United States Fish and Wildlife Service Revokes Trump-ERA Incidental Take Rule Under the Migratory Bird Treaty Act and Proposes New Permitting Program

On Wednesday, September 29, 2021, the United States Fish and Wildlife Service (FWS) announced that it is formally revoking a Trump-era rule that eliminated criminal prosecution for incidental take of migratory bird under the Migratory Bird Treaty Act (MBTA). FWS has also issued a director’s order establishing that the agency interprets the MBTA to prohibit incidental take of migratory birds and plans to enforce the statute as such.

On the same day, FWS released an advance notice of proposed rulemaking “[t]o better protect migratory bird populations and provide more certainty for the regulated public . . .by codifying our interpretation that the [MBTA] prohibits incidental take of migratory birds and developing regulations that authorize incidental take under prescribed conditions.”¹ Specifically, FWS says that it is considering a system of regulations for authorizing incidental take by three mechanisms: (1) exceptions to the MBTA’s prohibition on incidental take; (2) general permits for certain activity types; and (3) specific or individual permits. FWS is seeking public comment on the criteria it should use to apply these different authorizations to different activities. FWS is holding scoping meetings by webinar in October and November of this year, and will be accepting comments through December 3, 2021.

Companies and trade organizations with the greatest potential impacts from more active MBTA regulation and enforcement, such as energy and infrastructure development, along with environmental groups, will be working to help define the parameters of permit criteria, required mitigation, and potential penalties that have not yet taken shape. These will be detailed and codified through the upcoming formal rulemaking procedures. 

Arnold & Porter attorneys will continue to closely monitor developments related to the MBTA and the potential permitting program.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.