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Morgan’s practice focuses on advising public and private sector clients on environmental and energy regulatory compliance, including permitting, rulemaking, and enforcement actions. She has focused on following the emerging energy trends and the associated environmental issues that arise in strengthening grid resilience and modernizing the energy system. Morgan has counseled clients ranging from those engaging in the hydropower licensing and relicensing process to electric utilities, wholesale generators, and distributed energy manufacturers, including electric vehicle manufacturers, solar installers and energy storage providers. She also counsels clients on matters arising under the National Environmental Policy Act, the Federal Power Act, the Clean Air Act, the Clean Water Act, the Coastal Zone Management Act, the Endangered Species Act, and similar state and local regulatory schemes.

Effective April 12, a new eagle take permitting regime will be in place. The eagle take permitting scheme has been criticized because of its overly conservative and burdensome requirements. These concerns culminated in a lawsuit filed against the U.S. Fish and Wildlife Service (FWS). Debra Shearwater et al. v. FWS, Case No. 14-CV-02830 (N.D. Cal 2015). The changes to the permitting regulations published on February 8 are the outcome of that litigation.Continue Reading Changes to Eagle Take Permitting Finalized by Fish and Wildlife Service

On February 8, the U.S. Fish and Wildlife Service (FWS) proposed regulatory changes (Proposed Rule) focused on the application and approval process for Endangered Species Act (ESA) permits issued under Section 10. Section 10 of the ESA authorizes FWS to permit take of listed species where such take is necessary for scientific purposes or the enhancement of propagation or survival of the species, or where the take is incidental to an otherwise lawful activity. Section 10 permits are used for Candidate Conservation Agreements with Assurances and Safe Harbor Agreements, which are voluntary landowner agreements designed to benefit candidates or listed species, respectively. Section 10 permits also have been used to allow the take of listed species incidental to private development activities through a Habitat Conservation Plan (HCP), which involves the project proponent committing to certain conservation activities.Continue Reading Fish and Wildlife Service Proposes New Section 10 Regulations Under the Endangered Species Act

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the “Corps”) (together the “Agencies”) have continued working on a proposed rule to revise the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA or Act), which will soon move to the next stage of agency consideration.[1]

On November 17, the U.S. Fish and Wildlife Service (Service) announced that $38 million in grant funding is available in fiscal year 2023 for fish passage projects. The goal is to award this funding to projects that address outdated, unsafe, or obsolete dams, culverts, levees, and other barriers. This funding effort is part of an overall $200 million commitment set out in the Bipartisan Infrastructure Law (BIL) and is part of the National Fish Passage Program (NFPP). The NFPP is a voluntary program that provides direct technical and financial assistance for restoration of aquatic organism passage and aquatic connectivity.Continue Reading Fish and Wildlife Service Announces Funding Grants for Fish Passage

On September 22, the Federal Energy Regulatory Commission (Commission or FERC) issued an order on rehearing (Rehearing Order), denying the U.S. Department of the Interior’s (Interior) request to include a requirement for a hydroelectric project to notify resource agencies if any activity may affect a federally listed Endangered Species Act (ESA) species and had not already been considered in the issued license (Notification Recommendation).Continue Reading FERC Denies Interior’s Requirement for Ongoing Species Notifications

Today, the U.S. Fish and Wildlife Service (FWS) published its much-anticipated proposal, updating the regulations governing permits for incidental take of bald and golden eagles, as well as take of their nests. This proposal is the culmination of efforts to improve the effectiveness of the eagle take permitting process, particularly for wind energy projects. The rule was last updated in 2016, but it was challenged by the Energy and Wildlife Action Coalition. In 2019, that challenge was settled with a commitment from the FWS to amend the rule. In September 2021, the FWS issued an Advance Notice of Proposed Rulemaking, seeking comments on potential revisions to the eagle take permitting process.Continue Reading Fish and Wildlife Service Issues Long-Awaited Eagle Rule Proposal

On June 24, the Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) (together, the Services) issued a final rule that removes the definition of “habitat” from the Code of Federal Regulations, 50 C.F.R. § 424.02. The final rule follows the FWS’ proposal issued on October 27, 2021; the definition the agencies are now removing was adopted during the last months of the Trump administration.
Continue Reading Services Issue Final Rules Rescinding Trump-Era Habitat Definition and Critical Habitat Exclusion Rules

The Endangered Species Act (ESA) regulations promulgated by the Trump administration (Trump ESA Rules) were challenged by environmental groups. While that challenge was pending, the Biden administration announced that those regulations would be revised. On July 5, the U.S. District Court for the Northern District of California vacated the Trump ESA regulations, not on the merits of the regulations but because they are in the process of being rewritten. This decision disregards the Biden administration’s request that the regulations remain in effect to preserve consistency and order during the revision process. Instead, the pre-Trump regulations (which were issued in the mid-1980s) have been reinstated and are now in effect until the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) finalize new regulations.
Continue Reading Trump ESA Rules Vacated

This article was republished in Pratt’s Energy Law Report (Vol. 22-10, November-December 2022).

On June 1, the Environmental Protection Agency (EPA) released a pre-publication version of its proposal to re-write the Clean Water Act Section 401 rule (Certification Proposal), which, if finalized, is expected to have far-reaching impacts on hydroelectric licensing and relicensing. The Certification Proposal is intended by EPA to replace the version of the rule finalized under the Trump administration in 2020 (2020 Rule). While the Certification Proposal maintains some aspects of the 2020 Rule, it differs in some significant areas and in many ways reverts back to the 1971 regulations.Continue Reading EPA’s Clean Water Act Certification Proposal to Significantly Impact Hydropower Licensing