The U.S. Fish and Wildlife Service is reportedly planning to issue a notice of intent to create an incidental take permitting regime under the Migratory Bird Treaty Act.  The permitting scheme would theoretically allow otherwise lawful activities to go forward with greater regulatory certainty, while allowing USFWS to require conservation measures to protect migratory birds.  USFWS has not publicly announced its plans to initiate an incidental take rulemaking process under the MBTA.

Meanwhile, Congress is considering H.R. 493, a bill introduced in January, that would carve out all incidental take from liability under the MBTA.  If H.R. 493 becomes law, the prospective USFWS incidental take permitting regime under the MBTA would become unecessary, or at least vastly different.  H.R. 493 also proposes to require by statute that incidental take permits under the Bald and Golden Eagle Protection Act be issued for a term of 30 years or greater.  Thirty-year BGEPA permits are currently issued by USFWS by rule.   

Wind power developers and other energy companies will likely support both of these federal efforts to clarify potential liability under the MBTA.  Currently, such entities must rely on voluntary adherence to agency guidelines and USFWS’ prosecutorial discretion in an attempt to quantify the risk of MBTA enforcement actions.