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The Future of  Migratory Bird Treaty Act Permitting

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The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712) is a federal regulation that has made national headlines multiple times in 2021. This regulation is owned and maintained by the federal agency the United States Fish and Wildlife Service (USFWS). It seems like every time rules are finalized; they are quickly revoked due to administrative enforcement discretion. What exactly is happening, how may these rule changes affect your project, and what can you do to influence future policy changes and environmental law?

Migratory Bird Permitting: The Past

Understanding how we got here is essential to understanding the current debate. The original intent of this century-old law was to regulate the overharvesting of birds, which decimated bird populations in the late 19th and early 20th centuries.

Signed into law in 1918, the MBTA is a federal regulation of the United States and is one of the oldest wildlife regulations and perhaps the most important outside the endangered species act. The MBTA implements four international wildlife conservation treaties with Canada, Mexico, Japan, and Russia. The MBTA prohibits the “take” of migratory birds, their parts, eggs, and nests. Take includes hunting, shooting, wounding, killing, trapping, capturing, collecting, or attempting those actions without prior authorization by the Secretary of the Interior. The MBTA currently protects 1,093 native migratory bird species.

The interpretation of “take” has been debated for nearly five decades within the area of environmental law. According to the National Law Review, the original interpretation of “take” only covered intentional actions. Starting in the 1970s, “federal prosecutors began to enforce the MBTA for incidental actions, even though there had been no legislative change to support the new approach or enforcement.” This interpretation meant that persons who engage in an action that results in the taking of a protected bird, even if unintentional or unavoidable, can face criminal charges.

The Federal Courts of Appeal have been split in their interpretations. The Fifth, Eighth, and Ninth Circuit Courts believe that the MBTA does not prohibit incidental take. At the same time, the Second and Tenth Circuits hold the opinion that it does.

In January 2017, the Solicitor’s Office of the Department of the Interior issued M-Opinion M-37041, which stated that incidental take should be considered unlawful. M-37041 was issued following a failed attempt to establish a protected migratory bird incidental take permit starting in 2015.

In February 2017, the M-37041 was revoked. And in December 2017, the Solicitor’s Office issued M-37050, which sided with the Fifth Circuit Court’s ruling in the United States vs. CITGO Petroleum Corp. This environmental law case concluded that take only applies to “direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control.” Ergo, incidental take is not considered unlawful. A final rule authorizing the incidental take of migratory birds was issued on January 7, 2021.

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Migratory Bird Permitting: The Present

In September of 2021, the US Fish and Wildlife Service (USFWS) under the Biden Administration published a final rule in the Federal Register that revoked the January 7 rule, once again declaring that incidental take of migratory birds is unlawful and may be prosecuted. The USFWS announced plans to take additional steps to codify this interpretation.

The Fish and Wildlife Service also published an Advanced Notice of Proposed Rulemaking (ANPR). The ANPR made public their intention to prepare an environmental impact statement (EIS) under the National Environmental Policy Act regarding the rule change, revitalizing the previous attempt to develop an incidental take permit. As part of the EIS, the USFWS will solicit public comment and gather information to be "used to develop proposed regulations to authorize the incidental take of migratory birds under prescribed conditions."

Migratory Bird Permitting: The Future

There is still much uncertainty around what future policy, rulemaking, and permitting may ultimately look like. However, the ANPR offers a glimpse into how the USFWS envisions a migratory bird incidental take permit. This permitting structure may sound familiar if you are familiar with permitting under Section 404 of the Clean Water Act.

"The [USFWS] is considering authorizing incidental take using three primary mechanisms:

(1) exceptions to the MBTA’s prohibition on the incidental take.     

(2) general permits for certain activity types; and

(3) specific or individual permits."

Exceptions may include some non-commercial activities, such as actions by homeowners that result in an incidental take.  

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General permits may be issued for some activities and industries. A general migratory bird permit application could be obtained instantly via a registration system by submitting a fee and agreeing to abide by general conditions developed for that specific industry. The general permit would include reporting requirements; however, the USFWS would not specify the number of birds or migratory bird species authorized for incidental take covered under the general permit.

Projects and activities covered under the general permit may include:

● Communication towers
● Electric transmission and distribution infrastructure
● Onshore and offshore wind power generation facilities
● Solar power generation facilities
● Methane and other gas burner pipes
● Oil, gas, and wastewater disposal pits
● Marine fishery bycatch
● Transportation infrastructure and maintenance, and
● Government agency activities

For projects that do not meet eligibility criteria for the general permit, the USFWS is considering an individual or specific permit to authorize incidental take under specific permit regulations. Rather than applying through a registration system, project owners would apply and fee directly to USFWS staff, reviewing the application and developing conditions particular to the permit. Like Section 404 permitting, the individual permit can be expected to take longer to be approved and will likely have more robust requirements.

Additionally, the USFWS is considering implementing compensatory mitigation and a migratory bird conservation fee for general or individual permits.

The USFWS is seeking data and information on:

● Human-caused migratory bird death and injury for the activities listed above
● Beneficial practices to avoid and minimize migratory bird deaths and injury
● Activity-specific beneficial practices that should be considered as conditions of the authorization
● Criteria (e.g., infrastructure design, beneficial practices, geographic features, etc.) to qualify as exempt from a permit, for general permit registration, or apply for an individual/specific permit
● Economic costs and benefits of implementing beneficial practices that require retrofitting existing infrastructure
● Economic costs and benefits of implementing beneficial practices in new construction instead of current designs
● Economic costs and benefits of implementing beneficial practices that do not affect infrastructure
● Other economic valuable information for setting required compensatory mitigation or a conservation fee
● Economic information on the benefits of migratory birds, such as ecosystem services, recreations, and other benefits; and
● Any potential effects on small entities, such as small businesses, small non-profit organizations, or small governmental entities with a population under 50,000

Additionally, the USFWS is seeking comment on the effects that might be caused by regulating incidental take of migratory birds and prompts the consideration of impacts on:

● Floodplains, wetlands, wild and scenic rivers, or ecologically sensitive areas
● Park lands and cultural or historical resources
● Human health and safety
● Air, soil, and water
● Prime agricultural lands
● Other species of wildlife, including threatened and endangered species
● Historically marginalized and disadvantaged communities
● Other socioeconomic effects
● Conflict with other Federal, State, local, or Tribal environmental laws or requirements

Greenfield Land Developers are on the front lines of the industries that will likely be affected by regulatory changes under the MBTA. Their unique perspective is essential for shaping the future of the MBTA and may influence the conditions and best management practices required under a potential future incidental take permit.

In the meantime, it is best to avoid potential nesting habitats and to implement existing best management practices to prevent taking migratory birds.

The future of the MBTA is unknown and continues to face many legal hurdles. We are tracking these changes and are dedicated to keeping land developers up to date.

Transect is proud to offer a suite of due diligence tools that can help you avoid developing on sites with a high probability of nesting migratory bird species. Our reports provide protected species profiles that provide invaluable information regarding migration and nesting habits for threatened and endangered birds, as well as birds of special concern to state and federal agencies.

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