USFWS Proposes a New Rule for the Incidental Take of Migratory Birds

Jun 01, 2015

USFWS Proposes a New Rule for the Incidental Take of Migratory Birds. The U.S. Fish and Wildlife Service (USFWS) announced in the May 26, 2015 Federal Register their intent to prepare a programmatic environmental impact statement (PEIS) under the National Environmental Policy Act (NEPA) to evaluate the potential environmental impacts of a proposed rule for the incidental take of migratory birds under the Migratory Bird Treaty Act (MBTA).

The term “take” is defined as “to pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to pursue, hunt, shoot, wound, kill, trap, capture or collect (50 CFR 10.12).” The MBTA was formed from conventions with the United States and Canada (1916), Mexico (1936), Japan (1972), and Russia (1976). Currently 1,027 species are listed as migratory birds, including migratory game birds, such as ducks and geese. 


The USFWS states that they “are considering rulemaking to address various approaches to regulatory incidental take of migratory birds, including issuance of general incidental take authorization 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; and/or development of voluntary guidance for industry sectors regarding operational techniques or technologies that can avoid or minimize incidental take.” The USFWS goes on and states, “The rulemaking would establish appropriate standards for any such regulatory approach to ensure that incidental take of migratory birds is appropriately mitigated, which may include requiring measures to avoid or minimize take or securing compensation.”

Particular industry sectors identified by the USFWS for general conditional authorizations for incidental take permits include: the oil and gas industry (oil, gas, and wastewater pits and burners); communication industry (communication towers); electric utilities (transmission and distribution lines); and the wind power industry. The USFWS would also review individual take permits for activities not covered under the general conditional take permit. No specific types of projects were listed by USFWS, but would be on a case-by-case basis. Other approaches identified by the USFWS include Memoranda of Understanding (MOU) with Federal agencies and developing voluntary guidance for industry standards.

The new proposed rule could have significant consequences for many of our clients and TES will be providing comments to the USFWS. To learn more about the rule, go to the Federal Register dated May 26, 2015 or review on the Federal Register website. Please feel free to contact us to help answer any questions about this potentially far-reaching and problematic rule.