This post was co-authored by Stoel Rives summer associate Lydia Heye.

In May, the U.S. Fish and Wildlife Service (“Service”) announced a proposed rule revoking the Trump administration’s final rule on incidental take under the Migratory Bird Treaty Act (“MBTA”). In the January 7, 2021 final regulation, the Trump administration interpreted the MBTA’s take prohibition

Today, the U.S. Fish and Wildlife Service (“Service”) published notice in the Federal Register announcing that it intends to prepare a programmatic environmental impact statement to evaluate the effects of a program that would authorize incidental take under the Migratory Bird Treaty Act (“MBTA”). Although the Service has MBTA regulations that authorize the issuance of permits to take migratory birds for specific purposes (e.g. scientific collection, bird banding and marking, raptor propagation), there is presently no permit to authorize take that occurs incidental to, and which is not the purpose of, an otherwise lawful activity. Companies potentially impacted include those involved in the oil and gas sector, telecommunications, energy transmission infrastructure, and solar and wind energy generation.

Through this rulemaking, the Service will evaluate various approaches to regulating incidental take of migratory birds, including:
Continue Reading USFWS to Evaluate New Incidental Take Permitting Program Under the Migratory Bird Treaty Act

From our colleagues Greg Corbin and Barbara Craig:

On March 24, 2010, four conservation groups filed a complaint against Kauai’s electric utility, Kauai Island Utility Co-op (“KIUC”), alleging that KIUC’s power lines, utility facilities, and street lights “take” threatened Newell’s Townsend’s shearwaters (Puffinus Auricularis Newelli) (“Newell’s shearwaters”) and/or endangered Hawaiian petrels in violation of the Endangered Species Act (“ESA”). The civil complaint, filed in the U.S. District Court for the District of Hawaii, alleges that KIUC has failed to secure the necessary ESA incidental take permits and, despite years of promises, has failed to implement protective measures that are needed to prevent the “take” of the listed birds.Continue Reading Kauai’s Electric Utility Faces Civil Suit and Criminal Charges For Bird Fatalities