Incidental Take Permits

News & Analysis as of

Comments on New Rules for Bald and Golden Eagle Protection due July 5, 2016

On May 6 of this year, the United States Fish and Wildlife Service (FWS) published a proposed rule revising the permitting program under the Bald and Golden Eagle Protection Act (the Act). Public comments on the rule are due...more

US FWS Releases Draft Midwest Wind Energy Multi-Species Habitat Conservation Plan

On April 15, 2016, the US Fish and Wildlife Service (FWS) issued its Draft Midwest Wind Energy Multi-Species Habitat Conservation Plan (Plan) and Draft Environmental Impact Statement (EIS) proposing a regional approach to...more

USFWS Proposes (Again) To Issue 30-Year Eagle Act Permits

On May 6, 2016, the U.S. Fish and Wildlife Service (“Service”) published a proposed rule that would amend various aspects of its permitting program under the Bald and Golden Eagle Protection Act (“Eagle Act”). As widely...more

D.C. Circuit Holds Injury Exists Where Statutory Enactment Denies Plaintiff’s Right to Information; Upholds Section 9 Exemption...

On June 3, 2016, the U.S. Court of Appeals for the D.C. Circuit held in Friends of Animals v. Jewell (No. 1:14-cv-00357) that Plaintiff Friends of Animals (“Plaintiff”) had Article III standing to pursue a constitutional...more

If At First You Do Not Succeed: Fish and Wildlife Service Tries Again With 30-Year Eagle Act Permit

On May 6, 2016, the Fish and Wildlife Service (FWS or Service) published a proposed rule (Proposed Rule) that would substantially change how the Service administers its conservation and management program under the Bald and...more

Fish and Wildlife Service Issues Draft 30-Year Programmatic Eagle Take Permit - Longer Permit Terms Welcome, But Certain Proposed...

The U.S. Fish and Wildlife Service (Service) on May 6, 2016, issued a draft rule that would extend to 30 years the maximum life of permits authorizing the incidental take of bald and golden eagles pursuant to the federal Bald...more

Fish and Wildlife Service Supports Renewable Developers and Proposes Revised Eagle Incidental Take Permit Reviving 30-Year...

On May 4, 2016, the United States Fish and Wildlife Service (FWS) released a draft rule and Programmatic Environmental Impact Statement (PEIS) analyzing the impact of the proposed rule on eagles, and extending the duration of...more

U.S. Fish and Wildlife Service Issues Proposed Changes to Eagle Permit Regulations, Opens 60-Day Comment Period

Today the U.S. Fish and Wildlife Service (Service) published notice in the Federal Register of proposed changes to its eagle permitting regulations (Proposed Rule). Concurrent with the Proposed Rule, the Service issued a...more

U.S. Fish and Wildlife Service Issues Proposed Rule to Revise its Bald and Golden Eagle Regulations

On May 4, the U.S. Fish and Wildlife Service (Service) issued a proposed rule titled Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests, which seeks to revise the Service’s bald and...more

Renewable Energy Update - May 2015

Renewable Energy Focus - U.S. proposes giving wind farms 30-year "incidental take" permits - Reuters - May 4 - U.S. wildlife managers on Wednesday again proposed granting 30-year permits to wind farms that...more

U.S. Fish and Wildlife Service Authorizes Take of the Last Known Wild Jaguar in the United States

On April 28, 2016, the U.S. Fish and Wildlife Service (USFWS) issued a revised Biological Opinion and Incidental Take Permit for the Rosemont Copper Mine in Pima County, Arizona. USFWS originally issued a Biological Opinion...more

New Conservation Restrictions for the Northern Long-Eared Bat Will Have Limited Impact on Development in Massachusetts

A new Endangered Species Act rule protecting the northern long-eared bat will likely have only limited impact on development and land use activities in Massachusetts due to fairly specific restrictions imposed by the final...more

U.S. Fish and Wildlife Service Formally Reinstates 5-Year Limit for Eagle Take Permits

On February 17, 2016, the U.S. Fish and Wildlife Service (“USFWS”) issued a final rule formally reinstating a five-year limit for eagle take permits. The final rule responds to an August 2015 ruling by the U.S. District Court...more

The Writing on the Wall Moves to the Federal Register: No 30-Year Take Permits

As we discussed last summer, the Judge Lucy Koh of the Northern District of California ruled that the Fish and Wildlife Service’s 30-year programmatic permit for incidental takes of bald and golden eagles from wind farms...more

Developers Dodge Bullet with Northern Long-Eared Bat

Developers have to deal with a number of environmental issues. These include stormwater management and potential impacts to wetlands, historic resources, and threatened and endangered species. The northern long-eared bat is...more

U.S. Fish and Wildlife Service Issues Final 4(d) Rule for Northern Long-Eared Bat Under Endangered Species Act

In April 2015, the U.S. Fish and Wildlife Service (“Service”) published a final decision to list the northern long-eared bat as threatened and, rather than publishing a final 4(d) rule, opted to publish an interim 4(d) rule...more

U.S Fish and Wildlife Services Opts Not to Appeal 30-Year Eagle Rule Decision, Focuses on Development of Eagle Permitting Program

On January 19, 2016, the U.S. Department of Justice (DOJ) dropped its Ninth Circuit appeal of U.S. District Judge Lucy Koh’s ruling that set aside the U.S. Fish and Wildlife Service’s (“Service”) rule to extend the maximum...more

USFWS Issues Broader 4(d) Rule for Northern Long-Eared Bats: What it Means for Energy Developers

On January 13, the U.S. Fish and Wildlife Service (Service) released its Final 4(d) Rule for the Northern Long-Eared Bat (Final Rule). The Final Rule greatly expands upon the scope of the interim 4(d) rule that the Service...more

California Supreme Court Decision Regarding Newhall Ranch Development Could Significantly Impact Developments

California Supreme Court Overturns Environmental Impact Report Related to Proposed Residential Development - In a much-anticipated decision, Center for Biological Diversity v. California Department of Fish and Wildlife,...more

New Challenges for CEQA Review of Development Projects After California Supreme Court Invalidates Greenhouse Gas Analysis and...

In a 5-2 ruling that poses significant hurdles for developers addressing greenhouse gas (GHG) compliance and protected species mitigation under the California Environmental Quality Act (CEQA), the California Supreme Court...more

Lost in Translation: Supreme Court Elucidates CEQA GHG Analysis, “Fully Protected” Species Take Prohibition, And Issue Exhaustion...

In a 5-2 decision filed November 30, 2015, the California Supreme Court reversed the judgment of the Court of Appeal which had upheld the EIS/EIR for the controversial Newhall Ranch development project. Center For Biological...more

Take of Fully Protected Fish Stops Large Housing Development Project in LA County

While many of us were busy hitting refresh for those great Cyber Monday deals, the California Supreme Court quietly issued its decision on the Newhall Ranch project. In a decision reminiscent of the snail darter era, the...more

Prudence Prevails: Fifth Circuit Supports Narrow Reading of Liability under the Migratory Bird Treaty Act

The U.S. Court of the Appeals for the Fifth Circuit recently ruled that the criminal prohibition on killing or injuring birds under the Migratory Bird Treaty Act (“MBTA”) “only prohibits intentional acts (not omissions) that...more

Court Limits Migratory Bird Treaty Act Applicability to Incidental Take

On September 4, 2015, the US Court of Appeals for the Fifth Circuit issued a ruling in United States v. CITGO that a “taking” subject to prosecution under the Migratory Bird Treaty Act (MBTA) does not include the...more

Liability for Unintentional Bird Deaths Still Up in the Air

The recent Fifth Circuit Court of Appeals decision that unintentional bird deaths under the Migratory Bird Treaty Act (“MBTA”) are not “takes” under the MBTA and therefore not subject to criminal liability, adds fodder to the...more

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