December 6, 2021

Volume XI, Number 340


December 06, 2021

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December 03, 2021

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Incidental Take of Migratory Birds Once Again a Federal Crime; FWS Considering New Permitting Program

After a brief hiatus, incidental take of migratory birds will again be a federal crime beginning December 3, 2021.  Less than 10 months after instituting a final rule declaring that incidental take of birds is not subject to the Migratory Bird Treaty Act’s (MBTA) strict liability criminal prohibitions, the U.S. Department of the Interior (DOI) reversed course, announcing that it is formally rescinding that rule and returning to enforcement discretion for individuals and businesses that inadvertently injure or kill birds when engaged in otherwise legal activities. Interior simultaneously announced that it will dust off the Obama administration’s shelved plans for an incidental take permitting program under the MBTA, and that it is opening an advance comment period through December 3, 2021, for interested parties to submit recommendations for developing the new permitting program.

To that end, on October 4, 2021, the U.S. Fish and Wildlife Service (FWS) published a Final Rule indicating DOI will again implement the MBTA to prohibit incidental take, and an Advance Notice of Proposed Rulemaking (ANPR) for the MBTA incidental take permitting scheme.

It is hard to overstate the potential impact of these developments.  Because the Department is again interpreting the MBTA to prohibit nearly any take of a covered migratory bird, regardless of intent, public participation in developing an incidental take permitting scheme will be critical to ensure MBTA compliance does not become a significant hurdle for communication, electric, energy, transportation, and other industry operations nationwide. 

The Final Rule Prohibiting Incidental Take of Migratory Birds

The Final Rule, which will take effect on December 3, 2021, revokes a Trump administration regulation published early this year that interpreted the MBTA’s prohibitions as applying only to actions that are “directed” at migratory birds, and not to actions that “incidentally take” them.  FWS is again interpreting the MBTA as prohibiting incidental take, but will apply “enforcement discretion.”  These actions mean that industry and project proponents should begin reintegrating MBTA compliance policies and procedures into their operations.  This action parallels a court decision invalidating an Interior Solicitor M-Opinion adopting the same MBTA interpretation as the now revoked Rule, and may moot pending litigation challenging that Rule.

The Forthcoming Incidental Take Permitting Scheme

FWS also published an ANPR to solicit comments to inform a future rulemaking that would both clarify the scope of liability under the MBTA and authorize incidental take under certain circumstances.  The future rulemaking will codify the interpretation of the MTBA as prohibiting incidental take of migratory birds.  It will also authorize incidental take under prescribed conditions.  The overall approach is akin to fairly recent Interior incidental take regulations under the Bald and Golden Eagle Protection Act, though it is not a criminal statute unlike the MBTA.  The mechanisms that FWS is currently considering to authorize incidental take are:

  1. Exceptions to the MBTA’s prohibition on incidental take;

  2. General permits; and

  3. Specific or individual permits.

FWS is currently contemplating that certain activities, such as noncommercial activities (e.g., simple homeowner activities) and activities where beneficial practices or technologies sufficiently avoid and minimize incidental take, would be expected from requiring a permit. 

FWS would require other activities to obtain a general or individual permit.  The activities FWS identified as potentially subject to a permit requirement include:

  • Communication towers

  • Electric transmission and distribution infrastructure

  • Onshore and 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

FWS is soliciting comments regarding those activities not listed to determine how they should be included.

Going Forward

Although the Final Rule is scheduled to take effect on December 3, 2021, its promulgation could trigger renewed litigation, possibly in a forum that agrees with the legal interpretation in the revoked Trump administration regulation. 

With regard to MBTA incidental take permitting, on October 4, 2021, FWS opened a 60-day public comment period on the ANPR that will end on December 3, 2021.  Through this rulemaking, FWS will create a new regulatory permitting regime that will affect any industry engaging in tree-clearing or other activities impacting migratory birds.  Industry and project proponent participation in this rulemaking is imperative to ensure that the scheme exempts the appropriate operations, provides a streamlined path to compliance when necessary, and otherwise minimizes disruption and red tape.  Particularly given FWS’s challenges issuing incidental take permits under the Endangered Species Act in an efficient, consistent, and defensible manner, keeping projects with potential migratory bird impacts on schedule and on budget will depend on industry and project proponent participation in this process.  Litigation of any MBTA incidental take regime is also likely, and thus a robust administrative record will be critical. 

© 2021 Beveridge & Diamond PC National Law Review, Volume XI, Number 280

About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

Alexander Horning Litigation Attorney Beveridge & Diamond Washington, DC

Alex helps clients solve product and project development problems.

His regulatory, compliance, and litigation practice involves product stewardship, reverse logistics, hazardous, medical, and solid waste, Federal Insecticide, Fungicide, and Rodenticide Act, Endangered Species Act, and National Environmental Policy Act issues. Alex works with clients in the pharmaceutical and medical device, pesticides, and energy industries and has extensive experience counseling nationwide coalitions addressing industry challenges.

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W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC

Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and...

Casey T. Clausen Business Attorney Beveridge & Diamond Seattle, WA

Casey is committed to providing legal services that meet his clients’ business goals.

He has a genuine interest in learning about his clients’ operations and is passionate about working in an area of the law that involves a range of industries, complex scientific and technical matters, and delivering solutions that address real-world business concerns.

Casey joined Beveridge & Diamond following tenures as a Law Clerk for United States District Judge Lawrence E. Kahn and U.S. Magistrate Judge Daniel J. Stewart in the U.S. District Court for the Northern District of New...


Jonas specializes in regulatory compliance and civil litigation, with a special focus on the CWA, ESA, and natural resources management.

Jonas Reagan advises clients on regulatory compliance, administrative enforcement actions, and civil litigation under state and federal regulations including the Clean Water Act, Endangered Species Act, Administrative Procedure Act, Pipeline Safety Act, General Mining Act of 1872, and Federal Land Management Policy Act.

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