As illustrated by our previous coverage here, here, and here, the scope of the federal government’s enforcement power under the Migratory Bird Treaty Act (MBTA) has been an ever-evolving source of litigation and confusion for industries across the country.

The U.S. Fish and Wildlife Service (FWS) announced last Wednesday that it is now seeking input from stakeholders on how to craft a permit program that provides some certainty to companies on avoiding liability under the MBTA, while still protecting migratory birds as much as possible. The FWS intends to gather all information necessary “to develop a proposed rule to authorize the incidental taking or killing of migratory birds, including determining when, to what extent, and by what means it is consistent with the MBTA.”

Such a permitting program is likely to benefit industries considering the Biden Administration’s recent reinterpretation of the federal government’s enforcement power under the MBTA. In an effort to streamline energy and infrastructure permitting, the Trump Administration posited that the MBTA only prohibited activities that intentionally harmed protected species. Now, however, the Biden Administration is taking a much stronger stance on enforcement by interpreting the MBTA to prohibit incidental deaths of migratory birds without agency approval (and thus allow for the criminal prosecution of those types of violations). This approach means that incidental bird collisions with wind turbines or electrical lines, for example, could result in civil penalties and even criminal prosecution for the infrastructure operators.

To complicate matters, there is still an appellate circuit split on the issue: the Fifth, Eighth, and Ninth circuit courts have held that a taking is limited to deliberate acts done directly and intentionally to migratory birds, while the Second and Tenth circuits have interpreted the MBTA more broadly, holding that inadvertent takes may be prosecuted. The potential new permitting program will be essential in helping to clarify the scope of the Administration’s enforcement approach and provide industry with greater clarification. Nonetheless, it is difficult to imagine a new permitting program that is not challenged through litigation.