U.S. Fish and Wildlife Service Finalizes Eagle Take General Permit Framework

By |2024-04-17T21:40:59+00:00February 12th, 2024|BGEPA and MBTA, Endangered Species, Wind Energy|

On 12 February 2024, the U.S. Fish and Wildlife Service (Service) published long-awaited revisions to its eagle take permitting regulations under the Bald and Golden Eagle Protection Act (the Act). The new rule allows qualifying projects such as wind energy facilities and transmission lines to rely on general eagle take permits rather than applying for project-specific, discretionary take authorization. The rule is meant to increase the efficiency and effectiveness of permitting while supporting conservation benefits for bald and golden eagles. The final rule carries forward many of the concepts proposed in the draft rule that [...]

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Biden Administration Scraps Trump-Era Migratory Bird Rule, Looks Ahead to Incidental Take Permitting

By |2024-04-17T21:42:45+00:00October 6th, 2021|BGEPA and MBTA, Renewable Energy, Solar Energy, Wind Energy|

On 4 October 2021, the U.S. Fish and Wildlife Service (USFWS) announced its intent to revoke a Trump-era rule that limited the scope of the Migratory Bird Treaty Act (MBTA) to prohibiting intentional take of avian species and instead develop a new rule for the authorization of what soon will again otherwise be prohibited incidental take. Effective 3 December 2021, the agency will return to implementing the MBTA as prohibiting “incidental take” of birds that results from otherwise lawful activities. As predicted, we will then be back to a world in which USFWS’s enforcement [...]

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A New Trump Administration Rule Exempting Incidental Take Under the MBTA Is Unlikely to Last Long.

By |2024-04-17T21:44:16+00:00January 6th, 2021|BGEPA and MBTA|

A long-standing regulatory tug-of-war over whether the Migratory Bird Treaty Act (MBTA) prohibits incidental “take” of migratory birds is about to enter a new, but likely short-lived, phase. On 7 January 2021, the Trump administration will publish a new regulation affirming that the MBTA does not prohibit incidental take of migratory birds, a view directly at odds with the Obama administration’s enforcement of the MBTA against incidental take caused by industry, wind energy and oil and gas in particular. But there is a high likelihood the rule will never take effect if the Democrats [...]

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Is To Kill a Mockingbird Good Authority? Federal Court Sets Aside Administration’s Interpretation of the Migratory Bird Treaty Act

By |2024-04-17T21:44:54+00:00August 19th, 2020|BGEPA and MBTA, Uncategorized|

On 11 August 2020, the U.S. District Court for the Southern District of New York issued an opinion setting aside the U.S. Department of Interior’s (DOI) interpretation of the Migratory Bird Treaty Act of 1918 (MBTA) as contrary to law pursuant to the Administrative Procedure Act. The decision deepens a circuit split over an issue of importance to industrial and wind energy installations across the United States.

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