Skip to main content
Nossaman LLP

E-Alerts

Draft Eagle Conservation Plan Guidance Released


03/18/11

What Will it Take to Obtain an Eagle Incidental Take Permit for Renewable Energy Projects and Any Activities in Eagle Territory?

The Draft Eagle Conservation Plan Guidance Module 1; Wind Energy Development ("Draft Eagle Guidance") is now available for public comment.  The Draft Eagle Guidance, prepared by the U.S. Fish and Wildlife Service ("Service"), provides recommendations to assess wind energy facilities' potential impact to bald and golden eagles and to acquire and assess information and prepare an Eagle Conservation Plan ("ECP") necessary to obtain an Eagle incidental take permit ("Eagle Take Permit"). 

Is the Draft Eagle Guidance applicable to wind energy development only?

The Draft Eagle Guidance is focused on wind energy development, but the Service also states that many of the concepts and approaches may be used for other types of development that may "take"1 eagles.2  Other examples of activities that may "take" eagles include:  communication towers, other energy projects, transmission lines, road construction and transportation, airports, agricultural and habitat-related activities, housing/commercial development, timber harvesting, and military training. The intended purpose of the Draft Eagle Guidance is to provide interpretive guidance in applying the Eagle incidental take permit rule "in all cases".  

When is the Eagle Guidance effective?

The Draft Eagle Guidance will not be in effect until the Service issues final guidance.  Service staff will use the Draft Eagle Guidance as a "road map" for an Eagle Take Permit application.

Is an Eagle Take Permit the same as an Endangered Species Act incidental take permit?

Although there are some similarities, there are some important differences.  The 2009 Eagle incidental take permit rule ("Eagle Permit Rule") authorizes take of Eagles compatible with their preservation and when take is unavoidable even though avoidance and minimization measures are implemented.6  To obtain a permit, the Service is required to make several findings, including that the taking is necessary to protect a "legitimate interest in a particular locality" and that the project's direct and indirect take plus the cumulative effects of other permitted take and other factors affecting Eagle populations are compatible with the preservation of Eagles.

How did projects comply with prohibitions on take of Eagles before the Eagle Take Permit Rule?

Before adoption of the Eagle Permit Rule, take of eagles was strictly prohibited under the Bald and Golden Eagle Protection Act.7  Project proponents — including wind energy developers — agreed to implement Service-approved avian and bat protection plans (ABPP) to obtain implied consent from the Service not to bring enforcement actions under the Bald and Golden Eagle Protection Act.  Wind energy developers also used the 2003 Service Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines ("2003 Interim Wildlife Guidance"), which recommends siting, project design, and operations assessment and modifications to minimize impacts to fish, wildlife, and plant species.8

Now that projects have the ability to obtain authorization to take Eagles, doesn't that reduce the regulatory burden?  

Probably not — in fact, just the opposite.  The Draft Eagle Guidance continues the overall approach of the 2003 Interim Wildlife Guidance to evaluate sites in stages and minimize potential wildlife impacts via project design features and incorporating measures that would be included in an ABPP.  The Draft Eagle Guidance substantially expands the surveys, monitoring, assessment, and research designs.  The information will be used to determine whether a proposed project needs or is eligible to obtain an Eagle Take Permit and, if so, the necessary components of an ECP, including an increased minimization and mitigation commitment as compared to those in an ABPP, to meet the regulatory requirements of the Eagle Permit Rule.9

The Draft Eagle Guidance establishes a five-stage process involving initial site risk assessment, site-specific evaluation, project-risk modeling, development of an ECP including avoidance and minimization measures, and compensatory mitigation, if applicable, and post-project monitoring and adaptive management.   Some key recommendations include:

  • Proposed project sites of high risk to Eagles with little opportunity to minimize effects would likely not be able to obtain an Eagle Take Permit.
  • Site-specific surveys (800-meter radius point count surveys, nest surveys, migration counts, roost searches) on and within 10 miles of project footprint ideally conducted for three years pre-construction.
  • Assess risk factors for each turbine using Service-provided models to predict the annual Eagle fatality rate for the project.
  • Identify and evaluate advanced conservation practices ("ACPs") that might avoid or minimize fatalities.  Re-run the models to reflect application of the ACPs.  Calculate any required compensatory mitigation amount and identify method to accomplish it.
  • Ongoing periodic monitoring and annual reporting of Eagle use of project site and Eagle fatalities.
  • Implementation of adaptive management measures in response to monitoring results, including substantial modification to ACPs if needed to "safeguard local or regional populations".10

Note that while these are termed as "recommendations," it is clear that the Service expects applicants to follow the Guidelines as much as possible, recognizing that some projects are already in a later phase of development or operation.  Proponents are advised to "coordinate closely with the Service" before pursuing an alternative approach or to obtain an Eagle Take Permit for operating or soon-to-be-operating facilities.

Further complicating matters for California projects, the State Fish & Game Code lists golden eagle and bald eagle as "Fully Protected Species."11  Fully Protected Species may not be taken, nor may the State Department of Fish & Game authorize or permit incidental take except for limited scientific purposes. 

What can I do?

The comment period on the Draft Eagle Guidance closes on May 19, 2011. 

Nossaman recommends that renewable energy and other industries with potential impacts to eagles review the Draft Eagle Guidance.  Nossaman is preparing comments on the Draft Eagle Guidance and we would be happy to assist you with a comment letter or evaluating the manner in which the Draft Eagle Guidance may affect your project.


1 The Bald and Golden Eagle Protection Act defines "take" as "to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, and disturb individuals, their nests and eggs." 16 U.S.C. § 668c.  "Disturb" is "to agitate or bother a bald or golden eagle to a degree that causes … injury to an eagle, a decrease in productivity, or nest abandonment."  50 C.F.R. § 22.3.

2 Draft Eagle Conservation Plan Guidance, U.S. Fish & Wildlife Service (Feb. 18, 2011), p. 8.

3 Final Environmental Assessment Proposal to Permit Take as Provided Under the Bald and Golden Eagle Protection Act, U.S. Fish & Wildlife Service (April, 2009), Appendix J.

4 Draft Eagle Conservation Plan Guidance, p. 8.

5 Eagle Conservation Plan Guidance Questions and Answers, U.S. Fish & Wildlife Service (Feb. 8, 2011).

6 50 C.F.R. §§ 22.26(a), (c).

7 Bald and Golden Eagles are also protected under the Migratory Bird Treaty Act of 1918 and the Lacey Act.

8 Concurrent with the publication of the Draft Eagle Guidance, the Service also published Draft Land-Based Wind Energy Guidelines:  Recommendations on measures to avoid, minimize, and compensate for effects to fish, wildlife, and their habitats ("Draft Wildlife Guidance").  The Service intends to replace the 2003 Interim Guidance with the final Wildlife Guidance.  The Draft Wildlife Guidance is also available for public comment until May 19, 2011.  

9 Note, compliance with the final Eagle Conservation Plan Guidance will not supplant the need to prepare an ABPP as the Eagle Guidance covers only the Eagle, and not the other avian species covered in an ABPP.

10 50 C.F.R. § 22.26(c)(7).

11 Cal. Fish & Game Code § 3511.  The "southern" bald eagle subspecies is listed as fully protected; however, the southern/northern distinction has been dropped in the literature more recently.

  • Professionals
  • Practices
  • Success Stories
  • News
  • Events
  • Resources
  • Firm Pages