Bald and Golden Eagles Enlist the Resistance
The screenshot above is taken from public comments on the US Fish and Wildlife Service’s (FWS) Proposed Rule on Permits for Incidental Take of Eagles and Eagle Nests under the Bald and Golden Eagle Protection Act (BGEPA). It made me think of “The Resistance” from Star Wars so I took the liberty of adding the logo. This comment was one of the ~2,000 form letters rallied by a nonprofit… the resistance certainly answered! If you want to add your voice, the FWS extended the comment period until 29-December. Comment here.
A Little BGEPA Background
The Bald eagle has been part of the United States’ identity since the Second Continental Congress selected it as a national symbol in 1782. Congress extended protections to the bird in 1940 and subsequently added the Golden eagle to protections due to population pressure and their similarity of appearance as juveniles. BGEPA underwent multiple revisions and iterations (see Timeline), with the introduction of permits for incidental take in 2009. The most recent Bald eagle population count has shown increased growth over time. Martha Williams, FWS Principal Deputy Director noted in 2021 that “The recovery of the bald eagle is one of the most well-known conservation success stories of all time.” Golden eagles have not fared quite so well, with research pointing to human activities linked to 74% of Golden eagle mortality.
BGEPA Timeline
BGEPA enacted in 1940
Bald eagle was listed as an endangered species under the ESA in 1978
Bald eagle was delisted 2009
FWS issued the 2009 Eagle Rule that created new permits for eagle and eagle nest take
FWS issued the 2016 Eagle Rule that increased the permit tenure from 5 to 30 years (although permits have to be reauthorized every 5 years), updated boundaries of Eagle Management Units, required pre-construction monitoring, amended the preservation standard, and required analysis of cumulative take and known unauthorized take.
FWS put out an Advanced Notice of Proposed Rulemaking in September 2021 to get input on how to expedite and simplify the permitting process.
This 2022 Proposed Rule proposes four new general permits for wind energy, electric power lines, disturbance take, and nest take.
What’s in the Proposed Rule
The 2022 Proposed Rule is mostly focused on the creation of new general permits. General permits provide a streamlined process over individual permits for activities that are similar in nature and generally of lower risk. The proposed rule describes general permits for wind energy, electric power lines, disturbance take, and nest take. It also covers monitoring, quantification of impact, and mitigation measures. We applaud the Services’ efforts in the Proposed Rule with regards to streamlining and automating permits in low-risk areas, attempting to create efficiencies with programmatic monitoring, directing applicants away from case-by-case permittee responsible compensatory mitigation, and adopting a science-based approach to understanding risk to species and methods for quantifying impacts.
The country is building trillions in infrastructure right now, and wildlife will be impacted by development, but also benefit from the avoided climate change that renewable energy infrastructure brings. While incidental take of bald and golden eagles will occur - abundant and uncommon (but not endangered) species, respectively - that should not mean we need to significantly slow down this infrastructure deployment because we can simultaneously operate programs and regulatory approaches that avoid and offset that damage. We can’t achieve this ambitious goal without clear rules and approaches for avoidance, minimization and compensatory mitigation.
EPIC’s Comments on the Proposed Rule
EPIC’s priority recommendations for the Proposed Rule include:
Compensatory mitigation: Include a preference for in-advance mitigation, indicate willingness to consider new forms of mitigation including outlining a process by which new mitigation methods are approved, and extend opportunities for tribal participation.
Monitoring: Consider allowing third-party programmatic monitoring, plan for a new massive dataset and consider making it publicly available, and consider allowing a self-certification of areas outside the Wind GP ‘green zone’ when there is ample monitoring data suggesting low risk to eagles.
We expand on the suggestions below.
Compensatory Mitigation
Conservation Banks
We appreciate that the Rule includes mention of conservation banks both in the general compensatory mitigation section (§22.220) and the detail on mitigation for wind general permits (§22.250(f)(7)(ii)). The Service expressed in their public webinar (Oct. 20, 2022) that while only two in-lieu fee programs (ILFs) are currently available, their hope is that other banks or ILFs come forward to seek approval and a greater marketplace develops to provide compensatory mitigation. To do this, the Rule should include more text to provide some degree of certainty for those attempting to develop new solutions. However, the Rule fails to include any information on the process by which a bank applicant can get a bank approved. At minimum, the Rule should include one paragraph that references the process and timelines used under existing Conservation Banking guidance and state that applicants should generally follow the information requirements in that guidance for eagle banks and could expect from the Service similar timelines for review. It makes sense to use an approach that already works for one part of your agency for this subset of non-listed wildlife.
Approval of additional methods of compensatory mitigation
For more than 12 years, permittees and others have been discussing the need for multiple compensatory mitigation methods for eagles. However, only existing power pole retrofit ILFs are mentioned in the Rule as a form of mitigation. Has the Service really made so little progress in 12 years that habitat offsets, roadkill management, and other forms of compensation cannot yet be approved, even though many of these same methods are in wide use for species of greater conservation concern listed under the ESA? The Rule could help by mentioning other forms of potential future mitigation, as they did in the Draft EA:
“Examples of compensatory mitigation activities could include retrofitting power poles to reduce eagle electrocution rates, removing road‐killed animals along roads where vehicles hit and kill scavenging eagles, or reducing lead levels in carrion or offal. To date, the Service has only approved one compensatory mitigation activity – power pole retrofits, but we are assessing others and expect to approve other methods in the future based on what we learn from case-by-case approvals.”
The above statement is not enough, however, as assessment on a “case-by-case” basis has resulted in the USFWS imposing a higher standard on acceptability of offset approaches compared to any other agency or the Ecological Services within your own agency. The Rule should mention at least a skeleton of a process by which new compensatory mitigation methods would be approved. If guidance for this is anticipated, the Rule should mention this. The process should include accepting the science and information that is available for quantifying benefit to eagles, a timeframe for the approval process, accountability / transparency measures, and opportunities to balance risk with assurances.
Our perspective from years of discussions with Service staff and permittees is that the agency is waiting for an unattainable degree of perfect science before accepting mitigation alternatives. It’s the wrong approach. A better approach would be to follow the example of the EPA in the Chesapeake Bay, where nutrient reduction quantities are calculated for hundreds of practices and activities. That approach is based on available science and expert input. It takes approximately 3 years to assign value to a new compensatory mitigation activity for nutrient pollution. Models and estimates are never perfect so periodically, the model is updated to reflect new valuations. The Chesapeake Bay example is just one of many approaches in use for other resources that the Service could follow here.
Weird fact I learned reviewing the Proposed Rule: People shoot eagles! Seriously! It’s one of the top handful of threats to the species – killing 670 Golden eagles a year – and FWS is asking permittees to develop an “eagle-shooting-response strategy.”
Preference for advance mitigation.
The Service previously proposed an agency-wide preference for compensatory projects that prove their value before impacts occur over projects that only provide benefits after impacts are allowed. While that policy was overturned by political appointees in the past administration, our understanding is that new policies would restore it. Therefore, we question why the Service is silent on this preference in this policy and is instead giving indirect support for the opposite preference by giving so much attention to in-lieu fee (ILF) approaches which generally only attempt to create benefits for species after impacts occur.
While only ILFs are currently available, the Service should anticipate potential in-advance compensatory mitigation in the future and follow the Service’s 2016 ESA mitigation policy which creates a preference for in-advance, consolidated mitigation per Section 6.1.2 and 6.1.3 (anticipated to return soon). Stating this preference would provide an incentive to create mitigation that reduces the risk of mitigation failure.
Tribal compensatory mitigation leadership
The Service has a unique opportunity to extend mitigation opportunities to tribes through the Rule. We recommend the Service consider incentivizing tribal participation in such golden and bald eagle compensatory mitigation. The tribal interest in mitigation of golden and bald eagles is significant because eagles are culturally connected to various Tribal traditions. Thus, thriving golden and bald eagle populations are pertinent to both tribes and the Service. For example, the Service could recommend that mitigation banks located on tribal lands receive a higher priority in the compensatory mitigation prioritization framework mentioned above. Alternatively, the Service’s regulations could encourage tribes to develop programs on tribal lands to create hubs for eagle mitigation. Tribal lands could also serve as eagle nest relocation points for surrounding areas.
Monitoring
The Service is proposing to spend twice as much on monitoring as on conservation (i.e. offsetting). For example, Table 2 in the preamble of the Proposed Rule estimates $100,000 for monitoring and $40,000 on conservation under the wind general permit; and $2.1 million in monitoring and $578,000 in conservation for a wind energy individual permit. It is difficult to imagine any rational scenario where a wildlife conservation agency would propose this.
We support the concept of using pooled monitoring to create cost efficiencies; however, we have concerns that the existing monitoring plan is not something the Service has any experience in implementing and is unrealistic. A backup plan is needed in several areas.
For example, the Administrative fee that covers monitoring is based on an assumption of a certain level of participation in the Wind General Permit. When government agencies take in fees to deliver a service, they consistently either (1) underprice the service, thereby requiring a hidden subsidy from taxpayers to make up the cost difference, or (2) underperform on obligations (in quality, quantity, or timeliness) in order to stay within budget. Given the recent challenge to recruit staff to government agencies, we doubt the federal government’s ability to quickly hire the extensive, specialized staff needed to implement the monitoring plan. Furthermore, a federal agency that issues permits should not be in a position of relying on financial resources that are conditional on permit issuance because it creates a perverse incentive to approve them.
We believe that contracting the programmatic monitoring to a third party is more likely to be able to carry out a focused and cost-effective take monitoring program that crosses public and private lands, and produce monitoring results and data in formats and APIs (application programming interfaces) that are more useful both to the agency and to parties affected by or interested in eagle conservation and mitigation. A potential alternative to that is to have the agency collect resources for pooled monitoring, and to use an RFP process to hire third party contractors to carry it out. In some ways, doing so is analogous to how the State of North Carolina carries out its in-lieu fee program. North Carolina collects those fees and then runs RFPs to buy wetland/stream mitigation credits from completed advance mitigation projects. While one is for mitigation and the other for monitoring, the structure could be similar, and the outcome is to allow more reasonable and competitive pricing for larger contracts for services.
The Service should also anticipate the large influx of data associated with permitting and monitoring. The Proposed Rule mentions applicants providing data on the “number of turbines, rotor diameter, and location coordinates;” data on electric power lines; location coordinates of eagle nests; permittee data on injured and dead birds; and all of the data associated with programmatic monitoring. In anticipation, the Service should plan for the digital infrastructure required to collect, share, and use this information efficiently. Too often useful data are locked away in permit documents and not shared with those who could learn from it. For example, could some or all of this information be provided publicly (potentially under a protected data agreement)? There is an opportunity for the data to be used for siting, and potentially for creating new risk assessment tools. Careful attention to the digital infrastructure around these permit data will be essential for enabling its full use over time.
Finally, the Wind General Permit is only available in the ‘green zone’ (areas of designated low risk to eagles) but it is possible that a facility outside the green zone may already have years of monitoring data indicating low risk to eagles (e.g., a lack of eagle injury or mortality). The Service should consider allowing applicants to be able to ‘self certify’ low risk in their area, given a certain number of years of monitoring data and allow that facility to be covered under the General Permit. To balance the potential risk, the Service could bump up the site’s potential for audit.
Are you part of the Resistance? If you have something to say, the FWS has extended the comment period until December 29th. Comment here.
