Recent Wildlife Developments Affecting Clean Energy

In the last few months, the U.S. Fish and Wildlife Service (USFWS) initiated a variety of regulatory efforts that may affect clean and renewable energy, including an advance notice of proposed rulemaking to streamline the permitting process for incidental take of eagles, a 90-day finding on a petition to list the American bumble bee (Bombus pensylvanicus) under the Endangered Species Act (ESA), and a permitting process under the Migratory Bird Treaty Act, as previously described in a DGS client alert. Over this same period, Colorado Parks and Wildlife released best management practices for solar energy projects, and the American Wind Wildlife Institute released guidance on siting wind projects.

Improvements to Eagle Take Permitting Process

On September 14, 2021, USFWS published an advance notice of proposed rulemaking seeking public input on “several approaches that could potentially underpin a more streamlined eagle incidental-take-permitting framework” than the current framework authorized in 2009. Particularly, USFWS seeks public comment on the following questions:

• Are there specific protocols, processes, requirements, or other aspects of the current permitting process for incidental take of eagles that hinder permit application, processing, or implementation?

• What additional guidance, protocols, analyses, tools, or other efficiencies could the Service develop that would reduce the time and/or cost associated with applying for, implementing, and conducting monitoring associated with long-term permits for incidental take of eagles under existing regulations? What are the estimated costs of the suggested additional efficiencies, and how do those costs compare to industry’s current practices?

• What targeted revisions could be made to existing regulations consistent with the overall permitting framework and PEIS that would reduce the time and/or cost associated with applying for and processing long-term permits for incidental take of eagles?

• Are there potential new regulatory approaches to authorizing incidental take under the Eagle Act, particularly for projects that can be shown in advance to have minimal impacts on eagles, that would reduce the time and/or cost associated with applying for and operating under long-term permits for incidental take of eagles?

USFWS is accepting comment until October 29, 2021.

90-Day Finding on Petition to List the American Bumble Bee as Threatened or Endangered

On September 29, 2021, USFWS published a 90-day finding on a petition to list the American bumble bee under the ESA. The American bumble bee’s range covers the eastern and central U.S., including Colorado and New Mexico, as well as portions of Canada and Mexico.

With the 90-day finding, USFWS also announced it is initiating a status review of the species to determine whether listing is warranted. Based on the status review, the USFWS will issue a 12-month finding determining whether or not listing is warranted, as required by the ESA. USFWS is accepting public comment as part of its status review.

Siting Guidance for Solar and Wind Energy

Colorado Parks and Wildlife recently released best management practices for large-scale solar energy development. These best management practices provide guidance related to siting considerations, wildlife surveys, avoidance and minimization of habitat loss and fragmentation, sensitive wildlife (including big game, raptors, migratory birds, grouse, and bats, among others), high priority habitat features, construction and operational considerations, weed management, security fencing and lighting, transmission line development, avian fatality risk, and reclamation and decommissioning.

Additionally, the American Wind Wildlife Institute released a Wind Energy and Wildlife Guide that summarizes the statutory and regulatory framework applicable to onshore wind energy and wildlife, the state-of-the-science on wind-wildlife interactions, and the strategies that are being implemented to avoid, minimize, and compensate for adverse impacts from wind energy to wildlife and habitats. It provides guidance on landscape assessment and siting practices, minimization of collision risk during wind operations, and compensatory mitigation under federal wildlife laws, among other issues.