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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 usfws (3)

Thursday
Aug132015

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.

Wednesday
Jun242015

USFWS Explores MBTA Incidental Take Permit

The U.S. Fish and Wildlife Service has announced that it is looking into the creation of an incidental take permitting program under the Migratory Bird Treaty Act.  Currently the regulations under the MBTA only authorize incidental take for hunting; military readiness; scientific collection, falconry and other special purposes; and to control birds that cause depredation.  

USFWS will be preparing a programatic environmental impact statement (PEIS) to evaluate the impacts of setting up a comprehensive incidental take permitting program.  Four initial options have been identified:

  • Programmatic authorization for take associated with certain activities and industries.  The activities initially identified by USFWS are oil, gas and wastewater disposal pits; gas exhaust pipes at oil production facilities; communication towers; and electric transmission and distribution lines.  Other activities, specifically wind energy generation, are under consideration.
  • Individual permits authorizing activities on a case-by-case basis.  This option could exist in tandem with the programatic authorization option to permit incidental take for activities not included in the programmatic exemption.
  • Memoranda of understanding with federal agencies.  This is analogous to a programmatic authorization for incidental take caused by federal agency activities.  Whether such an MOU would authorize take by a third party acting under a federal regulatory program (e.g. pursuant to an Army Corps Section 404 permit) is under consideration.
  • Voluntary guidance.  This option would be a continuation of the status quo, where USFWS would not provide legal authorization in the form of a permit, but would use its enforcement discretion to give a pass to activities conducted in accordance with its guidance.  

USFWS will be accepting comments regarding its initial proposals until July 27.  In the meantime, USFWS is holding “open houses” on its proposal and will present a webinar on July 8.  USFWS has also created a website just for the MBTA rulemaking.

Hundreds of millions of migratory birds protected under the MBTA are killed by human activity every year.  The creation of a permitting system that allows otherwise lawful, socially desirable activity to go forward without relying on USFWS’s enforcement discretion to avoid criminal liability is long overdue.

Wednesday
Apr012015

USFWS Lists Northern Long Eared Bat as Threatened Species

The U.S. Fish and Wildlife Service announced today that it will publish a final rule in the April 2, 2015 Federal Register designating the northern long eared bat as threatened under the Endangered Species Act.  The listing will become effective May 4, 2015, at which time an interim 4(d) incidental take rule will also take effect.

USFWS will be accepting comments on the interim rule for 90 days, until July 1, 2015.  The interim 4(d) rule permits incidental take for all activities taking place outside of areas affected by white nose syndrome.  In areas affected by white nose syndrome, the interim rule permits incidental take for forest management (i.e. logging) and maintenance and limited expansion of utility rights-of-way, as long as those activities are conducted according to certain habitat conservation measures such as avoiding hibernacula and avoiding certain types of cutting during summer months.    

Yet to be seen is what other activities, if any, USFWS will include in the final 4(d) rule.  In earlier comments on the 4(d) rule, USFWS stated that wind energy generation is a factor causing harm and mortality to the northern long eared bat.  Wind power developers will no doubt be submitting comments to USFWS prior to enactment of the final 4(d) rule in an attempt to gain incidental take exemption by rule.