Tag: U.S. Fish and Wildlife Service

1
“FWS Bat Intake Rule Won’t Drive Project Developers Batty” on Law360
2
The Final Northern Long-Eared Bat 4(d) Rule: Impacts to Energy Infrastructure Projects
3
Greater Sage-Grouse Avoids ESA Listing
4
Eagles Back in the Nest: FWS 30-Year Eagle “Take” Rule Vacated Less than Two Years After Implementation

“FWS Bat Intake Rule Won’t Drive Project Developers Batty” on Law360

Ankur Tohan and James M. Lynch’s recent alert on the Northern Long-Eared Bat 4(d) Rule and its effects on energy infrastructure projects was recently published on Law360.

Please click here to view it on Law360 (subscription required) or view it on K&L Gates HUB.

The Final Northern Long-Eared Bat 4(d) Rule: Impacts to Energy Infrastructure Projects

Last spring, the U.S. Fish and Wildlife Service (the “Service”) published a final rule to list the northern long-eared bat (the “Bat”) as a threatened species and an interim 4(d) rule under the Endangered Species Act (the “Act” or “ESA”) (16 U.S.C. §1531 et seq.).

The interim 4(d) rule reflected an attempt by the Service to accommodate both conservation needs and industry group interests; however, it was widely believed that the listing of the Bat as a threatened species would impose a significant burden on wind, energy, and other energy infrastructure projects carried out within range of the Bat, as defined by the Service.

Read the full alert on K&L Gates HUB

Greater Sage-Grouse Avoids ESA Listing

The U.S. Fish and Wildlife Service (“Service”) announced on Tuesday, September 22, 2015, that it would not list the greater sage-grouse under the Endangered Species Act (“ESA”).

This decision represents a change of direction for the Service, which announced in 2010 that the grouse was “warranted for listing”, but the Service now says “new information about the status of the species, potential threats, regulatory mechanisms, and conservation efforts indicates that listing is not warranted.”

Specifically, the Service determined that “the primary threats to greater sage-grouse have been ameliorated by conservation efforts implemented by Federal, State, and private landowners.” The Service identified state regulations, new federal regulations, conservation efforts, and advancements in oil and gas technologies as having reduced threats to the grouse “in approximately 90 percent of the breeding habitat through avoidance and minimization measures.”

Read more on K&L Gates HUB

Eagles Back in the Nest: FWS 30-Year Eagle “Take” Rule Vacated Less than Two Years After Implementation

On August 11, 2015, the United States District Court for the Northern District of California struck down a U.S. Fish and Wildlife Service (the “Service”) regulation that increased the maximum duration of programmatic permits for the incidental “take” of bald and golden eagles from five to thirty years (“the 30-Year Rule”)1. The decision sets aside the 30-Year Rule and leaves its fate in the hands of the Service, with potentially negative consequences for those entities that interact with avian resources. Without the 30-Year Rule, entities like wind farms—where avian interaction is effectively unavoidable—face serious questions related to securing permit coverage for their operations and prosecution for incidental take of eagles.

Moreover, until the 30-Year Rule is either reshaped through the administrative process or challenged on appeal, the previous rule—with its five year permit term and need for reapplication/NEPA review every five years—remains in place. Reapplication will trigger administrative burdens for both the permittee and the Service, with respect to both meeting the requirements of NEPA and the potential for appeals.

Read the full alert here on K&L Gates Hub

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