adaptive management
process.
Comment: The Service’s CRM is
flawed and should not be required for
use to estimate fatalities at wind
facilities.
Response: The Service’s CRM was
designed as an integral part of the
adaptive management process, with
model complexity and performance
improving over time with use and
formal updating. The CRM uses a
Bayesian framework that allows for the
formal combination of existing (prior)
data with project-specific data for eagle
exposure and collision probability. The
Service requires eagle incidental take
permit applicants to conduct preconstruction eagle-use surveys within
the footprint of the planned wind
facility to generate project-specific data
on pre-construction eagle exposure. In
the case of collision probability,
however, there are no project-specific
data to combine with the prior data
until after the project has operated for
several years. The Service uses prior
information on collision probability
from the only wind facilities that had
publicly available data on eagle use and
post-construction fatalities in 2013;
these data came from four facilities; did
not include information for bald eagles;
and, for some, were from older-style
wind turbines that might have different
collision probabilities than modern

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turbines. However, these deficiencies
only affect the initial eagle fatality
estimates at permitted wind facilities.
The adaptive management approach
calls for formally combining the prior
information with standardized data
collected on actual eagle fatalities after
each facility becomes operational. These
updates would occur no less frequently
than once every 5 years at each facility.
Such updates will naturally correct for
any bias in the initial ‘‘collision-priorbased’’ fatality estimate, so that the
fatality estimates over most of the life of
a wind facility will be heavily weighted
towards actual fatality data from the
site. Moreover, the post-construction
fatality information can be combined
with data from other permitted wind
facilities to update and improve the
collision probability prior for the
national CRM. Thus, the Service intends
to improve the predictive accuracy of
the CRM both at the individual project
level and nationally through
standardized use as a formal part of its
adaptive management process.
Comment: Eagle use, the main
predictor variable in the CRM, is a poor
predictor of eagle fatality risk. Use rates
certainly failed to predict the golden
eagle fatality rate at several wind
facilities in Wyoming. Other factors
besides eagle use are more important in
determining eagle collision risk.
Comment: The Service’s current CRM
assumes that modern wind turbines
have the same risk profile as wind
turbines installed many decades ago
despite evidence to the contrary.
Response: The Service disagrees that
use rates cannot be used to predict eagle
fatality risk. For example, the Service
has demonstrated that use rates actually
performed very well as predictors of
golden eagle fatality risk at the same
Wyoming wind facilities referenced in
this comment. In fact, those facilities
were used to demonstrate the
effectiveness of the Service’s CRM and
adaptive management updating process
for a scientific peer-reviewed journal
article (New et al. 2015). However, the
Service agrees that other factors besides
eagle use likely affect collision risk. The
ECPG identifies 11 general categories of
covariates that we believe may affect
eagle collision probability to some
degree, including three that relate to
turbine design. However, these are not
presently incorporated into the CRM
because, as pointed out by peer
reviewers of the draft ECPG, scientific
support for the role of these factors in
collision risk is speculative and not
quantifiable at this time. Furthermore,
the effects of these factors may vary
across locations. The Service believes
that over time, though application of the

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adaptive management process, scientific
support will accrue for inclusion of
some of these covariates in the CRM.
Comment: Our Project Eagle
Conservation Plan uses the Service’s
CRM estimated eagle take of one eagle
per year. However, no eagle carcasses
have been found in 31⁄2 years of
professional biologists monitoring.
Response: The fact that no eagle
mortalities have been discovered does
not mean that no eagles have been
killed. Detection rates for eagle
carcasses on surveys are less than
perfect, and scavengers can remove
carcasses before they are detected. The
Service relies on estimates that account
for these factors that affect detection
probability to estimate the actual eagle
fatality rate. Also, as discussed in other
responses, under the adaptive
management framework, estimates of
the numbers of eagles killed that
account for search effort, detection, and
scavenging based on the monitoring
data would be used to update the CRM
for the project and improve future
predictions of fatalities based on site
specific data.
Comment: The Service’s CRM vastly
overestimates golden eagle mortality on
the wind projects we have analyzed.
Response: The Service has made the
explicit decision to manage the
quantified uncertainty in the CRM
estimates in a manner that reduces the
risk of underestimating eagle fatalities at
wind facilities. The median (50th
quantile) fatality rate estimate is the
point at which there is an equal risk of
underestimating and overestimating
eagle fatalities. The Service uses the
80th quantile of the CRM estimate as the
take limit for incidental take permits,
which shifts the risk in an 80:20 ratio
away from underestimating eagle take.
The Service believes this is appropriate
because the consequences of
underestimating eagle take are far
greater than the consequences of
overestimating take, and not just
because of unintended consequences on
eagle populations. For example, if eagle
take at the individual permit level was
consistently underestimated, many
permittees would exceed their
permitted take limits, necessitating
permit amendments, additional costly
and unplanned after-the-fact
compensatory mitigation actions, and
possible enforcement action with
associated fines. For bald eagles with
positive EMU take thresholds,
consistently underestimating take could
lead to permitted take exceeding the
EMU take limit, which would
necessitate retroactively requiring
permittees that initially had no
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to implement mitigation after the fact.
Finally, if LAP take limits were
unexpectedly exceeded, NEPA
compliance for permits overlapping the
affected LAP would have to be
reviewed, possibly resulting in the need
to develop supplemental NEPA
documents or new EAs or EISs for
operating wind projects. Although these
consequences are most likely if there is
a systematic bias in the fatality
estimates themselves, even with an
unbiased estimator some of these
consequences could be expected with
50% of permits if the Service were to
use the median fatality rate as the take
limit for individual permits. In contrast,
if permitted take is set at a higher
percentile of the fatality prediction, the
primary consequences are that the
permittee is likely to exceed actual
compensatory mitigation requirements
over the first 5 years of operation (if
compensatory mitigation is required).
Additionally, the Service would likely
routinely debit some take from the EMU
and LAP take limits unnecessarily,
thereby underestimating available take
when considering new permit requests.
Both of these issues are at least partially
remedied when initial take estimates for
projects are adjusted with projectspecific fatality data after the first 5
years of operation.
Comment: The Service should adopt
an approach that only requires
mitigation for actual, not predicted,
eagle take under permits. Otherwise,
permittees unfairly have to
overcompensate for the true effect of
their projects.
Response: The Service must authorize
a specific eagle take limit for each
permit in order to ensure cumulative
take from all permitted projects does not
exceed regional take limits, or that
appropriate compensatory mitigation is
carried out if take limits are exceeded.
As discussed in the previous response,
the Service purposefully uses an
estimator for wind projects that is
unlikely to underestimate take to avoid
the severe negative consequences that
brings. However, over-mitigation can be
confirmed and rectified when the initial
take estimates for projects are adjusted
with project-specific fatality data after
the first 5 years of operation. At that
time, permittees receive credit for any
excess compensatory mitigation they
have achieved, and those credits can be
carried forward to offset future eagle
take for that project.
Comment: The Service’s CRM
predicts unrealistically high rates of
bald eagle fatalities at wind projects
given the low number that have actually
been reported. The Service needs to
develop and use a separate fatality

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prediction model for bald eagles based
on new species-specific data collected
per the recommendations in the ECPG.
Comment: The Service recently
released a draft Midwest Wind MultiSpecies Habitat Conservation Plan
(HCP) for public comment. The draft
HCP uses a version of the CRM to
predict bald eagle impacts based on
actual bald eagle data at wind energy
facilities rather than solely relying on
data from golden eagles and applying
those data to bald eagles. The result is
substantially different than the use of
the Bayesian model based on golden
eagle data and presents an assessment of
bald eagle take that is both more
realistic and more scientific than the
proposed method. The Service should
similarly here use data that are known
to be specifically applicable to bald
eagles. To that end, there are a number
of ongoing studies and/or recently
completed studies that could be used to
provide a much better assessment of
bald eagle risk and wind farms once
they are made public.
Response: We are aware of arguments
that the CRM predicts unreasonably
high rates of bald eagle fatalities at wind
facilities; however, we have not
received and had the opportunity to
carefully review data that are publicly
available that actually confirms this.
The Service does not disagree that bald
eagles may prove to be less at risk from
blade-strike mortality than golden
eagles, but there are plausible reasons to
expect that bald eagle fatality rates may
be more variable than those for golden
eagles, and under some conditions bald
eagle collision probabilities may
actually be higher. The reasons are: (1)
Bald eagles congregate in larger
numbers than golden eagles, and while
in those concentrations they engage in
social behaviors that may increase their
risk to blade strikes at a project sited in
such an area; (2) in some of the areas
where bald eagles congregate, there are
multiple fatalities each year of bald
eagles that fly into static power
distribution lines and vehicles,
suggesting that as a species they do not
possess a superior ability to avoid
collisions; and (3) a thorough study in
Norway documented a substantial
population-level negative effect of a
wind facility there on a population of
the closely related white-tailed eagle as
a result of blade-strike mortality
(Nygaard 2010). Also, as noted in
response to other comments, possible
overestimates of risk are likely to be a
problem only for the first 5 years of
operation, as the initial fatality
estimates for permits at wind facilities
are intended to be updated with projectspecific, post-construction fatality data

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within that time. As noted in response
to other comments that expressed
frustration with perceived frequent
updating of the Service’s CRM, this is an
area of active research and investigation,
and changes are to be expected as new
information becomes available. The
Service will make every effort, using the
tools at its disposal, to disseminate
information on changes or updates to
the CRM when they occur.
Comment: A process should be
developed by which data and reports
associated with pre- and postconstruction surveys can be made
readily available and the prior
distributions can be updated in a
streamlined manner for real time
application to inform management
decisions.
Response: The proposed and this final
rule state that monitoring reports
required under incidental eagle take
permits will be available for public
inspection. The Service will use the
data to perform formal Bayesian updates
of the CRM and to generate updated
fatality predictions for each individual
project at no less than 5-year intervals,
and we will update the prior data for
collision probability and eagle exposure
in the national model a regular interval,
dependent on the amount of new data
that is available.
Comment: Eagle mortality related to
electric transmission and distribution is
vastly different than other forms of eagle
mortality. These utility systems are
complex, are located in varied
landscapes, and can extend hundreds of
thousands of miles. Bald and golden
eagles interact with transmission and
distribution facilities in different ways.
Performing surveys across the country
and by utility would be challenging and
would provide varied results that may
not be meaningful to the Service or the
utility. Utilities have provided eagle and
migratory bird mortality data to the
Service for over a decade. Additional
monitoring and mortality data seem
redundant and problematic when this
information has already been provided
to the Service. The resources required
for monitoring efforts could be better
utilized by retrofitting high-risk poles.
Response: In general, the Service
agrees with this comment and will take
these factors into consideration when
developing pre-permitting data
standards and permit terms and
conditions for monitoring incidental
take of eagles at electric transmission
and distribution facilities and
structures.
Comment: While permittee
monitoring of the permitted activity is
reasonable, the regulations should not

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place a burden on permittees to monitor
‘‘unpermitted take.’’
Response: The regulations do not ask
permittees to monitor unpermitted take
(except for take caused by the permitted
activity that exceeds the take
authorization). The Service compiles
such information and uses the data in
its LAP assessment, but this assessment
does not require any information on
unpermitted take be provided by the
applicant.
Comment: The Service does not
provide sufficient evidence that
monitoring is an effective use of
resources that actually confers
conservation benefits to eagles. The high
cost of monitoring is especially
concerning given that the Service has
not indicated that such a burden would
actually further the purposes of the
permit. Overly burdensome monitoring
requirements discourage permit
applications.
Response: Monitoring is among the
most important and essential elements
of the Service’s eagle permitting
program. The Service has acknowledged
in these responses to comments and
elsewhere (e.g., the ECPG, the proposed
rule, and the PEIS) that considerable
uncertainty exists in all aspects of the
eagle permitting program, particularly
with respect to the accuracy of models
used to predict the effects of actions like
the operation of wind turbines on
eagles. The Service has followed DOI
policy and designed the eagle
permitting program within a formal
adaptive management framework, as
described in response to other
comments, in the preamble to this final
rule, and in detail in Appendix A of the
ECPG. Monitoring is an essential and
fundamental element of adaptive
management; it is absolutely necessary
to reduce uncertainty and improve
confidence in the permitting process; it
is also essential to account for and
provide credit to permittees who overmitigate for their eagle take in the initial
years of wind project operation. We will
continue to require monitoring as a
condition of all incidental take permits
for which uncertainty exists to fulfill the
Service’s adaptive management
objectives and to ensure take of eagles
is within the terms and conditions of
the permit.
Comment: Based on a review of data
collected for pre-construction eagle use
surveys, little in the way of
standardization actually exists among
the use rate data that the proposed rule
characterizes as the products of a
standard protocol.
Response: We agree with this
commenter that the ECPG, as nonbinding guidance, has not resulted in

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the level of standardization that we had
hoped. For that reason, we proposed
incorporating key elements of the ECPG
into the final rule by reference. Based on
comments we received on the proposal,
we have decided to instead include key
language directly in this rule on preconstruction survey procedures and
resulting data that will be required for
eagle incidental take permit
applications at wind facilities, and
general guidance for other activities. We
have not included similar requirements
in the rule regarding post-construction
fatality monitoring because these survey
protocols are incorporated as binding
terms and conditions of the incidental
take permits. We added language to the
preamble of this rule that explains why
we believe this action will improve
standardization of data collection.
Comment: The Service must not rely
on any for-profit industry to monitor
itself. Data obtained by third party
monitors should be provided directly to
the Service before or at the same time
it is provided to project operators.
Comment: To the extent there are
even benefits to using third-party
monitors, there are considerable costs to
using them. Without a showing or
evidence that observation and/or the
reporting has been biased, it is
unreasonably burdensome, arbitrary,
and capricious to impose such costs.
Response: We agree with the large
number of entities that urged the
Service to require third-party
monitoring for some permits. The final
regulations require that for all permits
with durations longer than 5 years,
monitoring must be conducted by
qualified, independent entities that
report directly to the Service. In the case
of permits of 5-year durations or shorter,
such third-party monitoring may be
required on a case-by-case basis. With
regard to the second comment, we do
not agree that there will be significant
additional costs imposed by the
requirement for third-party monitoring.
Most companies already rely on and pay
for consultants to conduct project
monitoring, presumably because it is
more cost-effective than supporting
those activities ‘‘in-house.’’
Comment: The Service should not
codify any parts of the ECPG as that
document needs to be a living
document. To the extent that the Service
does codify parts of the ECPG, at a
minimum the entire document should
be subject to further notice and
comment.
Comment: The Service should
provide a list of required data and
estimates it needs to process an eagle
incidental take permit request, rather
than the methods by which the data

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must be obtained. The feedback loops
between data collection and analysis
that the Service notes as rationale for
requiring standardized methods are not
dependent on collection methods, only
on data types.
Response: In response to these and
other comments, the Service has
withdrawn the proposal to codify
Appendices C and D of the ECPG.
However, the adaptive management
process underpinning the entire eagle
incidental take permit program
absolutely requires standardized preconstruction, site-specific eagle
exposure data. The second comment
that the means by which the data are
obtained do not matter for the adaptive
management process is simply
incorrect. Instead, the Service has
incorporated minimum standards for
such data for incidental take permits at
wind facilities directly into this final
rule, subject to waiver under
exceptional circumstances. We also
disagree with the suggestion that
requiring these data standards
necessitates additional notice and
public comment. The rule language is
restricted to key elements of Appendix
C of the ECPG, which has gone through
and been modified as a result of two
rounds of public notice and comment,
and the survey data requirements have
been through two rounds of scientific
peer review. These survey requirements
should not be overly burdensome or
unexpected because they were
substantially modified after the first
round of public comments on the ECPG
to be largely compliant with the wind
industry’s existing voluntary standards
for pre-construction eagle surveys.
Moreover, these standards represent the
minimum that the Service has specified
as necessary to support an eagle
incidental take permit application since
2013 (per the ECPG).
Comment: All wind farms should be
outfitted with remote video cameras on
wind turbines that can be viewed at all
times by the public to aid enforcement
of wildlife mortalities.
Response: The Service is unaware of
data that show that video cameras on
wind turbines are an effective means for
obtaining unbiased estimates of eagle
fatality rates. We firmly support the
exploration and development of such
technology, however, and these
regulations are flexible enough to allow
for their incorporation into postconstruction monitoring protocols when
warranted.
Local Area Populations
Comment: In general the use of an
LAP analysis to try to ensure no impact
on local populations has merit but how

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are LAPs determined? Please provide a
greater explanation with examples so
there can be greater clarity in
understanding the implications of the
proposed rule and just how the more
restrictive implications of the LAP
analysis will provide protection to key
areas.
Response: The LAP is determined by
extrapolating the average density of
eagles in the pertinent EMU to the LAP
area, which is the project area plus an
86-mile (bald eagle) or 104-mile (golden
eagle) buffer; these distances are based
on natal dispersal distances of each
eagle species. As an example, consider
a one-year golden eagle nest disturbance
permit application in western Colorado,
which is in Bird Conservation Region
(BCR) 6 under the current 2009 EMUs.
The activity being undertaken could
lead to the loss of one-year’s
productivity, which has an expected
value of 0.59 golden eagles removed
from the population (the average oneyear productivity of an occupied golden
eagle territory in BCR 16 at the 80th
quantile, as described in the Status
Report). This EMU has an estimated
golden eagle population size of 3,585 at
the 20th quantile, and the BCR covers
199,523 square miles, yielding an
average golden eagle density of 0.018
golden eagles per square mile. The local
area around a single point (the nest to
be disturbed in this case) is a circle with
a radius of 109 miles, which yields an
LAP area of 37,330 square miles, thus
the estimated number of golden eagles
in this LAP would be 671 individuals.
The 5% LAP take limit for this permit
under the current 2009 EMUs would be
34. The Service has developed a
Geographic Information System (GIS)
application that queries spatial
databases on existing eagle take permit
limits and known unpermitted take
within the LAP area, as well as for any
other permitted projects whose LAP
intersects and overlaps the LAP of the
permit under consideration. If this
query indicates existing cumulative
permitted (i.e., over all existing permits)
take for the LAP area is less than 34, and
the unpermitted take database and other
information available to the Service
does not suggest background take in the
LAP is higher than average, a permit for
the take of 0.59 golden eagles could be
issued without further analysis of the
effects on eagles by tiering off this PEIS.
If either condition were not true, the
permit would require additional NEPA
analysis. In either case, if the permit is
issued, it would require compensatory
mitigation to offset the authorized take,
because the EMU take limit for golden
eagles is zero.

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Comment: Given the nature of the
golden eagle population in the western
United States, identification of local
populations with meaningful
demographics is very difficult, primarily
due to emigration and immigration.
Accordingly, the Service should focus
on achieving only a stable or increasing
EMU population.
Comment: As long as national and
EMU eagle populations stay stable or
increase, the Service’s goals for eagles
have been met. The LAP analysis is
unnecessary and burdensome, and has
no biological value.
Response: The Service disagrees.
Biologically, recent data from satellite
tracking studies show that while both
bald and golden eagles range widely,
there is high philopatry to natal,
wintering, and migration stopover areas.
Thus, local impacts can have farreaching effects on eagle populations.
Local populations of eagles also are of
great cultural and social importance.
The Service received many comments
from states, tribes, local governments,
and environmental organizations to this
effect, and in support of including the
persistence of local eagle populations in
the management objective for eagles.
Thus, the Service concludes that
preservation of local eagle populations
accomplishes both important biological
and cultural objectives.
Comment: Assuming uniform density
in the LAP analysis leads to greater
relative protection of areas with higher
than average eagle density within an
EMU, and less relative protection in
areas of lower density. The Service
should account for variation in density,
as well as improved knowledge of
seasonal changes in eagle density and
population-specific movement patterns.
Comment: We recommend that the
Service’s analysis includes more precise
bald eagle LAP data where available.
This would ensure that permitting
decisions are well-aligned with the
proposed preservation standard, and
would be consistent with the Service’s
commitment to use the best available
information and practice the best
science.
Response: The Service agrees with
these comments in principle. The
Service acknowledges two limitations in
using the LAP method to regulate
incidental take. First, eagle density
estimates are derived from nesting or
late-summer population surveys;
therefore, estimates do not account for
seasonal influxes of eagles that occur
through migration and dispersal.
Second, eagle density estimates are not
uniform across the EMU. Current LAP
take thresholds allow the Service to
authorize limited take of eagles while

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favoring eagle conservation in the face
of the uncertainty. Given better
information on resource selection,
seasonal variation in density, and an
improved understanding of seasonal
changes in eagle density and
population-specific movement patterns,
the Service will refine the LAP analysis
to better assess potential impacts of
projects. We do not believe it would be
appropriate to make such adjustments
piecemeal or on a case-by-case basis,
because LAP areas extend across state
and even EMU boundaries; thus, a
common frame of reference is necessary
throughout each LAP. We are actively
engaged in research designed to allow
for better accounting of spatial and
temporal variation in eagle density in
the LAP calculations. We will
incorporate these improvements to the
LAP analysis as better estimation
procedures are developed through
formal updates to the ECPG after notice
and public comment.
Comment: By requiring the LAP
analysis and setting a take limit of 5%
for the LAP, the Service appears to be
setting a ‘‘hard cap’’ on take at this
scale. It is unclear whether any take
exceeding 5% of the LAP would be
allowed, even if offset by compensatory
mitigation.
Comment: The LAP analysis could
unnecessarily limit incidental take and
add to the regulatory burden, thereby
potentially limiting some economic
development in high-density bald eagle
areas, without providing conservation
benefit. In contrast, implementing the
LAP analysis as proposed could put
areas of low bald eagle densities at
higher than necessary risk of local
depletion.
Comment: We recommend that the
LAP provision be applied as guidance,
not regulation, especially for areas of
high eagle densities that are not at risk
of local depletion from limited take.
Comment: The proposed rule
language setting a 5% LAP take limit is
highly concerning. As written, it
appears that no permits would be issued
to new projects unless those projects
can somehow reduce their own historic
take.
Response: The purpose of the 5% LAP
take limit is to ensure that projects that
tier off this PEIS will not cause the
extirpation of local eagle populations.
Exceeding the 5% LAP take limit does
not mean that we cannot or would not
issue a permit. Instead, it would trigger
a harder look at local eagle population
effects at the individual project level,
often through development of a projectlevel EA or EIS. The result of that
analysis could be a determination that
the permit would be inconsistent with

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the Eagle Act preservation standard, in
which case the Service would either not
issue the permit or might determine
that, with the application of LAP-level
compensatory mitigation, a permit
could be issued. However, in some
cases, mostly involving bald eagles, we
expect the closer look would show that,
despite the high local take rate, eagle
populations at the LAP scale are robust
enough to withstand additional take, in
which case LAP-level mitigation might
not be required in order to issue an
incidental eagle take permit. The main
point is that the effect at the LAP scale
of take exceeding 5% will have to be
determined on a case-by-case basis.
Based on our analysis of the populationlevel effects of take for bald eagles, we
do not believe that applying the LAPscale analysis as proposed risks causing
the extirpation of local bald eagle
populations even in areas of lower-thanaverage density.
Comment: The unpermitted take is
part of the baseline above which the
LAP permit thresholds are applied, and
it therefore must not be subtracted from
available take at the scale of the LAP or
EMU.
Response: The Service has
determined that take, authorized or not,
that was occurring prior to 2009 does
not need to be accounted for within the
EMU take limits. This determination
does not apply to the LAP take limits,
nor does it apply to unpermitted take
that has been added since 2009.
Comment: Taking into account
unpermitted take within an LAP is
problematic because many regions may
already exceed the 5% take limit cap by
virtue of the existing activities to which
unauthorized take is attributed. This
means that unpermitted projects are
essentially given priority over permitted
projects.
Comment: The LAP approach
seemingly penalizes developers for
siting projects in areas with fewer
eagles, which, if true, is entirely
counter-intuitive, counterproductive,
and opposite from what a permit
program of this nature should attempt to
accomplish. In areas where eagle
densities are low, the chances that the
5% LAP take limit will be exceeded is
higher.
Response: Because the 5% LAP take
limit only applies to Service-authorized
take, the take limit itself does not result
in a priority being given to unpermitted
take. However, it would be irresponsible
not to consider such information when
and where it is available, and that is
what this component of the proposed
rule requires. For example, take of
golden eagles in the vicinity of the
Altamont Wind Resource Area in

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California is not currently under permit,
yet that take has been well studied and
would necessarily have to be considered
as part of the cumulative effects
considerations when evaluating an
incidental eagle take permit application
in that region.
The LAP approach will not penalize
developers for siting projects in areas
with fewer eagles. Because the Service
uses the mean eagle population density
for all LAPs within an EMU, there is no
difference in the LAP population
calculated for high- or low-density areas
with respect to the LAP analysis.
Comment: Using unpermitted take as
a metric for permit issuance provides
deference to developers and others who
choose not to obtain eagle permits, and
increases costs for those who do. This
creates a de facto prioritization of
unpermitted take instead of penalizing
those who take eagles illegally.
Response: The Service agrees that
eagle take that is not authorized by
permits should not take precedence over
take for which permits are sought. Yet,
biologically, either form of take results
in mortality, which has the same effect
on eagle populations, and so both must
be accounted for in the Service’s
analyses and its determinations of
whether additional mortality can be
sustained relative to the population
objectives. Relative to illegal take, the
Service’s Office of Law Enforcement and
DOJ have placed a high priority on
enforcement of the eagle take
regulations, and those efforts have
resulted in several recent settlement
agreements with operating wind
facilities. The Service intends to
increase its prioritization of Eagle Act
enforcement efforts following
implementation of this rule change with
the hopes of increasing incentives for
project proponents to seek permits to
cover take that is currently unpermitted
but which might meet the requirements
for coverage under an incidental take
permit.
Comment: Because the proposed rule
intends to rely on an LAP take limit to
demonstrate no significant impact, it
must analyze and quantify all eagle
impacts, including unauthorized take
levels, based upon the best available
science and demonstrate how an LAP
can sustain additional authorized take.
It is inappropriate to limit analyses to
authorized take only, which will
severely underrepresent actual impacts
to eagles. A science-based approach
would commit to using the best
available information to estimate the
level of unauthorized take and then
updating that information on a regular
basis.

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Comment: Take estimates are
necessarily speculative for these
unauthorized take sources, and Service
personnel could use the proposed 5%
LAP cap to deny an eagle permit on this
basis.
Comment: In order to meet its
preservation standard, the Service must
require permit issuance determinations
that consider all sources of
anthropogenic take. The Service must
address cumulative authorized and
unauthorized take in an LAP when
determining permit eligibility by
revising 50 CFR 22.6(f)(2) as follows:
The take will likely not result in
cumulative anthropogenic [remove:
authorized] take that exceeds 15 percent
of the LAP, or the Service can determine
that permitting such take [remove: over
5 percent of that LAP] is compatible
with the preservation of the bald eagle
or the golden eagle.
Comment: The proposed rule states
that Service biologists would consider
any available information on
unpermitted take within the LAP area;
evidence of excessive unpermitted take
would be taken into consideration in
evaluating whether to issue the permit.
What would constitute ‘‘any available
information’’? Who would be
responsible for determining whether
there was ‘‘excessive unpermitted
take’’? How is ‘‘excessive’’ defined?
Response: The Service agrees that our
estimates of unpermitted take are
generally going to be speculative. There
is only so much that can be done
scientifically with anecdotal, incidental
information, which characterizes most
of the information that exists on
unpermitted eagle take. However, the
Service’s proposal makes it very clear
that we do intend to consider available
information on unpermitted take as part
of the LAP assessment. While the
automatic trigger for additional analysis
that could lead to a negative permit
finding is a permitted take rate in excess
of 5% of the estimated LAP, a high
unpermitted take rate could also trigger
the need for additional analysis and a
negative finding with respect to permit
issuance. For golden eagles, we have
identified that an unpermitted take rate
in excess of 10% could be considered
high; for bald eagles, we have no
scientific basis for establishing such a
threshold. However, because
unpermitted take is incompletely
known and the degree of knowledge
varies greatly from place to place, there
will be few if any locations where
unpermitted take can be accurately
estimated, which means that in most
cases the known unpermitted take will
be greater than what is indicated by the
available data. That is why the Service

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does not propose to set a hard limit on
overall take, or on unpermitted take
specifically. Instead, the Service will
necessarily rely on best judgment to
decide whether unpermitted take in any
particular LAP is in excess of levels that
would allow for additional take without
risking extirpation of the LAP. Where
data show that unauthorized take
exceeds 10% of the LAP, if the
incidental take permit is issued, the
Service may require compensatory
mitigation even if the EMU take
threshold has not been exceeded.
Finally, with respect to the burden on
applicants, Service biologists will
conduct the LAP analysis, and as such
it will not trigger additional work for the
permit applicant. To assist with the
assessment of unpermitted take at the
LAP scale, the Service has compiled and
will continue to compile all available
information from eagle necropsy
reports, Office of Law Enforcement
investigations, Special Purpose Utility
Permit reports, and other sources into a
national database that will be queried by
Service biologists using a spatial GIS
tool as part of each LAP analysis. We
have also established internal processes
that will result in more dead eagles
being necropsied (to provide
information about cause of death) and
included in the database.
Comment: The Service should select
an alternative in the PEIS where the
LAP analysis approach is not
incorporated into the regulations.
Instead, it should develop specific eagle
population size goals (other than the
2009 baseline) for each EMU and then
use those targets to inform permit
decisions within the EMUs, rather than
the LAPs.
Response: The Service considered a
number of other alternatives as possible
management objectives for EMUs,
among them setting EMU-specific
population objectives. However, given
the timeframe that was established for
this rulemaking, the complexity
involved in setting EMU-specific
management objectives, and the lack of
demographic data specific to each EMU,
the Service decided to consider only the
2009 EMUs and Flyways as EMU
alternatives for the PEIS, and to
incorporate objectives for the
persistence of local populations though
a coupled LAP assessment process.
Comment: The Service should ensure
that EMU and LAP take level analyses
are aligned or provide an explanation as
to why they are not. Eagle density
estimates should not account for
wintering or migrating birds for
determining take levels in an LAP.
Using density estimates is a liberal
approach, which could allow for more

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take (e.g., involving overwintering birds
that would eventually breed far from the
LAP) than can be sustained by the
resident breeding population in that
same LAP. The Service should consider
a mechanism for segmenting the
population being impacted (e.g.,
breeding/year-round vs. wintering/
migrating).
Response: The EMU and LAP take
limits are aligned to the degree that,
across an EMU, we would expect a
landscape with some areas (e.g., in
proximity to permitted projects) having
comparatively high levels of authorized
anthropogenic mortality but within the
LAP take limit, but offset by other areas
where authorized anthropogenic take is
low, averaging to a maximum
anthropogenic take across the entire
EMU equal to or less than the EMU take
limit. The eagle density estimates used
to determine the 5% LAP take limit are
summer population levels, and as such
do not account for or include wintering
or migrant eagles that will likely
comprise some of the actual take. Thus,
the take limits are conservative with
respect to local breeding populations,
not liberal as this comment suggests.
The Service has initiated a genetic and
isotopic assignment test project in
conjunction with other cooperators with
the goal of eventually being able to
determine the approximate natal origin
of eagles taken under permits. If this
effort is successful, the Service will
eventually be able to manage eagle take
according to natal population. Until
such time, we will continue to manage
take in the conservative manner
described here.
Comment: The proposed 5% LAP take
limit for bald eagles in the southwest
EMU exceeds Arizona’s population
growth rate of an average of 3.7%
annually and could cause population
declines. The Service should evaluate a
separate EMU and a separate take limit
for bald eagles in Arizona.
Comment: Because the LAP analysis
uses EMU densities instead of local
densities, it puts New Mexico’s small
breeding population of bald eagles at
elevated risk.
Comment: The LAP criteria should be
applied more strictly in the context of
the Southwestern bald eagle population
by either lowering the take exceedance
thresholds for that population or by
making take that exceeds the thresholds
impermissible instead of merely
‘‘inadvisable.’’
Response: Application of the LAP
analysis as explained in the PEIS leads
to an eagle density in the Southwestern
Bald Eagle EMU of 0.001 bald eagles per
square mile. This translates into a take
limit of 1 individual per year per LAP.

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A single LAP centered in the middle of
the breeding distribution of bald eagles
in Arizona encompasses most of the
other occupied breeding territories; thus
it is unlikely take of more than one to
three bald eagles per year could be
approved by the Service in Arizona
without conducting a supplemental
NEPA analysis. Similarly, in New
Mexico, any project that would be
predicted to take one or more bald
eagles per year would require
supplemental analysis, and the permit
request could be denied. The Service’s
models suggest this level of take is well
within the sustainable take rate and will
not cause population declines in
Arizona or elsewhere in the Southwest.
A final point relevant to this comment
is that any Service permit for take of
eagles will specify that the permittee is
responsible for complying with all
applicable state, tribal, and local laws.
States have full discretion to require
more stringent protection for eagles
under state law.
Comment: The LAP criteria should be
applied more strictly in the context of
the Sonoran Desert bald eagle
population. The Service proposes to set
a lower take limit for bald eagles in the
proposed southern Pacific Flyway EMU;
however, it appears that the proposed
EMU includes more populations of
eagles than just the Sonoran Desert bald
eagle. The Service should separately
manage the Sonoran Desert bald eagle.
Response: Although we recognize that
bald eagles from the Sonoran Desert
have special significance to many
Native American tribes in the region, for
the purposes of the PEIS and overall
management of bald eagle incidental
take, the Service does not recognize the
Sonoran Desert bald eagle as a distinct
taxon or management unit. We do,
however, identify bald eagles in the
Southwestern United States as a
separate management unit based on
differences in vital rates compared to
other bald eagle populations. We note
that not all of these differences are
lower; for example, survival of adult
bald eagles in the Southwest may be
higher on average than in the other
management units. Nevertheless, these
differences and a desire to allow for
continued population growth in the
Southwest led the Service to propose a
lower take rate there than is indicated
based on estimated vital rates. Also, as
noted in response to other comments,
the LAP analysis would allow very little
take per year before additional review
would be necessary. For these reasons,
we believe the selected PEIS alternative
is adequately protective of bald eagles in
the Southwest.

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Comment: With regard to the
cumulative effects analysis within an
LAP, should all potential projects that
might cause disturbance be treated
uniformly? For example, should the first
intrusion of relatively intensive human
activity in close proximity to a natal
area be treated the same as a project at
the outer edge of the natal area?
Response: In cases where nest
disturbance may occur, it is nearly
always a matter of judgment to predict
in advance whether the activity will
actually constitute disturbance to the
degree that take might occur (e.g., a
nesting attempt is unsuccessful). The
Service has developed the National Bald
Eagle Management Guidelines to help
assess when a take permit might be
advisable, and we are working on
similar guidance for golden eagles.
Comment: Some activities are clear
candidates for the use of the cumulative
impacts analysis. It is unclear, however,
if all projects in the LAP, particularly
those which are relatively non-intrusive,
should be subject to the same
cumulative analysis.
Response: Some form of cumulative
effects analysis is required for all eagle
incidental take permits, and the LAP
analysis provides a consistent
standardized way to conduct those
analyses across all activities, assuming
the effect can be expressed in terms of
estimated fatalities or decreased
productivity.
Comment: Take thresholds should
only apply to unmitigated take. For
projects adhering to a no net loss
standard, no take should be factored
into the EMU take limit, and if mitigated
within the LAP, take should also not be
factored into the LAP threshold.
Response: The Service has not
proposed to require compensatory
mitigation except in cases where take
limits are exceeded. In cases where
projected take exceeds the EMU take
limit, that projected take will not be
subtracted from the EMU take limits,
because it is offset. The take is
subtracted from the LAP take limits,
however, and if that results in the LAP
take limit being exceeded, that would
trigger additional environmental review.
That additional environmental review
would take into account whether the
take was offset within the LAP or not,
and how affects should be reflected in
the LAP take accounting.
Comment: Defining the LAP using
natal dispersal distance is a good
starting metric, but other factors such as
proximity to suitable habitat and
topography should be taken into
consideration, and the latest
information on population genetic
differentiation, population surveys, and

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telemetry information should be taken
into account.
Comment: We recommend that the
Service’s analysis includes more precise
bald eagle LAP data where available.
This would ensure that permitting
decisions are well-aligned with the
proposed preservation standard, and
would be consistent with the Service’s
commitment to use the best available
information and practice the best
science.
Comment: It is important to recognize
that Alaska contains a wide variety of
eagle habitats, ranging from temperate
rainforests in southeast Alaska to boreal
forests and tundra in the north, that
support differing densities of bald
eagles. A one-size-fits-all management
strategy, such as the proposed level of
sustainable take for LAPs, is not
appropriate in an EMU as diverse as
Alaska, and thus levels of allowable take
should not be uniform throughout the
state.
Response: We agree that incorporating
fine-scale biological data into the LAP
analysis is a desirable goal. However,
because such detailed data are not
available for the vast majority of locales
where incidental take permit
applications are desired, it is not
practical to require this level of detail in
LAP analyses at present. Where such
data are available and would contradict
conclusions from the standard LAP
analysis, they may be considered by the
Service, although likely after additional
NEPA analysis.
Comment: The goal of simply
maintaining the persistence of local
populations is not sufficient. The LAP
objective, like the EMU objective,
should be ‘‘consistent with the goals of
maintaining stable or increasing
breeding populations.’’
Response: Our analyses suggest the
LAP take limit will actually allow for
additional bald eagle population growth
at the LAP scale. All golden eagle take
will have to be offset at a 1.2 to 1 ratio,
though the mitigation will not
necessarily occur in the same LAP as
the take.
Comment: The Service should not use
the overly conservative 90th quantile for
golden eagles to define the LAP area in
order to match the median for bald
eagles. The area bounded by typical, not
extreme, movement is necessary to
ensure fair analysis of the LAP under
the proposed rule.
Response: The natal dispersal value
the Service uses to define the LAP area
for bald eagles is actually the median
value for females; in bald eagles, as in
most raptors, natal dispersal is femalebiased (females disperse farther than
males; Millsap et al. 2015). By adopting

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the median value for female bald eagles,
the Service was able to capture most of
the natal dispersal distribution for males
as well. Millsap et al. (2015) lacked
enough known-sex individuals to
compute separate estimates of natal
dispersal distance for male and female
golden eagles, and so the Service used
an updated 90th quantile for the pooled
distribution instead. This is explained
in Appendix A5 in the Status Report.
Comment: The Service advocates for
siting of wind energy facilities in areas
where impacts to eagles are expected to
be low; however, siting facilities in lowuse areas may inadvertently increase the
chance that the project is sited in an
area that already exceeds the 5% LAP
take limit, making it more difficult or
costly to obtain a permit than for a
project sited in an area with higher eagle
density.
Response: The Service uses the mean
eagle population density for all LAPs
within an EMU; thus, there is no
difference in the LAP population
calculated for high- or low-density areas
with respect to the LAP analysis. Thus,
this scenario is implausible.
Comment: Codification of the LAP
cumulative effects analysis creates an
economic burden on companies that
have fewer resources.
Response: Actually, the LAP analysis
will likely reduce costs for permits.
First, the LAP cumulative effects
analysis is a relatively simple exercise
that is conducted by the Service, so no
additional resources are required from
the applicant to conduct the analysis
other than what would be required
otherwise. Second, in cases where the
LAP analysis is conducted as analyzed
in this PEIS, further project-specific
NEPA analyses of the cumulative effects
of the activity on eagles will not be
necessary when projected take is within
LAP take thresholds, thereby reducing
overall costs for prospective permittees.
Comment: The LAP approach is
problematic for long, linear projects
such as electric transmission lines that
may extend hundreds of miles or for
large utility service areas that contain
thousands of miles of distribution lines.
Calculating and analyzing impacts over
multiple LAPs for a single transmission
line project or utility service area would
be overly complex and very difficult for
both the project proponent and the
Service, particularly if the lines cross
LAPs where the 5% cap is already
exceeded.
Comment: The LAP analysis is
specific to the wind farm and utilities
industry. It cannot be fairly applied to
real estate projects or any other
industries.

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Response: The Service has developed
a spatial GIS tool that allows its
biologists to compute the LAP
calculations quickly, easily, and
accurately. The LAP analysis can be
applied to any project with borders that
can be defined, including linear
projects. As noted elsewhere, if these
analyses indicate that take in excess of
the 5% limit exists within the LAP,
more thorough analysis is triggered. It
does not necessarily mean an eagle
incidental take permit cannot be issued.
Mitigation
Comment: The Service must clarify
how proposed compensatory mitigation:
(1) Would not have occurred in the
absence of a specific permitting
requirement; and (2) does more than
require permittees to complete actions
that a third party is otherwise legally
required to complete under federal,
state, or local law.
Response: This final rule adopts new
language at 50 CFR 22.26(c)(1)(iii)(D)
consistent with DOI policy requiring
compensatory mitigation to be
additional and improve upon the
baseline conditions of the impacted
eagle species in a manner that is
demonstrably new and would not have
occurred without the compensatory
mitigation measure. Compensatory
mitigation must provide benefits beyond
those that would otherwise have
occurred through routine or required
practices or actions, or obligations
required through legal authorities or
contractual agreements.
Comment: The concept of requiring
mitigation to exceed existing, ongoing,
or future conservation efforts is
speculative and should be removed.
This concept would remove incentives
for applicants to participate in voluntary
actions promoting eagle conservation,
especially if no credit is given for these
actions.
Response: We have removed language
requiring compensatory mitigation to be
additional to ‘‘foreseeably expected’’
conservation or mitigation efforts. In
addition, we have added language
clarifying that voluntary actions to
benefit eagles taken prior to permit
application may be credited towards
compensatory mitigation requirements.
Comment: Clear guidance on how to
quantify the level of compensatory
mitigation that will be required for
golden eagle take, other than that it will
be greater than 1:1, is currently lacking
and should be provided.
Response: The preamble to this rule
states that compensatory mitigation for
any authorized take of golden eagles
that exceeds take thresholds would be
designed to ensure that take is offset at

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a 1.2 to 1 mitigation ratio to achieve an
outcome consistent with the
preservation of golden eagles as the
result of the permit. We believe this
baseline mitigation ratio appropriately
balances meeting our obligations under
the Eagle Act with what is reasonable,
fair, and practicable to permittees.
Comment: The Service should define
what the unit of mitigation is, for
example, territories, nests, or eagles.
Response: Impacts of an authorized
project and benefits of compensatory
mitigation are reflected in terms of
numbers of eagles. For example,
disturbance take would be analyzed for
its impact on breeding success (see
Tables 13 and 14 in the Status Report).
Habitat restoration would be analyzed
for its potential benefits to the eagle
population.
Comment: Requiring compensatory
mitigation at a greater than 1:1 ratio
runs the risk of violating the ‘‘rough
proportionality’’ requirement of the
Fifth Amendment’s takings clause (U.S.
CONST. amendment V; Koontz v. St.
Johns River Water Mgmt. Dist., 133 S. Ct.
2586, 2596 (2013) (‘‘Extortionate
demands for property in the land-use
permitting context run afoul of the
Takings Clause not because they take
property[,] but because they
impermissibly burden the right not to
have property taken without just
compensation.’’)). By definition,
requiring mitigation at a greater than 1:1
ratio will produce conservation benefits
higher than needed to offset actual
impacts. The government may ‘‘choose
whether and how a permit applicant is
required to mitigate the impacts of a
proposed development, but it may not
leverage its legitimate interest in
mitigation to pursue governmental ends
that lack an essential nexus and rough
proportionality to those impacts’’ (Id. at
2595 (emphasis added) (There must be
a ‘‘ ‘nexus’ and ‘rough proportionality’
between the property that the
government demands and the social
costs of the applicant’s proposal’’
(quoting Dolan v. City of Tigard, 512
U.S. 374, 391 (1994).))). Also, because
the unconstitutional conditions
doctrines forbids burdening an
individual’s constitutional rights by
coercively withholding benefits, the
Service may not require compensatory
mitigation at a greater than 1:1 ratio in
exchange for issuance of a take permit.
Response: The two cases cited by the
commenter are not relevant to the
offsetting compensatory mitigation
requirements in this regulation. City of
Tigard dealt with a specific regulatory
encumbrance on a portion of real
property for an unrelated public benefit,
and Koontz dealt with a requirement for

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a conservation easement that was far in
excess of what was necessary to mitigate
the impacts of the project. Even if one
could argue those cases are applicable
here, the Court in City of Tigard
developed a ‘‘rough proportionality’’
test to determine whether a permit
approval condition constitutes a taking,
as noted by the commenter. This
regulation requires an offsetting
mitigation ratio of 1.2 to 1, which, even
if it could be considered more than
necessary to offset the impacts of a
project, falls well within the bounds of
being roughly proportional to the
impact being mitigated. The Court in
City of Tigard held that the regulating
entity must make an individualized
determination that the condition
imposed is ‘‘related in nature and extent
to the impact of the proposed
development,’’ though no precise
mathematical calculation is required.
Dolan v. City of Tigard, 512 U.S. 374,
391 (1994). The Service has clearly
explained in this final rule that the
compensatory mitigation ratio is
required to ensure that any
authorization of golden eagle take is
compatible with the preservation of
golden eagles. The compensation ratio is
not a generalized public benefit like the
one struck down in City of Tigard,
rather it is an encumbrance tied directly
to the purpose of the regulations. Thus,
this regulation clearly meets the Court’s
requirement by explaining in detail the
compensatory mitigation requirement
and its relation to the predicted impacts
of a project and whether those impacts
are compatible with the preservation of
eagles as required by the statute.
Under the Eagle Act, the Service can
issue a permit only if it is compatible
with the preservation of eagles. We have
determined that authorizing take of
golden eagles while imposing
compensatory mitigation at a 1 to 1 ratio
is not sufficient to meet our preservation
standard at this time. If eagles are not
being preserved, one option is simply
not to authorize take until we can
determine how to reduce unpermitted
take to the point where golden eagle
breeding populations are stable or
increasing. However, a primary purpose
of this rule is to encourage more sources
of unpermitted take to apply for permits
and implement conservation measures.
Rather than imposing a moratorium on
new permits for golden eagles, we are
requiring offsetting compensatory
mitigation at a 1.2 to 1 ratio. In order to
authorize any take of golden eagles
under these regulations, we must ensure
that take is compatible with eagle
preservation, and because golden eagles
currently are potentially facing declines,

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the 1.2 to 1 compensatory mitigation
ratio appropriately balances compliance
with the Eagle Act with not unduly
burdening recipients of permits.
Comment: The Service should
provide greater details in the rule and/
or in guidance to clarify the standards
for approving compensatory mitigation
measures. Several commenters
promoted the adoption of specific
mitigation measures including habitatbased conservation banks, lead
abatement programs, road carcass
removal, support for rehabilitation
centers, and others.
Response: Quantifying the benefits of
various compensatory mitigation
measures and developing standards for
their application in permitting is
complex. The Service and partners,
including industry and NGO partners,
has already spent considerable time and
effort in developing additional
compensatory mitigation measures with
the goal of eventually approving their
use as effective offsetting compensation.
We intend to engage stakeholders to
develop additional guidance and the
standards for approving mitigation
credits, setting appropriate mitigation
ratios to address particular mitigation
measure effectiveness and uncertainty,
and establishing appropriate assurances
for durability of mitigation measures.
Comment: In-lieu fee programs
frequently do not provide meaningful
compensatory mitigation prior to the
onset of impacts.
Response: Any in-lieu fee program
approved by the Service for use in eagle
permitting must meet the same high,
equivalent standards as any other
mitigation type and must comply with
DOI and Service mitigation policy.
Compensatory mitigation for eagle take
is still relatively new, with few
approved methods. This final rule
allows for many different types of
mitigation to be proposed to allow
applicants and the Service to expand
the options available for providing
compensatory mitigation, providing all
such measures comply with the same
fundamental standards. The Service will
be developing additional
implementation guidance to further
clarify the standards by which we
would approve particular compensatory
mitigation types or measures.
Comment: Unproven mitigation
measures should not be allowed.
Response: The Service agrees that
proposed compensatory mitigation
measures that have no basis for their
effectiveness would not be approved.
Approval of mitigation measures must
be based on the best available science.
This does not mean that no
uncertainties can remain for a

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mitigation measure to be approved. Any
remaining uncertainties regarding the
effectiveness of a mitigation measure
must be accounted for to ensure that
eagle take is appropriately offset. The
Service intends to establish baseline
standards for particular mitigation
measures and involve the public in
setting those standards.
Comment: To expand the breadth of
defensible compensatory mitigation
options, targeted research should be
funded as part of the compensatory
mitigation to facilitate the approval of
additional effective compensatory
mitigation tools. Funding from
compensatory mitigation should not be
directed toward activities that have less
tangible benefits to eagles such as
research, population monitoring, or
education.
Response: Research and education,
although important to the conservation
of eagles, are not typically considered
compensatory mitigation. This is
because they do not, by themselves,
replace impacted resources or
adequately compensate for adverse
effects to species or habitat. In rare
circumstances, research and education
that can be linked directly to threats to
the resource and provide a quantifiable
benefit to the resource may be included
as part of a mitigation package. These
circumstances may include: (1) When
the major threat to a resource is
something other than habitat loss; (2)
when the Service can reasonably expect
the benefits of applying the research or
education results to more than offset the
impacts; or (3) where there is an
adaptive management approach wherein
the results/recommendations of the
research will then be applied to improve
mitigation of the impacts of the project
or proposal.
Comment: As written, the regulations
equate to a ‘‘first come, first served’’
standard regardless of the number of
eagles taken. Because the ‘‘first come,
first served’’ standard will create
inequities proportional to the level of
take, we recommend establishing
standardized mitigation for each eagle
taken, so that mitigation is equitable to
the level of take.
Response: We did consider requiring
some level of mitigation for all take,
whether within the established take
limits or not. However, we have decided
not to require mitigation for take that is
within the established EMU take limits.
For golden eagles, due to their
population status, the EMU take limits
are set at zero, and permits will all
requiring compensatory mitigation.
Given the relatively robust population
status of bald eagles, and the likely
demand for take permits, the Service

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anticipates that bald eagle populations
will continue to grow without
implementation of compensatory
mitigation for take within the EMU take
limits.
Comment: The Service should not
condition eagle take protection for an
individual project on a permittee
acceding to compensatory mitigation for
unrelated actions by others. Doing so
would raise APA and due process
concerns. Additionally, the Service
should clarify that no permittee will be
required to offset take in excess of take
levels reasonably attributable to the
activities covered in the permit.
Response: The Service will not
impose compensatory mitigation
requirements on an individual project
unless that project, either singly or in
conjunction with other projects in the
same EMU (or possibly the same LAP),
takes eagles in excess of the take limit.
Projects removing eagles from the same
EMU or LAP are not unrelated in terms
of the eagle populations they affect, and
as such the Service maintains it is
appropriate and necessary to consider
them cumulatively in assessing whether
compensatory mitigation is necessary or
not. If compensatory mitigation is
required, it will be assessed in
proportion to the number of eagles
estimated to be taken under each
permit. For golden eagles, permittees
will be expected to contribute to
reversing potential population declines,
a necessary action if the Service is to
allow any additional take of golden
eagles and meet the stable population
objective. Permittees are not expected to
carry the full burden of offsetting
unauthorized take; the Service has and
will continue to increase enforcement
actions against those taking eagles
illegally so that unauthorized take will
be reduced and restitution can be
obtained.
Comment: The proposed rule’s
modification of the preservation
standard with the goal of achieving a net
conservation gain or no net loss is
premature in light of the Service’s
agency-wide mitigation policy still
being in draft form.
Response: The Service is relying
primarily on the standards set forth in
the Eagle Act, as interpreted by the
Service. The Service has interpreted
‘‘compatible with the preservation’’ of
eagles to mean consistent with the goal
of maintaining or improving breeding
populations of eagles since 2009. This
final rule adopts the following
definition: ‘‘Compatible with the
preservation of the bald eagle or the
golden eagle means consistent with the
goals of maintaining stable or increasing
breeding populations in all eagle

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management units and the persistence
of local populations throughout the
geographic range of each species.’’ We
have coordinated the development of
these revised eagle regulations with
development of the Service-wide
mitigation policy to ensure consistency.
In addition, these final regulations are
in compliance with both Presidential
and DOI mitigation policy, which have
both been finalized.
Comment: The provisions for
compensatory mitigation state that it
must be based on ‘‘best available
science.’’ Please provide a definition for
this term.
Response: For the purposes of the
Eagle Rule, we regard the best available
science as scientific data that are
available to the Service and that the
Service determines are the most
accurate, reliable, and relevant for use
in a particular action.
Comment: It is not clear how
compensatory mitigation requirements
will or will not apply to federal and
other government entities that apply for
incidental take permits.
Response: Federal and other
government agencies applying for an
eagle incidental take permit would have
to comply with the compensatory
mitigation requirements of this rule,
consistent with agency authorities. The
Service understands there may be some
circumstances where an agency does not
have the discretion or available
appropriations to implement
compensatory mitigation and would
make appropriate accommodations for
these circumstances.
Comment: If a separate, distinct
agency action benefits eagles, can that
action be used or credited towards its
compensatory mitigation requirements?
Response: Only actions that meet the
additionality standards set forth in this
rule could be used for compensatory
mitigation. Compensatory mitigation
must be additional and improve upon
the baseline conditions of the impacted
eagle species in a manner that is
demonstrably new and would not have
occurred without the compensatory
mitigation measure.
Comment: The payment into
conservation banks and in-lieu fee
programs by a government agency could
be problematic and potentially in
violation of federal appropriations.
Consequently, how does the Service
foresee compensatory mitigation being
implemented by permit applicants that
are federal or state agencies?
Response: The Service cannot require
a government agency to take an action
outside the scope of its authorities. This
rule does not assign a preference for any
mitigation type. If an agency was

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precluded from participating in an
approved third-party mitigation
program, the agency could implement
its own compensatory mitigation.
Comment: Take should not be
authorized above EMU take limits,
regardless of compensatory mitigation.
Response: The Service believes that
the rigorous standards for monitoring
and compensatory mitigation in this
rule ensure that authorized take over
EMU take limits will be compatible with
the preservation of eagles. The Service
reserves the right to deny a permit if we
determine the specific project is not
compatible with the preservation of
eagles.
Comment: The Service should require
compensatory mitigation for all
authorized take, including take within
EMU take limits.
Response: The Service defines
‘‘compatible with the preservation’’ of
eagles to mean ‘‘consistent with the
goals of maintaining stable or increasing
breeding populations in all eagle
management units and persistence of
local populations throughout the
geographic range of each species.’’
Based on the Service’s status review of
the two eagle species, the Service has
determined that the sustainable take rate
for golden eagles is zero, while the bald
eagle population can withstand the loss
of several thousand individuals and still
meet established preservation goals. DOI
mitigation policy requires that
mitigation be tiered to achieving
landscape-level goals. The Service has
determined that when take is below
modeled sustainable take rates, we can
achieve our conservation goals for the
species without compensatory
mitigation. By including the persistence
of local populations in the preservation
standard, the Service may also require
compensatory mitigation if a permittee’s
action would threaten the persistence of
a local population.
Comment: Compensatory mitigation
should address project impacts by being
located in the same LAP as the project
impacts.
Response: Authorized projects may
affect both resident and migratory
individual eagles. Compensatory
mitigation for eagle take is still in its
infancy, and there are currently limited
options to effectively compensate for the
loss of eagles. Further limiting those
options to the LAP is not practicable to
implement at this time. The final rule
retains the requirement to site within
the same EMU where the take occurred.
This allows the Service to target
compensatory mitigation to have the
greatest benefit to eagles while
compensating for the impacts of the
authorized project in a biologically

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meaningful way. For compensatory
mitigation that is required to address
concerns for a LAP, the Service has a
preference for compensatory mitigation
projects to be sited in the LAP where the
impacts occurred. Projects that raise
concerns over a local population would
generally require site-specific
environmental analysis, including
would include consideration of where
to site compensatory mitigation.
Comment: Habitat conservation is
important for eagles. The Service should
provide more guidance on how habitat
conservation and restoration may be
used for compensatory mitigation.
Response: While the current primary
limiting factors affecting both eagle
species are not habitat-based, the
condition and availability of habitat is
an important factor in eagle
conservation. The condition and
availability of habitat will likely be
increasingly important in the future in
light of climate and land-use changes.
As with other forms of compensatory
mitigation, the Service will continue to
work with stakeholders to develop
further guidance on how to structure
habitat conservation efforts in ways that
meet the standards set forth in the rule.
Comment: Compensatory mitigation
should be implemented prior to the
onset of impacts. The Service should
allow for flexibility in the timing of
mitigation, recognizing that not all
mitigation can be provided prior to
impacts.
Response: Service mitigation policy
prefers that compensatory mitigation be
implemented prior to project impacts.
This is important to document the
effectiveness of the mitigation measure.
However, requiring compensatory
mitigation to be in place prior to project
impacts is not always practicable. All
compensatory mitigation must follow
the standards set forth in this rule,
which are designed to ensure that
compensatory mitigation is effective and
offsets the impacts of the authorized
take of eagles. If compensatory
mitigation is implemented after project
impacts, then it would have to account
for temporal loss of the eagles taken,
and mitigation ratios would be adjusted
accordingly.
Comment: Unauthorized take and
violations of the law are a law
enforcement issue, not a permit issue.
Unusually high levels of unauthorized
eagle mortality within a LAP should not
be a trigger for compensatory mitigation.
Response: From a biological
perspective, it does not matter whether
take is authorized or not; both
unpermitted and permitted take result
in mortality, and the effects of that
mortality on eagle populations is the

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same. Thus, meeting the Service’s
management objective of not causing the
extirpation of local populations requires
that we consider and take into account
existing levels of unpermitted take, and
where those levels are excessive, to
either not issue a permit or to require
mitigation if we believe mitigation can
be effective in offsetting additional take
in the LAP. The commenter is correct
that unpermitted take is also a law
enforcement issue, and part of the
solution lies in increased compliance.
Towards this end, the Service’s Office of
Law Enforcement has and will continue
to prioritize enforcement of illegal take
of eagles.
Comment: The Service should not
employ a ‘‘practicable’’ standard when
evaluating compensatory mitigation.
Compensatory mitigation must be
designed to effectively offset all
authorized take.
Response: These final regulations
better align compensatory mitigation
requirements with DOI and Service
policy. Compensatory mitigation is
required for remaining unavoidable
impacts after all appropriate and
practicable avoidance and minimization
measures have been applied.
Comment: The Service should refrain
from establishing an explicit preference
for use of in-lieu fee programs,
mitigation and/or conservation banks at
this time. The Service should continue
working with third-party mitigation
providers to develop effective mitigation
programs and policies governed by
equivalent mitigation standards.
Response: This rule does not state a
specific preference for mitigation type.
While there could be advantages to
certain mitigation types in the future,
like an in-lieu fee program targeting
mitigation actions to maximize benefits
to eagles, third-party mitigation options
are not yet available for mitigating eagle
take. This rule clearly states that all
forms of compensatory mitigation must
meet the same equivalency standards.
More detailed guidance and standards
for particular mitigation methods will
be developed with public input.
Comment: The Service should
consider allowing mitigation proposed
under existing regulatory mechanisms,
such as the U.S. Army Corps of
Engineers’ Clean Water Act section 404
permitting and ESA section 10
permitting, to be used for eagle
mitigation to avoid unnecessary
duplication among agencies and
programs.
Response: The Service has particular
mandates under the Eagle Act that differ
from requirements under the ESA and
U.S. Army Corps of Engineers’ mandates
under the Clean Water Act. To the

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extent that existing mitigation programs
meet the standards set forth in this rule
and future guidance, they could
contribute to compensatory mitigation
for eagles.
Comment: Tribes are uniquely
affected by eagle take permits. The
Service should look to tribes with the
resources and expertise to support the
management of eagles to host mitigation
activities, including giving preference
for tribal lands for compensatory
mitigation projects.
Response: The Service understands
and respects that tribes have religious
and cultural relationships to eagles that
are unique, and that the Service has
government-to-government consultation
obligations with tribes. The Service
values its partnerships with tribes and
will continue to seek ways to strengthen
these partnerships to advance wildlife
conservation, including eagle
conservation. This rule states that tribal
take of eagles is a higher priority than
incidental take covered by these revised
regulations. Compensatory mitigation
for eagles is relatively new, and there
are currently only limited options for
permittees. It is not appropriate at this
time to further narrow the availability of
compensatory mitigation projects to any
specific land ownership, including
tribal lands. However, nothing in the
rule precludes the use of tribal lands as
sites for compensatory mitigation, and
such matters could be appropriate
subjects for tribal consultation on
individual permits that may affect tribal
interests.
Miscellaneous—§ 22.26
Comment: With the Service’s small
staff and shrinking budget, the
commitment to gathering solid
population data for eagles at least every
6 years may be impossible to meet.
Adjusting eagle take permits every 5
years (whether they are part of a permit
given once, or part of a 30-year permit
reexamined every 5 years), particularly
based on local scale information about
eagle populations, is impossible to do if
population data are not gathered in a
consistent, comprehensive way, making
it impossible for the Service to
implement the rules in any meaningful
way ‘‘consistent with the goal of
maintaining stable or increasing
breeding populations.’’
Response: The schedule of monitoring
proposed in the PEIS balances available
dedicated eagle funding in the Service
with the technical and logistical
demands of eagle monitoring. Under
this schedule, eagle monitoring will be
conducted annually (not once every 6
years as implied by the comment), but
the three major eagle surveys (golden

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eagle summer, golden eagle winter, bald
eagle summer) will be conducted in
rotation once each, every 3 years, with
reassessments and updates of status
every 6 years.
Comment: The Service misapplies the
term ‘‘take’’ to include injuries or
mortalities caused by accidental
collisions with wind turbines, since
such a statutory construction is
inconsistent with the statute’s required
mens rea, and generally ‘‘would offend
reason and common sense’’ See United
States v. FMC Corp., 572 F.2d. 902 (2d
Cir. 1978).
Response: Operating turbines that
incidentally (accidentally) take or kill
migratory birds is a violation of the
MBTA and the Eagle Act. Collisions
with wind turbines are foreseeable and
can be avoided, minimized, or mitigated
for with the proper implementation of
conservation measures. The Second
Circuit Court of Appeals in the United
States v. FMC Corp. decision cited by
the commenter, along with most other
courts, interpreted the MBTA to be a
strict liability crime for misdemeanor
violations, which means no mens rea
(mental state) is required to determine
guilt See 572 F.2d at 905–08. The
United States v. FMC Corp. case dealt
specifically with violations of the
MBTA and not the Eagle Act, although
eagles are also protected by the MBTA.
Similar to the MBTA, the Eagle Act
requires no mens rea for certain
violations, including those that
incidental take would fall under. See 16
U.S.C. 668(b).
Courts have concluded that, under
strict liability, incidental take caused by
many different activities violates the
MBTA See, e.g., FMC Corp. (hazardous
wastewater pond); United States v.
Corbin Farm Serv., 444 F. Supp. 510
(E.D. Cal. 1978) (improper pesticide
use); United States v. Moon Lake Elec.
Ass’n, 45 F. Supp. 2d 1070 (D. Col.
1999) (power line electrocution and
collisions); Ctr. for Biological Diversity
v. Pirie, 191 F. Supp. 2d 161 (D.D.C.
2002) (U.S. Navy military training
activities); United States v. Apollo
Energies, Inc., 611 F.3d 679 (10th Cir.
2010) (oil extraction equipment). But cf.
United States v. CITGO Petroleum
Corp., 801 F.3d 477 (5th Cir. 2015) (oil
waste water facilities, but based on the
conclusion that the MBTA was
primarily enacted to regulate hunting
and poaching). Recently, courts have
reached similar conclusions with regard
to wind-energy operations See, e.g., Pub.
Employees for Envtl. Responsibility v.
Hopper, 827 F.3d 1077, 1088 n.11 (D.C.
Cir. 2016). There is no reason to
conclude that courts would reach

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different conclusions for incidental take
of eagles under the Eagle Act.
Comment: The revised 30-year eagle
rule will allow wind energy facilities to
cumulatively kill up to 4,200 bald eagles
and 2,000 golden eagles annually with
no prosecution.
Response: This brief and widely
publicized statement distorts the actual
facts about the proposed rule in at least
four ways. First, it simply ignores the
existence of the permitting process and
implies the Service will ignore
violations by wind companies. Second,
the numbers presented for bald eagles
are in reality the amount of take that the
Service estimates could occur without
resulting in a population decline (and
the actual number is likely significantly
higher; this is a conservative estimate
that errs on the side of protection). The
numbers do not represent the level of
take the Service anticipates authorizing
under permits. Third, mention of
allowable take of 2,000 golden eagles is
completely without basis; the take level
for golden eagles is set at zero without
offsetting compensatory mitigation.
Finally, the estimated sustainable take
limits are not allotted to the wind
energy industry; the Service issues
permits to homeowners and other
individuals; local, state, tribal, and
federal agencies; and many types of
businesses. In fact, the majority of
permits that have been issued under the
2009 regulations have been for
temporary disturbance or removal of
inactive nests for safety purposes.
Comment: The Service does not
adequately enforce the Eagle Act when
it comes to wind power. Companies,
therefore, are not deterred from
constructing projects in essential
habitats of eagles and other migratory
birds. Without increased enforcement,
there is no reason to assume the new
regulations will lead to any greater
degree of compliance.
Response: Eagle take is prohibited by
law, and violations may be prosecuted
criminally or through civil enforcement
authorities. Which type of enforcement
is used depends upon the facts of each
situation, including the conduct of a
wind energy company in siting and
operating wind projects. The Service
and the U.S. DOJ have taken
enforcement action where and when
warranted and will continue to do so. In
the last 18 months, the Service has
resolved five civil enforcement actions
concerning unauthorized incidental take
of eagles at wind facilities. However,
when investigations are ongoing,
information about them is not released
to the public. It is understandable that
the public is unaware of the
enforcement actions being pursued by

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the Service’s Office of Law Enforcement.
When investigations are ongoing,
information about them is not released
to the public, or even to other Service
programs, until cases are resolved. In
this case, the commenter’s statement is
just wrong. In fact, just in the last 18
months, the Service has resolved four
civil enforcement actions against wind
companies. Taken together, the four
civil settlements reached over the last
18 months have addressed legacy and
interim eagle take at 15 different windenergy facilities, resulting in 10
additional wind energy facilities
applying for eagle take permits (5 had
applied for permits at the time
settlement discussions commenced) and
commitments by the wind energy
facilities to spend a minimum of
$1,855,000 over the next 3 years on
research and development of avian
detection and deterrent technologies
and to pay $55,000 in civil penalties.
Comment: The Service should
consider an approach to ensure
permitting and siting regulations are
properly followed. In Osage County,
Oklahoma, although injunctions were
granted at the federal level against
construction of wind turbine projects,
lack of enforcement meant construction
continued without interference. The
Service must clarify and strengthen its
approach for instances where eagle
permitting regulations are not followed
by energy developers or others.
Response: The Eagle Act does not
directly regulate otherwise legal
activities that may result in the take of
an eagle or eagles. Specific effects of
otherwise lawful activities, including
construction and operation of wind
facilities, can constitute actions that are
prohibited under the Eagle Act, such as
disturbance, injury, or killing of eagles.
The permit authorization is for the
otherwise-prohibited take, which is
usually directly caused by the operation
of the project. The eagle permit does not
authorize the construction of the facility
itself.
An injunction is an order issued by a
court requiring a person to do or cease
doing a specific action. An injunction is
considered to be an extraordinary
remedy and is available only in special
cases where the injunction is necessary
to preserve the status quo or to require
some specific action in order to prevent
irreparable injury or damages that
cannot adequately be remedied. The
Service is not aware of any injunctions
currently in effect ordering any wind
energy company to cease taking eagles
in Oklahoma. The injunction the
commenter refers to may be related to
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construction of wind-turbine
foundations at a facility constructed in
Osage County, Oklahoma. The cases did
not relate to eagles and construction
continued because the cases were
resolved in favor of the wind company.
Comment: The Service has the ability
to regulate the wind industry, including
influencing siting. For example, if the
Service recommended that a project not
be placed at a particular site due to high
risks to federally protected species, but
the developer ignored the
recommendation or failed to obtain
appropriate permits, then the Service
could subject that facility to enhanced
scrutiny, including independent
monitoring of fatalities and/or
unannounced visits by law enforcement.
The developer could also be warned
that, if protected species are killed, the
Service will refer the case to the Justice
Department and request prosecution to
the greatest extent of the law, including
the possibility of temporary or
permanent shut down.
Comment: Proper siting for wind
energy projects and adequate protection
for eagles and migratory birds must take
a higher priority. There should be no
siting of wind turbines in eagle
breeding, nesting, and migratory areas
under any circumstances. While more
stringent and responsible guidelines on
proper siting may be more difficult and
costly, we contend that this is an
instance where the federal government
and the Service must stand firm and
defend our eagle populations.
Comment: The Service is wrong in
asserting that it lacks any authority to
‘‘prohibit development in areas that are
important to eagles,’’ and that the most
it can do, is ‘‘recommend’’ that a
company not build its project in a highrisk site. 18 U.S.C. 371 makes it a crime
for any person to conspire ‘‘to commit
any offense against the United States.’’
The government has relied on this
provision to prosecute not only actual
‘‘takings’’ in violation of federal wildlife
protection laws, but also the predicate
actions necessary to bring such takings
to fruition. The government need not
wait until the actual taking of an eagle,
but may undertake appropriate
enforcement action to prevent harm to
protected wildlife before it occurs.
Response: The Service has been
consistent with our message that we
focus our resources on investigating and
prosecuting individuals and companies
that take migratory birds, including
eagles, without identifying and
implementing all reasonable, prudent,
and effective measures to avoid that
take. Companies are encouraged to work
closely with the Service to identify
available protective measures in their

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avian protection plans when developing
project plans, and to implement those
measures prior to/during and after
construction and operation, including
during the siting process. However, if a
wind company ignores our advice and
develops a project in an area that results
in the take of eagles or concerning
numbers of other migratory birds or
federally protected bats, we can and do
investigate and, if appropriate, pursue
appropriate enforcement action. The
Service and DOJ have taken
enforcement action where and when
warranted using the enforcement
authorities available to them and will
continue to do so.
Comment: How is the Service going to
find out if protected species have been
taken since it relies solely on the
regulated industry to volunteer that they
have broken the law? The wind energy
industry (which is already paying for
their own studies) should contribute to
a fund that the Service will use to hire
independent experts to conduct preconstruction risk studies and postconstruction bird and bat mortality
studies.
Response: We agree that independent
third parties reporting directly to the
Service should monitor take under longterm permits, and we have incorporated
this requirement into the final
regulations.
Comment: The regulations should
include a requirement that all baseline
and post-construction data on wildlife
will be made fully available to the
public as soon as possible. Lack of
transparency is a pervasive problem.
Reports of baseline studies and of
impacts monitoring at wind projects are
increasingly kept confidential. These
data pertain to public trust resources,
and should not be kept confidential.
Comment: The Service should
establish mechanisms to automatically
provide all data and reports, including
raw data collected on-site, to the public
in real-time and as soon as it is
available.
Comment: The Service should require
that all monitoring data (reports and raw
monitoring data) be submitted
electronically to a publicly available
database. Federal agencies are moving
towards electronic reporting as
evidenced by the Environmental
Protection Agency’s (EPA’s) ‘‘Next
Generation Compliance’’ initiative. The
Service should develop a public
electronic portal/database from which it
can track permit compliance, authorize
take across populations, and publish
proposed and final permitting decisions.
This portal would allow stakeholders
and regulators to quickly search permits
and quickly access all available

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monitoring reports and 5-year reviews.
This approach would not only facilitate
transparency but also provide a valuable
tool for its staff to track permit
compliance.’’
Response: The permit regulations
already contained the provision that all
mortality data will be available to the
public prior to this rulemaking. We will
post cumulative reported mortality data
that is summarized to a state and flyway
level on a Web site that can be viewed
by the general public. We will consider
posting pre-construction (or prepermitting) data that we require as part
of the permit application for projects
that receive eagle take permits.
Comment: The proposed rule is
focused on eagle breeding populations;
however, the eagles killed in wind
resource areas are not necessarily
participants in breeding populations at
the times of their deaths.
Response: The proposed rule did not
focus on breeding populations, and in
fact one aspect of the proposal, to adopt
Flyways rather than maintain the
current EMUs, was introduced to better
account for non-breeding season
movements. The Service’s population
size estimates, sustainable take rate
estimates, and take limits all apply to
eagles across all age classes, both sexes,
and throughout the year. Even the LAP
analysis, which does focus heavily on
breeding eagle densities, is not intended
to only be protective of breeding
populations, as explained in the Status
Report on page 27.
Comment: The Service should
provide more clarity and transparency
concerning data collected concerning
causes of eagle mortality in the United
States. As the agency responsible for the
National Eagle Repository (NER), the
Service is in a unique position to obtain,
track, and disclose data surrounding
eagles being sent to the repository.
Disclosure of these data would provide
a necessary starting point to check the
accuracy of Service priorities regarding
eagle mortality in the United States.
Comment: Tribes should have access
to eagle injury and death reporting
related to their historic reservation areas
to provide for better collaboration
regarding eagle incidents. Eagle injury
and death incidents should be
coordinated with tribal eagle research
facilities as a collaborative measure to
ensure improved data and research
related to wind turbine impacts.
Response: The Service is in the
process of developing a database to
centralize and grow the dataset on
injury and mortality incidents involving
eagles and other birds across the nation.
This will include data on any eagles
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to the Service and/or any partners who
data share with the Service, and will
include eagles that go on to be sent to
the NER. The database is still being
populated with a number of historical
records and prepared for use by others
outside of the Service, but is anticipated
to be fully functional by the end of
2017. Once the database is populated
and fully operational, we do anticipate
that some level of information will be
made publicly available, along with
information on the role these data play
in helping the agency address and
research impacts to eagles and other
birds. It is important to note that the
Service will not be depending solely on
the data collected in this database to
accurately depict the relative causes of
eagle and other bird mortality across the
landscape. While some of the data
collected in the database should help to
inform these questions, there are
targeted, structured studies that are
more useful for this purpose. A list
summarizing these studies is available
upon request, but a good example is a
study the Service is conducting that
involves using the fates of a sample of
satellite-tagged eagles to estimate the
importance of different mortality
factors, as described in the Status
Report. We note that many Native
American tribes have been active
participants and collaborators in that
study, and that collaboration has greatly
improved the extent and scientific
quality of the findings.
Comments: The Service has stated
that: ‘‘The current regulations provide
that eagle mortality reports from
permitted facilities will be available to
the public. We will also release
mortality data on other migratory birds
if we receive that data as a condition of
the permit, provided no exemptions of
the FOIA (5 U.S.C. 552) apply to such
a release. If we receive mortality data on
a voluntary basis and we conclude it is
commercial information, it may be
subject to Exemption 4 of the FOIA,
which prevents disclosure of voluntarily
submitted commercial information
when that information is privileged or
confidential.’’ That statement strongly
suggests that the Service will accede to
the wishes of companies that desire to
shield from the public their impacts on
public trust resources—which is hardly
consistent with the purposes of the
Eagle Act, MBTA, or FOIA. Any wind
energy company could declare that
disclosure of eagle kill data could hurt
its bottom line or is somehow
‘‘confidential’’ business information,
with the result that virtually all eagle
mortality data will likely continue to

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remain unavailable to the public and
concerned conservation organizations.
Response: Under the FOIA’s
Exemption 4, the Service independently
determines whether submitted data is
commercial information not subject to
disclosure (confidential business
information), whether or not it is
marked as such by the submitter. A
submitter cannot simply insulate
information from disclosure under FOIA
by marking it as privileged or
confidential and expect the Service to
accede without an independent
analysis. Also, there is a distinction
between ‘‘voluntarily submitted’’
records and records that are required to
be submitted, and in the language
quoted by the commenter, we were
talking about other birds in addition to
eagles. Under eagle take permits,
submission of eagle mortality
information is not voluntary, and our
regulations, both current and those
made final with this rule, require data
on permitted eagle mortality to be
publicly available.
Comment: While tribal members are
required to apply for and receive
individual permits from the Service to
even possess eagle feather or parts—
despite the Constitutional rights and
religious freedoms of tribal people that
have long been acknowledged in the
law—the Service intends to issue
permits for lethal take of eagles to the
wind industry for up to a 30-year term,
not to protect eagles as the Service now
suggests, but rather to facilitate a purely
commercial activity by wind
developers. The requirement that
permits for traditional religious use of
tribal members be renewed annually
imposes administrative and cost
burdens on the practice of religion, as
well as on the Service’s limited
resources. The Service should consider
issuing take permits for Native
American religious use in perpetuity, or
at a minimum for the 30-year term the
Service proposes for non-religious
incidental take. The inequities between
the durations of these two permits
warrant staying the final incidental take
permit regulations until the Service can
address this very serious question.
Response: We are aware that the 1year permit duration for permits to take
eagles for religious use may impose an
unnecessary burden on some tribes, and
we are considering revisions to those
permit regulations to address a variety
of issues, including the permit duration.
We will consult with tribal governments
before proposing any revisions.
Comment: The proposal lacks
meaningful or specific guidance as to
how the Service will conduct tribal
consultation with potentially affected

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Indian tribes on a project-by-project
basis when the Service receives permit
applications. There is no assurance the
Service will engage in proper
consultation with affected Indian tribes.
Tribes are likely to be cut out of the
permitting process, depriving the
Service of valuable traditional
ecological knowledge and tribal data
about the historic and current presence
of eagles in the area.
Response: Where issuance of a permit
has the potential to affect Native
American tribes, we will notify the
potentially affected tribes and provide
them with the opportunity to consult. If
tribes have valuable traditional
ecological knowledge they will share,
we will welcome that information. The
Service relies on a numerous guidance
documents to inform how it consults
with tribes, including Executive Orders;
Presidential memoranda; DOI
Secretary’s Orders; and policies of the
DOJ, DOI, and the Service. We do not
see any advantage to tribes of
incorporating all this guidance into the
eagle permit regulations, and the result
would be either a repetition of
information already provided or a
summarized (and, therefore, more
generalized and less helpful) version of
the existing authorities and guidance.
Further, as with any federal action
warranting tribal consultation, the
specific circumstances of the actions
will affect the process and parameters of
the consultations. Additionally,
individual tribes have different
preferences for how they wish the
consultation process to proceed. For all
these reasons, we did not address
specific protocols for consultation with
tribes.
Comment: The Service should
mandate that each permit application
identify affected tribes in the requisite
eagle conservation plan. Consultation
with tribes should occur at every stage
of the permitting process. The
regulations should ensure that affected
tribes receive notice by sending a copy
of each eagle take permit application to
tribes. If this is not feasible due to legal,
confidentiality, or other concerns, tribes
should at least receive notice of an
application and information necessary
to allow for effective and meaningful
consultation. Also, affected tribes
should be included in the NEPA
analysis of each permit. To ensure
increased participation and input by
tribes in the NEPA process, affected
tribes should be invited to serve as
cooperating agencies under NEPA.
Further, the Service should send a copy
of an eagle take permit to all affected
tribes upon the issuance of that permit.

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Comment: Tribes that will be affected
by eagle take authorized under a
particular permit must be identified and
contacted to facilitate participation in
the permit decision-making process.
The Service should cast the widest net
possible to identify affected tribes,
which the regulations should broadly
define to include: (1) All tribes with an
interest in eagles in the vicinity of a
wind energy project; or (2) all tribes that
may have interest in eagles within the
relevant flyway.
Response: We maintain our
commitment to consulting with
interested tribes as early as possible in
the permitting process when issuance or
review of individual permits may affect
a tribe’s traditional activities, practices,
or beliefs. We do not think it is
appropriate to require a permit
applicant to identify potentially affected
tribes. Instead, it is incumbent on the
Service to make that determination.
Thus, we will continue to rely on our
trust relationship and open
communication with each federally
recognized tribe to help us determine
when a project may affect tribal
interests. Because of the myriad
differences in the interests of federally
recognized tribes regarding eagles, we
do not find it appropriate to limit or
circumscribe consultation with
individual tribes by outlining a more
specific framework for the consultation
process. Each consultation will depend
on the specific needs and concerns of
the affected tribe. In some cases, it may
be appropriate to consult with a tribe
regarding its interest in projects
occurring in a region or flyway. In other
cases, it may be appropriate for a tribe
to act as a cooperating agency for the
NEPA process for an eagle permit.
Regardless of any consultation process,
the effects of an eagle permit on tribal
cultural, religious, or socioeconomic
interests will be analyzed in the
appropriate NEPA document for that
permit.
Comment: The Service should clarify
that projects that attempted in good
faith to comply with eagle take
regulations, especially those that also
applied for permits but were unable to
obtain a permit due to difficulties
inherent in the current permit program,
should not be required to undergo
additional mitigation prior to being
issued a take permit under the new
regulations. Consistent with the
template eagle settlement agreement
framework, the Service should clarify in
the eagle permit program that not all
such projects will need to enter into a
settlement agreement prior to being
granted a permit; instead, the Service
will, in determining whether prior

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unpermitted take requires any
additional actions, take into
consideration the nature, circumstances,
extent, and gravity of the acts with
respect to the degree of culpability and
cooperation, history of noncompliance,
levels of past take, and efforts to reduce
take.
Comment: The proposed rule implies
that applicants would need to take
corrective actions and/or make
payments for all takes over the life of
the project, which, for transmission line
providers, may have been in operation
since the early 1900s. It is unreasonable
and ineffective to require that those
seeking a voluntary permit must ‘‘settle
up.’’ Voluntary applicants would then
need to incriminate themselves to
obtain an eagle permit, creating a strong
disincentive to seek permits.
Comment: The Service should
reconsider its position that applicants
may be required to address past take by
entering a settlement agreement; why
does historic take need to be taken into
account now considering that take
occurring prior to 2009 is already
reflected in the bald and golden eagle
population status?
Response: A permit can be issued
without resolving unauthorized past
eagle take; however, the applicant
continues to be subject to an
enforcement action at any time for
unpermitted prior take of eagles. Such
decisions will be made on a case-bycase basis considering the totality of the
circumstances. Project proponents have
been encouraged to consult with the
Service early and often to avoid and
mitigate migratory bird and eagle take to
the extent practicable, and to apply for
an eagle take permit where take cannot
be avoided. The Service’s goal has been
to work closely with project developers
to ensure unlawful (unpermitted) take
does not occur. However, many entities
have chosen to avoid the Service’s
involvement all together, or only engage
with the Service after eagles were killed
and a law enforcement investigation
began. A determination by the Service
whether to pursue criminal or civil
enforcement of prohibited eagle take
and, if so, whether it is appropriate to
resolve any such enforcement through a
settlement will consider the conduct of
a company in siting and operating
projects. Settlement agreements may be
appropriate under either the criminal or
civil provisions of the Eagle Act.
Finally, in response to the last
comment, the statute of limitations for
criminal and civil enforcement actions
is five years and we would not expect
enforcement of take prior to 2009.
Comment: In the original 2009
rulemaking, existing projects were

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considered part of the baseline and were
not required to implement any
additional mitigation requirement for
take when obtaining a permit. The
Service should consider a similar
approach here for existing projects that
have already invested significant
resources in their projects and are
meeting the recommended measures
outlined in the Wind Energy Guidelines
(WEG) and ECPG. Similar to the
analysis for historical tribal take for
religious use, the Service should
acknowledge that take from existing
infrastructure is part of the baseline.
Authorization of such take should not
affect take limits established by the
Service. Many existing power line
retrofit programs are improving the
baseline condition by reducing
mortalities.
Response: Ongoing incidental take
that has been occurring on a relatively
steady basis since before 2009 is part of
the baseline and therefore does not
require offsetting compensatory
mitigation. The Service will take into
consideration the conservation
measures already in place in developing
permit conditions for these sources of
take.
Comment: We agree with the Service’s
decision to decline to require the
following measures at wind energy
projects: Increase in frequency of
turbine site inspection to search for
physical evidence of mortality/injury
event; development and employment of
video surveillance and other
technologies (impact alarms); and/or
providing onsite personnel to facilitate
monitoring of larger wind farms. These
practices are clearly not demonstrated,
effective best management practices.
Response: We appreciate this
opportunity to clarify our position. We
have not made any final decisions about
the use of such measures; we merely
noted that they have not yet been shown
to be effective.
Comment: The standard language on
permits stating that the authorization
granted is not valid unless the permittee
is in compliance with all other federal,
tribal, state, and local laws and
regulations is concerning. The language
creates the result that some federal
permits could be of little value due to
state restrictions on issuing incidental
take permits for ‘‘fully protected’’
species, such as in California. The
Service should consider alternative
language that would state that the
applicant is responsible for ensuring
compliance with other federal, state,
and local law.
Comment: Entities seeking a federal
permit to take bald or golden eagles may
not be able to obtain a state-level permit

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to be in compliance with state laws.
This could potentially put the state fish
and wildlife agencies in the position of
holding up the issuance of a federal
permit or revocation of a permit, due to
the lack of authority or ability to issue
a state-level permit. The regulations
should be revised to include a
framework or pathway within the
permit structure that requires
coordination between the Service
region, the state fish and wildlife
agency, and the applicant to discuss
issuance of any state permits. This will
be imperative in states where there is no
authority or process to issue a state-level
permit to reduce the potential conflict
between the state agency and the permit
applicant.
Comment: The provision that permits
can be issued to or valid only for
‘‘otherwise lawful’’ activities should be
removed. It is built into the ESA
statutory language, but is not present in
the Eagle Act. The concept under both
ESA programs and the Eagle Act has
been misconstrued and inappropriately
applied. Specifically, it can cause
confusion, leading to delays and to
occasional litigation over permit
processing and issuance.
Response: We have revised the
language that said the federal Eagle Act
authorization is not valid if a permittee
is not in compliance with the laws and
regulations of other jurisdictions. The
new language states: ‘‘You are
responsible for ensuring that the
permitted activity is in compliance with
all Federal, tribal, State, and local laws
and regulations applicable to eagles’’
(§ 22.26(c)(11)). When seeking a federal
permit, persons should do their due
diligence to determine whether bald and
golden eagles are protected under other
laws and whether their action may
require additional authorizations. We
will defer to state, tribal, and local
authorities’ interpretation of their own
laws and regulations and will continue
to work closely with those entities in
providing any requested assistance in
enforcing non-federal laws and
regulations.
Comment: The timeframes associated
with processing a permit application
were initially underestimated. Only one
eagle permit has been issued by the
Service at the time of this letter. The
final regulations should contain
processing timeframes.
Response: The Service has issued over
400 permits under the 2009 permit
regulations. The false assertion that we
have issued only one permit has been
made repeatedly by one industry for
which we have issued only one permit.
We are not including permit issuance
timeframes in the regulations because

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the time it takes to issue a permit varies
enormously depending on the scale and
complexity of the activity that will
result in take, the need to prepare an
analysis under NEPA, the quality and
completeness of the data and other
information provided by the applicant,
and many other factors.
Comment: We recommend more
realistic penalties for violations be
instituted. The Service should review
and address enforcement actions and
measures in the context of eagle take
violations (under both the MBTA and
the Eagle Act). Presently, it appears that
resources are inadequate for
enforcement in the field, as well as a
reticence for the Service and the courts
to prosecute violators.
Response: The Service, as part of DOI,
is an agency in the Executive Branch of
government. Civil and criminal
penalties tied to federal laws are set in
statute and those statutes are set by the
Legislative Branch of government
(Congress). However, in 2015 Congress
mandated that federal agencies update
penalties for civil violations of statutes
they are responsible for enforcing. The
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 requires agencies to adjust the
level of civil monetary penalties and to
make subsequent annual adjustments
for inflation. See Public Law 114–74,
701, 129 Stat. 584. The Service
subsequently updated civil penalty
amounts for all statutes it enforces,
including the Eagle Act. See 81 FR
41862 (June 28, 2016). The maximum
civil penalty under the Eagle Act
increased from $5,000 to $12,500 for
any violation occurring after July 28,
2016, and the new penalty will be
adjusted annually for inflation. See 50
CFR 11.33 & 16 U.S.C. 668(b).
When issues of take are brought to the
attention of the Service, they become an
investigative priority for the Service. If
it appears that the take violated federal
law, the results of the investigation are
brought to the attention of either the
DOJ or DOI’s Office of the Solicitor, for
review and criminal or civil
prosecution. The DOJ decides, in
consultation with the Service and the
Office of the Solicitor, whether or not to
prosecute violations of federal law.
Comment: In the proposed rule, the
Service provided a response to
comments that implies requiring a Bird
and Bat Conservation Strategy (BBCS) is
consistent with its regulations: A BBCS
is a vehicle created by the 2012 landbased WEG. Requiring a BBCS
contradicts the voluntary nature of the
WEG, and also contradicts the WEGcreated concept of the BBCS. The
Service should clarify in the preamble

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to the final rule that a BBCS (or
collection of documents that serve the
function of a BBCS) is voluntary.
Response: Preparation of a BBCS is
voluntary under the WEG. Preparation
of an eagle conservation plan is
voluntary under the ECPG. Neither the
WEG nor the ECPG confers the take
authorization necessary to shield an
entity from enforcement for prohibited
take under the Eagle Act. A permit is the
necessary mechanism to confer the
authorization needed to take eagles, and
permits require avoidance and
minimization measures. Some
applications for eagle permits (e.g., for
most wind energy facilities and other
projects that are large-scale and have the
potential for significant or ongoing
impacts) will require essentially all the
information and commitments that are
generally found in a BBCS. In those
cases, the compilation of information
submitted need not be referred to as a
‘‘Bird and Bat Conservation Strategy’’
(particularly if take of bats is not likely)
or an eagle conservation plan, but
whatever it is called does not change the
requirement that certain information
necessary for the Service to determine
that the applicant will undertake
appropriate avoidance and
minimization measures must be
submitted by the applicant.
Comment: The Service should clearly
define for its staff that the scope of the
NEPA analysis should only include an
analysis of the environmental effects of
the issuance of an eagle permit and its
associated effects. As applying for the
permit is voluntary, the general siting,
construction, and operation of a project
should fall outside of the typical NEPA
analysis.
Response: We agree that the scope of
the NEPA analysis should include only
an analysis of the environmental effects
of the issuance of an eagle permit and
its associated effects, including the
effects of mitigation measures. Because
nearly all of the environmental impacts
associated with issuance of an eagle
permit relate to eagles, the analysis
already included for these species
should already be covered by the PEIS
for the majority of permits. Among the
exceptions would be most cases where
the 5% LAP take limit is exceeded and
whenever there exist extraordinary
circumstances that require an exception
to a categorical exclusion as defined
under NEPA. As such, any projectspecific NEPA analysis should truly be
circumscribed, as a majority of the
necessary analysis has already been
covered. The impacts of construction
and operation may be part of the
impacts analysis to the degree that the
permit covers the effects of those

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activities, including the mitigation for
the permit. Thus, the environmental
effects of any permit conditions and any
modifications to the proposed
construction or operation of the project
triggered by the permit review and
issuance process should be analyzed as
part of the NEPA process. We also note
that, although applying for a permit is
voluntary in nature, take of federally
protected species such as eagles is a
violation of federal law unless that take
has been authorized under a permit or
regulation.
Comment: The Service invokes the
Eagle Act statutory language that refers
to the ‘‘protection of . . . other interests
in any particular locality’’ as the
foundation for its proposed regulation.
However, promotion of a national
renewable energy industry is not an
‘‘interest’’ that relates to a ‘‘particular
locality.’’
Response: The fact that the permit
program overall may enhance a national
interest does not mean it violates the
Eagle Act. Individual permits are not
being issued to a national interest. As a
comparison, preservation of eagles is
also a national interest, and we can
issue a permit that would benefit eagles
in any particularly locality. In fact, a
specific town, city, county, or set of
coordinates at which one or more wind
turbines is located would constitute a
‘‘locality,’’ which accurately reflects the
scale at which the Service issues
individual permits.
Comment: The language relating to
‘‘resource development and recovery
operations’’ indicates that, to the extent
Congress considered that the Service
could use incidental take permits issued
under the Eagle Act as a tool to promote
a national industry, the agency’s
authority to issue them is specifically
limited to ‘‘the taking of golden eagle
nests.’’
Response: This comment confuses
two different provisions of the Eagle Act
that were established by Congress in
separate amendments to the Act, one in
1962 (‘‘for the protection . . . of
agricultural or other interests in any
particular locality’’ (Pub. L. 87–884,
October 24, 1962)), and one in 1978
(‘‘the Secretary of the Interior, pursuant
to such regulations as [s]he may
prescribe, may permit the taking of
golden eagle nests which interfere with
resource development or recovery
operations’’ (Pub. L. 95–616, November
8, 1978)). The two clauses provide the
Secretary authority to issue permits for
different activities and are separated by
multiple clauses addressing separate
types of entities and interests that may
receive permits.

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Comment: The proposed regulation is
inconsistent with the 1916 convention
with Canada aimed at conservation of
migratory birds and its 1995 protocol
(‘‘U.S.-Canada Convention’’). Article II.3
of the Convention specifies that ‘‘the
taking of migratory birds may be
allowed at any time of the year for
scientific, educational, propagative, or
other specific purposes consistent with
the conservation principles of th[e]
Convention.’’ However, the rule is not
aimed at advancing ‘‘scientific,’’
‘‘educational,’’ or ‘‘propagative’’
purposes. Also, none of the
conservation principles listed in the
Convention includes promotion of wind
energy or any efforts aimed at
addressing climate change.
Response: This regulation does not
‘‘promote’’ wind energy; it sets forth a
suite of new and amended provisions to
increase protection of eagles and
streamline the permitting process to
encourage any project proponent that
may take eagles to apply for permits and
thereby implement conservation
measures to reduce and offset projected
take of eagles that otherwise would not
be implemented. The regulatory
amendments are consistent with the
preservation of eagles under the Eagle
Act, which is a standard that potentially
provides more protection to eagles than
the MBTA or any of its underlying
treaties. Moreover, the Canada
Convention does not prohibit the
Service from authorizing incidental take
of eagles or other migratory birds by
industrial activities. As an initial matter,
the Canada Convention itself does not
include eagles in the list of bird species
and families it applies to; the treaty with
Mexico covers the avian family that
includes eagles, and the treaty with
Russia specifically includes bald and
golden eagles. Second, as the
commenter notes, the Canada
Convention, as amended by the 1995
protocol, authorizes the parties to allow
the taking of migratory birds for ‘‘other
specific purposes consistent with the
conservation principles of this
Convention.’’ The 1995 protocol called
for a comprehensive approach to the
conservation and management of
migratory birds, outlining several
conservation principles and the means
to pursue those principles, including
monitoring, regulation, and
enforcement. See Article II. Several
court cases have confirmed the Service’s
authority to regulate and enforce the
MBTA’s take prohibitions in the context
of incidental take (see, e.g., United
States v. FMC Corp., 572 F.2d 902 (2d.
Cir. 1978) (holding that it is appropriate
for the Service to use enforcement

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discretion to police activities that
incidentally take migratory birds); Publ.
Employees for Envtl. Responsibility v.
Hopper, 827 F.3d 1077, 1088, n. 11 (D.C.
Cir. 2016) (noting that an offshore wind
facility could apply for a permit to cover
its activities likely to cause incidental
take)). Third, Congress enacted
legislation directing the Service to
specifically authorize incidental take
caused by military readiness activities,
signifying that Congress both
interpreted the MBTA to otherwise
prohibit incidental take and viewed the
incidental take authorization as
consistent with the underlying treaties.
See Public Law 107–314, 315, 116 Stat.
2458 (2002); and 50 CFR 21.15.
Comment: If the Service actually
believes any additional anthropogenic
mortality cannot be sustained by golden
eagles, how can they presently be giving
out a permit for the take of 40 nestlings
by the Zuni Tribe? The Zuni Tribe has
been getting a permit since 1987; that is
a long track record of very local
mortality.
Response: The permit referenced by
this commenter is actually issued to the
Hopi, not the Zuni, Tribe. Region 2 of
the Service has fully analyzed the
effects of this permit in an April 2013
environmental assessment (U.S. Fish
and Wildlife Service 2013b). That
document found the actual take, which
averages around 23 annually, is
biologically sustainable under the
Service’s management objective for
golden eagles. It is also important to
recognize that the Hopi take of golden
eagles pre-dates all other forms of
recorded anthropogenic mortality and is
a protected activity under the Religious
Freedom Restoration Act (42 U.S.C.
2000bb et seq.). The Service assigned
priority over all but emergency take of
eagles to Indian religious take in the
2009 Eagle Rule; thus the Service has an
obligation to reduce other forms of more
recently instituted anthropogenic take
before it impacts the Hopi by reducing
their take.
Comment: The regulations should
include an explanation of how the
Service intends to implement the
United Nations Declaration on the
Rights of Indigenous People (‘‘UN
DRIP’’) relative to the issuance of 30year take permits for eagles. Relevant
provisions of the UN DRIP that should
have been discussed include, among
other things, the impact of the following
Articles on the Service’s take
regulations: Article 19 (requiring ‘‘free,
prior and informed consent’’ of
indigenous peoples where the United
States adopts or implements legislative
or administrative measures which may
affect them); Article 24 (clarifying, inter

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alia, that indigenous peoples have ‘‘the
right to their traditional medicines and
to maintain their health practices,
including the conservation of their vital
medicinal plants, animals and
minerals’’); and Article 25 (emphasizing
the right of indigenous peoples to
‘‘maintain and strengthen their
distinctive spiritual relationship with
their traditionally owned or otherwise
occupied and used lands, territories,
waters and coastal seas and other
resources’’).
Response: The United States did not
originally vote in favor of the United
Nations Declaration on the Rights of
Indigenous Peoples in 2007, but in
2010, President Obama announced U.S.
support for the Declaration by
Presidential Proclamation while noting
that the Declaration is not legally
binding or a statement of current
international law (see Announcement of
United States Support for the United
Nations Declaration on the Rights of
Indigenous Peoples, U.S. Dept. of State
(2010), available at: http://
www.state.gov/documents/organization/
184099.pdf). The Service will continue
to consult with federally recognized
tribes in the spirit of the Declaration
when any potential authorization of
eagle take may affect tribal interests,
consistent with the Presidential
Proclamation and the Service’s Native
American Policy at 510 FW 1. The
Federal Register publication of 50 CFR
22.26 in 2009 sets forth our policy with
respect to consultation and NHPA
compliance when issuing permits (74
FR 46836, September 11, 2009, pp.
46844, 46873, 46874).
Comment: The rule needs more clarity
as to when a permit is required. For
example, should items such as the
distance from a known natal area,
significant presence of eagles based on
telemetry data or similar measures, or
the density of eagles in the immediate
vicinity of the proposed project be made
into clear triggers for consultation?
Furthermore, there is no specific
guidance as to the type of projects that
may need to apply. Would, for example,
a 10- to 12-story building in a valley
with minimal documented flyovers be
treated the same as the conversion of a
small jeep road to a paved thoroughfare?
If the newly paved road brings
significant and ongoing human
disturbance to a relatively pristine
location in close proximity (say within
15 miles) of known eagle nests or natal
areas, would both have the same
consultation need?
Response: A permit is required to be
in compliance with the Eagle Act if take
of an eagle occurs. It is difficult to
predict with certainty exactly what

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precise circumstances will result in an
eagle being taken. However, we have
developed guidance documents to help
people understand when their activities
may take eagles. Guidance for how to
avoid disturbance of bald eagles can be
found in our 2007 National Bald Eagle
Management Guidelines. It is important
to note that some of the recommended
distance buffers in those guidelines
should be increased in more open and
less forested landscapes. We are
working on official guidance for
avoiding disturbance of golden eagles.
Comment: Projects with eagle permit
applications that have been in process
prior to release of the final regulations
should not be subject to new rule
provisions unless an applicant
volunteers to incorporate the new
provisions. Such changes would
significantly extend the time to provide
project information, increase Service
staff time, drive up costs further, delay
permit processing, and adversely affect
project financing very late in the
financing process. These applications
should be considered first in line for the
purposes of consideration of the LAP
threshold. Many of the sites did not
perform 2 years of preconstruction eagle
use monitoring because they believe
they are low risk. If these rules are
finalized, they should not be required to
perform additional monitoring.
Response: The final regulations
contain provisions that allow applicants
to obtain coverage under all of the
provisions of the prior regulations if
they submit complete applications
satisfying all of the requirements of
those regulations within 6 months of the
effective date of this final rule.
However, with respect to one of the
examples used by the commenter, we
note that the Service guidance since
2011 has recommended 2 or more years
of pre-construction eagle surveys, so any
prospective wind projects conceived
since then should have been aware of
this.
Comment: We believe additional
clarification is needed regarding
whether the proposed rule is retroactive.
Response: The regulations are not
retroactive, and we are incorporating a
6-month ‘‘grandfathering’’ period after
the effective date of this rule (see DATES,
above, and § 22.26(i), below) wherein
applicants (persons and entities who
have already submitted applications)
and project proponents who are in the
process of developing permit
applications can choose whether to
apply (or re-apply) to be permitted
under all the provisions of the 2009
regulations or all the provisions of these
final regulations.

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Comment: Existing HCPs that include
golden eagle coverage should be
‘‘grandfathered’’ in without fear of these
proposed regulations being interpreted
to undermine the HCP take
authorization by imposing additional
mitigation requirements. These HCPs
were designed to assure permittees there
would be ‘‘no surprises,’’ that they were
not committing to conservation
measures, only to have the rules
changed on them part way into the
permit term. The final eagle permit rule
must exempt from the final rule any
eagle ESA incidental take permits
whose applications have been submitted
prior to the effective date of the final
rule. The regulations should also
exempt Natural Resource Community
Plans and HCPs that address eagles in
anticipation of obtaining ESA incidental
take permits.
Response: In 2008, we issued a final
rule addressing incidental take
authorization under the ESA and Eagle
Act (73 FR 29075, May 20, 2008). This
rule established regulations under 50
CFR 22.11 to provide take authorization
under the Eagle Act to ESA section
10(a)(1)(B) permittees, where bald or
golden eagles are included as covered
species, as long as the permittee is in
full compliance with the terms and
conditions of the ESA permit.
Compliance with the terms and
conditions of the permit includes not
exceeding the amount of incidental take
that was authorized. Failure to abide by
the ESA section 10 permit requirements
that pertain to eagles may, however,
potentially void the Eagle Act take
authorization for these permits, and
result in permit revocation. In addition,
the 2008 rule included a provision
clarifying the criterion for permit
revocation for eagles: Whether the
activities covered under the permit are
compatible with the preservation of the
bald or golden eagle, instead of the
criterion set forth in 16 U.S.C.
1539(a)(2)(B)(iv). For ESA permits
already in effect, the conservation
measures required to cover bald and
golden eagles under previously issued
ESA incidental take permits were
deemed to be compatible with the
conservation standards of the Eagle Act.
This final rule does not modify those
2008 regulations. Thus, the terms and
conditions of existing ESA section 10
permits where eagles were included as
covered species, and where the
permittee is in compliance with the
conditions of ESA permit, are not
affected by this rulemaking. In contrast,
ESA incidental take authorizations for
eagles that are not already permitted are
subject to the standards of permits

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issued under the Eagle Act incidental
take permit regulations, due to the Eagle
Act requirement that any permit issued
must be ‘‘compatible with the
preservation of eagles’’ and the Service’s
2009 interpretation and application of
that preservation standard under the
Eagle Act. On May 10, 2011, the Service
Director issued a memorandum to the
Regional Directors clarifying that the
terms and conditions of new ESA
incidental take permits that cover
eagles, including the mitigation
requirements, must meet the issuance
criteria of the Eagle Act regulations at 50
CFR 22.26. The memorandum reads, in
part: ‘‘[T]he Service publically
committed through its Finding of No
Significant Impact for the new Eagle Act
regulations that it will not issue any
take permits for golden eagles beyond
historically authorized take levels,
unless the impacts to golden eagles can
be completely offset’’ to achieve no net
loss to the breeding population. This
policy applies to permits issued under
the ESA as well as the Eagle Act. If bald
or golden eagles are included as covered
species in a section 10 permit, the
avoidance, minimization, and other
mitigation measures in the project
description and permit terms and
conditions must meet the Eagle Act
permit issuance criteria of 50 CFR
22.26.’’ Therefore, in order for the
Service to confer Eagle Act take
coverage through the ESA section 10
permit program, ESA HCPs must meet
the Eagle Act standards for permitting,
including mitigation requirements. We
believe it is appropriate to allow
potential applicants who are well along
in the planning process to move forward
under the existing regulations.
Therefore, we are taking a similar
approach for potential ESA section 10
applicants as we are for potential Eagle
Act permit applicants, in that applicants
who submit an ESA section 10
application that includes take coverage
for bald or golden eagles within 6
months of the effective date of this rule
may choose whether the standards of 50
CFR 22.26 that were in place prior to
that effective date will apply to their
permits or the standards of these final
regulations.
Comment: The Service encourages
applicants to include bald and golden
eagles as covered species in HCPs
developed for incidental take permits
under the ESA. The final eagle rule
should make clear that Eagle Act
permits would satisfy the requirements
under the ESA regulations at 50 CFR
part 17 for future permittees that are
seeking permit coverage for a single

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project for take of species covered by the
ESA and the Eagle Act.
Response: Eagle Act permit coverage
that is not conferred under issuance of
an ESA section 10(a)(1)(B) incidental
take permit associated with an HCP
explicitly does not satisfy the
requirements under the ESA regulations
at 50 CFR part 17 for permit applicants
seeking permit coverage for take of
species prohibited by the ESA and the
Eagle Act. Simply put, an Eagle Act
permit issued under 50 CFR 22.26 does
not provide take authorization under the
ESA.
Comment: Affected tribes should be
notified immediately upon receiving
notice of a take and invited to take
culturally appropriate action with
respect to eagle remains with which the
tribe has a geophysical association.
Response: Regarding allowing affected
tribes to take culturally appropriate
action with respect to remains of eagles
taken under permits, much depends on
what those cultural practices are. For
example, we cannot authorize tribal
rites on private land, and we also will
not allow tribes to take direct possession
of the eagle remains. We understand the
desire of some tribes to retain eagles
found on or near Indian lands; however,
to maintain a fair and equitable
distribution of eagle feathers to all
federally recognized tribes, the NER
must fill orders on a first-come, firstserved basis, and require that all usable
eagles be sent to the NER for
distribution in this manner. Any eagles
diverted from coming to the NER would
decrease the number of eagles available
to other tribal members, and may
unfairly impact some tribes.
Comment: Proposed new standards
for ‘‘required determinations’’ found at
50 CFR 22.26(f)(2)–(8) are so vague as to
render the refusal of the Service to issue
a permit wholly discretionary, and
unreviewable by judicial authority. A
protected local interest such as a utility
must be reasonably allowed to receive a
permit in order to meet the statutory
objective of continuing its activity
without fear of enforcement. While
certain simple, objective, and
inexpensive criteria are appropriate, the
proposed criteria are generally vague or
overreaching to the extent of flouting
the statutory purpose of the permit
program for protected local interests.
Any protected interest should not have
to satisfy the population requirement
because the statute mandates that a
permit program must ‘‘permit the taking
of such eagles for the protection of . . .
other interests in a particular locality
. . . .’’ [emphasis added]. In such
instances, the statute clearly requires
that protected activities shall be

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permitted over the interests of the birds
in order for those activities to be
conducted without fear of enforcement.
[This comment also specifically
objected to provisions of § 22.26(f)(2)–
(8) related to the LAP, stipulations that
permit issuance take into account
ongoing criminal or civil actions, and
the priority afforded to take to satisfy
Native American religious needs.]
Response: We disagree with the
commenter that the required
determinations in § 22.26(f) are
‘‘generally vague or overreaching to the
extent of flouting the statutory purpose
of the permit program for protected
local interests.’’ The preamble to the
proposed rule explains most of the
criteria added to 50 CFR 22.26(f) in this
rulemaking in detail and clarifies how
the Service will determine whether an
applicant is in compliance. The
proposed required determinations are
consistent with the statutory purposes
of the Eagle Act. As we stated when first
promulgating this regulation in 2009,
the Service interprets the statutory
phrase ‘‘for the protection of . . . other
interests in any particular locality’’ as
enabling us to accommodate a broad
spectrum of public and private interests
that might incidentally take eagles, as
long as we can determine that any
authorized take is compatible with the
preservation of eagles (see 74 FR 46836,
September 11, 2009, p. 46837). We do
not agree with the commenter’s
interpretation that the ‘‘protection of
. . . other interests’’ language requires
the Service to ensure the protection of
other interests without balancing those
interests with the management and
protection of the species the statute was
enacted to protect.
The commenter takes issue with the
definition of ‘‘LAP,’’ referenced in
proposed § 22.26(f)(2), as being arbitrary
and vague, and the commenter
misconstrues the effect of exceeding the
LAP threshold as requiring the rejection
of a permit application. This required
determination does not compel us to
reject an application when take in the
LAP exceeds 5%; it instead specifies
that any take within the limit is
compatible with the preservation of
eagles. Take above the limit would
require further environmental analysis
over that conducted in the PEIS for this
rule. That analysis might show that no
additional action is required for the
permit to be compatible with the
preservation of eagles, or it may show
the take could be compatible with
additional action. Examples of such
additional actions could be to require
implementation of additional
compensatory mitigation to offset take
above the 5% LAP threshold or, for

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existing projects within the LAP area, to
require measures that reduce the
project’s take when they seek incidental
take permits. Many commenters, in
particular state agencies and federally
recognized tribes, strongly support the
decision to ensure management and
protection of not only the national
population of bald eagles and golden
eagles, but also regional and local
populations. The LAP analysis, along
with the regulatory requirements
contingent upon that analysis, is one of
the primary methods by which we can
properly manage and adequately protect
local eagle populations and ensure that
cumulative effects do not become
significant.
To the extent the commenter argues
that denial of a permit on any of the
grounds listed in § 22.26(f) would be
unverifiable and arbitrary, the general
permit regulations contain review
procedures at 50 CFR 13.29 setting forth
the administrative remedies an
applicant may pursue if a permit
application is denied for any reason.
These administrative remedies require
the issuing officer to state the reasons
for permit denial and to describe the
evidence used to reach that decision. A
permit applicant would also be free to
pursue judicial review of a permit
denial once all administrative remedies
are exhausted.
With regard to proposed § 22.26(f)(8)
(§ 22.26(f)(7) in this final rule), which
requires the Service to determine, before
issuing a permit, that issuance of the
permit will not interfere with an
ongoing civil or criminal action
concerning unpermitted past eagle take
at the project, one element of civil and
criminal cases is establishing that take
of eagles is not permitted, requiring
coordination between the Service’s law
enforcement and migratory bird
divisions early in an investigation. Later
in the process, court judgments may
include a sentencing or probation
condition that an eagle take permit be
sought; or where settlement negotiations
have been successful, settlement
agreement often includes a requirement
that a company apply for an eagle take
permit. Without such a determination,
issuance of a permit may in some cases
disrupt the ongoing investigation,
prosecution, or negotiation process.
Finally, the commenter disagrees that
authorization of take for the religious
purposes of Indian tribes should be
prioritized over activities such as
farming or utility development or
maintenance. These amendments do not
change the relative priority order of
religious take and take for other
activities. Moreover, we stand by the
reasons for originally establishing the

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priority order set forth in the preamble
to the 2009 regulation (74 FR 46836,
September 11, 2009).
Comment: Rather than require a
permit, the Service should develop best
management practices (BMPs) for
industries to serve as a tool box from
which companies can select and tailor
components as necessary to operate
under, monitor activities, and
voluntarily report any passive ‘‘take.’’
Companies can choose either to rely on
the guidelines or instead to develop
their own internal construction
standards that meet or exceed these
guidelines. The use of BMPs, coupled
with a commitment by the Service to
exercise enforcement discretion for
situations in which the BMPs did not
avoid all impacts to eagles, could be an
alternative to permitting. The Service
should evaluate an alternative under
which de minimis levels of passive
‘‘take,’’ including at oil and gas
facilities, would be explicitly exempted
from regulation under the incidental
take permitting program. The Service
should consider an activity-based
programmatic approach similar to that
under the Clean Water Act’s nationwide
permit program. That program covers
specific activities that may be used
across a number of industry sectors.
Similarly, the Service should consider
an approach utilizing the permit-by-rule
method, which may also improve the
approval process for activities that
present known hazards and with known
and effective mitigation techniques.
Response: The process described in
the first comment is exactly how the
permit process is designed to work,
except under a permit: (1) Enforcement
discretion is not necessary because the
take is authorized; and (2) compensatory
mitigation is required for take of golden
eagles to offset the effects of the take.
Because of the statutory language of the
Eagle Act, the Service cannot exempt
any take from regulation, and cannot
exempt any bald eagle take from take
liability without a permit (16 U.S.C. 668
and 668a). We will consider legal
mechanisms for streamlining take
authorizations to low-risk or lower
impact activities in the future.
Comment: The Service should not
postpone redefining the definition of a
‘‘low risk’’ project of the eagle permit
program in this rulemaking. The effort
to establish a low-risk permit category
should be a high-priority item for the
Service as it is integral to establishing a
streamlined permitting process.
Response: We agree that this is a high
priority item. In the meantime, the PEIS
programmatically analyzes eagle take
within certain levels and the effects of
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mitigation requirements to allow the
Service to tier from the PEIS when
conducting project-level NEPA analyses.
The PEIS will cover the analysis of
effects to eagles under NEPA if: (1) The
project will not take eagles at a rate that
exceeds (individually or cumulatively)
the take limit of the EMU (unless take
is offset); (2) the project does not result
in Service authorized take (individually
or cumulatively) in excess of 5% of the
LAP; and (3) the applicant will mitigate
using an approach the Service has
already analyzed (e.g., power pole
retrofitting), or the applicant agrees to
use a Service-approved third-party
mitigation program such as a mitigation
bank or in-lieu fee program to
accomplish any required offset for the
authorized mortality. The PEIS,
therefore, should streamline the NEPA
process for these projects.

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Nest Take Permits
Comment: The proposed rule leaves
‘‘home range’’ undefined, but it is used
in the definition of ‘‘territory’’: ‘‘the area
that contains one or more eagle nests
within the home range of a mated pair
of eagles, regardless of whether such
nests were built by the current resident
pair.’’
Response: Home range means the area
an animal uses to secure food and
shelter, and through which the animal
moves on a regular basis.
Comment: The proposed definition of
‘‘eagle nest’’ is ambiguous and likely
subject to misinterpretation. Using our
residential development project as an
example, the Service has constructed
two manmade experimental platforms
in the vicinity of our project with the
intent of encouraging golden eagle
nesting. The experiment has not been
successful. No nests have been built
since the platforms were installed more
than 3 years ago. Based on the
ambiguous language of this definition,
however, the experimental platforms
themselves could be considered nests if
a golden eagle simply lands on, and
thereby ‘‘uses’’ the platform—which is
an assemblage of material—during the
breeding season.
Comment: There seems to be
ambiguity surrounding the definition of
an in-use nest. The proposed rule will
allow for removal of an in-use nest prior
to egg-laying, yet the definition fails to
determine if alternate nests in which the
adults regularly perch would also be
considered an in-use nest.
Response: The definition of ‘‘eagle
nest’’ in this rule includes the phrase
‘‘for purposes of reproduction,’’ so it
does not encompass nest structures that
an eagle simply lands on.

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Comment: With regard to the
proposed definition of ‘‘alternate nest,’’
it is unreasonable to assume that a nest
is an alternate nest in perpetuity, but
this definition assumes that all nests not
in use within a nesting territory are, in
fact, alternate nests without reference to
any time frame. Similarly, the definition
makes no reference to the condition of
the nest.
Response: There is a great deal of
variability as to how long a nest will be
unused before eagles return to use it
again. Eagles typically build nests where
conditions are suitable for raising young
relative to other locations. Sometimes
those conditions remain relatively
steady, sometimes they fluctuate
between years, and sometimes they
disappear. Even nests in good locations
may not be used for many years. As for
the condition of nests being the
determining factor in whether they
should remain protected, eagle nests are
not infrequently damaged or partially
destroyed by severe weather, but then
restored to good condition by the eagles
early in the breeding season. We think
it is reasonable to err on the side of
caution in protecting potentially
valuable nests by not providing an
arbitrary timeframe for when an eagle
nest is no longer considered an eagle
nest. At any rate, these regulations
provide for a permit process that allows
for removal of nests.
Comment: Loss of a nesting territory
is far more significant than the take of
an individual, as the cumulative
reproductive contribution of the pair or
territory over time is lost. For this
reason, loss of nesting territories should
not be permitted unless it can be
affirmatively determined that such loss
will not have a detrimental effect on the
LAP or on a critical subpopulation.
Response: The Service agrees with
this comment, and does take into
account the effects of territory loss on
the eagle management unit and LAP
take limits, as described in the Status
Report on page 26.
Comment: Allowing removal of eagle
nests just because it is outside of the
breeding season is short sighted, and
ignores the underlying role of adult
pairs to annually defend their nests and
near nest proximity, so that
reproduction can continue in
subsequent years, not just in the current
nest cycle.
Response: Prohibiting removal of
nests outside the breeding season
amounts to prohibiting eagle nest
removal under any circumstances. It is
not realistic to place a total ban on
removing eagle nests. As bald eagle
populations continue to grow, an
increasing number of nests are built in

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locations that pose safety hazards or
severely restrict a landowner’s ability to
use his or her property. The regulations
for permitting eagle nest removal
include many safeguards to ensure that
nest removal is compatible with the
preservation of eagles.
Comment: Established protocols for
monitoring throughout the course of
nest take permits must be developed,
and monitoring must be required by
trained and approved independent
experts. Monitoring time for nest and
incidental take permits as required by
permits should be similar to that
required by most eagle-nest monitoring
programs—a minimum of 2 hours per
week by a trained independent monitor.
Response: For nest take permits, as
opposed to disturbance permits,
monitoring would be required mostly to
detect whether the resident pair of
eagles nest successfully elsewhere. The
level of monitoring will be contingent
on the biological significance of the nest
site to the eagle population or local
(human) community, the ability to
identify the pair of eagles that were
potentially displaced, the feasibility of
monitoring at different levels of
intensity, and other case-specific
factors.
Comment: The Service should clarify
that it is their intention that wind
energy projects apply the buffer
distances set forth in the National Bald
Eagle Management Guidelines to wind
farm infrastructure.
Response: The National Bald Eagle
Management Guidelines do not include
recommended buffer distances between
bald eagle nests and wind turbines
because the primary concern with
turbines is blade strike mortality and
not disturbance. With respect to
disturbance, many of the other
recommendations in the Guidelines
would apply to wind turbines during
construction and maintenance.
However, at this time, we do not have
sufficient information to recommend
buffer distances between eagle nests and
wind turbines to avoid or reduce the
likelihood of mortality. More
observation is needed before the Service
will issue official guidance for distance
buffers between eagle nests and wind
turbines.
Comment: Without an objective
assessment (i.e., not based on nest
structures) of what the spatial extent of
a specific pair’s territory is, there is no
way to assess whether or not a nest is
within a pair’s territory without circular
reasoning, and therefore no way to
determine if a territory, rather than a
nest or set of nests, was abandoned.
Only in cases where there is
independent observation of the extent of

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space use of a specific breeding pair,
most likely through telemetry or colormark observations, will it be possible to
assess territory boundaries
independently of nests. The Service
should provide an objective,
operationally defined (i.e., defined in
terms of observable characteristics)
definition of the spatial extent of an
eagle territory or abandon its reliance on
availability of a nest ‘‘within the nesting
territory’’ to assess territory
abandonment.
Response: What this commenter is
suggesting is not possible. The Service
directly addresses this admittedly
difficult issue in the Status Report in the
following way: ‘‘We recognize that for
golden eagles in particular, nesting
territories are often occupied by
successive generations of individuals.
Additionally, for both species, some
nesting territories hold more value than
others (Millsap et al. 2015, Watts 2015).
Moreover, it is often difficult to predict
in advance whether an activity will
result in loss of a nesting territory, or
simply the loss of a nest structure and
cause a shift in use to an existing or new
alternative nest—which may have little
or no consequence to the eagle
population (Watts 2015). For these
reasons, each instance where loss of a
nesting territory is a possible outcome
requires additional review on the part of
Service biologists. Permitting the loss of
high-value nesting territories with a
long history of occupancy and
production could have greater
population-level consequences.’’
Comment: The Service has described
that in populations with high eagle
density, the biological value of a single
nest to eagle populations is lower, as
productivity in highly saturated eagle
populations decreases due to nests
being built in less than ideal locations
in relation to food sources and increased
competition among nesting pairs. Eagle
nest-monitoring data by the Florida Fish
and Wildlife Conservation Commission
do not support this conclusion. The
Service should consider data available
from state agencies and similar partners
when determining biological value of
individual nests in order to ensure
permitting decisions are evidence-based
and consistent with the proposed
preservation standard.
Response: There is increasing
evidence in raptor populations that
high-quality nesting sites are occupied
first, and more consistently, than lower
quality nesting sites. This factor
contributes to what is known as the
habitat heterogeneity effect, a biological
process whereby overall per capita
productivity of a raptor population
declines with increasing density of nests

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because newer territories are in lesser
habitats and have lower productivity.
This is the basis for the Service’s
statement, and it is described in more
detail in the Status Report on page 6.
However, the Service also acknowledges
the importance of taking individual
circumstances into account, including
shifts in prey availability over time that
may lead to temporal variation in
territory quality.
Comment: The Service refers to
‘‘alternate nests just being built’’ as
having low biological value. However,
in some territories, a newly built nest
may have greater biological value than
the most recently ‘‘in use’’ nest
depending on territory-specific factors.
We recommend that the Service allow
for territory-specific factors to be
considered in determining biological
value of nests when permitting nest
removal.
Response: We fully agree with this
comment. Assessing the biological value
of nests will include consideration of
site-specific factors, including
information pertaining to the
availability and past use of other nests
in the territory.
Comment: The Service should
consider the potential for inconsistency
in determining and applying ‘‘net
benefit’’ calculations, similar to the
issues raised in the Service’s approach
for determining compensatory
mitigation for permits under the 2009
regulations. The Service should also
consider whether the standard for ‘‘net
benefit’’ incentivizes removal of nests
over avoidance and minimization
measures, which could accelerate loss of
nest territories. If acceptable ‘‘net
benefit’’ standards for nest removal are
relatively low, as compared to the
cumulative cost for projects to avoid
and minimize, it can be expected that
more projects will pursue nest removal
permits rather than incidental take
permits.
Response: We acknowledge that the
net benefit requirement is somewhat
vague and could potentially be applied
inconsistently. However, we have
regular coordination calls between staff
who issue eagle permits from the
different Service Regional Offices, and
the application of this standard to
particular permits has been discussed so
far for every case where it has been
applied. We hope to be able to continue
that level of coordination to further
consistency in how this provision is
applied. We typically will require a
disturbance permit rather than a nest
removal permit if it is possible for the
potential applicant to avoid actual
removal of the nest. The regulations
prevent the Service from issuing a

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permit unless we determine there is no
practicable alternative to nest removal
that would protect the interest to be
served.
Comment: We recommend the Service
consider options to ensure the
persistence of local populations in areas
where eagle nests on artificial structures
represent a larger percentage of the LAP.
Response: Nests that eagles build on
artificial structures fall within the
definition of ‘‘eagle nests’’ protected
under the Eagle Act, the removal of
which would require a permit. The LAP
cumulative effects analysis, and revised
definition of the Eagle Act preservation
standard that includes the persistence of
local populations, both apply to nest
removal permits and are designed to
protect local populations even if a large
percentage of eagles breed on nests built
on artificial structures.
Comment: The proposed regulations
would retain the requirement that the
Service consider the availability of
alternative suitable nesting habitat, but
a finding that there is would not be a
prerequisite for issuing a permit. We
request that the Service reconsider this
proposal to remove this requirement
and instead require that suitable nesting
habitat be present, but not necessarily
available, in the area. Removal of this
requirement would reduce or eliminate
opportunities to apply mitigation
measures within the immediate vicinity
of the affected area.
Response: The types of conditions
that eagles nest in are widely variable.
In some circumstances, making nest
removal contingent on there being
suitable nesting habitat available is not
warranted or reasonable. For example,
more and more often, bald eagles are
nesting in risky infrastructure that does
not provide the conditions needed for
successfully nesting and fledging of
young. Such nests can also present
safety hazards and/or unduly restrict
people’s ability to conduct daily routine
activities. The regulations need to
provide an option to issue permits for
removal of nests that have marginal
biological value and also pose problems
or hazards to people or eagles,
regardless of there being suitable nesting
habitat in the vicinity.
Comment: The Service proposes to
use 10 consecutive days of continuous
absence as a national metric for
declaring a nest inactive. This metric
should be researched further and should
take into consideration activity patterns
of the species within the LAP where
nest take would occur. There is ample
research showing that juvenile bald
eagles use their nests up to 45 days after
fledging before they migrate, and often

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do not return to the nest for periods of
more than 10 days.
Response: The metric of 10
consecutive days has been in the
regulations for several decades and has
proven to be a reasonable timeframe for
purposes of both permitting and
protection of eagles. If young eagles
have left and not returned to a nest over
10 consecutive days, it is reasonable to
conclude the nest structure is no longer
critical to them and can be removed,
assuming other criteria warranting nest
removal have been met. We fully
recognize that nests might be revisited
and used for longer periods of time, but
loss of a nest after 10 days of non-use
is unlikely to pose a threat to survival
of the juveniles.
Comment: The proposed new nest
take rules do not give consideration to
the loss of habitat that accompanies a
nest take in areas with rampant growth
and development.
Comment: The regulations should
increase protection to the areas
surrounding active nests. The proposed
rule does not directly address buffers of
protection surrounding nests throughout
the year. Habitat modification can
undermine the viability of that food
source, threatening the continued
success of the nest. This potential loss
of productivity is not accounted for in
the permitting framework, yet could
have significant impacts on local
populations.
Response: The Eagle Act does not
provide direct protection to eagle
habitat, except for nests themselves.
However, our regulations and guidance
include a variety of strategies that take
habitat into consideration, because
habitat is, of course, necessary to
preserve eagles. With regard to nest take
permits, they can be issued only for
specific limited purposes, unless a net
benefit to eagles will be provided. The
biological value of a nest is closely tied
to the value of the surrounding habitat.
Thus removal of a high-value nest
would require a significant net benefit
to eagles. The Service’s
recommendations for preventing
disturbance to nesting bald eagles are in
our National Bald Eagle Management
Guidelines, including recommended
buffer distances for construction and
other activities near bald eagle nests. We
are in the process of developing
comparable guidance for golden eagles.
Comment: The Service should include
in the final document a clear decisionmaking process that includes discreet
criteria as to what constitutes an
anticipated emergency situation.
Permits should be limited to cases
where human health or safety is highly
likely to be endangered if no action is

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taken, and there is high confidence that
the nest does not contain eggs or young.
Comment: What is the definition of a
safety emergency (as used in the context
of the proposed rule revision)? How
does the Service make this
determination? Does the Service intend
to gain insight/formal input from other
federal agencies (e.g., Federal Aviation
Administration, U.S. Department of
Agriculture—Animal and Plant Health
Inspection Service—Wildlife Services,
Federal Highway Administration) that
have expertise and/or regulatory
authority in specific situations?
Response: We disagree with the
suggestion that, unless there is high
confidence that no eggs or young are in
a nest, the Service cannot issue a permit
for the purpose of protecting human or
eagle lives. We believe a safety risk to
people or eagles should take precedence
above leaving eggs or nestlings
undisturbed in the nest. In response to
the question about what constitutes a
safety emergency, the term is defined in
the regulations at 50 CFR 22.3 as ‘‘a
situation that necessitates immediate
action to alleviate a threat of bodily
harm to humans or eagles.’’ How we
will make the determination is a fair
question, but it may not be advisable or
helpful to codify specifications for what
factors must be present because of the
risk of excluding circumstances that we
failed to consider but which present a
serious risk of bodily harm. However,
we may develop some relatively broad
guidance to assist in making these
determinations in the future.
Comment: Under the proposed
changes to nest take permits, there is a
provision for the Service to waive the
requirement that nestlings be
transported to a foster nest or permitted
rehabilitator in the case of an emergency
nest removal. Even in cases where a nest
is not near a possible foster nest or
rehabilitator, the Service should put
forth all efforts to ensure that nestlings
are released back into the wild.
Response: The revision makes it
possible for the Service to legally
authorize the nest removal in a case of
emergency (imminent risk to human or
eagle safety) even when it is not feasible
to place the eggs or young with a
rehabilitator. Where it is reasonably
possible to do so, the permit will require
the eggs or young to be placed with a
permitted rehabilitator or other
similarly authorized facility.
Comment: We support the Service’s
position that a minimal level of
compensatory mitigation is appropriate
when authorizing take of golden eagle
nests; however, the Service should
clarify that no compensatory mitigation

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is required when these instances
involve bald eagle nests.
Response: Actually, we did not and
do not take the position that only a
minimal level of compensation is
required for take of a golden eagle nest.
Our position then and now is that
golden eagle nest take permits will be
more restrictive in nature, but without
including different criteria for the two
species in the regulations. Our view is
that regulations should not be speciesspecific; rather, they should address
specific conditions that could apply to
any of the species they are designed to
protect. All golden eagle take permits,
except for those authorizing ongoing
take occurring prior to 2009, will
require offsetting mitigation. The
avoidance and minimization
requirements in the existing and these
regulations are designed to ensure that
removal of a nest of either species is the
last option. 81 FR 27934, 27961 (May 6,
2016). Regarding bald eagle nests,
mitigation will be required if the
activity that necessitates the take does
not in itself provide a ‘‘net benefit.’’ As
explained earlier in the preamble of this
rule, the mitigation is likely to be
minimal for new bald eagle nests
established in areas densely populated
by eagles, which are more and more
typically the nests for which applicants
seek nest take permits.
Comment: Eagle nests may be subject
to protections of the National Historic
Preservation Act (NHPA) due to the
status of eagle nests as traditional
cultural properties (36 CFR 800.16(I)(1):
Historic property includes properties of
traditional religious and cultural
importance to an Indian tribe).
Therefore, for nesting sites subject to the
NHPA, the Service must comply with
the NHPA’s section 106 consultation
process prior to authorizing an
undertaking that could affect eagle
nesting sites (36 CFR 800.2(c)(2)(ii)
requires consultation with tribes where
properties of religious or cultural
significance may be affected by a federal
undertaking). Consultation with tribal
governments regarding nest removal
permits is also necessary to determine
whether a vacant nest site has or has not
been permanently abandoned.
Response: The Service is responsible
for compliance with the NHPA and to
review all projects that may have the
potential to affect historic properties.
Traditional cultural properties, and
religious and sacred areas, are all
elements that might be included within
the borders of projects under our
review. As we follow the NHPA
consultation process, information about
such sites will develop that will help
inform our decisions. With regard to the

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Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations
status of the nest, that is, whether it has
been used for breeding purposes in
recent years or is currently in use, we
will rely on any available and reliable
source of such information, including
through consultation with tribes that
have such information.
Comment: The eagle nest take permit
regulations should take into account
existing practices adopted to address
take or removal of eagle and other raptor
nests. For example, the Bridger Coal
Mine in Wyoming is operated under a
permit from the Wyoming Department
of Environmental Quality. The mine
permit incorporates a raptor mitigation
plan that is reviewed by the Service.
Under the raptor mitigation plan, if the
mine operators locate an inactive (or
‘‘alternate,’’ as now defined in the
proposed rule) nest in an active mining
area, in most cases it may remove the
nest as long as a substitute nest is
constructed without applying for a
separate take permit.
Response: Wyoming’s Coal Mine
Migratory Bird Plans do not allow
removal of eagle nests without a permit,
and the mining permit issued by the
Wyoming Department of Environmental
Quality provides no exemption from
Service authorities or permitting
processes. The plan addresses when
there is a need for a nest permit
application and proposed mitigation
(which may or may not be the final
mitigation approved in the permit as
determined by the Service’s Migratory
Bird Office).
Required Determinations
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) in the Office of
Management and Budget will review all
significant rules. OIRA has determined
that this rule is significant because it
may raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in E.O. 12866.

Executive Order 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq., as amended by the
Small Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996 (Pub. L.
104–121, 201, 110 Stat. 847)), whenever
an agency is required to publish a notice
of rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effect of the rule on small businesses,
small organizations, and small
government jurisdictions. However, no
regulatory flexibility analysis is required
if the head of an agency certifies the rule
would not have a significant economic
impact on a substantial number of small
entities.
SBREFA amended the Regulatory
Flexibility Act to require Federal
agencies to provide the statement of the
factual basis for certifying that a rule
would not have a significant economic
impact on a substantial number of small
entities. Thus, for a regulatory flexibility
analysis to be required, impacts must
exceed a threshold for ‘‘significant
impact’’ and a threshold for a

91543

‘‘substantial number of small entities.’’
See 5 U.S.C. 605(b). We have examined
this rule’s potential effects on small
entities as required by the Regulatory
Flexibility Act and determined that this
action will not have a significant
economic impact on a substantial
number of small entities. This analysis
first estimates the number of businesses
impacted and then estimates the
economic impact of the rule.
To assess the effects of the rule on
small entities, we focus on home
construction companies, wind energy
facilities, and electric transmission
companies. Although small, noncommercial wind energy facilities could
seek permits, we anticipate that most of
the applications for wind energy
facilities will be for those that are
commercial or utility scale. Although
businesses in other business sectors,
such as railroads, timber companies,
and pipeline companies, could also
apply for permits, we anticipate the
number of permit applicants in such
sectors to be very small, on the order of
one or two per year for each such sector.
The U.S. Small Business
Administration (SBA) defines a small
business as one with annual revenue or
employment that meets or is below an
established size standard, which is less
than 250 employees for ‘‘Wind Electric
Power Generation (NAICS 221115), less
than 1,000 employees for ‘‘Electric
Power Distribution’’ (NAICS 221122),
less than 500 employees for ‘‘Logging’’
(NAICS 113310), less than $36.5 million
for ‘‘Construction of Buildings’’ (NAICS
236115, 236116, 236117, 236210, and
236220), less than $36.5 million for
‘‘Highway, Street, and Bridge
Construction’’ (NAICS 237310), less
than $15.0 million for ‘‘Support
Activities for Rail Transportation’’
(NAICS 488210), and less than 1,500
employees for ‘‘Gold Ore Mining’’
(NAICS 212221). Table 1 describes the
number of businesses within each
industry and the estimated percentage
of small businesses impacted by this
rule.

TABLE 1—DISTRIBUTION OF POTENTIAL IMPACTED BUSINESSES
Total
businesses

asabaliauskas on DSK3SPTVN1PROD with RULES

NAICS code

Description
Number of all
businesses

221115
221122
113310
236115

..............
..............
..............
..............

236116 ..............

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Wind Electric Power Generation ......................................
Electric Power Distribution ...............................................
Logging .............................................................................
New Single-family Housing Construction (Except ForSale Builders).
New Multifamily Housing Construction (except For-Sale
Builders).

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Small businesses potentially
impacted by rule

Number
of small
businesses

Number

Percentage

410
7,547
7,908
30,380

402
7,513
7,907
29,469

10
<26
1 to 2
<26

2
<1
<1
<1

1,788

1,734

<26

<2

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91544

Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations
TABLE 1—DISTRIBUTION OF POTENTIAL IMPACTED BUSINESSES—Continued
Total
businesses

NAICS code

Description
Number of all
businesses

236117
236118
236210
236220
237310
237990
488210
212221

..............
..............
..............
..............
..............
..............
..............
..............

New Housing For-Sale Builders .......................................
Residential Remodelers ...................................................
Industrial Building Construction .......................................
Commercial and Institutional Building Construction ........
Highway, Street, and Bridge Construction .......................
Other Heavy and Civil Engineering Construction ............
Support Activities for Rail Transportation ........................
Gold Ore Mining ...............................................................

16,093
77,855
2,622
35,758
8,854
3,423
1275
214

Small businesses potentially
impacted by rule

Number
of small
businesses
15,610
75,519
2,543
34,685
8,588
3,320
613
214

Number
<26
<26
<26
<26
<26
<26
1 to 2
1 to 2

Percentage
<1
<1
<1
<1
<1
<1
<1
<1

Source: U.S. Census Bureau, 2012 County Business Patterns.

asabaliauskas on DSK3SPTVN1PROD with RULES

In the first 5 years (2011 through
2015) since the eagle permit regulations
at 50 CFR 22.26 and 50 CFR 22.27 were
published, the Service has issued 347
standard permits which averages about
70 permits annually. For the 347
standard permits, 131 permits were
issued to businesses, 172 permits to
Government agencies, and 44 permits to
individuals. The average annual
distribution was 26 permits to
businesses, 34 permits to government,
and 9 permits to individuals. Businesses
that apply for permits typically include
home construction, road construction,
and various other construction projects.
Thus, the maximum impact to any
single construction industry would be
less than 26 businesses annually. It is

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more likely that the permits would be
distributed across various construction
industries. As a result, less than 1to 2
percent of small businesses in these
sectors will be impacted by this rule.
Homeowners have no fee increases
except for applications for multiple
eagle nest take ($500). Given the number
of standard permits issued (44), this rule
will not have a significant economic
effect on a substantial number of
homeowners. Commercial businesses
will face higher permit fees under this
rule. A commercial business applying
for what was a standard permit would
have to pay $2,500 (an increase of
$2,000). Businesses in the construction
industry are defined as small if they
have annual revenue less than $36.5

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million, yet many construction
businesses (38 percent) have revenue
less than $250,000. To conservatively
estimate the potential impact to
commercial businesses applying for
standard permits, we utilize $250,000 to
depict small businesses’ sales.
Depending on the type of permit
applications submitted by an individual
small business, the permit fees will
represent 1 to 3 percent of revenue for
this size of business. Thus, the changes
in standard permit fees will not have a
significant economic effect on a
substantial number of small businesses
in the construction sectors. The changes
in permit application processing and
amendment fees are shown in Table 2.

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From 2011 to 2015, we received a
total of 37 programmatic permit
applications and have issued one
programmatic permit thus far. All of the
applications except three are for wind
energy projects. Two applications were
from electric utilities, while one
application was from a gold mining
operation. We anticipate a greater
volume of applications for permits for
long-term activities in the future,
although we expect the number to
increase gradually over time. At the
current average rate (7 applications
annually), approximately 2 percent of
small wind energy businesses apply for
permits annually (Table 1).
Furthermore, less than 1 percent of
small businesses within the electric
utility and mining sectors apply for
permits (Table 1). Assuming perhaps a
ten-fold increase in such permit
applications over the foreseeable future,
this rule will not impact a substantial
number of small entities.
Initial permit application processing
fees for long-term permits will not
change from the current $36,000. If a
permittee requests the programmatic
permit to exceed 5 years, then there will
be an $8,000 review fee every 5 years to
recoup the Service’s review costs. With
a 5-year maximum permit duration,

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renewal of a permit would require a
$36,000 permit application processing
fee, so the $8,000 administration fee
reduces costs to small businesses
engaged in long-term acitivities. We
therefore certify that the rule will not
have a significant economic impact on
a substantial number of small entities,
and no regulatory flexibility analysis is
required.
Unfunded Mandates Reform Act
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we have determined the following:
a. This rule will not ‘‘significantly or
uniquely’’ affect small governments. A
small government agency plan is not
required. The regulations changes will
not affect small government activities in
any significant way.
b. This rule will not produce a
Federal mandate of $100 million or
greater in any year. It is not a
‘‘significant regulatory action’’ under
the Unfunded Mandates Reform Act.
Takings
In accordance with E.O. 12630, the
rule will not have significant takings
implications. This rule does not contain
any provisions that could constitute
taking of private property. Therefore, a

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91545

takings implication assessment is not
required.
Federalism
This rule will not have sufficient
Federalism effects to warrant
preparation of a federalism summary
impact statement under E.O. 13132. It
will not interfere with the States’
abilities to manage themselves or their
funds. No significant economic impacts
are expected to result from the
regulations change.
Civil Justice Reform
In accordance with E.O. 12988, the
Office of the Solicitor has determined
that the rule will not unduly burden the
judicial system and meets the
requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act of 1995 (PRA)
This final rule contains a collection of
information that we have submitted to
the Office of Management and Budget
(OMB) for review and approval under
the PRA (44 U.S.C. 3501 et seq.). After
publication of the ‘‘Duration Rule’’ in
2013, we included the burden
associated with eagle permits in our
renewal of OMB Control No. 1018–0022.
OMB has reviewed and approved the
information collection requirements for

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91546

Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations

applications, annual reports, and
nonhour cost burden associated with
eagle permits and assigned OMB
Control Number 1018–0022, which
expires May 31, 2017. The approval
includes long-term (more than 5 years)
eagle take permits.
This final rule does not revise the
number of responses or total annual
burden hours associated with eagle
permits. However, we believe the
approved estimates for the number of
annual responses are high. We will
adjust our estimates when we renew
OMB Control No. 1018–0022. This final
rule:
(1) Establishes an administration fee
of $8,000 that each permittee will pay
every 5 years to cover the cost of the 5year permit evaluations. We will not
collect this fee until the permittee has
had a permit for at least 5 years. We
expect that we will not impose this fee
until at least 2022.

(2) Changes the application fees
associated with some permits.
(3) Requires annual reports. This
requirement is approved under OMB
Control Number 1018–0022. There are
no fees associated with annual reports.
(4) Establishes a new reporting
requirement and a new administration
fee for permits of over 5 years.
(5) Requires pre- and postconstruction monitoring of eagle use of
the project area, which may include
preparation of an Eagle Conservation
Plan, and requires immediate reporting
of take of eagles and Threatened and
Endangered species.
OMB has not yet approved the
information collection requirements
associated with this rule. We will
announce the approval in a separate
notice in the Federal Register. When we
seek renewal of OMB Control Number
1018–0022, we will incorporate the new
hour and nonhour burden into that
renewal and discontinue this OMB

control number. An agency may not
conduct or sponsor and you are not
required to respond to a collection of
information unless it displays a
currently valid OMB control number.
Title: Eagle Take Permits and Fees, 50
CFR 22.
OMB Control Number: 1018–0167
(number assigned by OMB).
Service Form Number(s): 3–200–71,
3–200–72.
Description of Respondents:
Individuals and businesses. We expect
that the majority of applicants seeking
long-term permits will be in the energy
production and electrical distribution
business.
Respondent’s Obligation: Required to
obtain or retain a benefit.
Frequency of Collection: On occasion.
The Service inadvertently omitted
Table 1 and its burden from the
proposed rule. The following Table cites
the total burden for this information
collection.

TABLE 1—ESTIMATED HOUR AND COST BURDEN FOR LONG TERM EAGLE TAKE PERMITS
Average
completion
time per
response
(hours)

Annual
number of
responses

Activity/requirement

Total annual
burden hours

Cost/hour

$ Value of
annual
burden
hours
(rounded)

Pre-construction Monitoring Surveys ...................................
Preparation of Eagle Conservation Plan .............................
Post Construction Monitoring ...............................................
Reporting Take of Eagles ....................................................
Reporting Take of Threatened & Endangered Species ......
§ 22.26(c)(7)(ii)—Permit reviews. At no more than 5 years
from the date a permit that exceeds 5 years is issued,
and every 5 years thereafter, the permittee compiles
and submits to the Service, eagle fatality data or other
pertinent information that is site-specific for the project.9
Footnote 9 may be found in Table 2 Note that the dollar
value of the annual burden cost is included in the
$8,000 permit 5-year permit review fee ...........................

15
15
15
10
1

650
200
700
2
2

9750
3000
10,500
20
2

$34.26
34.26
34.26
34.26
34.26

$334,035
102,780
359,730
685
69

4

8

32

34.26

1,096

Total ..............................................................................

60

1562

23,304

........................

798,395

asabaliauskas on DSK3SPTVN1PROD with RULES

TABLE 2—CHANGES IN NONHOUR BURDEN FEES FOR EAGLE TAKE PERMITS
Total proposed
nonhour burden
cost

$500 Non-commercial.

$12,500 Noncommercial.

$12,500 Noncommercial.

$0 Non-commercial.

$500 Commercial.
$500 Non-commercial.

$2,500 Commercial.
$500 Non-commercial.

$60,000 Commercial.
$5,000 Noncommercial.

$300,000 Commercial.
$5,000 Noncommercial.

+$240,000
Commercial.
$0 Non-commercial.

$500 Commercial.

$2,500 Commercial.

$10,000 Commercial.

$50,000 Commercial.

+$40,000 Commercial.

Existing approval
(1018–0022)

Current fee

Proposed fee

3–200–71—application, Eagle
Incidental
Take—(not
programmatic
or long-term) 1.

No. of responses and annual
burden hours approved under
OMB Control No. 1018–0022.

$500 Non-commercial.

This rule revises fees and
nonhour costs.
No. of responses and annual
burden hours approved under
OMB Control No. 1018–0022.

This rule revises
nonhour costs.

3–200–72—application, Eagle
Nest Take—
single nest
(formerly
‘‘standard’’) 2.

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fees

and

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0022 and
proposed

Total approved
nonhour burden
cost

Activity/requirement

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Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations

91547

TABLE 2—CHANGES IN NONHOUR BURDEN FEES FOR EAGLE TAKE PERMITS—Continued
Total proposed
nonhour burden
cost

$500—Noncommercial.

$0 3 ..................

$500 Non-commercial.

+$500 Noncommercial.

..........................

$150 Non-commercial.

$5,000—Commercial.
$150—Noncommercial.

$300 Non-commercial.

$40,000 Commercial.
$300 Non-commercial.

+$40,000 Commercial.
$0 Non-commercial.

This rule revises fees and
nonhour costs.
No. of responses and annual
burden hours approved under
OMB Control No. 1018–0022.

$150 Commercial.
$150 Non-commercial.

$500—Commercial.
$150—Noncommercial.

$2,700 5 Commercial.
$150 Non-commercial.

$9,000 Commercial.
$150 Non-commercial.

+$6,300 Commercial.
$0 Non-commercial.

This rule revises fees and
nonhour costs.
No. of responses and annual
burden hours approved under
OMB Control No. 1018–0022.

$150 Commercial.
$1,000 Commercial.

$500—Commercial.
No Fee 7 ..........

$600 6 Commercial.
$1,000 Commercial.

$2,000 Commercial.
..........................

+$1,400 Commercial.
¥ $1,000 Commercial.

Existing approval
(1018–0022)

Current fee

3–200–72—application, Eagle
Nest Take—
multiple nests
(formerly ‘‘programmatic’’) 3.

No. of responses and annual
burden hours approved under
OMB Control No. 1018–0022.

$1,000 ..............

This rule revises fees and
nonhour costs.
No. of responses and annual
burden hours approved under
OMB Control No. 1018–0022.

..........................

3–200–71 Eagle
Incidental Take
Amendment—
less than 5
years (formerly
‘‘standard’’ 4.

3–200–72 Eagle
Nest Take
Amendment—
‘‘Single nest’’
(formerly
‘‘standard’’) 4.

3–200–71
Amendment—
Eagle Incidental Take
Programmatic.

Difference between 1018–
0022 and
proposed

Total approved
nonhour burden
cost

Activity/requirement

Proposed fee

NEW REPORTING REQUIREMENT AND NEW ADMINISTRATION FEE
§ 22.26(c)(7)(ii)—
Permit reviews. At no
more than 5
years from the
date a permit
that exceeds 5
years is
issued, and
every 5 years
thereafter, the
permittee compiles and submits to the
Service, eagle
fatality data or
other pertinent
information
that is sitespecific for the
project.9

No. of responses and annual
burden hours shown in Item
12, Table 1.

0 .......................

$8,000 ..............

0 .......................

$32,000 ............

+$32,000

Total ...........

....................................................

..........................

..........................

$92,250 ............

$431,450 ..........

$359,200.

asabaliauskas on DSK3SPTVN1PROD with RULES

1 Approved

under 1018–0022—145 annual responses (25 from individuals/households (homeowners) and 120 from the private sector (commercial) totaling 2,320 annual burden hours) (400 burden hours for individuals and 1,920 annual burden hours for private sector); $500 permit
fee for both individuals and private sector for a total nonhour burden cost of $72,500. This rule changes the application fees: Homeowner fee
would remain $500; private sector fee (commercial) would increase to $2,500. Total for 25 homeowners—$12,500; Total for 125 commercial applicants—$300,000).
2 Approved under 1018–0022 (standard and programmatic permits were combined)—30 responses (10 from Individuals/homeowners and 20
from private sector (commercial) totaling 480 burden hours (160 hours (individuals) and 320 hours (private sector). Homeowner fee would remain
$500; private sector fee (commercial) would increase to $2,500. Total for 10 homeowners—$5,000.; Total for 20 commercial applicants—
$50.000).
3 Approved under 1018–0022 (standard and programmatic permits were combined)—9 responses (1 from Individuals/homeowners (non-commercial) and 8 from private sector (commercial) totaling 360 burden hours (40 hrs (individuals) and 320 hrs (private sector). The approved nonhour burden cost is $0; however, that is an error. The permit application processing fee for programmatic nest take permits under the current
regulations is $1,000, so the total current burden cost should be $9,000 (9 responses). Under the rule, the homeowner fee would increase to
$500; private sector fee (commercial) would increase to $5,000. Total for 1 homeowner—$500; total for 8 commercial—$40,000.

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Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations

4 The amendments for standard non-purposeful eagle take permits and standard eagle nest take permits are combined in the approved collection for a total of 25. Here they are split into 20 eagle incidental take permit amendments and 5 eagle nest take permit amendments.
5 Two Homeowner, Eighteen Commercial.
6 One Homeowner; Four Commercial
7 The amendment fee for long-term programmatic permits is approved under 1018–0022. Under this rule, it is being removed because the
costs associated with it would be included under the Administration Fee.
8 ROCIS would not allow entering negative $1,000 to account for the elimination of fees. Therefore, in ROCIS, the elimination is reflected for
the eagle nest take amendment total nonhour cost burden.
9 This is a new reporting requirement as well as a new Administration Fee and applies only to Commercial permittees. We will not receive any
reports or assess the Administration Fee until after a permittee has had a permit for 5 years (earliest probably 2022). We estimate that we will
receive 19 responses every 5 years, annualized over the 3-year period of OMB approval results in 4 responses annually. We estimate that each
response will take 8 hours, for a total of 32 annual burden hours. We will assess an $8,000 administration fee for each permittee for a total of
$32,000. Note: This burden reflects what will be imposed in 5 years. Each 5 years thereafter, the burden and nonhour costs will increase because of the number of permittees holding 5-year or longer term permits.

asabaliauskas on DSK3SPTVN1PROD with RULES

Estimated Total Hour Burden: 23,304
hours, the total number of new
respondents is 60.
Estimated Total Hour Burden Cost:
$798,395 for gathering information
required to support an application,
which may include preparation of an
Eagle Conservation Plan (ECP). This
includes 650 hours for pre-construction
monitoring surveys of eagle use of the
project site and 700 hours of postconstruction monitoring for each
respondent. Preparation of the
application, which may include
preparation of an ECP, will take
approximately 200 hours per
respondent. These burden hours only
apply to those seeking a long-term eagle
take permit. In addition, those that
receive a permit are required to report
take of eagles and Threatened or
Endangered species within 48 hours of
discovery of the take. It is estimated that
of the 15 projects permitted to take
eagles each year, 10 will actually take
eagles, requiring 2 hours per respondent
to report. Take of threatened or
endangered species is expected to be a
rare event, and occur at only one of the
15 projects permitted each year,
requiring only 2 hours to report. The
burden hours also include the costs for
the 5-year permit review. We estimate 8
hours per respondent to complete the
requirements of the permit review for a
total of 32 hours.
Estimated New Total Nonhour Burden
Cost: $359,200 for administration fees
and application fees associated with
changes in this proposed rule. This does
not include the nonhour cost burden for
eagle/eagle nest take permits approved
under OMB Control No. 1018–0022.
States, local governments, and tribal
governments are exempt from paying
these fees.
Endangered and Threatened Species
Section 7 of the Endangered Species
Act (ESA) of 1973, as amended (16
U.S.C. 1531–1544), requires Federal
agencies to consult to ‘‘insure that any
action authorized, funded, or carried
out’’ by them ‘‘is not likely to jeopardize
the continued existence of any
endangered species or threatened

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species or result in the destruction or
adverse modification of [critical]
habitat’’ (16 U.S.C. 1536(a)(2)). IntraService consultations and conferences
consider the effects of the Service’s
actions on listed, proposed, and
candidate species. Our final action of
issuing our regulations regarding take of
non-ESA-listed eagles does not
authorize, fund, or carry out any activity
that may affect—directly or indirectly—
any ESA-listed species or their critical
habitat. See, e.g., Sierra Club v. Bureau
of Land Mgmt., 786 F.3d 1219 (9th Cir.
2015). Indeed, the Eagle Act does not
empower us to authorize, fund, or carry
out project activities by third parties.
The Eagle Act empowers us to authorize
take of bald and golden eagles. Thus, we
have determined these revisions have
no effect on any listed, proposed, or
candidate species or their critical
habitat. As a result, section 7
consultation is not required on this
proposed action. As appropriate, we
will conduct project-specific, intraService section 7 consultations in the
future if our proposed act of issuing a
permit for take of eagles may affect ESAlisted species or critical habitat.
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments’’ (59 FR 22951), E.O.
13175, and 512 DM 2, we have
evaluated potential effects on federally
recognized Indian tribes and have
determined that this rule will not
interfere with tribes’ abilities to manage
themselves, their funds, or tribal lands.
In September of 2013, well before the
Service published its notice of intent to
develop a draft PEIS for the rule and
held public scoping meetings, we sent a
letter to all federally recognized tribes
inviting them to consult about possible
changes to the eagle take permit
regulations. The letter notified Tribes of
the Service’s intent to amend the
regulations and sought feedback about
their interest in consultation on the

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amendment. After sending these letters
and receiving responses from several
Tribes, we conducted webinars, group
meetings, and meetings with individual
Tribes. We will continue to respond to
all Tribal requests for consultation on
this effort.
Several tribes that value eagles as part
of their cultural heritage objected to the
2013 rule that extended maximum
permit duration for programmatic
permits based on a concern that the
regulations would not adequately
protect eagles. Those tribes may
perceive further negative effects from
similar provisions proposed in this
rulemaking. However, eagles will be
sufficiently protected under this rule
because only those applicants who
commit to adaptive management
measures to ensure the preservation of
eagles will receive permits with terms
longer than 5 years and those permits
will be reviewed at 5-year intervals and
amended if necessary.
Energy Supply, Distribution, or Use
(Executive Order 13211)
E.O. 13211 addresses regulations that
significantly affect energy supply,
distribution, and use. E.O. 13211
requires agencies to prepare Statements
of Energy Effects when undertaking
certain actions. This rule will likely be
used by numerous energy generation
projects seeking compliance with the
Eagle Act. However, the rule is not a
significant regulatory action under E.O.
13211, and no Statement of Energy
Effects is required.
Literature Cited
Brown, J.L., M.W. Collopy, E.J. Gott, P.W.
Juergens, A.B. Montoya, and W.G. Hunt.
2006. Wild-reared aplomado falcons
survive and recruit at higher rates than
hacked falcons in a common
environment. Biological Conservation
131:453–458.
Huso. M.M.P. 2009. An estimator of wildlife
fatality from observed carcasses.
Environmetrics 22:318–329.
Kochert, M.N., Steenhof, K., 2012. Frequency
of nest use by golden eagles in
southwestern Idaho. J. Raptor Res. 46,
239–247. http://dx.doi.org/10.3356/JRR12-00001.1.

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Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations
Korner-Nievergelt F., Korner-Nievergelt P.,
Bher O., Niermann I., Brinkmann R.,
Hellriegel B. 2011. A new method to
determine bird and bat fatality at wind
energy turbines from carcass searches.
Wildlife Biology 17:350–363.
McIntyre, C.L., D.C. Douglas, and M.W.
Collopy. 2008. Movements of golden
eagles (Aquila chrysaetos) from interior
Alaska during their first year of
independence. The Auk 125:214–224.
McIntyre, C. 2012. Quantifying sources of
mortality and winter ranges of golden
eagles from interior Alaska using
banding and satellite tracking. Journal of
Raptor Research 46:129–134.
Millsap, B.A., T.G. Grubb, R.K. Murphy, T.
Swem, and J.W. Watson. 2015.
Conservation significance of alternative
nests of golden eagles. Global Ecology
and Conservation 3:234–241.
Mojica, E.K., J.M. Meyers, B.A. Millsap, and
K.L. Haley. 2008. Migration of Florida
sub-adult bald eagles. The Wilson
Journal of Ornithology 120:304–310.
New, L., Bjerre, E., Millsap, B., Otto, M.,
Runge, M. 2015. A collision risk model
to predict avian fatalities at wind
facilities: An example using golden
eagles, Aquila chrysaetos. http://
journals.plos.org/plosone/
article?id=10.1371/
journal.pone.0130978.
Nygaard, T., K. Bevanger, E. Lie Dahl, ;.
Flagstad, A. Follestad, P.L. Hoel, R. May,
and O. Reitan. 2010. A study of the
White-tailed eagle Haliaeetus albicilla
movements and mortality at a wind farm
in Norway. BOU Proceedings-Climate
Change and Birds. British Ornithologists’
Union. http://www.bou.org.uk/bouprocnet/ccb/nygard-etal.pdf.
U.S. Fish and Wildlife Service. 2007.
National Bald Eagle Management
Guidelines. Division of Migratory Bird

Management. http://www.fws.gov/birds/
management/managed-species/eaglemanagement.php.
U.S. Fish and Wildlife Service. 2009. Final
Environmental Assessment: Proposal to
Permit Take as Provided Under the Bald
and Golden Eagle Protection Act.
Division of Migratory Bird Management.
http://www.fws.gov/migratorybirds/pdf/
management/FEAEagleTakePermit.pdf.
U.S. Fish and Wildlife Service. 2013. Eagle
conservation plan guidance. Module 1—
land-based wind energy. Version 2.
Division of Migratory Bird Management.
https://www.fws.gov/migratorybirds/pdf/
management/
eagleconservationplanguidance.pdf.
U.S. Fish and Wildlife Service. 2013b.
Issuance of a Bald and Golden Eagle Act
permit to take golden eagles to the Hopi
Tribe for Native American religious
purposes. Amended Environmental
Assessment. Division of Migratory Bird
Management, Southwest Region. https://
www.fws.gov/southwest/migratorybirds/
docs/Revised%20Final_EA%204_24_
2013%20complete.pdf.
U.S. Fish and Wildlife Service. 2016. Bald
and golden eagles: Status, trends, and
estimation of sustainable take rates in the
United States. Division of Migratory Bird
Management, Washington, DC, USA.
Watts, B.D. 2015. Estimating the residual
value of alternate bald eagle nests:
Implications for nest protection
standards. The Journal of Wildlife
Management 79:776–784.
Williams, B.K., J.D. Nichols, and M.J. Conroy.
2002. Analysis and management of
animal populations: Modeling,
estimation, and decision making.
Academic Press, San Diego, California
USA.

Type of permit
*

List of Subjects
50 CFR Part 13
Administrative practice and
procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping
requirements, Transportation, Wildlife.
50 CFR Part 22
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation, Wildlife.
Regulation Promulgation
For the reasons described in the
preamble, we hereby amend subchapter
B of chapter I, title 50 of the Code of
Federal Regulations, as set forth below:
PART 13—GENERAL PERMIT
PROCEDURES
1. The authority for part 13 continues
to read as follows:

■

Authority: 16 U.S.C. 668a, 704, 712, 742j–
l, 1374(g), 1382, 1538(d), 1539, 1540(f), 3374,
4901–4916; 18 U.S.C. 42; 19 U.S.C. 1202; 31
U.S.C. 9701.

2. Amend the table in § 13.11(d)(4) by:
a. Removing the column with the
heading ‘‘Administration fee 1’’; and
■ b. Revising the section ‘‘Bald and
Golden Eagle Protection Act’’ and
footnote 1.
The revision reads as follows:
■
■

§ 13.11

*

Application procedures.

*
*
(d) * * *
(4) * * *

*

*

*

Permit
application fee

CFR citation

*

*

*

*

Amendment
fee
*

Bald and Golden Eagle Protection Act

asabaliauskas on DSK3SPTVN1PROD with RULES

Eagle Scientific Collecting .............................................................................
Eagle Exhibition ............................................................................................
Eagle Falconry ..............................................................................................
Eagle—Native American Religion .................................................................
Eagle Take permits—Depredation and Protection of Health and Safety .....
Golden Eagle Nest Take ...............................................................................
Eagle Transport—Scientific or Exhibition .....................................................
Eagle Transport—Native American Religious Purposes ..............................
Eagle Incidental Take—Up to 5 years, Commercial ....................................
Eagle Incidental Take—Non-commercial ......................................................
Eagle Incidental Take—5–30 years 1 ............................................................
Eagle Incidental Take—Transfer of a permit ................................................
Eagle Nest Take—Single nest, Commercial ................................................
Eagle Nest Take—Single nest, Non-commercial .........................................
Eagle Nest Take—Multiple nests ..................................................................
Eagle Take—Exempted under ESA .............................................................
*
*
*
*
1 An

*

50
50
50
50
50
50
50
50
50
50
50
50
50
50
50
50

CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR
CFR

part
part
part
part
part
part
part
part
part
part
part
part
part
part
part
part

22
22
22
22
22
22
22
22
22
22
22
22
22
22
22
22

...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
*

100 ..................
75 ....................
100 ..................
No fee .............
100 ..................
100 ..................
75 ....................
No fee .............
2,500 ...............
500 ..................
36,000 1 ..........
1,000 ...............
2,500 ...............
500 ..................
5,000 ...............
No fee .............
*

50
........................
........................
........................
........................
50
........................
........................
500
150
........................
........................
500
150
500
........................
*

additional Administration Fee of $8,000 will be assessed every 5 years for permits with durations longer than 5 years for permit review.

*

*

*

*

PART 22—EAGLE PERMITS

Authority: 16 U.S.C. 668–668d; 703–712;
1531–1544.

3. The authority citation for part 22 is
revised to read as follows:

■

■

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4. Amend § 22.3 by:

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a. Removing the definition of
‘‘Advanced conservation practices’’;
■ b. Adding a definition for ‘‘Alternate
nest’’;
■ c. Removing the definition of ‘‘Area
nesting population’’;
■ d. Adding definitions for ‘‘Compatible
with the preservation of the bald eagle
or the golden eagle’’ and ‘‘Eagle
management unit (EMU)’’;
■ e. Revising the definition of ‘‘Eagle
nest’’;
■ f. Removing the definition of ‘‘Inactive
nest’’;
■ g. Adding definitions for ‘‘In-use nest’’
and ‘‘Local area population (LAP)’’;
■ h. Removing the definition of
‘‘Maximum degree achievable’’;
■ i. Adding a definition for ‘‘Nesting
territory’’;
■ j. Revising the definition of
‘‘Practicable’’; and
■ k. Removing the definitions of
‘‘Programmatic permit’’, ‘‘Programmatic
take’’, and ‘‘Territory’’.
The additions and revisions read as
follows:
■

§ 22.3 What definitions do you need to
know?

asabaliauskas on DSK3SPTVN1PROD with RULES

*

*
*
*
*
Alternate nest means one of
potentially several nests within a
nesting territory that is not an in-use
nest at the current time. When there is
no in-use nest, all nests in the territory
are alternate nests.
*
*
*
*
*
Compatible with the preservation of
the bald eagle or the golden eagle means
consistent with the goals of maintaining
stable or increasing breeding
populations in all eagle management
units and the persistence of local
populations throughout the geographic
range of each species.
*
*
*
*
*
Eagle management unit (EMU) means
a geographically bounded region within
which permitted take is regulated to
meet the management goal of
maintaining stable or increasing
breeding populations of bald or golden
eagles.
Eagle nest means any assemblage of
materials built, maintained, or used by
bald eagles or golden eagles for the
purpose of reproduction.
*
*
*
*
*
In-use nest means a bald or golden
eagle nest characterized by the presence
of one or more eggs, dependent young,
or adult eagles on the nest in the past
10 days during the breeding season.
*
*
*
*
*
Local area population (LAP) means
the bald or golden eagle population
within the area of a human activity or

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project bounded by the natal dispersal
distance for the respective species. The
LAP is estimated using the average eagle
density of the EMU or EMUs where the
activity or project is located.
*
*
*
*
*
Nesting territory means the area that
contains one or more eagle nests within
the home range of a mated pair of
eagles, regardless of whether such nests
were built by the current resident pair.
*
*
*
*
*
Practicable means available and
capable of being done after taking into
consideration existing technology,
logistics, and cost in light of a
mitigation measure’s beneficial value to
eagles and the activity’s overall purpose,
scope, and scale.
*
*
*
*
*
§ 22.4

[Amended]

5. In § 22.4, amend paragraph (a) by
removing ‘‘and 1018–0136’’ in the first
sentence.
■ 6. Amend § 22.11 by revising
paragraph (c) to read as follows:
■

§ 22.11 What is the relationship to other
permit requirements?

*

*
*
*
*
(c) A permit under this part only
authorizes take, possession, and/or
transport under the Bald and Golden
Eagle Protection Act and does not
provide authorization under the
Migratory Bird Treaty Act or the
Endangered Species Act for the take,
possession, and/or transport of
migratory birds or endangered or
threatened species other than bald or
golden eagles.
*
*
*
*
*
■ 7. Amend § 22.25 by:
■ a. Revising the first sentence of the
introductory text;
■ b. Removing the semicolons at the
ends of paragraphs (a)(1) and (2) and
adding periods in their place;
■ c. Revising paragraph (a)(4);
■ d. Removing the semicolon at the end
of paragraph (a)(5) and adding a period
in its place;
■ e. Removing paragraph (a)(6), and
redesignating paragraphs (a)(7) through
(9) as paragraphs (a)(6) through (8);
■ f. Removing the semicolon at the end
of newly redesignated paragraph (a)(6)
and adding a period in its place and
removing ‘‘; and’’ at the end of newly
redesignated paragraph (a)(7) and
adding a period in its place;
■ g. Revising paragraphs (b)(1) and (4);
■ h. Revising the first sentence in
paragraph (c) introductory text;
■ i. Removing paragraphs (c)(3) and (6),
and redesignating paragraphs (c)(4) and
(5) as paragraphs (c)(3) and (4); and

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j. Revising newly redesignated
paragraphs (c)(3) and (4).
The revisions read as follows:

■

§ 22.25 What are the requirements
concerning permits to take golden eagle
nests?

The Director may, upon receipt of an
application and in accordance with the
issuance criteria of this section, issue a
permit authorizing any person to take
alternate golden eagle nests during a
resource development or recovery
operation if the taking is compatible
with the preservation of golden eagles.
* * *
(a) * * *
(4) Nest and territory occupancy data.
(i) For each golden eagle nest proposed
to be taken, the applicant must identify
on an appropriately scaled map or plat
the exact location of each golden eagle
nest in the nesting territory. The map or
plat must contain enough details so that
each golden eagle nest can be readily
located by the Service.
(ii) A description of the monitoring
that was done to verify that eagles are
not attending the nest for breeding
purposes, and any additional available
documentation used in identifying
which nests within the territory were inuse nests in current and past breeding
seasons.
*
*
*
*
*
(b) * * *
(1) Only alternate golden eagle nests
may be taken;
*
*
*
*
*
(4) The permittee must comply with
any mitigation and monitoring measures
determined by the Director to be
practicable and compatible with the
resource development or recovery
operation; and
*
*
*
*
*
(c) Issuance criteria. The Director
shall conduct an investigation and not
issue a permit to take any golden eagle
nest unless such taking is compatible
with the preservation of golden eagles.
* * *
*
*
*
*
*
(3) Whether suitable golden eagle
nesting and foraging habitat unaffected
by the resource development or
recovery operation is available to
accommodate any golden eagles
displaced by the resource development
or recovery operation; and
(4) Whether practicable mitigation
measures compatible with the resource
development or recovery operation are
available to encourage reoccupation by
golden eagles of the resource
development or recovery site. Mitigation
measures may include, but are not
limited to, reclaiming disturbed land to

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Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations
enhance golden eagle nesting and
foraging habitat, relocating in suitable
habitat any golden eagle nest taken, or
establishing one or more nest sites.
*
*
*
*
*
■ 8. Amend § 22.26 by:
■ a. Revising paragraphs (a) and (c)(1)
through (3);
■ b. Redesignating paragraphs (c)(7)
through (10) as (c)(8) through (11),
adding new paragraph (c)(7), and
revising newly redesignated paragraphs
(c)(8), (9), and (11);
■ c. Revising paragraph (d)(2);
■ d. Adding paragraph (d)(3);
■ e. Revising paragraph (e)(1);
■ f. Redesignating paragraphs (e)(3), (4),
and (5) as paragraphs (e)(5), (7), and (9),
and adding new paragraphs (e)(3), (4),
(6), and (8);
■ g. Revising newly redesignated
paragraphs (e)(5) and (e)(7)(i) through
(iv);
■ h. Removing newly redesignated
paragraph (e)(7)(v); and
■ i. Revising paragraphs (f), (h) and (i).
The revisions and additions read as
follows:

asabaliauskas on DSK3SPTVN1PROD with RULES

§ 22.26 Permits for eagle take that is
associated with, but not the purpose of, an
activity.

(a) Purpose and scope. This permit
authorizes take of bald eagles and
golden eagles where the take is
compatible with the preservation of the
bald eagle and the golden eagle; is
necessary to protect an interest in a
particular locality; is associated with,
but not the purpose of, the activity; and
cannot practicably be avoided.
*
*
*
*
*
(c) * * *
(1) You must comply with all
avoidance, minimization, or other
mitigation measures specified in the
terms of your permit to mitigate for the
detrimental effects on eagles, including
indirect and cumulative effects, of the
permitted take.
(i) Compensatory mitigation scaled to
project impacts will be required for any
permit authorizing take that would
exceed the applicable eagle management
unit take limits. Compensatory
mitigation for this purpose must ensure
the preservation of the affected eagle
species by reducing another ongoing
form of mortality by an amount equal to
or greater than the unavoidable
mortality, or increasing the eagle
population by an equal or greater
amount.
(ii) Compensatory mitigation may also
be required in the following
circumstances:
(A) When cumulative authorized take,
including the proposed take, would

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exceed 5 percent of the local area
population; or
(B) When available data indicate that
cumulative unauthorized mortality
would exceed 10 percent of the local
area population.
(iii) All required compensatory
mitigation must:
(A) Be determined based on
application of all practicable avoidance
and minimization measures;
(B) Be sited within the same eagle
management unit where the permitted
take will occur unless the Service has
reliable data showing that the
population affected by the take includes
individuals that are reasonably likely to
use another eagle management unit
during part of their seasonal migration;
(C) Use the best available science in
formulating and monitoring the longterm effectiveness of mitigation
measures and use rigorous compliance
and effectiveness monitoring and
evaluation to make certain that
mitigation measures achieve their
intended outcomes, or that necessary
changes are implemented to achieve
them;
(D) Be additional and improve upon
the baseline conditions of the affected
eagle species in a manner that is
demonstrably new and would not have
occurred without the compensatory
mitigation (voluntary actions taken in
anticipation of meeting compensatory
mitigation requirements for an eagle
take permit not yet granted may be
credited toward compensatory
mitigation requirements);
(E) Be durable and, at a minimum,
maintain its intended purpose for as
long as impacts of the authorized take
persist; and
(F) Include mechanisms to account for
and address uncertainty and risk of
failure of a compensatory mitigation
measure.
(iv) Compensatory mitigation may
include conservation banking, in-lieu
fee programs, and other third-party
mitigation projects or arrangements.
Permittee-responsible mitigation may be
approved provided the permittee
submits verifiable documentation
sufficient to demonstrate that the
standards set forth in paragraph
(c)(1)(iii) of this section have been met
and the alternative means of
compensatory mitigation will offset the
permitted take to the degree that is
compatible with the preservation of
eagles.
(2) Monitoring. (i) You may be
required to monitor impacts to eagles
from the permitted activity for up to 3
years after completion of the activity or
as set forth in a separate management
plan, as specified on your permit. For

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91551

ongoing activities and enduring site
features that will likely continue to
cause take, periodic monitoring will be
required for as long as the data are
needed to assess impacts to eagles.
(ii) The frequency and duration of
required monitoring will depend on the
form and magnitude of the anticipated
take and the objectives of associated
avoidance, minimization, or other
mitigation measures, not to exceed what
is reasonable to meet the primary
purpose of the monitoring, which is to
provide data needed by the Service
regarding the impacts of the activity on
eagles for purposes of adaptive
management. You must coordinate with
the Service to develop project-specific
monitoring protocols. If the Service has
officially issued or endorsed, through
rulemaking procedures, monitoring
protocols for the activity that will take
eagles, you must follow them, unless the
Service waives this requirement. Your
permit may require that the monitoring
be conducted by qualified, independent
third parties that report directly to the
Service.
(3) You must submit an annual report
summarizing the information you
obtained through monitoring to the
Service every year that your permit is
valid and for up to 3 years after
completion of the activity or
termination of the permit, as specified
in your permit. The Service will make
eagle mortality information from annual
reports available to the public.
*
*
*
*
*
(7) Additional conditions for permits
with durations longer than 5 years—(i)
Monitoring. Monitoring to assess project
impacts to eagles and the effectiveness
of avoidance and minimization
measures must be conducted by
qualified, independent third parties,
approved by the Service. Monitors must
report directly to the Service and
provide a copy of the reports and
materials to the permittee.
(ii) Adaptive management. The
permit will specify circumstances under
which modifications to avoidance,
minimization, or compensatory
mitigation measures or monitoring
protocols will be required, which may
include, but are not limited to: Take
levels, location of take, and changes in
eagle use of the activity area. At a
minimum, the permit must specify
actions to be taken if take approaches or
reaches the amount authorized and
anticipated within a given time frame.
Adaptive management terms in a permit
will include review periods of no more
than 5 years and may require prompt
action(s) upon reaching specified

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conditions at any time during the
review period.
(iii) Permit reviews. At no more than
5 years from the date a permit that
exceeds 5 years is issued, and at least
every 5 years thereafter, the permittee
will compile, and submit to the Service,
eagle fatality data or other pertinent
information that is site-specific for the
project, as required by the permit. The
Service will review this information, as
well as information provided directly to
the Service by independent monitors, to
determine whether:
(A) The permittee is in compliance
with the terms and conditions of the
permit and has implemented all
applicable adaptive management
measures specified in the permit; and
(B) Eagle take does not exceed the
amount authorized to occur within the
period of review.
(iv) Actions to be taken based on the
permit review. (A) In consultation with
the permittee, the Service will update
fatality predictions, authorized take
levels and compensatory mitigation for
future years, taking into account the
observed levels of take based on
approved protocols for monitoring and
estimating total take, and, if applicable,
accounting for changes in operations or
permit conditions pursuant to the
adaptive management measures
specified in the permit or made
pursuant to paragraphs (c)(7)(iv)(B)
through (D) of this section.
(B) If authorized take levels for the
period of review are exceeded in a
manner or to a degree not addressed in
the adaptive management conditions of
the permit, based on the observed levels
of take using approved protocols for
monitoring and estimating total take, the
Service may require additional actions
including but not limited to:
(1) Adding, removing, or adjusting
avoidance, minimization, or
compensatory mitigation measures;
(2) Modifying adaptive management
conditions;
(3) Modifying monitoring
requirements; and
(4) Suspending or revoking the permit
in accordance with part 13 of this
subchapter B.
(C) If the observed levels of take,
using approved protocols for monitoring
and estimating total take, are below the
authorized take levels for the period of
review, the Service will proportionately
revise the amount of compensatory
mitigation required for the next period
of review, including crediting excess
compensatory mitigation already
provided by applying it to the next
period of review.
(D) Provided the permittee
implements all required actions and

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remains compliant with the terms and
conditions of the permit, no other action
is required. However, with consent of
the permittee, the Service may make
additional changes to a permit,
including appropriate modifications to
avoidance and/or minimization
measures or monitoring requirements. If
measures are adopted that have been
shown to be effective in reducing risk to
eagles, appropriate adjustments will be
made in fatality predictions, take
estimates, and compensatory mitigation.
(v) Fees. For permits with terms
longer than 5 years, an administration
fee of $8,000 will be assessed every 5
years for permit review.
(8) The Service may amend, suspend,
or revoke a permit issued under this
section if new information indicates that
revised permit conditions are necessary,
or that suspension or revocation is
necessary, to safeguard local or regional
eagle populations. This provision is in
addition to the general criteria for
amendment, suspension, and revocation
of Federal permits set forth in §§ 13.23,
13.27, and 13.28 of this chapter.
(9) Notwithstanding the provisions of
§ 13.26 of this chapter, you remain
responsible for all outstanding
monitoring requirements and mitigation
measures required under the terms of
the permit for take that occurs prior to
cancellation, expiration, suspension, or
revocation of the permit.
*
*
*
*
*
(11) You are responsible for ensuring
that the permitted activity is in
compliance with all Federal, Tribal,
State, and local laws and regulations
applicable to eagles.
(d) * * *
(2) Your application must consist of a
completed application Form 3–200–71
and all required attachments. Send
applications to the Regional Director of
the Region in which the take would
occur—Attention: Migratory Bird Permit
Office. You can find the current
addresses for the Regional Directors in
§ 2.2 of subchapter A of this chapter.
(3) Except as set forth in paragraph
(d)(3)(ii) of this section, an applicant
must coordinate with the Service to
develop project-specific monitoring and
survey protocols, take probability
models, and any other applicable data
quality standards, and include in the
application all the data thereby
obtained.
(i) If the Service has officially issued
or endorsed, through rulemaking
procedures, survey, modeling, or other
data quality standards for the activity
that will take eagles, you must follow
them and include in your application all
the data thereby obtained, unless the

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Service waives this requirement for your
application.
(ii) Applications for eagle incidental
take permits for wind facilities must
include pre-construction eagle survey
information collected according to the
following standards, unless exceptional
circumstances apply and survey
requirements can be modified to
accommodate those circumstances after
consultation with, and written
concurrence by, the Service:
(A) Surveys must consist of
point-based recordings of bald eagle and
golden eagle flight activity (minutes of
flight) within a three-dimensional
cylindrical plot (the sample plot). The
radius of the sample plot is 2,625 feet
(ft) (800 meters (m)), and the height
above ground level must be either 656
ft (200 m) or 82 ft (25 m) above the
maximum blade reach, whichever is
greater.
(B) The duration of the survey for
each visit to each sample plot must be
at least 1 hour.
(C) Sampling must include at least 12
hours per sample plot per year for 2 or
more years. Each sample plot must be
sampled at least once per month, and
the survey start time for a sampling
period must be selected randomly from
daylight hours,1 unless the conditions
in paragraph (d)(3)(ii)(F) of this section
apply.
(D) Sampling design must be spatially
representative of the project footprint,2
and spatial coverage of sample plots
must include at least 30 percent of the
project footprint. Sample plot locations
must be determined randomly, unless
the conditions in paragraph (d)(3)(ii)(F)
of this section apply.
(E) The permit application package
must contain the following:
(1) Coordinates of each sample point
in decimal degrees (specify projection/
datum).
(2) The radius and height of each
sample plot.
(3) The proportion of each threedimensional sample plot that was
observable from the sample point for
each survey.
(4) Dates, times, and weather
conditions for each survey, to include
the time surveys at each sample point
began and ended.
(5) Information for each survey on the
number of eagles by species observed
(both in flight and perched), and the
amount of flight time (minutes) that
each was in the sample plot area.
1 Daylight hours are defined as the hours between
sunrise and sunset.
2 The project footprint is the minimum-convex
polygon that encompasses the wind-project area
inclusive of the hazardous area around all turbines
and any associated utility infrastructure, roads, etc.

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Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations
(6) The number of proposed turbines
and their specifications, including
brand/model, rotor diameter, hub
height, and maximum blade reach
(height), or the range of possible
options.
(7) Coordinates of the proposed
turbine locations in decimal degrees
(specify projection/datum), including
any alternate sites.
(F) Stratified-random sampling (a
sample design that accounts for
variation in eagle abundance by, for
example, habitat, time of day, season)
will often provide more robust, efficient
sampling. Random sampling with
respect to time of day, month, or project
footprint can be waived if stratification
is determined to be a preferable
sampling strategy after consultation and
approval in advance with the Service.
(iii) Application of the Serviceendorsed data quality standards of
paragraphs (d)(3)(i) and (ii) of this
section may not be needed if:
(A) The Service has data of sufficient
quality to predict the likely risk to
eagles;
(B) Expediting the permit process will
benefit eagles; or
(C) The Service determines the risk to
eagles from the activity is low enough
relative to the status of the eagle
population based on:
(1) Physiographic and biological
factors of the project site; or
(2) The project design (i.e., use of
proven technology, micrositing, etc.).
(e) * * *
(1) Whether take is likely to occur
based on the magnitude and nature of
the impacts of the activity.
*
*
*
*
*
(3) Whether the cumulative
authorized take, including the proposed
take, would exceed 5 percent of the
local area population.
(4) Any available data indicating that
unauthorized take may exceed 10
percent of the local area population.
(5) Whether the applicant has
proposed all avoidance and
minimization measures to reduce the
take to the maximum degree practicable
relative to the magnitude of the impacts
to eagles.
(6) Whether the applicant has
proposed compensatory mitigation
measures that comply with standards
set forth under paragraph (c)(1) of this
section to compensate for remaining
unavoidable impacts after all
appropriate and practicable avoidance
and minimization measures have been
applied.
(7) * * *
(i) Safety emergencies;
(ii) Increased need for traditionally
practiced Native American tribal

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religious use that requires taking eagles
from the wild;
(iii) Non-emergency activities
necessary to ensure public health and
safety; and
(iv) Other interests.
(8) For projects that are already
operational and have taken eagles
without a permit, whether such past
unpermitted eagle take has been
resolved or is in the process of
resolution with the Office of Law
Enforcement through settlement or other
appropriate means.
*
*
*
*
*
(f) Required determinations. Before
we issue a permit, we must find that:
(1) The direct and indirect effects of
the take and required mitigation,
together with the cumulative effects of
other permitted take and additional
factors affecting the eagle populations
within the eagle management unit and
the local area population, are
compatible with the preservation of bald
eagles and golden eagles.
(2) The taking is necessary to protect
an interest in a particular locality.
(3) The taking is associated with, but
not the purpose of, the activity.
(4) The applicant has applied all
appropriate and practicable avoidance
and minimization measures to reduce
impacts to eagles.
(5) The applicant has applied all
appropriate and practicable
compensatory mitigation measures,
when required, pursuant to paragraph
(c) of this section, to compensate for
remaining unavoidable impacts after all
appropriate and practicable avoidance
and minimization measures have been
applied.
(6) Issuance of the permit will not
preclude issuance of another permit
necessary to protect an interest of higher
priority as set forth in paragraph (e)(7)
of this section.
(7) Issuance of the permit will not
interfere with an ongoing civil or
criminal action concerning unpermitted
past eagle take at the project.
*
*
*
*
*
(h) Permit duration. The duration of
each permit issued under this section
will be designated on its face and will
be based on the duration of the
proposed activities, the period of time
for which take will occur, the level of
impacts to eagles, and the nature and
extent of mitigation measures
incorporated into the terms and
conditions of the permit. A permit for
incidental take will not exceed 30 years.
(i) Applicants for eagle incidental take
permits who submit a completed permit
application by July 14, 2017 may elect
to apply for coverage under the

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91553

regulations that were in effect prior to
January 17, 2017 provided that the
permit application satisfies the permit
application requirements of the
regulations in effect prior to January 17,
2017. If the Service issues a permit to
such applicants, all of the provisions
and conditions of the regulations that
were in effect prior to January 17, 2017
will apply.
■ 9. Amend § 22.27 by:
■ a. Revising paragraphs (a)(1)(i)
through (iv), (a)(3), and (b)(1), (2), and
(7);
■ b. Redesignating paragraphs (b)(8)
through (10) as paragraphs (b)(9)
through (11), adding a new paragraph
(b)(8), and revising newly designated
paragraph (b)(11); and
■ c. Revising paragraphs (e)(1), (e)(2)
introductory text, (e)(2)(ii) and (iii), and
(e)(3) through (6).
The revisions and addition read as
follows:
§ 22.27

Removal of eagle nests.

(a) * * *
(1) * * *
(i) An in-use or alternate nest where
necessary to alleviate an existing safety
emergency, or to prevent a rapidly
developing safety emergency that is
otherwise likely to result in bodily harm
to humans or eagles while the nest is
still in use by eagles for breeding
purposes;
(ii) An alternate nest when the
removal is necessary to ensure public
health and safety;
(iii) An alternate nest, or an in-use
nest prior to egg-laying, that is built on
a human-engineered structure and
creates, or is likely to create, a
functional hazard that renders the
structure inoperable for its intended
use; or
(iv) An alternate nest, provided the
take is necessary to protect an interest
in a particular locality and the activity
necessitating the take or the mitigation
for the take will, with reasonable
certainty, provide a net benefit to eagles.
*
*
*
*
*
(3) A permit may be issued under this
section to cover multiple nest takes over
a period of up to 5 years, provided the
permittee complies with comprehensive
measures developed in coordination
with the Service to minimize the need
to remove nests and specified as
conditions of the permit.
*
*
*
*
*
(b) * * *
(1) The permit does not authorize take
of in-use nests except:
(i) For safety emergencies as provided
under paragraph (a)(1)(i) of this section;
or

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(ii) Prior to egg-laying if the in-use
nest is built on a human-engineered
structure and meets the provisions set
forth in paragraph (a)(1)(iii) of this
section.
(2) When an in-use nest must be
removed under this permit, any take of
nestlings or eggs must be conducted by
a Service-approved, qualified agent. All
nestlings and viable eggs must be
immediately transported to foster/
recipient nests or a rehabilitation
facility permitted to care for eagles, as
directed by the Service, unless the
Service waives this requirement.
*
*
*
*
*
(7) You must comply with all
avoidance, minimization, or other
mitigation measures specified in the
terms of your permit to mitigate for the
detrimental effects on eagles, including
indirect and cumulative effects, of the
permitted take.
(8) Compensatory mitigation scaled to
project impacts will be required for any
permit authorizing take that would
exceed the applicable eagle management
unit take limits. Compensatory
mitigation must conform to the
standards set forth at § 22.26(c)(1)(iii).
Compensatory mitigation may also be
required in the following circumstances:
(i) When cumulative authorized take,
including the proposed take, would
exceed 5 percent of the local area
population;
(ii) When available data indicate that
cumulative unauthorized mortality
would exceed 10 percent of the local
area population; or

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(iii) If the permitted activity does not
provide a net benefit to eagles, you must
apply appropriate and practicable
compensatory mitigation measures as
specified in your permit to provide a net
benefit to eagles scaled to the effects of
the nest removal.
*
*
*
*
*
(11) You are responsible for ensuring
that the permitted activity is in
compliance with all Federal, Tribal,
State, and local laws and regulations
applicable to eagles.
*
*
*
*
*
(e) * * *
(1) The direct and indirect effects of
the take and required mitigation,
together with the cumulative effects of
other permitted take and additional
factors affecting eagle populations, are
compatible with the preservation of the
bald eagle or the golden eagle.
(2) For alternate nests:
*
*
*
*
*
(ii) The nest is built on a humanengineered structure and creates, or is
likely to create, a functional hazard that
renders the structure inoperable for its
intended use; or
(iii) The take is necessary to protect
an interest in a particular locality, and
the activity necessitating the take or the
mitigation for the take will, with
reasonable certainty, provide a net
benefit to eagles.
(3) For in-use nests prior to egglaying, the nest is built on a humanengineered structure and creates, or is
likely to create, a functional hazard that

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renders the structure inoperable for its
intended use.
(4) For in-use nests, the take is
necessary to alleviate an existing safety
emergency, or to prevent a rapidly
developing safety emergency that is
otherwise likely to result in bodily harm
to humans or eagles while the nest is
still in use by eagles for breeding
purposes.
(5) There is no practicable alternative
to nest removal that would protect the
interest to be served.
(6) Issuing the permit will not
preclude the Service from authorizing
another take necessary to protect an
interest of higher priority, according to
the following prioritization order:
(i) Safety emergencies;
(ii) Increased need for traditionally
practiced Native American tribal
religious use that requires taking eagles
from the wild;
(iii) Non-emergency activities
necessary to ensure public health and
safety;
(iv) Resource development or
recovery operations (under § 22.25, for
golden eagle nests only); and
(v) Other interests.
*
*
*
*
*
Dated: December 8, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
[FR Doc. 2016–29908 Filed 12–14–16; 8:45 am]
BILLING CODE 4333–15–P

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