U.S. Fish and Wildlife Service Publishes Draft Environmental Impact Statement on Regulations Defining Scope of the Migratory Bird Treaty Act

June 8, 2020

Last week, the U.S. Fish and Wildlife Service (FWS) took another step toward finalizing regulations that would define the scope of prohibitions under the Migratory Bird Treaty Act (MBTA) to exclude incidental take. On June 5, 2020, the FWS released a draft environmental impact statement (DEIS) analyzing the environmental effects of the proposed rule and alternatives to it. The FWS is accepting public comment on this DEIS until July 20, 2020.

The MBTA prohibits take of migratory birds and imposes criminal penalties for violations of it. The DEIS marks FWS’s latest step toward defining a narrow scope of the MBTA’s prohibition on take of migratory birds. In late 2017, the Solicitor of the Interior issued opinion No. M-37050 concluding that the MBTA does not prohibit incidental take or, in other words, take that results from an activity but is not the purpose of the activity. This opinion relied on a legal interpretation from the U.S. Court of Appeals for the Fifth Circuit set forth in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015). This opinion also reversed the previous Solicitor’s opinion concluding the opposite: that the MBTA prohibits incidental take. If finalized, the rule would effectively alter the migratory bird protections that a broad range of industries and land uses, including oil and natural gas, wind, solar, and energy transmission, must implement to avoid prosecution by the FWS in the event of a migratory bird take, particularly in western states.

On February 3, 2020, the FWS issued a proposed rule to define the scope of the MBTA consistent with opinion No. M-37050. At the same time, the FWS published a Notice of Intent to prepare a DEIS.

The DEIS analyzes three alternatives: regulations defining the scope of the MBTA to exclude incidental take, regulations defining the scope of the MBTA to include incidental take, and a no-action alternative under which the FWS would continue to implement the MBTA consistent with opinion No. M-37050. In the DEIS, FWS determined that the proposed rule would improve legal certainty surrounding implementation of the MBTA but recognized that the proposed rule would likely reduce implemental of best practices and would likely negatively impact migratory birds, other biological resources, cultural resources, and ecosystem services.

The FWS must issue a final environmental impact statement before it can adopt final regulations. The FWS is expected to publish the final environmental impact statement and final regulations later this year.

If you have any questions, please contact Katie Schroder , Courtney Shephard, or Zach Miller.

About Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP, one of the Rocky Mountain region’s preeminent law firms, serves clients nationally and internationally, with a strong focus on corporate finance and governance, mergers and acquisitions, natural resources, environmental law, real estate, and complex litigation. Our lawyers have extensive experience working with companies in the energy, mining, technology, hospitality, private equity, manufacturing, asset management, and aviation industries. As the exclusive member firm in Colorado for Lex Mundi, the world’s leading network of independent law firms, DGS has access to in-depth experience in 100+ countries worldwide.