Earlier this month, the Fish and Wildlife Service (“Service”) published a final rule revoking the Trump Administration’s rule on incidental take under the Migratory Bird Treaty Act (“MBTA”), as well as an advanced notice of proposed rulemaking (“ANPR”) aimed at codifying the Biden Administration’s interpretation of the MBTA’s incidental take provision and creating new incidental take regulations.

The MBTA prohibits the “take” of over 1,000 species of migratory birds, but the reach of the MBTA’s take prohibition, including whether it applies to “incidental” take from otherwise lawful activities, is unsettled and subject to a current split in the federal circuit courts. The Trump Administration rule, published on January 7, 2021, largely reflected the Fifth Circuit’s view that the MBTA only prohibits “intentional acts” that directly kill migratory birds. We anticipate that the Biden Administration rule will take the position endorsed by the Tenth Circuit and articulated in the Obama Administration’s M-Opinion that the MBTA prohibits non-purposeful take of migratory birds, nests, and eggs that occur incidental to lawful activities.

According to the Service, there are over one billion incidental bird deaths per year, so the rollback of the Trump Administration rule without a permitting program in place creates considerable uncertainty for project owners and operators. Attempting to address those concerns, the preamble states that the Service will apply its enforcement discretion and not prioritize the investigation of projects that implement best management practices. The Service also released Director’s Order #225, which provides additional guidance on what types of conduct will or will not be prioritized for enforcement. For example, the order notes that the Service will prioritize for enforcement incidental take that “(i) results from activities by a public- or private-sector entity that are otherwise legal; (ii) is foreseeable; and (iii) occurs where known general or activity-specific beneficial practices were not implemented.”

The ANPR is the first step in the Service’s rulemaking process to codify the interpretation that the MBTA prohibits incidental take and develop an approach to regulate or permit such take. The Service indicates that it is currently considering three primary mechanisms to regulate incidental take: (1) exceptions to the MBTA take prohibition, (2) general permits for certain activity types, such as wind and solar facilities, and (3) specific or individual permits.  This ANPR is reminiscent of the 2007 ANPR that initiated the incidental take program under the Bald and Golden Eagle Protection Act. In that instance, the final rule was not issued until 2009.   Similarly, we think this rulemaking will take some time, and the details are likely to evolve based on input from stakeholders. Scoping meetings open to the public will take place on November 4, 8, and 10 and comments are due by December 3.