Last month the U.S. Fish and Wildlife Service (USFWS) issued guidance on how they plan to implement the new Department of the Interior (DOI) decision to not prohibit incidental take of migratory birds under the Migratory Bird Treaty Act (MBTA).  I previously wrote how this DOI policy signals a significant change in MBTA enforcement compared to previous administrations.  But with all things policy related, the actual day to day implementation for energy facilities, developers and infrastructure projects is what matters and the USFWS attempts to provide some concrete examples of how this will be enforced.

The USFWS provides a number of project examples and repeatedly focuses on the intent of a proposed action.  They point out that a State Department of Transportation (DOT) project needing to paint a bridge with known Barn Swallow nests may be treated differently depending on intent.  If the bridge is pressure washed prior to painting with the intent of removing the nests, the State DOT would be seen as in violation of the Migratory Bird Treaty Act and require a permit.  However, if their intent is to paint the bridge and nests were inadvertently destroyed they would not be in violation of the MBTA according to the USFWS.  The USFWS applies the same logic to structure removal and indicates that removing a barn with known owl nests would not be a violation of MBTA if the intent of the barn removal is not to kill the owls.

Of particular interest to energy facilities is the USFWS admission that it is deliberating whether to “revisit past settlement agreements that require ongoing implementationof best management practices to avoid or reduce incidental take of migratory birds by wind-energy facilities and other industrial activities.”  Projects with mandated or proposed long term migratory bird management practices will want to monitor how this guidance affects their project compliance requirements.

This guidance doesn’t change the need for project proponents to coordinate with the USFWS on endangered species and eagle impacts, review migratory birds under NEPA or meet existing military readiness regulations.  However, the USFWS states that it “will not withhold a permit, request, or require mitigation based upon incidental take concerns under the MBTA.”  For the regulated community, permits and mitigation costs are where the rubber meets the road and the immediate road ahead just got a little smoother.

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.