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FWS proposes changes to take-permit regulations for renewable energy projects

The U.S. Fish and Wildlife Service (FWS) has proposed revisions to regulations governing the issuance of permits under the Bald and Golden Eagle Protection Act in order to facilitate the development of renewable energy projects while ensuring that those operations minimize and avoid impacts to bald and golden eagles.

The proposed changes would extend the maximum term for programmatic permits from five years to 30 years, if the permits incorporate specific adaptive conservation measures that may be necessary to ensure the preservation of eagles. The FWS has also proposed to increase the fees associated with the review and issuance of permits in order to cover its true costs and ensure effective monitoring of projects over the extended permit terms.

“These proposed changes will help facilitate the responsible development of renewable energy and other projects, while conserving bald and golden eagles by requiring key conservation and monitoring measures to be implemented,” says FWS Director Dan Ashe. “We are committed to monitoring the impact of projects on eagle populations over the life of the permits to ensure these measures are effective.”

The proposed changes, if approved, would amend permit regulations finalized on Sept. 11, 2009, under the Bald and Golden Eagle Protection Act for the take of eagles that may occur as the unintended result of various activities. The regulations provide for both standard permits and programmatic permits.

Standard permits cover individual instances of take that cannot practicably be avoided, while programmatic permits are necessary to authorize projects where recurring, unavoidable take occurs over the long term, such as with wind energy projects, electric utilities and timber operations. Most take authorized by these permits has been in the form of disturbance to eagles and their habitat; however, permits may authorize lethal take that is incidental to an otherwise lawful activity.

Since publication of the 2009 final rule, it became evident that the five-year term limit on permits did not correspond to the time frame of projects operating over the long term and was insufficient to enable project proponents to secure the funding, lease agreements and other necessary assurances to move forward with projects.

Under the proposed rule, only those applicants who commit to adaptive management measures to ensure the preservation of eagles would be considered to receive permits with terms longer than five years, the FWS explains. Any such measures would be negotiated with the permittee and specified in the terms and conditions of the permit.

This rule would also increase the fees for programmatic eagle take permits to reflect the increased cost to the FWS of developing adaptive mitigation measures and monitoring the effectiveness of the terms and conditions over the life of the permit. For programmatic permits with tenures of five years (the maximum period allowed under current regulations), the permit application processing fee would be increased to $36,000.

In addition, the regulations propose an “administration fee” linked to the duration of the permits to enable the FWS to recover its costs for monitoring and working with the permittees over the life of the permits. The proposed administration fee ranges from $2,600 for permits with tenures of five years or less to $15,600 for 30-year permits.

The FWS says it is inviting ideas from the public on how the permit program can be improved. The agency will be accepting comments on this proposed rule until May 14.

“Feedback from developers indicates that these permit fees are considered a small part of the large investments of most projects requiring programmatic permits,” notes Jerome Ford, the FWS’ assistant director for migratory birds. “By enabling us to improve our permit processing and ensure adequate monitoring over the life of the permit, these increases will help ensure a more efficient and effective permit process.”