Our thoughts on getting eagle mitigation right

By Phoebe Higgins and Mariah Black Bird

In their advance notice of proposed rulemaking, the US Fish and Wildlife Service pointed out how much Bald eagle populations have grown; they’ve quadrupled in a decade, allowing the species to tolerate a significant amount of annual losses without fear of decline.  Not so the golden eagle. That sets the stage for some tough choices as new wind farms and infrastructure come online. There will be new impacts to bald and golden eagles from energy and transmission development, so the agency needs a workable strategy to avoid and offset unacceptable impacts. Unfortunately, the agency has not previously been able to develop such a program, and many major projects operate today without a permit, not for lack of interest but because there was no practical permit that could be issued. 

We support four steps that would contribute to a workable permit program:

·       Formally setting a preference for advance mitigation offsets;

·       Quickly approving a broad suite of compensatory mitigation offset measures;

·       Changes in monitoring requirements to reduce costs that have little conservation value in exchange for modest additional offset commitments; and

·       More Tribal engagement in eagle mitigation offsetting.

Formally setting a preference for advance mitigation

We recommend the Service establish a preference for compensatory actions that deliver completed benefits to eagles in advance of impacts to reduce risk of ecological failure. The 2008 Rule on Compensatory Mitigation for Losses of Aquatic Resources establishes a preference hierarchy for mitigation banks, which create compensatory mitigation credits in advance of impacts. A 2015 Presidential Memorandum created that preference too, as did 2015 Department of Interior and 2016 US Fish and Wildlife Service mitigation policies that we believe the agency should still be following. We understand that a supply of advance mitigation credits would not be available at the beginning under any new rule – the same was true under the Army Corps/EPA rule. However, if policies are clear enough in this preference and in establishing demand for credits, advance mitigation projects will happen.

Expanding approved compensatory mitigation measures

Anyone required to offset eagle take needs approved options for ways to do so. After approximately 10 years of work on this issue, as of now, the Service has only one approved compensatory mitigation measure:  power line retrofits. The agency appears unwilling to approve other measures, because quantitative valuation of those measures is still imprecise. But information on ecological and biodiversity restoration outcomes will never be perfect. The agency must be willing to accept the science and information that is available today and use expert input and reasonable inference to translate outcomes from mitigation activities into units of mitigation value. We believe offsets should be immediately approved for activities such as prey base enhancement, reductions in roadkill attractants to roadsides, habitat protection and restoration, and lower disturbance near nest sites. 

Other agencies – including the Ecological Services program of the Fish and Wildlife Service – have successfully moved forward with similar imperfect mitigation offset valuations and built increasingly successful programs around them over time. For example, EPA and states in the Chesapeake Bay watershed figured out a way to take an initial mitigation approach and then adapt it over time with better science. They calculate the value of hundreds of practices and activities in reducing nitrogen, phosphorus and sediment input into the Chesapeake Bay 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 the model is periodically updated to reflect new valuations. For example, the nutrient credits from tree planting were recently deemed to have been over-estimated--their valuation was cut in half as an offset in 2019. 

Innovative “pooled” mitigation

What if permittees could collectively mitigate low-probability amounts of eagle take through a regional mitigation bank within a flyway or similarly relevant region and just carry out mitigation for likely take through individual permits? Fishermen use similar “risk pools” to avoid penalties assessed for exceeding their fishing quota limits for certain restricted species[1]. One group of California fishermen manage a risk pool[2] that allows those fishermen to combine their individual quotas in a pool. They all agree to avoid and minimize catch of restricted species to the extent possible. If one member of the risk pool exceeds their quota allocation for a restricted species (i.e., incidental take), other fishermen’s quota for that species—managed collectively in the pool—can be used to make up the difference.   

If we apply this risk pool concept to eagles, permittees like wind farms, operating collaboratively within the same area, would each receive an individual permit with a baseline eagle take limit based upon modeled take. Then, to provide insurance for any take that goes beyond the modeled amount, the permittees in the pool could collectively pay for eagle offsets that offer a cushion of mitigation beyond the baseline level. This type of arrangement gives individual permittees a safe harbor in the event one of them has incidental take above the individual permittee limit, but done on a collective basis, it should be more cost-effective than setting very conservative individual permittee take limits and requiring extremely expensive monitoring plans to document that take is within those limits. For instance, permittees could purchase offsets at a rate of 150% of their baseline permitted take, rather than directly purchasing offsets worth 200% of a highly conservative take limit. It is highly unlikely every permittee in the pool will exceed their take limit by 100%.

Even if some permittees exceed their permitted take limit, there is enough of a buffer from the pooled mitigation bank efforts to compensate for reduced monitoring, which should also offer a time and cost savings. Rather than paying for monitoring to account for incredibly rare events, a more modest monitoring level would be sufficient for permittees participating in a pool that offers a mitigation buffer. Rare events might still occur, but they would have advance offsets from the risk pool’s bank. The bank would deliver offsets for a range of approved mitigation activities such as carcass removal, rehabilitation, power line retrofits, habitat enhancement, etc.

Opportunity for tribal mitigation

The Service has a unique opportunity to encourage and incentivize tribes to provide compensatory mitigation services. 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 indicate that mitigation banks located on tribal lands would receive a higher priority in the compensatory mitigation prioritization framework mentioned above. Alternately, the Service’s regulations could encourage tribes to develop programs on tribal lands to create hubs of eagle mitigation services. Moreover, tribal lands could serve as eagle nest relocation points for surrounding areas.

Projects that impact eagles will continue to be permitted, even in the absence of a strong mitigation program for eagle take. We hope these ideas will help the Service set up a clear and adaptable program that supports offsetting eagle impacts.  

[1] Some species that are recovering from very low abundance needed to be avoided, but they often live among abundant species that commercial fishermen need to catch. Therefore, fishermen are allowed a limited amount of incidental catch of those restricted species, and if they exceed the catch limit, they can be shut down.

[2] Kauer K, Bellquist L, Gleason M, Rubinstein A, Sullivan J, Oberhoff D, Damrosch L, Norvell M, Bell M. 2018. Reducing bycatch through a risk pool: A case study of the U.S. West Coast groundfish fishery. Marine Policy. 96: 90-99. https://www.sciencedirect.com/science/article/pii/S0308597X18302069.