USFWS Launches New Regulatory Program Under the Migratory Bird Treaty Act

The US Fish and Wildlife Service issued a Notice of Intent to prepare a Programmatic Environmental Impact Statement (PEIS) to evaluate the potential environmental impacts of an incidental take program under the Migratory Bird Treaty Act (MBTA).

The agency anticipates the development of general authorizations for particular industry sectors, focusing first on oil and gas production, communication towers, and electric transmission.  However, the agency stated it may develop additional general authorizations for other sectors, identifying specifically wind energy generation, a step that the American Bird Conservatory had petitioned the agency for earlier this year. The notice of intent indicates the agency will also address the possibility of issuing individual permits and the expansion of existing efforts to work with industrial sectors to develop non-binding “best practices,” without providing protection for incidental take.

The MBTA is a criminal statute with extremely broad coverage – over 1000 bird species – and a very low bar for liability – essentially strict liability for misdemeanor violations.  In the past, the FWS has used its enforcement discretion to limit its actions to parties who have ignored efforts to reduce bird mortality, usually after warnings from the agency, and has only very recently applied the statute to wind farms.

This program, if implemented, would provide facility operators in these sectors with assurance against prosecution, but would also greatly expand the agency’s ability to obtain mitigation for the mortalities that occur. Given the potential impact, it is strongly in the interest of the affected industrial sectors to participate actively in the evaluation and development of the programs to assure that the operational and mitigation requirements are both effective and reasonable.