U.S. Fish and Wildlife Service Announces Notice of Intent to Prepare Rulemaking for Migratory Bird Treaty Act Incidental Take Permits

On May 26, 2015, the U.S. Fish and Wildlife Service issued a notice of intent (NOI) to prepare a programmatic environmental impact statement (EIS) evaluating the impacts of a proposal to authorize the incidental take of migratory birds under the Migratory Bird Treaty Act (MBTA).

The MBTA was enacted almost 100 years ago in order to curb poaching and commercial hunting of migratory birds. The MBTA makes it unlawful to “pursue, hunt, take, capture, kill, attempt to take, capture or kill,” possess, sell, purchase, or ship any migratory bird or any part, nest or egg of a migratory bird, unless authorized “taking” by a federal regulation (such as the issuance of hunting permits and permits for the control of injurious or depredating birds). “Taking” under the MBTA is defined more narrowly than under the Endangered Species Act or the Bald and Golden Eagle Protection Act, and, in contrast to those statutes, the MBTA does not include a prohibition on general harassment of birds or habitat modification.

Nonetheless, even with the slightly narrower prohibitions contained in the MBTA, individuals still face potential criminal liability for violations of the Act. Currently, there is no regulatory mechanism in place to provide protection from prosecution for harm caused to migratory birds during common commercial and industrial activities.

The NOI outlines several proposals the FWS is evaluating for authorizing take of migratory birds, and has asked for industry feedback on these proposals, which include:

• Individual, site-specific incidental take permits for activities that “present complexities or siting considerations that inherently require project-specific considerations, or for which there is limited information regarding adverse effects.”

• General, nation-wide take authorizations for identified types of hazards known to be caused by specific industry activities. These industry activities include utility-scale wind and solar generation and certain E&P activities such as oil and gas reserve pits and wastewater ponds, flares, exhaust pipes and vents at oil and gas production sites.

• Entering into or expanding inter-agency agreements with other federal agencies permitting the other agencies to provide incidental take authorization when permitting actions regulated by those agencies.

• Expanding the scope of the use of voluntary guidance agreements in specific industry sectors, such as wind, solar and oil and gas. Under these agreements, best management practices and mitigation measures are set out that, if complied with, lessen the likelihood of prosecution in the event of a take. FWS currently uses this approach with wind and solar producers.

It is almost certain that, if FWS moves forward with the rulemaking, the rule will face legal challenges. Federal courts are split on whether the MBTA even prohibits the incidental killing of migratory birds. The 10th Circuit has held that MBTA liability is triggered any time a bird is killed, even if that was not the purpose of the activity. However, the 9th Circuit and the Federal District Court for the District of North Dakota have disagreed, finding that the MBTA only prohibits the intentional killing of migratory birds. Thus, the FWS’s authority to regulate incidental take is not clear.

Beyond the questions of regulatory authority are the practical concerns related to agency capacity to process what could be a huge number of new permits. Permit processing times for oil and gas facilities and renewable energy operations can already span a period of years, and adding an additional layer of federal oversight could potentially extend these already long permitting times. It is also unclear whether the FWS intends to grant incidental take permits only for new projects or facilities, or whether it will seek to permit existing facilities as well. Aware of the likely administrative burden this would impose on the FWS, the NOI makes clear that intends to focus largely on industry sectors that are known to cause a large number of bird deaths. However, this could still embrace a very large number of actions.

The NOI invites comment on the proposal through July 27, 2015. After scoping is complete, FWS will prepare a draft EIS for public comment, which would likely be accompanied by proposed regulations.

The NOI can be found at: https://www.federalregister.gov/articles/2015/05/26/2015-12666/migratory-bird-permits-programmatic-environmental-impact-statement