This Article has two objectives. First, this Article will examine the possible impact that a migratory bird incidental take permit program would have on the operations of state environmental agencies, like the South Florida Water Management District, who use constructed wetlands to remove pollution from both the region’s municipal water resources and the water entering the Everglades. Second, this Article will look at the potential legal challenges to the implementation, through regulation alone, of an incidental take permit program and, accordingly, will propose an alternative to a new regulatory program.

Introduction

In May 2015, the United States Fish and Wildlife Service announced it was in the preliminary stages of considering an incidental take permit program for birds protected under the Migratory Bird Treaty Act.^[i] Regulated entities, public and private, have traditionally depended on prosecutorial discretion in cases of migratory bird incidental take.^[ii] An efficient permitting program would provide an increased level of certainty in operations, and may also contribute to better reporting, management, and conservation of migratory bird populations.^[iii]

The Migratory Bird Treaty Act is a strict liability statute that permits prosecution for the incidental deaths of listed animals, similar to the Endangered Species Act.^[iv] The Endangered Species Act contains a provision for incidental take, but—unlike the potential migratory bird permit program—the incidental take permit program for endangered species was amended into that statute by Congress in 1982.^[v] Thus, there may be challenges to the migratory bird incidental take permit program on the basis that it is distinct from prosecutorial discretion or agency inaction, and is somehow violative of the underlying treaties. However, this concern must be taken in light of the availability of migratory bird take permits for purposes including, but not limited to, scientific research or falconry.^[vi]

Part I of this Article will begin by briefly describing the nature and history of the Migratory Bird Treaty Act. This section will also explore the potential effects of the existing regulatory scheme on state agencies, like the South Florida Water Management District, whose activities may pose an incidental threat to migratory birds. Part II will detail the potential variations of incidental take permit programs that the United States Fish and Wildlife Service is considering. These potential programs will be compared to the current regulatory scheme to determine what material effects, if any, a new incidental take permit program would have on agencies like the South Florida Water Management District.

Part III will compare the proposed migratory bird permit program to the permit program enacted through the Endangered Species Act. The potential legal challenges to a permit program promulgated solely through regulation alone—without, as in the context of endangered species, a statutory amendment—will be explored. This Part will also examine how, through its special purpose permit authority, the Fish and Wildlife Service has authorized incidental take by federal actors in the past. To conclude, potential alternatives to a permit program, such as a Congressional amendment to the Migratory Bird Treaty Act or the expansion of existing special purpose permit authority to include state environmental agencies, will be noted.

Part I

The Migratory Bird Treaty Act

Nineteenth century America was characterized by westward expansion and the growth of commercial hunting.^[vii] Over the course of about one hundred years, several species—including bison, beavers, and various migratory birds—were hunted almost to the point of extinction.^[viii] The passenger pigeon, once considered “the most abundant species of bird” on the planet, was hunted into extinction by 1914.^[ix]

Congress responded to public pressure by passing the Lacey Act, which proved to be inadequate, and the Weeks-McLean Act, which was deemed unconstitutional by two federal courts.^[x] Frustrated in its attempts to regulate the overhunting of migratory birds through the Commerce Clause, Congress turned to the treaty powers of the executive branch for help.^[xi] The United States and Great Britain (on behalf of Canada) entered into a treaty for the protection of migratory birds in 1916, and Congress passed the Migratory Bird Treaty Act (“MBTA”) in 1918 to enforce the treaty.^[xii] The Supreme Court upheld the MBTA after the law was challenged by the state of Missouri.^[xiii]  The United States has since entered into three more migratory bird treaties, all enforced through the MBTA: with Mexico in 1937, with Japan in 1972, and with Russia in 1976,^[xiv] and the MBTA has been “remarkably successful” in restoring avian populations once threatened with extinction.^[xv]

The MBTA prohibits the pursuit, hunting, taking, capturing, killing, purchase of birds and eggs, and sale of birds and eggs protected under the treaty, and authorizes the Secretary of the Interior to publish the rules and regulations necessary to do so.^[xvi] Prosecutions under the MBTA were, historically, aimed at the intentional acts that triggered public demand for migratory bird protections: hunting and poaching.^[xvii] In the early 1970s, the United States Fish and Wildlife Service (“FWS”) began prosecuting entities for unintentional migratory bird deaths.^[xviii] This led to some disagreement in the judiciary: the Second and Tenth Circuits, for example, permit prosecutions under a strict liability interpretation of the “take” and “kill” prohibitions, whereas the Eighth and Ninth Circuits do not consider bird deaths resulting from habitat destruction within the prosecutorial scope of the MBTA.^[xix]

Inconsistent interpretations of the MBTA are not limited to the circuit and district courts of the MBTA; neither legal commentators nor the FWS have been able to formally concur regarding the application of the MBTA.^[xx] Regulated entities are, therefore, subject to a wide variety of interpretations as to what activities may or may not constitute an “incidental take” in violation of the MBTA. Under a strictest reading of the statute, everyday acts (e.g. driving, owning a cat) could be violations of the MBTA, so the FWS has historically used its prosecutorial discretion to limit the statute from extending beyond the bounds of reason.^[xxi]

The Concerns of Regulated Entities: An Example from Florida

In 1972, the Florida state legislature created five regional water management agencies, including the South Florida Water Management District (“SFWMD”).^[xxii] The SFWMD has a broad spectrum of regulatory responsibilities concerning water quality in the area ranging from Orlando to the Everglades.^[xxiii] In 1994, pursuant to the passage of the Everglades Forever Act by the Florida state legislature, the SFWMD began utilizing constructed wetlands to treat stormwater—principally, removing excess phosphorus—before that water entered the Everglades.^[xxiv] Much to the chagrin of the SFWMD, constructed wetlands are attractive habitats for migratory birds.^[xxv] Threats to migratory birds include flooding of nests and bioaccumulation of toxins in the birds’ food sources.^[xxvi]

In anticipation of potential incidental bird deaths, the SFWMD coordinates and prepares Avian Protection Plans with the FWS to lower its risk of incurring an enforcement action.^[xxvii] The use of Avian Protection Plans began in the energy industry.^[xxviii] An Avian Protection Plan is essentially a risk assessment for potentially-affected species, outlining mortality reduction measures and protocols for the regulated entity should the entity encounter a situation in which birds or nests are at risk.^[xxix]

The FWS has acknowledged that the existing standards regarding potential incidental migratory bird deaths lack clarity and certainty.^[xxx] Much of the recent academic and professional commentary calling for an incidental take permit program under the MBTA has come from an industrial point-of-view.^[xxxi] Accordingly, two out of four of the potential permit programs outlined in the FWS’ May 2015 announcement were focused on developing programs for different industry sectors, with energy, communications, and waste disposal industries mentioned specifically.^[xxxii] However, the FWS explicitly stated State agencies are among those regulated entities needing clarity regarding compliance with the MBTA, and invited comments from those agencies in the announcement.^[xxxiii]

Part II

The May 2015 Announcement

On May 26, 2015, the FWS published a Notice of Intent to prepare a programmatic environmental impact statement for a potential incidental take permit program for migratory birds.^[xxxiv] The announcement outlined two primary goals for any potential incidental take permit, as well as the four different permit program schemes being considered by the FWS. The first goal of any proposed program would be providing greater clarity to regulated entities.^[xxxv] As urban environments continue to expand, and as environmental changes —such as those associated with climate change—occur, sources of bird mortality will continue to become more numerous.^[xxxvi] Increasing protections for migratory birds will, therefore, involve a “multifaceted, coordinated approach by governments, conservation organizations, industry, and the general public . . . ,” including, potentially, an incidental take permit program that would set clearer guidelines for the regulated entities that may be expected to inadvertently harm birds.^[xxxvii]

The second goal of any proposed program is effecting better conservation measures in the spirit of the MBTA.^[xxxviii] An incidental take permit program “could provide a framework to reduce existing human-caused mortality of birds and help avoid future impacts by promoting practical actions or conservation measures that will help industries and agencies avoid and minimize their impacts on birds.”^[xxxix] In other words, the FWS intends to use any incidental take permit program to outline enforceable industry-specific best practices for avian mortality reduction, which, as an ancillary benefit, accomplishes the previously-stated goal of providing regulated entities with greater clarity and certainty regarding enforcement.^[xl] Additionally, to better effect the conservation-oriented goals of a permit program, funds from such a program (such as those collected as “compensatory mitigation” following a permitted incidental take) would further support the FWS’ efforts to acquire and preserve bird habitats.^[xli]

The FWS listed four potential mechanisms for implementing incidental take permits: two regulatory, and two non-regulatory. The first regulatory approach involves general conditional authorizations for incidental take based on the specific hazards posed by specific industry sectors.^[xlii] This particular approach is limited to industries featuring the following hazards: oil, gas, and wastewater disposal pits; gas burner pipes; communication towers; and electric and distribution lines.^[xliii] The FWS stated it was also considering a general conditional authority for the wind energy industry, but wanted to solicit public input before deciding to authorize conditional incidental take for wind energy or any other industry sector.^[xliv]

The second potential regulatory approach is more broad: individual entities would apply for site- and project-specific permits.^[xlv] Unlike the first approach, however, the passage of a rule under this approach would not grant any immediate authority to any entity to take; rather, it would set guidelines for entities to apply for incidental take permits.^[xlvi] The third potential approach is non-regulatory, but only applies to federal agencies: Memoranda of Understanding between federal agencies and the FWS—no other regulatory entities.^[xlvii] The fourth and final approach mentioned in the announcement involves cooperative development of voluntary industry-specific guidelines for regulated entities—while there would be no permits for incidental take under this fourth approach, clearer guidelines would help regulated entities better predict how to earn prosecutorial discretion.^[xlviii]

The Four Approaches: Potential Impacts on the SFWMD

Assuming the FWS limits themselves to only the four options enumerated in the announcement, the potential impacts on the SFWMD would range from no effect to significant. For example, the third approach only applies to federal agencies, so neither private sector entities nor state agencies would see any appreciable increase in certainty. Similarly, while the fourth approach claims the potential for clearer industry-specific guidelines, the SFWMD already prepares Avian Protection Plans for the review and approval of the FWS.^[xlix] Thus, the SFWMD is already abiding by FWS-approved best practices in an effort to secure prosecutorial discretion.

The first approach—industry-specific general conditional authority for incidental take—would only affect the SFWMD if state environmental agencies are included. The EPA, for example, has published explicit guidelines for the unique complications of constructed treatment wetland management; conceivably, such operations could be specific (and environmentally beneficial) enough to warrant addition to the non-exclusive list enumerated by the FWS in the announcement.^[l] However, since the general tone of this approach seems geared toward industrial incidental take, this may be unlikely.

The second potential approach proposed, an individualized permit application process for regulated entities, is the only of the four approaches in the proposal that likely would have a significant impact on the operations of the SFWMD. Presumably, the FWS would conduct a “site-specific NEPA review” of the treatment wetlands, then issue a permit based on the balance of environmental benefits of the SFWMD’s activities against the likelihood for potential incidental takes.^[li] The strongest factor weighing in favor of the FWS issuing a permit to the SFWMD is the benefit to migratory bird habitat in the Everglades—in the limited situations where the FWS has permitted incidental take under its existing “special purpose permit” authority, it has done so based on the overall benefit to the affected migratory bird species.^[lii]

Part III

Comparison to the Incidental Take Permit Program of the Endangered Species Act

The Endangered Species Act (“ESA”) was amended by Congress in 1982 to explicitly authorize the Secretary of the Interior to, under conditions he or she may prescribe, permit the taking of protected species “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”^[liii] Notably, there is a small overlap between the ESA and the MBTA: they simultaneously protect about 80 species of birds.^[liv] The issue with comparing the two statutes is one of legislative structure: while the MBTA does not define the word “take,” the ESA expressly defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”^[lv]

Under the ESA, a regulated landowner can apply for an incidental take permit by submitting a habitat conservation plan to the Secretary of the Interior.^[lvi] Habitat conservation plans address some of the same concerns as Avian Protection Plans drafted by the SFWMD: chiefly, an applicant must explain the steps they have taken to reduce protected organism mortality rates as well as the potential environmental impacts of incidental organism deaths.^[lvii] If a habitat conservation plan presents responsible efforts at mortality mitigation and can establish incidental taking would not jeopardize the survival of an endangered species, an incidental take permit may be issued.^[lviii]

Theoretically, a migratory bird incidental take permit program, enacted by regulation, could function in a similar manner to the program under the ESA. Incidental take authority through special purpose permits is limited to situations where applicants can make a “sufficient showing of benefit to the migratory bird resource . . . or other compelling justification.”^[lix] The ESA, on the other hand, can conceivably permit the incidental taking of a protected organism without requiring any benefit to the organism’s species or other justification; the threshold requirement in the statute states that an applicant’s activity must be “lawful.”^[lx] The May 2015 announcement strikes a tonal balance between the narrow limitations of special purpose permits and the seemingly permissive language of the ESA incidental take provision; the announcement states repeatedly that the implementation of any incidental take program would coincide with increased encouragement of conservation-oriented regulatory measures, including a potential compensatory mitigation scheme.^[lxi]

Potential Challenges to an Incidental Take Permit without a Corresponding Express Statutory Authorization

The MBTA grants the Secretary of the Interior very broad authority in very general terms, but the statute itself lacks specific language regarding incidental take that in any way resembles the language of the ESA.^[lxii] The broad language of the MBTA arguably grants the FWS the authority to establish some form of an incidental take permit program by regulation alone, but it is unclear whether the statute supports the authority to issue general incidental take permits to industrial entities as proposed in the May 2015 announcement.^[lxiii]

For example, three of the four treaties underlying the MBTA contain explicit, specific limitations on takings.^[lxiv] Only the treaty with Mexico appears to grant the authority to consider authorizing industrial take; the remaining treaties assert that any taking of migratory birds must be consistent with conservation principles.^[lxv] Therefore, while it appears that an individual application for an incidental take permit by a state environmental agency, like the SFWMD, could be well within the boundaries of the MBTA and its foundational treaties (since the activities of the SFWMD protect and improve migratory bird habitat in the Everglades), the FWS could expect a likely challenge in court over the permissibility of any scheme permitting industrial incidental take—assuming, of course, that the MBTA is not somehow amended by Congress to explicitly authorize such activity.^[lxvi] The ambiguity in the current statute, evidenced by the aforementioned circuit split, means the outcome of litigation could be unpredictable, and perhaps against the wishes of the FWS.

A Limited Alternative: Expanding the Application of Special Purpose Permits to Entities Like the SFWMD

The matter of industrial incidental take authority under the MBTA is both complicated and relevant to our increasingly-urban world, but the purpose of this Article is to consider the effect of the potential programs considered in the May 2015 announcement on a state environmental agency that utilizes constructed wetlands for stormwater treatment—here, the SFWMD. Since any regulatory incidental take permit program that includes industrial take authorities could reasonably expect a challenge in court, the FWS should look to its past issuance of special purpose permits for an alternative solution authorizing incidental take by entities like the SFWMD.

In the year 2000, the National Park Service (“NPS”) embarked on a two-year mission to eradicate invasive black rats from Anacapa Island, off the coast of California.^[lxvii] Black rats were introduced on the island some six decades before, and they had become so numerous that they were negatively affecting the habitat for native birds, other small vertebrates, and the local invertebrate species.^[lxviii] The plan, ultimately, was to eliminate the rat population on Anacapa Island with targeted aerial applications of rodenticide over the course of two years^.[lxix]

Before the NPS could act, however, it was sued by animal rights groups for several reasons.^[lxx] One such reason was the presence of protected migratory birds, such as the brown pelican, that would likely be harmed or killed by the rodenticide regardless of any efforts by the NPS to mitigate the likelihood of such an event occurring.^[lxxi] The NPS applied to the FWS for a special purpose permit authorizing incidental take, and the permit was granted on the basis that the benefits to protected migratory birds arising from the eradication of black rats justified any potential incidental bird deaths from the rodenticide.^[lxxii] The Anacapa black rat eradication project was so successful that, in 2010, the acting director of the FWS issued a memorandum stating that the FWS should begin authorizing incidental take permits pursuant to its “special purpose permit” authority for all federal actions concerning invasive species control or eradication.^[lxxiii]

The Code of Federal Regulations does not expressly limit the issuance of special purpose permits to federal actors.^[lxxiv] Rather, the Code states that the FWS may issue a three-year special purpose permit to “an applicant who makes a written application . . . and makes a sufficient showing of benefit to the migratory bird resource . . . or other compelling justification.”^[lxxv]

The FWS should consider expanding its policy regarding special purpose permits to include regulated entities like the SFWMD. The FWS could define this expansion as broadly as applying to all state and federal environmental activities aimed toward habitat restoration, or as narrowly as the state or federal usage of constructed stormwater treatment wetlands. First, much of the information requested in special purpose permit applications—for example, the nature of an applicant’s activities, the area of its activities, the potentially-affected migratory bird species, and potential impacts of an applicant’s activities on those species—is already provided to the FWS in the Avian Protection Plans prepared by the SFWMD.^[lxxvi] Second, the activities of the SFWMD arguably provide direct benefits to the migratory bird resource.

 Constructed wetlands treat stormwater upstream of habitat wetlands, acting as a filter that pulls phosphorus, selenium, or other chemicals out of the water before that water can reach habitat wetlands.^[lxxvii] In doing so, constructed wetlands directly reduce the risk of bioaccumulation of toxic chemicals in the food chain downstream.^[lxxviii] While this inevitably creates the risk of bioaccumulation of toxins in migratory bird prey residing within the treatment wetlands themselves, the constructed treatment wetlands can be directly managed to control this process and mitigate the risk, whereas the same cannot be done for the wild habitat wetlands downstream.^[lxxix] Thus, the operation of treatment wetlands creates a direct benefit to the migratory birds by reducing the risk of poisoning in habitat wetlands. Additionally, constructed wetland can benefit migratory birds by acting as a buffer for flooding downstream, reducing the risk of avian mortality in the downstream habitat wetlands.^[lxxx]

Third, and finally, the operation of constructed treatment wetlands arguably fits the definition of an “other compelling justification.” In the context of the SFWMD, the constructed wetlands have been instrumental in maintaining a regular flow of water into the Everglades while providing water resource management for the cities on Florida’s southeast coast.^[lxxxi] Additionally, between 1994 and 2011, constructed stormwater treatment wetlands managed by the SFWMD were responsible for preventing almost 1,500 metric tons of phosphorus from entering the Everglades.^[lxxxii] The benefit of preventing phosphorus from reaching the Everglades overlaps with the reduced risk of phosphorus bioaccumulation in migratory bird prey residing in unmanaged habitat wetlands, so it is hard to examine any benefits arising from the SFWMD’s operation of constructed wetlands without recognizing the benefit to the migratory bird resource.

 For these reasons, the FWS should consider authorizing the issuance of three-year special purpose permits to cover incidental take resulting from the operations of regulated entities like the SFWMD. Under the current regulatory scheme, the SFWMD runs the risk of being prosecuted for incidental bird deaths resulting from activities that, otherwise, improve migratory bird habitat and reduce the risk of avian poisoning.^[lxxxiii] The activities of the SFWMD are analogically similar to those of the NPS at Anacapa Island, in that they have the potential to harm some migratory birds ­but provide, arguably, an even greater long-term benefit. Further, because the stormwater treatment areas of the SFWMD are actively managed, the SFWMD can engage in active mortality reduction measures, such as preventing the flooding of treatment wetlands while nests are active, staking off and marking known active nests, and suspending construction after nests are discovered—the same cannot be said for aerially-distributed rodenticide. Because of this, the risks posed by the SFWMD’s actions are less severe than those posed by the aerial distribution of rodenticide by the NPS.

Conclusion

The issue of incidental take under the MBTA will remain a complicated one until Congress amends the statute to expressly authorize the practice (as it did with the ESA) or the Supreme Court weighs in on the circuit split to say, once and for all, what is and isn’t permitted under the current law. The FWS has attempted to start the problem-resolution process by announcing several approaches, some regulatory, that would try to fit incidental take, including industrial incidental take, into the existing regulatory and statutory framework.

One of those approaches, an individual incidental take permit application process, would potentially apply to the operations of the SFWMD and other entities like it. However, because the MBTA is silent regarding industrial incidental take authority, and because the majority of the underlying treaties seem to prophylactically forbid the concept, a legal challenge to this process would be likely. Because of this unresolved ambiguity, it may not be in the FWS’s interest to allow the Supreme Court to define the limits of the MBTA.

The FWS could begin a collaborative process with Congress to update and clarify the language of the MBTA. By defining the term “take,” as it is in the ESA, the Congress could answer the question forming the basis of the existing circuit split. Additionally, Congress could draft incidental take authority into the MBTA provided there are conservation-oriented outcomes somehow provided for. In the meantime, in the specific context of state environmental agencies like the SFWMD, one potential solution for authorizing incidental take—without proposing any new regulations—may be found in the special purpose permit authority that has been used to authorize incidental take by federal actors.

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_{[i] Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 Fed. Reg. 30032, 30032 (proposed May 26, 2015) (to be codified at 50 C.F.R. pt. 21) [hereinafter “Permit PEIS Announcement”].}

_{[ii] Andrew G. Ogden, Dying for a Solution: Incidental Taking Under the Migratory Bird Treaty Act, 38 Wm. & Mary Envtl l. & Pol’y J. 1, 29 (2013).}

_{[iii] See Permit PEIS Announcement at 30033–34}