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  • USFWS to issue programmatic environmental impact statement on incidental take of MBTA species

    Fern Davies
    • Author: Ornithological Council

      USFWS takes first step towards possible regulation of incidental take of bird species protection under the Migratory Bird Treaty Act: will prepare a programmatic environmental impact statement


      Full text of the notice and instructions for comments are here.

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    In 1918, Congress enacted the Migratory Bird Treaty Act (MBTA) that has, ever since, protected hundreds of species of birds in the United States from deliberate take. Except as allowed under hunting licenses or permits, it is a crime to take (defined by the law as pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect) any bird protected under the law.


    At the time the law was enacted, Congress was concerned about the exploitation of birds for millinery, uncontrolled hunting, and other forms of deliberate take. No one thought about the many human activities that would also result in the deaths of migratory birds - activities such as the use of window glass, power lines, telecommunications towers, oil and gas exploration and extraction, wind turbines, and maintained feral cat colonies.


    In recent years, some courts have upheld the imposition of penalties under the MBTA for take resulting from take incidental to other lawful activities. These include electrocution from power lines and drowning in oil field waste pits or chemical waste ponds. Some have urged the USFWS to take action against fisheries that use methods that result in the death of protected bird species. However, until now, the USFWS has preferred to work with industries to encourage the development of use of methods to reduce avian mortality rather than prosecuting, perhaps due to the legal uncertainty of the applicability of MBTA with regard to incidental take.


    Now, however, the USFWS is about to prepare a programmatic environmental impact statement (PEIS) for a regulatory approach to the incidental take of MBTA species. According to the notice of intent to prepare the PEIS, the agency is considering various approaches to regulating incidental take of migratory birds, including


    - issuance of general incidental take authorizations for some types of hazards to birds associated with particular industry sectors

    - issuance of individual permits authorizing incidental take from particular projects or activities

    - development of memoranda of understanding with Federal agencies authorizing incidental take from those agencies' operations and activities

    - development of voluntary guidance for industry sectors regarding operational techniques or technologies (as is already the case with power lines and wind energy facilities)


    The concept of issuing permits for incidental take rests on the idea that the agency would 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.


    A full copy of the notice is appended to this article.


    The USFWS states that, "... should we develop a permit system authorizing and limiting incidental take, we would not expect every person or business that may incidentally take migratory birds to obtain a permit, nor would we intend to expand our judicious use of our enforcement authority under the MBTA. The Service focuses its enforcement efforts under the MBTA on industries or activities that chronically kill birds and has historically pursued criminal prosecution under the Act only after notifying an industry of its concerns regarding avian mortality, working with the industry to find solutions, and proactively educating industry about ways to avoid or minimize take of migratory birds. Similarly, our permit program, if implemented, will focus on industries and activities that involve significant avian mortality and for which reasonable and effective measures to avoid or minimize take exist."


    Military readiness activities are already legally exempt from the MBTA and it should be expected that some industries will seek Congressional protection as well. For instance, 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 likely 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!

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    Update July 2017


    Migratory Bird Incidental Take policy appears to be six feet under


    In May 2015, the USFWS published a notice that it intended to prepare a Programmatic Environmental Impact Statement evaluating the impact of a new permit and policy that would allow but limit the take of bird species protected under the Migratory Bird Treaty Act. The basic concept rested on an acknowledgment that ordinary human activities do result in the unintentional take of these birds but due to legal uncertainty, the USFWS had limited ability to prosecute such take. The permit system would have allowed the take subject to requirements imposed by the agency. Most notably, this would have included requirements for avoidance and mitigation measures. 


    Unfortunately, the USFWS was unable to complete the process prior to the end of the second Obama term. The new administration placed a hold on all new regulations (not uncommon) pending review. 


    The Ornithological Council expected that this effort would be 86'd after review as this administration is hostile to regulations generally and particularly those that impose constraints on industry. Indeed, it now appears that this regulatory effort is officially dead. Although the administration has yet to publish the spring 2017 regulatory agenda (a compilation of all new regulations and regulatory revisions that are at some stage of development or approval), agency staff and others have confirmed that the USFWS has been instructed to refrain from resuming its work on this regulation and it has, or will soon be, removed from the regulatory agenda. 

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