Enter your email address to receive new posts in your inbox:

Delivered by FeedBurner


Like what you see? Share!


DISCLAIMER: This blog is published for general information only - it is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our authors, the submission of a comment or question does not create an attorney-client relationship between the Firm and you.

Entries in BGEPA (4)


30-Year BGEPA Take Permit Invalidated by Federal District Court

The U.S. District Court for the Northern District of California on Tuesday struck down a U.S. Fish and Wildlife Service regulation allowing issuance of 30-year take permits under the Bald and Golden Eagle Protection Act.  The court’s holding is a blow, albeit likely temporary, to wind power developers seeking certainty about liability for take of eagles under BGEPA.  

The court in Shearwater v. Ashe held that USFWS violated the National Environmental Policy Act by adopting the 30-year permit rule without conducting an environmental impact statement or environmental assessment.  USFWS claimed that the rule was “strictly administrative” in nature and therefore fit within the NEPA categorical exclusion for federal actions that have no significant effect on the environment.  The court disagreed, citing, among other things, USFWS staff comments that it was a “no-brainer that [FWS] needed to do a NEPA analysis” and that the 30-year permit rulemaking process was a “trainwreck.”    

The 30-year take permit framework was adopted by USFWS in December 2013, replacing the previous regulation that allowed issuance of BGEPA take permits for a maximum duration of five years.  The increase to 30 years was adopted primarily to address concerns by wind power developers that “the five-year maximum tenure of permits under the Eagle Take Rule is fundamentally unworkable for the industry considering the life of most wind projects is 20 to 30 years.”  The court noted that, “[w]hile promoting renewable energy projects may well be a worthy goal, it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action.” 

The court remanded to rule back to USFWS, which will presumably revive the 30-year permit program by conducting an EA or EIS to satisfy NEPA’s procedural requirements.


USFWS Issues First BGEPA Eagle Take Permit

On Friday the U.S. Fish and Wildlife Sevice issued its first eagle take permit under the Bald and Golden Eagle Protection Act.

The permit was issued to the operational Shiloh IV wind power project in Northern California.  Over the five-year life of the permit the project is allowed five takes, which is the number of takes that FWS modeled to occur over that period of time.  The permit has a five-year duration.  The project decided not to amend its application to try to obtain a longer-term permit under the recently-adopted 30-year rule (which is currently being challenged in federal district court in Northern California).

Of note is that Shiloh IV is an operational project and that the NEPA alternatives analysis conducted by FWS states that the no action alternative is to not issue the requested take permit as opposed to not operate the wind turbines.  This creates different alternatives analyses for operational and proposed projects.  For an operational project such as Shiloh IV, FWS appears to be acknowledging project impacts as an existing baseline and the BGEPA take permit as a mechanism to extract mitigation measures (in this case retrofitting utility poles and conducting additional mortality monitoring). 


USFWS 30-Year Eagle Take Permit Challenged in Federal Court 

The advocacy group American Bird Conservancy has filed a lawsuit in U.S. District Court for the Northern District of California, asking the court to invalidate a U.S. Fish and Wildlife Service rule that increased the shelf life of take permits available under the Bald and Golden Eagle Protection Act from five to 30 years.  USFWS created take permits under BGEPA in 2009 to allow developers and other entities to carry out activities that might incidentally harm protected eagles.    

The suit, filed in San Jose on June 19, claims that the 30-year permit rule was adopted in violation of NEPA because no environmental assessment (EA) or environmental impact statement (EIS) was performed (USFWS states that the rule is primarily administrative and therefore exempted from NEPA) and in violation of BGEPA because the rule was purportedly adopted to benefit wind energy development rather than to further the purpose of BGEPA, which is to protect bald and golden eagles.  To date, no BGEPA incidental take permits of any duration have been issued.     


Army Corps Permit for Sisk Wind Power Project Affirmed in Federal Court 

A lawsuit challenging the U.S. Army Corps of Engineers’ issuance of a Clean Water Act Section 404 permit to TransCanada’s Sisk Mountain wind power project was denied today in U.S. District Court in Maine.  Judge George Singal affirmed the magistrate judge’s recommended decision in its entirety, denying project opponents’ claims based on the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.

This decision is is the latest in a string of federal court decisions rejecting similar claims raised by wind power opponents.

TransCanada is represented in the Sisk litigation by Verrill Dana attorneys Juliet Browne and Gordon Smith.