USFWS withdraws MBTA Incidental Take rule

[Laura Bies]

The U.S. Fish and Wildlife Service quietly announced last week that it was withdrawing the rule it had been drafting to regulate incidental take under the Migratory Bird Treaty Act.

An Advanced Notice of Proposed Rulemaking was issued in October 2021, announced the administration’s intention to develop a new permitting scheme for incidental take under the Migratory Bird Treaty Act. That came soon after that agency revoked the rule promulgated during the Trump administration, which interpreted the Migratory Bird Treaty Act as only applying to intentional killing of birds and 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 Ornithological Council submitted comments in response to USFWS’ notice that they intend to develop a new rule. The OC has also submitted several other comment letters to USFWS on this issue over the years.

The agency indicated that it had received new “technical comments” that necessitated further review, but did not issue a press release. The decision to withdraw the rule has disappointed many environmental and conservation organizations, such as the American Bird Conservancy, Audubon, and Defenders of Wildlife.