On February 10, 2015, the Fish and Wildlife Service (“FWS”) notified the White House Office of Management and Budget of its plans to move forward with the creation of a permitting scheme that would allow for the unintentional taking of migratory birds under the Migratory Bird Treaty Act (“MBTA”).

The MBTA was first enacted in 1918 and makes the “kill[ing]” or “tak[ing]” of a migratory bird, nest, or egg unlawful. “Take,” for the purposes of the Act, means to “pursue, hunt, shoot, wound, kill, trap, capture, or collect.” In some jurisdictions, “take” has also come to mean activities that may inadvertently cause of the death of a migratory bird, including the construction and operation of wind turbines, as well as other industrial activities. Currently, the Act is inconsistently enforced, with some circuit courts holding that the MBTA does not apply to incidental takings from commercial activities, and other circuits upholding criminal liability for incidental takings. The proposed permitting scheme could offer consistency that both environmental groups and industry actors would find appealing.

The Office of Management and Budget has not yet approved the FWS’ plan.