U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
July 9, 2010
In Reply Refer To:
6500 (230) P
EMS TRANSMISSION 07/13/2010
Instruction Memorandum No. 2010-156
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:
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:
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