By Sara Orr, Daniel Brunton, Marc Campopiano and Andrea Hogan

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 Endangered Species Act (ESA) compliance process in response to the growth of Midwestern wind energy development. The Plan is intended to streamline the incidental take permitting process for certain bird and bat species.  Comments on the draft Plan and draft EIS are due on July 14, 2016.


With its abundant wind resources, the American Midwest is an attractive region for renewable energy development. In addition to state and local permitting requirements, Midwestern wind energy facilities must also comply with federal natural resource laws, including ESA and the Bald and Golden Eagle Protection Act (Eagle Act). Under Section 10 of the ESA, the FWS may issue permits to authorize the “incidental take” of federally listed fish and wildlife, including bird and bat species potentially affected by wind energy development. “Incidental take” is defined as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Likewise, under the Eagle Act, the FWS may issue a permit to authorize take of individual eagles and their nests.

By Christopher Garrett, Daniel Brunton and Taiga Takahashi

On June 6, 2016, in Backcountry Against Dumps et al. v. Jewell et al., the US Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court for the Southern District of California upholding federal approvals for the Tule Wind Project. The Court of Appeals found in favor of the Federal Government and Tule Wind LLC, rejecting claims the plaintiffs brought under the Administrative Procedure Act, National Environmental Policy Act (NEPA), Migratory Bird Treaty Act (Bird Act) and Bald and Golden Eagle Protection Act (Eagle Act).

As we have noted in previous reports, project challengers have increasingly alleged, in litigation, that the mere potential to incidentally affect migratory birds requires government agencies and/or project developers to obtain a permit under the Bird Act and the Eagle Act as a precondition to any regulatory approval for the project. The Court of Appeals, like the District Court, rejected this tactic.