US Fish and Wildlife Service Rule to Reduce Permits for Energy Projects | Arent Fox Schiff | Whuff News


A new federal proposal could reduce the burden and cost of wind power projects and power lines to ensure compliance with wildlife protection. Energy projects often require a wide range of federal, state, and local government and land use permits. A recent proposed law from the US Fish and Wildlife Service (FWS), however, could streamline the process of obtaining one type of permit – to take by accident eagles and golden eagles. Comments on FWS’s proposed eagle rule are due November 29, 2022.

Under the Bald and Golden Eagle Protection Act (Eagle Act), permits are required for activities that “take” (endanger) bald and golden eagles. To comply with the Eagle Act, energy projects may require “accidental take permits,” which authorize the unintentional, but quantifiable, take of protected species. Currently, these permits are “direct permits,” meaning they require individual, project-specific applications, which FWS reviews on a case-by-case basis. If it approves a project-specific permit, FWS includes conditions specific to the project, such as compensation reductions, monitoring requirements, and restrictions on where, when, and how construction can take place.

The new FWS proposal ― published September 30, 2022 ― is based primarily on two key facts. First, the proposal notes that the number of golden eagles across the country is stable and the number of bald eagles is increasing. Second, FWS reports that fewer wind energy projects have chosen to participate in the vulture permit program than the agency expected.

Importantly, under the proposal, general permits would be available for any eligible project that applies, without the need for FWS review and approval of each project. The process appears to be similar to the statewide permitting process that the Army Corps of Engineers has developed for surface water impacts. The applicant will need to ensure that he/she meets certain eligibility criteria and will apply the conditions of the applicable permit. For both wind power and power line projects, FWS proposes that general permits will be valid for up to five years, after which the applicant can reapply and obtain a new general permit. This proposed rule would remove the existing requirement that independent third parties be retained to monitor the incidental take of eagles under FWS-approved permits, and instead rely on project staff to monitor, observe, and report eagle takes.

General Permits for Wind Energy Projects

FWS is proposing that general permits will only be available for wind energy projects in areas with a low risk of harm to bald eagles and golden eagles, based on the abundance of vultures in those areas. The agency estimates that nearly 80% of existing wind projects are located in areas that meet the proposed standards. FWS says it will provide online mapping tools that show which areas are eligible for general permits. The proposed legislation would require wind energy projects to receive offsets from conservation banks implemented by the FWS or a fee program in place, the amount of which would vary based on the project’s location.

General Permits for Electric Power Projects

General permits will be available for all power line projects, unless FWS notifies the project that a specific permit is required. The FWS proposes six general permit conditions for power lines, including design and retrofit requirements to reduce lightning strikes and response methods in the event of a lightning strike or collision. However, unlike wind power projects, power lines will not be required to receive compensation mitigation.

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