On May 26, 2015, the US Fish & Wildlife Service (FWS) announced its intent to prepare a programmatic environmental impact statement (PEIS) pursuant to the National Environmental Policy Act (NEPA) to evaluate a proposal to authorize the “incidental take” of migratory birds under the Migratory Bird Treaty Act (MBTA).1  FWS is considering various rulemaking avenues to update and clarify its permitting system that would allow unintentional impacts to migratory birds, of which more than 1,000 species are protected under the MBTA.  At this stage, FWS has merely opened a public comment period (ending July 27, 2015) on the scope of the PEIS and has not formulated any specific regulations governing the controversial issue of “incidental take” under the statute.2 According to the announcement, potential actions could include:

  • General incidental take permits for “certain hazards to birds associated with particular industry sectors”3 (e.g., take caused by electrocution or collision with transmission lines, provided the operators have taken appropriate preventive measures);
  • Individual permits for incidental take to account for site-specific factors and activities not subject to general permits;
  • Drafting of new or amendment of existing memoranda of understanding with other federal agencies allowing incidental take by those agencies and potentially allowing other agencies to authorize private incidental take; and
  • Development of voluntary guidance for industries to minimize incidental take.

Though just the beginning of a lengthy process, such a permitting program could be a significant regulatory development, particularly for projects that face enforcement risk under the MBTA, such as transmission lines and wind farms.  To date, FWS has authorized permits only for intentional take (such as removal of overpopulated or dangerous birds),4 but not for unintentional harm associated with otherwise legal activity.  The MBTA is thus a “strict liability” statute, providing no defense for actors who accidentally violate the law.  FWS exercises considerable enforcement discretion under the MBTA, and penalties for violations can be significant.  In 2013, for example, Duke Energy paid $1 million for two misdemeanor charges under the MBTA for avian impacts at two wind farms in Wyoming. Plea Agreement at 2, United States v. Duke Energy Renewables, Inc., No. CR13-CR268R (D. Wyo. Nov. 7, 2013).

FWS’s potential new rulemaking could provide a mechanism for avoiding liability for unintended take under the MBTA, similar to the incidental take permits currently available under the Endangered Species Act (ESA).  Significant regulatory requirements in the form of mitigation and compliance monitoring are likely to be involved with any incidental take permitting program. In addition, NEPA review will be required for the issuance of each individual take permit, as it is under the ESA, which can significantly increase the time and cost required to obtain a permit.

Although FWS intends to establish a streamlined permit application process, the agency has come under criticism for recent efforts to do so under the Bald and Golden Eagle Protection Act (BGEPA). Eagle take permits have been granted exceedingly rarely, and lawsuits and the lengthy NEPA process have delayed measures designed to simplify permit conditions.  Participation in the rulemaking from the beginning is thus critical for all interested parties.