A legal dispute that has occupied three successive Secretaries of the Interior takes another turn on October 4, 2021, as the Biden administration revokes an interpretation of the “incidental take” provision of the Migratory Bird Treaty Act (MBTA or Act) adopted by the Trump administration that operated to excluded unintentional takings from the scope of the Act’s criminal provisions. Instead, this latest action foreshadows this administration’s intention to readopt a broader, more sweeping interpretation of liability under the Act that had been officially adopted in the waning days of the Obama administration.
The U.S. Fish and Wildlife Service (the Service) final rule does not propose replacement language at this time but merely removes the current regulatory language altogether. The Service is expected to concurrently publish a Director’s Order clarifying the Service’s enforcement position until such time as new regulatory language is adopted. Concurrently, the Service is issuing an advanced notice of proposed rulemaking (ANPRM) to guide its establishment of a MBTA permitting program. Comments on the ANPRM will serve as the foundation for a potential three-tiered permitting approach to reduce migratory bird fatality.
History of the Service’s Approach to Incidental Take Pursuant to the MBTA
The MBTA’s imposition of strict liability for the harm of protected birds — whether intentional or incidental — has typically left industry and individuals alike in a confusing regulatory place due to sporadic enforcement. The Service announced in 2015 that it would implement new efforts to hold industry accountable in a uniform manner, but these efforts were superseded in 2017 by a Trump administration interpretation designed to eliminate confusion altogether by interpreting the MBTA to exclude enforcement of incidental take.
In February of 2020, the Service published a proposed rule formally adopting this interpretation and stating that the scope of the MBTA applied only to the “intentional” injuring or killing of protected birds and that conduct resulting in the unintentional (i.e., incidental) injury or death of protected birds was permitted. After engaging in the environmental review process pursuant to the National Environmental Policy Act, the Service published its final rule on January 7, 2021 (the January 7 rule).
In February 2021, the Service pushed the effective date to March 8, 2021 and on May 7, 2021, published a proposed rule to revoke the January 7 final rule. Public comment on the proposed rule closed on June 7, 2021, and in July, the Service released an economic analysis and regulatory impact analysis of the Proposed Rule for review and comment through August 19, 2021.
Future of the Service’s Approach to Incidental Take Pursuant to the MBTA
The Service’s final rule returns the incidental take prohibition to the MBTA. The 55-page rule recounts the MBTA’s legislative and judicial history, responds to comments, concludes that the January 7 rule was inconsistent with the MBTA, and promised to introduce new policies — “including a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take.”
In the interim, a director’s order is intended to “clarify” the Service’s current enforcement position. Enforcement efforts will focus on specific activities that “both foreseeably cause incidental take and where the proponent fails to implement known beneficial practices to avoid or minimize incidental take” and will prioritize incidental take that is the result of an otherwise illegal activity. The order does not differentiate its priorities between public and private sectors.
Private and public entities alike should be aware of and implement best practices to minimize incidental take in order to avoid enforcement.
Fulfilling its promise to introduce new policies, the Service announced the start of a process for promulgating a regulatory definition of incidental take and creating a permitting program that would authorize incidental take of migratory birds. The Service indicates it is “considering authorizing incidental take using three primary mechanisms: (1) exceptions to the MBTA’s prohibition on incidental take; (2) general permits for certain activity types; and (3) specific or individual permits.”
In the first category. the Service anticipates exempting noncommercial activities and “certain activities where activity-specific beneficial practices or technologies sufficiently avoid and minimize incidental take.” No permit would be required for such actions.
The general permit requirement is proposed to extend to certain industries and may operate similarly to nationwide permits under the Clean Water Act. Under this program, there would be industry-specific categories, and permittees would register for the general permit and pay a fee. There could be monitoring and reporting requirements as well. For this category, however, the Service suggests there would not be a separate review for each authorization.
The final category would involve facility-specific individual permits. This process would include a formal application, fee and full review by the Service. The Service could impose conditions and mitigation measures. While this category has not been fully developed, the ANPRM indicates that the following projects have been identified as common sources of bird mortality and may be subject to individual permitting requirements:
a) communication towers,
b) electric transmission and distribution infrastructure,
c) onshore wind power generation facilities,
d) offshore wind power generation facilities,
e) solar power generation facilities,
f) methane and other gas burner pipes,
g) oil, gas, and wastewater disposal pits,
h) marine fishery bycatch,
i) transportation infrastructure construction and maintenance, and
j) government agency activities.
The Service indicates that it is still developing the permitting program and is accepting comments on a number of issues, such as the “criteria for when a given project qualifies as excepted from a permit, meets general permit requirements, or should apply for a specific permit. The Service is seeking input as to what those criteria should be.” The Service is also requesting comment on a compensatory mitigation approach as well as the administration of conservation fees. A full list of comment topics is identified at the end of the ANPRM, and the comment period is scheduled to close on December 3, 2021.
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