[co-author: Lydia Heye - Summer Associate]

In May, the U.S. Fish and Wildlife Service (“Service”) announced a proposed rule revoking the Trump administration’s final rule on incidental take under the Migratory Bird Treaty Act (“MBTA”). In the January 7, 2021 final regulation, the Trump administration interpreted the MBTA’s take prohibition (the subject of a current split in federal circuit courts), excluding the “incidental” take of migratory birds from the scope of the MBTA’s take prohibition. The Service initially delayed the date the Trump final rule would go into effect but ultimately decided to propose revoking the rule entirely for the sake of transparency and efficiency. The Service’s proposed rule would give the Department of the Interior discretion to prosecute for the incidental take of migratory birds. However, without a replacement rule, the revocation of the Trump administration’s rule leaves room for unsettled and conflicting interpretations of the MBTA as it applies to incidental take, which has varied between administrations and has split the circuit courts for years.

The Trump administration’s MBTA regulations were subject to significant public scrutiny and legal challenges from various domestic and international stakeholders, but the rollback of the regulations brings renewed uncertainty for clients in the oil and gas, telecommunications, energy transmission, and renewable generation sectors. Because there is not currently a permitting program for these clients to secure permits for take associated with their otherwise lawful activities, many of these clients are reasonably concerned that MBTA enforcement and prosecution may increase. As such, this is a good time for clients to be reviewing and updating (as necessary) their internal migratory bird compliance programs.