On May 26, 2015, the U.S. Fish and Wildlife Service (“FWS”) published a notice of its intent to evaluate potential ways to regulate incidental takes of migratory birds under the Migratory Bird Treaty Act (“MBTA”). The Notice of Intent specifically named oil, gas, and wastewater disposal pits and methane and other gas burner pipes as potential sources of takes of migratory birds.

The MBTA represents the United States’ implementation of an international agreement that makes it unlawful to take or kill individuals of most bird species found in the United States unless authorized pursuant to statute. The word “take” is defined broadly to include pursuing, hunting, shooting, wounding, killing, capturing, trapping, collecting, or attempting to do any of the same. The MBTA is somewhat notorious for being strictly enforceable even in the absence of intent or negligence. An allowance for incidental take can allow a company to avoid strict liability for unintended take if they agree to put in place certain measures. For the oil and gas industry, FWS seems to be focused on measures that could mitigate alleged risks of becoming trapped in waste pits or settling ponds, or trapped or burned in flares or burner pipes.

FWS is considering a number of possible approaches to regulation. The Service may establish a general conditional authorization tied to specific hazards present in particular industry sectors, such as the alleged hazards in the oil and gas industry described above. These permits would integrate conservation measures and/or technologies to address these “hazards.” Regulators are also considering an individual incidental take permit program for projects or activities that do not fall under the general permits. Finally, the government is considering developing voluntary guidance.

It remains to be seen whether general incidental take authorization benefits or further burdens industry. Relief from the MBTA’s strict liability framework is certainly appropriate, but if the measures required to attach incidental take authorization are far more burdensome than current practices, then this program may amount to little more than an additional compliance cost for industry. FWS is currently taking comment on these proposed methods through July 27, 2015. Companies and other industry participants, particularly those currently utilizing migratory bird mitigation risk measures, should consider submitting commentary on these proposed rules to fully explain how they may negatively impact their business and the industry.

The Notice of Intent can be found here.