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Bald and Golden Eagle Protection Act – NEPA and APP Guidance

July 9, 2010

In Reply Refer To:
6500 (230) P

Instruction Memorandum No. 2010-156
Expires: 09/30/2011

To: All Field Officials

From: Assistant Director, Renewable Resources and Planning

Subject: Bald and Golden Eagle Protection Act – Golden Eagle National Environmental Policy Act and Avian Protection Plan Guidance for Renewable Energy

Program Area: Renewable Energy (Wind, Solar, Geothermal, and Transmission)

Purpose: The purpose of this Instruction Memorandum (IM) is to provide direction for complying with the Bald and Golden Eagle Protection Act (Eagle Act), including its implementing regulations (i.e., September 11, 2009, Eagle Rule (Rule) 50 CFR parts 13 and 22) for golden eagles, and to identify steps that may be necessary within the habitat of golden eagles to ensure environmentally responsible authorization and development of renewable energy resources. This IM primarily addresses golden eagles, because a process to acquire take permits for bald eagles already exists. This IM is applicable until the U.S. Fish and Wildlife Service (FWS) establishes criteria for programmatic golden eagle permits.

Policy/Action: While the Eagle Act applies to a broad range of Bureau of Land Management (BLM) program areas, this policy is targeted at the immediate needs associated with renewable energy development on BLM-administered lands. Evaluation of the need for policy addressing additional program areas is ongoing.

Consideration of golden eagles and their habitat must be incorporated into the National Environmental Policy Act (NEPA) analysis for all renewable energy projects as described below.

In considering if a proposed project or action has the potential to impact golden eagles or their habitat, consider as part of the affected environment whether breeding territories/nests, feeding areas, roosts, or other important golden eagle use areas are located within the analysis area. The analysis area should be determined on an individual project-specific basis, and should be made in coordination with the FWS.

If the proposed project is not anticipated to have the potential to impact golden eagles or their habitat, then document this finding as part of the affected environment. If the proposed project or action has the potential to impact golden eagles or their habitat, the following analysis should be completed:

1. Direct and Indirect Effects Analysis: Use the best available demographic, population, and habitat association data to analyze impacts to golden eagles or their habitat, then include the following within the analysis area determined for the action/authorization: 

  • The potential direct and indirect impacts to individual birds and their habitat (e.g., direct mortality, destruction of eggs, nests, individual breeding territories, communal roosts, migration corridors, fragmentation of habitat, reduction in habitat patch size, disturbance from human presence, noise, commotion, etc).

  • The potential direct and indirect impacts, if any, to the local or regional eagle population and their habitat.

  • The potential short-term and long-term effects of the project on golden eagle populations and their habitat.

2. Cumulative Effects Analysis: An analysis of cumulative effects for golden eagles should be conducted if the NEPA analysis indicates that the project would cause direct or indirect impacts to the golden eagle. Complete the cumulative effects analysis using appropriate geographic and temporal boundaries and best available information. Normally this would be at a broad scale. The analysis will not be speculative, and the appropriate scale of analysis will be determined on a project-specific basis, and may deviate from what the FWS has recommended in interim guidance if substantiated with a rationale documented in the project’s administrative record.

3. Best Management Practices: Best Management Practices that avoid or minimize the possibility of the unintentional take of eagles are expected to be developed by agencies, industries, or companies with the FWS in coordination with the BLM, and will be applied to projects where appropriate as a condition of the right-of-way grant until Advanced Conservation Practices (ACPs) are developed and implemented.

4. Avian Protection Plans: If the proposed project has the potential to impact golden eagles or their habitat, an Avian Protection Plan (APP) will be required by the BLM as a condition of the right-of-way grant. The APP will be developed by the applicant, in coordination with the FWS and the BLM, to evaluate options to avoid and minimize the project impacts. The APP must address siting, operations, and monitoring.

APPs that include conservation measures for bats (Avian and Bat Protection Plan (ABPP) may be developed for wind projects at the discretion of the applicant.

5. Interagency Coordination: Coordination with the FWS should occur early and throughout the project planning process regarding golden eagles and their habitat. All projects must document and include as part of the administrative record any and all written correspondence from the FWS indicating whether or not the project, as proposed, is or is not likely to take golden eagles. Correspondence must also address whether or not the FWS considers the development of an APP an option for the project as proposed, or if an alternative project proposal should be considered. This coordination must be completed as early in the process as possible and incorporated into the NEPA document for the project. If FWS considers an APP to be an option for the project, a letter of concurrence must be sought and received from the FWS that addresses the adequacy of the APP. The letter of concurrence should be included in the administrative record. It is anticipated that assessment of operational impacts would be ongoing and additional mitigation may be required post construction (refer to the Bald and Golden Eagle Protection Act Compliance Stipulation below).

6. Record of Decision, Decision Record, and Notice to Proceed: If in correspondence the FWS indicates that an APP is not sufficient to avoid or minimize likely take resulting from the proposed project (i.e., an APP is not an option), the BLM authorized officer will not issue a Record of Decision or Decision Record approving the project. If the applicant wishes to proceed, the applicant must then identify an alternative project design to reduce the likely take to a level that is compatible with the preservation of eagles, and receive FWS concurrence for the revised APP. If, after coordination with the FWS, an APP is deemed appropriate and needed to sufficiently avoid and minimize take by the proposed project, the BLM authorized officer may issue a Record of Decision or Decision Record approving the project; however, the BLM authorized officer will not issue a Notice to Proceed until the FWS letter of concurrence for the APP is received for the project.

To monitor consistency, copies of correspondence (e.g., letters, emails) with the FWS regarding whether a project is likely to result in take under the Eagle Act/Rule and whether an APP is an option for a project as proposed will be submitted to the Chief of the Division of Fish, Wildlife, and Plant Conservation for a period of one year following the effective date of this IM.

Recommendations contained in interim guidance from FWS should be considered in project planning, as appropriate. When considering the application of the recommendations contained in FWS interim guidance, BLM offices should review and assess existing data, eagle surveyor experience, and the survey methodology, and determine if deviating from protocol would adequately inform the impact analysis. It is anticipated that in some instances existing data will be sufficient to inform the analysis.

Attach the following condition of approval to all renewable energy authorizations/actions occurring within the range of bald and golden eagles:

Bald and Golden Eagle Protection Act Compliance Stipulation

Bald and/or golden eagles may now or hereafter be found to utilize the project area. The BLM will not issue a notice to proceed for any project that is likely to result in take of bald eagles and/or golden eagles until the applicant completes its obligation under applicable requirements of the Eagle Act, including completion of any required procedure for coordination with the FWS or any required permit. The BLM hereby notifies the applicant that compliance with the Eagle Act is a dynamic and adaptable process which may require the applicant to conduct further analysis and mitigation following assessment of operational impacts.

Any additional analysis or mitigation required to comply with the Eagle Act will be developed with the FWS and coordinated with the BLM.

This policy supersedes any guidance issued by a BLM State or Field Office.

Timeframe: This IM is effective immediately.

Budget Impact: Coordination of the implementation of the Rule is anticipated to result in substantial cost to the BLM.

Background: The BLM has always been subject to legal requirements for bald and golden eagle conservation and protection under the Eagle Act (as amended) and for the bald eagle (for the period that it was listed) under the Endangered Species Act (ESA). However, in 2007 the Eagle Act’s implementing regulations were supplemented with a definition of the term “disturb” (a form of take), and regulations governing incidental take permits in 2009. For the duration that the bald eagle was listed under the ESA (1973 – 2007), “take” or “likely take” of bald eagles was authorized through the ESA section 7(a)(2) consultation process. On September 11, 2009, the FWS published “Eagle Permits; Take Necessary to Protect Interest in Particular Localities; Final Rules” (Rule) in the Federal Register, creating a regulatory mechanism by which individual and programmatic “take” of bald eagles and golden eagles could be permitted under the Eagle Act for authorized uses and activities on BLM administered lands. While the mechanism is now in place to issue take permits, the FWS is limiting take for golden eagles due to population concerns and the present lack of identified measures to reduce take from activities, except in special cases. The FWS does not anticipate issuing programmatic permits for golden eagles until Advanced Conservation Practices are established by the FWS for an industry, company, or agency. Take permits are available for bald eagles.

Manual/Handbook Sections Affected: None.

Coordination: This policy was coordinated with the BLM’s Minerals and Realty Management Directorate, the Division of Fish, Wildlife and Plant Conservation, the Division of Planning and Science Policy, the Office of the Solicitor, and the FWS.

Contact: If there are any questions regarding this IM, please contact Dwight Fielder, Chief, Division of Fish, Wildlife, and Plant Conservation at (202) 912-7230, Ray Brady, Energy Policy Team Manager at (202) 912-7312, or Shannon Stewart, Senior Planning and Environmental Analyst, Division of Planning and Science Policy at (202) 912-7219.

Signed by: Authenticated by:
Edwin L. Roberson Robert M. Williams
Assistant Director Division of IRM Governance,WO-560
Renewable Resources and Planning

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