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Fish and Wildlife Service To Consider New Incidental Take Authorization Under Migratory Bird Treaty Act

July 15, 2015

Through a notice initiating the scoping process for environmental analysis under the National Environmental Policy Act (NEPA), the U.S. Fish and Wildlife Service (FWS) has announced its intent to consider a new permitting program (alongside other options) for oil and gas and other industry operators, offering first-of-its-kind authorization for "incidental take" of the multitude of bird species protected under the Migratory Bird Treaty Act of 1918 (MBTA). See 80 Fed. Reg. 30,032 (May 26, 2015). As discussed further below, some industries and operators previously targeted for enforcement may view the new initiative as a significant step forward, providing the benefit of regulatory certainty on a variety of migratory bird hazards. At the same time, however, the announcement raises the specter of new, potentially burdensome administrative and operational hurdles for those who obtain MBTA incidental take authorization.  The announcement also has reignited debate over FWS's authority (or lack thereof) to regulate so-called "incidental" takes under the MBTA.

Legal Background

FWS's recent announcement concerns new regulation under the ostensible authority of the MBTA, 16 U.S.C. §§ 701 et seq.  Except as permitted by an FWS regulation, this statute generally prohibits any "take" of a covered migratory bird species.1 At present, the MBTA currently covers 1,027 bird species,2 or "nearly all native birds in the country."3

The term "take" is not defined within the 1918 MBTA – one of the first generation of federal wildlife laws. Since the 1970s, the federal government has taken the position that the term captures both activities purposefully directed at migratory birds (such as hunting and poaching), as well as economic activities not conducted for the purpose of injuring birds but which incidentally or accidentally result in migratory bird deaths or injuries. Under other wildlife statutes enacted in the 1980s (e.g., amendments to the Endangered Species Act), the latter injuries would now be called incidental or accidental takes. Based on such incidental or accidental takes, the government has prosecuted individuals or companies for violating the MBTA's "take" prohibition. But the term "incidental take" does not appear in the 1918 MBTA, as amended.

Courts that have considered the government's current position have reached opposing conclusions. While courts in some circuits have found that MBTA "take" reaches land-use activities causing unintended deaths of migratory birds,4 others have held that such incidental bird deaths are outside the scope of the MBTA and, by extension, federal regulatory authority under the MBTA.5 Notwithstanding this conflict, the federal government has stepped up MBTA incidental take enforcement in recent years, taking aim at oil and gas, electric transmission and distribution, and wind energy generation, among other industries.  The public response to such enforcement has been mixed. Some lawmakers have soured at the federal government's exercise of such broad enforcement authority and have threatened to expressly restrict that authority.6

FWS's Notice of Intent to Evaluate New Options for Addressing MBTA Incidental Takes From Specific Industry Hazards

Despite the conflict in the circuits, FWS has now issued a Federal Register notice announcing its intent to analyze a series of options for authorizing certain types of MBTA incidental takes.7 FWS references a number of industry causes of bird mortality, such as urbanization, energy development, agriculture, forestry, manmade structures, electrocutions, chemicals, and fisheries bycatch, and asserts that such sources cumulatively contribute to "continental-scale population declines for many species."8 In the agency's view, the new program would serve to "provide a framework to reduce existing human-caused mortality of birds and help avoid future impacts by promoting practical actions or conservation measures that will help industries and agencies avoid and minimize their impacts on birds."9 FWS also touts the program's presumptive benefits of providing "greater certainty for entities that have taken efforts to reduce incidental take," as well as "meaningful compensatory mitigation for bird mortality that cannot be avoided or minimized…."10   

FWS's current notice is a scoping notice under NEPA. As discussed in the notice, FWS intends as a first step to prepare a Programmatic Environmental Impact Statement (PEIS) to evaluate the various options for addressing incidental take and their respective environmental impacts. FWS has identified four options up for consideration, either "separately or in any combination":

  • "issuance of general incidental take authorizations for some types of hazards to birds associated with particular industry sectors";
  • "issuance of individual permits authorizing incidental take from particular projects or activities";
  • "development of memoranda of understanding with Federal agencies authorizing incidental take from those agencies' operations and activities"; and
  • "development of voluntary guidance for industry sectors regarding operational techniques or technologies that can avoid or minimize incidental take" (i.e., continuation of FWS's recent efforts to address incidental take hazards in certain industries).11

Under the first option identified – general incidental take authorization for certain industry sectors – FWS has indicated that incidental take authorization would be conditioned on an operator's compliance with specific best practices or other standards for bird conservation and mitigation of impacts. For now, FWS has identified four particular industry "hazards" for which it believes a general incidental take authorization may be appropriate: oil, gas, and wastewater disposal pits; methane or other gas burner pipes; communication towers; and electrocution and collision risks from electric transmission and distribution lines.12 As a potential fifth subject of incidental take authorization, FWS references hazards associated with wind energy generation and seeks public comment on whether this industry or others may be "appropriate" for general incidental take authorization.13 

FWS is also considering an individual permit program that would apply to "projects or activities … that present complexities or siting considerations that inherently require project-specific considerations, or for which there is limited information regarding adverse effects."14 The precise scope of an individual permit program remains unclear, and no specific examples are provided in the notice. The agency does not explain whether permits would apply to certain sectors or projects or whether they would merely be available for general use. According to FWS, the agency is looking for ways to minimize the administrative burdens associated with an individual incidental take permit program, potentially by "combining environmental reviews for those permits with reviews being conducted for other Federal permits or authorizations."15

The third option under consideration would involve the establishment of new memoranda of understanding (MOUs) between FWS and other federal agencies (and the expansion of existing MOUs) for regulating and authorizing incidental takes by those agencies.16 Significantly, FWS also raises the possibility of using MOUs to authorize incidental take by private third parties regulated by federal agencies, despite the fact that "agencies themselves are not subject to the prohibitions of the MBTA when acting in their regulatory capacities."17 How such an approach would be implemented, including precisely how take authorization would be extended to regulated parties, remains unclear at this time, though related inquiries and recommendations presumably may be submitted during the current and any future public stakeholder processes.

The final option under consideration is continued reliance on ad hoc development of voluntary guidance for industry sectors of concern to FWS. Under this option, FWS emphasizes that formal incidental take authorization would not be available. However, FWS states that, "as a matter of law-enforcement discretion, [FWS would] consider the extent to which a company or individual had complied with that guidance as a substantial factor in assessing any potential enforcement action…."18

Potential Implications of FWS's Contemplated Incidental Take Authorization

Depending on the extent of perceived MBTA enforcement risk, industry stakeholders are likely to find varying degrees of comfort in the certainty that an incidental take program might offer. Specifically, those industry operators that might conceivably receive general incidental take authorization under future FWS regulations might support the opportunity to receive express MBTA take authorization, at least to the extent that the requirements attached to such authorization are deemed reasonable and appropriate. Of course, this means that the nature and stringency of any standards and requirements adopted are likely to be important issues in the stakeholder process. Likewise, the procedural mechanism(s) for obtaining MBTA incidental take coverage will be an issue of concern, particularly given the significant administrative and cost implications for industry and the government alike.  

Those industries who perceive that the MBTA does not reach incidental take or believe that they have a low enforcement risk will likely be very concerned over the scope of this FWS initiative. The existing conflict in the courts leaves the door open to future litigation challenging any incidental take program ultimately adopted (or its application to any individual operator).    

Many will undoubtedly wish to avail themselves of both present and future opportunities to help shape the contours of any incidental take authorization, the types of operations to which such a program would apply, and any standards or requirements attached to incidental take authorization, among other issues. To that end, FWS's May 2015 announcement solicits input on 15 specific issues associated with its PEIS analysis and the options under consideration.19  All written comments are due by July 27, 2015.

1 16 U.S.C. § 703(a).

2 80 Fed. Reg. at 30,033.

3 United States v. Brigham Oil and Gas, LP, 840 F. Supp. 2d 1202, 1212 (D.N.D. 2012).

4 See, e.g., United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978); United States v. Corbin Farm Serv., 444 F. Supp. 510 (E.D. Cal.), aff'd on other grounds, 578 F.2d 259 (9th Cir. 1978); United States v. Moon Lake Elec. Ass'n, Inc., 45 F. Supp. 2d 1070 (D. Colo. 1999); United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010); United States v. Citgo Petroleum Corp., 893 F. Supp. 2d 841 (S.D. Tex. 2012).

5 See, e.g., Brigham Oil and Gas, 840 F. Supp. 2d 1202; Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 1991); Citizens Interested in Bull Run, Inc. v. Edrington, 781 F. Supp. 1502 (D. Or. 1991); Mahler v. U.S. Forest Serv., 927 F. Supp. 1559 (S.D. Ind. 1996); Newton Cnty. Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110 (8th Cir. 1997); Curry v. U.S. Forest Serv., 988 F. Supp. 541 (W.D. Pa. 1997); United States v. Ray Westall Operating, Inc., No. CR 05-1516-MV, 2009 WL 8691615 (D.N.M. Feb. 25, 2009); United States v. Chevron USA, Inc., No. 09-CR-0132, 2009 WL 3645170 (W.D. La. Oct. 30, 2009); Protect Our Communities Found. v. Salazar, No. 12CV2211-GPC (PCL), 2013 WL 5947137 (S.D. Cal. Nov. 6, 2013).

6 See, e.g., H. Amdt. 347 to H.R. 2578, 114th Cong. (1st Sess. 2015) (proposed amendment to House Appropriations bill that would prohibit continued use of funds "for prosecution for incidental avian death under the Migratory Bird Treaty Act").

7 See generally 80 Fed. Reg. 30,032.

8 Id. at 30,033.

9 Id.

10 Id. at 30,034.

11 Id. at 30,033-35 (emphasis added).

12 Id. at 30,035.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id. at 30,036.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Kirsten L. Nathanson
Partner – Washington, D.C.
Phone: +1.202.624.2887