Oct 62022

U.S. Fish and Wildlife Service Proposes General Eagle Incidental Take Permitting Process for Infrastructure Projects

Samuel B. Boxerman and Aaron L. Flyer
,

On Friday, September 30, the U.S. Fish and Wildlife Service (FWS) proposed revisions to its regulations governing eagle and eagle nest incidental take permits, with the goal of increasing the efficiency and effectiveness of the permitting process while increasing the conservation benefit for eagles. Notably, FWS proposed a general permit option for qualifying wind-energy generation projects and power line infrastructure, which obviates the need for project sponsors to seek specific permit authorization.

FWS’ authority for the rulemaking comes from the Bald and Golden Eagle Protection Act, which, like the Migratory Bird Treaty Act, prohibits the take, possession, and transportation of protected birds subject to federal regulation. Under the current regulations, those seeking a permit for the “incidental” take of eagles and eagle nests must obtain specific authorization from FWS, including required preconstruction monitoring activities for wind-energy projects. By consolidating specific requirements for similar projects, FWS hopes to relieve the administrative burden of obtaining incidental take permits at a time when both wind-energy development and eagle populations, along with areas associated with eagle population, grow.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Aaron L. Flyer

Washington, D.C.

aflyer@sidley.com

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