policy · Oct 11, 2021

Biden Administration Restores Migratory Bird Protections

The Department of the Interior has launched a new course of action to restore protections under the Migratory Bird Treaty Act (MBTA) and is inviting ideas to develop a new permit system that aims to protect migratory birds while authorizing some accidental bird deaths.

On October 4, the U.S. Fish and Wildlife Service (USFWS) finalized a rulemaking that would revoke a Trump Administration regulation that restricted the MBTA to cover only intentional killings or injuring of birds. The Trump Administration’s rule, finalized in January 2021, determined that the “incidental” or accidental killing of birds resulting from an otherwise lawful activity is not prohibited under the MBTA. With the final revocation rule, which will go into effect on December 3, 2021, MBTA will once again apply to the accidental killing of birds.

Simultaneously, USFWS has issued an ‘advanced notice of proposed rulemaking’ announcing the agency’s intent to solicit public comments and information to help develop regulations to authorize the incidental take of migratory birds. “Our next step will be to create a commonsense approach to regulating the incidental take of migratory birds that works to both conserve birds and provide regulatory certainty to industry and stakeholders,” said Assistant Secretary for Fish and Wildlife and Parks Shannon Estenoz. USFWS is accepting public input until December 3, 2021.

Conservation groups have welcomed the idea of developing such a permitting system. “We are glad to see the administration [start] a rulemaking process that can advance bird protections and increase certainty,” said Eric Schneider, policy manager at the National Audubon Society. “We hope to see a collaborative process that leads to the development of a common-sense permitting program for businesses to manage their obligations under the MBTA. A straightforward and well-funded permitting program will spur innovation and best practices for how industry can protect birds in their day-to-day operations.”

USFWS also plans to issue a Director’s Order providing instructions to agency employees regarding expectations for establishing criteria for the types of conduct that will be a priority for enforcement activities with respect to incidental take of migratory birds.

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