The U.S. Fish and Wildlife Service has announced that it is looking into the creation of an incidental take permitting program under the Migratory Bird Treaty Act.  Currently the regulations under the MBTA only authorize incidental take for huntingmilitary readinessscientific collection, falconry and other special purposes; and to control birds that cause depredation.  

USFWS will be preparing a programatic environmental impact statement (PEIS) to evaluate the impacts of setting up a comprehensive incidental take permitting program.  Four initial options have been identified:

  • Programmatic authorization for take associated with certain activities and industries.  The activities initially identified by USFWS are oil, gas and wastewater disposal pits; gas exhaust pipes at oil production facilities; communication towers; and electric transmission and distribution lines.  Other activities, specifically wind energy generation, are under consideration.
  • Individual permits authorizing activities on a case-by-case basis.  This option could exist in tandem with the programatic authorization option to permit incidental take for activities not included in the programmatic exemption.
  • Memoranda of understanding with federal agencies.  This is analogous to a programmatic authorization for incidental take caused by federal agency activities.  Whether such an MOU would authorize take by a third party acting under a federal regulatory program (e.g. pursuant to an Army Corps Section 404 permit) is under consideration.
  • Voluntary guidance.  This option would be a continuation of the status quo, where USFWS would not provide legal authorization in the form of a permit, but would use its enforcement discretion to give a pass to activities conducted in accordance with its guidance.  

USFWS will be accepting comments regarding its initial proposals until July 27.  In the meantime, USFWS is holding “open houses” on its proposal and will present a webinar on July 8.  USFWS has also created a website just for the MBTA rulemaking.

Hundreds of millions of migratory birds protected under the MBTA are killed by human activity every year.  The creation of a permitting system that allows otherwise lawful, socially desirable activity to go forward without relying on USFWS’s enforcement discretion to avoid criminal liability is long overdue.