On May 26, the U.S. Fish and Wildlife Service (Service or USFWS) published a notice of intent in the Federal Register to prepare a programmatic environmental impact statement for a potential rulemaking to authorize incidental take of migratory birds under the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703-712.1 See 80 Fed. Reg. 30022 (May 26, 2015). Currently, the Service issues a variety of take permits under the MBTA, such as those for scientific collection, rehabilitation, banding and marking, and falconry. See 50 C.F.R. Part 21. It also allows regulated hunting of migratory game birds. See 50 C.F.R. Part 20. However, other than for military-readiness activities, USFWS does not currently have a mechanism to authorize take that occurs incidentally during the course of otherwise lawful activities, such as oil and gas operations, renewable energy generation, or electric transmission.

The notice of intent indicates that the Service is considering various approaches for authorizing incidental take of migratory birds, including (1) general conditional authorization for incidental take by particular industry sectors, provided that those industry sectors meet appropriate standards for protection and mitigation of incidental take of migratory birds, (2) individual incidental take permits for projects or activities not covered by a general authorization, and (3) expanding existing memoranda of understanding (MOUs) and negotiating additional MOUs with other federal agencies to regulate and authorize take caused by federal agency programs and activities. Each of these approaches would need to be implemented through a rulemaking.

With respect to the first approach, the Service is initially focusing on general conditional authorizations for the following industry sectors based on the risks these sectors pose to birds and the availability of measures for these sectors to prevent or reduce incidental bird deaths:

  • Oil, gas, and wastewater disposal pits;
  • Methane or other gas burner pipes at oil production sites and other locations;
  • Communication towers; and
  • Electric transmission and distribution lines.

USFWS may also seek to develop other general authorizations for hazards to birds associated with other industry sectors, such as wind energy generation.

In addition, the Service intends to evaluate the development of voluntary guidance for industry sectors that identifies best management practices or technologies that can be applied to avoid or minimize avian mortality. However, this approach would not authorize incidental take; rather, it would continue the Service’s current practice of considering the extent of a party’s compliance with agency guidance as a substantial factor in assessing whether to pursue a potential enforcement action for violation of the MBTA.

USFWS is requesting public comments on its proposal on a variety of issues, including the proposed approaches for authorizing incidental take, the specific types of hazards to birds associated with particular industry sectors that could be covered under general permits, and potential approaches to mitigate and compensate for the take of migratory birds. Comments must be submitted to the Service by July 27, 2015. Companies that have the potential to cause incidental take of migratory birds should consider submitting comments to identify issues and opportunities associated with this MBTA permit rulemaking process.