Contributed by Jared Wigginton

Federal wildlife laws present significant obstacles to developing and operating wind energy and transmission projects.  Although not intended to, these projects inevitably will harm or kill (“incidentally take”) some protected migratory birds, eagles, and/or other species.  To shield themselves from liability for this incidental take, developers must obtain and comply with permits.

In some instances, like for the Migratory Bird Treaty Act (“MBTA”), there is no permitting program for incidental take.  Depending on how the U.S. Fish and Wildlife Service (“FWS” or “Service”) interprets the MBTA’s prohibitions at the time, many businesses operating renewable energy infrastructure have faced exposure to criminal liability under the statute.  In other instances, like for long-term incidental take permits under the Bald and Golden Eagle Protection Act (“BGEPA”), obtaining permits and complying with their conditions is extraordinarily inefficient and expensive.

Recent regulatory actions by FWS show that the Biden administration seeks both to ensure avian conservation and to accelerate the already rapid development and deployment of renewables and transmission infrastructure.  These regulatory actions, which solicit public input, provide the renewables industry with a unique opportunity to help shape a new MBTA permitting framework and to improve the BGEPA permitting program.

Migratory Bird Treaty Act Developments

Today, FWS took three major actions with significant implications for birds protected under the MBTA and the industries that indirectly take those birds.  These actions are profoundly important for renewable energy and transmission projects.

First, the Service rescinded the Trump administration’s lame-duck regulation concluding that the MBTA does not prohibit the incidental take of migratory birds caused by otherwise lawful actions.  This rescission was inevitable given President Biden’s environmental and conservation policies, FWS’s previously longstanding interpretation that the MBTA prohibits incidental take, and a recent federal district court decision rejecting the Trump administration’s legal interpretation.  Nevertheless, this rescission has important consequences for the renewables industry, including restored exposure to criminal liability for the incidental take of migratory birds.  The Service’s rescission becomes effective on December 3, 2021.

Second, considering that businesses again will be criminally liable for the incidental take of migratory birds in two months, the Service issued Director’s Order No. 225 (“Order”) outlining its prosecution priorities going forward.  According to the Order, the Service will focus its enforcement efforts against entities engaged in activities known to incidentally take migratory birds (e.g., wind energy and transmission operations) and that also “fail[] to implement known beneficial practices to avoid or minimize incidental take.”  The term “beneficial practices” includes, among other things, best management practices, conservation measures, and mitigation measures (e.g., FWS Land-Based Wind Energy Guidelines).  Although the Order is not law, it establishes what the Service intends to be a “transparent and consistent approach” for accomplishing its enforcement priorities.  Accordingly, to avoid the potential for criminal prosecution under the MBTA, industry members should ensure they are implementing beneficial practices for their specific infrastructure and operations.

Third, and most significantly, FWS published an advance notice of proposed rulemaking that solicits public input on adopting an MBTA permitting program to shield entities from liability for the incidental take of migratory birds (“MBTA Notice”).  The MBTA Notice constitutes the first step in a process to “manage the long-term conservation of migratory birds and provide regulatory certainty to the regulated community.”  To this end, the Service is considering adopting regulations that authorize incidental take using the following three mechanisms:

• Exceptions to incidental take for non-commercial activities and for certain commercial activities where beneficial practices or technologies adequately avoid and minimize incidental take.

• General permits for certain activity types, where a qualifying entity automatically would be covered after registering; paying a required fee; and agreeing to abide by applicable permit conditions, which would include reporting requirements but not extensive monitoring or numerical limits on take. 

• Individual permits for activities not eligible for general permit coverage that would track the traditional permit approach (e.g., depredation permits), where an application and fee would be submitted to Service staff who would review the application and determine permit conditions.  

FWS’s adoption of a regulatory exception for renewable energy and transmission operations that implement beneficial practices (so long as those practices are defined clearly) would be ideal for the industry, especially considering that many businesses already implement such practices.  A streamlined general permit, too, would provide immense benefits for the industry by providing regulatory certainty in a cost- and time-efficient manner.  Although individual MBTA permits would be less ideal, even they would provide much-needed coverage from criminal liability that would improve planning, enhance financing options, and substantially reduce the potential for surprise and costly enforcement actions.

Comments on the MBTA Notice are due by December 3, 2021.

Bald and Golden Eagle Protection Act Developments

Separately, on September 14, 2021, FWS published an advance notice of proposed rulemaking under BGEPA (“BGEPA Notice”), seeking public comment on “potential approaches for further expediting and simplifying the permit process authorizing incidental take of eagles.”  Unlike the MBTA, BGEPA already has an individual permitting framework in place that can shield renewable energy and transmission projects from liability for the incidental take of bald and golden eagles.  The present framework, however, has been a thorn in the side of project proponents and permittees due to the significant costs of obtaining permits and complying with permit conditions, such as third-party monitoring. 

According to the BGEPA Notice, “[t]he Service and the regulated community share an interest in introducing further efficiencies into the eagle incidental-take-permitting process” to protect eagles amid increasing infrastructure development.  Based on this shared interest, FWS specifically solicits comments to identify deficiencies in the current permitting framework, lawful regulatory revisions that would improve the permitting framework, potential guidance that if implemented would reduce the time and costs associated with implementing long-term incidental take permits, and ideas for efficient regulatory approaches for permitting projects with minimal impacts on eagles.

To these ends, the BGEPA Notice indicates that the Service already is “working on guidance for fatality monitoring at wind-energy facilities, standards for using power-pole retrofits as offsetting mitigation, revised protocols for minimizing disturbance of nesting bald eagles, golden eagle nest-buffer guidance, and reduced or more-streamlined permitting requirements in areas where the risk of take is low.”  The BGEPA Notice also provides that the Service is considering using pooled funds to monitor only a subset of permitted projects, which would reduce costs and streamline the long-term permitting process; adopting a general permit framework similar to an existing framework used to implement the Clean Water Act; and eliminating systematic monitoring.

Comments on the BGEPA Notice are due by October 29, 2021.

Conclusion

Both the MBTA Notice and the BGEPA Notice present a unique opportunity for the industry to help shape what will be two very important permitting programs for renewable energy and transmission development.  For this reason, it will be imperative for both industry groups and individual industry members to advocate for lawful and effective regulatory solutions to the problems identified above.  This is especially true considering that the resultant MBTA and BGEPA permitting frameworks likely will withstand future partisan shifts in presidential administrations. 

About the author:

Jared Wigginton is an experienced environmental, natural resources, and energy attorney committed to advancing renewable energy and related infrastructure projects by assisting businesses with permitting, regulatory advocacy, litigation, and enforcement matters.  To help fulfill this commitment, Mr. Wigginton founded Good Steward Legal, a principles-based business law office dedicated to protecting and advancing its clients’ interests by providing them with cost-effective, high-quality legal service.