Construction of new pipeline (especially gas) or other energy infrastructure often encounters issues arising from the Migratory Bird Treaty Act (MBTA or Act).  The U.S. Fish and Wildlife Service (FWS or the Service) recently announced  its intent to evaluate the potential environmental impacts of a proposal to authorize incidental takes of birds under the MBTA.  Such evaluation is required under the National Environmental Policy Act (NEPA) for any proposed agency action with the potential to significantly affect the environment.  The FWS proposes a multi-faceted approach to regulating the incidental take of migratory birds, including:

  • Issuance of general incidental take authorizations for certain hazards to birds associated with particular industry sectors;
  • Issuance of individual permits authorizing incidental takes in the context of particular projects or activities; and
  • Development of memoranda of understanding with federal agencies, authorizing incidental takes from those agencies’ operations and activities.

FWS, Notice of Intent, 80 Fed. Reg. 30032, 30033 (May 26, 2015).  As an alternative approach, FWS is also considering the development of voluntary guidance for industry sectors regarding specific measures to avoid or minimize incidental takes, a continuation of the current approach FWS now takes with certain industry sectors.  Id.

The MBTA was enacted in 1918 to prohibit hunting, killing and trading in migratory birds and parts, criminalizes the “taking” or “killing” of any migratory bird or any part, nest, or eggs of a migratory bird unless permitted to do so by FWS regulation.  16 U.S.C. §§ 703; 704.  “Take” is defined in FWS regulations as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect,” or to attempt to do any of the above.  50 C.F.R. Part 10.12.  FWS administers the Act and issues permits to allow “takings” only in limited circumstances.  See 50 C.F.R. §§ 21.21 – 21.31 (allowing permits to be issued for activities related to migratory birds such as import or export, taxidermy, and raptor propagation).  The risk of liability under the Act for the unintentional taking of migratory birds is significant in the context of projects such as pipeline construction, as the MBTA protects most bird species found in the United States.

FWS regulations do not currently provide a mechanism for the Service to authorize unintentional but possible takings of migratory birds (or their parts, nests, or eggs) incident to construction or industrial activities.  The Service has therefore relied upon its enforcement discretion in implementing the Act, targeting industries or activities that chronically kill birds, noting that it “has historically pursued criminal prosecution under the Act only after notifying an industry of its concerns regarding avian mortality, working with the industry to find solutions, and proactively educating industry about ways to avoid or minimize take of migratory birds.”  80 Fed. Reg. at 30034; see also DOJ Press Release (Nov. 22, 2013).  FWS has also developed and published voluntary guidelines on reducing impacts to migratory birds, applicable to certain types of projects (namely the construction and operation of communications towers, electric transmission lines, and wind energy turbines) and has developed a policy of refraining from prosecution where a project makes good faith efforts to avoid the take of migratory birds in adherence with FWS guidelines.  The Service has not developed such guidelines for pipeline construction projects, however; operators instead frequently rely upon assurances that FWS will refrain from enforcement for incidental takes occurring during construction in exchange for compliance with a “voluntary conservation plan” developed in consultation with FWS, but there is variation among regions with this approach.

A regulatory mechanism for permitting incidental takes would provide certainty to the regulated industry, including pipeline operators contemplating new construction projects, but also likely more formality as well.  The FWS invites comments on its proposal, which must be submitted on or before July 27, 2015.  Instructions for submitting comments, as well as the specific topical areas in which FWS solicits input, are included in the Notice.