Unintentional Harm to Migratory Birds is Lawful under USFWS Proposed Rule

The USFWS is proposing to adopt a regulation that will codify the 2017 Solicitor’s Opinion M-37050, which redefined what activities are illegal under the Migratory Bird Treaty Act (MBTA). Specifically, the proposed rule will decriminalize accidental harm or death of migratory birds that may occur as a result of an otherwise lawful activity.

Background on the MBTA

The MBTA, passed in 1918, made it illegal to take or kill any listed migratory bird species without a valid permit from the federal government.  Historically, enforcement of the MBTA focused on hunters, trappers, and others who directly assaulted birds. But beginning in the 1970s, USFWS widened its net and began to prosecute businesses that “incidentally” (i.e. accidentally) killed migratory birds, such as wind farms, power lines, oil pits, etc.

2017: The M Opinion

President Trump ran on a platform of reducing the environmental permitting burden to business. His first change to the MBTA was in December 2017 when Solicitor’s Opinion M-37050 (“M Opinion”) was published, which stated that businesses that accidentally kill migratory birds during their normal operations did NOT violate the MBTA.  This was a dramatic reversal of the existing interpretation of the MBTA, and it reversed Obama-era MBTA guidelines that has broadened the government’s reach under the MBTA.

2020: The Proposed Rule

The proposed rule will codify the M Opinion. The M Opinion is only a legal guideline, and it could be easily overturned with the next administration.  Codifying the M Opinion into regulation makes it much harder for a future president to issue a reversal.

As with all of the environmental regulations that President Trump seeks to overhaul, lawsuits abound.  Several conservation groups and a handful of states have sued to block the M Opinion, and we will certainly see more legal action opposing this latest rule. In the meantime, USFWS is accepting public comments on the rule through March and, after addressing comments, will release a final rule later this summer or fall (presumably before November 2020).

How does the rule affect your project?

Under the M Opinion and the proposed rule, accidental take of migratory birds does not trigger criminal liability. This means that project owners which accidentally harm or kill migratory birds will not face legal action.  However, in an effort to be good stewards to the environment, many in the renewable and oil and gas industries continue to follow the best management practices developed by USFWS to minimize impacts to migratory birds.

Do you want to know if you have migratory bird habitats on your project? Visit app.transect.com today to get a free evaluation of protected species habitat on your current or proposed project.