This post was co-authored by Stoel Rives summer associate Ryan Laws.
On April 12, 2024, the U.S. Fish and Wildlife Service (Service) published notice in the Federal Register of a final rule (89 Fed. Reg. 26070) that amends regulations regarding the issuance of enhancement of survival and incidental take permits under the Endangered Species Act.
This post was co-authored by Stoel Rives summer associate Connor McRobert.
On May 1, 2024, the White House Council on Environmental Quality (CEQ) published notice in the Federal Register of a final rule amending its regulations implementing the National Environmental Policy Act (NEPA). The final rule, known as the Phase II revisions to NEPA, comes nearly a year after CEQ issued its proposed rule and is mostly consistent with the proposed rule. Notably, the final rule emphasizes that NEPA contains action-forcing procedural requirements to implement the letter and spirit of the Act. This shifts the traditional view that NEPA is a purely procedural statute that only informs decision-making and does not mandate outcomes. Although CEQ intends these changes to add regulatory certainty, it is highly likely the final rule will be subject to court challenges. In addition to the new NEPA characterization, the final rule adopts multiple changes that substantially expand NEPA in scope and impact several aspects of the NEPA review process. Key changes in the final rule include:
Consideration of Climate Change. The final rule requires agencies to analyze the effects of climate change on projects and, conversely, the potential effects of projects on climate change. Specifically, where feasible, projects must quantify greenhouse gas emissions from the proposed action and alternatives. Broadly, the final rule adds climate change to a host of effects that an agency must already consider.Continue Reading Council on Environmental Quality Publishes Final Rule Substantially Amending NEPA
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
This post was co-authored by Stoel Rives summer associate Ken Pearson.
On May 23, the Oregon Department of Land Conservation and Development made permanent the Temporary Amendments to OAR 660-033-0130, promulgated on January 29, 2019, which restrict the extent to which counties may approve construction of new commercial solar facilities on high-value farm land. You
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