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U.S. Fish & Wildlife Proposes Incidental Take Rule for Migratory Birds

June 17, 2015

On May 26, 2015, the United States Fish and Wildlife Service (FWS) issued a Notice of Intent (Notice) that initiated environmental review of a proposal to regulate the incidental take of most of the bird species found in the United States.[1]

In the Notice, FWS outlined a plan for development of a multi-layer permitting program under the Migratory Bird Treaty Act (MBTA),[2] an almost 100-year-old statute designed to control poaching and commercial hunting.

FWS says that it “would not expect every person or business that may incidentally take migratory birds to get a permit.” Still, a wide variety of human activities and structures cause bird mortality. As a result, an MBTA permitting program could affect a wide range of industries and activities, reaching well beyond the renewable energy and oil and gas sectors that have received the agency’s attention over the last several years.

FWS has invited comments on the potential scope of this program through July 27, 2015. The FWS announcement begins what will no doubt be a protracted and contentious rulemaking process. Litigation is likely as well.

Background

The MBTA, first enacted in 1918, implements four treaties between the United States and Canada, Japan, Mexico and Russia for the protection of birds that migrate across international borders. More than a thousand bird species are currently protected under these treaties and the MBTA.[3]

The MBTA makes it a crime to “pursue, hunt, take, capture, kill, attempt to take, capture or kill,” possess, sell, purchase, or ship any migratory bird or any part, nest or egg of a migratory bird.[4] The only exception is if the “take” has been permitted by regulations adopted by the Secretary of the Interior.[5] In deciding whether, and by what means, to authorize the take of migratory birds, Interior is directed to consider “the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight.”[6]

The MBTA imposes misdemeanor criminal penalties for any violations of the Act or its implementing regulations.[7] It also makes it a felony to knowingly sell a migratory bird protected by the MBTA, or to knowingly take a protected bird with the intent of sale.[8]

Interior has adopted MBTA regulations that authorize the hunting of migratory game birds,[9] various scientific and educational activities, control of depredating or injurious birds, and the handling of migratory birds by public agencies.[10] It also has adopted a general authorization for any take that occurs incidental to military readiness activities.[11] Currently, however, there is no permit program for take that occurs incidental to commercial or industrial activities or that results from buildings, cars, or other causes with a human connection. To date, FWS has only addressed incidental take for a few industries, and has done so through MBTA enforcement actions and the application of enforcement discretion.

FWS Plan to Regulate the Take of Migratory Birds

The FWS Notice outlines a plan for authorizing the incidental take of migratory birds under the MBTA. FWS proposes, and seeks comment on, a three-pronged permitting framework:

  1. A general, conditional authorization available to industry sectors that FWS has historically engaged with to develop impact reduction measures. According to the Notice, sectors that FWS is considering including in a general permit include oil and gas reserve pits and wastewater ponds; flares, exhaust pipes and vents at oil and gas production sites; communication towers; and transmission lines. FWS also says it is considering whether wind energy generation could be included in the general, conditional authorization framework by “build[ing] on” the Land-Based Wind Energy Guidelines that FWS issued in 2012.
  2. Individual incidental take permits and site-specific NEPA reviews for activities that “present complexities or siting considerations that inherently require project-specific considerations, or for which there is limited information regarding adverse effects.”
  3. 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.

FWS also says that it will evaluate an approach that would build on its past work with particular industry sectors to develop voluntary guidance that identifies best management practices to avoid or minimize bird mortality. Compliance with the resulting voluntary guidance would not provide legal authorization to take migratory birds, but would be taken into account as a matter of enforcement discretion. That approach is consistent with the existing Land-Based Wind Energy Guidelines, which are structured around a similar “enforcement discretion” assurance.

Relatedly, FWS contemplates continued reliance on enforcement discretion for at least some sectors or activities, rather than a permitting program, stating that it intends to continue to “focus its enforcement efforts under the MBTA on industries or activities that chronically kill birds.”

Implications

A new incidental take rule almost certainly will draw legal challenges, given the number of industries impacted. Those challenges will bring to a head the threshold question of whether the MBTA even applies to incidental take. Courts in the 10th Circuit have agreed with FWS that the MBTA is a strict liability statute triggered by bird deaths that incidentally result from otherwise lawful activity.[12] However, courts in the 8th and 9th Circuits have taken the opposite view, holding that the statute only applies to purposeful actions directed against migratory birds, like hunting.[13] The recent Duke and the PacifiCorp wind project MBTA plea agreements originated in Wyoming, a 10th Circuit state. See Golden Eagle Mortality at Wind Energy Projects – Implications of Duke and PacifiCorp Plea Agreements, Marten Law News (January 21, 2015)

Assuming it survives threshold legal challenges, an MBTA incidental take program faces practical constraints due to the vast array of human structures and activities that incidentally cause bird mortality. FWS is aware of this problem, saying it intends to focus on activities and industries that chronically kill birds. However, that also may prove difficult given the limited amount of information available concerning the rates of bird mortality attributable to specific industries or activities.

Two of the approaches outlined in the FWS Notice would provide alternatives to individual permits, potentially reducing administrative burdens. The general permitting approach described in the Notice appears to be akin to the U.S. Army Corps’ nationwide Clean Water Act Section 404 permit program. And FWS’ proposal to consider the use of inter-agency MOUs to extend take authorization to private parties regulated by a federal action agency suggests a mechanism similar to consultation under Section 7 of the Endangered Species Act.

FWS clearly contemplates leaving at least some industrial sectors and activities out of its permitting program and addressing their impacts on migratory birds through the exercise of enforcement discretion. The Notice does not indicate the criteria the agency will use to draw this line. No doubt FWS will receive substantial comment on this question.

This approach of leaving some sectors out of a permitting program would be viable only because the MBTA has no citizen suit provision. However, whether FWS’s reliance on enforcement discretion would remain insulated from court review following creation of a formal MBTA permitting program remains to be seen.

The Notice also invites industries to work with FWS to develop voluntary guidance and best management practices to “assess the extent that their operations and facilities may pose hazards to migratory birds” and identify techniques to avoid and minimize bird mortality. The Notice does not explain how this approach would mesh with the proposed permitting requirements. For example, FWS states that individual permits may be required of projects or activities that are inherently unique, “or for which there is limited information regarding adverse effects.” Taken together, the two provisions raise the question of whether projects with relatively unknown migratory bird impacts should be regulated by individual permits or by voluntary guidance and prosecutorial discretion instead.

One way to resolve this problem would be to limit the individual permitting program to truly unique uses that do not fit easily into a broad-based, relatively homogenous industry sector like transmission, wind farms, oil and gas, or utility-scale solar facilities. This would have the significant benefit of conserving scarce administrative resources and avoiding the inherently un-systematized complications of a site-specific permitting regime that would make it particularly difficult to generate standardized, sector-wide avian mortality data.

Under this approach, broad-based, homogenous industry sectors with relatively unknown migratory bird impacts (utility-scale solar facilities being one example) would be subject to a phased approach that begins with the development of standardized data-collection guidelines instead of an individual permitting program. Compliance with the guidelines could result in favorable enforcement discretion or perhaps exemption under an interim, general incidental take authorization rule. Once enough data has been generated to quantify the risks posed by an industry and identify best management practices for avoiding or minimizing those risks, FWS could then use that information to evaluate whether the industry presents disproportionate risks relative to other sectors that would warrant the commitment of additional resources required for a permitting program. If not, that sector could continue operating under the voluntary guidelines and an assurance of the exercise of enforcement discretion.

Next Steps

With its May 26 Notice, FWS has begun developing proposed rules to more broadly regulate the incidental take of migratory birds. The Notice begins a scoping process for a Programmatic Environmental Impact Statement (PEIS). FWS will be accepting scoping comments until July 27, 2015. It will also hold a series of “open house” sessions between June 16 and July 2 in Sacramento, Denver, St. Louis, and Arlington, VA, and a public webinar on July 8, 2015.

Once scoping is completed, FWS will develop a Draft EIS and issue it for public comment, presumably in conjunction with the release of a set of proposed regulations. The May 26 Notice does not indicate the agency’s timeline for this effort, but it reportedly hopes to issue draft regulations this winter and have a final rule in place before the end of the Obama administration.

That may prove to be an overly optimistic schedule. FWS issued a NEPA Notice of Intent in June, 2014, for potential changes to the existing Bald and Golden Eagle Protection Act permitting program. See NEPA/BGEPA: Fish and Wildlife Service May Overhaul Rule Permitting Incidental Take of Eagles, Marten Law News (July 1, 2014). However, no NEPA document or proposed changes to the eagle permitting rules have emerged from that effort as of yet. Regulating the incidental take of more than a thousand species of migratory birds by a wide variety of industry sectors and activities across all regions of the country will likely prove much more complicated.

[1] FWS, Notice of Intent, Migratory Bird Permits: Programmatic Environmental Impact Statement, 80 Fed. Reg. 30032 (May 26, 2015).

[2] 16 U.S.C. §§ 703-712.

[3] See 50 C.F.R. § 10.13.

[4] 16 U.S.C. § 703(a).

[5] Id.

[6] 16 U.S.C. § 704(a).

[7] 16 U.S.C. § 707(a).

[8] 16 U.S.C. § 707(b).

[9] 50 C.F.R. Part 20.

[10] 50 C.F.R. Part 21.

[11] 50 C.F.R. § 21.15.

[12] E.g., United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir.2010) (affirming oil producers’ misdemeanor convictions under the MTBA after dead migratory birds were discovered lodged in pieces of their oil drilling equipment); United States v. Moon Lake Electric Ass’n, Inc., 45 F.Supp.2d 1070, 1074 (D.Colo.1999) (“In proscribing the acts of taking, capturing, killing, possessing, selling, purchasing, importing, exporting and transporting, Congress expressed a clear intent to proscribe conduct beyond that associated only with hunting, trapping or poaching.”)

[13] U.S. v. Brigham Oil and Gas, 840 F.Supp.2d 1202 (D. ND 2012); Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 303 (9th Cir. 1991); Protect Our Communities Foundation v. Salazar, 2013 WL 5947137, *17-*18 (S.D. Cal. 2013); Protect Our Communities Foundation v. Jewell, 2014 WL 1364453, *21 (S.D. Cal. 2014).

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