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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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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

At its January 26, 2024 meeting, the Oregon Energy Facility Siting Council (EFSC) approved an ambitious rulemaking schedule for 2024 that will include consideration of changes to a wide range of EFSC rules.  Detailed information regarding EFSC’s rulemaking projects can be found on EFSC’s website.  Notable 2024 rulemaking projects will include potential changes to

On June 23, 2023, the Oregon Legislature passed House Bill (HB) 3179, which changes the definition of energy facilities subject to mandatory Oregon Energy Facility Siting Council (EFSC) jurisdiction.  Signed by Oregon’s Governor on July 18, 2023, HB 3179 will go into effect January 1, 2024.  HB 3179 will provide more flexibility for certain

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