Inside The Feds’ MBTA Incidental Take Proposal

On May 26, the U.S. Fish and Wildlife Service (FWS) initiated an environmental review of a proposed permitting program for authorizing the incidental “take” of migratory birds protected by the Migratory Bird Treaty Act (MBTA).

The announcement begins what will undoubtedly be a protracted and contentious rulemaking process. Litigation is likely, as well.

FWS proposes, and seeks comment on, a three-pronged permitting framework.

The first prong would be a general, conditional authorization available to industry sectors that FWS has historically engaged with to develop impact reduction measures. Sectors contemplated by FWS include oil, gas and wastewater disposal pits; gas flares; communication towers and transmission lines.

The second prong would require individual incidental take permits and site-specific National Environmental Policy Act reviews for activities not subject to the general, conditional authorization framework.

The third prong would authorize incidental take by federal agencies that enter into a memorandum of understanding (MOU) with FWS. FWS would consider the use of such MOUs to extend take authorization to private parties regulated by the other federal agency.

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