A permit system may finally arrive for the Migratory Bird Treaty Act - New Opportunities and Responsibilities
For years, Federal Courts have held that individuals can be held criminally liable under the Migratory Bird Treaty Act (MBTA) for the death of birds regardless of whether they intended to harm them. While several courts have recently called into question this precedent, yesterday, the Fish and Wildlife Service (FWS) started a process that could help clarify liability under the Act. However, with this clarity will come additional regulatory obligations and the creation of a bright line between compliance and noncompliance.
Like the Endangered Species Act (ESA), the MBTA imposes criminal liability for harming specifically-identified birds. Unlike the ESA, however, the MBTA does not currently have an extensive permitting system. As a result, most companies are unable to proactively ensure compliance with the MBTA unless they can avoid harming any migratory birds during their operations - and complete avoidance is extremely difficult when engaging in many industrial activities of any scale. Thus, entities operating wind energy, communication towers, oil and gas production, and electrical transmission facilities, for example, have generally adopted best management practices and hoped that their proactive efforts would result in lenient treatment by FWS if and when their operations accidentally harm migratory birds.
Yesterday, FWS began a process which could change this and result in the establishment of an MBTA permit system. FWS is exploring a number of options, 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 that can avoid or minimize incidental take; and/or
- issuing individual incidental take permits for projects or activities not covered under general permits.