Recently the Department of the Interior reversed the policy of prohibiting incidental take of migratory birds under the Migratory Bird Treaty Act so that accidental or inadvertent actions resulting in the killing of protected bird species will not be criminally prosecuted.  This represents a policy shift from previous administrations where the potential for criminal prosecution and fines were used to encourage industries from telecommunications to energy developers to adopt pro-active conservation or monitoring measures.

The Migratory Bird Treaty Act (MBTA) was established as a federal statue in 1918 to address the overhunting of numerous bird populations in North America that were on the brink of collapse.  It imposed criminal liability on anyone seeking to “hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell” or otherwise intentionally “take” any migratory bird.

Over time, the scope of what constitutes “take” of migratory birds was extended to include “incidental take” which made numerous businesses and development projects subject to the Migratory Bird Treaty Act.  Since most of the 1000+ birds protected by the MBTA are not threatened or endangered species, many companies are caught off guard for violations to the MBTA when their principle business has nothing to do with hunting or selling birds.  At the direction of the US Fish and Wildlife Service (USFWS) many commercial and industrial enterprises had adopted migratory bird avoidance measures or monitoring in an effort to mitigate the risk of criminal prosecution under the MBTA.

While this policy shift seeks to limit the scope of criminally liable under the MBTA, it does not change USFWS incidental take requirements for threatened and endangered species under the Endangered Species Act.  It’s also unclear if this will have any effect on established MBTA incidental take permit regulations for the U.S. military operations.  Projects with multi-year permitting schedules will likely approach this policy change with caution because it could be revised again under subsequent administrations.  While providing short-term cover for industry groups, this policy is likely to renew legal and regulatory discussions on the implementation of the Migratory Bird Treaty Act.

If you would like more information about this topic and how it may affect your project, contact Josiah Frey at josiahf@smithmanage.com. Josiah is an Environmental Scientist at Smith Management Group.