On October 4, the U.S. Fish and Wildlife Service (FWS) published a revision of its interpretation of the Migratory Bird Treaty Act (MBTA). With the final rule, FWS has effectively reinstated its position that “incidental take” — the harming or killing that results from, but is not the purpose of, carrying out an otherwise lawful activity — is prohibited by the MBTA, and persons that cause incidental take can be prosecuted criminally. FWS’s final rule represents a reversal of a Trump-era interpretation of the MBTA, which narrowly interpreted liability under the statute to apply only to those actions specifically “directed at” migratory birds that “reduce animals to human control.” See previous post covering the prior rule.

To support its position that the MBTA prohibits incidental take, FWS points to the August 2020 decision in NRDC v. Department of Interior, in which the Southern District of New York rejected the Trump administration’s position that incidental take was not prohibited by the MBTA. FWS also points to the 2002 congressional affirmative authorization of incidental take during military-readiness activities under the Stump Act, explaining that the inclusion of this exemption demonstrates that Congress understood the MBTA to prohibit incidental take. Additionally, FWS references concerns raised by Canada that the Trump administration’s interpretation was inconsistent with conventions agreed upon by the two countries.

FWS also released a director’s order, clarifying FWS’ enforcement policies under the MBTA. The director’s order reiterates that incidental take of migratory birds is a violation, but it identifies the types of actions that will be prioritized for enforcement. FWS will prioritize enforcement against actions that result in incidental take, where the take is foreseeable and general or activity-specific beneficial practices were not followed. Specific best practices referenced in these documents include monitoring bird use and mortality at facilities; limiting use of deterrent systems (streamers and reflectors); adhering to Wind Energy Guidelines and Avian Power Line Interaction Committee (APLIC) Guidelines; and others. FWS also explains that it plans to continue providing the regulated community with fair notice of what actions it will consider to be violations of the MBTA, as well as an opportunity to correct or mitigate violations before moving forward with an enforcement action.

FWS’ announcement also included an advanced proposed rule, exploring options for establishing an incidental take permitting program under the MBTA. Notably, Virginia has established an incidental take permitting framework for the incidental take of migratory birds that is similar to the concept suggested by FWS. Review of the Virginia regulation may provide insight and context for commenting on the FWS proposal.

There will be a 60-day public comment period ending on December 3 for the public to provide input as to how an incidental take permitting program should work. In addition to accepting written comments, FWS will hold six scoping meetings in webinar format, including three for federally recognized Native American Tribes and three for the general public. Additional information on the scoping meetings is available here.