The OC submits comments on incidental take under the MBTA

[Laura Bies]

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The Ornithological Council submitted comments to the U.S. Fish and Wildlife Service last week, in response to the agency’s Advanced Notice of Proposed Rulemaking, issued in early October.

That notice solicited feedback on the development of a new permitting scheme for incidental take under the Migratory Bird Treaty Act. The USFWS 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 was 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 was 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. 

In the comments, the OC encouraged the development of a system of regulations for authorizing incidental take, noting that “the key value of the authorization concept is the potential to engage each industry as a whole and each corporation individually to promote meaningful, predictive research that will identify successful ways to reduce the level of incidental take and to identify compensatory mitigation that actually counteracts the level of take.” The letter went on to state that “there are currently significant gaps in our knowledge about the underlying causes of mortality associated with various activities and equally large gaps in our development and assessment of effective mitigation measures that need to be addressed,” and encouraged that agency to use the new permitting system as a way to begin filling those data gaps. 

The comment period on the agency’s proposal to begin regulating inciodental take ended on December 3, the same day that  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 went into effect.

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