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USFWS Issues First BGEPA Eagle Take Permit

On Friday the U.S. Fish and Wildlife Sevice issued its first eagle take permit under the Bald and Golden Eagle Protection Act.

The permit was issued to the operational Shiloh IV wind power project in Northern California.  Over the five-year life of the permit the project is allowed five takes, which is the number of takes that FWS modeled to occur over that period of time.  The permit has a five-year duration.  The project decided not to amend its application to try to obtain a longer-term permit under the recently-adopted 30-year rule (which is currently being challenged in federal district court in Northern California).

Of note is that Shiloh IV is an operational project and that the NEPA alternatives analysis conducted by FWS states that the no action alternative is to not issue the requested take permit as opposed to not operate the wind turbines.  This creates different alternatives analyses for operational and proposed projects.  For an operational project such as Shiloh IV, FWS appears to be acknowledging project impacts as an existing baseline and the BGEPA take permit as a mechanism to extract mitigation measures (in this case retrofitting utility poles and conducting additional mortality monitoring). 


USFWS 30-Year Eagle Take Permit Challenged in Federal Court 

The advocacy group American Bird Conservancy has filed a lawsuit in U.S. District Court for the Northern District of California, asking the court to invalidate a U.S. Fish and Wildlife Service rule that increased the shelf life of take permits available under the Bald and Golden Eagle Protection Act from five to 30 years.  USFWS created take permits under BGEPA in 2009 to allow developers and other entities to carry out activities that might incidentally harm protected eagles.    

The suit, filed in San Jose on June 19, claims that the 30-year permit rule was adopted in violation of NEPA because no environmental assessment (EA) or environmental impact statement (EIS) was performed (USFWS states that the rule is primarily administrative and therefore exempted from NEPA) and in violation of BGEPA because the rule was purportedly adopted to benefit wind energy development rather than to further the purpose of BGEPA, which is to protect bald and golden eagles.  To date, no BGEPA incidental take permits of any duration have been issued.     


Army Corps Permit for Sisk Wind Power Project Affirmed in Federal Court 

A lawsuit challenging the U.S. Army Corps of Engineers’ issuance of a Clean Water Act Section 404 permit to TransCanada’s Sisk Mountain wind power project was denied today in U.S. District Court in Maine.  Judge George Singal affirmed the magistrate judge’s recommended decision in its entirety, denying project opponents’ claims based on the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.

This decision is is the latest in a string of federal court decisions rejecting similar claims raised by wind power opponents.

TransCanada is represented in the Sisk litigation by Verrill Dana attorneys Juliet Browne and Gordon Smith.  


Connecticut Legislature OKs New Wind Power Rules 

The Connecticut Legislature has signed off on new regulations governing the development and operation of wind power facilities.  Among other things, the rules require developers to submit:

  • a visual impact assessment that differs in scope based on the height of the turbines and overall size of the project (up to 10 miles from the project for facilities over 65 MW);
  • a natural resource impact evaluation that calculates the expected number of bird and bat fatalities; 
  • a decommissioning plan that estimates the cost of decommissioning including salvage value and provides (an unspecified form of) financial assurance that decommissioning funds will be available;
  • a noise impact assessment;
  • a shadow flicker assessment; and
  • evaluations of blade shear and ice throw.  

However the wind power rules do not impose wind power-specific permitting standards for anything other than safety setbacks (1.5 - 2.5 times turbine height from project boundaries, depending on project size) and shadow flicker (fewer than 30 hours a year at occupied structures).  

Sound limits are governed by the generally applicable Noise Control Regulations administered by the state Department of Energy and Environmental Protection.  Those rules impose a nighttime limit of 45 dBA at residential structures and include a stringent penalty for “prominent discrete tones” that could be triggered by amplitude modulation associated with wind turbine noise.      

The regulations will be administered by the Connecticut Siting Council, which has oversight on proposed energy infrastructure. 


Court Issues Recommended Decision Denying MBTA and BGEPA Claims Against Sisk Wind Power Project  

A U.S. Magistrate Judge in Maine Federal District Court issued a recommended decision yesterday denying all claims in a suit brought by opponents of TransCanada’s Sisk Mountain wind power project.  Plaintiff Friends of the Boundary Mountains had challenged the U.S. Army Corps’ issuance of the project’s Clean Water Act Section 404 permit, claiming, among other things, that the permit issuance violated the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA) because the project was likely to result in take under those statutes.

U.S. Magistrate Judge John C. Nivison disagreed, recommending that the Court grant summary judgment in favor of the Army Corps and TransCanada on all counts.  With respect to the MBTA, the Court found that, “Given the attenuated relationship between the Corps’ permitting process and any potential harm to migratory birds, not surprisingly, Plaintiff does not offer any persuasive precedent to support its attempt for private-party enforcement of the MBTA.”  Friends of the Boundary Mountains v. U.S. Army Corps of Eng’rs, No. 12-357, at 12 (D. Me. April 23, 2014).  The Court also found that several recent decisions by other federal district courts denying similar claims persuasively supported “the conclusion that a take permit was not required prior to the Corps’ issuance of the Section 404 permit, both in relation to the MBTA take permits and [BGEPA] take permits.” n.6.  Magistrate Judge Nivison went even further to state that, because the MBTA and BGEPA do not contain citizen suit provisions, the plaintiff could not pursue independent claims against the Army Corps under those statutes, which are administered by the U.S. Fish and Wildlife Service and not by the Army Corps.  Id. at 11-15.

TransCanada is represented in the litigation by Verrill Dana attorneys Juliet Browne and Gordon Smith.



Courts Add to Denials of MBTA/BGEPA Claims against Wind Power

Two more courts have ruled against wind power opponents’ claims that federal agencies violated the Migratory Bird Treaty Act (MBTA) by authorizing wind energy projects without first obtaining take permits from the U.S. Fish and Wildlife Service. 

Protect Our Communities Foundation v. Jewell, 2014 WL 1364453 (S.D. Cal. 2014) granted summary judgment in favor of the Bureau of Land Management and Tule Wind LLC, a subsidiary of Iberdrola Renewables, on all counts.  Tule Wind is a 62-turbine project to be located on BLM land in Southern California.  Plaintiffs claimed, among other things, that the BLM violated the MBTA and Bald and Golden Eagle Protection Act (BGEPA) by not obtaining permits under those statutes prior to authorizing the development of Tule Wind. The court denied plaintiffs’ MBTA and BGEPA claims, holding that, “Federal agencies are not required to obtain a permit prior to acting in a regulatory capacity to authorize activity, such as development of a wind energy facility, that may incidentally harm protected birds.”  Id. at *21.   

Protect Our Communities Foundation v. Chu, 2014 WL 1289444 (S.D. Cal. 2014) rejected the same MBTA and BGEPA claims brought against the U.S. Department of Energy and Energia Sierra Juarez U.S. Transmission (ESJ), an entity planning to construct a transmission line spanning the U.S.-Mexico border that is intented to connect a proposed wind power facility in Baja, Mexico to the U.S. grid.  

With the Tule Wind and ESJ decisions, all four courts that have addressed wind power opponents’ claims under the MBTA and BGEPA have denied those claims.  See Pub. Employees for Envtl. Responsibility v. Beaudreu, 2014 WL 985394 (D.D.C., March 14, 2014) (holding that U.S. Bureau of Ocean Energy Management did not violate MBTA by approving the offshore Cape Wind project without first obtaining a permit from U.S Fish and Wildlife Service); Protect Our Communities Found. v. Salazar, 2013 WL 5947137 (S.D. Cal. 2013) (holding that project opponents failed to demonstrate that a permit was required under the MBTA when the BLM approved a 112-turbine wind power project in Southern California). 


Cape Wind Court Remands on ESA Claims, Denies MBTA Claim

A federal district court has issued an 88-page split decision in the litigation challenging federal approvals of the Cape Wind project in Nantucket Sound.  On Friday, the U.S. District Court for the District of Columbia granted summary judgment in favor of the federal defendants and developer Cape Wind Associates on all but two claims, rejecting numerous arguments advanced by a large group of project opponents that had been consolidated into one suit.  However, as a result of the plaintiffs’ success on those two claims, both of which were based on the U.S. Endangered Species Act (ESA), the matter has been remanded to the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) for further action before the Cape Wind project can go forward.

The Court found that FWS violated the ESA by not independently determining that curtailment of turbine operations was not a reasonable and prudent measure to require of the project.  The record contained the agencies’ reasoning behind not requiring curtailment (it would undercut the project purpose and scope by significantly reducing electricity generation), but the reasoning was attributed to the Bureau of Ocean Energy Management (BOEM) and Cape Wind, not to FWS.  The Court found that the ESA requires FWS to make that determination independently.  This may be a case of form over substance, with the defect curable on remand by some wordsmithing. 

Potentially more problematic was that the Court found that NMFS violated the ESA by not issuing an incidental take statement related to endangered right whales.  NMFS found that the project was “not likely to adversely affect right whales and not likely to jeopardize the continued existence of right whales” but did not categorically state that take would not occur.  The Court held that, because incidental take “may occur,” NMFS was required to include an incidental take statement with its biological opinion.  The significance here is that, in the context of formal consultation, anytime take of a listed species “may occur,” no matter how unlikely, the Court has found that it is arbitrary and capricious not to issue an incidental take statement. 

However, perhaps of most significance to other wind power developers was the Court’s denial of plaintiffs’ claim that BOEM violated the Migratory Bird Treaty Act (MBTA) by approving the Cape Wind project, even though it was acknowledged that the project, once operational, was likely or even assured to result in take of protected migratory birds.  The Court stopped short of finding that the MBTA never applied to an agency acting in a regulatory capacity, as in this case with BOEM approving the activity of a third party that would result in take of birds protected by the MBTA.  Rather, the Court found that there was not a sufficiently reasonable certainty that take under the MBTA would occur because the project has yet to be built, stating: “Even if the taking of migratory birds takes place at some point in the future, it is clear that no such taking has yet occurred and is not imminent at this point because construction of the Cape Wind project has not begun and the wind turbine generators that might take migratory birds are not operational.”

This is the second case in which a court has addressed the application of the MBTA to the federal approval of a wind power project.  This fall the U.S. District Court for the Southern District of California in Protect Our Communities Foundation v. Salazar rejected a similar MBTA claim by wind power opponents.