The proposed ESA rules should improve regulatory efficiency and environmental stewardship. Project developers will want to review the proposed species listing and critical habitat changes carefully, however.
On July 25, 2018, the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (collectively, the “Services”) released proposed revisions to the Endangered Species Act (ESA). The regulations aim to improve the efficiency and effectiveness of the ESA and, according to Stoel Rives law firm, should assist wind developers.
The ESA mandates all federal departments and agencies to conserve federally listed species. Section 7 of the Act outlines specific procedures for interagency cooperation and conservation of the listed species.
“In the context of the wind industry, these proposed regulations should assist wind developers to the extent that the proposed project requires federal permits or is developed on public lands and requires a Section 7 consultation,” shares Barbara D. Craig, a partner in Stoel Rives’ Environment, Land Use, and Natural Resources practice.
Specifically, the proposal seeks an expedited Section 7 consultation process for projects that have predictable and minimal adverse effects on listed species or critical habitat and provides clearer guidelines for the initiation of formal consultation.
“Additionally, the USFWS’ proposal to remove the blanket rule that automatically extends the ESA’s ‘take’ prohibition to threatened species under its management has the potential to provide regulatory certainty for certain activities, including wind development,” adds Craig. She gives the example, the USFWS’ northern long-eared bat 4(d) rule. “This rule tailors protections to areas where bats may be affected by white-nose syndrome during sensitive life stages, thus focusing on specific threats to the species. It permits other activities that do not harm the species to continue.”
For a complete summary of the Services proposed rules, click here.
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