On May 25, 2015 the U.S. Fish and Wildlife Service (USFWS) published a Notice of Intent to prepare a programmatic environmental impact statement to evaluate the potential environmental impacts of a proposal to authorize the incidental take of migratory birds under the Migratory Bird Treaty Act (MBTA). A number of approaches to outlining the incidental take of migratory birds would be evaluated, including a general, conditional authorization for certain industry sectors. While the home building, public works, and development industries are not sectors initially proposed, the USFWS notes that other industry sectors may be considered in the future – and MBTA comments and conditions have occurred on some wetland permit actions.
Background
Prior to the passage of the MBTA there was little regulation of hunting and killing birds for sport, food, or markets. The MBTA (16 U.S.C. 703-711) was passed by Congress in 1918 to implement a treaty that had been signed with Canada in 1916. The Act prohibited the unauthorized killing and selling of birds covered by the treaty. Over the years, the MBTA was amended as additional treaties to protect migratory birds were signed with Mexico, Japan, and the Union of Soviet Socialist Republics.
Under the MBTA, it is illegal to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter any migratory bird or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to Federal Regulations. “Take” is defined as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt any of these actions.” There are regulations that cover the hunting of migratory gamebirds, various scientific activities, and the control of noxious birds. However, there is no existing permit program for takes that are associated with various human activities.
Thus the USFWS is considering establishing more general authority to permit incidental take through general authorizations, individual permits, or interagency agreements. The stated intent is to provide greater certainty for entities that have made efforts to reduce incidental take while benefiting bird conservation through appropriate measures to avoid or reduce bird mortality. The Notice of Intent specifically mentions hazards from oil, gas, and wastewater disposal pits; methane or other gas burner pipes associated with oil production; communication towers; and electric transmission and distribution lines as activities that could have authorization developed. Obviously, many other industries and activities pose hazards and result in the incidental take of migratory birds. The USFWS notes that they may seek additional general authorizations for hazards to birds associated with other industry sectors.
The USFWS notes that they would not expect every person or business that may incidentally take migratory birds to obtain a permit, nor do they intend to expand their judicious use of their enforcement authority under the MBTA. We have had several wetlands permits for mitigation projects include conditions limiting tree clearing between March 15th and August 15th/September 15th – and seen such comments issued by the Virginia Department of Game and Inland Fisheries for consideration by the Virginia Department of Environmental Quality. Thus, the development industry and public works agencies, as well as any group involved with land clearing, need to stay abreast of this rulemaking, as the clearing of forests and vegetation could result in the take of the migratory birds through nest disturbance.
For more information contact Mark Headly, Ben Rosner, or Mike Rolband.
