[Federal Register Volume 77, Number 1 (Tuesday, January 3, 2012)]
[Pages 129-130]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33630]



Fish and Wildlife Service

[FWS-R1-MB-2011-N245; FXMB12320100000P2-123-FF01M01000]

Golden Eagles; Programmatic Take Permit Application; Draft 
Environmental Assessment; West Butte Wind Project, Crook and Deschutes 
Counties, OR

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.


SUMMARY: We have received an application under the Bald and Golden 
Eagle Protection Act (BGEPA) from West Butte Wind Power, LLC, for a 
programmatic permit for the take of golden eagles. If issued, the 
permit would be the first programmatic permit issued under our new 
permitting regulations. We invite public comment on a draft 
environmental assessment (DEA), which evaluates alternatives for this 
permit application.

DATES: To ensure consideration, please send your written comments by 
February 2, 2011.

ADDRESSES: You may download a copy of the DEA on the Internet at http://www.fws.gov/pacific/migratorybirds/nepa.html. Alternatively, you may 
use one of the methods below to request hard copies or a CD-ROM of the 
documents. Please specify the ``DEA for the West Butte Wind Project'' 
on all correspondence.
    Submitting Comments: You may submit comments or requests for copies 
or more information by one of the following methods.
     Email: pacific_birds@fws.gov. Include ``DEA for the West 
Butte Wind Project'' in the subject line of the message.
     U.S. Mail: Please address written comments to Michael 
Green, Acting Chief, Division of Migratory Birds and Habitat Programs, 
Pacific Region, U.S. Fish and Wildlife Service, 911 NE 11th Ave., 
Portland, OR 97232.
     Fax: Michael Green, Acting Chief, Division of Migratory 
Birds and Habitat Programs, (503) 231-2019, Attn.: DEA for the West 
Butte Wind Project.

FOR FURTHER INFORMATION CONTACT: Michael Green, Acting Chief, Division 
of Migratory Birds and Habitat Programs, U.S. Fish and Wildlife 
Service, (503) 231-2019 (phone); pacific_birds@fws.gov (email, include 
``DEA for the West Butte Wind Project'' in the subject line of the 
message). If you use a telecommunications device for the deaf (TDD), 
please call the Federal Information Relay Service (FIRS) at (800) 877-



    The U.S. Fish and Wildlife Service is considering an application 
under the Bald and Golden Eagle Protection Act (16 U.S.C. 668a-d; 
BGEPA) for a programmatic golden eagle (Aquila chrysaetos) take permit 
from West Butte Wind Power, LLC. The company plans to develop the West 
Butte wind-power project in central Oregon, and there is a risk of 
eagle fatalities as a result of the operation of this facility. The 
application includes an avian and bat protection plan combined with an 
eagle conservation plan that describes actions taken and proposed 
future actions to avoid, minimize, and mitigate adverse effects on 
eagles. The eagle conservation plan was developed in collaboration with 
the Service.
    The Draft Environmental Assessment (DEA) analyzes the alternatives 
associated with this permit application in light of our BGEPA 
permitting regulations in the Code of Federal Regulations (CFR) at 50 
CFR 22.26. If the results of this analysis lead us to issue this 
permit, it will be the first programmatic permit issued under these new 
regulations, as well as the first eagle take permit issued to a wind-
energy company.


    BGEPA allows us to authorize bald eagle and golden eagle 
programmatic take (take that is recurring, is not caused solely by 
indirect effects, and that occurs over the long term or in a location 
or locations that cannot be specifically identified). Such take must be 
incidental to actions that are otherwise lawful. BGEPA's implementing 
regulations define ``take'' as ``to pursue, shoot, shoot at, poison, 
wound, kill, capture, trap, collect, destroy, molest, or disturb 
individuals, their nests and eggs'' (50 CFR 22.3); and ``disturb'' is 
further defined as ``to agitate or bother a bald or golden eagle to a 
degree that causes * * * injury to an eagle, * * * a decrease in its 
productivity, * * * or nest abandonment'' (50 CFR 22.3). The West Butte 
Wind Project potentially will result in one or more recurring eagle 
mortalities over the life of the project, so the appropriate type of 
take permit is the programmatic permit under 50 CFR 22.26.
    To obtain a programmatic permit under BGEPA and 50 CFR 22.26, the 
applicant must (1) avoid and minimize take to the maximum extent 
achievable; (2) conduct adequate monitoring to determine effects; (3) 
offset through compensatory mitigation any remaining take, such that 
the net effect on the eagle population is, at a minimum, no change for 
eagle management populations that cannot sustain additional mortality; 
and (4) ensure that the direct and indirect effects of the take and 
required mitigation, together with the cumulative effects of other 
permitted take and additional factors affecting eagle populations, are 
compatible with the preservation of bald eagles and golden eagles.

Applicant's Proposal

    The 104-megawatt (MW) project is to be built in Crook and Deschutes 
Counties, Oregon. As a result of monitoring studies conducted on the 
proposed project site, the applicant considers the use of the site by 
eagles to be low, and has requested in their application a permit for 
the legal take of ``1 to 2 Golden Eagles over the 20 to 30 year life of 
the project.''
    The applicant developed an eagle conservation plan, following 
recommendations provided by the Service (Draft Eagle Conservation Plan 
Guidance, January 2011, http://www.fws.gov/windenergy/docs/ECP_draft_guidance_2_10_final_clean_omb.pdf). As recommended in the 
Service's guidance, the applicant's plan outlines avoidance and 
minimization measures and advanced conservation practices, assesses 
risk from pre-construction monitoring data, makes commitments for 
mitigating eagle mortalities, and commits to post-construction 
monitoring. This plan was

[[Page 130]]

submitted as part of the permit application, and if we issue the permit 
following the National Environmental Policy Act (NEPA) process, then 
the conservation commitments would become conditions of the permit.
    The Service independently evaluated the risk of eagle fatalities 
from the construction of this project and compared that risk to the 
conservation measures, largely mitigation actions, to which the 
applicant has committed. This is an essential step in the Service's 
evaluation of an application for a permit for programmatic take of 
eagles, since issuing criteria require permitted take to be in 
compliance with the BGEPA's preservation standard. The Service has 
interpreted this standard to require maintenance of stable or 
increasing breeding populations of eagles (74 FR 46836; September 11, 
2009). The evaluation of risk and offsetting conservation measures, and 
the implications for direct, indirect, and cumulative effects under 
three alternatives, are discussed in detail in the DEA.

Next Steps

    The public process for the proposed Federal permit action will be 
completed after the public comment period, at which time we will 
evaluate the permit application and comments submitted thereon to 
determine whether the application meets the permitting requirements 
under BGEPA, applicable regulations, and NEPA requirements. Upon 
completion of that evaluation, we will select our course of action.

Public Comments

    We invite public comment on the proposed DEA. If you wish, you may 
submit comments by any one of the methods discussed above under 

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comments, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. You can ask us 
in your comment to withhold your personal identifying information from 
public review, but we cannot guarantee that we will be able to do so.


    We provide this notice under section 668a of the Act (16 U.S.C. 
668-668c) and NEPA regulations (40 CFR 1506.6).

    Dated: December 19, 2011.
Richard Hannan,
Acting Regional Director, Pacific Region, Portland, Oregon.
[FR Doc. 2011-33630 Filed 12-30-11; 8:45 am]