Bald and Golden Eagle Protection Act- Eagle Incidental Take Permit Guidance for Renewable Energy Development
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240-0036
http://www.blm.gov
January 19, 2017
In Reply Refer To:
6500 (230) P
EMS TRANSMISSION 03/02/2017
Instruction Memorandum No. 2017-040
Expires: 09/30/2020
To: All Field Office Officials
From: Deputy Director, Operations
Subject: Bald and Golden Eagle Protection Act–Eagle Incidental Take Permit Guidance for Renewable Energy Development
Program Area: Rights-of-Way – Wind and Solar Development
Purpose: This Instruction Memorandum (IM) provides guidance on the processing of right-of-way (ROW) applications for wind and solar energy development projects that have the potential to result in eagle take. The guidance promotes compliance by project proponents with the Bald and Golden Eagle Protection Act (Eagle Act) (16 U.S.C. 668-668d), which protects bald and golden eagles and their nests by prohibiting the take, possession, and commerce of such birds and nests without a permit and establishes criminal and civil penalties for violations of the Eagle Act. The steps outlined in this IM apply to the permitting process and therefore will occur before project development and any resulting take of an eagle.
This IM applies only to proposed projects and related facilities located on Bureau of Land Management (BLM)-administered public lands. The BLM cannot require compliance with the Eagle Act for projects located on non-BLM-administered land (e.g., other federal, State, tribal and private lands). This IM applies to new and existing wind and solar ROW applications except for those for which the BLM has published a draft or final National Environmental Policy Act (NEPA) document. This guidance replaces BLM IM 2010-156.
The policies and procedures in this IM apply only to ROW applications for solar and wind renewable energy facilities. Other renewable energy projects (e.g., geothermal and hydropower projects) and other ROW authorizations (e.g., transmission lines, pipelines, roads) are not covered by the policies and procedures in this IM; however ROW grant holders must comply with the Eagle Act.
Policy/Actions: The BLM requires ROW grant holders to comply with all applicable Federal and State laws and regulations, including the Eagle Act. Wind and solar energy development ROW applicants are
not legally required to seek or obtain a U.S. Fish and Wildlife Service (FWS) eagle incidental take permit (take permit) for construction or operation of a renewable energy project. Take of an eagle by a BLM ROW grant holder without a take permit is, however, a violation of the Eagle Act and a violation of the terms and conditions of the BLM ROW grant. The definition of “take” includes lethal take as well as “disturbance” as defined in 50 CFR 22.3. The FWS has enforcement authority under the Eagle Act.
The BLM has the authority to determine, on the basis of its review, and consistent with its multiple use and sustained yield mandate, whether to approve, approve with modifications, or deny a ROW application. The BLM also has the authority to administer ROW grants for approved projects. For example, under 43 CFR 2807.16 through 2807.20, the BLM may amend, suspend, or terminate ROW grants for violations of applicable terms and conditions, such as the requirement to comply with all applicable laws (43 CFR 2805.12), including the Eagle Act. The authority to enforce the terms and conditions of the ROW grant exists separate and apart from whether FWS pursues an enforcement action against a project operator for any violations of law, such as taking eagles.
The BLM has addressed other migratory birds, species of concern, and other wildlife resources through guidance provided in other IMs or policies, including:
• IM 2008-050 (Migratory Bird Treaty Act interim management guidance)
• IM 2016-023 (Reducing Preventable Wildlife Mortalities [open pipes])
• Power line standards adopted from the Avian Power Line Interaction Committee
• BLM Manual 6500 (Wildlife and Fisheries Management)
• BLM Manual 6840 (Special Status Species)
• BLM Manual 6720 (Aquatic Resources Management)
Preliminary Application Review Meetings. The purpose of these preliminary application meetings is to screen potential projects for resource conflicts and notify the applicants prior to committing significant resources to processing the ROW applications. Under applicable law and policy, the BLM is required to coordinate early with stakeholders, including FWS and State fish and wildlife agencies. Upon receipt of a ROW application, the BLM contacts the stakeholders to schedule a preliminary application review meeting.
BLM Preliminary Review. At the first preliminary application meeting for wind and solar energy proposals (including site and project area testing ROW applications), the BLM will inform applicants of potential eagle issues using information BLM has readily available. The FWS has the responsibility for determining whether the proposed project will likely result in take of eagles.
If the FWS is not able to attend the first preliminary application meeting, the BLM will:
(1) Provide the applicant with a brief overview of the Eagle Act and other laws, regulations, and guidelines that pertain to eagles.
(2) Discuss with applicants the information BLM has readily available, such as general eagle distribution.
(3) Encourage applicants to begin directly coordinating with the local offices of the FWS and State fish and wildlife agencies.
(4) Describe the general process for obtaining a take permit.
FWS Initial Assessment Regarding Potential Takes of Eagles. The FWS will provide an initial assessment of potential eagle take by a project based on readily available information. The FWS also will discuss the best available information to use to determine the potential impact to eagles from the proposed project and any additional data needs, including recommendations for subsequent data collection. The FWS may recommend that a ROW applicant collect multiple years of scientific data on eagle use of the area to inform its determination of risk to eagles. FWS field offices may have information on pre-construction surveys and risk assessments for use by ROW applicants.
Applicants must provide documentation to BLM that they have contacted and provided information to FWS prior to BLM scheduling the second preliminary application review meeting.
FWS Final Determination Regarding Potential Takes of Eagles. The FWS will make its final determination on potential risk to eagles only after it has received adequate information from the applicant on which to base its decision, consistent with applicable law, policy, and guidance. This determination is generally quantitative and may require detailed analysis of the measures the ROW applicant proposes to implement to avoid, minimize, compensate, and monitor for the take of eagles. The FWS also may recommend that a ROW applicant prepare an eagle conservation plan (ECP) that includes a risk assessment as part of an application for an incidental take permit (FWS 2013).
The BLM will incorporate the FWS’s determination of eagle risk in its NEPA analysis of a project. If the FWS determines that take of eagles is likely, the BLM will recommend that a ROW applicant seek a take permit. If the FWS determines that take of eagles is not likely, the BLM will not require specific eagle conservation measures.
General ROW Stipulations. If the FWS has determined that take of eagles at a project is likely, the BLM will include stipulations in the ROW grant, requiring the grant holder to monitor its project regularly for eagle fatalities using FWS-approved standards throughout the life of the grant. This stipulation will be incorporated in the ROW grant, regardless of whether a ROW applicant elects to apply for a take permit.
Incorporating New Information. As the FWS further refines its rules and guidance to address impacts to eagles from wind and solar energy development projects, the BLM will incorporate such guidance as appropriate into its NEPA analyses and ROW grants under 43 CFR 2805.12(16).
Applicant Decision. Based on the FWS assessment of whether take of eagles is likely, the ROW applicant must inform the BLM of its planned approach to address potential eagle take so that the BLM can incorporate that information as it prepares the draft NEPA document. The ROW application process is determined from this point forward by a ROW applicant’s decision to pursue an incidental take permit. If an applicant decides to seek a take permit, Option 1 (detailed below) applies. If the applicant chooses not to pursue a take permit, Option 2 (detailed below) will take effect.
If a ROW applicant initially declines to apply for a take permit, but later decides to seek a permit, the BLM will require the ROW applicant to notify the BLM and FWS in writing prior to submission of the incidental take permit application to the FWS. The agencies then will follow the process described in Option 1. Such a decision may require additional NEPA analysis and thus delay BLM’s decision-making process.
Option 1. Eagle Incidental Take Permit Sought
FWS Incidental Take Permits. If a ROW applicant chooses to apply for an incidental take permit, it must submit an application package to the FWS, consistent with then-applicable FWS permitting rules and policies. The application should include an ECP that includes an eagle risk assessment and describes the project as well as any avoidance, minimization, and compensation measures. Information on how to prepare an ECP for wind energy projects is available in the Eagle Conservation Plan Guidance (ECPG, FWS 2013). Applicants can also contact FWS field offices for updated information on eagle surveys. The ECPG contains information details on eagle surveys and risk assessment. The FWS has sole decision authority concerning whether the content of an incidental take permit application is sufficient for processing. The incidental take permit application is available at http://www.fws.gov/forms/3-200-71.pdf and related information is available from the FWS.
ROW Stipulation. The BLM will include a stipulation that incorporates the terms and conditions of the incidental take permit that are within the authority of BLM to inspect and enforce, in accordance with 43 CFR 2805.12(16).
The FWS requires compensatory mitigation when take of golden eagles is likely to occur at a project site to maintain or enhance golden eagle populations. Therefore, applicants that propose operations that may take golden eagles will need to include compensatory measures in their application. The ROW applicant should closely work with the FWS to identify these measures. All such measures will be evaluated under NEPA and, after adequate review, incorporated into ROW grants.
NEPA and Decision Documents. The BLM and the FWS may elect to issue a combined NEPA and decision document for a ROW grant and take permit (i.e., a single record of decision for an environmental impact statement, or decision record for an environmental assessment). The BLM and the FWS will coordinate with the ROW applicant on any modifications of the proposed project necessary to avoid, minimize, and compensate for potential impacts to eagles. The BLM will request the FWS to be a joint lead agency with the BLM for the NEPA document in accordance with 40 CFR 1501.5(b) and 43 CFR 46.220(c). As joint lead agencies, BLM and FWS will jointly develop the purpose and need portion of the NEPA document to reflect the BLM ROW decision and the FWS take permit decision. The NEPA document will analyze the proposed project and any connected actions. The document must incorporate the environmental analysis necessary to support both decisions.
Coordination with FWS. If the FWS declines the invitation to be a joint lead agency, the BLM will invite the FWS to become a NEPA cooperating agency in accordance with 40 CFR 1501.6, 43 CFR 46.230, and BLM Handbook H-1790-1 (National Environmental Policy Act). The BLM will closely coordinate with the FWS throughout the ROW permitting process even if the FWS is unable to be a cooperating agency.
Option 2. No Eagle Incidental Take Permit Sought
If a ROW applicant chooses not to seek an incidental take permit, BLM will:
(1) Inform the applicant that it will consider the applicant’s decision not to seek a permit when reviewing its application.
(2) Assess a project’s potential risk to eagles.
(3) Require implementation of mitigation measures to protect eagles based on the level of risk.
ROW Stipulation. The ROW grant will also specify that if an eagle is taken by a project without a take permit, the ROW grant holder shall immediately notify the BLM and the FWS and, after consultation with the BLM and the FWS, implement reasonable specific actions to avoid further unpermitted take of eagles. Additionally, the BLM should encourage the ROW applicant to work closely with FWS to identify appropriate risk reduction and offsetting measures, consistent with then-applicable FWS permitting policies. All such measures should be identified and, after appropriate environmental review, incorporated into the ROW grant in advance of project development.
NEPA and Decision Documents. The BLM may request that a ROW applicant provide data related to eagle presence in, or use of a project area, and/or submit an ECP or other eagle risk assessment to determine the potential effects to eagles from the proposed project, including any avoidance, minimization, and compensation measures.
As part of its NEPA analysis, the BLM will use this to analyze the impacts of the proposed project and any connected actions. As part of that analysis, the BLM may identify the need for additional adaptive management actions to reduce eagle take.
Coordination with FWS. The BLM will coordinate with the FWS to analyze the applicant’s proposed measures and will seek input from the FWS on the need for additional design features to further avoid or minimize the project’s impacts on eagles (e.g., facility macro-siting, individual component micro-siting, timing prescriptions).
The BLM will invite the FWS to become a NEPA cooperating agency during the application process in accordance with 40 CFR 1501.6, 43 CFR 46.230, and BLM Handbook H-1790-1 (National Environmental Policy Act). The BLM will closely coordinate with the FWS throughout the ROW permitting process even if the FWS elects not to be a cooperating agency.
Timeframe: This IM is effective immediately.
Budget Impact: Minimal. The processing of wind and solar energy ROW applications is subject to the cost recovery requirements of 43 CFR 2804.14. The BLM and the FWS signed an interagency Memorandum of Understanding in May 2013 that provides a protocol for the establishment of project-specific cost recovery agreements to support both agencies’ costs in processing ROW applications (BLM IB 2013-074).
Background: The Eagle Act protects bald and golden eagles and their nests by prohibiting the take, possession, and commerce of such birds and nests without a permit and establishes criminal and civil penalties for violations. On September 11, 2009, the FWS published “Eagle Permits; Take Necessary to Protect Interest in Particular Localities; Final Rules” in the Federal Register (74 FR 46836), thereby creating a regulatory mechanism by which non-purposeful take of bald and golden eagles could be permitted under the Eagle Act for authorized uses and activities. On July 9, 2010, the BLM issued Washington Office IM 2010-156 to provide interim direction for complying with the Eagle Act, including the 2009 FWS Rule. On December 16, 2016, the FWS published “Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests in the Federal Register (81 FR 91494), thereby finalizing changes to permit issuance criteria and duration, definitions, compensatory mitigation standards, criteria for eagle nest removal permits, permit application requirements, and fees. The latest information on eagle permits is available at https://www.fws.gov/birds/management/managed-species/eagle-management.php. The BLM is building on the framework of the FWS Wind Energy Guidelines, Eagle Conservation Plan Guidance, and the implementing regulations for wind and solar right-of-way applications. This IM was prepared in coordination with the FWS.
Manual/Handbook Sections Affected: None.
Coordination: The BLM Division of Fish and Wildlife Conservation (WO-230) coordinated preparation of this IM with program divisions in the Resources and Planning Directorate (WO-200), the Minerals and Realty Management Directorate (WO-300), BLM state and field office staff, FWS state, regional and headquarters staff, and the Department of the Interior’s Office of the Solicitor.
Contacts: Brian A. Novosak, Wildlife Biologist, Division of Fish and Wildlife Conservation (WO-230), at 202-912-7370; Jayme Lopez, Realty Specialist, National Renewable Energy Coordination Office (WO-301), at 202-912-7547; and Andrew Strasfogel, Senior Specialist, Land Use Planning, Branch of Planning and NEPA (WO-210) at 202-912-7281.
Signed by: Authenticated by:
Jenna Whitlock Robert M. Williams
Acting Deputy Director Division of IT Policy and Planning,WO-870
2 Attachments
1 – Figure 1. BLM process and decision chart (1 p)
2 – Citation (1 p)