The U.S. Fish and Wildlife Service (“FWS”) recently released two guidance documents that have the potential to streamline project development requirements related to endangered species and migratory birds:

• First, FWS clarified that an incidental take permit under the Endangered Species Act (“ESA”) is needed only when a project is likely to result in injury or death of a listed species. This also applies to alleged harm to species due to habitat modification.

• Second, following an opinion from the Office of the Solicitor, FWS clarified what constitutes prohibited take under the Migratory Bird Treaty Act (“MBTA”), explaining that the MBTA prohibits only affirmative actions where the purpose is to take or kill a migratory bird. Incidental take is not prohibited by the MBTA.