§ 22.250 - Permits for incidental take of eagles by wind energy projects.

§ 22.250 Permits for incidental take of eagles by wind energy projects.

(a) Purpose. The regulations in this section authorize the incidental killing or injury of bald eagles and golden eagles associated with the operation of wind energy projects. Apply using Form 3-200-71.

(b) Definition. The following term used in this section has the meaning set forth in this paragraph (b):

Existing project. Infrastructure that was operational prior to May 13, 2024, as well as infrastructure that was sufficiently far along in the planning process on that date that complying with new requirements would be impracticable, including if an irreversible or irretrievable commitment of resources has been made (e.g., site preparation was already underway or infrastructure was partially constructed).

(c) Eligibility for a general permit. To qualify for a general permit, you must meet the requirements of § 22.210, be located in the contiguous 48 States, not have discovered four or more eagles of one species in the previous 5 years per paragraph (d)(3) of this section, and:

(1) Be a project applying for a general permit for the first time, and all turbines associated with the project are:

(i) At least 2 miles from a golden eagle nest and at least 660 feet from a bald eagle nest; and

(ii) Located in areas characterized by seasonal relative-abundance values that are less than the relative-abundance values for the date range for each species in tables 1 and 2, as determined by using relative-abundance data from 2020. Eligibility determinations must be based on 2020 relative-abundance estimates that consider detection rates, topography, and habitat and represent the coterminous United States at a 3-km² resolution for the pre-breeding migration, breeding, post-breeding migration, and non-breeding seasons for bald eagles and golden eagles. Use of the following data and products satisfy the requirements of this paragraph (c)(1)(ii):

(A) Cornell Lab of Ornithology relative-abundance data and products for bald eagles and golden eagles from 2020, published in 2021.

(B) [Reserved]

Table 1 to Paragraph (c)(1)(ii)—Relative-Abundance Value Thresholds for Bald Eagles Throughout the Year

Date range	Bald

Eagle

eagle relative abundance
1. February 15-May 23	0.821
2. May 24-July 19	0.686
3. July 20-December 20	0.705
4. December 21-February 14	1.357

Table 2 to Paragraph (c)(1)(ii)—Relative-Abundance Value Thresholds for Golden Eagles Throughout the Year

Date range	Golden

Eagle

eagle relative abundance
1. February 8-June 6	0.081
2. June 7-August 30	0.065
3. August 31-December 6	0.091
4. December 7-February 7	0.091

(2) Be a project currently authorized under a general permit that:

(i) Has discovered fewer than four eagles (either eagle remains or injured eagles) of any one species during the previous general permit tenure;

(ii) Had no lapse in general-permit coverage; and

(iii) Ensures that any turbines not authorized on the previous general permit meet the issuance criteria in paragraph (c)(1) of this section.

(3) Be an existing project that has received a letter of authorization from the Service (see § 22.200(b)(7)).

(d) Discovered eagle provisions for general permits. You must implement procedures to discover eagle remains and injured eagles in accordance with § 22.215(a)(3) and as required by your permit conditions. In following those protocols:

(1) You must include in your annual report the discovery of any eagle remains or injured eagles.

(2) If you discover eagle remains or injured eagles of three eagles of any one species during the tenure of a general permit, you must notify the Service in writing within 2 weeks of discovering the take of a third eagle and implement adaptive management measures. When notifying the Service, you must include the reporting data required by your permit conditions, your adaptive management plan, and a description and justification of the adaptive management approaches you will implement for the remaining duration of your general permit.

(3) If you discover eagle remains or injured eagles of four eagles of any one species during the tenure of a general permit, you must notify the Service in writing within 2 weeks of discovering the take of the fourth eagle. When notifying the Service, you must include the reporting data required by your permit conditions, your adaptive management plan, and a description and justification of the adaptive management approaches you will implement for the remaining duration of your general permit term. The project will remain authorized to incidentally take eagles through the term of the existing general permit but will not be eligible for future general permits. You may instead apply for a specific permit for incidental take at that project. You may request reconsideration of general-permit eligibility by following the review procedures set forth at § 13.29 of this subchapter, including providing the information required in § 13.29(b)(3).

(4) If the Service conducts monitoring at a wind project, eagle remains or injured eagles discovered by the Service, or Service contractor, are not attributed to the project for the purposes of this paragraph (d), unless the Service determines the eagles were also discovered, or were likely to have been discovered, by required monitoring efforts at the project.

(e) Eligibility for a wind energy specific permit. To qualify for a specific permit, you must meet the requirements of § 22.200. In determining whether to issue a permit, the Service will review the application materials provided, including the eagle impacts assessment. The Service will determine, using the best available data, the expected take of eagles by the proposed activity.

(f) Wind energy permit conditions. The following conditions apply to all general and specific permits. Specific permits may include additional project-specific permit conditions.

(1) Develop and implement an adaptive management plan. An adaptive management plan applies the best available science and monitoring to refine project operations and practices. Plans identify criteria for implementation of the mitigation hierarchy, including avoidance, minimization, and compensation to remain consistent with permit conditions and the preservation of eagles.

(2) Remove and avoid creating anthropogenic features that increase the risk of eagle take by attracting eagles to the project site or encouraging foraging, roosting, or nesting behaviors.

(3) Minimize collision and electrocution risks, including collisions with turbines, vehicles, towers, and power lines.

(4) Comply with all relevant regulations and permit conditions in part 21 of this subchapter.

(5) Submit required reports to the Service by the applicable deadline.

(6) Pay the required application and administration fees (see § 13.11(d)(4) of this subchapter).

(7) Implement required compensatory mitigation. You must keep records to document compliance with this requirement and provide them to the Service with your annual report.

(i) For wind energy specific permits, you must submit a plan to the Service in accordance with § 22.200(c) and implement the compensatory-mitigation requirements included on the face of your permit.

(ii) For wind energy general permits, you must obtain eagle credits from a Service-approved conservation bank or in-lieu fee program based on the hazardous volume of the project (in cubic kilometers). The hazardous volume of a project is calculated as the number of turbines multiplied by 0.200π(d/2)^2 where d is the diameter of the blades in kilometers. You must obtain eagle credits at the following rates: Atlantic/Mississippi EMUs: 6.02 eagles/km³, Central EMU: 7.46 eagles/km³, and Pacific EMU: 11.12 eagles/km³.

(g) Tenure of permits. General permits are valid for 5 years from the date of registration. Specific permits may be valid for up to 30 years.

[89 FR 9958, Feb. 12, 2024, as amended at 89 FR 83631, Oct. 17, 2024]