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UPDATE 6/20/2024 [Update co-authored by Stoel Rives summer associate Connor McRobert]: On May 31, 2024, the Council voted to further revise these proposed rules by adding several more minor proposed changes. The Council has reissued the notice of proposed rulemaking (NOPR) and initiated another public comment period ending July 22, 2024. See Reissued Notice…

Today, the U.S. Fish and Wildlife Service (“Service”) published notice in the Federal Register of a final rule amending its regulations authorizing permits for eagle incidental take and eagle nest take.  The final rule comes roughly a year and four months after the Service issued its proposed rule (discussed here) and includes most of the changes from the proposed rule.  Most notably, the Service has authorized general permits for certain activities where standard conditions can be met. In addition to the new general permit framework, the Service has adopted a number of other changes to overall requirements and processes, with the goal of increasing compliance by simplifying the permitting process.  Key changes in the final rule include:

General Permit for Wind Energy Facilities.  The final rule includes a general permit for wind energy facilities that are located in areas that are “low risk” to eagles.  For first-time applicants, whether a project is eligible for a general permit is based on eagle abundance and eagle nest proximity.  Specifically, all project components must be located within areas where the eagle relative abundance is below the regulatory threshold and must be located at least two miles from a golden eagle nest and 660 feet from a bald eagle nest.  To determine eligibility, the Service will maintain a mapping tool (here).  For projects that do not meet the general permit eligibility criteria, the Service will allow applicants to submit a specific permit application and request a letter of authorization to obtain a general permit.  In the notice, the Service estimates that “more than 80 percent of existing land-based wind turbines in the lower 48 States may be eligible for general permits.”  General permits will be valid for five years.Continue Reading U.S. Fish and Wildlife Service Publishes Final Rule Amending Eagle Permit Regulations

On September 30, 2022 the U.S. Fish and Wildlife Service (“Service”) published notice in the Federal Register of a proposed rule amending its regulations authorizing permits for eagle incidental take and eagle nest take. Although the proposed rule includes other proposed revisions, the most notable change is the Service’s proposal to create general permits for certain projects and activities. Under these general permits, applicants would register with the Service, pay the required fees, and certify compliance with general permit conditions. By making general permits available to certain activities and projects, the Service aims to remove administrative barriers, reduce costs, and make the process less confusing for applicants. For projects or activities that do not qualify for a general permit, individual or specific permits will remain available.

In the proposed rule, the Service proposes general permits for four types of qualifying projects or activities: wind energy generation projects, power line infrastructure, disturbance of breeding bald eagles, and bald eagle nest take. We discuss each proposed general permit in turn below.

Eagle Incidental Take Permit for Qualifying Wind Energy Projects. To encourage broader participation in the eagle permitting program by wind energy developers and operators, the Service is proposing a five-year general permit for certain qualifying wind energy projects. Eligibility is determined based on the relative eagle abundance in the project area. To be eligible, all turbines associated with the project must be located in an area with seasonal relative eagle abundance (based on eBird data) below the threshold amounts across five eagle “seasons.” The project must also be greater than 660 feet from a bald eagle nest and two miles from a golden nest to qualify under the general permit.

For existing wind energy projects, the proposed rules would allow project operators to request coverage under the wind energy general permit even when a portion of the project is within an area that does not fall below the applicable relative abundance thresholds. The Service anticipates “issuing a letter of authorization for most existing projects where only a small percentage of existing turbines do not qualify under the relative abundance thresholds or when an existing project has conducted and provides monitoring data demonstrating fatality rates consistent with those expected for general turbines.”

The proposed wind energy general permit requires permittees to monitor eagle take but allows project proponents to use onsite employees rather than relying on third-party monitors. If a project is covered by a general permit and has four eagle fatalities during the permit term, the project will be required to implement adaptive management measures and seek an individual permit at the expiration of the general permit.

The proposed application fee for the wind energy general permit is $500, and the proposed administrative fee is $525 per turbine per year or $2,625 per turbine for a five-year permit. Under the current proposal, wind energy general permits would be valid for five years.

Eagle Incidental Take Permit for Power Lines. The Service is also proposing a general permit option for power line infrastructure. To qualify for coverage under the power line general permit, the applicant must, in addition to meeting other general requirements: (1) ensure that new construction is electrocution-safe for bald and golden eagles; (2) implement a reactive retrofit strategy following all eagle electrocutions; (3) implement a proactive retrofit strategy to retrofit a portion of existing infrastructure during each general permit term; (4) implement an eagle collision response strategy; (5) incorporate information on eagles into project siting and design; and (6) implement an eagle shooting response strategy (aimed at addressing illegal shooting of eagles on power lines). The proposed application fee for the power line general permit is $500 and the proposed administration fee is $5,000 for each state for which the power-line entity is seeking authorization. Like the wind energy general permits, under the current proposal, power line general permits would be valid for five years.
Continue Reading U.S. Fish and Wildlife Proposes Revisions to Eagle Permit Rules, Including General Permits for Qualifying Wind Energy Projects, Power Lines, and Disturbance and Nest Take

On June 30, 2022, California Governor Gavin Newsom signed Assembly Bill 205 (“AB 205”), which, among various other things, expands the siting jurisdiction of the California Energy Commission (“CEC”) to include non-thermal generating facilities, such as solar and wind projects, with a capacity of 50 megawatts (MW) or more.  The CEC’s siting jurisdiction was previously…

On May 18, 2022, the California Energy Commission met to discuss its draft report to evaluate and quantify the maximum feasible capacity of offshore wind to achieve reliability, ratepayer, employment, and decarbonization benefits and establish megawatt offshore wind planning goals for 2030 and 2045. The report is the first of three interim work products that California AB 525 directs CEC to prepare. By the end of this year, the CEC must complete and submit a preliminary assessment of economic benefits as they relate to seaport investments and workforce development needs, and complete and submit a permitting roadmap. The ultimate requirement of AB 525 is to require, by June 30, 2023, the CEC, in coordination with federal, state, and local agencies and a wide variety of stakeholders, to develop a strategic plan for offshore wind energy developments installed off the California coast in federal waters and submit it to the California Natural Resources Agency and the Legislature.Continue Reading California Energy Commission Discusses Draft Report on Offshore Wind

The Oregon Department of Energy (ODOE) is kicking off the stakeholder engagement part of its Floating Offshore Wind Study on January 20 at 9 a.m. As directed by HB 3375, ODOE is preparing a report on the challenges and benefits of integrating up to 3 gigawatts (GW) of floating offshore energy into Oregon’s grid by 2030, and it will submit that report to the legislature in September. A summary from the first part of the study, a literature review, should be released soon. Following the kickoff meeting, ODOE anticipates two more virtual meetings, as well as an opportunity to submit comments.
Continue Reading Oregon Department of Energy Seeks Stakeholder Input on Floating Offshore Wind Development

In docket R.20-05-003, its Integrated Resource Planning (IRP) proceeding, the California Public Utilities Commission is considering its preferred portfolio of new resources for the next ten years.  A lengthy administrative law judge ruling issued August 17, 2021 set out a suggested Preferred System Plan (PSP) for the proceeding, including a suggested resource portfolio through 2032,…

This post was co-authored by Stoel Rives summer associate Lydia Heye.

In May, the U.S. Fish and Wildlife Service (“Service”) announced a proposed rule revoking the Trump administration’s final rule on incidental take under the Migratory Bird Treaty Act (“MBTA”). In the January 7, 2021 final regulation, the Trump administration interpreted the MBTA’s take prohibition…