U.S. Fish & Wildlife Service considering program to authorize incidental take of migratory birds

Recently, the U.S. Fish and Wildlife Service announced its intention to evaluate the potential environmental impacts of a proposal to authorize incidental take of migratory birds under the Migratory Bird Treaty Act. The agency will be preparing a programmatic environmental impact statement. The notice appears in the May 26, 2015 issue of the Federal Register (Vol. 80, pp. 30032 – 30036).

The Migratory Bird Treaty Act was passed by Congress in 1918 to implement a treaty with Canada that prohibited unauthorized killing and selling of birds covered by the treaty. The Act has been amended several times to include protection of species identified in treaties with several other countries.

The Act makes it unlawful to take or kill individuals of most bird species found in the United States, unless that taking or killing is authorized. In the notice, the Service indicates that “many natural and anthropogenic sources (any activity, action, or component of a project, enterprise, or endeavor) cause bird mortality or otherwise contribute to declining populations.” They further state that “bird habitat is lost or degraded every year due to urbanization, energy development, agriculture, and forestry practices.”

In the notice, the Service describes four approaches it is considering for regulation of incidental take of migratory birds. Those include (1) issuance of general incidental take authorizations for some types of hazards to birds associated with particular industry sectors; (2) issuance of individual permits authorizing incidental take from particular projects or activities; (3) development of memoranda of understanding with federal agencies authorizing incidental take from agency operations and activities; and (4) development of voluntary guidance for industry sectors regarding operational techniques or technologies that can avoid or minimize incidental take.

The Service states that, under the fourth approach (voluntary guidance), they “would continue to work closely with interested industry sectors to assess the extent that their operations and facilities may pose hazards to migratory birds and to evaluate operational approaches or technological measures that can avoid or reduce the risk to migratory birds associated with those hazards.” However, the Service would not provide legal authorization for incidental take under this approach. Rather, they would consider the extent to which a company or individual complied with the guidance when assessing any potential enforcement action for violation of the Act.