By Benjamin Hanelin, Jennifer Roy, and Natalie Rogers

On May 26, 2015, the US Fish and Wildlife Service (FWS) announced its intent to prepare a programmatic environmental impact statement (PEIS) to evaluate the potential impacts of permits authorizing the incidental take of migratory birds under the Migratory Bird Treaty Act (MBTA).  The PEIS will address, among other things, the potential environmental impacts of a permit system for regulating and authorizing incidental take, and potential mitigation requirements.  The FWS is accepting public comments on the scope of the PEIS and alternative approaches until July 27, 2015.

If adopted, FWS’ proposed rulemaking could provide incidental take protection that is currently unavailable under the existing regulatory scheme—at least for certain industries. At present, otherwise lawful activities that may incidentally harm migratory birds are offered no protection under the MBTA. The MBTA provides that, unless and except as permitted by regulation, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, or attempt to take, capture, or kill any migratory bird. The MBTA’s protections are broad, extending to nearly every bird species in North America, including waterfowl, songbirds, shorebirds, and raptors.  A majority of courts have held that the violation of the MBTA’s take prohibition is a strict liability offense, even for the unintentional, incidental take of migratory birds. Accordingly, most industrial takings of migratory birds are charged under a strict-liability Class-B misdemeanor violation for any “person. . . or corporation” that violates the MBTA’s prohibitions. The MBTA provides no civil penalty; violation of the statute is subject only to a criminal sanction.

FWS’ proposed rulemaking would narrow the scope of the MBTA’s prohibitions and provide an avenue for incidental take protection that is currently unavailable for certain industries. Under the current proposal, the FWS intends to analyze four approaches to regulating the incidental take of migratory birds:

  • Establish general incidental take authorizations for some types of hazards to birds associated with particular industry sectors, specifically (1) oil, gas, and wastewater disposal pits; (2) methane or other gas burner pipes at oil production sites; (3) communication towers; and (4) electric transmission or distribution lines. The FWS may seek additional general authorizations in its rulemaking for hazards to birds associated with other industry sectors, such as wind energy generation;
  • Establish individual permits authorizing incidental take for particular projects or activities;
  • Develop memoranda of understanding with federal agencies authorizing incidental take from agency operations and activities; and/or
  • Develop voluntary guidance for industry sectors regarding operational technologies or techniques to avoid or minimize incidental take.

If the FWS adopts any of these approaches, it will promulgate new implementing regulations under the MBTA. The FWS recognizes that a regulatory process for authorizing incidental take would greatly benefit industry and federal agencies. For example, according to the proposed rule in the Federal Register, an authorization program could “provide greater certainty for entities that have taken efforts to reduce incidental take and significantly benefit bird conservation by promoting implementation of appropriate conservation measures to avoid or reduce avian mortality.” An authorization program could also “create a regulatory mechanism to obtain meaningful compensatory mitigation for bird mortality that cannot be avoided or minimized through best practices, risk management, or technologies.” Although the program alone cannot address every conservation need of migratory birds, the FWS’ proposal appears to try to strike a balance between minimizing the administrative burden of complying with a regulatory process and avoiding and minimizing impacts on migratory birds.

The FWS is soliciting information from other interested government agencies, Native American Tribes, the scientific community, industry, and nongovernmental organizations, and invites public comment on this proposed rulemaking.  Specifically, the FWS seeks input from the public and interested parties on its proposed approaches for the rulemaking, and the possibility of expanding the rulemaking to include a general authorization for wind energy generation. Our Environmental, Land and Resources attorneys will be closely tracking the proposed rulemaking and PEIS processes and are available to advise clients on the potential impacts of those processes.