Incidental Take Permits

News & Analysis as of

Endangered Fish v. Humans: The Fight Over Competing Water Needs

The struggle to allocate scarce water resources between endangered and threatened fish and humans is not new. But droughts in the Southwest, which lower stream flows, and population increases, which raise demand, have...more

Second-Ever Eagle Programmatic Take Permit Soon To Be Granted For California Wind Energy Facility

On November 1, 2016 the U.S. Fish and Wildlife Service (Service) announced its plan to issue what will be only the second programmatic eagle take permit under the Bald and Golden Eagle Protection Act (BGEPA) permit program...more

Environmental Case Law Update

“Summer’s lease hath all too short a date.” Many important environmental and administrative law decisions were reported by the federal and state courts over the past six months. The courts are dealing with very...more

US Fish and Wildlife Service Moves Forward With Proposed Eagle Rule Revision

On July 5, 2016, the public comment period closed for the US Fish and Wildlife Service’s (FWS) proposed revisions to the rules authorizing eagle take permits under the Bald and Golden Eagle Protection Act (Eagle Act) and...more

D.C. Circuit Overturns FWS Approval of Wind Farm Due to Bat Concerns

The U.S. Court of Appeals for District of Columbia Circuit recently held that the U.S. Fish and Wildlife Service violated the National Environmental Policy Act by approving an Ohio wind energy project without looking at all...more

Ninth Circuit Court of Appeals Affirms Incidental Take Statements Not Required for Plant Species

On August 15, 2016, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court decision granting summary judgment to the Bureau of Land Management (“BLM”) and U.S. Fish and Wildlife Service (“USFWS”) on the issue...more

9th Circuit Agrees With BLM: Incidental Take Statements Are Reserved For Fish and Wildlife

In Center for Biological Diversity, et al., v. Bureau of Land Management, the U.S. Court of Appeals for the Ninth Circuit held that the Bureau of Land Management (BLM) did not violate the Endangered Species Act (ESA) when its...more

Ninth Circuit Finds Navy’s Low Frequency Active Sonar Program Violates Marine Mammal Protection Act

In NRDC v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit confirmed that the Marine Mammal Protection Act’s (MMPA) incidental take authorizations will be construed narrowly and conservatively, giving the benefit of...more

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

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

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