Tom Ewing’s Regulatory Update

* Critical Numbers: DOI’s Fish & Wildlife Service (FWS) announced a new “take” rate for bald eagles starting February 1. It’s a higher number resulting from an expanded bald eagle population. (Recall that “take” is wildlife parlance for harassing or even killing wild animals, deliberately or “incidentally.”) The new take allowance is based on a F&WS estimate of 316,708 bald eagles in the US (golden eagles, more rare, are not part of this change). The Service uses a “20th quantile” calculation resulting in a lower estimate of 273,327 bald eagles, quite a contrast with a 2009 estimate of 62,180 eagles. The 2016 “take rate” of 0.06 is increased to 0.09 resulting in a new take limit of 15,832 eagles. It’s critical to note, though, how that allowance contrasts with reality: in 2020 the allowed take was 3,731 eagles but the actual “permitted take” was 490 eagles…NOAA starts a required 5-year review of the North Atlantic right whale and is seeking new information on “status, threats, and recovery,” due May 4. The review must evaluate the possibility of “the present or threatened destruction, modification, or curtailment of its habitat or range.” Another is to look at “natural or manmade factors affecting its continued existence” and “status and trends of threats to the species and its habitats.” Hopefully the new analysis will be timely and inform decisions about upcoming major construction in the Atlantic.

* Pen Pals: Recall the letter a few weeks ago from the House Committee on Energy and Commerce to TVA suggesting that TVA wasn’t doing its customers right regarding rates, climate policies and renewable energy. TVA’s reply, in a 16-page letter signed by President and CEO Jeffrey J. Lyash, was sent, as requested, to E&C on February 2. It’s not an unfriendly letter. In fact Lyash’s closing statement is “please consider TVA both a partner and a resource going forward.” The E&C Committee might notice: TVA’s unionized workforce, it receives no federal appropriations, it works with 153 local power companies and that renewable investments have to be balanced with the need for reliability considering that wind and solar are so intermittent. And one other thing: economic development – $45.9 billion in regional capital investment over the last five years. Energy in TVA territory is reliable and affordable and on a low-carbon roadmap. You think these new friends will write again?

* Getting Back to Work: DOE announced last week it is reestablishing the National Advisory Committee on Coal; that charter lapsed last November because DOE needed to evaluate the Committee’s scope of work and whether it needed to expand. The re-start has “been deemed essential to the conduct of the Department’s business and in the public interest.” DOE writes that the charter has been “modernized” to “reflect matters currently faced by the coal industry, workers, and communities.” Another critical energy decision last week was the Coast Guard’s final rule regarding risk assessments for port LNG facilities. Of significance is the allowance that operations limited to handling LNG as fuel – as opposed to cargo – can meet required safety analyses with an “operational risk assessment” instead of a much bigger and broader “waterway suitability assessment.” The rule is effective March 4.

Tom Ewing “reply” or 513-379-5526 voice/text