U.S. Fish & Wildlife Service Reinstates Interpretation of MBTA Prohibiting Incidental Take and Initiates Rulemaking for Permitting Process

On September 29, 2021, the U.S. Fish and Wildlife Service (USFWS) released a final rule (“Final Rule”) that revoked a prior rule, finalized only in January 2021, that had interpreted the Migratory Bird Treaty Act (MBTA) as not prohibiting incidental take of migratory birds. Incidental take is defined as take that results from, but is not the purpose of, an action.

USFWS also released an advance notice of proposed rulemaking (ANPR) to develop regulations to authorize incidental take of migratory birds under certain circumstances or conditions. These regulatory changes will affect conventional and renewable energy development on federal and nonfederal lands, as well as other land uses that present a risk of incidental take of migratory birds. Presently, the Final Rule and ANPR have not yet been published in the Federal Register.

Final Rule Revoking USFWS’s Prior Interpretation of the MBTA

The Final Rule revoked a January 7, 2021 rule (“January 2021 Rule”) that was released in the waning days of the Trump administration and had taken effect on March 8, 2021. The January 2021 Rule expressly stated that the MBTA does not prohibit incidental take of migratory birds.

USFWS had based the January 2021 Rule on a 2017 legal opinion of the Solicitor of the Department of the Interior, Solicitor’s Opinion M‒37050. A federal court vacated this opinion last year, Natural Res. Defense Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020), and the Deputy Solicitor of the Interior withdrew this opinion in March 2021.

By revoking the January 2021 Rule, USFWS reinstates its prior interpretation that the MBTA prohibits incidental take of migratory birds. Notably, USFWS did not replace the January 2021 Rule with an alternative regulation but stated in the preamble to the Final Rule that it plans to introduce “a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take.”

With the Final Rule, USFWS also released Director’s Order No. 225 providing guidance to the agency on how to implement the agency’s current interpretation of the MBTA.

Most significant, the Director’s Order prioritizes enforcement of incidental take in the following circumstances:

• Incidental take that:
  • results from activities by a public- or private-sector entity that are otherwise legal;
  • is foreseeable; and
  • occurs where known general or activity-specific beneficial practices were not implemented; or
• Incidental take that is the result of an otherwise illegal activity.

By contrast, the Director’s Order identifies incidental take resulting from the following activities as not an enforcement priority:

• A member of the general public conducting otherwise legal activities that incidentally take migratory birds;
• A federal agency conducting activities in accordance with a signed memorandum of understanding with the Service developed under Executive Order 13186 for the conservation of migratory birds; or
• A public- or private-sector entity conducting activities in accordance with applicable beneficial practices for avoiding and minimizing incidental take.

The Director’s Order also revokes and replaces an April 11, 2018 Director’s memorandum titled “Guidance on the Recent M-Opinion Affecting the Migratory Bird Treaty Act.”

ANPR for Regulations Authorizing Incidental Take of Migratory Birds

The ANPR announced USFWS’s intent to develop regulations to authorize incidental take of migratory birds under certain circumstances or conditions. USFWS is accepting public comment response to the ANPR for 60 days after its publication in the Federal Register.

USFWS is considering three mechanisms to authorize incidental take: (1) categorical exceptions to the incidental take prohibition; (2) general permits; and (3) specific or incidental permits.

With respect to exceptions, USFWS explained it is considering developing exceptions for two general types of activities: first, noncommercial activities, such as homeowner activities that take migratory birds, and second, “certain activities where activity-specific beneficial practices or technologies sufficiently avoid and minimize incidental take.” USFWS would codify any exceptions in a regulation.

With respect to general permits, USFWS explained that it is considering developing general permit regulations for the following activities that are “common sources of bird mortality”:

• Communication towers,
• Electric transmission and distribution infrastructure,
• Onshore wind power generation facilities,
• Offshore wind power generation facilities,
• Solar power generation facilities,
• Methane and other gas burner pipes,
• Oil, gas, and wastewater disposal pits,
• Marine fishery bycatch,
• Transportation infrastructure construction and maintenance, and
• Government agency activities.

USFWS envisions that general permits would be authorized through a registration system. An entity would register, pay a fee, and agree to adhere to activity-specific conditions and implement beneficial practices. General permits would include reporting requirements.

Finally, USFWS anticipates that activities that do not qualify for an exemption or general permit would be eligible to obtain an individual permit authorizing incidental take. USFWS will develop eligibility criteria and permitting procedures.

Notably, USFWS also explained that it is considering offsets associated with general and/or individual permits. Specifically, USFWS is considering whether to adopt a compensatory mitigation approach, where mitigation is developed and implemented specific to a given project or activity, or a general conservation fee structure, where fees go to a specific, dedicated fund.

USFWS is seeking a wealth of information and data to inform its rulemaking process, including information regarding:

• Human-caused migratory bird death and injury from onshore and offshore wind power generation facilities, solar power generation facilities, methane and other gas burner pipes, and oil, gas, and wastewater disposal pits.
• Beneficial practices to avoid and minimize migratory bird death and injury;
• Activity-specific beneficial practices that should be considered as conditions of the authorization;
• Criteria (such as infrastructure design, beneficial practices, geographic features, etc.) to qualify as excepted from a permit, for general permit registration, or to apply for a specific permit;
• Economic costs and benefits of implementing beneficial practices that require retrofitting existing infrastructure;
• Economic costs and benefits of implementing beneficial practices in new construction instead of current designs;
• Economic costs and benefits of implementing beneficial practices that do not affect infrastructure;
• Other economic information useful for setting required compensatory mitigation or a conservation fee; economic information on the benefits of migratory birds, such as ecosystem services, recreation, and other benefits; and
• Any potential effects on small entities, such as small businesses, small non-profit organizations or small governmental entities with a population under 50,000.

USFWS will release draft regulations for public comment before issuing any final regulations. Additionally, USFWS will prepare environmental analysis under the National Environmental Policy Act before issuing any final regulations.

These regulations are critical to the Biden administration achieving its renewable energy goals. USFWS’s reinstated interpretation of the MBTA presents considerable uncertainty for both renewable and conventional energy projects that carry risk of incidental take of migratory birds. For this reason, the Obama administration had taken initial steps toward a permitting program, which was never finalized.

USFWS explained that it seeks to provide “regulatory clarification and certainty” with permitting regulations. Currently, land users lack formal assurances that they will not be subject to enforcement if their activities cause incidental take. Further, these regulations could produce efficiencies for land users by establishing uniform criteria for projects seeking incidental take authorizations.

These regulations will likely attract considerable attention and public comment. Land users who may utilize this program should submit comments in response to USFWS’s requests for information.

If you have any questions regarding the Migratory Bird Treaty Act, please contact Katie Schroder.