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Sarah Stauffer Curtiss

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Sarah Stauffer Curtiss helps clients understand and comply with environmental and land use laws, navigate complex permitting processes, and develop compliance solutions that enhance business opportunities. On Oregon land use matters, Sarah helps clients secure permits from local governments. She has worked with city and county planning departments throughout Oregon, and regularly represents clients before local governing bodies and the Oregon Land Use Board of Appeals. She also represents energy and utility clients on permitting and compliance matters related to project development and expansion through the Oregon Energy Facility Siting Council (EFSC). Her federal environmental expertise covers a myriad of environmental laws.

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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

Earlier this month, the Fish and Wildlife Service (“Service”) published a final rule revoking the Trump Administration’s rule on incidental take under the Migratory Bird Treaty Act (“MBTA”), as well as an advanced notice of proposed rulemaking (“ANPR”) aimed at codifying the Biden Administration’s interpretation of the MBTA’s incidental take provision and creating new incidental take regulations.

The MBTA prohibits the “take” of over 1,000 species of migratory birds, but the reach of the MBTA’s take prohibition, including whether it applies to “incidental” take from otherwise lawful activities, is unsettled and subject to a current split in the federal circuit courts. The Trump Administration rule, published on January 7, 2021, largely reflected the Fifth Circuit’s view that the MBTA only prohibits “intentional acts” that directly kill migratory birds. We anticipate that the Biden Administration rule will take the position endorsed by the Tenth Circuit and articulated in the Obama Administration’s M-Opinion that the MBTA prohibits non-purposeful take of migratory birds, nests, and eggs that occur incidental to lawful activities.
Continue Reading Biden Administration Revokes Trump Administration MBTA Rule and Initiates Rulemaking for MBTA Incidental Take Permitting Program

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…

On January 29, 2019, the Oregon Department of Land Conservation and Development, the state’s land use agency, filed temporary rules amending the standards for siting solar PV facilities on agricultural lands.  Although the Land Conservation and Development Commission stopped short of making the changes permanent in order to further consider stakeholder interests at its May…

As a follow up to last week’s post about the proposed rules that would limit the development of solar PV on certain high-value farmland in Oregon, the Oregon Department of Land Conservation and Development issued its staff report on the proposed rules.  The staff report provides an overview of the rationale for the proposed changes…

The Oregon Department of Land Conservation and Development (“DLCD”), the state agency charged with overseeing and implementing the state’s land use planning program, is proposing new regulations that would prevent developers from siting solar PV facilities on certain farmland deemed high value.  Over the last several years, opposition to the siting of solar PV facilities…

In the continuing saga of the Echanis wind project in Eastern Oregon, U.S. District Court Judge Michael Mosman on April 18 vacated the Bureau of Land Management’s (BLM)’s Record of Decision (ROD) on a right-of-way grant decision under the Federal Land Policy and Management Act for a 230-kV transmission line conveying power generated from the wind project proposed for development on private land on the north side of Steens Mountain. The wind project would include between 40 and 69 wind turbines near Diamond, Oregon.

The case was before Judge Mosman on remand from the Ninth Circuit, which instructed Judge Mosman to vacate the BLM’s ROD unless he found it advisable that the ROD remain in place. The Ninth Circuit’s 2016 opinion followed Judge Mosman’s initial decision to grant the BLM’s motion for summary judgment. Judge Mosman had ruled that the BLM had adequately considered the impact of the project on fragmentation and connectivity of sage-grouse habitat, but the Ninth Circuit’s decision reversed that decision based on its determination that the BLM’s environmental review under the National Environmental Policy Act (NEPA) did not adequately assess baseline sage-grouse data during winter at the proposed project site.
Continue Reading BLM Directed to “Try Again” on NEPA Analysis for Echanis Wind’s Transmission Line: Greater Sage-Grouse Remains Key Issue for Project Development Despite USFWS Decision Not to List Under ESA

Today the U.S. Fish and Wildlife Service (Service) published notice in the Federal Register of a long-anticipated final rule revising its eagle permitting regulations (Revised Eagle Rule). Concurrent with the Revised Eagle Rule, the Service issued a Final Programmatic Environmental Impact Statement (PEIS) analyzing the Eagle Rule revision under the National Environmental Policy Act (NEPA). Although we are still in the process of evaluating the entire package and have concerns with certain aspects of the Revised Eagle Rule, many of the proposed changes represent a step forward for applicants seeking regulatory certainty through the eagle permitting process. Here’s a quick snapshot of the changes:

(Re)extends maximum permit term to 30 years. As we discussed in a previous blog post, in August 2015, the U.S. District Court for the Northern District of California set aside the 30-year tenure provision of the 2013 revisions to the eagle permit regulations on NEPA grounds, concluding that the Service had failed to demonstrate an adequate basis in the record for deciding not to prepare an Environmental Impact Statement or Environmental Assessment. The Revised Eagle Rule, now backed by NEPA analysis that evaluates the 30-year maximum term, once again extends the maximum term for eagle take permits from five to 30 years, subject to recurring five-year check-ins. In the Federal Register notice, the Service acknowledges that “[t]he 5-year maximum duration for programmatic permits appears to have been a primary factor discouraging many project proponents from seeking eagle take permits. Many activities that incidentally take eagles due to ongoing operations have lifetimes that far exceed 5 years. We need to issue permits that align better, both in duration and the scale of conservation measures, with the longer-term duration of industrial activities, such as electricity distribution and energy production. Extending the maximum permit duration is consistent with other Federal permitting for development and infrastructure projects.”

Applies practicability standard to all permits. Under the previous rule, applicants for standard (non-programmatic) permits were required to reduce potential take to a level where it was “practicably” unavoidable, but applicants for programmatic permits were required to meet a higher standard (reducing take through the implementation of advanced conservation practices (ACP) to a level where remaining take is “unavoidable”). The Revised Eagle Rule applies the “practicability” standard to all eagle take permits and removes the “unavoidable” standard from the permit program. Thus, all permits will contain the standard that take must be avoided and minimized to the maximum degree practicable.
Continue Reading U.S. Fish and Wildlife Service Issues Final Revised Eagle Rule

Today the U.S. Fish and Wildlife Service (Service) published notice in the Federal Register of proposed changes to its eagle permitting regulations (Proposed Rule).  Concurrent with the Proposed Rule, the Service issued a Draft Programmatic Environmental Impact Statement (DPEIS) analyzing the proposed changes under the National Environmental Policy Act (NEPA), and a Status Report that estimates size, productivity, and survival rates for bald and golden eagles, and provides recommendations on authorized take limits.  The Service is accepting comments on the Proposed Rule and the DPEIS until July 5, 2016.

Although we are still in the process of evaluating the entire package, the proposed changes represent a significant step forward for applicants seeking regulatory certainty through the eagle permitting process. Here’s a quick snapshot of the proposal:

(Re)extends maximum permit term to 30 years.  As we discussed in a previous post, in August 2015, the U.S. District Court for the Northern District of California set aside the 30-year tenure provision of the 2013 revisions to the eagle permit regulations on NEPA grounds, concluding that the Service had failed to demonstrate an adequate basis in the record for deciding not to prepare an Environmental Impact Statement or Environmental Assessment.  The Proposed Rule, now backed by NEPA analysis that evaluates the 30-year maximum term, once again extends the maximum term for eagle take permits from five to 30 years, subject to recurring five-year check-ins.  In the Federal Register notice, the Service acknowledges that the “5-year maximum permit term is unnecessarily burdensome for businesses engaged in long-term actions that have the potential to incidentally take bald or golden eagles over the lifetime of the activity.”…
Continue Reading U.S. Fish and Wildlife Service Issues Proposed Changes to Eagle Permit Regulations, Opens 60-Day Comment Period