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Public Input Topics
The following topics were highlighted at the Public Input Meetings:
The U.S. Fish and Wildlife Service revised its regulations to extend the maximum permit duration for programmatic eagle non-purposeful take permits from 5 to 30 years. As part of this scoping process, we are soliciting public input, in light of the Service’s overall reexamination of its 2009 permit regulations and eagle management objectives, as to whether 30 years is the appropriate maximum term for programmatic permits. We are also interested in suggestions for how 5-year reviews for longer-term permits can be most effective.
The language of the Bald and Golden Eagle Protection Act provides flexibility with regard to defining management objectives for bald and golden eagles. The management objective directs strategic management and monitoring actions and, ultimately, determines what level of permitted eagle removal can be allowed.
We are considering modifying current management objectives for eagles, which were established with the 2009 eagle permit regulations and Final Environmental Assessment of our regulatory permitting system under the Eagle Act. Different management objectives could be set for bald and golden eagles. At least four elements may be considered when establishing a management objective:
The population objective and relevant timeframe for it to be met
Eagle management units (EMUs), or the geographic scale over which permitted take is regulated to meet the population objective
Whether we also set an upper limit on take at a finer scale than the EMU to avoid creating population sinks in local breeding populations
Our level of risk tolerance. The level of risk tolerance means how much risk the agency is willing to take when information is uncertain in carrying out management actions (e.g., setting levels of authorized take). For example, when information is less certain, a more conservative approach may be adopted to avoid unintended outcomes. Alternatively, to provide for more flexibility in permitting, the Service could adopt a more risk-tolerant approach.
The current management objective, also referred to as the “Eagle Act preservation standard,” is to manage populations consistent with the goal of maintaining stable or increasing breeding populations over 100 years, which is at least five eagle generations. The scale the Service uses to evaluate eagle populations is referred to as eagle management units. EMUs for the golden eagle were set at the Bird Conservation Region (BCR) level because the only range-wide estimates available for the golden eagles are BCR-scale population estimates. To establish management populations for bald eagles, we used natal populations (eagles within the natal dispersal range of each other) in our evaluation in order to look at distribution across the landscape. (Natal dispersal refers to the movement between hatching location and first breeding or potential breeding location.) Because the populations delineated by this approach roughly correspond to the Service’s Regional organizational structure, we have been managing bald eagles based on populations within the eight Service Regions, with some shared populations. Estimates of bald and golden eagle population size in each EMU were calculated, and EMU-specific estimates of demographic rates were used in models to determine rates of authorized take that are compatible with maintaining stable breeding populations.
Under the current management approach, permitted take of bald eagles is capped at 5 percent estimated annual productivity for bald eagles. Because the Service lacked data to show that golden eagle populations could sustain any additional unmitigated mortality at that time, we set take thresholds for that species at zero for all regional populations. This means that any new authorized “take” of golden eagles must be at least equally offset by compensatory mitigation (specific conservation actions to replace or offset project‐induced losses). For more details and explanation about the current eagle management approach, see the 2009 Final Environmental Assessment, Proposal to Permit Take as Provided Under the Bald and Golden Eagle Protection Act.
The Service also developed and applies guidance on upper limits of take at more local scales to manage cumulative impacts to local populations. Under the guidance, the Service must assess take rates both for individual projects and for the cumulative effects of other human-caused take eagles, at the scale of the local‐area eagle population. The local-area population is the population of eagles within the natal dispersal distance. The Service considers this distance to represent the geographic area that would provide recruits to replenish a local population if permitted take caused a decline in the breeding population of eagles around a permitted project. The Service identified take rates of between 1 and 5 percent of the total estimated local‐area eagle population as significant, with 5 percent being at the upper end of what might be appropriate under the Eagle Act preservation standard, whether offset by compensatory mitigation or not.
The Service is considering a range of possible alternatives to the current management objective. At one end of the spectrum, we could adopt a qualitative objective such as “to not meaningfully impair the bald or golden eagle’s continued existence.” Alternatively, we could update the current management objective by incorporating newer, improved information on eagle movements, population size, and natal dispersal distances to revise the EMUs; set explicit numerical population objectives in each EMU; and refine the area we consider the local scale. We could also adopt an explicit level of risk tolerance relative to how much take to allow based on uncertainty in the population size estimates.
To qualify for a programmatic permit, current regulations require implementation of “advanced conservation practices” that reduce eagle disturbance and ongoing mortalities to a level where remaining take is unavoidable. However, requiring take to be “unavoidable” for programmatic permits is a high standard that has been perceived as unrealistic and ambiguous. The Service is considering eliminating the “unavoidable standard” and instead requiring that all permittees take all practicable measures to avoid and minimize take of eagles. 30 years is the appropriate maximum term for programmatic permits. We are also interested in suggestions for how 5-year reviews for longer-term permits can be most effective.
Under current regulations at 50 CFR 22.27, permits for take of eagle nests are available only under certain limited circumstances. The Service is looking for public input about whether to modify those restrictions or amend the regulatory definitions of “eagle nest” and “inactive eagle nest.”
The current regulatory definition of “eagle nest” is “any readily identifiable structure built, maintained, or used by bald eagles or golden eagles for the purpose of reproduction.” “Inactive nest” is defined as “a bald eagle or golden eagle nest that is not currently being used by eagles as determined by the continuing absence of any adult, egg, or dependent young at the nest for at least 10 consecutive days immediately prior to, and including, at present. An inactive nest may become active again and remains protected under the Eagle Act.”
These definitions have presented some challenges to administer. For example, with regard to the definition of “eagle nest,” issuing permits for nest sites that have largely degraded and no longer have much biological value can be burdensome and result in little conservation value. On the other hand, there is a need to protect high-value nest sites that have been substantially compromised by storms or other factors; removing protection of the remnants would essentially eliminate protection of the nest site, resulting in loss of some territories.
The Service would like public input as to whether the definitions of “eagle nest” and “inactive nest” strike the appropriate balance between:
Protecting important breeding structures for eagles
Minimizing the regulatory burden with regard to sites that may have less biological value to eagles.
Active nests have more protection than inactive nests. However, active nests include those that are being built, maintained, or attended by a pair of eagles, but which contain no eggs yet. Sometimes it would benefit eagles to remove the nest or partial nest at that stage to prevent eggs from being laid but, under the current regulations, active nests can be removed only in a safety emergency. At times, safety issues can be foreseen although the emergency has not yet arrived. If the Service had the ability to issue a permit to remove active nests in such circumstances before eggs are laid, it would likely benefit eagles.
Currently, permits are available to remove inactive eagle nests only where:
Necessary to alleviate a safety hazard to people or eagles
Necessary to ensure public health and safety
The nest prevents the use of a human-engineered structure
The activity, or mitigation for the activity, will provide a net benefit to eagles. This last provision is a “catch-all” category that allows inactive nests to be removed for any reason as long as there will be a net benefit to eagles. The net benefit may accrue because the project itself will benefit eagles (e.g., a habitat restoration project), or the benefit may be provided through mitigation that more than offsets the detrimental effects of the nest removal. Limiting permits for nest removal to these specific circumstances has resulted in some difficulties. For example, it is often hard to provide mitigation amounting to a net benefit in light of the overall economics of the project, particularly if it is a small project. Now that bald eagle populations appear to be healthy and growing in most parts of their range, explaining to the public why a net benefit is required to remove a nest is challenging. Also, where the location of the nest does not preclude all construction (i.e., on larger land parcels), we could issue a permit for disturbance rather than nest removal. If the disturbance results in permanent nest abandonment, the nest site is lost, just as if the nest was destroyed, but this option is only available to larger landowners who can build around the nest.
In general, the term “mitigation” refers to measures taken to lessen or offset adverse impacts from an action. Broadly speaking, mitigation includes: avoidance, minimization, rectification, reduction or elimination over time, and compensatory mitigation. Compensatory mitigation is typically applied to offset impacts that were not avoided, minimized, rectified, or eliminated over time. Currently, the eagle nonpurposeful take regulations require all permittees to avoid and minimize impacts to eagles. For unavoidable impacts, compensatory mitigation has been required under eagle permits in some cases. It has consisted of a variety of measures, including, but not limited to: habitat preservation, construction of nest platforms, in lieu fees, and funding for conservation education programs.
For take of eagles that would exceed Service-established take thresholds, the Service requires compensatory mitigation to essentially “replace” (by saving from another lethal threat) the number of eagles taken in excess of the threshold. The Service has adopted the term “replacement mitigation” for this type of compensatory mitigation. The Service has sufficiently analyzed one means of replacement mitigation to quantify how much effort is needed to prevent mortality of an eagle—power pole retrofitting, which has been demonstrated to reduce eagle electrocutions. After years of monitoring electrocutions and retrofits, we can estimate how many power-line poles must be altered to reduce existing fatalities. However, other actions also have the potential to serve as replacement mitigation, such as carcass removal from highways and lead abatement.
We would like to establish consistent standards for when compensatory mitigation would be required under permits. We could include the following standards:
Require replacement mitigation for take that exceeds established take thresholds
Require compensatory mitigation for all authorized take with some scaled level of compensatory mitigation for every permit, with minimal restrictions on how the money could be spent so long as it was on eagle conservation
Require compensatory mitigation under some predetermined circumstances for take that is within established thresholds but nevertheless may affect the long-term preservation of eagles (e.g., when habitat is significantly degraded; for loss of a traditional communal roost; or if necessary to offset impacts to the local area eagle population)
Combine elements of the above approaches
The Duration Rule established a category for low-risk projects. “Low-risk” is defined in a footnote to 50 CFR 13.11(d)(4) as a project or activity that is “unlikely to take an eagle over a 30-year period and the applicant for a permit for the project or activity has provided the Service with sufficient data obtained through FWS-approved models and/or predictive tools to verify that the take is likely to be less than 0.03 eagles per year.” Applicants for low-risk projects pay a substantially reduced permit application processing fee because the costs to the Service for evaluating such applications are significantly lower than for a typical programmatic permit application. The Service is considering revising this definition because it covers only those projects where take is basically negligible and therefore the project does not really warrant a permit. The Service sees utility in redefining “low-risk” to include projects with a slightly higher probability of taking eagles, but which cumulatively will still be compatible with eagle management objectives. The NEPA process presents an opportunity to analyze the impacts of lower impact projects for purposes of introducing greater efficiencies in future permitting of such individual projects.
In addition to the topics discussed above, during this scoping process the U.S. Fish and Wildlife Service invites the public to provide input on any provision of the eagle permit regulations and eagle management program.