After a brief hiatus, incidental take of migratory birds will again be a federal crime beginning December 3, 2021.  Less than 10 months after instituting a final rule declaring that incidental take of birds is not subject to the Migratory Bird Treaty Act’s (MBTA) strict liability criminal prohibitions, the U.S. Department of the Interior (DOI) reversed course, announcing that it is formally rescinding that rule and returning to enforcement discretion for individuals and businesses that inadvertently injure or kill birds when engaged in otherwise legal activities. Interior simultaneously announced that it will dust off the Obama administration’s shelved plans for an incidental take permitting program under the MBTA, and that it is opening an advance comment period through December 3, 2021, for interested parties to submit recommendations for developing the new permitting program.

To that end, on October 4, 2021, the U.S. Fish and Wildlife Service (FWS) published a Final Rule indicating DOI will again implement the MBTA to prohibit incidental take, and an Advance Notice of Proposed Rulemaking (ANPR) for the MBTA incidental take permitting scheme.

It is hard to overstate the potential impact of these developments.  Because the Department is again interpreting the MBTA to prohibit nearly any take of a covered migratory bird, regardless of intent, public participation in developing an incidental take permitting scheme will be critical to ensure MBTA compliance does not become a significant hurdle for communication, electric, energy, transportation, and other industry operations nationwide. 

The Final Rule Prohibiting Incidental Take of Migratory Birds

The Final Rule, which will take effect on December 3, 2021, revokes a Trump administration regulation published early this year that interpreted the MBTA’s prohibitions as applying only to actions that are “directed” at migratory birds, and not to actions that “incidentally take” them.  FWS is again interpreting the MBTA as prohibiting incidental take, but will apply “enforcement discretion.”  These actions mean that industry and project proponents should begin reintegrating MBTA compliance policies and procedures into their operations.  This action parallels a court decision invalidating an Interior Solicitor M-Opinion adopting the same MBTA interpretation as the now revoked Rule, and may moot pending litigation challenging that Rule.

The Forthcoming Incidental Take Permitting Scheme

FWS also published an ANPR to solicit comments to inform a future rulemaking that would both clarify the scope of liability under the MBTA and authorize incidental take under certain circumstances.  The future rulemaking will codify the interpretation of the MTBA as prohibiting incidental take of migratory birds.  It will also authorize incidental take under prescribed conditions.  The overall approach is akin to fairly recent Interior incidental take regulations under the Bald and Golden Eagle Protection Act, though it is not a criminal statute unlike the MBTA.  The mechanisms that FWS is currently considering to authorize incidental take are:

1. Exceptions to the MBTA’s prohibition on incidental take;

2. General permits; and

3. Specific or individual permits.

FWS is currently contemplating that certain activities, such as noncommercial activities (e.g., simple homeowner activities) and activities where beneficial practices or technologies sufficiently avoid and minimize incidental take, would be expected from requiring a permit. 

FWS would require other activities to obtain a general or individual permit.  The activities FWS identified as potentially subject to a permit requirement include:

• Communication towers

• Electric transmission and distribution infrastructure

• Onshore and offshore wind power generation facilities

• Solar power generation facilities

• Methane and other gas burner pipes

• Oil, gas, and wastewater disposal pits

• Marine fishery bycatch

• Transportation infrastructure construction and maintenance

FWS is soliciting comments regarding those activities not listed to determine how they should be included.

Going Forward

Although the Final Rule is scheduled to take effect on December 3, 2021, its promulgation could trigger renewed litigation, possibly in a forum that agrees with the legal interpretation in the revoked Trump administration regulation. 

With regard to MBTA incidental take permitting, on October 4, 2021, FWS opened a 60-day public comment period on the ANPR that will end on December 3, 2021.  Through this rulemaking, FWS will create a new regulatory permitting regime that will affect any industry engaging in tree-clearing or other activities impacting migratory birds.  Industry and project proponent participation in this rulemaking is imperative to ensure that the scheme exempts the appropriate operations, provides a streamlined path to compliance when necessary, and otherwise minimizes disruption and red tape.  Particularly given FWS’s challenges issuing incidental take permits under the Endangered Species Act in an efficient, consistent, and defensible manner, keeping projects with potential migratory bird impacts on schedule and on budget will depend on industry and project proponent participation in this process.  Litigation of any MBTA incidental take regime is also likely, and thus a robust administrative record will be critical.