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The Fish and Wildlife Service is considering establishing a permitting system that would allow the legal, unintentional killing of the more than 1,000 bird species protected under the Migratory Bird Treaty Act. This has been contemplated for some time, even though the 1918 statute does not address the issue of "incidental take" - a term that means unintended take incidental to otherwise lawful activities - such as erecting buildings with windows, driving cars, erecting wind turbines and telecommunications towers, trimming or cutting trees and shrubs, and nearly all human activities.
The concept of issuing permits for incidental take rests on the idea that the agency will now be able to require conditions designed to reduce or even eliminate the level of take; the permittees would not be prosecuted provided they complied with those conditions. The concept is already being tested with the new 30-year incidental take permits for Bald Eagles and Golden Eagles. If a permittee fails to comply with permit conditions and avian mortality occurs, the USFWS would be able to suspend or revoke the permit and prosecute the permittee. The legal basis for prosecution in the absence of such a permit is unclear; some lower federal courts have ruled that incidental take can be the basis of liability but others have reached the opposite conclusion.
For species protected under the Migratory Bird Treaty Act, the agency has, until now, preferred to work with industries to encourage the development and implementation of voluntary guidelines.
The agency plans to issue a "notice of intent" to prepare an environmental impact statement for permitting the incidental "take" of migratory birds. It is not known when the notice will be published, but it appears that the concept has been under discussion for several years. USFWS Director Dan Ashe announced plans to develop incidental take permits for migratory birds in a June 2014 speech to the Avian Power Line Interaction Committee (APLIC), a coalition of electric utilities and FWS that develops guidance for minimizing avian electrocutions and collisions with power lines. The agency worked with APLIC for many years to develop guidelines to reduce this mortality but success has been limited. Nonetheless, the USFWS refrained from prosecuting unless a power line company declined to implement recommended measures.
The notice of intent will, as required by law, ask for public input and will include public meetings across the county. A rulemaking, if one is proposed, could be many months away.
It would almost certainly be met with litigation from conservation organizations, industry, or both.
Meanwhile, the Republican-led House is considering legislation that, if enacted, would settle the issue: H.R. 493 would exempt energy companies and others who unintentionally kill or harm migratory birds from criminal penalties under MBTA.
ANALYSIS FROM THE ORNITHOLOGICAL COUNCIL: The USFWS permitting offices are already so under-funded and under-staffed that they struggle under their current workloads. This has been the case for many years and continues to worsen. Without additional funding, these new permits would result in a massive slow-down in the issuance of all permits. However, if the proposed incidental take permits carry the substantial fees that are imposed on the eagle permits, it would allow the agency to hire more permits staff. However, the extensive analysis and negotiation typically required for incidental take permits may outstrip even this additional capacity. In other words, it could take longer to obtain scientific research permits.
On the other hand, they are going to need quite a lot of ornithological research to determine what measures are or are not effective in reducing mortality!