§ 22.200 - Specific permits.

§ 22.200 Specific permits.

(a) Purpose. Specific permits authorize the take of bald eagles or golden eagles for other interests by activities that are described in the regulations in this subpart. Proponents of projects may apply for a specific permit if they do not meet eligibility criteria for general permits described in—or are conducting an activity not identified in—§ 22.250, § 22.260, § 22.280, or § 22.300. Specific permits may be recommended by the Service or requested by entities that are eligible for but do not want to obtain a general permit.

(b) Eligibility. To qualify for a specific permit, you must be conducting an activity identified in § 22.250, § 22.260, § 22.280, or § 22.300. You must also meet any eligibility requirements identified in the relevant section.

(1) Permits are issued to the individual or entity conducting the activity, such as the owner or manager of the entity conducting the activity. The applicant is responsible for compliance with the permit and must have the authority to implement the required permit conditions.

(2) Contractors or consultants may assist in completing applications or conducting work as a subpermittee but may not be a permit holder.

(3) Applicants may not break down a project into small parts to minimize the activity.

(4) Applicants may not combine projects if the activities are not readily identifiable as being part of the same project. If you want to obtain a consolidated permit for multiple activities, you must first submit a separate application for each project and request the Service determine if it is appropriate to consolidate permits.

(5) Specific permits are issued to a single permit holder. If multiple entities operate a joint project and want to obtain joint authorization, the application must designate one entity as the permit holder and that entity must accept the legal liability for the other entities. The other entities must grant sufficient authority to the permit holder to carry out any activities required under the permit.

(6) Upon receipt of your application for a specific permit, the Service may direct you to apply for a general permit or determine that a permit is not required. The Service will provide a letter of authorization to keep in your records.

(7) For existing wind energy projects only, projects that are not eligible for a general permit for incidental take of eagles (§ 22.250) may request a Letter of Authorization from the Service to apply for a general permit. The Service will review and determine if eagle risk at the project is consistent with the risk expected for general permits. To request review, you must submit a specific permit application and request a determination for general permit eligibility. Your administration fee will not be refunded to cover the cost of conducting this review. The application fee may be refunded (50 CFR 13.11(d)(1)).

(c) How to apply for a specific permit.

(1) Submit a completed application form as specified in § 22.250(a), § 22.260(a), § 22.280(a), or § 22.300(a), as applicable, or Form 3-200-71 if the activity does not correspond with a particular permit type. Submit forms to the Regional Director of the region where you will conduct your activity. If your activity spans multiple regions, submit your application to the region of your U.S. mailing address, and the Service will assign the appropriate administering region. You can find the current contact information for Regional Directors in § 2.2 of subchapter A of this chapter.

(2) Your application must include:

(i) A description of the activity that will cause the take to be authorized, including the location, seasonality, and duration of the activity.

(A) If applying under § 22.250 for wind energy projects, that description must include the number of turbines, rotor diameter, hub height, location coordinates of each turbine, and the datum of these coordinates.

(B) If applying under § 22.260 for power lines, include the State and county(ies) of coverage and total miles of transmission and distribution lines. To the extent known, include the number of miles or number of poles in eagle-risk areas that are not avian-safe.

(C) If applying under § 22.280 or § 22.300, include the location of known nest(s) and nest status (e.g., in-use or alternate).

(ii) Justification of why there is no practicable alternative to take that would protect the interest to be served.

(iii) An eagle impacts assessment, including eagle activity and eagle use in the project area and a description of methods used to conduct this assessment. If the Service has officially issued or endorsed survey, modeling, take-estimation, or other standards for the activity that will take eagles, you must follow them and include in your application all the information thereby obtained, unless the Service waives this requirement for your application.

(iv) Implemented and proposed steps to avoid and minimize to the maximum degree practicable, compensate for, and monitor impacts on eagles.

(v) Alternative actions considered and the reasons why those alternatives are not practicable.

(vi) Any supplemental information necessary for the Service to make an adequate determination on the application (see § 13.21 of this subchapter).

(vii) Payment of the required application and administration fees (see § 13.11(d)(4) of this subchapter) for the appropriate fee tier, and, if required, proposed compensatory mitigation plan or eagle credits to be obtained from a Service-approved conservation bank or in-lieu fee program. All compensatory mitigation must comply with the provisions of § 22.220. For incidental take permits issued under §§ 22.250 and 22.260:

(A) The Tier 1 application fee is assessed when standardized permit conditions require negligible modifications, additional environmental compliance review is not required, and, if required, fatality estimates require minimal data manipulation.

(B) The Tier 2 application fee is assessed for all other specific permit incidental take applications that require 275 staff-hours or fewer for review, including compliance with the procedural requirements of NEPA. The Service may require applicants to enter into a reimbursable agreement to cover the costs above 275 staff-hours.

(d) Issuance criteria. Upon receiving a complete application, the Regional Director will decide whether to issue a permit based on the general criteria of § 13.21 of this subchapter and whether the application meets the following requirements:

(1) The applicant is eligible for a specific permit.

(2) The take:

(i) Is necessary to protect a legitimate interest in a particular locality;

(ii) Results from, but is not the purpose of, the activity; and

(iii) Cannot practicably be avoided.

(3) The amount of take the Service authorizes under the permit is compatible with the preservation of the bald eagle and the golden eagle, including consideration of the effects of other permitted take and other factors affecting bald eagle and golden eagle populations.

(4) The applicant has proposed avoidance and minimization measures to reduce the take to the maximum degree practicable relative to the magnitude of the activity's impacts on eagles. These measures must meet or exceed the requirements of the general permit regulation (§ 22.210), except where not practicable.

(5) If compensatory mitigation is required, the applicant has proposed either to implement compensatory mitigation measures that comply with the standards in § 22.220 or secure required eagle credits from a Service-approved conservation bank or in-lieu fee program. Compensatory mitigation must meet or exceed the requirements of the general permit regulation (§ 22.210), except when the Service's evaluation of site-specific data indicates a lower mitigation rate is appropriate.

(6) The applicant has proposed monitoring plans that are sufficient to determine the effects on eagle(s) of the proposed activity.

(7) The proposed reporting is sufficient for the Service to determine the effects on eagle(s).

(8) Any additional factors that may be relevant to our decision whether to issue the permit, including, but not limited to, the cultural significance of a local eagle population and whether issuance of a permit would preclude the Service from authorizing take necessary to protect an interest of higher priority. The Service will prioritize safety emergencies, Native American Tribal religious use, and public health and safety.

(e) Modifications to your permit. If the permittee requests substantive amendments (see § 13.11(d)(5) of this subchapter) during the permit tenure, the Service will charge an amendment fee. The Service will charge an amendment fee and an administration fee for permittee-requested substantive amendments that require new analysis, such as modifications that result in re-estimating take, re-evaluating compensatory mitigation requirements, or requiring additional environmental review to comply with procedural requirements under NEPA.

(f) Tenure. The tenure of each permit will be designated on the face of the permit. Specific permits may be valid for a maximum of 30 years. Permit tenure may be less, as restricted by the provisions for specific activities set forth in § 22.250, § 22.260, § 22.280, or § 22.300 or as appropriate to the duration and nature of the proposed activity, including mitigation requirements.