On January 30, 2020, the U.S. Fish and Wildlife Service (“USFWS”) released its anticipated Migratory Bird Treaty Act (“MBTA”) proposed rule. The purpose of the proposed rule is to codify the December 2017 Department of Interior (“DOI”) Solicitor opinion (“M-Opinion”) limiting liability under the MBTA. The M-Opinion overturned an earlier Obama Administration M-Opinion explicitly finding that MBTA liability applied to incidental take.
The proposed rule seeks to narrowly interpret liability under the MBTA to apply only those actions specifically “directed at” migratory birds that “reduce animals to human control.” This interpretation would expressly exclude the “incidental taking” of a migratory bird when such take is not the purpose of an action. The USFWS explains that the proposed rule will provide much-needed clarity, noting that the Obama administration’s interpretation was not codified in any regulation and was inconsistently applied through prosecutorial discretion and guidance based on when a take might be “foreseeable,” including from wind turbines, electrical transmission wires, and oil drilling. Additionally, the proposal would resolve a federal circuit split regarding whether the MBTA applies to incidental take. The proposal would make it clear that a violation of the MTBA “unambiguously require[s] an action that is directed at migratory birds, nests, or eggs.”
If finalized as proposed, the rule would provide greater certainty to the regulated community, as a regulation would not be changed as easily as the M opinions have been. Nevertheless, some uncertainty remains as to the scope of historically regulated activity that will now be exempt. Comments on the proposed rule are due on March 19, 2020. To avoid review under the Congressional Review Act (“CRA”), the final rule will need to be issued by May 20, 2020. Meeting the CRA deadline may prove challenging as USFWS has also initiated the required National Environmental Policy Act (“NEPA”) review of the MBTA proposed rule. USFWS is now in the process of public scoping, and comments on the scope of the NEPA review are also due to USFWS by March 19, 2020.