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:
- general conditional authorizations (general permits) for incidental take by certain hazards to birds by particular industry sectors, provided project proponents adhere to conservation measures developed to address practices or facilities that kill or injure birds. According to the notice, the Service is considering general permits for the following: oil, gas, and wastewater disposal pits; methane and other gas burner pipes; communication towers; electric transmission and distribution lines. The Service may also develop additional general authorizations for hazards associated with other industry sectors, including “hazards to birds related to wind energy generation, building on guidance [the Service has] developed jointly with [the wind] industry to address avian mortality.” 80 Fed. Reg. 30032, 30035 (May 26, 2015).
- individual permits for projects or activities not covered under the general, conditional authorizations. These individual permits are aimed at those projects or activities that “present complexities or siting considerations that inherently require project-specific consideration, or for which there is limited information regarding adverse effects.” Id.
- voluntary guidance for industry sectors that identifies best management practices of technology that can be applied to avoid or minimize avian mortality. Under this approach, the Service would continue to work with industry sectors reduce the risk to migratory birds. Importantly, however, the Service would not provide legal authorization for incidental take but would “as a matter of law-enforcement discretion, consider the extent to which a company or individual had complied with that guidance as a substantial factor in assessing any potential enforcement action for violation of the Act.” Id.
Among the issues the Service has specifically asked for input on:
- the approaches outlined above;
- the specific types of hazards to birds associated with particular industry sectors that could be covered under the general permits;
- potential mitigation and compensation approaches; other permitting approaches that the Service should consider;
- the NEPA analyses associated with these actions;
- whether the permitting program should distinguish between exiting and new facilities and activities; the benefits provided by current federal programs; potential costs to comply with the actions under consideration;
- the baseline for quantifying costs and benefits; and
- how to integrate existing guidance and plans (g. APPs or BBCSs) into the proposed program.
The Service is accepting comments through July 27, 2015. More information on the comment process is available at this link.