Development of a Permit Program for Incidental Take of Migratory Birds


The Migratory Bird Treaty Act (“MBTA” or “Act”) is a federal law administered by the United States Fish and Wildlife Service (“FWS” or “Service”) that protects migratory birds. The Act carries out the United States’ commitment to four international conventions with Canada, Japan, Mexico, and Russia, respectively, which protect birds that migrate across international borders. The MBTA makes it unlawful to “take” individuals, nests, or eggs of the migratory bird species named in these international treaties, unless expressly permitted by federal regulations or authorized under a valid permit. Although permits may be obtained to import migratory birds, collect such birds for scientific purposes, or destroy depredating migratory birds, permits are not generally available under the Act for incidental take of migratory birds caused by industrial operations, such as interstate natural gas pipeline development.

The MBTA applies to any person, business, organization, institution, and any local, state or federal agency. Unlike the Endangered Species Act (“ESA”), the MBTA does not require federal agencies to consult with the FWS before undertaking an action that may result in unintended bird deaths. However, federal agencies have an obligation to ensure that their own actions do not result in violations of the MBTA. The MBTA’s take prohibitions and criminal penalties for prohibited take are enforced by the FWS and can have serious implications for industry and federal agencies which engage in activities in migratory bird habitat.

In 2009, enforcement actions for violations of the MBTA resulted in multi-million dollar penalties for a large electrical transmission company and a major oil and gas production company. Of significant concern for the interstate natural gas pipeline industry, efforts of natural gas pipeline companies to comply with the MBTA have recently resulted in significant migratory bird mitigation requirements on natural gas pipeline projects or preclusion of pipeline activities during migratory bird nesting periods. Application of the MBTA has varied among projects and between regions, and has often resulted in significant costs and delay for natural gas pipeline companies.

The status quo serves neither the natural gas pipeline industry nor migratory bird conservation efforts. Absent congressional legislation relaxing the constraints erected by the MBTA’s take provisions, which is very unlikely to occur, the obvious remedy for the MBTA’s strict liability scheme would be the development of a permitting program that would authorize incidental take. The purpose of this report is to help facilitate such action by evaluating legal issues associated with, and identifying potential approaches for, developing a permit program for incidental take of migratory birds under the MBTA.

This report reviews the MBTA and associated regulations and policy; assesses the feasibility of promulgating regulations under the MBTA for an incidental take permit program; and offers suggestions concerning the nature and format of a desirable permit program. Based on the analysis in this report and considering the authority under the MBTA, the report concludes that so long as the FWS promulgates regulations for an incidental take permit program that are compatible with the terms of the treaties with Canada, Japan, Mexico, and Russia, such a program is feasible. These treaties require that a permit program maintain or enhance migratory bird habitat and provide protection for populations of migratory birds that are depleted or in danger of extinction.

This report is intended to be used by the natural gas pipeline industry to work with the FWS and other appropriate entities to establish a permitting mechanism under the MBTA.