GM 12-053

Fish and Wildlife Service Proposes Changes to Programmatic Take Permit Regulations under the Bald and Golden Eagle Protection Act

The Fish and Wildlife Service (FWS) has published in the attached April 13, 2012, FEDERAL REGISTER notice proposed rule changes to its regulations establishing permit conditions for the non-purposeful taking of bald and golden eagles under the Bald and Golden Eagle Protection Act (Eagle Act). In this memorandum, we provide a brief summary of these proposed changes. Comments on the proposed changes are to be submitted by May 14, 2012. In a separate FEDERAL REGISTER notice, also attached, the FWS requests comments on three other questions related to the permitting process under the Eagle Act. The deadline for comments on the second notice is July 12, 2012.

In order to “facilitate the responsible development of renewable energy and other projects designed to operate for many decades,” the FWS proposes to amend the regulations as follows:
(1) Extend the term of a “programmatic” take permit to up to 30 years. The current maximum term is 5 years.
(2) Incorporate additional mitigation measures that would be triggered if eagle takings are more than the anticipated levels at the time of the permit being granted, to account for the maximum term being increased. The FWS has not specified what types of mitigation measures would be required.
(3) Amend the rules on rights of succession and transferability of Eagle Act programmatic permits to be more analogous to “incidental take” permits under the Endangered Species Act.
(4) Substantially increase permit and administration fees. However, government agencies, including tribal government agencies, would still be exempt from these fees. Private entities would be subject to as much as a $35,000 or more increase in fees.

The second FWS notice requests comments on other areas of the Eagle Act permit regulations that are not addressed above. The FWS lists three areas in which comments would be helpful: (1) Clarifying the criteria for issuance of programmatic and standard permits, (2) Compensatory mitigation, and (3) the Eagle Act preservation standard.

Please let us know if we may be of assistance in preparing comments on these proposed regulations.