New 30-Year Eagle Kill Rule Gets Finalized

The U.S. Fish and Wildlife Service is switching up the rules for businesses and facilities that unintentionally kill eagles, the agency announced yesterday. The final Eagle Rule Revision will be published online tomorrow; a draft version is currently available.

The changes state that private and public developers in the United States, including energy companies, construction projects, and homeowners, can now apply for 30-year “incidental-take permits.” These licenses absolve them of a predetermined amount of Bald Eagle deaths every year, and exempt them from being prosecuted under the Bald and Golden Eagle Protection Act. The revisions go into effect 30 days from tomorrow.

When the proposal to extend the permit term and mortality cap was first released, Audubon policy experts called on the agency to study the science behind how a 30-year plan would affect U.S. eagle populations. The USFWS estimates the current Golden Eagle population at about 40,000 birds, and suggests that the population in the western United States might be declining.

But after a months-long comment period that included more than 25,000 letters from Audubon members, the agency is standing by the new numbers. “We considered the public comments and modified the proposal, but we did not analyze or add a lot of additional data,” Brad Bortner, the USFWS Migratory Bird Management division chief, told Audubon in an email. 

What did change in the last seven months is the system for monitoring those long-term permits. Instead of relying on companies to use their own consultants, USFWS will hire independent third parties to track and report mortalities. The costs will be covered by the permit application fees, which range from $500 to $36,000.

If the permit holders kill more eagles than allowed under the terms of their specific agreement, they will be placed on probation and fined as any other offender. (Recently, companies such as Duke Energy and Pacificorp Energy were hit with million-dollar penalties for causing eagle deaths without federal permission.) USFWS estimates Bald Eagles can sustain up to 4,200 fatalities a year without impacting the population, so the agency increased the collective cap to reflect that. But officials don't expect takes under these permits to total in the thousands.

Another small tweak to the rule adjusts how permit holders compensate for unavoidable Golden Eagle deaths during the construction phase of their projects. This scenario is known as compensatory mitigation. Now, for every Golden Eagle fatality during construction, the responsible party has to commit to enough conservation actions to save 1.2 Golden Eagles in the wild (compared to one Golden Eagle under the old rule). For example, a soon-to-be-approved 500-turbine wind farm in Wyoming is mitigating raptor losses by retrofitting old power poles to avoid electrocuting eagles in flight.

In considering the changes, conservationists are less worried about the inflated Bald Eagle take than the 30-year extension. While the longer permits will be reviewed every five years, the new changes don’t include dedicated efforts to assess if local and national populations of the species are stable over the same timeline. “There are a whole lot of things in the wind that we can’t predict over 30 years,” says Brian Rutledge, Central Flyway Conservation Strategy & Policy Advisor at Audubon. Loss of sagebrush habitat and climate change are two such factors that could sink eagle numbers in the future.

The final rule also fails to address whether the Golden Eagle compensatory mitigation really works, or whether the math behind the required offsets is accurate. Rutledge points out that the deaths of a reproductive female or juvenile bird draw the same type of compensation as a male adult, even though they’re more important to keeping populations afloat. Different ages and reproductive statuses should be weighted differently, he says.

Figuring out by how much they should be weighted, though, takes real scientific research, which still hasn't been considered by the agency. And until it is, the new policies' effectiveness will remain murky.