USFWS finalizes revocation of MBTA incidental take rule, asks for comments on new permit system

The U.S. Fish and Wildlife Service published the final rule officially revoking the Trump administration’s regulation that interpreted the Migratory Bird Treaty Act as only applying to intentional killing of birds. The agency published a proposed rule in May, indicating their intention to revoke the rule.

The Trump administration’s final rule limiting the reach of the MBTA was published January. It codified an interpretation first put forth by the Department of the Interior’s Solicitor's Office in 2017, limiting the scope of the MBTA to intentional killing of birds. 

The Biden administration has already rescinded that Solicitor’s opinion. The final MBTA revocation rule announced this week will go into effect 60 days after it publishes in the Federal Register on October 4.

The USFWS is also soliciting feedback on the development of a new permitting scheme for incidental take under the Migratory Bird Treaty Act. “We [intend] to gather information necessary to develop a proposed rule to authorize the incidental taking or killing of migratory birds, including determining when, to what extent, and by what means it is consistent with the MBTA,” the agency said in the Federal Register notice.

The USFWS is interested in comments regarding whether and how it could authorize incidental take and under what conditions or circumstances. It is considering implementing a permitting system with (1) exceptions to the MBTA’s prohibition on incidental take; (2) general permits for certain activity types; and (3) specific or individual permits. The agency is seeking public comment on the appropriate criteria, such as infrastructure design, beneficial practices, andgeographic features, that it could use to apply these authorizations to various activities. 

The agency is also considering implementing a conservation fee structure to fund programs to benefit birds, and is soliciting input on whether it should consider a compensatory mitigation approach or a general conservation fee structure, where fees go to a specific, dedicated fund. 

Any new rule will likely be challenged in court, as previous rules have been. Currently, the federal appellate courts are split on the appropriate interpretation of the MBTA and whether it should apply to incidental take. That uncertainty has led some supporters of an interpretation that prohibits incidental take tp pursue a legislative fix. In July, Reps. Alan Lowenthal (D-Cal.) and Brian Fitzpatrick (R-PA) reintroduced The Migratory Bird Protection Act, which affirms that coverage of the MBTA extends to incidental take, and also aims to create more certainty for business and incentives for innovation to protect birds.

The Ornithological Council has commented extensively on the issue of incidental take under the MBTA and has encouraged the development of a permit system for incidental take, as have other scientific societies and conservation organizations.

The ANPR requesting public comment will be published in the Federal Register on October 4, opening a 60-day public comment period (to read the notice and comment, go to http://www.regulations.gov and search for Docket No. FWS-HQ-MB-2021-0105).

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